All students with emotional, physical, or intellectual disabilities in the United States are protected under federal laws that guarantee their right to receive a free and appropriate public education that allows them to make meaningful progress in their academics. The most recent data from 2022 by the New Hampshire Department of Education noted that over 30,000 students in New Hampshire received special education services. Although federal law mandates special education programs, these programs are implemented top-down following New Hampshire state laws and local school district policies.
Although all school districts in New Hampshire are required to provide special needs students with proper services, they can fall far below this requirement. Poorly trained staff, budget cuts, staffing shortages, failed policies, and even discriminatory conduct can all affect a special needs student's success. If you need help standing up to your school district's bureaucracy, contact the Lento Law Firm's Education Law Team online or at (888) 535-3686.
The Individuals With Disabilities Education Act
Whether your K-12 student already receives special education services or you are new to learning about special education terminology, you have likely quickly realized that the IDEA is the most significant federal legislation that protects special education students. The Individuals with Disabilities Education Act (IDEA) is a federal statute designed to safeguard the educational rights of students with disabilities. The law requires school districts to provide appropriate modifications, support, and services specifically tailored to meet the distinct educational requirements of each special needs student. The following section elaborates on several critical aspects of the IDEA.
Child Find
Under §300.11 of the IDEA, school districts must comply with the "Child Find" mandate. This directive obliges school districts to actively locate, identify, and evaluate any students within their jurisdiction who might require special education services. The IDEA places this responsibility on educators rather than parents because educators are trained to identify symptoms of learning disabilities that parents or other family members may overlook. If a school district fails to identify and assess a student who later qualifies for special education because their parents or educational rights holder requested an assessment, parents may be able to file a complaint against the school district for violations under the IDEA.
The threshold for Child Find is remarkably low; a district must assess students who show the slightest signs that some form of physical, intellectual, or emotional disability is impacting their ability to access their education. This low threshold prevents families from districts that may later make excuses for failing to identify and assess a student who may need special education services.
Some hallmark signs of disabilities in students that educators should be on the lookout for include:
- Problems with reading, writing, or math
- Problems with executive functioning skills such as organization, memory, tracking time, staying focused, impulse control, tackling or prioritizing difficult tasks, and multitasking.
- Physical abnormalities, including clumsiness and failure to achieve age-appropriate milestones such as talking, walking, crawling, catching, throwing, running, etc.
- Speech abnormalities include lisps, speaking in small sentences, tension when trying to get out words or sounds, difficulty understanding or expressing a point of view, and articulation issues.
- Social abnormalities such as failure to make eye contact, display appropriate emotional responses (smiling when happy, crying when sad, etc.), resistance to certain scents or sounds, difficulty making and keeping friends, failure to understand personal space, difficulty empathizing with others, extreme frustration when schedules or routines are disrupted.
IDEA Assessments
After a school district identifies a student as potentially needing special education services, they must conduct assessments to determine whether the student has an emotional, physical, or intellectual disability that affects their ability to access their education. It's important to note that these assessments do not result in a formal medical diagnosis, so parents who suspect their child may need additional medical testing are responsible for arranging medical evaluations.
Section 300.304 of the IDEA addresses the policies and procedures school districts must adhere to when evaluating students for special education services These statutes require school districts to act promptly while conducting assessments, ensure that thorough assessments are conducted by qualified individuals, and meet within a specified timeframe to review the assessment results with the students' parents and additional educators.
