Individualized Education Plans in New Hampshire

Every child deserves the chance to learn and grow, regardless of their disabilities. Education should not just be about acquiring knowledge but should also be a way for students to foster social skills, independence, and self-confidence. For children with disabilities, their time in school provides a platform for them to develop their unique talents and abilities while also helping them thrive academically.

To create access to education for all children, the United States implemented a federal law that requires public school districts to provide students with Individualized Education Plans (IEPs) from kindergarten through twelfth grade. As this is a federal law, many states choose to expand on them. For instance, in New Hampshire, a student with a disability will not age out of their IEP until they are 22 years old.

If your child has a disability, they have a federal – and state – right to accommodations and services that will help them succeed in school. When your New Hampshire school fails to provide these accommodations, or implement other aspects of your IEP, the Lento Law Firm Education Law Team can help.

Below, we have listed the most common questions about New Hampshire IEPs, but for more information, please schedule a consultation with Lento Law Firm today or call us at 888-535-3686.

What is an IEP?

In 1975, the US government enacted the Individuals with Disabilities Act (IDEA), which ensures that students with disabilities have access to a free and appropriate public education (FAPE). Under the IDEA, all students are entitled to an evaluation to determine their eligibility for special education services, the subsequent creation of an IEP (which is a legally binding document), and accommodations and services in the least restrictive environment possible.

In addition, the IDEA also states that students with disabilities have the right to receive their education alongside non-disabled peers to the greatest extent appropriate. This is supposed to ensure that all children, regardless of their abilities, are included in regular classrooms and activities. Unfortunately, this requirement is sometimes abused by schools that refuse to provide more impactful services to children with what they deem to be mild disabilities. However, the IDEA also provides procedural safeguards for parents and guardians of students with disabilities.

Who Qualifies for an IEP?

To qualify for help under the IDEA, their disability must be listed in one, or more, of the following categories:

• Traumatic brain injury
• Health impairments
• Orthopedic limitations
• Intellectual differences
• Speech or language impairment
• Hearing impairment
• Deafness
• Autism
• Visual impairments
• Blindness
• Emotional disturbances
• Specific learning disabilities
• Multiple disabilities

The IDEA has gone on to explain that disabilities that fall under the “emotional disturbance” category are defined as:

• Being unable to learn, yet it is not caused by the student's intelligence, health, or senses.
• Being incapable of starting or growing relationships with other people.
• Having feelings or acting inappropriately during normal situations.
• Experiencing prolonged sadness or despair.
• Experiencing fear or physical symptoms because of problems or people at school.

How To Get an IEP in New Hampshire

To receive a new IEP, no matter your child's age, their teacher should reach out to you to schedule the evaluation meeting. Teachers are usually the first people to notice your child's educational needs, outside of yourself, of course, and will initiate the process for you. However, there are times when teachers will not notice that your child has a disability, and thus, it will be up to you to initiate the process.

At the IEP evaluation, you, your child, their teacher, and at least one person qualified to evaluate a child for an IEP will be present. Usually, the main evaluator is a school psychologist, but sometimes they can be third-party contractors. During the evaluation, your child's teacher and the designated evaluator will run several tests to see how your child behaves. Typically, the tests will include educational instruction as well as play sessions.

When the evaluation is completed, the teacher and evaluator will determine if your child qualifies for an IEP. If they do, they will schedule an IEP meeting with you and the members of their IEP team. This is a more formal meeting that gives you the chance to review their IEP evaluation and suggest the accommodations you believe will benefit your child. Unfortunately, though, not all school districts will take your suggestions into account when creating the IEP. So, it is important to note that you have the right to appeal their decision. It is also your right to have an education attorney present during these meetings to ensure you are aware of your rights – and that the school district is abiding by those rights.

The IEP meeting is not over until the IEP document is complete and everyone present has had a chance to sign it. The services and accommodations listed in the IEP must begin immediately. Then, once a year, the IEP will be reviewed and updated. However, if you wish to update your child's IEP more frequently, you can request IEP meetings throughout the year.

Transition Plans

As your child grows, the IEP is supposed to grow with them to ensure all of their current and future needs are being met. In New Hampshire, for instance, as the child nears high school, their IEP should start to include services and accommodations that will help them transition from high school to college, vocational programs, independent living, and employment.

Thus, it is important to begin reviewing IEP documents at least once a semester once your child is in high school. Moreover, high school students with IEPs are encouraged to attend these meetings and make recommendations for themselves.

Private School Exceptions for New Hampshire IEP Regulations

The federal laws surrounding IEPs tend to only extend to public school education. However, there are situations where a student with a disability might be eligible for private school placement and still receive the accommodations from their IEP.

