CHAPTER Ed 1100
STANDARDS FOR THE EDUCATION OF CHILDREN WITH DISABILITIES
Revision Note:
Document #9197, effective 6-28-08, readopted with
amendments Chapter Ed 1100. Document #9197
made extensive changes to the wording, format, structure, and numbering of
rules in Chapter Ed 1100, with the former Part Ed 1101 through Part Ed 1137
renumbered as Part Ed 1101 through Part 1129.
Document #9197 replaces all prior filings for rules in
Chapter Ed 1100. The prior filings
affecting rules in Chapter Ed 1100 include the following documents:
#1810-a, eff 9-15-81
#2021, eff 5-11-82
#2631, eff 2-24-84
#2667(e), eff 4-6-84,
EMERGENCY
#2714, eff 5-16-84 (superseded
rule in #2667(e))
#2767(E), eff 6-27-84,
EMERGENCY, EXPIRED 10-25-84
#2830(E), eff 8-21-84,
EMERGENCY, EXPIRED 12-19-84
#2894, eff 10-29-84
#2954, eff 1-9-85
#2955, eff 1-9-85
#3063, eff 7-19-85
#3175, eff 1-9-86
#4371, eff 2-23-88, EXPIRED
(selected rules) 2-23-94
#4499, eff 9-28-88, INTERIM,
EXPIRED 1-26-89
#4697, eff 11-9-89
#4816, eff 5-23-90
#4847, eff 6-21-90
#4941, eff 9-25-90
#5306, eff 1-3-92
#5803, eff 3-25-94
#6366, eff 10-30-96
#6857, eff 9-25-98
#7515, eff 7-1-01
#7691, eff 7-1-02
PART Ed
1101 PURPOSE AND SCOPE
Ed
1101.01 Purpose. The purpose of Ed 1100, adopted by the state
board of education, is to ensure that all children with disabilities have
available to them a free, appropriate, public education pursuant to the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C 1400, et seq., as
amended by the Individuals with Disabilities Education Improvement Act of 2004
(IDEIA) and the implementing regulations found in 34 CFR 300 et seq. and RSA
186-C.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1101.02 Scope.
These rules shall apply only to programs that receive public funds.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1102 DEFINITIONS
Ed 1102.01 Definitions A-C.
(a) “Academic achievement”
means the student’s level of academic performance when measured against the general
education curriculum.
(b) “Accommodation”
means any change in instruction or evaluation determined necessary by the
individualized education program (IEP)
team that does not impact the rigor, validity, or both,
of the subject matter being taught or assessed.
(c) “Act” means the
Individuals with Disabilities Education Improvement Act (IDEA), as amended.
(d) “Administrative case management”
means the following activities that are not direct instruction but that are
necessary to facilitate a student’s special education:
(1) Scheduling IEP meetings;
(2) Coordinating evaluations and IEP drafting;
(3) Visiting
potential student
placement environments;
(4) Communicating with a parent; and
(5) Updating
progress reports for meeting IEP
goals.
(e) “Administrative due
process hearing” means a hearing conducted in compliance with Ed 1123 and in
compliance with the
provisions of 34 CFR 300.507 – 300.518.
(f) “Adult student” means a
child with a disability who is:
(1) At
least 18 years of age but less than 22 years of age and not
adjudicated incompetent; or
(2) An emancipated minor pursuant to state law.
(g) “Alternate
achievement standards” means the expectation of performance established by the
New Hampshire department of education consistent with the Elementary and
Secondary Education Act of 1965, as amended (ESEA).
(h) “Alternate assessment”
means those assessments developed pursuant to the provisions of 34 CFR
300.704(b)(4)(x) and sections 1111(b) and 1201 of ESEA.
(i) “Alternative dispute
resolution” means the following processes that can be used to resolve an issue
or issues in dispute:
(1) Neutral conference; and
(2) Mediation.
(j) “Approved
program” means a program of special education as defined in RSA 186-C:2, II.
(k) “Assistive technology device” means “assistive technology device”
as defined in 34 CFR 300.5.
(l) “Assistive
technology service” means “assistive technology service” as defined in 34 CFR
300.6.
(m) “Aversive behavioral
interventions” means those procedures that subject a child with a disability to
physical or psychological harm
or unsupervised confinement, or that deprive the child of basic
necessities such as nutrition, clothing, communication, or contact with
parents, so as to endanger the child’s physical, mental, or emotional health.
(n) “Behavior intervention
plan” means the positive behavior interventions and supports incorporated in
the student’s IEP.
(o) “Business day”
means “business day” as defined in 34 CFR 300.11(b).
(p) “Chartered public
school” means “chartered public school” as defined in RSA 194-B:1, IV.
(q) “Child find” means the system
detailed in Ed 1105.
(r) “Child with acquired brain injury (ABI)” means
brain injury that occurs after birth, including injury sustained by
infection, disease, or lack of oxygen resulting in total or partial functional
disability or psychosocial impairment, or both, that adversely affects a
child’s educational performance and requires special education and or related
services.
(s) “Child with a
developmental delay” means a child with a developmental delay as defined in
RSA-186-C:2 I-a who:
(1) Is
experiencing developmental delays
in one or more of the following areas:
a. Physical development;
b. Cognitive development;
c. Communication development;
d. Social
or emotional development; or
e. Adaptive
development; and
(2) By
reason thereof, needs special education and related services, as measured by
appropriate diagnostic instruments and procedures consistent
with Ed 1107 and identified in compliance with 34 CFR 300.111(b).
(t) “Child with a disability” means:
(1) A
“Child with a disability” as defined in 34 CFR 300.8 who is 3 years of age or
older but less than 22 years of age and who has not yet received a regular high
school diploma as provided in 34 CFR 300.102;
(2) A
child with a developmental delay as
defined in Ed 1102.01(s) above; and
(3) A
child with acquired brain injury as defined in Ed 1102.01(r) above.
(u) “Child eligible for
special education but not currently receiving services” means a child who has
been evaluated and
determined to be a child with a disability who is not currently receiving
special education services due to one or more of the following factors:
(1) The
child is at least 2.5 years of age and has been determined to be eligible for
special education;
(2) The child’s current condition prevents the delivery of special
education services;
(3) The
child’s parent, legal guardian, surrogate
parent, or adult student has refused services;
(4) The
child has dropped out of school; or
(5) The
child is no longer attending school.
(v) “Collaborative program”
means the cooperative agreements that school districts or school administrative
units, or
both, are able to enter into under RSA 186-C:8.
(w) “Committed
juvenile student” means an individual who is committed to the youth development
center pursuant to court order and who has been or is determined to be a child
with a disability.
(x) “Consent” means “consent” as
defined in 34 CFR 300.9.
(y) “Core academic
subjects” means “core academic subjects” as defined in 34 CFR 300.10.
(z) “Court” means a court
of competent jurisdiction.
(aa) “Curriculum”
means all of the courses and other
educational opportunities offered by the responsible local education
agency.
(ab) “Curriculum for
preschoolers” means all of the organized educational
activities, experiences, or both that are offered within the early childhood program to
address all aspects of development and to promote meaningful learning
experiences regarding preschoolers, their families and their community.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; amd
by #9812, eff 11-11-10; ss by #12141, eff 3-24-17; amd
by #12547, eff 6-14-18; ss by #13773, eff 10-12-23
Ed 1102.02 Definitions D-G.
(a) “Day” means “day”
as defined in 34 CFR 300.11(a).
(b) “Department”
means the New Hampshire department of education.
(c) “Destruction,” in reference to information in education
records, means “destruction” as defined in 34 CFR 300.611(a).
(d)
“Diploma” means a regular high school diploma that reflects the
achievement of the academic standards adopted by the local school board for
earning a regular high school diploma detailed in Ed 306.
(e)
“Disability” means any of the conditions listed in 34 CFR 300.8(c).
(f)
“Disinterested party” means a party who has no personal or professional
interest in the outcome of a dispute in which they mediate.
(g)
“Division for
children, youth and families” (DCYF) means the division for children, youth and families of the New Hampshire department of health
and human services.
(h)
“Early intervening services” means the coordinated services for students
in kindergarten through grade 12 who are not currently identified as needing
special education or related services but who need additional academic and
behavior support, with emphasis on services for students in kindergarten
through grade 3, as defined in 34 CFR 300.226.
(i)
“Education
records” means “education records” as defined in 34 CFR 300.611(b).
(j)
“Electronic mail” means the secure electronic exchange of information
necessary to comply with the requirements of the Act, New Hampshire statutes,
and Ed 1100.
(k)
“Equipment”
means “equipment” as defined in 34 CFR 300.14.
(l) “Elementary and
Secondary Education Act” (ESEA) means the Elementary and Secondary Education
Act of 1965.
(m) “Evaluation” means “evaluation” as defined in
34 CFR 300.15 and consistent with the requirements in Ed 1107.
(n) “Evaluation process” means the completion of
initial evaluations, reevaluations and assessments, a written summary report, and a meeting
of the IEP team to review the results of the evaluations and assessments. When the purpose of the meeting is to
determine eligibility for special education and related services, the evaluation
process also includes the determination of eligibility.
(o)
“Extracurricular and nonacademic activities” means those activities and
services detailed in 34 CFR 300.107(b).
(p) “Family centered early supports and services”
means the array of comprehensive supports
and services for families who reside in NH with children, birth through age 2,
who have developmental delays, are at risk for substantial developmental
delays, and/or have established
conditions.
(q)
“File” means
to deliver paper copies to the department in the format required by these
rules, or to transfer information electronically.
(r)
“Free
appropriate public education” (FAPE) means “free appropriate public education”
as defined in 34 CFR 300.17 that meets the least restrictive environment
requirements detailed in 34 CFR 300.114.
(s)
“Functional
behavioral assessment” means an assessment of a student’s behavior.
(t)
“Functional goal” means a measurable outcome that is developed by the
IEP team to address a need detailed in the analysis of the student’s functional
performance.
(u)
“Functional performance” means how the child demonstrates skills and
behaviors in cognition, communication, motor, adaptive, social/emotional, and
sensory areas.
(v)
“Functionally blind” means “functionally blind” as defined in RSA
186-C:2,VI.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1102.03 Definitions H-M.
(a)
“Health care facility”
means any hospital, nursing home, sheltered home or other facility licensed
under RSA 151.
(b) “Health evaluation” means an evaluation that
provides the IEP team with information on the child’s physical condition and
can include, but is not limited to:
(1)
A physical assessment, health screening, or both;
(2)
A review of a child’s medical history;
(3)
Classroom observations of the child with health related concerns; and
(4)
Identification of health barriers to learning, as determined by the IEP
team.
(c) “Home education” means “home education” as
defined in RSA 193-A:4, and includes the term homeschooling.
(d) “Home for children” means:
(1) Any orphanage, or
institution for the care, treatment, or custody of children;
(2) As defined by RSA 170-E: 25
any child care agency, child care institution,
experiential wilderness facility, and independent living home; or
(3) Any residential school
approved under RSA 186-C:5.
(e) “Home instruction” means a
home-based LEA placement as detailed in Ed 1111.04 that provides home
instruction for school-aged children.
(f)
“Independent
educational evaluation” means “independent educational evaluation” as defined
in 34 CFR 300.502(a)(3)(i).
(g) “Individualized education program (IEP)”
means “individualized education program” as defined in 34 CFR 300.22 and which
meets the requirements in Ed 1109.
(h) “Individualized education program team (IEP team)”
means “individualized education program team” as defined in 34 CFR 300.23 and
which meets the requirements in Ed 1103.01(b) and (c).
(i) “Individualized family service plan or (IFSP)” means “individualized family service
plan” as detailed in 34 CFR 300.323. The term includes individualized family
support plans.
(j) “Individuals with Disabilities Education Act
(IDEA) and Individuals with Disabilities Education Improvement Act (IDEIA)” each mean the Individuals with Disabilities
Education Act, 20 U.S.C. 1400, et seq., as amended by the Individuals with
Disabilities Education Improvement Act of 2004, and as implemented by the U.S.
Department of Education’s regulations, 34 CFR 300 et seq.
(k) “Interim alternative educational setting”
means the setting, as determined by the IEP team pursuant to 34 CFR 300.530(g)
through 34 CFR 300.532, in which a child with a disability receives services
when removed from placement for disciplinary reasons.
(l) “Interpreter services” means interpreting
services provided by an interpreter for the deaf and hard of hearing who is
licensed in accordance with Int 300 and RSA 326-I:2,IV that are necessary for a
parent, surrogate parent, guardian, or adult student to participate in the
special education process.
(m) “Interpreting services for a child with a
disability” means “interpreting services for a child with a disability” as
defined in 34 CFR 300.34(c)(4) and 300.322(e).
(n) “Local education agency (LEA)” means “local education agency” as
defined in 34 CFR 300.28.
(o) “Local school board” means the elected
governing body of the LEA which is responsible for providing elementary and
secondary education to all children who reside in the district.
(p) “Local school district” means the political
subdivisions of the state as defined in
RSA 194:1, RSA 195:1, and RSA 195-A:1,I.
(q) “Local school board officials” means the
administrators of the local school district.
(r) “Manifestation determination” means the
process by which the IEP team determines whether the behavior that violated a student code of
conduct is a manifestation of a student’s disability pursuant to 34 CFR
300.530(e).
(s) “Mediation” means an alternative dispute
resolution process in which an impartial mediator assists the parties in
resolving issues in dispute pursuant to RSA 186-C:24.
(t) “Migratory child with disabilities” means a
“migratory child” as defined in 20 U.S.C. 6399(2) who has been identified as a
child with a disability.
(u) “Modification” means any change in
instruction or evaluation determined necessary by the IEP team that impacts the
rigor, validity or both, of the subject matter being
taught or assessed.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #12547, eff 6-14-18
Ed 1102.04 Definitions N-R.
(a)
“National Instructional
Materials Access Center (NIMAC) means the center established pursuant to 34 CFR
300.172.
(b)
“National
Instructional Materials Accessibility Standard” (NIMAS) means the standards
defined in 34 CFR 300.172.
(c) “Native
language” means “native language” as defined in 20 U.S.C. 7011(11).
(d) “New Hampshire Special Education Information
System” (NHSEIS) means a computer-based special education database and retrieval system that confidentially
maintains personally identifiable data used for program development,
monitoring, compliance, and reporting to the state board of education, the New
Hampshire legislative bodies, and the U.S. Department of Education.
(e) “Neutral conference” means “neutral
conference” as defined in RSA 186-C:23-b.
(f) “Nonacademic
services” means those services and activities set forth in 34 CFR 300.117.
(g) “Paraprofessional personnel” means personnel
who do not meet the requirements of 34 CFR 300.156, and who work only under the direct supervision of qualified
personnel.
(h) “Parent” means a biological or adoptive
parent, surrogate parent, or a guardian pursuant to 34 CFR 300.30. Parent
does not mean the state when the state has legal guardianship.
(i) “Personally
identifiable” means “personally identifiable” as defined in 34 CFR 300.32.
(j)
“Preschoolers” means children 3 years of age or older but less than 6 years of
age who have not been enrolled in public kindergarten.
(k)
“Private provider of special education” means a private or non-district
special education program that provides the educational component of a child’s
IEP and is subject to program approval under Ed 1114. Private provider of special education does
not mean a chartered public school or a public academy.
(l) “Private school” means any school that meets
the provisions of a non-public school as defined in Ed 401.01(c) and is not a
chartered public school.
(m) “Professional licensed to provide a health
evaluation” means anyone who, under their specific licensing, is qualified to
provide a health evaluation. This may
include, but is not limited to: a school nurse, a
registered nurse, physician, psychiatrist, and naturopathic doctors.
(n) “Public
academy” means a public academy as defined in RSA 194:23, II.
(o) “Public
agency” means “public agency” as defined in 34 CFR 300.33.
(p) Public expense means that the public agency either
pays for the full cost of the evaluation or ensures that the evaluation is
otherwise provided at no cost to the parent, consistent with 34 CFR 300.103.
(q) “Qualified examiner” means a person licensed
or certified in the state in which the evaluation is performed, who performs a
formal diagnostic assessment in the area
of disability in which the person is qualified to perform the assessment
as set forth Ed 1107.04, Qualified Examiners.
(r) “Receiving
district” means “receiving district” as defined in RSA 193:27,V.
(s) “Related
services” means “related services” as defined in 34CFR 300.34(a).
(t)
“Response to scientific, research-based intervention” (RTI) means the
process by which individual student instruction and student academic
performance is evaluated using research based models of instruction prior to
identifying a child with a learning disability as detailed in Ed 1107.02.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; amd by #13026, eff 4-10-20
Ed 1102.05 Definitions S-Z.
(a) “School day” means “school day” as defined in 34 CFR 300.11(c).
(b) “School district means “school district” as
defined in RSA 195-A:1.
(c)
“Sending district” means”
sending district” as defined in RSA 193:27, IV.
(d) “Special education” means “special education” as defined in 34 CFR 300.39.
(e)
“State education agency” (SEA) means the New Hampshire department of
education.
(f) “Services plan” means a written statement
developed and implemented in accordance with 34 CFR 300.137 through 34 CFR
300.139 that describes the special education and related services that the LEA
will provide to a parentally–placed child with a disability who is enrolled in
a private school and has been designated to receive services, including the
location of the services and any transportation necessary consistent with 34
CFR 300.132.
(g) “Special
factors” means the factors that the IEP team shall consider when the team
develops each child’s IEP, as provided in 34 CFR 300.324(a)(2) and in Ed 1100.
(h)
“Specialist in the assessment of intellectual functioning” (SAIF) means a
person certified to administer certain
individualized tests by the bureau of credentialing of the department in
accordance with Ed 500.
(i) “State advisory committee” means the advisory
committee appointed pursuant to RSA 186-C:3-b and 34 C.F.R. 300.167.
(j) “State institution” means the New Hampshire
hospital and the youth development center.
(k) “Student code of conduct” means a written
policy of expectations adopted by the LEA, SAU, or private provider of special education.
(l) “Supplementary aids and services” means
“supplementary aids and services” as defined in 34 CFR 300.42.
(m) “Surrogate
parent” means “surrogate parent” as defined in RSA 186-C:14,II(a), namely, “a
person appointed to act as a child’s advocate in place of the child’s natural
parents or guardian in the educational decision-making process” who is
appointed pursuant to Ed 1115.05.
(n) “Transition
services” means “transition services” as defined in 34 CFR 300.43.
(o)
“Universal design” means “universal design” as defined in 34 CFR 300.44.
(p)
“Written affirmation” means “written affirmation” as described in 34 CFR
300.135.
(q)
“Written prior notice” means “prior notice by the public agency” as
described in 34 CFR 300.503.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1103
PARTICIPANTS IN THE SPECIAL EDUCATION PROCESS
Ed 1103.01 IEP Team.
(a)
The composition of the IEP team, for the purposes of Ed 1103, shall be
as provided in 34 CFR 300.321 and Ed 1103.01(b) and (c).
(b)
A paraprofessional shall be considered an “other individual” who has
knowledge or special expertise regarding the child as referred to in 34 CFR
300.321(a)(6).
(c)
A representative of DCYF and an appointed Guardian ad Litem (GAL) shall
be considered “other individuals” who have knowledge or special expertise
regarding the child as referred to in 34 CFR 300.321(a)(6).
(d)
When any vocational, career or technical education components
are being considered, the IEP team membership shall include an individual
knowledgeable about the vocational education and/or career and technical
education programs being considered.
(e)
The LEA or parent shall notify the other party of the expected absence
of a team member at least 72 hours before a scheduled meeting or upon learning
of the expected absence of a team member, whichever occurs first.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed
1103.02 Parent Participation.
(a)
The LEA shall ensure that the parent or parents of the child with a
disability receive a written notice no fewer than 10 days before an IEP
meeting. If the parent(s) agrees in
writing, the LEA may satisfy this requirement via transmittal by electronic
mail. Such an agreement shall be
effective until revoked in writing. A
notice sent by first class or certified U.S. mail 12 days prior to the meeting
shall be deemed received 10 days before an IEP team meeting.
(b)
Provided that for a manifestation determination review under 34 CFR
300.530(e) the LEA shall ensure that the parent or parents receive a written
notice no fewer than 5 days before the review.
(c)
The notice shall include the purpose, time, location of the meeting and
the identification of the participants.
(d)
The notice requirements in Ed 1103.02(a) and (b) shall be waived with
the written consent of the parent.
(e)
Parent participation shall be in accordance with 34 CFR 300.322 and 34
CFR 300.501(b)-34 CFR 300.501(c).
(f)
The public agency shall take whatever action is necessary to ensure that
the parent(s) understands the proceedings at the IEP meeting consistent with 34
CFR 300.322(e).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1104 –
SPECIAL EDUCATION PROCESS SEQUENCE
Ed 1104.01 Sequence of Special Education Process. The sequence of the special education process
shall be:
(a)
Referral;
(b)
Evaluation;
(c)
Determination of eligibility;
(d)
Development and approval of the IEP;
(e)
Placement;
(f)
Ongoing monitoring of the IEP; and
(g)
Annual review of the IEP.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed
1105 CHILD FIND
Ed 1105.01 Responsibilities of
the Local Education Agency.
(a) The
LEA shall comply with 34 CFR 300.111(c), relative to child find
procedures.
