Originally prepared for a seminar on the subject given to the Nashua School District April 4, 2001.

A WORD OF CAUTION: No two cases are exactly alike. This material is designed to provide educators with a broad understanding of the law pertaining to certain aspects of the IDEA. This material does not include every aspect of the law. You are strongly encouraged to seek a legal opinion from your school district's legal counsel regarding any specific case.

I - PROCEDURAL SAFEGUARDS AND SUBSTANTIVE COMPLIANCE

I. Identifying Children with Disabilities

A. Child Find

In order to reach the stage of evaluation, a district ⁽¹⁾ must first locate and identify children who may be disabled. Each district is required to find and evaluate suspected educationally disabled children within their district, between the ages of 0 and 21 years, although the obligation to provide a program does not commence until the age of 3. The "child find" obligations apply to children attending both public and private schools. Districts must comply with the child find procedures set forth in both the Federal Regulations (Sec. 300.125) ⁽²⁾ and the State Regulations (Ed 1103.01 - 1105). ⁽³⁾ A proposed amendment to the State Regulations would also require districts to comply with "any applicable rules of the State Department of Health and Human Services relative to child find procedures." Proposed Ed 1103.01(a).

B. "Child with a Disability" Defined

The Federal Regulations enacted to implement the IDEA define "child with a disability" to mean a child, in accordance with the procedures set forth in the Regulations, as having: "mental retardation; a hearing impairment, including deafness; a speech or language impairment; a visual impairment, including blindness; serious emotional disturbance (referred to as emotional disturbance); an orthopedic impairment; autism; traumatic brain injury; or other health impairment; a specific learning disability; deaf-blindness; or multiple disabilities, and who, by reason thereof, needs special education and related services." Section 300.7 (a). If a child with a disability needs only a related service, and not special education, the child does not qualify as a "child with a disability" under the eligibility section of the Regulations. However, if the related service required by the child is considered "special education," ⁽⁴⁾ as defined by Section 300.26 of the Regulations, the child is a "child with disability" under the regulations. See Section 300.7.

Practice Pointers:

The determination that a student needs only a "related service," and not special education should NOT be the end of the inquiry. A student who requires a "related service" may very well be entitled to a Section 504 Plan and related accommodations. The Office for Civil Rights maintains that all students determined not to qualify as a "child with a disability" should still be considered for Section 504 eligibility. A district should maintain a database that shows the number of students that have been considered for Section 504 eligibility. This data will be critical in the event of a systemic investigation by the Office for Civil Rights.

A recent amendment to this section codifies an educational philosophy favoring the inclusionary model. One area in which some schools are not meeting this mandate is in developing "multi-sensory, language-based programs," because such programs are personnel-intensive and a district is often unable to meet the staffing requirements of such a program. Many of the out-of-district placements today are the direct and proximate result of a district's inability to make this type of curriculum modification.

In sum, there are three criteria for identification of the disabled under the IDEA:

It is important to note that the definitions utilized in the Diagnostic and Statistical Manual (DSM) by psychologists are not synonymous with the IDEA's regulatory definition of disability.

1. Emotional Disturbance

One of the more difficult conditions to define as that of emotional disturbance. 34 C.F.R. § 300.7(c)(4) defines emotional disturbance as follows: (i) the terms means a condition exhibiting one or more of the following characteristics over a long period of time into a marked degree that adversely affects a child's educational performance: (a) an inability to learn that cannot be explained by intellectual, sensory or health factors; (b) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (c) inappropriate types of behavior or feelings under normal circumstances; (d) a general pervasive mood of unhappiness or depression; (e) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. However, the term does not apply to children who are socially maladjusted unless it is determined that they have an emotional disturbance.

(a) A Textbook Example of ED.

In the case of Babb v. Knox County School System, 965 F.2d 104, 18 IDELR 1030 (6th Cir. 1992) is a textbook example of a case of emotional disturbance. Young Jason began having difficulties at age 4 when he was expelled from school for breaking a gerbil's leg and urinating on other children. At the tender age of 5 he attempted to strangle another student and to set a Christmas tree on fire. The 6th Circuit ruled that Jason was ED because "testimony in the record indicates that Jason had difficulty making and maintaining friendships. This inability to create normal social bonds no doubt stems, in part, from tendencies that have resulted in physical abuse of siblings and class mates, torture of animals, and property theft and destruction." The court also ruled that a school district should not have limited its review to a three-month history of Jason's educational performance.

(b) The Need for Knowledge.

On the other hand, districts are not required to be omniscient. For example, in Hoffman v. East Roy Community School District, 38 F.2d 750 (29 IDELR 1074) (Ed. Wi. 1999) the court ruled that a school district had no reason to evaluate a student when it had not been made aware of out of school difficulties nor been provided with information about the student's private therapy. The court specifically noted that the ED criteria are "more subjective and less quantitative than the criteria for the other disabling conditions . . . ."

(c) Pervasive Moods of Unhappiness.

In Muller v. Committee on Special Education of the East Islip Union Free School District, 145 F.3d 95, 28 IDELR 188 (2nd Cir. 1998) the 2nd Circuit held that Treena qualified as ED because she had a pervasive mood of unhappiness which had been exhibited over a long period of time into a marked degree. The court specifically noted that it was unnecessary for her to have been diagnosed with clinical depression because in the court's opinion the IDEA definition of ED did not require a child to be clinically or medically depressed and she had exhibited symptoms of depression. On the strength of that evidence the court ordered tuition reimbursement for a private placement.

(d) Social Maladjustment.

The courts are willing to acknowledge the difference between social maladjustment and emotional disturbance. For example, in Springer v. The Fairfax County School Board, 134 F.3d 659, 27 IDELR 367 (4th Cir. 1998) the 4th Circuit held that "[t]eenagers, for instance, can be a wild and unruly bunch. Adolescence is, almost by definition, a time of social maladjustment for many people. Thus a 'bad conduct' and definition of serious emotional disturbance' might include almost as many people in special education as it excluded. On that basis, the 4th Circuit ruled that conduct such as declining grades, possession of burglary tools, tampering with an automobile, running away from home and staying out all night, steeling for parents and others, use of alcohol and marijuana, high absenteeism, reckless driving, and leaving school without permission and fighting were not necessarily examples of emotional disturbance.

(e) The Need for an Affect on Educational Performance.

Similarly, emotional problems that do not affect educational performance will not be typified as an emotional disturbance. For example, in J.D. v. Pawlet School District, 224 F.3d (2nd Cir. 2000) J.D.'s educational performance was at or above the norm for his age group. The court held that he was not ED because there was no educational affect as a result of a disability despite evidence of behavior and emotional problems.

