Kudos to New Hampshire for being so proactive in legislating on behalf of special education students. New Hampshire has recently passed two new laws that will benefit both students and their parents / guardians. One law requires school districts to assist special education students age 17 and over with registering to vote; the other law creates an Office of the Advocate for Special Education.
HOUSE BILL 1594: AN ACT relative to assistance to certain students with disabilities in registering to vote.
This Act is very short, simple and clear. It requires that whenever a Team meets to review or develop an IEP or 504 accommodation plan for a student who is 17 or older, the Team “shall” (i.e. MUST) discuss voter registration as an appropriate goal to be included in the IEP or 504 Plan. The Team should also discuss when and how voter registration will be accomplished “if appropriate.” The phrase “if appropriate” is always a little concerning, because it can allow for a little too much wiggle room for a responsible party to avoid something it is supposed to do. The final version of this new law was passed on June 17, 2022, and becomes effective August 16, 2022. To see the final version of the Bill, click here.
SENATE BILL 381-FN-A: AN ACT establishing an office of the advocate for special education.
This one is longer and more complicated, but potentially will have a much more far-reaching impact. With or without this new law, if you are the parent or guardian of a special education student, and if you believe that an IEP is not being followed, the first thing you should do is try to get the problem straightened out directly with the Team. Prior to this new law taking effect, if you were unable to get the problem resolved directly with the Team, you had just a couple of options: You could file a complaint with the New Hampshire Department of Education (“DOE”), or you could pursue a due process hearing request, also with the DOE. Even as a special education attorney, those two options are the major arrows I have in my quiver. This is often why issues get resolved once attorneys get involved – nobody on either side wants to litigate, so if you have a good case, and both sides know that litigation is around the corner, both sides have incentive to resolve problems.
The new law gives you a third option. It creates a brand new state office called the Office of the Advocate for Special Education (not to be confused with private education advocates). This will be an independent state agency, not part of the DOE. The Bill states that the new office “shall serve as an advocate, coordinator, and point of contact for those parents, guardians, and caretakers of students with disabilities or students with disabilities when dealing with school districts and the districts’ compliance [with IEP’s and 504 Plans]…” The Governor will appoint the advocate to a 5 year term. RSA 186-C:36. It applies to all students with disabilities in public schools (including public charter schools). RSA 186-C:37.
RSA 186-C:38 lists much more detailed duties and responsibilities:
I. The office of the advocate for special education shall:
(a) Serve as a resource for disability related information and referrals to available programs and services for families of children with disabilities.
(b) Serve as a source of information and referral regarding state and federal laws and regulations governing special education.
(c) Have the discretion to ensure all IEP documents, 504 plans, related supports and services to students with disabilities are properly documented and implemented, and the goals and objectives are being met, and that appropriate related supports and services are being provided.
(d) Have authority to inquire of, investigate, and review all documents from any school, district, or special education department in this state. The advocate shall have access to all IEP documents, 504 plans, related supports and services, treatment plans, progress reports, and report cards of all students with disabilities.
(e) Have the discretion to review all documents relating to IEP documents, 504 plans, related supports and services being provided to students throughout the state, and ensure that proper documentation is being maintained by all schools and districts.
(f) Track metrics of the type of disagreements or complaints between a parent, guardian, or caretaker of the student with disabilities and the district; the types of suspect disabilities, which may uncover an unmet need in the education system; and the types of interventions and supports required by a segment of children.
(g) Ensure protections and safeguards are provided to school staff. To this end, all conversations between teachers, health professionals, and/or any school district personnel and the advocate shall be deemed confidential and not subject to disclosure absent a court order.
(h) Implement measures to track and monitor district achievement, success, and challenges in the implementation of IEPs, 504 plans, and related supports and services.
(i) Establish minimum compliance measures to ensure that copies of all relevant documents which are discussed at any family meeting involving a student receiving services pursuant to this chapter are given to the student’s family at least 5 days in advance of any scheduled meeting at which these documents are to be discussed.
(j) Investigate any retaliatory act alleged or committed by any administrator, school district, state department, or other agency with the appropriate referrals to judicial departments or agencies for action, and any and all complaints filed by a parent, guardian, or caretaker of student with disabilities.