(b) The
LEA shall have policies and procedures to ensure that any child who
is potentially a child with a disability attending school and for any child 2.5
years of age up to 22 years of age residing within its jurisdiction is referred
to the IEP team.
(c) The
child find system shall contain specific provisions to meet the particular circumstances pertinent to the following groups
of persons:
(1) For children from 2.5 years of age, the
LEA shall use the special education process described in Ed 1104, to find,
identify, and evaluate all children who are potentially children with
disabilities and who are suspected by the LEA of being in need of special
education or special education and related services, thereby ensuring that an
IEP will be developed and implemented for any child who is eligible for special
education by age 3; and
(2) The LEA, using the special education process, shall find, identify, and
evaluate all children suspected to be children with disabilities who are 2.5
years of age or older but less than 22 years of age.
(d) The
child find system shall include children who are placed unilaterally in
nonpublic schools within the geographic boundaries of the local school district
by their parents without involving the LEA.
(e) The
LEA shall provide the SEA, using NHSEIS, the following
information:
(1) Data concerning children suspected, evaluated, and determined eligible
for special education; and
(2) Data concerning children suspected, evaluated, and determined not
eligible for special education.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #13773, eff 10-12-23
Ed 1105.02 LEA Child
Find Program.
(a) The LEA
shall establish referral procedures which ensure that every child who is
suspected or known to be a child with a disability shall be referred to the IEP
team for further evaluation.
(b) Any
person may refer a child under the age of 22 years to the IEP
team for reasons including, but not limited, to the following:
(1) Failing to pass a hearing or vision screening;
(2) Unsatisfactory performance on group achievement tests or
accountability measures;
(3) Receiving multiple academic and behavioral warnings or academic or
behavior warnings or suspension or expulsion from a childcare or
after school program;
(4) Repeatedly failing one or more subjects;
(5) Inability to progress or participate in developmentally appropriate
preschool activities; and
(6) Receiving service from family centered
early support and services.
(c) The
LEA shall coordinate with area agencies and family centered early supports and
services to establish a process of LEA notification of children served by family
centered early supports and services consistent with the interagency agreement
between the LEA and area agencies providing family centered early supports and
services.
(d) The
LEA, annually, shall consult with representatives of nonpublic schools within
its jurisdiction and representatives of parents of parentally placed children with
disabilities attending private schools within its jurisdiction to advise them of the LEA’s responsibility
to identify and evaluate all children who are suspected of or known to be
children with a disability and who are enrolled in such schools. Schools
shall forward referrals to the IEP team for further review.
(e) The
LEA shall annually contact all community agencies and programs within its
jurisdiction which provide medical, mental health, early intervention, early
care and education, welfare, and other human services to advise them of the
LEA’s responsibility to find, identify, and evaluate all children who might be
children with disabilities, and referrals from these agencies shall be
forwarded to the IEP team for further evaluation.
(f) The
LEA, annually, shall disseminate information which describes
its child find program and shall include a description of the LEA’s special
education program, including a contact person in the school system for further
information or referral.
(g) The
LEA, annually, shall provide all parents of children with disabilities with
information regarding the parents’ rights and responsibilities under federal
and state law as provided in 34 CFR 300.504 regarding special education.
(h) The LEA shall ensure
that all referrals from parents and others who suspect or know a child to be a
child with a disability shall
be referred to the IEP team.
(i)
The LEA shall provide the parents with a written notice of any referral
other than one initiated by the parent, in accordance with Ed 1106.01(c).
(j) The LEA shall ensure that
child find activities are completed within the applicable timelines found in Ed
1105-Ed 1108.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #13773, eff 10-12-23
Ed 1105.03 Child Find
For Children Placed in Homes for Children, Health Care Facilities, or State
Institutions. In order to ensure that all relevant agencies and groups
within the boundaries of each local school district are aware of the LEA’s
child find efforts and of the process for referring a child who is or might be
involved with the court and for whom a special education program might be
appropriate, the LEA shall:
(a) Appoint
an LEA employee to direct the child find effort;
(b) Publicize the name of the employee’s functions, and the manner by which the employee might be contacted within
the LEA;
(c) Correspond
with, or contact at least once a year, agencies or groups within the area
served by the LEA which might have knowledge of children with disabilities who
are not being served, explaining the referral process and
requesting that they refer to the LEA children under the age of 22 who might
have educational disabilities; and
(d) Contact the following agencies:
(1) Local DCYF offices;
(2) Local public defenders;
(3) Local district courts;
(4) Local residential educational and treatment programs; and
(5) Social service agencies which provide
medical, mental health, welfare, and other human services.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #13773, eff 10-12-23
Ed
1105.04 Child Find for Children Currently
Receiving Family Centered Early Supports and Services.
(a) The LEA shall develop a written early
transition process for children exiting family centered early supports and
services which ensures that any child who is potentially a child with a
disability is evaluated and eligibility for special education is determined
prior to the child’s third birthday. If the child is determined to be a child
with a disability eligible for special education and related services, the LEA
shall ensure that an IEP is developed and implemented on or before the child's
third birthday.
(b) The transition process in Ed 1105.04(a) shall
include a written interagency agreement between the LEA and the local area
agencies, as defined by RSA 171-A:2,I-b responsible for the provision of family
centered early supports and services in that community.
(c) The agreement shall include, but not be
limited to, LEA and area agency policies, practices and procedures regarding:
(1)
Practices that will enable family centered early supports and services
and LEA personnel to collaborate effectively;
(2)
When and how data and information will be shared, including a statement
of confidentiality;
(3) A plan for maximum efficiency of
meetings, including consolidation of meetings when appropriate;
(4)
A process to ensure that the transition conference planning activities
and other meetings are scheduled at mutually agreeable times for families,
family centered early supports and services and LEA staff;
(5)
Transition activities that will be in place, such as home and program
visits, observations, and evaluations as needed;
(6)
LEA child find activities under Ed 1105,
including details about LEA and family centered early supports and services,
area agency responsibilities, timelines for notification to the LEA for child
find, and referral to the LEA for eligibility determination;
(7)
Coordination between LEA and family centered early supports and services
to conduct evaluations and assessments for determination of eligibility for
special education that includes how evaluations or assessments previously
administered to the child will be conducted and utilized;
(8)
Participation in transition meetings and who should participate in the
transition meeting, with the understanding that the special education process
team for referral, evaluation, IEP development, and placement are the same; and
(9)
Specific provisions that regardless of the child's date of birth in late
spring, summer, or early fall, an IEP will be developed and implemented on or
before the child's third birthday.
(d) The LEA shall participate in transition
planning conferences arranged by the local area agency responsible for family
centered early supports and services in that community.
(e) At the request of the parent, an invitation
to the initial IEP meeting shall be sent to the child's family centered early
supports and services service coordinator or other representatives of the
family centered early supports and services system to assist with the smooth
transition of services.
(f)
The LEA shall report in NHSEIS whether a child referred by family
centered early supports and services is a child determined to be a child with a
disability or if the child is found not eligible as a child with a disability.
Source. (see Revision Note at chapter heading for Ed
1100) #9197, eff 6-28-08; ss by #12141, eff 3-24-17
PART Ed 1106 REFERRAL AND
DISPOSITION OF REFERRAL
Ed 1106.01 Process;
Provision of FAPE. In order to provide
a FAPE for children 2.5 years of age to 22 years of age there shall be a
referral process in which:
(a) The
LEA shall comply with 34 CFR 300.124 when accepting referrals and transitioning
children from Part C of the IDEA to preschool programs;
(b) The
LEA shall establish a process for referral and evaluation which includes
individual participants responsible for decision-making
and implementation;
(c) The
LEA shall, upon receipt of a referral from any source, immediately notify the
parent, in writing, of the referral;
(d) The
IEP team shall, within 15 business days of the referral, determine whether the
concerns raised by the referral can be:
(1) Addressed
utilizing existing pupil support services available to all children;
(2) Whether additional information is required; and
(3) What evaluations, if any, are needed to address any remaining
concerns raised by the referral;
(e) The
IEP team shall, within 15 business days of the referral, give the parent
written notice of its disposition of the referral;
(f) The notice to parents shall conform to the
requirements of 34 CFR 300.503 through 300.504 and include a description of the
LEA’s special education procedures;
(g)
When additional testing has been determined to be necessary, the notice shall
also include a request for written consent to conduct any individual evaluations needed to
determine the child’s disabilities;
(h) The
parent may, if the child’s parent disagrees with the IEP team’s
disposition of the referral, request alternative dispute resolution as
described in Ed 1122 or a due process hearing as described in Ed 1123;
(i) The
LEA may take action consistent with 34 CFR 300.300 if
parental consent for evaluation is not granted, or if a parent fails to respond
to a request for evaluation;
(j) Written
parental consent shall be required for individual evaluations to further
diagnose the needs of a child already determined to be a child with a
disability; and
(k) The
provision of FAPE by the LEA shall comply with 34 CFR 300.101(a), through (c),
and 34 CFR 300.530(d).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #13773, eff 10-12-23
PART Ed
1107 EVALUATION
Ed 1107.01 Evaluation.
(a)
The LEA shall comply with 34 CFR 300.301 - 34 CFR 300.311 relative to
evaluations.
(b)
The LEA shall comply with 34 CFR 300.302-305 relative to evaluation
procedures and reevaluation. The child’s educational history shall be reviewed,
including identification of the child’s past opportunities to have acquired
important skills and information.
(c)
For initial evaluations, the
evaluation process, as defined in Ed 1102.02(n), shall be completed within 60
days after receipt of parental consent to evaluate.
(d) For reevaluations, the evaluation process as
defined in Ed 1102.02(n) shall be completed within 60 days after the receipt of
parental consent to evaluate, or at the conclusion of any extension provided in
Ed 1107.01(e).
(e) Upon written consent of the parties, the 60
day time limit required by Ed 1107.01(d) may be extended by a specific number
of days, not to exceed 30 days.
(f) For children served by family centered
early supports and services, the
evaluation process, including a written summary report, shall be completed prior to the child’s third birthday.
(g) If a referral is ordered by a court pursuant
to RSA 169-B:22, 169-C:20 or 169-D:18, upon the receipt of the order for
referral, the IEP team shall, within 15 business days of the referral,
determine whether the concerns raised by the referral can be addressed
utilizing existing pupil support services available to all children, whether
additional information is required, and what testing, if any, is needed to
address any remaining concerns raised by the referral about how the referral is
determined.
(h) All of the requirements for diagnostic
information specified in Ed 1107 shall apply to the selection, administration, and
interpretation of vocational assessments.
(i) The LEA
shall comply with 34 CFR 300.301 - 311 relative to determining the existence of
a disability.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1107.02 Evaluation Requirements for Children with
Specific Learning Disabilities.
(a)
For purposes of evaluating whether a child has a specific learning disability,
one or more of the following criteria shall be used:
(1) A discrepancy model between intellectual
skills and achievements;
(2) A process that determines if the child
responds to scientific, research-based intervention as part of the evaluation procedures described in 34
CFR 300.307(a)(2); and
(3) Other alternative research-based procedures
as described in 34 CFR 300.307(a)(3).
(b) Each LEA shall adopt a policy describing the
evaluation procedures and standards that will be used to evaluate whether a
child has a specific learning disability.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1107.03 Independent
Educational Evaluations.
(a)
The expense incurred in any LEA evaluation procedure recommended by the
IEP team shall not be the financial obligation
of the parent but shall be the responsibility of the LEA or other financial
resources such as, but not limited to, another public agency or Medicaid.
(b)
The LEA shall comply with 34 CFR 300.502, relative to independent
educational evaluation.
(c)
The agency criteria determined by the LEA, as described in 34 CFR
300.502(a)(2) and 300.502(e), to the extent that they exceed qualified examiner
criteria or establish geographic limitations, shall not be so restrictive that
the parent does not have a choice of independent evaluators.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1107.04 Qualified Examiners.
(a)
Formal diagnostic assessments shall be administered by qualified
examiners.
(b)
Qualified examiners for specific disabilities shall be as set forth in
Table 1100.1, “Required Assessments and Qualified Examiners by Type of
Disability” as follows:
Table 1100.1 Required Assessments and
Qualified Examiners by Type of Disability
Disability |
Assessments
Required |
Qualified
Examiners |
AUTISM |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Adaptive Behavior |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychiatrist Psychologist S.A.I.F.** School
Psychologist Licensed
Social Worker |
|
Communicative
Skills |
Speech-Language
Pathologist Speech-Language
Specialist |
|
Health |
Professional
Licensed to provide a Health Evaluation |
DEAF-BLINDNESS |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Hearing |
Audiologist Otolaryngologist Otologist |
|
Vision |
Ophthalmologist Optometrist |
DEAFNESS |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Hearing |
Audiologist Otolaryngologist Otologist |
DEVELOPMENTAL
DELAY – In order to
identify a child as educationally disabled as the result of a developmental
delay the IEP Team must determine the child is experiencing developmental delays
in one or more of the following areas:
physical development; cognitive development; communication
development; social or emotional development; or adaptive development. |
Varies
based on the suspected disability |
Varies
based on the suspected disability |
EMOTIONAL
DISTURBANCE |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Social/Emotional
Status |
Associate
School Psychologist Psychiatrist Psychologist School
Psychologist |
HEARING
IMPAIRMENT |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Hearing |
Audiologist Otolaryngologist Otologist |
INTELLECTUAL
DISABILITY |
Academic Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Adaptive
Behavior |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychiatrist Psychologist S.A.I.F.** School
Psychologist Licensed
Social Worker |
|
Intelligence |
Associate
School Psychologist Psychologist S.A.I.F.** School
Psychologist |
MULTIPLE
DISABILITIES – Requires at
least two concomitant disabilities which are evaluated and documented in the
student’s evaluation record. This primary disability refers to concomitant
impairments which cause severe educational problems |
Varies
based on the two or more disabilities suspected |
Varies
based on the assessment administered |
ORTHOPEDIC
IMPAIRMENT |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Health |
Professional
Licensed to provide a Health Evaluation |
|
Motor
Ability |
Licensed
Physician Neurologist Occupational
Therapist Physical
Therapist |
OTHER
HEALTH IMPAIRED |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School Psychologist |
|
Health |
Professional
Licensed to provide a Health Evaluation |
SPECIFIC
LEARNING DISABILITY |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Intelligence |
Associate
School Psychologist Psychologist S.A.I.F.** School
Psychologist |
|
Observation |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Hearing Or Hearing
Screening |
Audiologist Otolaryngologist Otologist School
Nurse |
|
Vision Or Vision
Screening |
Ophthalmologist Optometrist School
Nurse |
SPEECH-LANGUAGE
IMPAIRMENT |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Communicative
Skills |
Speech-Language
Pathologist Speech-Language
Specialist |
TRAUMATIC
BRAIN INJURY/ACQUIRED BRAIN INJURY |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Health |
Professional
Licensed to provide a Health Evaluation |
A minimum
of 2 of the following assessments must also be completed: Adaptive
Behavior Communicative
Skills Intelligence Social/Emotional
Status |
Adaptive
Behavior |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychiatrist Psychologist S.A.I.F.** School
Psychologist Licensed
Social Worker |
|
Communicative
Skills |
Speech-Language
Pathologist Speech-Language
Specialist |
|
Intelligence |
Associate
School Psychologist Psychologist S.A.I.F.** School
Psychologist |
|
Social/Emotional
Status |
Associate
School Psychologist Psychiatrist Psychologist School
Psychologist |
VISUAL
IMPAIRMENT/ BLINDNESS |
Academic
Performance |
Associate
School Psychologist Certified
Educator Guidance
Counselor Psychologist S.A.I.F.** School
Psychologist |
|
Vision |
Ophthalmologist Optometrist |
**S.A.I.F.,
Specialist in the Assessment of Intellectual Functioning
(c)
Qualified examiners shall administer and interpret test results and
provide written reports to the LEA.
(d) The LEA
shall provide parents with copies of each examiner’s evaluation and assessment
report(s) at least 5 days prior to the meeting of the IEP team at which the
evaluation and assessment report(s) will be discussed. The LEA shall provide the report(s) by
sending the report(s) to the parents via US mail unless the parents and the LEA
agree upon another method.
(e) The parent may waive, in writing, paragraph
d.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; amd
by #9812, eff 11-11-10; ss by #12141, eff 3-24-17
Ed 1107.05 Evaluation Report.
(a)
The IEP team determining the child’s disabilities shall develop a
written summary containing the results of the various diagnostic findings and
forward a copy of the report to the parent and a copy to the LEA for the
child’s records. The report shall be
written after the child’s initial evaluation and thereafter if the public
agency and the parent, consistent with 34 CFR 300.303, determine that a
reevaluation will be conducted.
(b)
The report shall include, but not be limited to:
(1) The results of each evaluation procedure,
test, record, or report;
(2) A written summary of the findings of the
procedure, test, record, or report; and
(3) Information regarding the parent’s rights of
appeal in accordance with Ed 1123 and a description of the parent’s right to an
independent evaluation in accordance with Ed 1107.03.
Source. (see Revision Note at chapter heading for Ed 1100)
#9197, eff 6-28-08; ss by #12141, eff 3-24-17
PART Ed 1108 DETERMINATION OF ELIGIBILITY FOR SPECIAL
EDUCATION
Ed
1108.01 Determination of Eligibility
for Special Education.
(a)
The LEA shall comply with 34 CFR 300.301-311 relative to determination
of eligibility.
(b)
For determination of eligibility, the composition of the IEP team
described in 34 CFR 300.306 shall be the IEP team.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1109
THE INDIVIDUALIZED EDUCATION PROGRAM
Ed 1109.01 Elements of an
Individualized Education Program.
(a) Each IEP shall include:
(1) The elements listed in 34 CFR 300.320;
(2) The length of the school year and the school day required to
implement the IEP;
(3) The types of service providers who would
be responsible for implementing the IEP or the names of those providers;
(4) A statement identifying the party or parties assuming the financial
responsibility for the implementation of the IEP;
(5) The signature of the parent or, where
appropriate, student, and representative of the LEA stating approval of the provisions in the IEP;
(6) Short-term objectives or benchmarks for
all children unless the parent determines them unnecessary for all or some of the child’s
annual goals;
(7) Short-term objectives or benchmarks for
all children who take alternate assessment based on alternate achievement standards;
(8) A statement of how the child’s progress
toward meeting the annual goals shall be provided to the parents;
(9) A statement of how the child’s progress toward meeting the annual goals
will be measured and whether progress is sufficient to achieve the annual goals
by the end of the school year;
(10) A statement of transition services that
meets the requirements of 34 CFR 300.43 and 34 CFR 300.320(b), with the
exception that a plan for each student with a disability beginning
at age 14 or younger, if determined appropriate by the IEP team,
shall include a statement of the transition service needs
of the student under the applicable components of the student’s IEP that
focuses on the student’s courses of study such as participation in
advanced-placement courses, vocational education, or career and technical
education; and
(11) A statement that
meets the requirements of RSA 186-C:8-a, establishing:
a. The IEP team has discussed the
provisions of the statute; and
b. If necessary, the IEP team has determined
accommodations are needed relative to voter registration and have added these
to the IEP.
(b) All
of the requirements for the IEP specified in (a) above shall apply to the
development, approval, and implementation of any vocational, career, or
technical education component.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #13773, eff 10-12-23
Ed 1109.02 Transportation.
(a) All vehicles used to transport children with disabilities
provided by, or on behalf of a school district, shall be maintained in safe
working order and be inspected and licensed according to the New Hampshire
department of safety rules as provided in Saf-C 1307
and RSA 266:7.
(b) All drivers of such vehicles shall be
licensed according to Saf-C 1304.
(c) Parents of a child with a disability shall
not be required to meet the standards of Ed. 1109.02 (a) – (b) when providing
transportation to their own child.
(d) Any contracted providers of transportation
for children with disabilities, including parents transporting children other
than their own, shall comply with the standards of Ed.1109.02 (a) – (b).
(e
) Each person who transports children
other than their own in a private
passenger vehicle to or from school or a school related activity shall not be
required to obtain a school bus driver's certificate pursuant to RSA 263:29 and
these rules, as long as he or she is not under contract or reimbursement
agreement with a municipality.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1109.03 When an IEP Is in Effect; IEP Meetings; Development,
Review, and Revision of an IEP; Transition Services.
(a)
The LEA shall provide special education, related services, supplementary
aids and services, accommodations, and modifications to a child with a
disability in accordance with the child’s IEP.
IEPs shall be in effect in accordance with 34 CFR 300.323.
(b) In the case of a child with a disability aged
3 through 5 or a two-year-old child with a disability who will turn age 3
during the school year when the LEA offers special education services to
children with disabilities prior to age 3, the IEP team shall consider the
contents of an IFSP in accordance with 34 CFR 300.323(b).
(c)
For children whose unique educational needs require IEPs which exceed
the standard school year, the requirements of Ed 1110.01 shall be followed.
(d)
The IEP shall be reviewed at least annually and, if necessary,
revised. The IEP shall comply with 34
CFR 300.323, specifying when IEPs shall be in effect, including an IEP or IFSP
for children with disabilities ages 3 through 5 or for a 2- year-old child with
a disability who will turn 3 years of age during the school year.
(e)
The IEP team shall determine the appropriate length of an IEP, which
shall not exceed 12 months without review and approval by the IEP team.
(f)
The child’s educational history shall be reviewed, including
identification of the child’s past opportunities to have acquired important
skills and information.