(f) Defining "Inappropriate Behavior."

Taking drugs or alcohol was not included with the definition of "inappropriate behaviors under normal circumstances." See letter to Anonymous, EHLR 213: 247 (OSEP August 11, 1989).

2. Other Health Impairment

Another area that frequently challenges special educators is the definition of "other health impairment." Regulations define other health impairment as "other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that - (i) is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and (ii) adversely affects a child's educational performance. In those circumstances where an IEP team includes that a child's disability does not mandate a need for special education services, they should still consider whether or not the student may qualify as OHI under Section 504 of the Rehabilitation Act.

(a) ADD/ADHD.

ADD/ADHD is one of the most frequent conditions identified as another health impairment. In a joint policy memorandum, the Office for Special Education Programming observed that about 3% to 5% of students may have significant educational problems due to ADD or ADHD. According to OSEP these students may qualify according to OSEP these students may qualify as disabled under the categories of OHI, LD or ED. OSEP has observed that OHI is a possible identifying definition because ADD may result in a chronic or acute health problem which causes limited alertness. In those cases where special education services are not required the ADD child may still qualify under Section 504. OSEP has also taken the position that a medical diagnosis is not required for a school district to identify students as ADD/ADHD. However, our State Regulations clearly indicate that a medical diagnosis is required for identification under OHI. Usually the parents have received that opinion through their family physician. OEP takes the position that if there is a request, the medical opinion must be furnished at no expense to the parents. See Letter to Gallagher, 24 IDELR 177 (OSEP January 23, 1996).

3. Special Learning Disability

Specific learning disability is another major disabling condition which presents a definitional challenge to educators.

The Regulations define a specific learning disability as follows:

We know from the case of Manchester School District v. Charles M.F., 21 IDELR 732 (D.N.H. 1994) that a student may not be excluded from identification as learning disabled solely because the student has an emotional disturbance. It is the role of the evaluation team to determine whether a student's educational problems are due to environmental, cultural or economic disadvantage. See Letter to Copenhaver, 25 IDELR 640 (OSEP November 4, 1996). The mere fact that a child has a high IQ does not preclude them from identification as suffering from a specific learning disability. See e.g. Letter to Lillie, 23 IDELR 714 (OSEP April 5, 1995). A speech and language impairment can also give rise to identification under the IDEA. 34 C.F.R. § 300.7(c)(11) defines a speech or language impairment as a "communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance." In Mary P. v. Illinois State Board of Education, 23 IDELR 1064 (N.D. Ill. 1996) the hearing officer ruled that a student with speech problems has an educational impairment if the student is inhibited in his ability to communicate with his peers or teachers.

C. The "Developmental Delay" Designation

The Federal Regulations provide that States and districts have the discretion to include children with "developmental delays" in the definition of "child with a disability," if the child's delays have been measured by appropriate diagnostic tests and procedures which establish that, by reason thereof, the child needs special education and related services. Section 300.7 (b). New Hampshire has enacted this Regulation, in Ed 1102.07 (definition of "child with a disability" includes a child with a developmental delay). New Hampshire defines a "developmentally delayed child" as: "a preschool child between 3 and 9 years of age, who, because of impairments in development, needs special education or special education and educationally related services, provided that such child has been determined to have one of the other educationally disabling conditions defined in the Regulations". NH RSA 186-C:2, I. Note that until the Legislature passed a new law, effective in 1999, the "developmentally delayed" designation applied only to children aged 3 - 5. See NH RSA 186-C:2 (1999 supp.).

D. Transient Children

The Regulations with regard to "child-find" specifically include a duty to "find" children who are "highly mobile children with disabilities." This includes migrant and "homeless" children. See also NH RSA 193:12, IV, regarding the right of "homeless" children to attend local schools.

II. School District Responsibilities for Evaluations and Re-evaluations

The term "evaluation" has been defined in the Federal Regulations at Section 300.500 (b)(2)⁽⁵⁾. "Evaluation" means procedures in accordance with Sections 300.530 -300.536 to determine whether a child has a disability, and, if so, the nature and extent of the special education and related services that the child needs.

A. The Scope of an "Evaluation"

The definition of "evaluation" provides that evaluations may include a review of a child's performance on a test or procedures used for all children in a school, grade or class. However, the corresponding State Regulation still excludes performance on tests and procedures used for all children in the regular program. Ed. 1102.12. A proposed amendment to the State Regulations would change this section to mirror the Federal Regulation and permit use of tests or procedures used on all students. However, the current discrepancy is academic, because the Federal Regulation would govern over the State Regulation.

B. Evaluation as Prerequisite to Special Education

The State is responsible for ensuring that each school district establishes and implements procedures that meet the requirements of the Federal Regulations for conducting evaluations. Section 300.530. Each district must conduct a full and individual initial evaluation, in accordance with the procedures set forth in the Regulations, before beginning to provide special education and related services to a child with disability. Section 300.531. Thus, each district must ensure that a full individual evaluation is conducted for each child being considered for special education and related services under the IDEA. The purpose of the evaluation is to determine if the child is a "child with a disability," as defined by the Regulations, and to determine the educational needs of the child. In conducting this evaluation, a district is to follow the procedures described in the Regulations, and must ensure that the results of the evaluation are used by the child's IEP team in meeting the requirements of the Regulations pertaining to IEPs. Section 300.320.

Each district is also responsible for ensuring that a re-evaluation of each child with a disability is conducted, in accordance with the Regulations, and that the results of any re-evaluations are addressed by the child's IEP team when reviewing and/or revising the child's IEP. Section 300.321. A re-evaluation must be conducted at least once every three years. Section 300.536.

C. The Evaluation Team

The State Regulations require that, upon receipt of a referral from any source, and prior to evaluation of a child suspected of having a disability, a district must compose an IEP team which shall immediately notify the parent, in writing, of the referral. Ed. 1107.02(b). Within fifteen (15) days of the referral, the IEP team is to determine whether the concerns raised by the referral can be addressed utilizing existing student support services available to all children, whether additional information must be gathered, and, what testing, if any, is needed to address any unresolved concerns. Ed. 1107.02(b).

D. Evaluation Team Notice

Within fifteen (15) days of the referral, the IEP team is to give the parent written notice of the disposition of the referral, in a form clearly understandable to parents, which complies with the requirements of Ed. 1125.03(b)-(d), (written prior notice), and includes a description of the district's special education procedures. Ed. 1107.02 (c). If additional testing has been determined to be necessary, the notice must also include a request for written consent to any individual evaluations needed. Id. If the parents and district disagree about the IEP team's disposition of the referral or the district's request for consent to evaluation, either party may commence due process procedures. Ed. 1107.02(e)-(f). Written parental consent is also required prior to conducting an individual evaluation to further diagnose the needs of a child who has already been determined to have a disability. Ed. 1107.02(g).

