HB 677-FN – AS INTRODUCED
2007 SESSION
04/09
HOUSE BILL 677-FN
AN ACT relative to special education procedural safeguards and the dispute resolution process.
SPONSORS: Rep. Stiles, Rock 15; Rep. Claire Clarke, Merr 6; Rep. Jillette, Sull 2; Rep. Casey, Rock 11; Rep. Itse, Rock 9; Sen. Hassan, Dist 23
This bill revises portions of the dispute resolution and due process hearing process in special education cases.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
07-0182
04/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seven
AN ACT relative to special education procedural safeguards and the dispute resolution process.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Reference Change. Amend the following RSA provisions by replacing the phrases “educationally disabled child” and “educationally disabled pupil” with “child with a disability”: the RSA 186-C:2, I; RSA 186-C:7, I; and RSA 194-B:8, I.
2 Reference Change. Amend the following RSA provisions by replacing the phrase “an educationally disabled child” with “a child with a disability”: RSA 186-C:2, I; RSA 186-C:2, III-V; RSA 186-C:7, II; RSA 186-C:13, I(a)-(b);RSA 186-C:15; RSA 186-C:19; RSA 186-C:19-a; RSA 186-C:19-b, II; RSA 186-C:20, I; and RSA 193:3, III(g).
3 Reference Change. Amend the following RSA provisions by replacing the phrases “educationally disabled children,” “educationally disabled pupils,” “educationally disabled students,” and “educationally disabled individuals” with “children with disabilities”: RSA 21-N:9, II(l); RSA 35:1-b; RSA 169-B:7, III; RSA 169-C:8, III; RSA 169-D:6, III; RSA 186-C:1; RSA 186-C:2, II; RSA 186-C:5; RSA 186-C:7, III; RSA 186-C:7-a, I-II; RSA 186-C:8, I-II; RSA 186-C:10; RSA 186-C:11; RSA 186-C:12; RSA 186-C:13, I; RSA 186-C:16, III; RSA 186-C:18, III(a); the section heading of RSA 186-C:19; RSA 186-C:19, II; the section headings of RSA 186-C:19-a and RSA 186-C:19-b; RSA 186-C:19-b, III-V; RSA 186-C:21, V; RSA 186-C:22, V; RSA 193:3, I; RSA 194-B:3, II(n); the introductory paragraph of RSA 198:40-b; RSA 198:40-b, I(b); the introductory paragraph of RSA 198:40-b, II; RSA 198:40-b, II(a); and RSA 198:42, I.
4 Reference Change. Amend the following RSA provisions by replacing the phrase “individualized education plan” or “individual education plan” with “individualized education program”: RSA 193:12, VI(a); RSA 265:107-a, II; RSA 186-C:7, I-II; RSA 186-C:16-b, VI; RSA 186-C:19, III; RSA 186-C:19-a, I; RSA 186-C:21, V; and RSA 186-C:22, V.
5 Reference Change. Amend the following RSA provisions by replacing the phrase “educationally related services” with “related services”: RSA 126-A:40, I(b); RSA 169-B:40, I(b); RSA 169-C:27, I(b); RSA 169-D:29, I(b); RSA 186-C:2, I, I-a, III, and V; RSA 186-C:19, I; RSA 186-C:19-b, I(a), II, II(a)-(b), and IV; and RSA 193:29, I(a).
6 Reference Change; Delinquent Children. Amend RSA 169-B:22 to read as follows:
169-B:22 Disposition of [Educationally Disabled] a Minor with a Disability. At any point during the proceedings, the court may, either on its own motion or that of any other person, and if the court contemplates a residential placement, the court shall immediately, join the legally liable school district for the limited purposes of directing the school district to determine whether the minor [is educationally disabled] has a disability as defined in RSA 186-C or of directing the school district to review the services offered or provided under RSA 186-C, if the minor has already been determined to [be educationally disabled] have a disability. Once joined as a party, the legally liable school district shall have full access to all records maintained by the district court under this chapter and shall make a recommendation to the court as to where the child's educational needs can [best] be met in accordance with state and federal education laws. In cases where the court does not follow the school district's recommendation, the court shall issue written findings explaining why the recommendation was not followed. If the school district finds or has found that the minor [is educationally disabled] has a disability, or if it is found that the minor [is educationally disabled] has a disability on appeal from the school district's decision in accordance with the due process procedures of RSA 186-C, the school district shall offer an appropriate educational program and placement in accordance with RSA 186-C. Financial liability for such education program shall be as determined in RSA 186-C:19-b.