(g) IEP meetings shall be conducted in accordance
with 34 CFR 300.324(b).
(h)
Development, review, and revision of an IEP shall be in accordance with
34 CFR 300.324 and, when appropriate,
for children with disabilities who are functionally blind, in accordance
with RSA 186-C:7-b.
(i) Transition services may be provided by a participating
agency other than the LEA consistent with 34 CFR 300.324(c) to ensure there is
no interruption in the services detailed in the child's IEP.
(j)
Transition services, other than those provided by a NH Department of
Education approved special education program which the child attends, shall be
monitored by LEA personnel, on no less than a weekly basis.
(k)
LEAs shall comply with RSA 186-C:9 relative to required special
education.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1109.04 Copies of the IEP and Evidence of
Implementation.
(a)
The LEA shall provide each teacher and service provider listed as having
responsibilities for implementing the IEP with a copy of the complete IEP for
working and monitoring purposes. In addition, the LEA shall provide a private
school or non-LEA provider responsible for implementing the IEP with a copy of
the IEP on or before the first day of the placement.
(b)
The LEA shall maintain written evidence documenting implementation of
the IEP, including:
(1) Special education and related services
provided;
(2) Supplementary aids and services provided;
(3) Programs modifications made; and
(4) Supports provided for school personnel
implementing the IEP.
(c) A summary of the child’s academic
achievement and functional performance, including recommendations on how to
meet post-secondary goals, shall be provided to the child prior to the child’s
eligibility termination described in 34 CFR 300.305(e)(2).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1109.05 IEPs for Children Placed in Private Providers
of Special Education or other non-LEA Programs by Public Agencies. The LEA, as the responsible public agency,
shall comply with 34 CFR 300.325 relating to private providers of special
education placements by public agencies.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1109.06 Monitoring and Annual Review of IEPs.
(a)
The LEA shall develop and implement procedures designed to monitor that
all IEPs are implemented. The IEP team
may be reconvened at any time to review the provisions of the IEP.
(b) The LEA, upon a written request for an IEP
team meeting by the parent, guardian, or
adult student shall:
(1)
Schedule a mutually agreeable time and date for an IEP team meeting;
(2)
Convene the IEP team on the
mutually agreeable time and date; or
(3)
Provide the parent, guardian, or adult student with written
prior notice detailing why the LEA refuses to convene the IEP team that the
parent, guardian, or adult student has requested.
(c)
All activities detailed in Ed 1109.06(b) shall be completed within 21
days following the receipt of the written request for the IEP
team meeting.
(d)
The LEA, annually, shall conduct at or near the end of the term of each
IEP, a meeting for the purpose of assessing the
effectiveness of the present plan and to design an IEP, including extended
school year services when appropriate.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1110
EXTENDED SCHOOL YEAR SERVICES
Ed 1110.01 Extended School Year Services.
(a)
In the provision of extended school year services, the LEA shall comply
with 34 CFR 300.106.
(b)
The LEA shall provide extended school year services at times during the year
when school is not in session, if determined by the IEP team to be necessary
for the provision of FAPE. Extended school year services shall not be limited
to the summer months or to predetermined program design.
(c)
ESY services, other than those provided by a NH Department of Education
approved special education program which the child attends, shall be monitored
by LEA personnel on no less than a weekly basis.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed
1111 PLACEMENT OF CHILDREN WITH
DISABILITIES
Ed 1111.01 Placement in the Least Restrictive
Environment.
(a)
Each LEA shall ensure that, to the maximum extent appropriate, children
with disabilities, including children in public or private providers of special
education, are educated with children who do not have disabilities and that,
consistent with 34 CFR 300.114, special classes, separate schooling, or other
removal of children with disabilities from the regular educational environment
occurs only when 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.
(b)
A child with
a disability shall be admitted to regional vocational, career or technical
education center programs on the basis of vocational needs as outlined in the
child’s IEP and availability of space. However, the LEA shall ensure that any
child who requires vocational education and/or career and technology education
as part of FAPE shall receive such services as determined by the IEP team in
the least restrictive environment.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1111.02 Continuum of Alternative
Educational Environments.
(a) The
LEA shall comply with the requirements of 34 CFR 300.115, relative to continuum
of alternative educational environments as set forth in table 1100.2 and table
1100.3.
(b) School
districts shall, at a minimum, give evidence that the continuum of alternative
educational environments from least restrictive to most restrictive set forth in table
1100.2, “Continuum of Alternative Educational Environments for Children Ages
3-5.” and as set forth in table 1100.2, “Continuum of Alternative Educational
Environments for Children Ages 6-22” and as set forth in table
1100.4, “Continuum of Alternative Educational Environments –Ages 6-22” is
available or would be made available as placements for children with
disabilities, including children of preschool age.
Source. (see Revision Note at chapter heading for Ed 1100)
#9197, eff 6-28-08; ss by #12141, eff 3-24-17; ss by #13773, eff 10-12-23
Ed 1111.03 Placement Decisions.
(a) The
IEP team shall make placement decisions in accordance with 34 CFR 300.116.
(b) Preschool
children with disabilities shall be educated in an educational environment
that is appropriate to implement the IEP or IFSP and is the least restrictive
environment consistent with 34 CFR 300.116 placements.
(c) Preschool
children with disabilities may receive their special education program in any
of the environments listed in Table 1100.2 as follows:
Table
1100.2 Continuum of Alternative Educational Environments—Ages 3-5
Preschool
Educational Environments |
Description |
Early childhood
program |
A preschool child with a disability attends an early
childhood program that includes at least 50% nondisabled children. |
Home |
A preschool
child with a disability receives some or all of his or her supports and
services in the child’s home. |
Early childhood
special education program |
A preschool
child with a disability attends an early childhood special education program
which can include any of the classrooms described in Ed 1113.10(c)(5). |
Service provider
location |
A preschool
child with a disability receives supports and services from a service
provider. |
Separate school |
A preschool child with a disability attends a publicly
or privately operated separate day school facility designed specifically for
children with disabilities. |
Residential
facility |
A preschool
child with a disability attends a publicly or privately operated residential
school or residential medical facility on an inpatient basis. |
(d) Children ages 6-22 may receive their special education
program at any of the environments listed in Table 1100.3 as follows:
Table
1100.3 Continuum of Alternative Educational Environments—Ages 6-22
Educational Environments |
Description |
Regular
Education Setting |
A child
with a disability attends regular class with supports and services required
in the IEP. |
Resource
room |
A child
with a disability attends a regular class and receives assistance at or
through the special education resource room for no more than 60% of the
child’s school day. |
Self-contained
Special Education Class |
A child
with a disability attends a self-contained special class for more than 60% of
their school day. |
Separate
Approved Special Education Program or School |
A child
with a disability attends a publicly or privately
operated special education program or school. |
Residential placement |
A child
with a disability attends a publicly or privately operated residential
program. |
Home
Instruction |
A child
with a disability receives all or a portion of his or her special education
program at home. |
Hospital
or institution |
A child
with a disability receives special education while in a hospital or
institution. |
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17 (from Ed 111.02); ss by #13773, eff 10-12-23
Ed 1111.04 Home Instruction for School-Aged
Children with Disabilities.
(a) Home instruction shall be
an alternative placement for children at least 6 years of age but less than 22
years of age in accordance with CFR
300.115.
(b) This section shall not apply
to children with disabilities who have been removed from school for violations
of a code of student conduct or
removals to an interim alternative educational setting as authorized in 34 CFR
300.530(b) through (d) and 300.532(b). Such children shall receive
services consistent with Ed 1124, provided that such services, if provided at
the child’s home, shall consist of:
(1) A minimum of 10 hours/week of instruction,
including special education as specified in the child’s IEP; and
(2) Related services as specified in the child’s
IEP.
(c) Home instruction for
children at least 6 years of age but less than 22 years of age shall not
include parent-designed home
instruction programs as authorized in Ed 315.
(d) Pursuant to CFR 300.116, a child’s placement shall be determined
at least annually and shall be based on the child’s IEP.
(e) Children who are placed in home instruction shall be allowed to
participate with nondisabled children to the maximum extent appropriate to the
needs of the child, as required by 34 CFR 300.114(a)(2)(i).
(f) Length of the school year and school day for a home instruction
placement shall be consistent with RSA 186-C: 15 except as follows:
(1) When the superintendent
has excused a student from full-time attendance in accordance with RSA 193:1, I
(c) or RSA 193:5, in which case the superintendent and parent shall agree on
the number of hours per week of instruction, including special education and
related services that the student shall receive; or
(2) For
children with disabilities ages 18-22,
the procedures in (1) above shall apply as if the child with a disability were
under 18 years of age.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17 (from Ed 1111.05); ss by #13773, eff 10-12-23
PART Ed
1112 PARENTALLY PLACED CHILDREN WITH
DISABILITIES
Ed 1112.01
Parentally Placed Children With Disabilities When FAPE Is Not At
Issue. The provisions of 34 CFR
300.130 through 34 CFR 300.144 shall govern the provision of special education
and related services to children
with disabilities who are not covered by Ed 1112.02 or Ed 1112.03.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1112.02 Children With Disabilities Enrolled by
Their Parents in Private Schools When FAPE is at Issue. When a child with a disability is placed by
his or her parents in a private school because the parents believe the LEA has
not provided FAPE, the provision of and reimbursement for education, including
special education and related services, for children with disabilities enrolled
by their parents in a private school shall be governed by 34 CFR 300.148.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1112.03 Children with Disabilities Receiving Home
Education. Children with
disabilities who are receiving home education under RSA 193-A shall not be
considered to be children attending a private school.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1113 REQUIREMENTS FOR THE
DEVELOPMENT AND OPERATION OF PROGRAMS FOR CHILDREN WITH DISABILITIES
ADMINISTERED BY LOCAL EDUCATION AGENCIES
Ed 1113.01 Applicability. Ed 1113 shall apply to all public
schools and public academies.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1113.02 Required IEP Compliance; Programming in
Appropriate Learning Environments.
(a)
An IEP shall comply with 34 CFR 300.320, 324(c), and 325.
(b)
When children with disabilities participate in regular education classes
or programs, the integrity and appropriateness of the curricula of the classes
or programs shall be maintained for both the children with disabilities and the
children who do not have disabilities.
(c)
Each LEA shall provide for a continuum of alternative placements for
each child with a disability as required in 34 CFR 300.115. In addition, each
IEP shall describe the extent to which each child with a disability shall be
involved in and progress in the general curriculum and regular class placement
as required in 34 CFR 300.320.
(d)
If required by the child’s IEP, each LEA shall provide related services
as defined in Ed 1102.04(q) to the child or the child’s teacher, or to both the
child and the child’s teacher.
(e)
If required by the child’s IEP, each LEA shall provide for supplementary
aids and services as defined in 34 CFR 300.42.
(f)
Each public agency shall comply with 34 CFR 300.107-300.108, 34 CFR
300.110, and 34 CFR 300.320(a)(4), and 34 CFR 300.117 relative to making
program options, nonacademic services, and physical education available to
children with disabilities.
(g)
If required by the child’s IEP, each LEA shall provide the supports for
school personnel as required by 34 CFR 300.320(a)(4).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1113.03 Establishment of Education Programs for
Children with Disabilities.
(a) A program for preschool children
with disabilities may be home-based, school-based, or a combination of
both. The preschool program shall
consist of special education or special education and related services, the
specific manner and duration of which shall be provided according to the
preschool child’s IEP.
(b)
An LEA shall:
(1) Establish an approved program or programs for
children with disabilities;
(2) Enter into cooperative agreements with other LEAs
to provide approved programs for children with disabilities; or
(3) Pay tuition
to such an approved program maintained by another LEA or by a private
organization, as required by RSA 186-C:10.
(c)
Each program maintained by, or contracted through, a public agency shall
provide that children with disabilities are educated with nondisabled children
in accordance with the requirements of 34 CFR 300.114.
(d)
A program for children with disabilities shall provide those components
of the child’s approved IEP as required in 34 CFR 300.320.
(e)
Instruction shall be provided to implement the IEP of a child with a
disability who is in a hospital or institution for medical treatment. In such cases, the LEA shall not be required
to pay for medical services except to the extent that medical services are
included in the definition of related services in Ed 1102.04(q).
(f)
The LEA shall designate the individuals responsible for supervision of
children with disabilities. Personnel responsible for these activities shall
include the superintendent of schools or the superintendent’s representative,
the building principal, and special supervisors.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1113.04 Behavioral Interventions.
(a)
Positive behavioral interventions based on the results of a behavioral
assessment shall serve as the foundation of any program used to address the
behavioral needs of students.
(b)
An LEA, other public agency, private provider of special education or
other non-LEA program shall not employ any of the following aversive behavioral
interventions:
(1) Any procedure intended to cause physical
pain;
(2) Aversive mists, noxious odors, and unpleasant tastes
applied by spray or other means to cause an aversive physical sensation;
(3) Any non-medical mechanical restraint that physically
restricts a student’s movement;
(4) Contingent food or drink programs;
(5) Electrical stimulation;
(6) Placement of a child in an unsupervised or unobserved room
from which the child cannot exit without assistance; and
(7) Physical restraint, unless in response to a
threat of imminent, serious, physical harm pursuant to RSA 126-U.
Source. (see Revision Note at chapter heading for Ed
1100) #9197, eff 6-28-08; ss by #10590, eff 5-15-14; ss by #12141, eff 3-24-17
Ed 1113.05 Emergency Intervention Procedures. All crisis or emergency intervention procedures shall be
included in the student’s IEP and shall comply with Ed 1113.04 and RSA 126-U:5
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #10590, eff
5-15-14; ss by #12141, eff 3-24-17
Ed 1113.06
RESERVED
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; rpld
by #10590, eff 5-15-14
Ed 1113.07 Prohibition on Mandatory Medication. As provided in 34 CFR 300.174, an LEA, other public
agency, private provider of special education or other non-LEA program shall
not require parents to
obtain a
prescription for substances identified under schedules I, II, III, IV, or V in
section 202(c) of the Controlled Substance Act, 21 U.S.C. 812(c), for a child
as a condition of attending school, receiving an evaluation, or receiving
services.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1113.08 Curricula.
(a)
The LEA shall ensure that every preschool child with a disability has
full access to appropriate preschool activities, in compliance with 34 CFR
300.320(a)(1)(ii).
(b)
The LEA shall ensure that every child with a disability has full access
to the LEA’s general curriculum, in compliance with 34 CFR 300.320(a)(4).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1113.09 Equipment, Materials and Assistive
Technology.
(a)
Each LEA shall provide in an appropriate and timely manner,
instructional equipment and materials adequate to implement the IEP for each
child with a disability, as required by 34 CFR 300.105.
(b)
Each LEA shall monitor the proper functioning of hearing aids, as
required by 34 CFR 300.105, low vision aids, and other orthotic and prosthetic
devices and assistive technology services and devices defined in 34 CFR 300.5–300.6 used by children with
disabilities in school. Each LEA shall also provide for the necessary repairs
for hearing aids, low vision aids, and other orthotic and prosthetic devices
and adaptive equipment.
(c)
Each LEA shall ensure that assistive technology devices or assistive
technology services, or both, are made available to a child with a disability
if required as part of the child’s special education, related services or
supplementary aids and services stated in the child’s IEP and as required in 34
CFR 300.105.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1113.10 Class Size and Age Range.
(a) The following shall apply to the early
childhood program for children with disabilities ages 3 through 5:
(1)
A preschool child may receive some or all special education and related
services in a regular early childhood program as determined by the IEP team;
and
(2)
Qualified personnel shall provide services as identified in the IEP or
IFSP.
(b) The following shall apply to the home program
for children with disabilities ages 3 through 5:
(1)
A preschool child may receive some or all special education and related services
in the child’s home, as determined by the IEP team; and
(2)
Qualified personnel, as identified in the IEP or IFSP, shall provide
services in the home.
(c) The following shall apply to early childhood
special education programs which are made up of early childhood special
education classes:
(1)
An early childhood special education class shall be considered a special
education class when it includes less than 50% children without disabilities;
(2)
In an early childhood special education program there may be more than
one early childhood special education class;
(3)
The LEA shall ensure the individual needs of the children with
disabilities can be met when determining the number of children to be enrolled
and staffing in the early childhood special education class;
(4)
Preschool children with disabilities will be placed in an early
childhood special education program consistent with Ed 1111.01(a) and CFR
300.114;
(5)
Preschool children in an early childhood special education class shall
be between the ages of 3 and 5 years of age, a 2 year old who turns 3 during
the school year, or a 5 year old who turns 6 after September 30 of the school
year;
(6)
The minimum teacher to student ratio in all early childhood special
education classes
shall be:
a.
One qualified teacher for one to 8 preschool students;
b.
One qualified teacher and one qualified paraprofessional for 8-12
preschool students unless the needs presented by the severity of the
disabilities warrants the assignment of additional staff; or
c.
Two qualified teachers for 8-12 preschool students;
(7) The maximum number of preschool
children in an early childhood special education class shall be 12; and
(8)
Regardless of the specific teacher-student
ratio, each program shall provide personnel who are endorsed in the area of
disability consistent with the student population of the program.
(d)
The following shall apply to a self-contained special education class
grades K - 12:
(1) A special education
class shall be considered self-contained when children with disabilities spend
more than 60 percent of their day in that setting;
(2) A minimum teacher to
student ratio in all self-contained programs shall be:
a.
One qualified teacher for one to 8 students;
b.
One qualified teacher and one qualified paraprofessional for 8 to 12
students unless the needs presented by the severity of disabilities warrants
the assignment of additional staff; or
c.
Two qualified teachers for 8 to 12 students;
(3) The maximum number of
children in a self-contained classroom shall be 12;
(4) Children ages 6 –16 in self-contained special
education classes shall have an age range of not more than 4 years;
(5) Self-contained
programs shall, to the greatest extent possible, include students of comparable
developmental and functional levels;
(6) Regardless of the specific teacher-student ratio, each
program shall provide personnel who are endorsed in the area of disability consistent with the student population of the
program;
(7) Children in
self-contained special education classes on the elementary level shall have an
age range of not more than 4 years; and
(8) On the junior and senior high school levels,
children in self-contained classes shall have an age range of not more than 4
years and an academic range of not more than 5 years.
(e)
The following shall apply to resource rooms:
(1) Resource rooms shall serve
children with disabilities for no more than 60 percent of the child’s school
day as an adjunct to assignment to regular educational programs;
(2) Children with
disabilities shall not receive all of their academic instruction in resource
rooms;
(3) The total number of
children with disabilities being served in the resource room at any given time
shall not exceed 12 children without the assistance of support personnel;
(4) The maximum number of
children with disabilities served in a resource room at any given time shall be
20; and
(5) The LEA shall ensure that the abilities of
the resource room teacher match the needs of the children with disabilities and
that the resource room teacher is capable of implementing the IEPs of all the
children with disabilities assigned to the resource room.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1113.11 Facilities and Location.
(a)
Classrooms and other instructional areas for children with disabilities
shall be located in a building with children of similar chronological age.
(b)
Physical space for classrooms and other instructional program areas for
children with disabilities shall meet the state requirements in Ed 321.10 and
Ed 321.11 for physical space for classrooms and other instructional programs
for other children enrolled at the school.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1113.12 Personnel Standards.
(a)
Personnel providing services to children with disabilities in public
elementary and secondary schools shall be appropriately and adequately trained
as required by 34 CFR 300.156.
(b)
Paraprofessional personnel providing services to children with
disabilities shall:
(1) Work under the supervision of a certified
special education teacher;
(2) Be supervised and observed by a certified
special education teacher under whom they work as often as deemed necessary by
the LEA, but no less than once each week;
(3) Implement a plan designed by the certified
educator;
(4) Monitor the behavior of children with whom
they are working; and
(5) Assist in the provision of special education
and related services.
(c)
Paraprofessional personnel providing services to children with
disabilities shall not:
(1) Design programs;
(2) Evaluate the effectiveness of programs;
(3) Assume responsibilities of a teacher or a
substitute teacher; or
(4) Instruct a child with a disability.
Source. (see Revision Note at chapter heading for Ed 1100)
#9197, eff 6-28-08; ss by #12141, eff 3-24-17; ss by #12547, eff 6-14-18
Ed 1113.13 Diplomas.
(a) LEAs
shall provide all children with disabilities an equal opportunity to complete a
course of studies leading to a regular high school diploma, and in accordance
with 34 CFR 300.102(a)(3), the awarding of a document other than
a regular high school diploma shall not terminate the child’s eligibility for
FAPE.
(b) Children
with disabilities shall be entitled to continue in an approved program until
such time as the child has acquired a regular high school diploma or has
attained the age of 22, whichever occurs first, or until the IEP team
responsible for evaluating the child and determining whether the child has a
disability determines that the child no longer has a disability in accordance
with Ed 1107.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #13773, eff 10-12-23
Ed 1113.14 The Length
of the School Year.
(a) The length of the
school year for preschool children with disabilities shall be determined by the
IEP team and included in the IEP or IFSP as required by Ed 1109.01(a).
(b) The LEA shall provide a
standard school year for children ages 6 – 22 as required by RSA 186-C:15, I,
RSA 189:1, RSA 189:24, and Ed
306.18-Ed 306.21.
(c) Children with disabilities
ages 3 - 22 in need of extended school year services shall receive extended
school year services in accordance
with Ed 1110.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #13773, eff 10-12-23
Ed 1113.15 The Length of the School Day.