Some examples of commonly performed assessments for K-12 students include:
- Occupational therapy assessments
- Speech and language assessments
- Autism Spectrum Disorder assessments
- Adaptive physical education assessments
- Academic achievement testing
- Vision and hearing assessments
- Social and emotional assessments
- Cognitive ability assessments
IDEA Eligibility
After conducting IDEA assessments, a school district must meet to conduct an IEP eligibility meeting. At this meeting, the district will review the assessment results and inform parents whether they agree to offer a child special education services. To qualify for eligibility under the IDEA, the school district must determine that the child qualifies for services due to a disability in at least one of the following eligibility categories under the IDEA:
- Autism
- Deaf blindness
- Deafness
- Emotional disturbance
- Hard of hearing
- Intellectual disabilities
- Multiple disabilities
- Orthopedic impairment
- Other health impairment
- Specific learning disability
- Speech or language impairment
- Traumatic brain injury
- Visual impairment
Eligibility Litigation
While hypothetically speaking, all school districts should offer student services if a disability affects their ability to access their education, this is not always the case. School districts may fail to offer services for various reasons, including poorly trained staff, staffing shortages, funding issues, lack of available student placements, etc. Of course, districts will never admit that these underlying reasons can motivate them to deny eligibility, but unfortunately, it does happen for many K-12 students. In these instances, parents may give up and accept a district's denial as legitimate when in fact, their child should have qualified for services. With the help of our articulate and dedicated Education Law Team, parents can come equipped with the knowledge and support needed to challenge a school district's special education denial.
Individualized Education Plans
Students who qualify for services under the IDEA receive an Individualized Education Program (IEP). An IEP is a legally enforceable document requiring a school district to offer supportive services that meet the student's needs. The laws and regulations governing IEPs for K-12 students are contained in §300.320 of the IDEA and the New Hampshire special education statutes.
Creating an IEP involves collaborative input from an assembled team, including the student's teachers, counselors, service providers, and parents, among others. Under IDEA, it is imperative that this team convenes at least once every year to formulate and agree upon an IEP that will be effectively implemented for the forthcoming academic year. Some components of an IEP may include:
- A description of the student's present academic and functional performance levels.
- Measurable and ambitious annual goals uniquely tailored to a student's needs.
- Descriptions of services, modifications, or accommodations for students to help them access their education on campus.
- A description of the student's academic placement with specific attention to how much time a student will spend in a general education versus a special education setting.
The Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) is a federal law that protects special needs students across all educational levels, from preschool to post-secondary education. The ADA is unique from the IDEA because it aims to guarantee that these students are afforded educational opportunities on par with their non-disabled peers. The ADA also applies to all public and private schools, regardless of whether the private school receives funding or not. The law recognizes that without these opportunities, special needs students would fail to integrate into campus life, resulting in discriminatory treatment. Some examples of ADA protections may include classrooms that are wheelchair accessible, supportive aids to help students participate in sports, clubs, or music, etc. If a school district fails to help K-12 students integrate into campus life, parents can bring a civil rights action against the district for infringing upon their student's civil rights.
Section 504 of the Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act of 1973, commonly called "Section 504," requires schools to modify their policies and practices to ensure that disabled students can participate in school programs and activities alongside their non-disabled peers. Section 504 is unique because, unlike the ADA, the law exclusively applies to K-12 students at public and private schools that receive federal funding. Students who don't qualify for an IEP may nevertheless qualify for a Section 504 plan if an accommodation or modification is necessary to help them access their education. To qualify for a 504 plan, a school district will consider:
- Whether the student has a physical or mental impairment that substantially limits one or more of the student's major life activities;
- Whether the student can demonstrate a record of this impairment; and
- Whether the student is regarded as having this impairment.
Standards of 504 plans formed by multidisciplinary teams can be accessed via the New Hampshire Department of Education's website.
Special Education in New Hampshire
New Hampshire Special Education Laws
As required under federal law, New Hampshire's special education laws and regulations adopt the IDEA, Section 504, and components of the ADA. New Hampshire's special education laws are contained in Chapter Ed. §1100, entitled Standards for the Education of Children With Disabilities. These statutes are also thoroughly explained in the state's “Guide to the New Hampshire Standards For the Education of Children with Disabilities.”
Nonpublic Schools in New Hampshire
You may have heard districts or other parents discuss whether placement in an “NPS” would be appropriate for special education students. Within the context of special education law, a Non-Public School, or NPS, is a school. These schools provide specialized programs that may not be available in a student's school district. These schools are often licensed by the state. The laws and regulations required for NPS licensure in New Hampshire are contained within Chapter Ed. §400 of the state's educational statutes.