V. All records or files of the advocate shall be readily available to any parent, guardian, or caretaker of a student with disabilities to inspect and/or copy for purposes of any agency or judicial proceeding.RSA 186-C:38
The advocate is required to prepare an annual report for the “governor, the speaker of the house of representatives, the president of the senate, the chairpersons of the house and senate education committees, and the department of education advising on the status of services being provided to students with disabilities….” And if you are tired of thinking that your complaints do not get heard by higher-ups in government, the law also requires, “The annual report shall also include a summary of the parent complaints being filed against schools by families in regard to these services. The complaints shall remain confidential and shall not be made available to the public. For purposes of this section, the complaints are as to the lack of compliance of IEP and 504 plans or the denial of eligibility and/or lack of services.” RSA 186-C:39.
The advocate will also be creating a meeting evaluation form that every school district in New Hampshire will be required to give to parents and guardians following every meeting regarding a student with a disability. The form will allow you to provide feedback regarding your “experience, understanding, and level of satisfaction with the processes involving IEPs, 504 plans, and related supports and services.” RSA 186-C:40.
If you would like to see the full text of this law, you can click here.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire. Please visit https://www.lawbaron.com for more information, or to schedule a phone or video consultation.
The Barnstable Special Education Parent Advisory Council (SEPAC) will meet on October 18, 2010 from 6:30 PM – 8:00 PM at the Barnstable High School (Room 1202), 744 West Main St., Hyannis. For more information, please contact: 774-994-0713, 508-246-0467, or BarnstableSEPAC@comcast.net.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal disputes. Please visit http://www.lawbaron.com for more information.
During my presentation on Special Education Law and Asperger’s Syndrome at yesterday’s AANE conference, a very interesting question arose. An attendee asked who can diagnosis a disability. That question seems simple enough, but the answer is not so simple.
The reason he asked the question was that his IEP Team told him that the school system is not able to diagnose a disability – they claimed that it is up to the parents to get that diagnosis privately. I see this often at Team meetings. In general, it is not true. The evaluation that the school system performs will likely include a psychological evaluation, an educational evaluation, input from parents and teachers, and possibly a medical evaluation by a physician (at school expense!).
The school system is perfectly capable of diagnosing a learning disability. On the other hand, it is in no position to diagnosis a physical ailment that only a physician can diagnose. Autism Spectrum Disorder (ASD) is in between. According to IDEA, “Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.” 34 C.F.R. 308(c)(1)(i). A developmental disability is generally defined as a mental or physical impairment identified prior to age 18. A qualified psychologist – and one would assume that a school psychologist is qualified – should be able to diagnose autism.
What’s even more interesting, and beneficial to parents when the school is refusing to diagnose autism, is 34 C.F.R. 308(c)(1)(iii): “A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied.” So, even if the child has not been formally diagnosed with autism – regardless of who should have done the diagnosis – if the child “manifests the characteristics of autism,” the Team could then identify the child as having autism, and treat him or her as such.
Please visit my web site for more information about the Law Office of James M. Baron: http://www.lawbaron.com.
I had a wonderful time today speaking at the Asperger’s Association of New England (AANE) conference in Marlboro. The subject of my presentation was Special Education Law and Asperger’s. I covered the basics of IEP’s and 504’s, and then discussed how those apply to students with Asperger’s syndrome. We also talked about the Massachusetts Curriculum Frameworks and how they can be applied to students with disabilities, particularly those with Asperger’s Syndrome and others who have Autism Spectrum Disorder (ASD), to build an argument for appropriate services from the school system. The audience was quite large, very engaging, and asked excellent questions. I will try to provide more details about the content in upcoming blogs.
Please visit my web site for more information about the Law Office of James M. Baron: http://www.lawbaron.com.
The Greater Waltham Arc will be hosting its 40th annual Harvest Breakfast on Sunday, October 24, 2010 from 8:00 AM to 12:00 noon. GWArc assists individuals with developmental disabilities in Waltham and surrounding areas. The Breakfast will be held at the Doubletree Guest Suites, 550 Winter Street in Waltham. Admission is $12.00 for children under $12.00, $17.00 for Seniors and Adults with Special Needs, and $24.00 for adults. I will be volunteering at the Breakfast from 10:00 AM to 12:00 noon, so if you do attend, please be sure to introduce yourself to me.
Tickets are available through my office. I am also happy to offer a $5 discount for any K-12 student with special needs.
Please visit my web site for more information about the Law Office of James M. Baron: http://www.lawbaron.com.