(a)
The length of the school day for preschool children with disabilities shall
be determined by the IEP team and shall be included in the IEP or IFSP as
required by Ed 1109.01(a).
Source. (see Revision Note at chapter heading for Ed
1100) #9197, eff 6-28-08; ss by #12141, eff 3-24-17
PART Ed 1114 STANDARDS FOR
APPROVAL OF PRIVATE PROVIDERS OF SPECIAL EDUCATION AND NON-LEA PROGRAMS
Ed 1114.01 Applicability. Ed 1114 shall apply to private providers of special
education and other non-LEA operated programs, including state-operated
programs.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.02 Definition. As used in Ed 1114, “governing body” means
the individual or group of individuals legally responsible for the policies,
operations, and activities of a private provider of special education or other
non-LEA program.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.03 Governance.
(a)
A private provider of special education or other non-LEA program shall
be responsible for providing students with disabilities all services detailed
in their IEPs unless the provision of those services has been agreed upon by
contract with the sending LEA.
(b)
A private provider of special education or other non-LEA program shall have
a clearly identifiable governing body which shall be responsible for ensuring
the program’s compliance with the program charter, constitution, or other
organization document or agreement and with the terms of all leases, contracts,
or legal agreements to which the program is a party.
(c)
The governing body shall ensure that the program is in compliance with
all federal, state, and local laws concerning the education of children with
disabilities including the IDEA and RSA 186-C.
(d)
The governing body shall appoint a person to act as chief administrator
with authority to manage the affairs of the program.
(e)
The governing body shall ensure that there are sufficient funds to
operate the program and that the school finances are handled according to
generally accepted accounting principles.
The governing body shall review and approve the annual budget and budget
audit of the program.
(f)
A private provider of special education or other non-LEA program shall
keep on permanent file documents clearly identifying the program’s ownership
and the legal basis for the program’s operation.
(g)
A private provider of special education or other non-LEA program shall
keep on permanent file a current list of the names and addresses of all members
of the program’s board of directors. The
list shall identify the officers of the board and the terms of office of such
officers.
(h)
A private provider of special education or other non-LEA program shall
have written minutes of all meetings of the governing body.
(i)
A private provider of special education or other non-LEA program shall
file with the department documents which fully identify its ownership. A corporation, partnership, or association
shall file its charter, partnership agreement, constitution, articles of
association, or by-laws.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.04 Administration.
(a)
Each private provider of special education or other non-LEA program
shall demonstrate fiscal accountability through regular recording of its
finances and an annual external audit consistent with the requirements detailed
in Ed 1129. The audit shall be available to the department upon request. The
audit standards detailed in Ed 1129 shall apply to both non-profit and for
profit programs.
(b)
Each private provider of special education or other non-LEA program
shall have written policies which comply with the provisions of the IDEA and
RSA 186-C.
(c)
Each private provider of special education or other non-LEA program
shall have written policies and procedures for the protection of confidential
information, in accordance with Ed 1119 including:
(1) The release of information to other persons
and agencies; and
(2) Written procedures and schedules for
destruction of outdated files and records.
(d)
Each private provider of special education or other non-LEA program
shall maintain the confidentiality of records in compliance with 34 CFR
300.623.
(e)
Each private provider of special education or other non-LEA program
shall have a written statement specifying its philosophy, purposes, and program
orientation and describing both short and long-term aims. The statement shall identify the types of
services provided and the characteristics of the children to be served by the
program. The statement of purpose shall
be available to the public on request.
(f)
A private provider of special education or other non-LEA program shall
maintain on permanent file a written description of the admission process,
including a description of all admissions criteria and identification of the
disabilities of the children served by the program.
(g)
A private provider of special education or other non-LEA program shall
maintain on permanent file a written plan for professional development of all
staff involved in providing direct services to students, in accordance with Ed
500 certification standards for educational personnel in New Hampshire.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.05 Program Requirements.
(a)
Each private provider of special education or other non-LEA program
shall have a written description of admissions policies and criteria which it shall
provide to all placing agencies and shall make available to the parent of any
child referred for placement.
(b)
The written admission policies and criteria required in Ed 1114.05(a)
shall include:
(1) Policies and procedures related to intake;
(2) The age and sex of children in care;
(3) The needs, problems, situations, or patterns
best addressed by the program;
(4) Any other criteria for admission;
(5) Criteria for discharge;
(6) Any preplacement requirements for the child,
the parent, and the placing agency; and
(7) Accessibility to educational materials.
(c)
Prior to enrollment, the sending LEA shall send a copy of the child’s
IEP that meets all the requirements of Ed 1109 to each private provider of
special education or other non-LEA program.
(d) A private provider of special education shall
cooperate with the LEA by making staff available to participate in IEP meetings
at mutually agreeable times and places.
(e)
The private provider of special education or other non-LEA program shall
not unilaterally modify a child’s IEP.
(f)
The private provider of special education or other non-LEA program shall
not accept any students with disabilities for which the program is not
approved.
(g)
In each private provider of special education or other non-LEA program,
all children with disabilities shall have access to equal educational
opportunities within their programs and access to and ability to progress in
the general curriculum as required under 34 CFR 300.320.
(h)
A private provider of special education or other non-LEA program shall
have an established system of routine communication among all staff members of
the program who provide direct services to a child, including both
instructional and residential services.
All staff members involved in providing direct services to a child with
a disability shall participate in the process of planning for that child and
shall know the contents of that child’s IEP and all other reports and
evaluations, as appropriate to their role and responsibilities.
(i)
A private provider of special education or other non-LEA program shall
identify and utilize available resources, both on campus and in the community,
which provide opportunities for experiences in the least restrictive
environment.
(j)
All administrative, instructional, and related service staff shall hold
appropriate certification or licensure for the position in which they function
as required by the state of New Hampshire, and other licensing entities. The determination of credentials required
shall be made by the department.
(k)
Students enrolled in private providers of special education shall
participate in the statewide education improvement and assessment program as
provided in RSA 193-C and as required by 34 CFR 300.157 and 300.320.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.06 Responsibilities of Private Providers of
Special Education or Other Non-LEA Programs in the Implementation of IEPs.
(a)
Each private provider of special education or other non-LEA program
shall, in all matters concerning possible changes and/or modifications in the
identification, evaluation, development and/or revision of an IEP, or changes
in placement of a child with a disability, contact the sending school district
for the purpose of initiating the process for changing any of the above in
compliance with Ed 1109.05.
(b) The private provider of special education or
other non-LEA program shall provide all facilities, equipment, and materials
necessary for the implementation of any IEP or portion thereof which the
program has agreed to implement. The
private provider of special education or other non-LEA program shall implement
all components of each child’s IEP in the amount and for the duration so
specified.
(c) Each private facility or other non-district
program shall provide all transportation required for the implementation of any
IEP, or portion of any IEP, which the program has agreed to implement.
(d) The private facility or other non-district
program shall provide transportation in accordance with Ed. 1109.02.
(e) All vehicles providing transportation for
students shall be insured as provided in Ed 1114.19(c)(2) and 1129.08 (ak).
(f)
Daily lesson plans shall be clear, concise, and reflective of the IEP
goals for each child. They shall reflect
any staff input and related reports and evaluations provided by the agencies
responsible for the student’s education and welfare.
(g)
A mid-year review and annual evaluation of each child’s progress
relative to the written IEP shall be conducted by the sending LEA and the
private provider of special education or other non-LEA program.
(h)
If a private provider of special education or other non-LEA program
determines that any child with a disability placed at the facility or program
is not making progress toward meeting his or her IEP goals at the rate
anticipated, the facility or program shall immediately contact the LEA for the
purpose of reviewing the IEP and considering modifications.
(i)
Each private provider of special education or other non-LEA program
shall complete a minimum of 3 comprehensive reports per year on each child with
a disability enrolled in the program.
(j)
The reports required in Ed 1114.06 (i) shall:
(1) Describe the child’s progress toward meeting
the IEP goals;
(2) Include a record of attendance;
(3) Be written in terminology understandable to
the parent; and
(4) Be provided to the sending LEA and the parent
of the child.
(k)
Reports provided to parents shall be in the native language or other
mode of communication used by the parent.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.07 Behavioral Interventions.
(a)
Positive behavioral interventions based on the results of a behavioral
assessment shall serve as the foundation of any program used to address the
behavioral needs of students.
(b) Each private facility or other non-district
program shall have a written statement of the policies and procedures followed
by the program in managing student behavior.
This statement shall be provided to the sending LEA and the parent at
the time each child with a disability becomes enrolled in the program, at the
time of the annual review of the child's educational progress, and any time the
facility or non-district program's policies and procedures for managing
behavior are revised.
(c) A private facility or other non-district
program shall not employ any measure which is aversive in nature or which subjects a child with a
disability enrolled in that program to humiliation or unsupervised confinement
or to abuse or neglect as defined in RSA 169-C, the Child Protection Act, or
which deprives the child of basic necessities such as nutrition, clothing,
communication, or contact with parents, so as to endanger the child's mental,
emotional, or physical health consistent with Ed. 1114.07.
(d) Each
private facility or other non-district program shall train staff in child management
techniques. The program shall administer discipline equitably and with respect
and courtesy towards the child.
(e) Each private facility or other non-district
program shall have a written procedure based on state and federal law
concerning the reporting of suspected instances of child abuse.
(f)
An LEA, or other public agency, private provider of special education or
other non-LEA program shall not employ any of the following aversive and
deprivation behavioral interventions:
(1) Any procedure intended to cause physical
pain;
(2) Aversive mists, noxious odors, and unpleasant tastes
applied by spray or other means to cause an aversive physical sensation;
(3) Any non-medical mechanical restraint that physically
restricts a student’s movement;
(4) Contingent food or drink programs;
(5) Electrical stimulation;
(6) Placement of a child in an unsupervised or unobserved
room from which the child cannot exit without assistance; and
(7) Physical restraint, unless in response to a
threat of imminent, serious, physical harm, pursuant to RSA 126-U.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by#10590, eff
5-15-14; ss by #12141, eff 3-24-17
Ed 1114.08 Emergency Intervention Procedures. All crisis or emergency intervention procedures shall be
included in the student’s IEP and shall comply with Ed 1114.07 and RSA 126-U:5.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #10590, eff
5-15-14; ss by #12141, eff 3-24-17
Ed 1114.09
RESERVED
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; rpld
by #10590, eff 5-15-14
Ed 1114.10 Qualifications and Requirements for
Instructional, Administrative, and Support Personnel.
(a)
All administrative, instructional, and related service staff shall hold
appropriate certification for the position in which they function as required
by the state of New Hampshire or other licensing entity. Evidence of such qualification shall be on
record with the program.
(b)
Each private provider of special education or other non-LEA program
shall maintain records demonstrating that each of the employees of that program
meets the health requirements for public school employees in the state of New
Hampshire in accordance with RSA 200:36.
(c)
Each private provider of special education or other non-LEA program
shall have written procedures for supervising and evaluating the performance of
all staff members.
(d)
Each private provider of special education or other non-LEA program
shall have a written plan for in-service and pre-service training of staff, in
accordance with Ed 500 certification standards for educational personnel in New
Hampshire.
(e)
Each private provider of special education or other non-LEA program
shall have written job descriptions covering all staff positions which shall be
made available to the department.
(f)
Each private provider of special education or other non-LEA program
shall complete a background investigation and a criminal history records check
on every selected applicant prior to employment consistent with Ed 1114.11.
(g)
Each private provider of special education or other non-LEA program
which offers swimming or other water activities in its program shall provide a
qualified water safety instructor or senior lifesaver to be on duty whenever
children with disabilities are in the swimming program or other water activity.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.11 Employee and Volunteer Background
Investigations.
(a)
Each private provider of special education or other non-LEA program,
including any individual providing direct services to the student pursuant to
Ed 1126.05, shall complete a background investigation, consistent with the
provisions of RSA 189:13-a, prior to a final offer of employment.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.12 Change in Placement or Termination of the
Enrollment of a Child With a Disability.
(a)
A private provider of special education or other non-LEA program which believes
it can no longer implement a child’s IEP or provide FAPE shall immediately
convene or request the convening of the IEP team to review the facility’s or
program’s concerns and to amend the IEP and placement, if necessary.
(b)
An IEP meeting convened under Ed 1114.12 shall:
(1) Review the child’s needs;
(2) Determine whether the current IEP meets the
needs of the child and, if appropriate, propose changes to the IEP;
(3) Review the child’s current placement; and
(4) Determine whether the placement can fully
implement the child’s IEP and provide FAPE.
(c)
If the IEP team determines that the current placement cannot implement the
IEP and provide FAPE, the LEA shall immediately place the child in an approved
facility or program which can implement the IEP and provide FAPE.
(d)
If a private provider of special education or other non-LEA program
wishes to suspend or expel a child, it shall immediately inform the LEA. The
LEA shall comply with the disciplinary procedures in
34 CFR 300.530- 34 CFR 300.536.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.13 Parent Access to Education Records. Each private provider of special education or
other non-LEA program shall ensure that all parents of children with
disabilities have an opportunity to inspect and review all education records
relating to the child, in accordance 34 CFR 501.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.14 Class Size. Each private provider of special education or
other non-LEA program shall conform to the requirements of Ed 1113.10 with
respect to special education class sizes, teacher-student ratios, and the age
range within each class.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.15 Calendar Requirements. Each private provider of special education or
other non-LEA program shall provide a written annual school calendar
identifying the instructional days per year and the instructional hours per
day, in accordance with Ed 1113.14 and Ed 1113.15.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.16 Physical Facilities.
(a)
Each private provider of special education or other non-LEA program
shall ensure that the grounds and all structures on the grounds of the program
are maintained in good repair and are free from any danger to health or safety.
(b)
Each private provider of special education or other non-LEA program
shall develop a written schedule of maintenance and housekeeping activities to
ensure that the grounds and facilities are safe and promote the health of
children enrolled in the program.
(c)
All physical facilities in each private provider of special education or
other non-LEA program used for any purpose for the education of children with
disabilities shall be in compliance with New Hampshire health and fire
regulations for non-public schools as established by public health statute RSA
200:11, Ed 306.07(a) - (b), Saf-C 6000, and New
Hampshire school building standards as required under Ed 403.01(c) to ensure
the comfort and health of children enrolled in the facility or program.
(d)
Each private provider of special education or other non-LEA program
shall have written procedures to protect children from hazards such as:
(1) The presence of asbestos;
(2) The presence of lead paint;
(3) Storage of hazardous materials;
(4) Garbage disposal;
(5) Vermin infestation;
(6) Storage of food;
(7) Storage of medicines; and
(8) Any unsafe access to electrical, plumbing,
and heating systems.
(e)
A private facility or other non-LEA program shall have a policy that
ensures that bathrooms, classrooms, and other areas where children spend time
at the facility, are regularly cleaned to maintain health and sanitation.
(f)
A private provider of special education or other non-LEA program shall
have securely locked storage spaces for all harmful, poisonous, or toxic
materials that shall not be used for any other purpose. Keys to locked storage spaces shall be
available only to authorized staff members.
(g)
Fences at a private provider of special education or other non-LEA
program shall be in good repair.
(h)
Hazardous areas at a private provider of special education or other
non-LEA program, such as steep grades, cliffs, open pits, swimming pools, high
voltage boosters, or high speed roads, shall be fenced off or have natural
barriers to protect children.
(i)
Playground equipment at a private provider of special education or other
non-LEA program shall be so located, installed, and maintained as to ensure the
safety of children.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.17 Child Care.
(a)
The day care and residential components of all private providers of
special education or other non-LEA programs shall meet all applicable federal,
state, and local rules governing the day and residential care of children with
disabilities.
(b)
Each private provider of special education or other non-LEA program
shall be responsible for the total care of any child with a disability who
resides at the program. The program
shall attend to the physical and emotional health of resident children. The program shall provide resident children
with regular nutritious meals, opportunities for proper exercise,
age-appropriate recreational activities, and opportunities for positive social
encounters.
(c)
Each private provider of special education or other non-LEA program
shall provide properly qualified, trained, and supervised child care workers to
staff day and residential programs.
(d)
Each private provider of special education or other non-LEA program
shall identify children with emergent emotional or physical problems and
consult with the appropriate representatives of the sending LEA and the child’s
parent.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.18 Health and Medical Care.
(a)
Each private provider of special education or other non-LEA program shall
have written procedures to ensure that children with disabilities receive
prompt and competent medical attention in the event of injury or illness while
at the program or while participating in any program or activity while in the
custody of the program.
(b)
Each private provider of special education shall provide staff training
in first aid, including training in the administration of CPR.
(c)
Each private provider of special education or other non-LEA program
shall have formulated written policies and procedures regarding the use and
administration of medicine to children in compliance with state law and
rules. Medication shall be dispensed
only under medical order.
(d)
Each private provider of special education or other non-LEA program
shall maintain locked storage space for prescription drugs which shall only be
accessible to persons authorized to dispense them.
(e)
When a child has an illness that is contagious or poses a health threat
to other children enrolled in a private provider of special education or other
non-LEA program, the program shall immediately notify the child’s parent(s),
the sending LEA, the department, and the bureau of communicable disease control
of the department of health and human services.
(f)
In the case of an accident injuring a child, a private provider of
special education or other non-LEA program shall immediately notify the child’s
parent(s), the sending LEA, the department, and the local law enforcement
agency.
(g)
In the case of the death of a child, a private provider of special
education or other non-LEA program shall immediately notify the child’s
parent(s), the sending LEA, the department, and the local law enforcement
agency.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.19 Insurance Coverage.
(a)
Each private provider of special education or other non-LEA program which
accepts prepayment of public funds, directly or indirectly, shall maintain
bonding in an amount adequate to cover the amount of public funds received and
expenses associated with the recovery of such funds.
(b)
All persons delegated the authority to sign checks or manage funds shall
be bonded at the program’s expense.
(c)
Each private provider of special education or other non-LEA program
shall carry, for protection of children in care and in amounts as recommended
by the facility or program’s insurance provider, which provider shall be
licensed to do business in the state of New Hampshire:
(1) Professional liability and bonding insurance;
(2) Vehicle insurance; and
(3) Comprehensive property and liability
insurance in compliance with Ed 1129.08(al).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.20 Photography and Audio or Audio-Visual
Recording.
(a)
Each private provider of special education or other non-LEA program
shall have written policies and procedures regarding the photographing and
audio or audio-visual recordings of children in care.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.21 Emergency Planning and Preparedness.
(a)
Each private provider of special education or other non-LEA program
shall have written procedures for staff and children to follow in case of
emergency. These procedures shall be
developed with the assistance of state or local fire and safety personnel and
shall include provisions for the evacuation of buildings and assignment of
staff during emergencies.
(b)
At least quarterly each private provider of special education or other
non-LEA program shall conduct emergency drills which shall include actual
evacuation of children to safe areas.
The program shall ensure that all personnel on all shifts are trained to
perform assigned tasks during emergencies and ensure that all personnel on all
shifts are familiar with the use of the fire-fighting equipment available at
the program.
(c)
The following conditions shall apply to each such emergency drill:
(1) A record of such emergency drills shall be
maintained;
(2) All persons in the building shall participate
in emergency drills;
(3) Emergency drills shall be held at unexpected
times and under varying conditions to prepare children for evacuation in case
of fire or other emergencies;
(4) The program shall make provisions to ensure
that all children with disabilities are evacuated safely; and
(5) The program shall establish procedures to
help children with disabilities understand the nature of such drills.
(d)
Each private provider of special education or other non-LEA program with
residential components shall maintain an active safety program, including
investigation of all accidents and recommendations for prevention.
(e) Each private provider or other
non-LEA program shall have written procedures for behavioral interventions that
outline staff responsibilities with regard to procedures for personnel who are
qualified and trained in behavioral crisis intervention response so that quick,
organized responses can occur.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1114.22 Protections Afforded to Children With
Disabilities. A child placed by an LEA
in an approved private provider of special education or other non-LEA program
shall be afforded all the rights of a child with a disability who is served by
a public agency as provided in 34 CFR 300.146.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed
1115 SURROGATE PARENTS
Ed 1115.01 Basis
for Appointment of a Surrogate Parent.
(a) Pursuant to RSA 186-C:14, III, (a), if a
child with a disability is in need of special education and the parent or
guardian is unknown or cannot be located after reasonable efforts are taken to
find said parent, or if the child is in legal custody of the division of
children, youth and families, the commissioner or designee, shall appoint a
surrogate parent who shall represent the child in the educational
decision-making process.
(b)
If a child is in legal custody of the division of children, youth and
families and a judge is actively overseeing the child’s case pursuant to the
Individuals with Disabilities Education Act, 20 U.S.C section 1415(b)(2)(A)(i),
the judge may appoint a surrogate parent.
The appointed surrogate parent must meet the requirements for selection
of surrogate parents pursuant to Ed 1115.06.
(c) In the case of a child who is an
unaccompanied youth as defined in the McKinney-Vento Homeless Assistance Act,
42 U.S.C. section 11434a(6), the school district shall appoint a surrogate
parent on a temporary basis. The
appointed surrogate parent must meet the requirements for selection of
surrogate parents pursuant to Ed 1115.06.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1115.02 Initiating a Request for Appointment of a
Surrogate Parent.