Under the IDEA, public school districts – or “local education agencies” (LEAs) – are responsible for providing FAPEs in the least restrictive environment. Sometimes, after an evaluation, the LEA may determine that the least restrictive environment is actually an approved private school. New Hampshire's Department of Education has identified four situations where a student with a disability might be placed in a private school:

1. The child's IEP team made the decision to place the child in a private school. The private school, whether it is for or non-profit, nevertheless, must be approved for special education. Additionally, the IEP team can place a student in a private school in another state, but only if they can show that it is the least restrictive environment in which the student will receive a FAPE, and it has been approved for special education by that state.
2. The parent placed the child in a non-profit private school as an alternative to the public school.
3. The parent placed the child in a for-profit private school. Or,
4. The parent placed the child in a non-profit private school because the parent believes the LEA cannot give their child a FAPE.

When the parent unilaterally decides to place their child in a private school, but the child could receive a FAPE at a local public school, they forfeit their right to receive special education and/or accommodations under the IDEA while they are enrolled in the private school. That being said, if the private school receives federal funding, it must make reasonable accommodations for the child to participate in and benefit from the school's programs and activities.

Now, if the parent enrolls their child in a non-profit private school, the school district where that private school is located has the option to provide the child with special education services. But, if the parent enrolls their student in a for-profit private school, the child is not entitled to receive any special education services from the school district where the student resides or where the school is located.

However, if the parent has placed their child in a private school because they believe their local school district is not providing the child with a FAPE, the parent may be eligible for tuition reimbursement from the school district. To find out if you are eligible for reimbursement, you will have to pursue a due process hearing. Generally, though, you will be eligible if you can prove that the school district failed to provide your child with a FAPE and that the private school placement is appropriate (even if your child previously received special education or accommodations at their public school).

New Hampshire's Additional Support Services

New Hampshire offers supplementary services to children and families throughout the state, including:

• Birth to 3: Provides family-centered early supports and services (FCESS) to infants and toddlers for free.
• Early childhood transitions from FCESS to preschool special education.
• Legislation recently extended school-based supports and services to students with disabilities up to the age of 22. This initiative helps students who have yet to receive their regular high school diploma remain in school until they reach the age of 22.

Emergency Event Plans & IEPs

Under federal law, all school districts are required to create detailed procedures for emergency situations, such as fire drills, active shooter drills, and natural disaster warnings. These procedures must outline how staff and students should respond during such emergency situations.

To ensure public school districts include emergency event plans in their students' IEPs, they implemented the Guide for Developing High-Quality School Emergency Operations Plans. The purpose of including emergency planning in IEPs is to ensure the child's needs are met and that the teachers and staff know what to do for them. Some examples of accommodations for emergency situations include:

• Identifying quiet places for the child to self-regulate during or after the emergency.
• Self-calming strategies.
• More frequent emergency drills so that the child knows what to expect. This is especially beneficial if the child has a service animal (SA) to ensure the SA understands what is happening and can better help the child.
• One-on-one supervision during emergency events if necessary.
• A peer buddy system with backup buddies in case of absences.
• Access to sanitation stations or hand sanitizer.
• Access to emergency medications.
• Access to earplugs or noise-canceling headphones.
• Short-term accommodations for children with temporary abilities.

If the IEP does not include services and accommodations for emergency situations, you must notify the school immediately. As we stated before, IEP meetings can be requested throughout the year. To fix the current IEP and make sure it includes these types of services, it is important you reach out to the school immediately and ask for an IEP meeting.

School districts tend to be incredibly busy and may try to push off your IEP meeting. When this happens, it is important to not only document your attempts at scheduling a meeting but also to reach out to an attorney who will advocate for your family.

IDEA Reauthorization

Though the IDEA was initially enacted in 1975, it hasn't been reauthorized since 2004. In 2018, though, Part B of the IDEA was announced. Part B offers states additional financial assistance for students with disabilities. For a state to receive this additional financial assistance, they must submit their State Plan. This State Plan outlines exactly what the state's current policies and procedures are and how the state will use the money going forward.

Usually, the State Plan will address:

• New Hampshire's free appropriate public education policy.
• How the state addresses the needs of children under the age of five.
• Which assistive technology devices or services are being offered.
• What extended school year services they provide students.
• Other nonacademic services.
• Residential placements.
• Other program options.
• Physical education requirements for students.
• Full educational opportunity goal.
• How the state plans to find and evaluate children with disabilities.
• Individualized Education Plans and the procedures for getting, implementing, and modifying them.
• Least restrictive environment policy requirements.
• Alternative education placements.
• Due process procedures for both the state and parents.
• Procedures for routine checks on hearing aids and externally surgically implanted medical devices.