E. Evaluation Team Report

The IEP team determining a child's disabilities must develop a written summary containing the results of the diagnostic findings and forward a copy of the report to the parent. The report shall be written after the initial evaluation and at least every three (3) years thereafter. Ed. 1107.06(a). The report must include, but is not limited to: (i) the results of each evaluation procedure, test, record or report; (ii) a written summary of the findings of each procedure, test, record or report; and (iii) information regarding the parent's appeal rights and right to an independent educational evaluation. Ed. 1107.06(b).

F. Evaluation Procedures

1. General Procedures

Section 300.532 of the Federal Regulations and Section 1107 of the State Regulations set forth the minimum requirements for evaluation procedures. The State Regulations on evaluation procedures are similar to the Federal Regulations, but are more specific and detailed. The proposed amendments to the State Regulations would delete almost all of the specific requirements for conducting evaluations, and simply state that districts must comply with Sections 300.320, 300.531-536, and 300.540-543 of the Federal Regulations, which pertain to evaluations. The Federal Regulations require that the tests and other evaluation materials used to assess a child be selected and administered so as not to be discriminatory on a racial or cultural basis. Section 300.532(a)(1). Tests and procedures must be provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so. Id. In this regard, "not feasible" does not mean cost prohibitive, but rather, that there is simply no way of administering a test in a child's native language or mode of communication. Thus, in the event a district finds it is not possible to administer a test due to a child's language, the district should consider whether an alternative test administered in the child's native language or mode of communication can be used in place of the test which is not feasible.

The requirements for conducting evaluations provide that a district must ensure that the materials and procedures "used to assess a child with limited English proficiency are selected and administered so that they measure the extent to which the child has a disability and needs special education, rather than measuring the child's English language skills." Section 300.532(a)(2).

Practice Pointer:

Schools are encountering new demands on their resources due to the influx of students with limited English proficiency. This regulation is an offshoot of the "cultural factors" language which historically had been used to rule out an educational disability. The Office for Civil Rights has taken an aggressive posture with regard to the obligation of schools to teach English as a second language.

Districts are required to use a variety of assessment tools and strategies to gather relevant functional and developmental information about the child. Section 300.532(b). This Regulation provides that, in addition to including information provided by the parent, a district should gather information related to "enabling the child to be involved in and progress in the general curriculum" that may assist in determining whether the child has a disability and the appropriate content of the child's IEP. Id. A district must also ensure that any standardized tests given to a child have been validated, and are administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the test. Section 300.532(c).

Practice Pointer:

The New Hampshire State Regulations are more specific with respect to who may administer certain tests, requiring state certified or licensed examiners in the specific area of disability being tested. See e.g. Ed. 1107.03 (e). The State Regulations also include several other specific requirements which a district must follow with respect to the administration of tests to be used as part of an evaluation. For example, the State requires that the school consider a vocational evaluator to assess secondary students with educational disabilities. Ed. 1107.03 (g). Another more specific State Regulation requires that any data relied upon by the school in the evaluation process be no more than 3 years old. Ed.1107.03 (I). However, educators should note that the proposed amendments to the State Regulations would delete the requirement for examiners to be certified or licensed by the State, while maintaining the list of the type of examiner who will be deemed qualified to administer formal diagnostic assessments. See Proposed Ed. 1107.03, 1107.05.

2. Nonstandard Conditions

The Federal Regulations state that if an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions must be included in a district's evaluation report. Section 300.532 (c)(2). This section also requires that a district ensure that the evaluation is sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. Section 300.532 (h). This provision, which was an amendment, more than likely arose from the Department of Education's desire to avoid a perceived tendency for evaluation teams to focus too narrowly on a specific suspected disability category, and to encourage a wide-reaching, comprehensive evaluation.

3. Review of Existing Evaluation Data

The Federal Regulations require that the evaluation team review existing evaluation data on the child to determine whether the child has a particular category of disability, or, in the case of a re-evaluation, whether the child continues to have such a disability, so as to decide whether the child needs, or continues to need, special education and/or related services. Section 300.533. This review of evaluation data is also conducted to determine whether any modifications are needed to enable the child to meet the goals set out in the IEP.

4. Review Without a "Meeting"

The Federal Regulations provide that the evaluation team may conduct its review without holding a meeting. See Section 300.533 (b). This provision was part of an amendment, which constituted a significant revision, because it clarified that the evaluation team does not need to comply with the procedural requirements and due process notice procedures required by the IDEA whenever a "meeting" is held.

Practice Pointer:

Use this new provision with care. The purpose of the meeting must be limited in scope to the issue of whether or not the evaluation data warrants modifications to the IEP. In many cases, the participation of the parent is preferable.

G. Re-evaluations

Section 300.536 pertains to re-evaluations, and requires that a re-evaluation be conducted: (1) if conditions warrant a re-evaluation, or (2) if the child's parent or teacher requests a re-evaluation, and, (3) in any case, at least once every three years. The State Regulations do not currently contain a provision governing re-evaluations, although the proposed amendments to the State Regulations would adopt Section 1108, which would require districts to comply with the Federal Regulations pertaining to re-evaluations.

H. Eligibility Determination

With respect to procedures for determining eligibility and placement, the Federal Regulations provide that a school district, in interpreting evaluation data for the purpose of determining if a child has a disability, must draw upon information from a variety of sources, including tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior. Section 300.535. This provision now requires that a district consider parent input as one source of information. Section 300.535 (a)(1).

Practice Pointer:

The role of parental input has always been valued by schools that understand parents are their constituents. This provision simply codifies the "best practice." Those schools that elect to act contrary to the parental input must document an objective basis for disagreement with the parental input.

The State Regulation pertaining to eligibility determinations, Ed. 1107.07, includes many of the same requirements as the Federal Regulation, but again, is even more specific. However, a proposed amendment to Ed 1107.07 would delete the specific requirements and simply require that districts comply with the applicable Federal Regulations, (Section 300.530-543), in making eligibility determinations.

The Federal Regulations governing determination of eligibility also provide that a child may not be determined to be eligible under the IDEA if the determinant factor for the eligibility determination is either (1) lack of instruction in reading or math, or (2) limited English proficiency, and (3) the child does not otherwise meet the eligibility criteria under the section of the Regulations defining child with a disability. See Section 300.534.

Practice Pointer:

Schools should be cautious upon making a decision that a child is not eligible because the problems identified relate primarily to a lack of instruction in reading or math. If the team determines that a child has been deprived of reading or math instruction, the team should consider whether compensatory education should be provided to the child, e.g., in the form of tutoring. The student's deprivation should not go unremedied.