(a)
Any employee of an LEA, the department, or a residential school or
hospital, any physician, any judicial officer, or any other person who knows or
believes that a child’s parent is not known, or is not able to be located, or
that the child is under legal of DCYF, or any person who knows or believes that
a court has issued a written order for a surrogate parent, shall initiate the
appointment of a surrogate parent, pursuant to Ed 1115.02(b).
(b)
The LEA shall initiate the appointment of a surrogate parent, pursuant
to Ed 1115.02.
(c)
The process for appointment of a surrogate parent shall be initiated by submitting
a written referral to the superintendent of schools or the superintendent’s
designee.
(d)
A copy of the referral shall be sent to the commissioner of education or
the commissioner’s designee.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1115.03 Investigation and Determination of the
Need for a Surrogate Parent.
(a)
The superintendent of schools or the superintendent’s designee shall
conduct an investigation to determine whether the child is in need of a
surrogate parent.
(b)
A parent shall be considered unknown when there is no written record of
the existence of such a person available to the superintendent of schools or
the superintendent’s designee.
(c)
A parent shall be considered “not able to be located” when the LEA
cannot discover the whereabouts of the parent and can document it’s efforts
through a record of its attempts to do so, including evidence that the LEA has
contacted DCYF, including but not limited to, telephone calls and emails, each
including the date, time, person, or agency contacted.
(d)
The LEA shall mail a written notice, by certified mail, of the need for
parental participation in the special education process, to the last known
address of the parent.
(e)
The notice under Ed 1115.03(d) shall include:
(1) A request for the parent to participate in
the special education process for the child;
(2) The procedural safeguards notice described in
34 CFR 300.504;
(3) Upon location of a parent, the parent may
resume responsibility as the child’s educational decision-maker upon written
notification to the LEA.
(f)
The child shall be determined to be a ward of the state under this
section when, as documented in court records, the child is in legal custody of
DCYF.
(g)
A judge overseeing the case of a child who might be or is a child with a
disability may appoint a surrogate parent for a child.
(h)
The LEA’s homeless liaison shall determine if the child is an
unaccompanied homeless youth as defined in section 725(6) of the McKinney Vento
Homeless Assistance Act (42 U.S.C 1143a(6)) who might be or is a child with a
disability.
(i)
The superintendent of schools or the superintendent’s designee shall,
based on the evidence gathered during the investigation, determine whether the
child is in need of a surrogate parent within 30 days following receipt of the
original referral for a surrogate.
(j)
If it is determined that a child does not need a surrogate parent, the
superintendent of schools or the superintendent’s designee shall place a copy
of the determination in the child’s school record.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1115.04 Requesting Appointment of a Surrogate
Parent.
(a)
If it is determined that a child needs a surrogate parent the
superintendent of schools or the superintendent’s designee shall submit a
written request that the commissioner of education or his or her designee appoint
a surrogate parent.
(b)
The written request for appointment of a surrogate parent shall include:
(1) The date the request for appointment of a
surrogate parent is made;
(2) The name, title, agency name, address and telephone
number of the following people:
a. The person requesting appointment to be made;
b. The child’s DCYF caseworker;
c. The child’s guardian ad litem, attorney, or
both, if a child has both;
d. The child’s adult caretaker, the child’s
foster parents, or both;
e. The child’s parent(s), if known, and whose
parental rights have not been surrendered or terminated;
f. The child’s guardian, if any;
g. The contact persons of the child’s liable or
receiving LEA and sending LEA, liable for reimbursement, if any;
h. The contact person of the child’s current
educational placement; and
i. The contact person of any other agency or
party having jurisdiction over the child;
(3) Information identifying the child including:
a. The child’s name and date of birth;
b. The child’s current address; and
c. The name and address of the facility where
the child is currently going to school;
(4) A statement whether the child is in
evaluation status or has already been determined to have a disability;
(5) A statement of the child’s legal relationship
and custody status with DCYF;
(6) A written statement by the superintendent of
schools or the superintendent’s designee attesting that the LEA investigated
the child’s need for a surrogate parent and the LEA determined that:
a. The child’s parent is unknown or not able to
be located;
b. The child is under legal custody of DCYF or guardianship
of DCYF per RSA 463 as documented in a court order;
c. The LEA’s homeless liaison has signed a
statement that the child is an unaccompanied homeless youth as defined in
section 725(6) of the McKinney Vento Homeless Assistance Act (42 U.S.C
1143a(6)) who might be or is a child with a disability; or
d. A judge overseeing the case of a child, who
might be or is a child with a disability, has appointed a surrogate parent as
documented in a court order; and
(7) Documentation of efforts to contact the
parent as described in Ed 1115.03, as well as a copy of evidence of
documentation that DCYF has been contacted or copies of court orders showing
DCYF has legal custody or guardianship per RSA 463 or that a judge has
appointed an educational surrogate parent.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1115.05 Appointment.
(a) If
the commissioner of education or the commissioner’s designee finds that the
materials submitted by the superintendent of schools or the superintendent’s
designee are complete and document that the child is in need of a
surrogate parent, the commissioner shall appoint a surrogate parent who shall
represent the child in the educational decision-making process pursuant to 34
CFR 300.519(h).
(b) The
current residence of the surrogate parent shall be of no relevance in
determining the child’s LEA of residence or liability.
(c) Appointment
of surrogate parents shall be effective until the child reaches 18 years of age
unless:
(1) The child requests in writing that the
commissioner of education or the designee extend the original appointment until the child is awarded a regular high
school diploma or reaches 22 years of age, whichever occurs first;
(2) The child is determined to be incapacitated under RSA 464-A, and
the guardian is determined to be unknown under Ed 1115.03; or
(3) The surrogate parent resigns, dies, or is removed pursuant to (d)
below.
(d) The
commissioner of education or the commissioner’s designee, within 30 days of the
receipt of a written complaint requesting the removal of a surrogate parent,
shall:
(1) Investigate the allegation(s) made in the written complaint; and
(2) Render a decision that shall indicate whether:
a. The surrogate is meeting the requirements
for being a surrogate parent;
b. The surrogate parent shall receive
additional training;
c. The surrogate parent
has not fulfilled the responsibilities of a surrogate parent and
is removed;
d. The surrogate parent
has a conflict of interest with the child’s interests and is removed; or
e. The surrogate parent
resigned, died, or has been removed.
(e) Any
party to a decision rendered under (d) above within 10 days of receipt of the
commissioner’s written decision under (d), may make a written request to the
commissioner for reconsideration of the decision.
(f) Within
20 days of the receipt of the written request for reconsideration, the
commissioner shall:
(1) Review the evidence presented in the investigation;
(2) If necessary, gather additional evidence;
(3) Review the decision; and
(4) Issue a final
written decision.
(g) Any
party who is aggrieved by the final written decision of the commissioner under
(f) above may appeal to a court of competent jurisdiction.
(h) The
commissioner of education or the commissioner’s designee shall terminate the
appointment of a surrogate parent when:
(1) A parent becomes known, is located, or rescinds his or her
request or consent to have a surrogate parent appointed and will assume
educational decision-making;
(2) The child ceases to be under legal custody of DCYF or guardianship
of DCYF per RSA 463; or
(3) The adult student rescinds his or her request for the appointment
of a surrogate parent and will assume educational decision-making for him or
herself.
(i) The
commissioner of education or the commissioner’s designee shall appoint a
successor surrogate parent in the same manner and for the same period of
time as previously provided when:
(1) The surrogate parent resigns; or
(2) When a surrogate parent has been removed pursuant to (d) above.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #13773, eff 10-12-23
Ed 1115.06 Selection of Surrogate Parents.
(a)
The commissioner of education or the commissioner’s designee shall
select individuals to be available to serve as surrogate parents provided such
individuals:
(1) Have volunteered to serve as a surrogate
parent;
(2) Have submitted a signed and dated Request for
Appointment of Educational Surrogate Parent application to the commissioner of
education or the commissioner’s designee that includes:
a. The applicant’s name;
b. The applicant’s residence address and mailing
address, if different;
c. The applicant’s daytime telephone number and
evening telephone number;
d. The applicant’s employer’s name;
e. Languages in which the applicant is
conversant;
f. The applicant’s experience with children including
foster children or children with disabilities;
g. The applicant’s experience with the
educational process;
h. Whether the applicant is available to attend
daytime meetings;
i. The applicant’s willingness to be surrogate
parent to more than one child at a time;
j. The names of particular children for whom the
applicant wishes to be a surrogate parent, if relevant;
k. The applicant’s preference regarding
disability or geographical location; and
l. A statement of the applicant’s agreement to
take training, if not already trained;
(3) Have provided the names and addresses of 3
non-relative references to the commissioner of education or the commissioner’s
designee;
(4) Have favorable letters of reference submitted
to the commissioner of education or the commissioner’s designee from:
a. Those named in Ed 1115.06(a)(3); and
b. The individuals conducting the training for surrogate
parents attesting to the volunteer’s suitability to serve as an educational
decision-maker on behalf of a child with a disability;
(5) Have satisfactorily completed training to
serve as a surrogate parent provided by the department as described in Ed
1115.07;
(6) Are 21 years of age or over;
(7) Have agreed in writing to protect the
confidentiality of any records of the child to whom the volunteer is appointed
surrogate parent;
(8) Have agreed in writing to act in the interest
of the child to protect the child’s right to FAPE;
(9) Have agreed in writing to serve as a
surrogate parent from the date of appointment until the date of termination of
appointment or until 30 days after notifying the commissioner of education or
the commissioner’s designee of the desire to end the surrogate parent
relationship;
(10) Have no interest that conflicts personally or
professionally with the interest of the child he or she represents;
(11) Are not employees of an SEA, LEA, or any
other public agency which is involved in the education or care of the child;
and
(12) Shall successfully
pass a background check which includes a fingerprint check.
(b)
A person who otherwise qualifies to be a surrogate parent shall not be
considered an employee of the public agency solely because the person has been
appointed to serve as a surrogate parent.
(c)
Foster parents shall be eligible to become surrogate parents in accordance with RSA 186-C:14-a.
(d)
Foster parents shall not be considered to be employees of DCYF.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1115.07 Training of Surrogate Parents.
(a)
The department shall maintain a registry of eligible persons who are
trained to serve as surrogate parents.
(b)
The department shall provide for the training of persons who have been
selected to serve as surrogate parents.
(c)
The training shall be a minimum of 9 hours.
(d)
Training of surrogate parents shall include, but not be limited to:
(1) Study of legislative mandates for surrogate
parents;
(2) An overview of disabling conditions;
(3) An overview of state and federal legislation
regarding special education;
(4) An overview of New Hampshire’s special
education process including:
a. Evaluation procedures;
b. The determination of disability;
c. Development of the IEP;
d. Selection of special education placements;
and
e. Other decision-making;
(5) Development of communication skills; and
(6) Information about resources available to
surrogate parents and children with disabilities.
(e)
Training for surrogate parents shall conclude with a final exam based on
the training provided under (c) above.
(f)
In order to qualify as a surrogate parent, the adult volunteer shall
attain a minimum score of 80 percent on the final exam under (e) above.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1115.08 Responsibilities of Surrogate Parents.
(a)
The surrogate parent shall represent a child with a disability to the
same extent as the child would be represented by a parent in all matters
relating to FAPE.
(b)
The liability of a surrogate parent shall be limited in accordance with
RSA 186-C:14, VI.
(c)
Except as provided in Ed 1115.05(h), a surrogate parent shall represent
the child until the child reaches the age of 18.
(d)
The surrogate parent may ask to end the surrogate parent relationship
without cause upon 30 days’ written notice to the commissioner of education or
his or her designee, and all interested parties or persons.
(e)
Surrogate parents shall have the same right of access to records
concerning the child as provided by RSA 186-C:14, V.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1116 ALTERNATIVE METHODS
FOR THE APPOINTMENT OF SURROGATE PARENTS
Ed 1116.01 Applicability. The provisions of Ed 1116 shall apply to a
child who is considered to be an accompanied homeless youth as defined in
Section 725(2)(B) of the McKinney-Vento Homeless Assistance Act, 42 U.S.C.
1301, et seq., and who is or might be a child with a disability.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed
1116.02 Assignment of a Surrogate
Parent for an Unaccompanied Child who is or may be a Child
with a Disability.
(a) A school district shall immediately enroll
any unaccompanied child for the purposes of attending classes and participating
fully in school activities.
(b)
From the date of school enrollment, the school district’s local homeless
education liaison shall have a maximum of 30 days to appoint a surrogate parent
for the unaccompanied homeless youth.
(c)
For the purposes of Ed 1116.02, the local homeless education liaison
shall be considered a designee of the commissioner of education.
(d)
The local homeless education liaison shall select surrogate parents in
accordance with Ed 1115.06.
(e)
Training of surrogate parents shall be accomplished in accordance with
Ed 1115.07.
(f)
The responsibilities of surrogate parents assigned by the local homeless
education liaison shall be as set forth in Ed 1115.08.
(g)
In the case of a child who is an unaccompanied homeless youth,
appropriate staff of emergency
shelters,
transition shelters, independent living programs, and street outreach programs
may be appointed as
temporary
surrogates by their respective agencies until such time as the school’s local
homeless education liaison can make a permanent appointment in accordance with
34 CFR 300.519(f).
(h)
In no case may the appointment of temporary surrogates exceed 30 days.
(i)
Within 10 days from the date an individual is appointed as a surrogate
parent under Ed 1116.02, the local homeless education liaison shall notify the
commissioner of education or the commissioner’s designee of the name, date of
birth and NHSEIS number of the child if applicable and the name, address and
telephone number of the surrogate parent.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1116.03 Appointment of a Surrogate Parent by Court
Order for a Child who is or might be a Child with a Disability.
(a)
For the purposes of Ed 1116.03, a judge who oversees the care of a child
shall be considered a designee of the commissioner of education.
(b)
A judge who oversees the case
of a child may appoint a surrogate parent, for a child
who is in legal custody of DCYF or
guardianship of DCYF per RSA 463, to
represent that child in education matters provided that:
(1) The surrogate parent is selected in
accordance with Ed 1115.06;
(2) Training of surrogate parents shall be
accomplished in accordance with Ed 1115.07; and
(3) The responsibilities of surrogate parents
assigned by judges to oversee the care of children shall be consistent with
those responsibilities outlined in Ed 1115.08.
(c)
Within 10 days from the date an individual is appointed by a judge as a
surrogate parent under Ed 1116.03, of the school district shall notify the
commissioner of education or the commissioner’s designee of the name, date of
birth of the child and the name, address and telephone number of the individual
who has been appointed as surrogate parent.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1116.04 Appointment of Foster Parents as Surrogate
Parents Pursuant to RSA 186-C:14-a.
(a)
For the purposes of Ed 1116.04, the director of a child placement agency
licensed under RSA 170-E who assigns a surrogate parent to make educational
decisions on behalf of a foster child as provided in Ed 1116.04(b) and (c)
shall be considered a designee of the commissioner of education.
(b)
In addition to the appointment of a foster parent as a surrogate parent
through the department and by court order, a director of a child placing agency licensed under RSA
170-E that has placed a child with a foster parent may also assign a surrogate
parent to make educational decisions on behalf of a foster child for the
duration of the foster placement provided that:
(1) The parent(s) or child’s biological or adoptive
parents’ parental rights have been terminated by a court of law or by death;
(2) The foster parent is in an on-going, long
term relationship with the child for at least one year;
(3) The foster parent is willing to make
educational decisions required of parents under federal and state law;
(4) The foster parent has no interest that would
conflict with the child; and
(5) The foster parent has demonstrated to the
commissioner of the department of education or the commissioner’s designee that
he or she has the knowledge and skills to represent the child adequately in
educational decision making by either:
a. Fulfilling all of the requirements specified in Ed 1115.07 (b) through (f) and successfully passing a background check
which includes a fingerprint check; or
b. Attaining a minimum
score of 80 on the final exam given to surrogate parent candidates and successfully passing a background check which includes a
fingerprint check.
(c)
Within 10 days from the date an individual is appointed as a surrogate
parent under Ed 1116.04, the director of the child placing agency shall notify
the commissioner of education or the commissioner’s designee of the name, date
of birth, address, and telephone number of the foster parent who has been
assigned as a surrogate parent.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1117 EDUCATION
OF CHILDREN WHO MAY BE SUBJECT TO COURT ORDERED RESIDENTIAL PLACEMENT IN HOMES
FOR CHILDREN, HEALTH CARE FACILITIES, OR STATE INSTITUTIONS
Ed 1117.01 Purpose
and Scope.
(a) The purpose of this part is to ensure the
provision of a FAPE as defined in Ed 1102.44 02(s) to
children with or who might have educational disabilities.
(b) These provisions shall apply to the initial court
ordered residential placement of children and
all successive court ordered residential placements by a
state court acting pursuant to RSA 169-B, RSA
169-C or RSA 169-D.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1117.02 Definitions.
(a) Definitions provided in RSA 193:27 and RSA
186-C:19, I-IV shall apply:
(1) ”Health care facility” means any hospital,
nursing home, sheltered home, or other institution licensed under RSA 151.
(2) “Home for children” means any orphanage; institution for the care,
treatment, or custody of children; child care agency as defined by RSA 170-E:25,
II and III; or any residential school approved under RSA 186:11, XXIX.
(3) “Liable school district” means the school
district which is legally responsible for the education of a child with a
disability, pursuant to Ed 1128.08(a)(5).
(4) “State institution” means the New Hampshire
hospital, Laconia developmental services, and the youth development center.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1117.03 Review Procedures
For Children Previously Determined to Have Disabilities.
(a) When a court is considering, or DCYF is recommending, a
court ordered residential placement for a child with a disability, the liable
school district shall make a recommendation to the court as to where the
child’s educational needs can be met in accordance with state and federal
education laws.
(b) When making its recommendation to the court under (a),
the school district shall address the following factors:
(1) The impact of the proposed
change in placement on the child’s current IEP;
(2) Whether the proposed change
in placement or a change in placement as a result of a proposed placement
change, is appropriate and in the least restrictive environment;
(3) Whether the proposed
placement is appropriate for the implementation of the child’s IEP;
(4) What changes shall be made
to implement the child’s IEP in the proposed placement; and
(5) Any other matters relating
to the placement of a child made in accordance with Ed 1101 and Ed 1117,
including:
a. Evaluation;
b. Identification;
c. Other factors contributing to
the need for a change in educational assignment;
(6) Any dissenting
recommendation(s) made by an IEP team member that were not included in the IEP
team’s proposal;
(7) Once the recommendation is
submitted to the court, a copy of the recommendation must be provided to the
parents 5 days prior to the court hearing.
(c) Nothing in this section shall diminish the
responsibility of the financially liable school district as defined in RSA
186-C:19 to develop and implement an individualized education program or to
fulfill its obligations under other sections of this rule for a child in
placement for which DCYF has financial responsibility, regardless of whether
such child was initially placed by a school district, the parent or some other
agent.
(d) The liable school district shall provide
written notice of an IEP team meeting as provided in Ed 1103.02(a) to a
representative of DCYF, and appointed Guardian ad Litem involved with the child
for whom court ordered residential placement is being considered.
(1) If a representative of DCYF
or appointed Guardian ad Litem does not elect to attend the meeting, the liable
school district shall, after notifying parent(s), promptly provide DCYF with a
copy of any special education records developed during or as a result of each
such meeting;
(e) In any instance where a state district court
issues an order authorizing or making a placement, program or service which
differs from or conflicts with the educational placement, program or services
recommended by the team, special education and special education and related
services shall be provided in a manner consistent with the court ordered
residential placement decision made by the state court in conformity with an
IEP developed by the team for use during such placement.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1117.04 Emergency Placement Review Procedures For Children
Previously Determined to Have Disabilities.
When DCYF notifies the liable school district that the court has ordered
an immediate court ordered residential placement, or an immediate change in the
court ordered residential placement, the school district shall:
(a) Immediately notify parents of the district’s
intent to convene an IEP team meeting.
(b) If the immediate court ordered placement has
an impact on where the child attends school, immediately forward a copy of the
child’s IEP to the new educational placement.
(c) Convene an IEP team meeting in accordance
with the requirements of Ed 1117.04 (b) no later than 10 days after notice to
parents for the purpose of:
(1) Reviewing the nature of the
emergency and its relation to the child’s educational disability;
(2) Reviewing the IEP in light
of the emergency presented;
(3) Considering the
appropriateness of the education assignment; and
(4) Revising of the child’s IEP
if necessary.
Source. (see Revision Note at chapter heading for Ed
1100) #9197, eff 6-28-08; ss by #12141, eff 3-24-17
Ed 1117.05 Review Procedures
for Children Not Previously Determined to Have Disabilities.
(a) Upon receipt of a court order under RSA
169-B:22, C:20 or D:18, joining the liable school district for a child who has
not yet been determined to be a child with a disability, the school district
shall initiate the referral process in accordance with Ed 1107.01(f).
(b) If a referral or an evaluation is ordered by
a court pursuant to RSA 169-B, C or D, upon the receipt of the order for
referral, and/or evaluation, the IEP
team shall within 15 business days of the referral, determine whether the
concerns raised by the referral can be addressed utilizing existing pupil
support services available to all children, whether additional information is
required, and what testing, if any, is needed to address any remaining concerns
raised by the referral about how the referral is determined.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1117.06 Dispute
Resolution Procedures.
