New Legislation Helps Parents in Special Education Disputes

In July, Governor Chris Sununu signed House Bill 581, which shifts the burden of proof to school districts in due process hearings over special education disputes. Previously, it was incumbent on the initiating party, which oftentimes is parents, to prove that the services and/or placements that districts were providing or proposing were not adequate or appropriate. This put parents at a bit of a disadvantage as they would have to obtain independent evaluations (frequently paying privately for) and hire experts to help prove their case. New Hampshire joins Connecticut and New Jersey as other states who have placed the burden on school districts.

Now, however, with districts bearing the burden to show that they have delivered appropriate programming to students that allows them to make progress commensurate with their cognitive ability, it levels the playing field a bit and affords parents a better chance of prevailing without having to hire an attorney. The standard of proof is preponderance of the evidence.

Each year, there are approximately 35 to 40 requests filed for special education due process hearings in New Hampshire. Of those, only three to five actually proceed to hearing. Most are resolved prior to a hearing either through mediation or settlement. So while the bill may affect only a handful of matters, it can influence how many parents now decide to file and strategic decisions with negotiations after filing.

Special education disputes arise when there is disagreement between what the parents believe the child needs and what the school believes or offers. If the matter cannot be resolved through team meetings or mediation, either party may file a due process hearing request. While parents are not required to hire an attorney, before the enactment of HB 581, it was more difficult to prevail without one. In the five hearings held thus far in 2021 (all before HB 581), for example, school districts have prevailed in all of them, and parents were not represented by counsel in four of them. Now, however, pro se parents should have a greater chance either at hearing or in settlement negotiations after filing depending on the strength of their case.

Special education laws, including dispute resolution, are found in the federal Individual with Disabilities Education Act (IDEA) and state regulations. School districts are required to provide each child with a disability a free appropriate public education (FAPE). This education is measured by the student’s progress in light of his or her ability. A student’s individual education program (IEP) must be calculated to enable that student to make meaningful and reasonable progress. Disputes can arise for many reasons: issues with any aspect of the IEP, failure or refusal to evaluate, refusal to grant a request for an independent evaluation, disagreement with a school evaluation or proposed placement, or failure to provide services, among others. For example, suppose student in 8th grade has dyslexia but is reading at 4th grade level, according to school evaluations and progress reports. Parents ask district to place student in a private school that specializes in language-based instruction across the curriculum. District believes its own programs and specialized reading instruction are sufficient and increases the amount of minutes per week that student receives with reading support in the IEP. Parents reject the IEP and file a request for a due process hearing seeking out-of-district placement. Prior to the legislation, parents would have to prove that the district’s proposed IEP was inappropriate. Now, however, the district has to prove that the IEP and its programs will allow the student to make progress and that the reason the student is reading four years below grade level is not a result of previous IEPs or district programming–which on its face is a high hurdle.

Or suppose during the school closures for COVID, a student was not logging on to the online classes, not submitting assignments, or otherwise not accessing the curriculum. When school resumed in a hybrid model last fall, the student could engage in the classroom (in person), but on the remote days, she was unable to engage. She received her special education services largely remotely, but she would log in sporadically. Missed sessions were not made up from 2020. As a result, last spring, during her IEP meeting, parents asked for extra tutoring. The district refused, claiming that it does not have the staff to deliver “extra†support. Parents file a request for hearing, asking for what is known as “compensatory†services, which can be awarded when a student does not receive all the special education services listed on the IEP. The district would have to prove that it did deliver the services or that parents prevented it from doing so.

Going to a due process can be expensive, time consuming, stressful, and even a little scary for parents. This bill makes it a little easier for parents to fight for what they believe their child needs.