7 Reference Change; Disposition of Child with a Disability. Amend RSA 169-C:20 to read as follows:
169-C:20 Disposition of [Educationally Disabled] Child with a Disability. At any point during the proceedings, the court may, either on its own motion or that of any other person, and if the court contemplates a residential placement, the court shall immediately, join the legally liable school district for the limited purposes of directing the school district to determine whether the child [is educationally disabled] has a disability as defined in RSA 186-C or of directing the school district to review the services offered or provided under RSA 186-C if the child had already been determined to [be educationally disabled] have a disability. Once joined as a party, the legally liable school district shall have full access to all records maintained by the district court under this chapter and shall make a recommendation to the court as to where the child's educational needs can [best] be met in accordance with state and federal education laws. In cases where the court does not follow the school district's recommendation, the court shall issue written findings explaining why the recommendation was not followed. If the school district finds or has found that the child [is educationally disabled] has a disability, or if it is found that the child [is educationally disabled] has a disability on appeal from the school district's decision in accordance with the due process procedures of RSA 186-C, the school district shall offer an appropriate educational program and placement in accordance with RSA 186-C. Financial liability for such education program shall be as determined in RSA 186-C:19-b.
8 Reference Change; Children in Need of Services. Amend the introductory paragraph to RSA 169-D:5, VI and RSA 169-D:5, VI(a) to read as follows:
VI. When a school official is filing a petition involving a child [determined to be educationally disabled] with a disability pursuant to RSA 186-C, he or she shall include information which demonstrates that the legally liable school district:
(a) Has determined that the child [is educationally disabled] has a disability; and
9 Reference Change; Children in Need of Services. Amend RSA 169-D:18 to read as follows:
169-D:18 Disposition of [Educationally Disabled] Child with a Disability. At any point during the proceedings, the court may, either on its own motion or that of any other person, and if the court contemplates a residential placement, the court shall immediately, join the legally liable school district for the limited purposes of directing the school district to determine whether the child [is educationally disabled] has a disability as defined in RSA 186-C or of directing the school district to review the services offered or provided under RSA 186-C if the child has already been determined to [be educationally disabled] have a disability. Once joined as a party, the legally liable school district shall have full access to all records maintained by the district court under this chapter and shall make a recommendation to the court as to where the child's educational needs can [best] be met in accordance with state and federal education laws. In cases where the court does not follow the school district's recommendation, the court shall issue written findings explaining why the recommendation was not followed. If the school district finds or has found that the child [is educationally disabled] has a disability, or if it is found that the child [is educationally disabled] has a disability on appeal from the school district's decision in accordance with the due process procedures of RSA 186-C, the school district shall offer an appropriate educational program and placement in accordance with RSA 186-C. Financial liability for such educational program shall be as determined in RSA 186-C:19-b.
10 Reference Change; Special Education; Duties. Amend RSA 186-C:3-a, I, II, and II-a to read as follows:
I. The division shall help school districts meet their responsibilities under this chapter and under federal law regarding the education of [students] children with [educational] disabilities. The special education program of the department of education shall develop and analyze information on issues and problems of regional and statewide importance and on assisting school districts in dealing with these issues and problems. The department shall ensure that the regulation and monitoring of school district activities shall not exceed what is necessary for compliance with this chapter and with federal law regarding the education of [students] children with [educational] disabilities.
II. The division shall, subject to available funding, develop, implement and evaluate statewide special education policies, standards and programs. In carrying out this mission, the division shall gather and collect data and organize and analyze instruction about programs, conditions and trends in special education in the state. In addition, the division shall be responsible for monitoring and maintaining information about national and regional trends, instructions and issues affecting special education in New Hampshire. The division shall make this information available to the districts and use this information to:
(a) Assess the needs of school districts for assistance in carrying out their responsibilities for educating [students] children with [educational] disabilities;
(b) Identify cost effective alternative programs for serving [students] children with [educational] disabilities;
(c) Focus resources on students requiring extensive services; and
(d) Develop cost and service level benchmarks for special education in New Hampshire which may be used as reference points by districts to measure the effectiveness of their programs in meeting educational goals and objectives.
II-a. In addition to the requirements of paragraph II, the division shall annually submit a report to the commissioner of the department that shows the identification of children with [educational] disabilities analyzed according to the following criteria: age or grade level, number of students in each disability category, and percentage of the total number of children with [educational] disabilities in each disability category. The report shall also include expenditures for special education as reported to the department by school districts and state and federal revenues for special education received by school districts. The first report shall include data from the 2 preceding school years. These findings shall be reported for the state and for each school district. The report shall be based on existing special education disability categories, and any other related special education data already collected within the department or the division. The commissioner shall make this report available upon request to all legislators, school officials from school districts, school administrative units, cooperative schools, AREA schools, and the general public. In preparing such reports, the department of education shall not disclose personally identifiable information.