(a) If a liable school district has not been identified
or has refused to assume responsibility for carrying out provisions set forth
in Ed 1117, unless such court ordered residential placement is in a health care
facility, residential school or state institution as defined in RSA 193:27, the
school district in which the child has been placed outside the home by DCYF
shall identify, evaluate or otherwise provide FAPE to the child with a
disability.
(b) In all cases where there is a dispute
regarding the identification of the liable school district, either school
district may seek resolution from a court of competent jurisdiction or as
otherwise provided by law.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1117.07 Transfer of Student Records.
(a) Whenever a court makes or changes a child’s
court ordered residential placement that results in a change in the educational
placement, the liable school district shall immediately provide a copy of all
necessary educational records of the child including, but not limited to, the
child’s current IEP and evaluations.
Source. #9197, eff 6-28-08; ss by #12141,
eff 3-24-17
PART Ed
1118 INCARCERATED CHILDREN WITH
DISABILITIES
Ed 1118.01 Definitions. Except where the context makes another
meaning clear, the following words have the meaning indicated when used in Ed
1118:
(a)
“Eligible offender with a disability” means an incarcerated person age
18 through 21 who:
(1) Had been identified as a child with a
disability prior to incarceration; and
(2) Had an IEP prior to incarceration.
(b)
“State correctional facility” means the New Hampshire state prison for
men or the New Hampshire state prison for women.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed
1118.02. Eligible Offenders with
Disabilities Incarcerated in State Correctional Facilities. An eligible offender with a disability incarcerated
at the state correctional facility shall be eligible for services.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed.
1118.03 Incarcerated Children Under
the Age of 18. An incarcerated
individual under the age of 18 shall have the right to be evaluated,
identified, and if appropriate, have special education and related services
provided.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed
1118.04 Children with Disabilities
Incarcerated in County Correctional Facilities. When a child with a disability is
incarcerated at a county correctional facility, the liable LEA shall evaluate
the child and make a determination of eligibility under Ed 1108 and develop,
implement, and monitor an IEP for the child under Ed 1109.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed
1119 CONFIDENTIALITY OF INFORMATION
Ed
1119.01 Confidentiality Requirements.
(a) For
the purposes of this section “adult student” means “adult
student” as defined in 20 USC 1232g(d).
(b) Each participating agency shall comply with
34 CFR 300.610-300.627, relative to confidentiality of information, including
compliance with the Family Educational Rights and Privacy Act of 1974, 20
U.S.C. 1232G, (FERPA) and its implementing regulations in 34 CFR Part 99.
(c) Each LEA and private provider of special
education shall adopt a policy regarding the retention and destruction of
special education records pursuant to RSA 186-C:10-a.
(d) An
LEA may retain and store the student’s special education records in electronic
form or any other form. An LEA shall
provide a parent or adult student a written notice of its document destruction
policies upon the student’s graduation with a regular high school diploma or at
the transfer of rights or whichever occurs first. The LEA shall provide public
notice of its document destruction policy at least annually.
(e) A private provider of special education may
destroy a student’s special education records prior to the student’s 26th
birthday if the private provider of special education has sent all of the
student’s records or copies of such records to the most recent LEA of
record. A private provider of special
education may retain and store the student’s special education records in
electronic form or any other form. A
private provider of special education shall provide a parent or adult student a
copy of its document destruction policy upon the student’s discharge from the
private provider of special education.
(f) Each participating agency shall comply with
the safeguard provisions of 34 CFR 300.623.
The department or the LEA shall provide notice to parents in accordance
with 34 CFR 300.612.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #13026, eff 4-10-20
Ed 1119.02 Disciplinary Information.
(a)
Each public agency shall include in the record of a child with a disability
a statement of any current or previous disciplinary action that has been taken
against the child. Such statements shall be included in, and transferred with,
the disabled child’s record to the same extent that the disciplinary
information is included in, and transmitted with, the student records of
nondisabled children.
(b)
Each statement of current or previous disciplinary action and the
transmission of the record of a child with a disability who transfers from one
school to another shall comply with the requirements of 34 CFR 300.229.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed
1120 PROCEDURAL SAFEGUARDS
Ed 1120.01 Applicability; Transfer of Rights.
(a)
All of the rights and guarantees delineated in Ed 1120 shall apply to
parents, adult students, and public agencies, which include LEAs.
(b)
The rights of parents under Ed 1100 shall be transferred to children
with disabilities who are emancipated minors or who have attained the age of 18
years and have not been adjudicated incompetent consistent with the provisions
of 34 CFR 300.320(c) and 34 CFR 300.520.
(c)
A parent, as defined in Ed 1102.04(h), or an adult student may authorize
an individual to act on their behalf pursuant to a duly executed power of
attorney.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1120.02 Rights and Responsibilities.
(a)
The parent shall have the right to appeal any decision of the LEA
regarding the referral, evaluation, determination of eligibility, IEP,
provision of FAPE, or placement of a child with a disability using the
procedures delineated in Ed 1123.
(b)
The parent shall have the right to file a complaint in accordance with
Ed 1121.01(a) to report actions taken by an LEA which are contrary to the
provisions of state and federal requirements regarding the education of
children with disabilities.
(c)
Each LEA shall develop written procedures to ensure the effective
implementation of the procedural safeguards described in this section. These written procedures shall be included in
the LEA request for federal special education funds under Ed 1126.01.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1120.03 Written Prior Notice.
(a)
Parent(s) of a child with a disability shall be notified in writing
within a reasonable time, but not less than 14 days, before the LEA proposes to
initiate or change, or refuses to initiate or change, the referral, evaluation,
determination of eligibility, IEP, or educational placement of the child or the
provision of FAPE to the child.
(b)
The notice shall comply with 34 CFR 300.503 through CFR 300.504.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1120.04 Parental Consent.
(a)
An LEA shall obtain informed, written consent from the parent of a child
with a disability prior to:
(1) Conducting an initial evaluation;
(2) Initial provision of special education and
related services to a child with a disability;
(3) Annual renewal of the IEP and placement of a
child with a disability;
(4) Determining or changing the disability
classification;
(5) Changing the nature or extent of the special
education or special education and related services;
(6) Conducting a reevaluation;
(7) Access to public insurance pursuant to 34 CFR
300.154(d); and
(8) Each time the public agency proposes to
access private insurance.
(b)
If a parent fails to respond to a request for informed, written consent
to any of the actions described in Ed 1120.04(a)(3), (4), (5), or (6), the LEA
shall proceed in accordance with Ed 1120.06.
(c)
Parents of children with disabilities shall have 14 days after the
sending of written prior notice under Ed 1120.03 to sign documents included
with the notice to indicate consent, or
refusal of consent or partial consent as set forth below:
(d)
A public agency shall not use a parent’s refusal to consent to one
service or activity or request of additional services, or activities to deny
the child any other services or activities to which the parent has consented.
(e)
When the parent refuses consent to one or more of the proposed services
or activities, and/or requests changes to services or activities in the initial
proposal, the parent shall specify, in writing, the items that they are
refusing or requesting.
(f)
Upon receipt of a parent’s partial consent, the LEA:
(1) May schedule a mutually agreeable time and
date for an IEP team meeting;
(2) Shall, if requested by the parent, pursuant
to Ed 1109.06(b) convene the IEP team to discuss the requested changes and/or additions
to the IEP, except as set forth in (3) below.
(3) May refuse to convene the IEP team meeting if
it determines that the requested changes and/or additions to the IEP have been
addressed at a prior IEP team meeting. In such event, the LEA shall issue a
Written Prior Notice pursuant to Ed 1109.06(b)(3), explaining why the LEA
refuses to convene the meeting.
(g)
If a parent refuses consent for a proposed IEP or placement, the child’s
most recent agreed upon IEP placement, or both shall remain in effect unless
the LEA and parent agree otherwise, until the matters are resolved unless and
until a party files for due process, in which case the IEP and placement shall
be governed by 34 CFR 300.518.
(h) A parent or a public agency may file a due
process complaint on any of the matters described in 34 CFR 300.503(a) (1) and
(2) and Ed 1120.04(a), pursuant to 34CFR 300.507.
(i)
The 14-day time limit shall be extended if the LEA and the parent
mutually agree to an extension.
(j)
LEAs shall advise the parent in writing of:
(1) The necessity of signing
documents which describe actions requiring the parent’s consent for the purpose
of ensuring the timely provision of appropriate services;
(2) The parent’s right to access all of the
rights and procedures outlined in this section if the parent disagrees; and
(3) The parent’s right to an
extension of the 14-day time limit, provided the parent and the LEA mutually
agree to such extension.
(k)
A copy of any document signed by a parent in which the parent gives
consent in writing shall be provided to the parent, and a copy of such document
shall also be placed in the child’s education records.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; amd
by #10590, eff 5-15-14; ss by #12141, eff 3-24-17
Ed 1120.05 Parental Refusal of Consent; Initiation of
Due Process Hearing by LEA.
(a)
A parent who refuses informed consent to all or part of any change
proposed by the LEA shall indicate the refusal in writing within 14 days after
the sending of written prior notice as provided in Ed 1120.03, or within the
time frame allowed by a mutually agreed-upon extension as provided in Ed
1120.04(d).
(b)
Alternative dispute resolution as provided in Ed 1122 may be requested
by either party at any time.
(c)
If a parent refuses consent to a proposal included in Ed 1120.04(a)(1)
or (a)(6), the LEA shall have the authority to pursue the initial evaluation or
re-evaluation by the initiation of a due process hearing under Ed 1123.
(d) If a parent refuses consent or fails to
respond for the initial provision of special education services, the LEA
shall not pursue the initial provision of special education services by
initiating a due process hearing under Ed 1123.
(e)
If at any time subsequent to the initial provision of special education
and related services, the parent of a child
revokes consent in writing for the continued provision of special
education and related services, pursuant to 34
C.F.R §300.300(b)(4) the LEA:
(1) Shall not continue to provide special
education and related services to the child;
(2) Shall provide a prior written notice in accordance
with 34 C.F.R §300.503 before ceasing the provision of special education and
related service;
(3) Shall not use the mediation or due process
procedures to obtain an agreement or ruling that the services may be provided
to the child;
(4) Shall not be considered in violation of the
requirement to make FAPE available to the child; and
(5) Shall not be required to convene the IEP Team
meeting or develop an IEP for the child.
(f)
A public agency shall not use a parent’s refusal to consent to one
service or activity to deny the child services, benefits, or activities that
the parent has agreed to.
Source. (see Revision Note at chapter heading for Ed
1100) #9197, eff 6-28-08; ss by #9482, eff 6-11-09; amd
by #9812, eff 11-11-10; ss by #12141, eff 3-24-17
Ed 1120.06 Parental Failure to Respond;
Implementation of Changes by LEA.
(a)
If a parent fails to respond within 14 days after the sending of written
prior notice pursuant to Ed 1120.04(b), the LEA shall implement its proposed
changes if the LEA has taken reasonable measures to obtain informed written
consent.
(b)
Reasonable measures shall include:
(1) Documentation of telephone
calls to the parent, made or attempted, and the results of those calls; and
(2) Copies of correspondence sent
to the parent and any responses received.
Correspondence shall be sent certified mail, return
receipt requested.
(c)
The processes provided for in Ed 1123 can be requested by either party
at any time subject to the exceptions of Ed 1120.05(d) and (e).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; amd
by #9812, eff 11-11-10; ss by #12141, eff 3-24-17
Ed 1120.07 Independent Educational Evaluations. An LEA shall comply with 34 CFR 300.502 and
Ed 1107.03, relating to independent educational evaluation.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1120.08 Public and Private Insurance.
(a)
An LEA shall comply with the requirements detailed in 34 CFR 300.154 and
He-M 1301 when proposing to access public and private insurance. The LEA:
(1) Shall obtain informed parental consent once,
pursuant to 34 CFR 300.154(d), the first time the public agency seeks to access
the child’s public insurance;
(2) Shall provide annual notification pursuant to
34 CFR 300.154(d)(2)(v). The annual
notification shall include a withdrawal of consent provision. The withdrawal of consent provision shall
terminate the LEA's authority to access the child's state public benefits or
insurance program. This withdrawal of
consent provision shall be effective upon the LEA's receipt of the parent's
signed withdrawal;
(3) Shall notify the parents that the parents’
refusal to allow access to their public insurance does not relieve the public
agency of its responsibility to ensure that all services detailed in the IEP
are provided to the child at no cost to the parents;
(4) Shall not require parents to sign up for or
enroll in public benefits or insurance programs;
(5) Shall not require parents to incur out of
pocket expenses, deductibles, or co-pays;
(6) Shall not use the child’s benefit if it would
reduce the available lifetime coverage or other benefit;
(7) Shall not require the family to pay for
services that otherwise would be covered by public benefits or insurance programs and are required for the
child outside the time the child is in school;
(8) Shall not result in an increase of the
parents’ premiums or result in the discontinuation of benefits or insurance; or
(9) Shall not risk the loss of eligibility for
home or community waivers based on aggregate health-related expenditures.
(b) When accessing private insurance the LEA
shall:
(1) Obtain informed parental consent each time it
proposes accessing private insurance; and
(2) Notify the parents that the parents’ refusal
to allow access to their private insurance does not relieve the public agency
of its responsibility to ensure that all services detailed in the IEP are
provided to the child at no cost to the parents.
(c) Part B Funds shall be available to be used if
an LEA is unable to obtain parental consent to use a parents’ private insurance
to pay for specific services including deductibles or co-pay.
(d)
Proceeds of public benefits or insurance or private insurance shall not
be treated as program income for purposes of 34 CFR 80.25.
(e)
Reimbursements from federal funds such as Medicaid shall not be
considered “State or local funds” for purposes of maintenance of effort
provisions of 34 CFR 300.163 and 34 CFR 300.203.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; amd
by #10590, eff 5-15-14; ss by #12141, eff 3-24-17
PART Ed
1121 COMPLAINT PROCEDURES
Ed 1121.01 Filing a Complaint.
(a)
Individuals or organizations may report alleged violations of a public agency
which are contrary to the provisions of state and federal requirements
regarding the education of children with disabilities by filing a complaint.
(b)
A complaint shall be filed according to the provisions of 34 CFR
300.153.
(c)
Complaints filed pursuant to 34 CFR 300.136(b) relative to private
school consultation shall be investigated, reviewed, and resolved using the
process detailed in Ed 1121.02 and Ed 1121.03.
(d)
Complaints shall be directed to:
Commissioner of
Education
101 Pleasant
Street
Concord, NH
03301
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1121.02 Investigation of Complaints and Complaint
Procedures.
(a)
The commissioner of education shall assign an employee of the department
or, if an employee of the department is not available, an independent
investigator to:
(1) Investigate the alleged complaint including
conducting an on-site investigation if necessary; and
(2) Issue a written report with recommendations
to the commissioner.
(b)
The commissioner shall issue a written decision that addresses each
allegation in the complaint and contains:
(1) Findings of fact and conclusions; and
(2) The reasons for the department’s decision.
(c)
If the commissioner finds there has been a failure to provide
appropriate services, the commissioner’s order shall address:
(1) How to remediate the denial of those
services, including, as appropriate, the awarding of monetary reimbursement or
other corrective action appropriate to the needs of the child or the children;
and
(2) Appropriate future provisions of services for
all children with disabilities.
(d)
The commissioner of education shall mail the written decision and a copy
of the independent investigator’s report to the public agency named in the
complaint, including, if necessary, orders to the agency with specific
timelines for the corrective actions if such actions were found necessary in
order to attain compliance. If the
complaint filed under Ed 1121.01 concerns a specific child, the parent of that
child shall receive copies of the decision, the investigator’s report, and any
orders issued.
(e)
Complaint procedures shall be in compliance with 34 CFR 300.151- 153.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1121.03 Resolution of Complaints.
(a)
All complaints shall be resolved within 60 days of receipt of the
written complaint. The 60-day time limit
may be extended consistent with 34 CFR 300.152(b)(1).
(b)
The sanctions described in Ed 1125 shall be applied as needed to enforce
compliance with orders issued to resolve findings and achieve compliance with
respect to the provision of FAPE for children with disabilities.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1121.04 Reconsideration and Appeals.
(a)
Any party to the complaint may, within 20 days of receipt of the
commissioner’s written decision under Ed 1121.02(b), make a written request to
the commissioner for reconsideration of the decision. Any corrective action ordered by the
commissioner for the benefit of a child with a disability shall be implemented
and continue until the conclusion of the reconsideration and, unless reversed
upon reconsideration or stayed, during any appeal.
(b)
Within 15 days of the receipt of the written request for
reconsideration, the commissioner shall:
(1) Review the investigator’s report;
(2) Review the evidence presented in the
investigation;
(3) If necessary, gather additional evidence;
(4) Review the decision; and
(5) Issue a final written decision.
(c)
Any party who is aggrieved by the final written decision of the
commissioner under Ed 1121.04 (b)(5) may appeal to the NH Supreme Court or a NH
Superior Court.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed
1122 ALTERNATIVE DISPUTE RESOLUTION
Ed 1122.01 Availability of Alternative Dispute
Resolution. Alternative dispute
resolution shall be voluntary and available to parents and LEAs in accordance
with RSA 186-C:23 and 34 CFR 300.506.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1122.02 Forms of Alternative Dispute Resolution. Alternative dispute resolution may take the
form of mediation as described in RSA 186-C:24 and Ed 205.03, a neutral
conference, as described in RSA 186-C:23-b, or a local school district
alternative dispute resolution program as described in RSA 186-C:23-a.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1122.03 Alternative Dispute Resolution Results.
(a)
The mediator or the neutral shall submit in writing to the office of
legislation and hearings in the department the results of the mediation or
neutral conference. The written results shall be submitted no later than 2 days
after the mediation or neutral conference is completed.
(b)
The information provided in Ed 1122.03(a) shall include:
(1) The date or dates on which the alternative
dispute process occurred;
(2) Whether or not the process resulted in a
signed written agreement;
(3) Whether the signed written agreement resolved
all of the issues included in the request for due process or resulted in a signed withdrawal of the request for due
process ; and
(4) Whether the parties are continuing to
negotiate the dispute privately.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1122.04 Appointment of a Hearing Officer. If an alternative dispute resolution option
is utilized by the parties and resolution is not achieved, the individual
selected as a neutral or mediator shall not be the same individual who is
subsequently appointed as a hearing officer to preside at an administrative due
process hearing in the same matter pursuant to Ed 1123.24.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1123 ADMINISTRATIVE DUE PROCESS HEARING PROCEDURE
Ed
1123.01 Conducting Administrative Due
Process Hearings. Administrative due
process hearings shall be conducted in compliance with applicable state and
federal laws and regulations, including 34 CFR 300.507-.518.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.02 Sequence of an Administrative Due Process
Hearing. The sequence of an
administrative due process hearing shall be as follows:
(a)
A due process complaint shall be filed with the department and with the
other party as detailed in 34 CFR 300.508 and Ed 1123.05;
(b)
A due process complaint shall be considered sufficient if it meets the
requirements in 34 CFR 300.508.
(c)
The LEA and the other party receiving a due process complaint shall
respond to the complaint as required in 34 CFR 300.508(e) – (f) within 10 days
of receiving the due process complaint;
(d)
The LEA shall convene a resolution meeting with the parent or parents
and with the relevant member or members of the IEP team within 15 days of
receiving notice of the parents’ due process complaint as required in 34 CFR
300.510. The parties shall also have the option of convening a mediation
session;
(e)
A prehearing conference governed by Ed 1123.15 shall be held no later
than 17 days after the resolution meeting or the date that the parties agree,
in writing, that no agreement is possible or the date the parties waive, in
writing, the resolution meeting.
(f)
An administrative due process hearing under Ed 1123.17 shall be held no
later than 14 days after the conclusion of the prehearing conference. Except
for good cause shown, an administrative due process hearing shall be limited to
2 days; and
(g)
A hearing officer’s decision under Ed 1123.18 shall be issued no later
than 45 days after the 30 day period under 34 CFR 300.510(b) or 34 CFR
300.510(c).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.03 Filing a Due Process Hearing Complaint.
(a)
A parent or a public agency may file a due process hearing complaint on
any matter described in 34 CFR 300.503(a)(1)–(2).
(b)
The due process hearing complaint shall
allege a violation that occurred not more than 2 years before the parent knew or should have
known about the alleged action that forms the basis of the due process
complaint as detailed in 34 CFR 300.507(a)(2).
(c)
The timeline in Ed 1123.03(b) shall be extended if the exceptions
described in 34 CFR 300.511(f) apply.
(d)
The public agency shall comply with the provisions of 34 CFR 300.507(b)
relative to information for parents.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.04 Initiation of Administrative Due Process
Hearing by Parents or by LEA.
(a)
The office of legislation and hearing shall make available to parents
and every LEA a model form that may be used to initiate a written request for
an administrative due process hearing.
(b)
The notice of the administrative due process hearing complaint shall
include:
(1) The name of the child;
(2) The address of the residence of the child;
(3) The name of the school the child is
attending;
(4) In the case of a homeless child or youth
within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance
Act, 42 U.S.C. 11434a (2), available contact information for the child, and the
name of the school the child is attending;
(5) A description of the nature of the problem of
the child relating to the proposed or refused initiation or change described in
Ed 1123.03(a), including facts relating to the problem;
(6) A proposed resolution of the problem to the
extent known and available to the parents at the time; and
(7) If an expedited review is requested a
statement specifying the disciplinary grounds supporting the request.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.05 Required Notice for Filing Administrative
Due Process Hearing Complaint.