This section also requires districts to evaluate a child's disability before determining the child is no longer a child with a disability and terminating special education or related services. However, a re-evaluation, to determine that the child is no longer a child with a disability, is not required before termination of a student's eligibility under the IDEA due to either graduation with a regular high school diploma, or due to exceeding the age eligibility for FAPE under State law. Section 300.534 (c)(2).

I. Additional Procedures for Evaluation of Children with Specific Learning Disabilities

The determination of whether a child suspected of having a specific learning disability is a "child with a disability," as defined in the Federal Regulations, must be made by the child's parents and a team of qualified professionals. In addition to the regular team, this team must also include the child's regular teacher or, if the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or her age. Section 300.540 (a). The Federal Regulations also require that the team include at least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech language pathologist, or remedial reading teacher. Section 300.540 (b). Federal Regulations, as well as the State Regulations, set forth specific criteria the team must consider in making the determination of the existence of a specific learning disability. See Section 300.541; Ed. 1107.08. Note that the proposed amendments to the State Regulations would change the State Regulations applicable to the make-up of the evaluation team for children suspected of having a specific learning disability, to mirror the Federal Regulation's requirements for the team. However, the proposed amendments would not make any substantive changes to the criteria that the State Regulations require districts to use to determine specific learning disabilities.

III. Individualized Education Programs

The new State Regulations adopt the Federal Regulations pertaining to Individualized Education Programs. An IEP is required to comply with 34 C.F.R. 300.340 - 300.350.

A. When IEPs Must Be in Effect

At the beginning of each school year the district is required to have an IEP in effect for each identified child within its jurisdiction. The IEP is a prerequisite to the provision of special education and related services to an eligible child. According to 34 C.F.R. § 300.342 an IEP must be implemented "as soon as possible following the meetings to develop the IEP."

The IEP must be accessible to each regular education teacher, special education teacher, related service provider and other service provider who is responsible for its implementation. Each teacher and service provider must be informed of his or her specific requirements related to implementing the child's IEP and the specific accommodations, modifications and supports that must be provided to the child.

B. The Individualized Family Service Plan (IFSP)

In the case of a child with a disability age three through five the district may offer an Individualized Family Service Plan rather than an IEP. The IFSP must be agreed to by the district and the child's parents. The district is required to provide the child's parents a detailed explanation of the differences between an IFSP and an IEP and if the parents elect an IFSP obtain written informed consent from the parents.

C. IEP Meetings

The district is responsible for initiating and conducting meetings for the purposes of developing, reviewing and revising an IEP. In New Hampshire the district is required to conduct an evaluation within forty-five (45) days after receipt of the parental permission to test. The district is then required to hold a meeting to develop an IEP within thirty (30) days of a determination that the child needs special education and related services.

D. Review and Revision of IEPs

The district is required to review a child's IEP periodically "but not less than annually," to determine whether the annual goals for the child are being achieved and must revise an IEP as appropriate to address any lack of expected progress toward annual goals as well as any lack of expected progress in the general curriculum if appropriate. An IEP must also be revised to address the results of any reevaluation or information about the child provided to, or by the parents. Finally, an IEP should be revised to address a child's anticipated needs.

E. The IEP Team

The district is required to ensure that the IEP team for a child includes:

F. Transition Service Participants

When the purpose of an IEP meeting is to address transition services the district is required to invite the student to attend his or her IEP meeting. If the student does not attend the IEP meeting the district shall "take other steps to ensure that the student's preferences and interests are considered." 34 C.F.R. § 300.342.

G. Parent Participation in IEP Meetings and IEP Development

Federal law requires that districts shall take steps to ensure that one or both of the parents of a child with a disability are present at each IEP meeting. This effort includes notifying parents of the meetings early enough to ensure that they will have an opportunity to attend; and scheduling the meeting at a mutually agreed on time and place. The notice provided to the parent must:

In those cases where the student with a disability is age fourteen (or younger if appropriate) the notice to the parents must also indicate that a purpose of the meeting will be the development of a statement of transition service needs and that the district will invite the student. With regard to children with a disability beginning at age sixteen (or younger if appropriate) the notice must indicate that the consideration of further transition services, indicate that the district will invite the student, and identify any other agencies invited to send a representative.

If neither parent can attend an IEP meeting the district can conduct the meeting through individual or conference telephone calls.

Under certain circumstances a meeting may be conducted without a parent in attendance. A meeting may be conducted without a parent in attendance if the district is unable to convince the parents that they should attend. In this case the district must make a record of its efforts to arrange a mutually agreed upon time and place such as:

The law clearly requires the use of interpreters or other action as appropriate in those cases where the parents are deaf or their native language is other than English. Parents are entitled to a copy of their child's IEP at no cost.

H. Development Review and Revision of the IEP

The State standards for development review and revision of an IEP remain similar to the prior State standards. The regular education teacher is a member of the IEP team and must, to the extent appropriate, participate in the development, review, and revision of the child's IEP, including assisting in the determination of:

Therefore, it is critical that the regular education teacher participate in IEP development.

I. Content of the IEP

The content requirements for an IEP remain essentially the same. However, it is important to note that, in keeping with the legislative inclusionary model, the IEP's annual goals, including bench marks or short term objectives must be related to "meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum (i.e. the same curriculum as for non-disabled children), . . . as appropriate, to participate in appropriate activities." 34 C.F.R. § 300.347. The content standards set forth in 34 C.F.R. § 300.347 are all driven by the fundamental assumption that the IEP should relate to the student's participation in the general curriculum whenever possible.

IV. Least Restrictive Environment (LRE)

The Federal Regulations governing Least Restrictive Environment, ("LRE"), require districts to ensure that, to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are non-disabled. Removal of children with disabilities from the regular educational environment may occur only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Section 300.550. The 1997 reauthorization of the IDEA now requires a justification from the IEP team as to why a student is not participating in the general education class and curriculum. The applicable State Regulations essentially mirror the Federal Regulations on LRE. Ed. Sec. 1115.01, 1105-06. To the extent possible, educators are required to afford special education students opportunity to participate in the general curriculum. A recent amendment to the Federal Regulations clarifies that LRE requirements do not apply to a disabled student who was convicted as an adult under state law and who is incarcerated in an adult prison. See also NH RSA 194:60.