11 Reference Changes; Special Education; Duties. Amend RSA 186-C:3-a, V to read as follows:
V. The division shall monitor the operations of local school districts regarding compliance with state and federal laws regarding the education of [students] children with [educational] disabilities. The division's regulatory program shall be structured and implemented in a prudent manner and shall not place an excessive administrative burden on local districts. The division and districts shall approach monitoring and regulation in a constructive, cooperative manner with a goal of improving special education in New Hampshire.
12 Reference Change; Special Education; Education Required. Amend RSA 186-C:9 to read as follows:
186-C:9 Education Required. Each child who is determined by the local school district, or special school district established under RSA 194:60, [as being educationally disabled] to have a disability in accordance with RSA 186-C:2 and in need of special education or special education and [educationally] related services shall be entitled to attend an approved program which can implement the child's individualized education [plan] program. Such child shall be entitled to continue in an approved program until such time as the child has acquired a high school diploma or has attained the age of 21, whichever occurs first, or until the school district responsible for developing the child's individualized education [plan] program determines that the child no longer requires special education in accordance with the provisions of this chapter.
13 Reference Change; Special Education; Related Services. Amend RSA 186-C:9-a to read as follows:
186-C:9-a [Educationally] Related Services.
I. [Educationally] Related services shall be related to one or more educational objectives in the [educationally disabled] child's individualized education [plan] program.
II. Residential services shall be considered [an educationally] a related service when necessary for [an educationally disabled] a child with a disability to benefit from special education and when placement in a residential facility has been made by the legally responsible school district in order to comply with RSA 186-C:9 or 11, or when placement has been ordered by a hearings officer or by a court of competent jurisdiction on appeal, pursuant to rules adopted by the state board of education under RSA 186-C:16, IV.
14 Reference Changes; Special Education; Foster Parent. Amend the section heading of RSA 186-C:14-a to read as follows:
186-C:14-a Foster Parent Representation of Foster Children With [Educational] Disabilities.
15 Reference Change; Special Education; Alternative Dispute Resolution. Amend RSA 186-C:23-b, III(a)(1) to read as follows:
(1) The neutral who presides at a conference shall have experience with [students] children with [educational] disabilities and shall have knowledge of special education law, rules, and regulations.
16 Reference Change; Pupils; Definitions. Amend RSA 189:1-d, I to read as follows:
I. “Attendance” means full-time participation in a program of instruction under the direction of a teacher employed by the school district. [Educationally disabled] Home educated [pupils] children with disabilities educated at school district expense under the direction of a teacher employed by the school district shall be included.
17 Reference Change; State Aid for Educational Equality; Definitions. Amend RSA 198:38, VIII to read as follows:
VIII. [“‘Educationally disabled child” or “educationally disabled pupil”] “Child with a disability” or “children with disabilities” means the average daily membership in residence of [educationally disabled] children with disabilities as defined in RSA 186-C:2, I.
18 Special Education; Surrogate Parents. Amend RSA 186-C:14 to read as follows:
186-C:14 Surrogate Parents.
I. PURPOSE. The purpose of this section is to protect the educational rights of eligible, [educationally disabled] children with disabilities.
II. DEFINITIONS. The following words as used in this section shall be construed as follows:
(a) “Surrogate parent”' shall mean a person appointed to act as a child's advocate in place of the child's [birth] biological or adoptive parents or guardian in the educational decision-making process.
(b) “Educational decision-making process”' shall include identification, evaluation, and placement as well as the hearing, mediation, and appeal procedures.
(c) [Repealed.]
(d) [Repealed.]
III. DETERMINING NEED.
(a) When, [in the opinion of the commissioner of education or designee, an educationally disabled child] a child with a disability, as defined in RSA 186-C:2, needs special education and the parent or guardian of the child is unknown or after reasonable efforts cannot be located, or the child is a ward of the state, [the commissioner or designee shall] a court of competent jurisdiction may appoint a surrogate parent who shall represent the child in the educational decision-making process. If the court does not appoint a surrogate parent, the commissioner of the department of education, or designee, shall appoint the surrogate parent.
(b) In the case of a child who is an unaccompanied youth as defined in the McKinney-Vento Homeless Assistance Act, 42 U.S.C. section 11434a (6), the school district shall appoint a surrogate parent pursuant to this section.