Public agencies and parents shall comply with the requirements detailed in
34 CFR 300.508 in regard to filing an administrative due process hearing
complaint.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.06 Commencement of Hearing Process.
(a)
The administrative due process hearing process shall commence on the
date the LEA or the parent or parents receive notice of a due process hearing
complaint in accordance with Ed 1123.04, unless the request is withdrawn as
provided in Ed 1123.10.
(b)
The party filing a due process hearing complaint shall forward a copy of
the due process hearing complaint to the office of legislation and hearings,
department of education, within 2 business days of the date that party provided
the original notice of the due process hearing complaint to the other party.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.07 Scheduling of Alternative Dispute
Resolution, Prehearing Conference, and Due Process Hearing.
(a)
At the time of the filing notice of a due process hearing complaint
under Ed 1123.04, the parties shall notify the office of legislation and
hearings of mutually agreeable dates on which the parties would be available
for an optional alternative dispute resolution under Ed 1122, and for a
prehearing conference and a hearing.
(b)
If the parties chose to engage in alternative dispute resolution the
parties shall notify the office of legislation and hearings of mutually
agreeable dates on which the parties would be available for mediation, a
neutral conference, or a local school district alternative dispute resolution
program.
(c)
The scheduling shall allow for the following:
(1) A day for an alternative dispute resolution,
if the parties so decide;
(2) A half day for a prehearing conference; and
(3) A minimum of 2 days for a hearing.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.08 Resolution Process. Public agencies shall comply with the
requirements in 34 CFR 300.510 relative to the resolution process.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.09 Time of Hearing. The hearing shall be conducted no later than
31 days after:
(a)
The parties agree in writing to waive the alternative dispute resolution
session;
(b)
The parties
conduct an alternative dispute
resolution session and do not reach a settlement agreement;
(c)
The parties agree not to use alternative dispute resolution in Ed 1122;
(d)
The complaint is not resolved during the 30- day resolution period
provided in 34 CFR 300.510;
(e)
The due process complaint that meets the requirements of 34 CFR
300.508(c)-(f) has been filed by a public agency.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed
1123.10 Parental Withdrawal of Due
Process Hearing Complaint. A parent
may withdraw an administrative due process hearing complaint without prejudice
until such time as the parent retains legal counsel.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed
1123.11 Local Education Agency
Responsibilities when an Administrative Due Process Hearing Complaint is Filed. Each LEA shall:
(a)
Inform each parent that the parent has the right to request an
administrative due process hearing to appeal the matters described in Ed
1123.03(a);
(b)
Provide each parent with the procedural safeguards notice as required by
34 CFR 300.504; and
(c)
Inform the parent or parents as required by 34 CFR 300.507(b) of any
low-cost legal services and other relevant services available in the area.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.12 Department Administrative Due Process
Hearing Responsibilities.
(a)
The office of legislation and hearings shall schedule optional
alternative dispute resolution, if requested, a prehearing conference, and an
administrative due process hearing as follows:
(1) Immediately upon receipt of mutually
agreeable dates from the parties as provided in Ed 1123.07(a); or
(2) If the parties fail to supply mutually
agreeable dates, the office of legislation and hearings shall schedule the
alternative dispute resolution, if requested, a prehearing conference, and an
administrative due process hearing.
(b)
The office of legislation and hearings shall appoint a hearing officer,
who shall be an attorney or an individual who meets the standards in 34 CFR
300.511(c).
(c)
The office of legislation and hearings shall notify the parties in
writing of:
(1) The time and place of the requested optional
alternative dispute resolution;
(2) The time and place of the prehearing
conference;
(3) The time, place, and nature of the administrative
due process hearing;
(4) Legal authority under which the hearing is to
be held;
(5) The particular sections of the statutes and
rules involved, including a copy of Ed 1123;
(6) A short and plain statement of the issues
involved;
(7) The party’s right to have an attorney present
to represent the party at the party’s expense;
(8) The names of the hearing officer who shall
conduct the mediation; and
(9) The name of the hearing officer who shall
review the sufficiency statement and conduct the due process hearing.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.13 Voluntary Production of Information.
(a)
Each party shall attempt in good faith to make a complete response to
requests, as soon as practicable, for the voluntary production of information.
(b)
When a dispute between parties arises concerning a request for the
voluntary production of information, releases or documents, any party may file
a motion to compel the production of the requested information under Ed
1123.14.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.14 Motion to Compel Production of Information.
(a)
Any party may file a motion requesting that the hearing officer order
the parties to comply with information requests. The motion shall be filed at least 15 days
before the date scheduled for the hearing, or as soon as possible after
receiving the notice of hearing. Any
objection to the motion to compel shall be filed within 5 days of the date
receipt of the motion.
(b)
The moving party’s motion shall:
(1) Set forth in detail those factors which it
believes justify its request for information; and
(2) List with specificity the information it is
seeking to discover.
(c)
When a party has demonstrated that such requests for information are
relevant to the issues described in the hearing notice and are necessary for a
full and fair presentation of the evidence at the hearing, the hearing officer
shall grant the motion to compel.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.15 Prehearing Procedures. A prehearing conference shall be conducted by
a hearing officer and governed by the following:
(a)
Parties shall be prepared to discuss the issues described in RSA
541-A:31,V(c);
(b)
Parties shall exchange, and provide to the hearing officer, witness
lists including a brief description of each witness’s testimony, and
documentary evidence at least 5 business days before the hearing. Documentary evidence exchanged shall be
legibly labeled in the upper right-hand corner with consecutive Arabic numerals
as either “School District Exhibit (number)” or “Parent Exhibit (number)”, as
appropriate. An index, by title, of all
exhibits submitted shall also be exchanged.
Submission of evidence, evaluations, and recommendations shall comply
with 34 CFR 300.512; and
(c) In order to limit testimony at the hearing to
only those factual matters which remain in dispute between the parties, each
party shall submit a statement of facts.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.16 Notification Concerning Agreement. If the parent and the LEA reach an agreement
prior to the hearing, the LEA superintendent or the superintendent’s designee
shall, within 5 business days after the
signing of the agreement, provide written notice to the office of legislation
and hearings requesting the cancellation of the hearing because an agreement
has been reached.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.17 Hearing Procedures. The hearing shall be conducted by a hearing
officer, governed by the following:
(a)
The party that has initiated the hearing shall present its case first
unless the hearing officer determines that the change in the order of
presentation would not materially prejudice any party’s right to a full and
fair hearing, and:
(1) The hearing would proceed in a more timely
manner if the party not initiating the hearing presents their case first; or
(2) The hearing would proceed in a more efficient
manner if the party not initiating the hearing presents their case first;
(b)
All hearings shall be electronically recorded by the hearing officer or
the hearing officer’s designee. The
hearing officer recording shall be the official record of the hearing unless a
party requests and pays for stenographic recording of such hearing. If a party requests and pays for a
stenographic recording of the hearing, the stenographic record shall be under
the control of the hearing officer and shall be the official record;
(c)
Any party to a hearing shall have the right to:
(1) Be accompanied and advised by an attorney, or
by individuals with special knowledge or training with respect to children with
disabilities, pursuant to 34 CFR 300.512;
(2) Present evidence and confront, cross-examine,
and compel the attendance of witnesses in accordance with RSA 186:16-a and 34
CFR 300.512(a)(2);
(3) Request that the hearing officer prohibit the
introduction of any evidence at the hearing that has not been disclosed to that
party at least 5 business days before the first day of the scheduled hearing;
(4) Obtain an electronic verbatim record of the
hearing at any point during the hearing, or afterwards;
(5) Obtain a decision of the hearing officer that
sets forth the factual findings and legal conclusions; and
(6) Record the hearing;
(d)
At the conclusion of the hearing a parent may request one copy of the
verbatim record of the hearing and/or one copy of the hearing officer’s written
decision at no cost. These documents
shall be provided in either electronic or written format at the discretion of
the parent;
(e)
If the parent requests more than one copy the department shall charge
the parent as follows:
(1) In the case of a parental request for information
detailed in Ed 1123.17(c), the first format requested shall be the one provided
at no cost;
(2) Subsequent requests for the same information
in an alternative format shall be provided and the department shall charge only
its cost for providing the information in the alternative format; and
(3) Parental requests for additional copies shall
be provided at the department’s cost;
(f)
A parent involved in an administrative due process hearing has the right
to open the hearing to the public.
However, if an administrative due process hearing is open to the public,
the hearing officer shall seat the members of the public and position their
equipment in such a way that the public and equipment do not interfere with the
proceedings;
(g)
Each party shall have one day to present its case, unless additional
time is necessary for a full, fair disclosure of the facts necessary to arrive
at a conclusion;
(h)
The hearing officer shall limit the number of additional witnesses to
eliminate redundant, cumulative, or irrelevant testimony;
(i)
The hearing officer shall limit examination of a witness by either party
to avoid redundant, cumulative, or irrelevant testimony;
(j)
The hearing officer shall not include in an order or in a final decision
any terms or conditions repugnant to state or federal law resulting from a
settlement agreement or a signed written agreement, reached by the parties at alternative
dispute resolution; and
(k)
The department shall enforce the elements of settlement agreements or
alternative dispute resolution agreements only if they are adopted as
amendments to an IEP and only if the agreement meets the requirements of the
IDEA, New Hampshire RSAs, and the implementing rules and regulations of those
laws.
Source. (see Revision Note at chapter heading for Ed
1100) #9197, eff 6-28-08; ss by #12141, eff 3-24-17
Ed 1123.18 Hearing Officer Decision.
(a)
Requests for findings of fact shall be limited to those facts necessary
to support the decision.
(b)
Requests for rulings of law shall be limited to those central issues of
law, if any, which are contested or essential.
(c)
The hearing officer shall render a decision, including findings of facts
and rulings of law consistent with RSA 541-A:35.
(d)
Any party aggrieved by the decision of the hearing officer may appeal
the decision as provided in Ed 1123.20.
(e)
The department shall ensure that not later than 45 days after
the time for conducting an administrative due process hearing in Ed 1123.09:
(1) A final decision is reached in the hearing
consistent with RSA 541-A:35; and
(2) A copy of the decision is sent by certified
mail to each of the parties.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.19 Extension of 45-Day Period.
(a)
A hearing officer may grant extensions of time beyond the period set out
in Ed 1123.18(e), except as to expedited hearings, for specific periods of time
at the request of either party if:
(1) The child’s educational progress or
well-being would not be jeopardized by the delay;
(2) A party would not have adequate time to
prepare and present the party’s position at the hearing in accordance with the
requirements of due process; and
(3) The need for the delay is greater than any
financial or other detrimental consequences likely to be suffered by a party in
the event of delay.
(b)
A hearing shall not be continued by the hearing officer because of the
hearing officer’s schedule.
Source. (see Revision Note at chapter heading for Ed 1100)
#9197, eff 6-28-08; ss by #12141, eff 3-24-17
Ed 1123.20 Appeal of Decision of Hearing Officer.
(a) Any party aggrieved by a final decision of
the hearing officer in a hearing may appeal that decision to a court of
competent jurisdiction in accordance with 34 CFR 300.516(a).
(b) Parties aggrieved by the findings and final
decision of the hearing officer in a due process hearing may bring a civil
action under 34 CFR 300.516(a).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.21 Copies of Decisions to be Available. The office of legislation and hearings shall:
(a)
Provide to the state advisory committee a copy of each decision of the
hearing officers, including findings of fact, after the deletion of personally
identifiable information as set forth in 34 CFR 99.
(b)
Make available to the general public a copy of each decision of the
hearing officers, after the deletion of personally identifiable information.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.22 Post-hearing Matters.
(a)
The decision of a hearing officer shall be implemented immediately,
except as provided in Ed 1123.23, unless a delay is agreed to in writing by
both parties, or one party files a timely appeal under 34 CFR 300.516(a) to a
court of competent jurisdiction. Unless
an appeal to court is filed by either party, or a delay is agreed to, the
hearing officer’s decision shall be fully implemented within 30 days.
(b)
If neither party appeals the decision of the hearing officer to court,
the LEA shall, within 90 days following the date of the decision, provide to
the office of legislation and hearings a written report describing the
implementation of the hearing officer’s decision and provide a copy of this
report to the opposing party. If the
opposing party does not concur with the LEA’s report, he or she shall submit
his or her own report to the office of legislation and hearings.
(c)
Attorney’s fees shall be awarded consistent with 34 CFR 300.517.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.23 Child’s Status During Proceedings.
(a)
Unless both parties agree otherwise, during the pendency of an
administrative due process hearing or
judicial proceeding, the child involved shall remain in his or her current
educational placement, pursuant to 34 CFR 300.518 except for the circumstances
detailed in 34 CFR 300.533.
(b)
If the matter involves an application for initial admission to public
school, the student, with the consent of the parent if a minor, or a consenting
adult student, shall be placed in the public school until the completion of all
the proceedings.
(c)
If the decision of a hearing officer in an administrative due process
hearing agrees with the child’s parents or the adult student that a change of
placement is appropriate, that placement shall, pursuant to 34 CFR 300.518(d),
be treated as an agreement between the state or LEA and the parents or adult
student for the purposes of (a) above.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.24 Hearing Officers.
(a)
The office of legislation and hearings, pursuant to 34 CFR 300.511(c),
shall keep a list of persons who serve as hearing officers. This list shall include a statement of the
qualifications of each of those persons.
(b)
Hearing officers appointed by the department under RSA 186-C:16-a shall
be attorneys who have been admitted to the practice of law in at least one
jurisdiction or other individuals with knowledge of state and federal special
education law.
(c)
The commissioner of education shall enter into contracts with attorneys
or other individuals with knowledge of state and federal special education law
to serve as impartial due process hearing officers at administrative due
process hearings.
(d)
Such hearings shall not be conducted:
(1) By a person who is an employee of a state
agency or LEA which is involved in the education or care of the child;
(2) By any person having a personal or
professional interest which would conflict with his or her objectivity in the
impartial due process hearing; or
(3) By any elected member of a local school
board.
(e)
An attorney or other individuals with knowledge of state and federal
special education law under contract to serve as a hearing officer pursuant to
34 CFR 300.511(c) for purposes of this
rule shall not be considered to come under (d)(1) above.
(f)
Hearing officers shall attend training sessions concerning current
special education practices and law.
(g)
The training sessions required for hearing officers shall include:
(1) Case management programs approved by the
Federal District Court for the District of New Hampshire; and
(2) Training for hearing officers provided by the
department to include, but not be limited to, developments in state and federal
special education law.
(h)
If a person shall serve as a hearing officer he or she shall have no
clients in a special education matter in New Hampshire.
(i)
No person shall serve as a hearing officer who has served as a state or
local school board official or a school administrator, including a special
education administrator, or as an advocate for students with educational
disabilities or their parents, in New Hampshire or in any other state within
the immediately preceding 12-month period.
(j)
No attorney or other individuals with knowledge of state and federal
special education law shall preside as a hearing officer in any hearing in
which there is a party:
(1) Whom the attorney or other individuals with
knowledge of state and federal special education law has represented in any
matter within the immediately preceding 12-month period; or
(2) By whom the hearing officer has been employed
during the immediately preceding 3-year period.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1123.25 Expedited
Due Process Hearings.
(a)
An expedited due process hearing procedure shall be available for
disciplinary issues in accordance with 34 CFR 300.532(b)–34 CFR 300.533, as
provided in 34 CFR 300.532(c).
(b)
The expedited procedure shall provide a full due process hearing, but
under a restricted time schedule as set out in (c) – (e) below.
(c)
Expedited hearings shall:
(1) Not exceed 2 days;
(2) Be held within 20 school days after the
request for hearing is filed; and
(d)
A decision shall be mailed to the parties within 10 days of the
conclusion of the hearing.
(e)
The parties shall provide the hearing officer with mutually agreeable
dates for the hearing, allowing for 2 days for the hearing, within 5 business
days after a party has requested an expedited hearing.
(f)
A prehearing conference shall occur at least 2 business days before the
hearing at which time the parties shall exchange witness and exhibit lists.
(g)
The expedited due process hearing shall meet the requirements of 34 CFR
300.512.
(h)
At least 2 business days prior to the hearing, each party shall disclose
to all other parties all evaluations completed by that date and evidence to be
offered at the hearing, and recommendations based on the offering party’s
evaluations that the party intends to use at the hearing. Any party to the
hearing has the right to request that the hearing officer prohibit the
introduction of evidence at the hearing that has not been disclosed to that
party at least 2 business days before the hearing.
(i)
Hearings shall be held from 9:00 a.m. to 4:00 p.m.
(j)
The following procedures shall apply to hearings:
(1) At the completion of any witness’s testimony or
within 2 business days of the conclusion of the hearing, any party may request
an extension if the party demonstrates that additional time is necessary for a
full and fair disclosure of the facts upon which the decision will be rendered;
(2) The hearing officer shall respond to a
request for extension within 2 business days;
(3) If the hearing officer grants the request for
additional time, the other party shall have 2 business days to respond;
(4) The hearing officer shall have 2 business
days to make a final ruling on any objection or request made in the other
party’s response;
(5) Requests for findings of facts shall be
limited to those facts necessary to support the decision;
(6) Requests for rulings of law shall be limited
to those central issues of law, if any, which are contested;
(7) No additional written memoranda shall be
filed unless requested by the hearing officer on a particular issue;
(8) The hearing officer shall waive any of the
procedures in this paragraph in a case, but only to the extent necessary to
preserve the full and fair nature of the due process hearing;
(9) The hearing officer shall render a decision,
including findings of facts and rulings of law;
(10) The hearing officer shall mail a written
decision to the parties by certified mail within 10 days of the conclusion of
the hearing;
(11) There shall be no exceptions or extensions of
the 45-day period; and
(12) Any party aggrieved by the decision of the hearing
officer may appeal the decision as provided in Ed 1123.20.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed
1124 DISCIPLINARY PROCEDURES FOR
CHILDREN WITH DISABILITIES
Ed 1124.01 Disciplinary Procedures. Each LEA shall develop disciplinary
procedures, including, but not limited to, suspension , expulsion,
manifestation determination, appeals, placement, protection, and referral for
children with disabilities, consistent with the provisions of 34 CFR 300.530 -
300.536.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1124.02 Services for Children with Disabilities
Removed from Current Placement. When
a child with disabilities has been removed from the child’s current placement
for more than 10 days in a school year, in addition to providing services
necessary to enable the child to continue to participate in the general
education curriculum, as provided in 300.530(d)(1)(i), the LEA shall provide
service necessary to provide the child with a disability an opportunity to
progress in the general education curriculum consistent with the child’s
IEP. Such services, if provided at the
child’s home, shall consist of: (a) a minimum of 10 hours/week of instruction,
including special education as specified in the child’s IEP; and (b) related
services as specified in the child’s IEP.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed
1125 STATE DEPARTMENT OF EDUCATION
ENFORCEMENT
Ed 1125.01 Department Enforcement of These
Regulations.
(a)
The application of these enforcement procedures shall occur subsequent
to the issuance of orders resulting from a complaint investigated in accordance
with Ed 1121, a due process hearing conducted in accordance with Ed 1123, or a
monitoring activity conducted in accordance with Ed 1126.
(b)
In the event an LEA, other public agency, private provider of special
education, or other non-LEA program fails or refuses to comply with the
regulations specified in Ed 1100, the department shall invoke the enforcement
procedures described in Ed 1125.02 below.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1125.02 Enforcement Procedures.
(a)
The commissioner of education or the commissioner’s designee shall
appoint personnel from the bureau of special education to monitor the execution
of the orders of compliance issued to an LEA, other public agency, private
provider of special education, or other non-LEA program as a result of a
complaint investigated in accordance with Ed 1121, a due process hearing
conducted in accordance with Ed 1123, or a monitoring activity conducted in
accordance with Ed 1126.
(b)
At the conclusion of the time limit specified for the LEA, other public
agency, private provider of special education, or other non-LEA program to have
completed the corrective action specified in the orders of compliance, the
administrator of the bureau of special education of the department shall
forward to the commissioner of education a written report indicating whether
the issues have been resolved, and if not, the extent to which the agency had
taken corrective action to achieve compliance with the IDEA and Ed 1100.
(c)
In the event the written report shows that the LEA, other public agency,
private provider of special education, or other non-LEA program has not
complied with orders issued by the department, the commissioner of education
shall give the written notice of the further enforcement action to be taken.
(d)
When taking enforcement action, the commissioner shall consider:
(1) Severity, length and the repetitive nature of
the same or other noncompliance;
(2) Whether good faith effort was made to correct
the problem;
(3) The impact on children who are entitled to
FAPE; and
(4) Whether the nature of the noncompliance is
individual or systemic.
