New Hampshire Revised Statutes 186-C:16-b – Due Process Hearing; Appeal
Current as of: 2023 | Check for updates
|
Other versions
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. § 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.
III-a. In all hearings the school district shall have the burden of proof, including the burden of persuasion and production, of the appropriateness of the child’s program or placement, or of the program or placement proposed by the public agency. This burden shall be met by a preponderance of the evidence.
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. § 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. § 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 N.H. Rev. Stat. § 186-C:16-b, IV. All such decisions shall be sent certified mail, return receipt requested.
(a) The court may 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 and when the court determines that a school has not acted in good faith in developing or implementing a child’s individualized education program, including appropriate placement.
(b) The court may 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.
VI. Where a unilateral placement has been made, without the school district of residence being offered a reasonable opportunity to evaluate the child and to develop an individualized education program, reimbursement may not be sought for any costs incurred until the school district is given an opportunity to evaluate the child and develop an individualized education program.
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.
Terms Used In New Hampshire Revised Statutes 186-C:16-b
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- state: when applied to different parts of the United States, may extend to and include the District of Columbia and the several territories, so called; and the words "United States" shall include said district and territories. See New Hampshire Revised Statutes 21:4
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. § 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.
III-a. In all hearings the school district shall have the burden of proof, including the burden of persuasion and production, of the appropriateness of the child’s program or placement, or of the program or placement proposed by the public agency. This burden shall be met by a preponderance of the evidence.
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. § 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. § 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 N.H. Rev. Stat. § 186-C:16-b, IV. All such decisions shall be sent certified mail, return receipt requested.
(a) The court may 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 and when the court determines that a school has not acted in good faith in developing or implementing a child’s individualized education program, including appropriate placement.
(b) The court may 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.
VI. Where a unilateral placement has been made, without the school district of residence being offered a reasonable opportunity to evaluate the child and to develop an individualized education program, reimbursement may not be sought for any costs incurred until the school district is given an opportunity to evaluate the child and develop an individualized education program.