The joy of a snow day… I get a chance to catch up on a blog posting that I have been meaning to write for a long time. Last June, 2017, New Hampshire implemented a significant number of changes to its regulations related to special education. The changes range from correcting minor typos and grammatical changes, to major changes. After comparing the current and prior regs, I wanted to highlight some of what I believe are the more important changes. This list is not intended to be a complete list of the changes. These changes are all specific to New Hampshire:
- Once you have been involved with the special education system for a while, you learn that the school district is supposed to evaluate a child initially as part of the special education eligibility consideration process, as well as at least every three years thereafter. However, the evaluation process was never defined. It is now. The following new reg has been added:
“Evaluation process” means the completion of initial evaluations, reevaluations and assessments, a written summary report, and a meeting of the IEP team to review the results of the evaluations and assessments. When the purpose of the meeting is to determine eligibility for special education and related services, the evaluation process also includes the determination of eligibility. Ed 1102.02(n).
- Related to the evaluation process, the length of time that the school district has to conduct the evaluation has been increased from 45 to 60 days. Ed 1107.01(c), (d). Under the old rules, the allowable time for evaluations could be extended by no more than 15 days, as long as both school district and parents agreed; the new rules now permit an extension of up to 30 days.
- The term “Health Evaluation” has been added and defined. The Health Evaluation is intended to provide the IEP Team with information on the student’s physical condition. Ed 1102.03(b).
- Related to Health Evaluations, the regs now define who is qualified to conduct such an evaluation:
“Professional licensed to provide a health evaluation” means anyone who, under their specific licensing, is qualified to provide a health evaluation. This may include, but is not limited to: a school nurse, a registered nurse, physician, psychiatrist, and naturopathic doctors. Ed 1102.04(m).
- Representatives of DCYF and appointed Guardians ad Litem (GAL) are now specifically defined as potential members of the IEP Team , under the category of “other individuals.” Ed 1103.01(c).
- Team meeting “invitations” are now referred to as “notices.” It is now defined that notices need to include “the purpose, time, location of the meeting and the identification of the participants.” Ed 1103.02(c).
- When a referral was made for special education consideration, it used to be that the Team needed to decide how to proceed regarding the referral within 15 days. That has now been changed to 15 business days. Ed 1106.01(d), (e).
- Home instruction can now be considered an “alternative placement.” Ed 1111.04(a).
- Under the previous regulations, if a school district made a proposal for something in the IEP that it believed was necessary for the child to receive his or her Free and Appropriate Public Education (FAPE), and if the parent refused to consent to that proposal, the school district was required to initiate a due process hearing. Ed 1120.05(f). The reality is that this almost never occurred. That requirement has been removed under the new regs.
- When a complaint is filed with the DOE which results in corrective action being required of the school district, the regs now allow 20 days for an appeal, versus what had been 10 days in the prior regs. The regs also clarify that during the appeal process, any changes that had been ordered as part of the initial complaint decision must be implemented pending the appeal. Ed 1121.04(a).
- Related to the complaint appeal process, the regs previously allowed the Commissioner 20 days to rule on the appeal; that has been shortened to 15 days. Ed 1121.04(b). The regs also now clarify that a further appeal may be made to the NH Supreme Court, or to a NH Superior Court. Ed 1121.04(c).
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 http://www.lawbaron.com, or call 781-209-1166 for more information.
A statute of limitations defines how long you have to bring a legal action. With special education matters, if you are going to file for a due process hearing, the general rule is that you have 2 years to file for a hearing regarding any alleged violation. 20 U.S.C. § 1415(b)(6)(B). If you make a unilateral placement (i.e. make a “unilateral” decision to enroll your child in a private school without school district approval), NH has significantly limited the time period that is allowed for filing for a hearing related to that placement. In particular, New Hampshire allows just 90 days for filing for a hearing regarding the unilateral placement. RSA 186-C:16-b. The 90 days runs from the date the unilateral placement is made. Further complicating this is that the date of the unilateral placement is not always clearcut. For example, is it:
- The date that the parents applied to the private school?
- The date that the private school accepted the student?
- The date that the parents returned the acceptance letter to the private school?
- The date that the parents sent in their first deposit to the private school?
- The date that payment was made in full?
- The date that the parents notified the public school district that they were withdrawing their child from the public school, and enrolling him or her at the private school?
Parents might have a bit of a reprieve from the 90 day burden if the school district did not provide the parents with notice of their special education rights, which they usually do at least annually. If notice was not given, then the 90 days would not start running until proper notice is given to the parents.
The exact wording of the NH law is:
186-C:16-b Due Process Hearing; Appeal. –I. Any action against a local school district seeking to enforce special education rights under state or federal law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered.
II. Notwithstanding the provisions of paragraph I, any action against a local school district to recover the costs of a unilateral special education placement shall be commenced by requesting an administrative due process hearing from the department of education within 90 days of the unilateral placement.
III. Where the parent, legal guardian or surrogate parent has not been given proper written notice of special education rights pursuant to 20 U.S.C. section 1415(d), including notice of the time limitations established in this section, such limitations shall run from the time notice of those rights is properly given. The department of education shall make available a model notice of rights which school districts may use as one means of complying with this paragraph.