Costs and Lack of Funding

Though IEPs are meant to be free services for students with disabilities, many schools will cite inadequate funding or costs and refuse to offer appropriate accommodations. Additionally, the IDEA only requires that school districts offer students with IEPs “reasonable” accommodations. The term “reasonable” is highly subjective, and sometimes, students with clear needs have their accommodation requests rejected.

For instance, if a student is blind or has some other impairment to their vision, they would more than likely benefit from braille textbooks. But, if they are passing their classes without the books and by simply recording their lectures, the school might decide braille textbooks are unnecessary. To change their minds, you will need to show how braille textbooks would make necessary improvements to both your child's ability to learn and their class grades.

This is just another benefit to having an attorney advocate on your child's behalf. The Lento Law Firm Education Law Team will review New Hampshire's special education policies and gather evidence and witness testimony to show how the requested accommodation is necessary.

New Hampshire Department of Education Procedures

The IDEA requires that states create their own dispute resolution processes for IEP issues. In New Hampshire, the Bureau of Special Education Support (BSES) oversees the implementation of federal and state laws that ensure FAPEs for all children with disabilities in the state.

Either the school district or a parent can file a due process hearing complaint concerning a FAPE, and thus an IEP, to BSES. The complaint must allege a violation or tuition reimbursement request for unilateral placement and must be submitted to the other party and the NH Department of Education. Both parties have only 10 calendar days to respond to the complaint and try and implement alternative dispute resolutions, like mediation.

Before the due process hearing, the school district must have a resolution meeting with you and the IEP team. However, this meeting can be waived by both parties in writing. If a resolution cannot be found in another way, the NH Department of Education will schedule a pre-hearing conference and a hearing. The Hearing Officer, will conduct the pre-hearing conference to clarify the issues being addressed at the hearing.

During the hearing, both you and the other party will have a chance to present your arguments, including relevant evidence and witness testimony. You will also have a chance to respond to the other side's arguments by cross-examining their witnesses and evidence. When both parties have presented their cases fully, the Hearing Officer will make their decision. This decision can be appealed by either party within 120 days, but it must be made to the state superior court or federal court.

It is important to note that, except for the school district IEP resolution meeting, you have the right to an attorney. However, the Lento Law Firm Education Law Team will ensure that you are fully prepared for this meeting, mediation, the pre-conference hearing, and the actual hearing. By working with an attorney from the moment you notice something going on, you ensure the best possible outcome for your case. Moreover, by employing a competent and competitive attorney, you will have the time and patience to support your family through this process.

Special Considerations for Preschoolers

Federal law requires a free appropriate public education for children enrolled in kindergarten through twelfth grade, but they have not created such considerations for children with disabilities or developmental delays who have yet to enter elementary school. New Hampshire, like many states in the US, believes that children aged three to five also deserve such accommodations and has thus created their Preschool Special Education initiative.

Through this program, local school districts are required to work with families to identify children who are eligible for special education and related services before a child's third birthday. To ensure your child receives an evaluation, the New Hampshire Department of Education suggests reaching out to your local Child Find for a diagnostic screening. If they determine your child would benefit from special education accommodations, they will help place your child in the Least Restrictive Environment (LRE). Sometimes, the LRE is a classroom with non-disabled peers, and other times it is a program in a separate special education school.

Before the child enters kindergarten, the state is supposed to set up a transition meeting with the parents to create a comprehensive IEP. If the state fails to do this, whether because of a lack of planning or because they believe your preschooler no longer requires accommodations, an attorney can help you ensure they comply with state law.

Protect Your Student's Rights

Every child has the right to excel in their academic and personal lives, especially children with disabilities. Unfortunately, though, many schools lack the ability to offer the accommodations these children need. As such, the US government has executed the Individualized Education Plan. An IEP forces school districts to apportion certain funds to give reasonable accommodations to students with disabilities.

If a school fails to follow an IEP, it can be penalized by the state of New Hampshire. It does not matter if you have already started the IEP process, are fighting for an initial IEP meeting, or are trying to work with the school district on a transition plan for your child's IEP; if you feel that the school district is not listening or failing to follow the IEP in some other way, Lento Law Firm can help.

The Lento Law Firm Education Law Team has years of experience helping students with disabilities and their families get through to the school district. They will not only negotiate with the school district on your behalf, but they will ensure you and your child are fully prepared to defend their right to a cognizant and fully executed IEP. Do not try to handle these cases alone. Call 888-535-3686 today or schedule a consultation online.