IV. APPOINTMENT OF SURROGATE. [Once the commissioner of education or designee determines that a surrogate parent is needed, the commissioner or designee shall appoint a surrogate parent. Such] Appointment of a surrogate parent under this section shall be effective until the child reaches 18 years of age, and may be extended by order of the commissioner until the child graduates from high school or reaches 21 years of age, whichever occurs first. If the surrogate parent resigns, dies or is removed, the commissioner of the department of education or designee, or the court with jurisdiction over the child’s case, may appoint a successor surrogate parent in the same manner as provided in paragraph III.
V. RIGHT OF ACCESS. When a surrogate parent is appointed, the surrogate parent shall have the same right of access as the natural parents or guardian to all records concerning the child. These records shall include, but not be limited to, educational, medical, psychological and [welfare] health and human service records.
VI. LIMITED LIABILITY. No surrogate parent appointed pursuant to the provisions of paragraph IV shall be liable to the child entrusted to the surrogate parent or the parents or guardian of such child for any civil damages which result from acts or omissions of such surrogate parent which may arise out of ordinary negligence. This immunity shall not apply to acts or omissions constituting gross, willful, or wanton negligence.
VII. RULES. The state board of education shall adopt rules necessary for the administration of the provisions of this section.
19 Special Education; Foster Parent Representation. Amend RSA 186-C:14-a, I(b)(1) to read as follows:
(1) Is in an ongoing, long-term parental relationship with the child, as determined by the [department of health and human services] commissioner of the department of education or the child placing agency;
20 Special Education; Foster Parent Representation. Amend RSA 186-C:14-a, III to read as follows:
III. A foster parent acting as a parent shall have the same right of access as the birth parents or guardians to all records concerning the child. These records shall include, but are not limited to, educational, medical, psychological, and [welfare] health and human service records.
21 Special Education; Due Process Hearing. Amend RSA 186-C:16-b, III-V to read as follows:
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(b)] 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.
IV. An appeal from a final administrative decision in a special education due process hearing to a court of competent jurisdiction pursuant to 20 U.S.C. section [1415(e)] 1415(i)(2)(A) shall be commenced within 120 days from receipt of the final decision. All such decisions shall be sent certified mail, return receipt requested.
V. An action pursuant to 20 U.S.C. section [1415(e)] 1415(i)(3) seeking reimbursement for attorney's fees or seeking reimbursement for expert witness fees shall be commenced within 120 days from receipt of the final decision in accordance with RSA 186-C:16-b.
(a) The court shall have the authority to award reimbursement to a parent of a child with a disability for expert witness fees incurred as part of a due process complaint at which the parent was the prevailing party.
(b) The court shall have the discretion to deny or reduce reimbursement of expert witness fees if the hearing officer determines:
(1) The expert witness was not a necessary component to the parent’s complaint.
(2) The expert witness fee exceeds an amount that is reasonable, given the type and location of the service provided and the skill, reputation and experience of the expert witness.
(3) The parent, or the parent’s attorney, did not provide notice to the school district of their intent to have the expert witness participate in the due process hearing.
22 New Subparagraph; Special Education; Alternative Dispute Resolution. Amend RSA 186-C:23, I by inserting after subparagraph (b) the following new subparagraph:
(c) Facilitated individualized education program meeting.
23 Reference Change; Special Education; Alternative Dispute Resolution. Amend RSA 186-C:24, I(b) to read as follows:
(b) Either party may be accompanied and advised at mediation by individuals with special knowledge or training with respect to [educationally disabled pupil] the needs of children with disabilities. At least 5 days prior to the mediation conference, the mediator shall contact the parties to determine whether either party will be accompanied by an individual with special knowledge or training and shall notify the other party if such an individual will be in attendance.
24 Effective Date. This act shall take effect 60 days after its passage.
LBAO
07-0182
Revised 02/01/07
HB 677 FISCAL NOTE
AN ACT relative to special education procedural safeguards and the dispute resolution process.
FISCAL IMPACT:
The Judicial Branch states this bill may increase state general fund expenditures by an indeterminable in FY 2007 and each fiscal year thereafter. There will be no fiscal impact on state, county, and local revenue or county and local expenditures.
METHODOLOGY:
The Judicial Branch states this bill amends RSA 186-C:14 to allow the court to appoint a surrogate parent if a child with a disability needs special education and no parent or guardian can be located or the child is a ward of the State. Currently, the Commissioner of Education appoints surrogate parents. The Branch states the appointment of a surrogate parent is not a time-consuming process, and the fiscal impact of this change is expected to be minimal.
The Judicial Branch further states this bill gives the courts the power to award expert witness fees in addition to the already existing power to award attorney’s fees for appeals of special education due process hearings pursuant to RSA 186-C:16-b. The Branch states the proof of such fees is not a difficult matter, and the fiscal impact of this change is expected to be minimal.
The Department of Education states this bill will have no fiscal impact on the Department.