V. Placement

Federal Regulation Section 300.552 governs the determination of the placement of a child with a disability. This Regulation requires that the placement decision be made by a group of persons, including the parents, who are knowledgeable about the child, the meaning of the evaluation data, and the placement options. Section 300.552 (a)(1). This Regulation further requires that the child's placement be determined at least annually, be based on the child's IEP, and be as close as possible to the child's home. Section 500.552 (b). The applicable State Regulation, for the most part, contains the same requirements as the Federal Regulations. Ed. 1115.02-1105.05. The proposed amendments to the State Regulations would, in large part, streamline the State Regulations to simply require that districts comply with the Federal Regulations governing placement, although the State Regulations would continue to have detailed provisions governing home instruction. See Proposed Amendment to Ed. 1115.05.

VI. Modifications do not Mandate Removal

Both the Federal and the State Regulations state that districts must ensure that "a child with a disability is not removed from education in age appropriate regular classrooms solely because of needed modifications in the general curriculum." Section 300.552(e); Ed. 1115. Unless the IEP requires some other arrangement, the child should be educated in the school that he or she would attend if non-disabled, i.e., the child's neighborhood school. This particular Regulation raises concern with whether it is permissible to place a child in a non-neighborhood school, if that placement cannot be justified entirely by the child's needs as identified in the IEP. For example, the Americans with Disabilities Act, (ADA), and the law under Section 504, may allow a District to place a child in a non-neighborhood school because of physical accessibility. In that case, a student who is placed in a non-neighborhood school to facilitate access to the school building would not be denied rights under the IDEA, since the child's need for modifications in the general curriculum was not the reason for the removal from the neighborhood school.

VII. Notice

A. When Notice is Required

Districts are required to give notice to parents prior to proposing to initiate or change, or refusing to change, an identification, evaluation, placement, or provision of a FAPE. There are several provisions of this Regulation which merit attention. First, the Federal Regulation requires that notice be given to the parents within a "reasonable time" before the public agency makes a change or refuses to make a change. Section 300.503 (a)(1). Note that the State Regulation requires the district to "immediately" notify the parent upon receipt of a referral, and the notice must go out within fifteen (15) days of the district having received a referral for special education, identification or evaluation. Ed. 1107.02(d). The State Regulations also require that notice be given not less than fourteen (14) days prior to the district's proposed initiation or change, or refusal to initiate or change, the identification, evaluation or placement of a child with a disability. Ed. 1125.03. The parent and district may agree to extend the fourteen (14) day time limit. Id. Notice must also be provided when transition will be a topic addressed at an IEP meeting. This notice must indicate that the student will be invited to attend, as will representatives of agencies that may be responsible for providing transition services.

B. Contents of Notice

The substantive requirements for the content of the notice include: a description of the action proposed or refused by the district; an explanation of why the district proposed or refused to take the action; a description of other options the district has considered and reasons for rejection of these options; and a description of evaluation procedures, tests or reports that the district used in making its decision. Section 300.503; Ed. 1125.03. In addition, the district must provide a statement that the parents have protections under the procedural safeguards of the IDEA and Federal Regulations, and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of procedural safeguards can be obtained. Section 300.504; Ed. 1125.03. Thus, a complete copy of the procedural safeguards description should be provided with all initial referral notices. Furthermore, the notice must also provide resources for parents to contact to obtain assistance in understanding the purpose of the IDEA and the regulations promulgated under that Act. Section 300.503 (b).

Practice Pointer:

Some case managers tend to use "boilerplate" descriptions for the reasons for rejecting a particular option. These descriptions can readily become the "Achilles heel" for a district that is subsequently required to defend a decision.

Another section of the Federal Regulations requires districts to provide notice in a language or method of communication understandable to the parent. The Regulation specifically states that if the native language or other method of communication of the parent is not a written language, the district must maintain written evidence that it has met the requirement that the notice be provided orally, or in another method understandable to the parent, and that the parent understands the content of the notice. Section 300.503 (c). Thus, it is not enough for a district to simply take the action to communicate the notice to the parent, but there must be written proof in the file that documents the steps that were taken to communicate the notice to the parent and to ensure his or her understanding.

C. Procedural Safeguards Notice

Section 300.504 governs the procedural safeguards notice. At a minimum, districts must provide a copy of the procedural safeguards notice to the parent upon any of the following events: (1) initial referral for evaluation; (2) each notification of an IEP meeting; (3) re-evaluation of the child; and (4) receipt of a request for a due process hearing. Copies of the procedural safeguards description should be maintained by district personnel and should be readily available to parents.

Practice Pointer:

Many districts have a practice of offering the full Booklet of Parental Rights at every meeting. Arguably, once the parents have one booklet, the rights notice on the written prior notice is sufficient. Proof of the written prior notice having been sent with a procedural rights notice can avoid the cumbersome step of documenting at each subsequent meeting that the parental rights were explained or offered.

The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under the Federal Regulations and, pursuant to a recent amendment, the state complaint procedures available under the Regulations. Section 300.504 (b). The notice must include the procedural safeguards available relating to: (1) independent educational evaluations; (2) prior written notice; (3) parental consent; (4) access to educational records; (5) opportunity to present complaints to initiate a due process hearing; (6) the child's placement during the pendency of due process proceedings; (7) procedures for students who are subject to placement in an interim alternative educational setting; (8) requirements for unilateral placement by parents of children in private schools at public expense; (9) mediation; (10) due process hearings, including requirements for disclosure of evaluation results and recommendations; (11) state level appeal; (12) civil actions; (13) attorneys' fees; and (14) state complaint procedures, including a description of how to file a complaint and the timelines under those procedures. Of course, the Regulation also provides that the notice must be in a language understandable to the parent.

Practice Pointer:

A significant problem that many districts are encountering is that they are not yet informing parents of their rights and obligations with regard to unilateral placement. Schools should supplement their current rights pamphlets with updated disclosures with regard to the parental rights and obligations that attach to unilateral placement decisions. The failure to do such has adverse state and federal consequences. Under the IDEA, the district loses some key procedural defenses. Under 186-C:16-b,III, the district loses the protection of a key time limitation on due process requests for reimbursement.

The State of New Hampshire has indicated that absent capacity, rights transfer to the adult student at the age of majority. As a result, at least one year before student reaches the age of majority under New Hampshire law the student's IEP must include a statement that the student has been informed of his or her rights under Part B of the IDEA and that rights will transfer to the student on reaching the age of majority.

VIII. Consent

A. "Informed Consent"

The Federal Regulation requires "informed" parental consent before conducting an initial evaluation or re-evaluation, and before the initial provision of special education and related services to a child with a disability. Section 300.505. The recent addition of the term "informed" indicates that the Department of Education believes it is not enough to just obtain parental consent, but rather, that districts have an affirmative obligation to educate the parent as to the action proposed to be taken. The doctrine of "informed consent" has long been used in the physician-patient context to imply a significant burden upon the physician to ensure that the patient is made fully aware of all ramifications of the proposed treatment and that the physician is satisfied that the patient is capable of making an informed decision as to whether to consent to the treatment. The Department's decision to add the word "informed" indicates that the Department is placing a significant burden on districts to ensure that the parent is not simply told about the proposed action, but also that the parent has the ability to consider the proposed action and weigh the consequences of assenting to the proposal.