The Department of Elementary and Secondary Education (DESE) has released its annual summary of MCAS results for the exams taken last spring. The media reports that I have read all seem to have missed some of the most important, and disturbing, numbers:
1. For grade 4 English Language Arts, results remained stagnant. 54% of grade 4 students scored proficient or higher. That number is unchanged from 2009, and is still below the 56% who scored proficient or higher in 2007. Given that three years have passed, I do not view this as much progress.
2. For grade 4 Mathematics, results also remained stagnant. 48% of grade 4 students scored proficient or higher – the same number as in 2009, and 2007. We have shown no progress in grade 4 mathematics in three years.
3. For grade 5 English Language Arts, results remained stagnant at 63%. In fact, the number has been 63% in 2010, 2009, and 2007. Stagnation is not progress.
4. For grade 5 Mathematics, results rose a whopping 1% since 2009, from 54% to 55%.
5. For grade 8 English Language Arts, results remained stagnant at 78% from 2009 to 2010.
6. For grade 10 English Language Arts, the number scoring proficient or higher declined from 79% to 78% over the past year.
7. For grade 10 Mathematics, the number scoring proficient or higher remained stagnant at 75% over the past year.
8. For all racial subgroups in grades 8 and 10, the number scoring proficient or higher either remained stagnant or declined.
9. Results for students with disabilities showed regression by 4% in English Language Arts in both grades 8 and 10.
10. Results for students with disabilities showed regression by 1% in Mathematics in grade 10.
I have never been a big fan of MCAS, especially in the Commonwealth’s use of MCAS as a graduation requirement. These results do nothing to change my opinion.
This seems like such a great idea, but I have never heard of this being done before. The Timberlane Regional School District in New Hampshire has decided, effective immediately, that there will no longer be any midterm or final exams within the school district. They are doing this for the purpose of adding eight additional teaching days during the year. As long as students are still expected to learn the same material, and can prove to the teacher that they have indeed mastered the material as expected, I really like this idea of adding additional teaching time to the year, and removing high stress exams. This is particularly important for special education students, and students who may have mastered the material, but get so anxious about exams that they don’t test well.
Comparing Massachusetts to New Hampshire, lately it seems that New Hampshire is one step ahead of Massachusetts in terms of doing the right thing for the education of its students. One other important area where New Hampshire has implemented a policy that I consider to be far better than a similar policy in Massachusetts is in regard to the implementation of NCLB (No Child Left Behind). NCLB requires testing of students to ensure that the school system is providing a proper education for the students. It does not require the passing of high-stakes exams as a requirement for a high school diploma. Massachusetts, for some reason, has twisted NCLB such that the required testing has become a requirement for a high school diploma (MCAS). New Hampshire has made it very clear that it has no plans to implement such a high-stakes approach to the NCLB requirement.
So why did I bring up the issue of MCAS in Massachusetts? In Massachusetts, schools teach to the test so much, because of the high stakes aspect of MCAS, that they unfortunately don’t have enough time to teach much else. Maybe that is an oversimplification, but I hear over and over from both teachers and students how frustrating it is that so many days are dedicated to the MCAS material rather than to other useful materials that students really should learn. Given the Massachusetts approach, the opportunity to add 8 additional teaching days – perhaps unrelated to MCAS – sounds like a wonderful idea. Students in Massachusetts have enough stress as it is. As long as there is a way to ensure proper evaluation of students, I like what Timberlane is doing, and wish that Massachusetts would implement a similar policy.
The Massachusetts House has passed a bill requiring insurance companies to cover services for children with autism. These covered services would include ABA (Applied Behavioral Analysis). This is not yet law, though, because the Senate will need to pass its version of the bill, and differences between the two versions will need to be hashed out, and then the Governor would need to sign it into law, so it still has a way to go.
Insurance companies, of course, oppose this bill. They claim it will only increase the cost of insurance coverage. Using that reasoning, though, why not just eliminate all health coverage? Isn’t autism a health-related issue? If not, then what is it? I used to work for an insurance company, and I can tell you that they almost universally oppose any type of mandated coverage. Back when President Clinton was trying to get universal health coverage passed, I recall the insurance company I worked for convening meetings of all company employees (thousands), strongly requesting that all employees write to their Senators and Representatives opposing such health coverage.
Insurance companies claim the cost of covering autism will increase annual costs by somewhere between $14 and $30 per insured. Advocates of the bill claim the annual cost would only be about $10 per year. Either way, I believe that this change is a good change, properly recognizing that autism is a health issue, and that all families regardless of income should be able to treat this disorder.