When a district has failed to offer a student an appropriate placement or IEP services, they may offer or be required to provide payment for Nonpublic school placement. In other instances, parents may choose to enroll their students in these schools at their own expense. Some examples of Non Public Schools in New Hampshire include:
- Ashuelot Valley Academy
- Cedarcrest School
- Clearway High School
- Enriched Learning Center
- Gammon Academy at Lancaster
- Learning Skills Academy
- Mount Prospect Academy
- Nashua Children's Home
- Pine Haven Boys Center
- Seacoast Learning Collaborative
What is Due Process?
If a school district or parent feels the other has failed to address the need for or management of a student's special education plan and services, they may file a formal complaint for correction or compensatory services known as a Due Process Complaint with the New Hampshire Department of Education. The state's guidelines and procedures for special education Due Process complaints are summarized in the Department of Education's Procedures Manual. If a parent succeeds in their claim against a school district, the district may be forced to provide compensatory education services or funds to a student. These funds or services are designed to provide extra support for a student who has likely fallen behind academically due to failure to access their education. Some examples of compensatory services may include:
- 1:1 tutoring
- A 1:1 or paraprofessional aide
- Speech and language services
- Counseling
- Executive functioning coaching.
- Occupational therapy
Resolving Due Process Complaints
K-12 Due Process complaints can be resolved through informal resolution with a school district, formal resolution with a school district resulting from mediation, decisions issued by the Department of Education, or an administrative review hearing akin to a small trial.
If you are considering filing a due process complaint against your child's school, our Education Law Team can help. We have experience navigating resolutions with school districts that parents often cannot receive. We can also help facilitate settlement agreements that ensure your student is not exploited. Finally, if your case proceeds to an administrative hearing, we can gather evidence, draft briefs, communicate with the district counsel, craft arguments, submit evidence, and cross-examine witnesses, including district staff.
When Should I Consider Filing a Due Process Complaint?
Often, parents cannot put their finger on what is holding their student back, but they have a gut feeling that their child is not receiving the services they need to succeed at school. Parents who have tried to communicate with their school district about this may have been blown off and have a hunch that their rights are being violated as well. Some questions to help you determine if a due process complaint is warranted in your situation are provided below.
- Has the district failed to assess my student for special education services despite them showing hallmark signs of a learning disability?
- Has the district denied my requests for special education assessments or failed to help me place my request for assessments in writing?
- Has the district taken longer than 15 days to draft an assessment plan or longer than 60 days to conduct these assessments? (note: these timelines can vary in some instances).
- Has the district denied my student for special education eligibility even though they cannot access their services?
- Has the district failed to make me a meaningful participant in my child's IEP team meetings?
- Has the district refused to provide services, accommodations, or modifications to my student needs?
- Has the district allowed my child to be educated alongside their non-disabled peers to the maximum extent possible?
- Has the district placed my child in a more restrictive program than necessary? ( severe, moderate, or mild special day class placements)
- Has the district failed to offer or refused to pay for an NPS despite being unable to provide my child with a proper placement or services?
- Has the district provided my child with ambitious IEP goals designed to help them access grade-level content?
- Has my student received disciplinary remarks or suspensions for behavioral issues that stem from their disability? (ADHD, emotional regulation, ASD, etc.)
- Has the district failed to implement the services on my child's IEP?
- Has the district failed to implement 504 plan services that help my disabled student participate in school activities?
- Has my child been discriminated against at school due to their disability?
- Does my child spend an excessively long-time completing homework each evening?
New Hampshire Special Education Attorney
The Lento Law Firm works with families across New Hampshire to advocate for their children and to ensure their students receive the opportunities and accommodations they are entitled to under the law. Whether you are in Manchester, Bedford, Rochester, or Derry School District, we provide support within every New Hampshire state school district. Contact us online or at (888) 535-3686.