The State Regulations currently require parental consent for the same purposes as the Federal Regulation, but also require parental consent prior to annual renewal of the IEP and placement, determining or changing the disability classification, and changing the nature or extent of the special education or related services. Ed. 1125.04. A proposed amendment to this Regulation would delete the requirement of obtaining parental consent for determining or changing the disability classification and for changing the nature or extent of the special education or related services. The proposed amendment would also add the words "informed written" to the type of parental consent required. Since the Federal Regulation already requires parental consent to be informed, and since good practice requires that consent be obtained in writing, this latter change should not change current practice.

Practice Pointer:

The team meeting is the forum for ensuring that parental consent is informed consent. The case manager should take the time to discuss the proposed action in the context of other alternatives. The minutes/notes of meeting should specifically indicate that the parents were informed of the nature of the decision being recommended by the team and that they were given an opportunity to ask questions.

B. Revocation of Consent

The definition of "consent" indicates that a revocation of consent does not have retroactive effect if the action consented to has already occurred. That is, revocation of consent does not negate an action that has occurred after the consent was given, and before the consent was revoked. Section 300.500 (b)(1)(iii)(B).

Practice Pointer:

In the past, one of the first steps that advocates have taken in assuming a new matter has been to revoke all prior consents. This new provision avoids the unnecessary ambiguity previously created by such a revocation.

C. Consent Unnecessary for Data Review

Parental consent is not required before reviewing existing evaluation data as part of an evaluation or re-evaluation, or for administering a test used with all children, unless consent is otherwise required from all parents. Section 300.505 (a)(3).

D. Beware of "Linkage"

The Federal Regulations specifically state that a district may not use parental refusal to consent to one service or benefit to deny the parent or child another service or benefit. Section 300.505 (e).

Practice Pointer:

This provision may have implications for teams that have tried to link service decisions. For example, the team may have used parental refusal with regard to one service as a basis for stalling the IEP/Placement decision. This provision may have implications for how a district approaches an adversary proceeding. As a general rule, schools should be willing to provide all services that are not in dispute.

E. Reasonable Effort to Obtain Consent for Re-evaluation

District personnel should note that if a parent fails to respond to a request for re-evaluation, parental consent need not be obtained for re-evaluation if the district can demonstrate that it has taken reasonable measures to obtain the parent's consent. The governing Federal Regulation provides that to prove it has taken the reasonable measures required by this section, a district must keep written, detailed records of the actions taken in order to attempt to obtain parental consent. Section 300.505 (c).

Practice Pointer:

This documentation should include written letters, follow-up letters and telephone logs with memoranda to the file.

IX. State Complaint Procedures

The Federal Regulations require each state to adopt written procedures for the filing and resolution of complaints. Section 300.660(a). New Hampshire's Regulations are set forth in Ed. 1127. The Federal Regulations contain minimum requirements for State Complaint Procedures with respect to the time limits for a state to investigate a complaint and to make a written decision. Section 300.661. New Hampshire's Regulations comply with the Federal Regulations' minimum requirement that all complaints will be resolved within sixty (60) days, unless the State Commissioner of Education grants an extension, in exceptional circumstances, allowing a resolution within ninety (90) days. Ed. 1127.03(a). While a proposed amendment to Ed. 1127.03 would delete the entire regulation, since the Federal Regulation requires, at a minimum, that complaints be resolved within sixty (60) days, the proposed amendment would not change current practice.

Federal Regulation Section 300.662 indicates that a complaint must be filed within one year of the date of the alleged violation, unless a longer period is reasonable because the violation is continuing, or the complaint is requesting compensatory services for a violation that occurred not more than 3 years prior to the date of the complaint. This statute of limitations is not contained in the State Regulations in New Hampshire. See Ed. 1127.01 - 1127.04⁽⁶⁾.

A. A Remedy is Created

Under the Federal Regulations, the New Hampshire Department of Education is now required to address the matter of a remedy if it finds that a school has failed to provide appropriate services. This Regulation is echoed by New Hampshire Regulation 1127.02(a)(2). Section 300.660 (b) of the Federal Regulations instructs the State Department of Education to specifically address how to remediate the denial of the services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child, and the appropriate future provision of services for all children with disabilities. This provision suggests that the Department of Education is encouraging State Education Departments to take a more active role in ensuring that school districts do not repeatedly fail to provide appropriate services to special education students. A specific reference to awarding monetary reimbursement may be viewed as an encouragement to the State Education Department to penalize school districts which fail to provide appropriate services to children with disabilities. Moreover, the provision requiring the State Education Department to address the appropriate future provision of services for all children with disabilities appears to empower the State Education Department to issue a general mandate for a district to follow in future cases.

The Federal Regulation also clarifies that if an issue in a complaint is already the subject of a due process hearing, that issue, but not any issue outside of the hearing, would be set aside until the conclusion of the hearing. Furthermore, if an issue raised in a complaint filed under this section has previously been decided at a due process hearing involving the same parties, that hearing decision is binding. The State Education Department is required to inform the complainant of the binding affect of that decision. The Regulation also states that a complaint alleging a district's failure to implement a due process decision must be resolved by the State Education Department.

B. Appeals

Currently, Ed. 1127.04 provides the method for appealing a final decision of the State Department of Education, which is to file a letter of grievance with the Secretary of the United States Department of Education. However, a proposed amendment to this Regulation would delete all of the language governing an appeal to the U.S. Department of Education, and provide that the State appeal process would be in accordance with Ed. Sec. 200, which indicates that an appeal of a decision by the State Education Department is through NH RSA 541, which permits a party aggrieved by a decision of a State administrative agency to pursue an appeal to the State Supreme Court.

X. Opportunity to Examine Records and Participate in Meetings

The parents of a child with a disability must be afforded the opportunity to inspect and review all education records with respect to the identification, evaluation, placement, and the provision of a FAPE to their child. Section 300.501(a)(1); Ed. 1123.08. Parents also have the right to participate in meetings with respect to the identification, evaluation, placement, and provision of a FAPE to their child. Section 300.501(a)(2). Districts are obligated to provide parents with written notice, consistent with 300.345 (notice requirements for IEP meetings), to ensure that parents of children with disabilities have the opportunity to participate in meetings. Section 300.501(b).