The bill is far from perfect, but it is better than nothing. Some of the problematic aspects of the bill are:
1. Insurance companies will be able to drop autism coverage for three years if the company’s overall insurance costs rise by more than 1% a year. To me, that seems to give insurance companies incentive to be very liberal with their coverage during the first year, for the sole purpose of being exempted from coverage for the next three years.
2. Insurance companies will be exempt from paying for in school services. I foresee strong battles developing among insurance companies, schools, and parents. Insurance companies will be claiming that various services are appropriate only for schools to administer; schools will be claiming that those same services are not really education related, and should be covered by health insurance companies; parents will be caught in the middle fighting both schools and insurance companies.
3. Small to medium-sized companies that offer health insurance to their employees would be disproportionately affected by this new mandate, because large companies are not subject to such insurance mandates.
By the way, to see a report created by my daughter regarding autism, check out this video: http://www.lawbaron.com/michs-messages.html
Please visit my web site for more information about the Law Office of James M. Baron: http://www.lawbaron.com
Many states with high stakes exit exams, such as Massachusetts with its MCAS test, offer an alternative method of testing for certain special education students. This alternative testing usually involves schools helping students to create a portfolio to be submitted to the state education department. The portfolio method is used to help students who cannot properly show what they have learned via a traditional pencil and paper test. In theory, it sounds like a fair option. The reality may be much different, though.
According to “Disability Scoop,” Virginia has decided to eliminate its alternative portfolio testing. Why? Disability Scoop states that the alternative method was “overused and produces too many positive results… ” (Shawn Heasley, “Concerns Prompt End to ‘Alternative’ Portfolio Test, April 23, 2010, http://www.disabilityscoop.com/2010/04/23/virginia-portfolio-test/7781/).
Massachusetts has just the opposite problem. In Massachusetts, children fail what is referred to as MCAS-Alt at an alarmingly high rate. The following information combines grades 10, 11 and 12. In 2009, there were 909 English Language Arts portfolios submitted, yet only 5 (0.5%) earned Needs Improvement or higher (the minimum eligible for graduation). Similarly, out of 918 Mathematics portfolios, only 6 (0.6%) earned Needs Improvement or higher. Finally, in Science and Technology, out of 951 submissions, only 14 (1.5%) earned Needs Improvement or higher. There are no numbers to indicate how many, if any, “portfolio” students graduated. These and more statistics can be found in a publication of the Massachusetts Department of Elementary and Secondary Education called “2009 MCAS Alternate Assessment (MCAS-Alt): State Summary of Participation and Performance.” This report is available at the following URL: http://www.doe.mass.edu/mcas/alt/09statesum.pdf.
As a baseball fan, and as a lawyer representing children with disabilities, I was very interested in a recent article in the Minneapolis Star Tribune newspaper (“Target Field rates ‘A’ for accessibility,” April 19, Kevin Duchschere, http://goo.gl/YCPQ). The Minnesota Twins new ballpark, Target Field, appears to have set a very high standard for handicapped accessibility. The article brings up issues which most non-handicapped people never think about. For example, people in wheelchairs often never see home runs land, because the people in front of them usually jump up and block their views. Likewise, counters at concession stands, which are usually a good height for people who can stand, are usually too high for people in wheelchairs. And did you ever notice that the microphone and speakers in the ticket-selling booths are usually blocking the employee’s mouth, so anyone who needs to read lips cannot do so? The article points out many accessibility features designed to address these issues, such as:
“•All concession counters are 8 inches lower than usual, 34 inches high, to help customers in wheelchairs and shorter people. Many include signs in Braille or large print for sight-impaired fans.
•There are two elevators, not one, at Target Field’s rail station. That was done to make sure fans in wheelchairs coming in from the Northstar commuter line, which runs below the ballpark, won’t be stranded if a single elevator breaks down.
•Speaker boxes at ticket windows were placed below the agent’s mouth so fans who are deaf can read their lips. Ticket windows have amplification devices that agents can use to transmit to a buyer’s hearing aid.
•Fans who are hard of hearing can read the ballpark announcer’s messages on captioning boards along the foul lines overlooking left and right field. Assisted listening devices to transmit ballpark audio are available for free.
•Curb cuts that are supposed to be 3 feet wide are double that in places near the ballpark so wheelchair users don’t have to fight with pedestrians to cross the street.”
Please visit my web site for more information about the Law Office of James M. Baron: www.lawbaron.com.