A. What is not a "Meeting"

Federal Regulation Section 300.501, regarding the opportunity to examine records and parental participation in meetings, provides that the term does not include certain conversations or preparation for a meeting. Section 300.501 (b)(2). The Regulation states that a meeting does not include informal, unscheduled conversation involving school personnel and conversation on issues such as teaching methodology, lesson plans or coordination of service provisions, if those issues are not addressed in the child's IEP. A meeting also does not include preparatory activities that school personnel engage in to develop a proposal or a response to a parent proposal that will be discussed at a later meeting. This confirms that school personnel's meetings with the school's attorneys are excluded from the definition of "meeting". While it has always been the contention of school attorneys that conversations in such meetings are protected by the attorney-client privilege, the Regulation as amended confirms that belief.

Practice Pointer:

As a practical matter, most schools have not deemed informal review to be a "meeting" that requires parental involvement. Most schools have a practice where case managers meet at least monthly with key team members to review the status of their students. This practice falls within the "grey area" of what constitutes a meeting, and schools should anticipate an argument for parental involvement.

This Regulation also mandates "reasonable efforts" related to parental participation in group discussions or meetings related to the educational placement of their child. This specifically includes arranging for an interpreter for parents with deafness, or whose native language is other than English. While the Regulation does not provide a standard to define the "reasonable effort" required, educators should interpret this to require significant effort to ensure that an interpreter or translator is present at any meeting involving a placement decision. Furthermore, school personnel should maintain written documentation of the efforts made.

Practice Pointer:

This is an area where Section 504 and the ADA also come to bear. Arguably, the meeting, although not a public meeting, should include reasonable Section 504/ADA accommodations for parents with particular needs. The district's notice of meeting or written prior notice should offer the equivalent of a Section 504 accommodation notice.

XI. Independent Educational Evaluations (IEE)

Section 300.502 of the Federal Regulations gives the parents of a child with a disability the right to obtain an independent educational evaluation subject to certain conditions and criteria contained in the subparts of Section 300.502. An "independent educational evaluation" is defined as "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question."

"Public expense" is defined as the "public agency" either paying for the full cost of the evaluation or "ensuring that the evaluation is otherwise provided at no cost to the parent, consistent with Section 300.301." Section 300.301 authorizes states to use local federal and private sources of support to meet the requirements of the IDEA. Subpart b of Section 300.301 provides that "nothing in this part relieves an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability."

The parents' right to an evaluation at public expense is defined in Section 300.502 (b). A parent has a right to an independent educational evaluation at public expense if he or she disagrees with an evaluation obtained by a district . This requires a pre-existing public evaluation on which to base disagreement. If a parent requests an independent educational evaluation at public expense the district must, without unnecessary delay, either:

The stated purpose for requiring the district to either initiate a due process hearing if it wishes to challenge a parent's request for an IEE, or in the alternative, to provide an IEE at public expense, "is to require public agencies to respond to IEE requests and to ensure parents are able to obtain an IEE", as set forth in Section 600.15 (b)(1) of the IDEA. If the district fails to initiate a due process hearing, it is automatically obligated to provide the IEE at public expense.

If a parent requests an independent educational evaluation a district may ask for the parent's reasoning as to why he or she objects to the district's evaluation. However, the district must explain that the parent is not required to explain his or her reasoning. Section 300-502(b)(4). A district may not unreasonably delay providing the IEE at public expense, or initiating a due process hearing to defend an evaluation, based upon a parent's refusal to explain disagreement with the district's evaluation. Id. A New Hampshire Regulation provides that if a district is successful in a due process hearing for determining the appropriateness of its evaluation, the parent must then bear the cost of the IEE. Ed. 1125.06(c).

Upon request for an IEE, parents must be given information about the district's criteria applicable to IEE's, in addition to information about where an IEE may be obtained. Section 300.502 (a)(2). In addition, the criteria under which an IEE is obtained must be the same as that of the district "to the extent such criteria are consistent with the parents' right to an IEE." Section 300.502 (e)(2) provides that, except to the extent that the district may ensure that the criteria under which an IEE is obtained meets the same criteria the district uses when it initiates an evaluation, the district may not impose conditions or timelines related to obtaining an IEE at public expense.

A. Timeliness

The federal regulations do not define what is meant by the phrase "without unnecessary delay," nor do they define the term "may not unreasonably delay." Instead, the commentary to the Federal Regulations observes "since the necessity or reasonableness of a delay is case specific, no definition of these terms has been added." Of note is the fact that the State of Indiana requires the public agency to take action within ten (10) business days of the date of the district's receipt of the request for an IEE.

B. The Establishment of Agency Criteria

Section 300.502 (e) allows school districts to establish general criteria for the evaluation of students. Subpart (e) provides that if an IEE is at public expense the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent evaluation.

These criteria should be reduced to writing. When a district receives a request for an IEE, the district must inform the parents of the district's IEE criteria. Obviously, if the district is going to meet its obligation to list the names and addresses of examiners, the district should pre-qualify examiners to ensure that they meet the district's criteria. The following criteria would be appropriate:

There is, however, a limitation on the criteria which can be established by a district. A district may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense which do not apply to the district's own evaluations.

In setting maximum allowable costs for IEE's, a district must set maximums so that they permit parents to choose from among the qualified examiners in the area. The maximum allowable costs should be set to only eliminate unreasonable fees. A district must permit parents to demonstrate the unique circumstances justifying an IEE that exceeds the district's maximum allowable costs. If the parent demonstrates unique circumstances justifying an IEE that exceeds the maximum allowable costs, the district must ensure that the IEE is publicly funded. Even if the total cost for an IEE exceeds the district's cost criteria and there is no justification for the excess cost, the cost of the IEE must be publicly funded up to the district's maximum allowable costs for that type of evaluation.

If a district fails to establish a maximum allowable cost, then the parents are free to use any qualified examiner. The district is faced with the unpalatable option of either paying the fees, or if the district believes the fees are unreasonable, challenging the parents' request in a due process hearing, and then bearing the burden of proving that the IEE fees are unreasonably expensive.

Parents are certainly free to select examiners who are not on a district's pre-qualified list. A district may not deny a parent a publicly funded IEE because the selected examiner has not been prequalified by the district. However, a parents' failure to meet those qualifications may constitute a reasonable basis for denying reimbursement.

A school district may also restrict publicly funded IEE's to examiners within a reasonable geographic region. However, in order to do such, there must be a sufficient number of qualified examiners available to conduct the required evaluations. If a parent proposes an evaluator outside of a geographic region, the district must give the parent an opportunity to show that unique circumstances justify the selection of an examiner who does not meet the geographic criteria. If a parent shows unique circumstances warranting a publicly funded IEE outside of the geographic region, the IEE obtained outside the area must be publicly funded. Most likely this funding would include the expenses of the parents for travel, meals and lodging, if overnight travel is necessary.

C. The Absolute Right to an Independent Educational Evaluation

Even if a school district initiates a hearing and the hearing officer upholds a determination that the district's evaluation is appropriate, the parent still has a right to an independent educational evaluation. However, that right to an evaluation is not at public expense.

D. Notice and District's Right to Request an Explanation

A district may have a policy requiring parents to notify the district of their intent to obtain a publicly funded independent educational evaluation. However, the district may not deny parents a publicly funded IEE because they failed to provide the district with such notice.

E. Obligation to Implement IEE Recommendations

The law does not require the district to carry out the IEE recommendations. However, the district must consider the results of an IEE that meets district criteria in any eligibility program and placement decisions made by the district. At a minimum, the district should ensure that the IEP team reviews the IEE and discusses the results.

Occasionally, parents may give the district an IEE obtained before the district conducts its own evaluation. Under those circumstances, the district must still consider the IEE and determine whether or not it needs to repeat or expand upon the assessments conducted in the IEE before making an evaluation decision.

If parents obtain an IEE at their own expense, the results of the evaluation: must be considered by the district, if it meets agency criteria, in any decision made by the district with respect to the provision of FAPE to the student, and may also be presented by the parent as evidence at a hearing.

F. Independent Educational Evaluations Requested by a Hearing Officer

If a hearing officer requests an IEE as part of a hearing, the cost of the evaluation must be at public expense. The definition of public expense means that it is the district which must bear the cost of such an evaluation.

G. IEE's and Eligibility

A district may not rely on the IEE as the sole element in an eligibility determination. The United States Department of Education has observed that "IEE's would be only one element in the eligibility determination since the evaluation team reviews the existing evaluation data and then determines what additional data are needed to determine whether the child has or continues to have a covered disability, the child's present levels of performance and whether the child needs or continues to need special education and related services." (See Section 300.533 (a) and (b)). "Methods in addition to IEE's are to be used to determine whether a child is eligible under IDEA. Therefore, the results of IEE's cannot be the sole determining factor for eligibility." See Federal Register, Volume 64, Number 48, March 12, 1999, Rules and Regulations, p. 12607. Since IEE's at public expense are to be conducted pursuant to the same criteria that apply to evaluations conducted by public agencies, the requirements set forth at Section 300.530 - 300.536 apply to IEE's. These are the general "procedures for evaluation and determination of eligibility."

H. Public Evaluations and

Since the right of a parent to obtain an IEE is not triggered if a parent refuses to consent to a proposed public evaluation in the first instance, then an IEE at public expense would be unavailable if there is no public evaluation with which the parent can disagree. If the parent believes the proposed public evaluation is inappropriate, he or she may pursue an appropriate publicly funded evaluation via the due process procedures by a mediation or due process hearing.

XII. Due Process Hearings

A. Mediation

Section 300.506 requires districts to ensure that procedures are implemented to allow parties to disputes involving any special education matter to solve these disputes through a mediation process, which must be available whenever a due process hearing is requested. Mediation is a process where a neutral mediator attempts to facilitate communication between the parties and to define the issues and explore alternatives. See NH RSA 186-C:24,II. Both the Federal Regulations and State law contain specific requirements regarding the circumstances of the mediation, including that the mediation process must be voluntary on the part of the parties. Proposed State Regulation Ed. 1125.07 would state that districts shall comply with the Federal Regulation governing mediation and with the provisions of NH RSA 186-C:24 relative to mediation. This proposed Regulation is largely surplusage, as districts are already under a legal obligation to follow the Federal Regulation and the State Statute.

New Hampshire has actually enacted several statutes which address the subject of alternative dispute resolution in the context of special education. See NH RSA 186-C:23,186-C:24. New Hampshire law requires that a parent and district be given the option of voluntarily engaging in either mediation or a "neutral conference." NH RSA 186-C:23,I. A neutral conference consists of an informal, abbreviated presentation of case facts and issues to a neutral who is responsible for reviewing the strengths and weaknesses of a case and issuing a recommendation. NH RSA 186-C:23-b,I. A district is required to notify the State Department of Education when a parent rejects an identification, evaluation, IEP, or placement of a child. NH RSA 186-C:23,II. The State Department of Education then notifies the parent of the available options and a thirty-day "discussion period" begins. NH RSA 186-C:23,II. Each district is also encouraged to develop, with review by the State, alternative dispute resolution procedures which can be utilized at the local level. NH RSA 186-C:23-a.

1. Written Agreement Required

The Federal Regulations require that any agreement reached by the parties in the mediation process be set forth in a written mediation agreement. Section 300.506(b)(5). This requirement is also a part of New Hampshire law. See NH RSA 186-C:24,II,(e).

Practice Pointer:

This provision is best followed by submitting a written stipulation to the Mediator for his or her review and approval.

2. Selection of Mediator

States are required to maintain a list of qualified mediators who are knowledgeable in the laws and regulations relating to the provision of special education and related services. Section 300.506(b)(2)(i). If a mediator is not selected on a random, (e.g., rotation), basis from the state's list, both parties must be involved in selecting the mediator and agree with the selection of the mediator. Section 300.506(b)(2)(ii).

Practice Pointer:

The benefits of mediation cannot be overstated. The transaction costs associated with the alternative, a contested hearing, generally outweigh the benefit. The most difficult cases to mediate are cases where there is a serious disagreement over an identification decision or where a district is being asked to reimburse parents for, or bear the costs of, an expensive out-of-district placement. In these circumstances, districts should be fully aware that even a mediated result may set a long-term precedent.

3. Confidentiality

District personnel should bear in mind that any discussions that occur during the mediation process must be considered confidential and may not be used as evidence at any subsequent due process hearing or civil proceeding. NH RSA 186-C:23, III; Section 300.506(b)(6). Thus, the mediation process cannot be used by either side to gain admissions or confessions for use in later due process proceedings or civil litigation.

Practice Pointer:

Most mediators require that parties destroy their notes after a mediation session. This practice reinforces the idea that a mediation session should not be used as a "discovery" session.

4. Attorney's Fees

The Federal Regulations leave it up to each state to determine whether or not attorney's fees will be available to parents for mediation. To date, the New Hampshire Department of Education has taken no position on the issue.

5. Information About Mediation

The Federal Regulations also provide that districts may establish procedures to require parents who elect not to use the mediation process to meet, with a disinterested party who is under contract with a parent training and information center, or community parent resource center, or an appropriate alternative dispute resolution entity, to explain the benefits of the mediation process and encourage parents to use the process. However, a district cannot use the parent's failure to attend such a meeting to deny or delay a parent's right to a due process