(e)
Enforcement action shall include, but not be limited to:
(1) Corrective action plan development,
implementation, and monitoring;
(2) Voluntary and mandatory technical assistance
as determined by the department;
(3) Mandatory, targeted professional development
as determined by the department;
(4) Directives ordering specific corrective or
remedial actions, including, but not limited to, withdrawing program approval
pending an appeal;
(5) Targeting or redirecting the use of federal
special education funds in the areas of concern;
(6) Formal referral to the bureau of
credentialing for review in accordance with Ed 511.02;
(7) Order the
cessation of operations of discrete programs operated by a school district, collaborative program, private provider of
special education, public academy, or state institution for the benefit of
children with disabilities;
(8) Require redirection of federal funds to
remediate noncompliance of more than one year;
(9) Making no further
payments of state or federal funds to the LEA or other public agency until the
department determines that there is no longer any failure to comply with the
orders;
(10) Order, in accordance with a final state audit
resolution determination, the repayment of misspent or misapplied state or
federal funds;
(11) In the case of an LEA or other public agency,
refer the matter to the department of justice for further action; and
(12) In the case of a private provider of special
education, or other non-LEA program, order all school districts with students
placed in the private provider of special education to relocate the students
for whom each district is responsible to other programs or facilities that are
in compliance with the IDEA and Ed 1100.
(f)
A review of programs which may include a desk audit, scheduled on-site
reviews, and unannounced on-site reviews, to ensure compliance shall
take place weekly, monthly, or quarterly.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1125.03 Opportunity for a Hearing.
(a)
The LEA, other public agency, private provider of special education or other
non-LEA program may request a hearing before the state board of education if it
believes that the orders of compliance are inaccurate, invalid, not based on
fact, or any combination of the foregoing.
(b)
An LEA, other public agency, private provider of special education or
other non-LEA program requesting a hearing shall do so within 14 days after the
date of the commissioner of education’s written notification of the enforcement
action that will be taken.
(c)
During the pendency of any administrative or judicial proceeding
regarding the enforcement procedures ordered in Ed 1125 the commissioner of
education shall determine whether students shall remain in the program.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1125.04 Financial Audits. The department’s office of business
management shall audit all state and federal special education monies allocated
to any public or private agency by the department.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1126 STATE DEPARTMENT OF EDUCATION MONITORING OF
EDUCATIONAL SERVICES AND PROGRAMS FOR CHILDREN WITH DISABILITIES
Ed 1126.01 Local Education Agency Request for Special
Education Funds.
(a)
Each LEA shall file a written request for federal special education
funds with the department in order to qualify for assistance under the IDEA as
provided in 34 CFR 300.200. LEAs shall review their requests annually and make
revisions as necessary. The LEA’s
request and any revisions shall be submitted to the department for approval.
Requests that are in compliance with the requirements and criteria established
in 34 CFR 300.201 through 34 CFR 300.212 and Ed 1126.01 shall be approved. LEAs
not having an approved request in effect shall not be eligible to receive state
or federal special education funds.
(b)
The LEA request shall fully and accurately describe the LEA’s policies
and procedures regarding the provision of FAPE to all children with
disabilities and include:
(1) A child find component in compliance with Ed
1105;
(2) A confidentiality component that shall
describe the LEA’s policies and procedures to ensure confidentiality of student
records;
(3) A section on special education facilities,
personnel, and services that shall provide a detailed description of all
facilities, personnel, and services the LEA is required to make available in
those instances where the educational needs of the child with a disability
cannot be met in a regular education setting:
a. Regional programs the LEA shall make available
to children with disabilities;
b. Non-public schools within the LEA serving
children with disabilities;
c. Non-public schools the LEA shall use for
out-of-LEA placements for children with disabilities; and
d. Vocational programs the LEA shall provide for
children with disabilities;
(4) A personnel development component describing
the LEA’s policies and procedures to ensure that professional development
opportunities shall be available to teachers, staff and administrators which
enhance their knowledge and skills related to the education of children with
disabilities, including a description of current in-service activities and
those for the next school year;
(5) A parent involvement component that shall
describe the LEA’s policies and procedures, specifying the participation of
parents in the process of identifying, evaluating, developing IEPs, and
determining placement of children with disabilities;
(6) A public participation component that shall
describe the LEA’s policies and procedures to ensure the LEA application is
available for review by parents, other agencies, and the general public;
(7) A procedural safeguards component describing the
LEA’s policies and procedures which shall ensure that due process,
confidentiality, and other required procedural safeguards are available in
written form to children with disabilities and their parents;
(8) A pupil evaluation to placement section
describing the LEA’s policies and procedures for referral, evaluation,
development of IEPs, and placement for children with disabilities which shall
describe, in chronological order, all participants in the decision making and
implementation;
(9) A program evaluation component that shall
describe the LEA’s policies and procedures for determining:
a. The degree to which the special education or
special education and related services being provided for children with
disabilities are effectively meeting the identified needs of the children with
disabilities;
b. The methods the LEA shall use for determining
program deficiencies and future needs;
c. Strategies designed to eliminate identified
gaps and program needs; and
d. A plan aimed at complying with findings of
the report issued by the commissioner of education following an on-site
compliance monitoring review of the LEA’s special education programs and the
LEA’s implementation of the IDEA by the LEA pursuant to the LEA’s duties as
assigned by RSA 186-C:5;
(10) A component concerning other agencies that
shall describe the LEA’s policies and procedures to ensure coordination with
other local and state agencies in meeting the needs of children with
disabilities;
(11) A component that shall describe the LEA’s
policies and procedures to ensure that children with disabilities enrolled in
private schools by parents who reside in the jurisdiction of the LEA have the
opportunity for equitable participation in special education programs in
accordance with Ed 1111; and
(12) A component that shall describe the LEA’s
reasonable steps to ensure that children with disabilities who need instructional
materials in accessible formats receive those materials at the same time other
children receive instructional materials.
(c)
With respect to children with disabilities placed by their parents in
private schools, whether or not FAPE is an issue, an LEA’s application as
required by Ed 1126.01 shall contain:
(1) A description of how the LEA shall meet the
federal requirements for participation by these children;
(2) The number of children who have been
identified as eligible for IDEA -funded program benefits;
(3) The number of children who shall receive
benefits under the IDEA -funded program;
(4) The basis the LEA used to select the
children;
(5) The manner and extent to which the LEA
consulted with representatives of private school children with disabilities;
(6) The places and times that children will
receive benefits under the program; and
(7) The differences, if any, between the
IDEA-funded program benefits the LEA shall provide to public and private school
students and the reasons for the differences.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1126.02 Criteria for Approval of Public and
Non-Public Programs.
(a)
The department shall use the requirements in Ed 1126 as the basis for
determining program approval.
(b)
The department shall approve public and non-public programs for children
with disabilities through a monitoring process, including but not limited to
on-site visit(s) and examination of written documentation, by reviewing the
following:
(1) Administrative staff, including certification
and professional development;
(2) Instructional staff, including certification
and professional development;
(3) Policies and procedures, including:
a. Procedures for handling confidential
information;
b. Due process guarantees;
c. Least restrictive environment processes;
d. Child find activities;
e. Non-discriminatory testing practices; and
f. IEPs;
(4) School program operation;
(5) School program information;
(6) Related services;
(7) Fiscal aspects of the school, class, or
program;
(8) Physical plant;
(9) Monitoring of IDEA and Title I of the
Elementary and Secondary Education Act;
(10) Compliance with state statutes and state
board of education rules;
(11) Compliance with federal statutes and
regulations;
(12) For LEAs, a review of the LEA request for
special education funds;
(13) Review of complaint procedures;
(14) For LEAs, a review of placement practices;
(15) Review of data systems;
(16) Examination of least restrictive environment
practices; and
(17) Any other component mentioned elsewhere in Ed
1100.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1126.03 Program Approval of Public and Non-Public
Programs.
(a)
All programs operated by LEAs, public academies, private providers of
special education, public agencies, and other non-LEA programs shall be
approved, utilizing the New Hampshire special education approval process in Ed
1126.02 as determined by the bureau of special education in the
department. The bureau of special
education in the department shall issue a written report of findings to the
monitored program, indicating compliance or non-compliance with statutes and
rules relative to all programmatic components and issues monitored by the
reviewing team.
(b)
The written report of findings indicating compliance or noncompliance
shall include corrective actions for each area of non-compliance and timelines
for which the corrective actions shall be completed.
(c)
The monitored program listed in Ed 1126.03(a) may respond to the bureau
of special education’s report and request changes regarding factual errors
within 15 days of receipt of the written report. The director of the bureau of special
education shall review the request for reconsidering evidence of fact(s)
presented and issue the bureau’s decision and final report no later than 30
days after receiving the request for changes from the monitored program.
(d)
The bureau of special education in the department shall issue an
approval of the program as follows:
(1) An LEA program shall remain approved unless
disapproved. In the event that standards
are not met, the bureau of special education shall monitor and enforce a
corrective action plan and apply appropriate sanctions as necessary to ensure
compliance;
(2) The private provider of special education,
public academy or other non-LEA program shall receive approval by the bureau of
special education if their program meets the standards established by the IDEA
and Ed 1100;
(3) The private provider of special education,
public academy or other non-LEA program shall receive provisional approval if:
a. The issue(s) of non-compliance are systemic
in scope; and
b. Students in the program are receiving a FAPE;
(4) Private providers of special education,
public academies or other non-LEA programs who are provisionally approved shall
not accept any additional students with disabilities until fully approved;
(5) An LEA, public academy, private provider of
special education, public agency, or other non-LEA program shall have its
approval revoked when the LEA, public academy, private provider of special
education, public agency, or other non-LEA program does not provide FAPE and
has not corrected the issue(s) of noncompliance within the timeframe specified
by the department or when a condition exists endangering the health, welfare or
safety of children and youth with disabilities in attendance. The commissioner of education shall take
action, including, but not limited to, immediate disapproval of the program
pursuant to Ed 1125; and
(6) The approval status of all public academies,
private providers of special education, public agencies, or other non-LEA
programs shall be posted on the department of education’s website on an ongoing
basis.
(e)
For the establishment of new or changes to existing programs, the LEA,
public academy, private provider of special education, public agency, or other
non-LEA program shall submit a completed application that meets the standards
established by IDEA and Ed 1100. Upon initial approval of the application a
visit shall be scheduled by the bureau.
(f)
Incomplete applications for new or changed programs shall only be
considered for up to 6 months from the date the program was informed of their
program approval status. Incomplete
applications may be completed within 6 months.
Incomplete applications after 6 months will be closed.
(g)
No students may be placed or attend a program until the application
process is complete and the program has received a notice of either initial
approval or final approval.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1126.04 Waiver Process for Placements in Approved
In-State Programs.
(a)
The LEA may submit a request to the department to place an additional student
who does not meet the approved public or private in-state program’s age range
or program capacity.
(b)
The department shall review the LEA’s request and shall approve said
request if it meets the criteria set forth in Ed 1126.04(e)-(f);
(c)
The LEA or private in-state special education program, upon the
department’s approval of the assurances and request detailed in Ed
1126.04(d)-(e), may:
(1) Accept one student who meets an approved
special education program’s “disabilities served” but is below or above the
program’s age range by no more than one year; or
(2) Accept one student who meets the program’s age-range
and disabilities served, but whose acceptance will result in the program
exceeding its program capacity by no more than one additional student.
(d)
No more than one student may be placed in any approved public or private
special education program pursuant to Ed 1126.04.
(e)
The LEA shall provide the department with evidence that:
(1) The proposed placement will provide the
student a FAPE; and
(2) The proposed placement will provide the
student access to and the ability to progress in the general curriculum.
(f)
The request for the waiver must include the following information:
a. Information on a current waiver (if
applicable);
b. Student name;
c. Date of birth;
d. Current grade;
e. Name of LEA;
f. Name of private in-state agency;
g. Name of approved special education program;
h. Name and contact information of person
completing the request;
i. Description of how the proposed placement
will provide the student with a FAPE;
j. Description of how the proposed placement
will provide the student access to, and the ability to, progress in the general
curriculum;
k. A copy of the student’s IEP.
(g)
An LEA shall not place a child with a disability pursuant to Ed 1129.04
until the LEA has received written approval from the department. The department
shall approve or disapprove the placement within 5 business days.
Source. (see Revision Note at chapter heading for Ed
1100) #9197, eff 6-28-08; ss by #12141, eff 3-24-17
Ed 1126.05 Placements in In-State Programs Not
Currently Approved to Provide Special Education and Related Services.
(a)
An LEA shall not place a child with a disability in a program not
currently approved to provide special education and related services until the
following requirements have been met:
(1)
The LEA shall have conducted a search and determined that there are no
approved in-state special education programs available to meet the individual
child’s need for special education and related services;
(2) The LEA shall review inspection reports and
certificates to determine that the in-state facility meets New Hampshire health
and fire regulations for non-public schools as established by public health statute RSA 200:11, Ed 306.07, and the state fire code as adopted by
the New Hampshire department of safety in Saf-C 6000;
(3) A representative of the LEA shall
have:
a. Visited the facility;
b. Reviewed staff qualifications to confirm that
such staff are qualified personnel as set forth in Ed 1114.10(a);
c. Reviewed instructional materials and setting;
and
d. Discussed the child’s needs with staff
providing direct services;
(4) Subsequent to the visitation required in (3)
above, the LEA’s IEP team shall determine whether the facility is capable of
implementing the child’s IEP; and
(5) The following documentation shall be provided
by the LEA to the department to demonstrate program compliance under this
paragraph:
a. A statement that the facility meets New
Hampshire fire and health statutes and rules
for schools as referenced in (2) above, including copies of documents
relating to inspections currently in effect supplied by the person performing
the fire or health inspection;
b. The date the facility was visited by a
representative of the LEA;
c. A description of:
1. The specific needs of the child which cannot
be met by any approved special education program;
2. A list of the approved programs which were
considered and rejected and why they were rejected; and
3. Why the proposed placement is the least
restrictive environment for the child;
d. A copy of the child’s IEP;
e.
The following information
regarding the proposed program:
1.
School name;
2. Program name;
3. Start date;
4. End date;
5. Disabilities served by the program;
6. Whether the education setting is a regular
setting or a special setting;
7. Whether the environment is a self-contained
program, a resource room program, a regular education program, or a home-based
program;
8. Age range served;
9. Sex of students served;
10. Whether the program is day or residential;
11.
The name of the contact person for
the program;
12. The contact person’s title; and
13. The contact person’s telephone number;
f.
Copies of the certification/licensing credentials of the staff who will
be providing the special education and related services to the child; and
g.
Statements provided shall
include:
1.
A statement of how the
instructional materials and setting will provide the required involvement in
the general curriculum, resulting in progress
in the general curriculum as required under 34 CFR 300.320;
2. A statement, in compliance with the child’s
IEP, of how the child will participate in state and district-wide
assessments;
3. A statement that the program is capable of
implementing the child’s IEP and providing FAPE; and
4. A statement that the program is in full
compliance with the behavioral intervention requirements detailed in Ed 1114.07
(b)
The department shall review all documentation submitted by the LEA and
shall approve requests for individual placement of children with disabilities
at in-state facilities not currently approved to provide special education and
related services when the documentation demonstrates that the child will
receive FAPE in the least restrictive environment.
(c)
The maximum number of placements of individual children with
disabilities the department shall approve at any one facility not currently
approved to provide special education and related services shall be 5.
(d)
Facilities not currently approved to provide special education and
related services wishing to serve more than 5 children with disabilities shall
apply for special education program approval.
Source. (see Revision Note at chapter heading for Ed
1100) #9197, eff 6-28-08; ss by #12141, eff 3-24-17
Ed 1126.06 Out-Of-State Placements.
(a)
Public agencies shall place children with disabilities, for the purpose
of receiving special education and related services, in only those out-of-state
schools, classes, or programs which are approved by the host state for the
purpose of providing special education and related services within that state.
Any limitation by the host state on the state’s approval of the school’s
provision of special education and related services, such as by category of
disability served or other comparable standard, shall apply to the schools,
classes, and programs approved for New Hampshire children.
(b)
If an out-of-state program does not meet the standards of Ed
1114.07-1114.09, the LEA shall not place a student in the program.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1126.07 New Hampshire Special Education
Information System (NHSEIS).
(a)
After parental consent is obtained as required under Ed 1120.04, the LEA
shall transmit the following information electronically to the department using
NHSEIS:
(1) Information describing the child, including:
a. The child’s name;
b. The child’s town of residence;
c. The child’s LEA;
d. The child’s date of birth; and
e. The child’s identifying number, if the department
has already assigned a number through its NHSEIS computer system.
(2) Identification of the evaluations conducted
to determine that the child has a disability, the categories of qualified
examiners administering the evaluations, and the dates administered;
(3) Identification of the child’s disability;
(4) Identification of the child’s specific
special education program and if necessary, related services, the extent to
which the child will not participate with nondisabled children in regular
educational programs as required by 34 CFR 300.320(a)(5), and the projected
date for initiation and anticipated duration of the special education or
special education and related services;
(5) The dates that:
a. The IEP team determined the child to have a
disability;
b. The parent approved the IEP; and
c. The IEP team selected the child’s education
placement;
(6) Discharge information for transition
planning; and
(7) The date and duration of the removal, if any,
of the child from the child’s current educational placement for disciplinary
reasons, and any other information required to comply with the federal
reporting requirements under 34 CFR 300.170.
(b)
When a child is no longer receiving special education or related
services, the LEA or public agency shall enter into NHSEIS the reason why the
child is no longer receiving special education or related services.
(c)
For financial and monitoring purposes, the LEA shall be responsible for
entering information into NHSEIS within 20 days of any action required to be
entered into NHSEIS in order to comply with federal reporting requirements
under 34 CFR 300.640–34 CFR 300.641.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed 1127
CHILDREN WITH DISABILITIES IN PLACEMENTS FOR WHICH DCYF HAS FINANCIAL
RESPONSIBILITY
Ed 1127.01 Definitions. The following definitions shall apply for the
purposes of Ed 1127:
(a)
“Children in placement for which DCYF has financial responsibility”
means all children receiving special education or special education and related
services whose placements were made pursuant to RSA 169-B, RSA 169-C or RSA
169-D, except children awaiting disposition of the court following arraignment
pursuant to RSA 169-B:13.
(b)
“Financially responsible school district” means:
(1) The school district in which a child most recently
resided other than in a home for children, health care facility, or state
institution, if such child is not in the legal custody of a parent or if the
parent resides outside the state; or
(2) The school district in which the parent
resides if the child is retained in the legal custody of a parent residing
within the state.
(c)
“Legal custody” means “legal custody” as defined in RSA 169-C:3, XVII.
(d)
“Legal supervision” means a legal status created by court order wherein
the child is permitted to remain in his or her home under the supervision of a
child placing agency subject to further court order.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1127.02 Application and Criteria for Financial
Assistance.
(a)
Local school districts may make application to the department for
financial assistance for children with disabilities in placement for which DCYF
has financial responsibility.
(b)
Invoices for such financial assistance shall be made within 30 days from
the date the local school district’s financial liability commences
(c)
A school district shall receive financial assistance under this program
when:
(1) The school district furnishes the department
with written evidence that the child is in placement for which DCYF has
financial responsibility;
(2) The child is identified as a child with a
disability in accordance with the requirements of Ed 1107;
(3) The child has an IEP for the placement as
required in Ed 1109; and
(4) The child has been placed at a private school
for the current school year as evidenced by information supplied by the
financially responsible school district or districts and maintained in NHSEIS
pursuant to Ed 1126.07(c).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1127.03 Limitations and Financial Liability.
(a)
A school district’s liability for expenses for special education and
related services for a child with a disability in placement for which DCYF has
financial responsibility shall be limited as stated in RSA 186-C:19-b, II,
namely, “to 3 times the estimated state average expenditure per pupil for the
school year preceding the year of distribution” or actual costs, whichever is
less.
(b)
A school district’s liability shall begin when the child with a
disability is placed in a placement for which DCYF has financial
responsibility.
(c)
The department’s financial liability for the cost of a child with a
disability in placement for which DCYF has financial responsibility shall be
limited to the difference between 3 times the estimated state average
expenditure per pupil for the school year preceding the year of distribution
paid to the private provider by the liable school district or districts and the
total approved special education or special education and related service costs
for that provider as set for that private provider of special education
services pursuant to Ed 1127.
(d)
In those instances where approved special education or special education
and related service figures are not delineated separately from other costs, the
liability of the department for the costs shall be limited to the difference
between 3 times the estimated state average expenditure per pupil for the
school year preceding the
year of
distribution paid to the private provider and 50% of the total approved costs
for that provider as set for that private provider of special education
services pursuant to Ed 1127.
Source. (see Revision Note at chapter heading for Ed
1100) #9197, eff 6-28-08; ss by #12141, eff 3-24-17
Ed 1127.04 Criteria for State Payments. In order for a provider to receive payments
from the state, the financially liable school district shall enter cost
information into NHSEIS and submit invoices to the department.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
PART Ed
1128 SPECIAL EDUCATION AID
Ed
1128.01 Definitions.
(a) “Special education aid” means financial
assistance for special education costs distributed under RSA 186-C:18, III to a
responsible school district.
(b) “Contributed funds” means funds contributed
to defray the cost of a special education and by any party or agency other than
the LEA.
(c) “Direct costs” means those costs which can be
identified specifically with the provision of special education and related
services, as included in a child’s IEP.
(d) “Emergency assistance” means funds
appropriated for special education costs as provided in 186-C:18, III.
(e) “Indirect costs” means those costs which have
been incurred for common or joint objectives and which cannot be identified
with the provision of special education and related services as included in a
particular child’s IEP.
(f) “Responsible school district” means a school
district which is responsible for a child with a disability for whom the costs
of special education exceed the formula established by RSA 186-C:18, III.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #12601, eff 8-9-18
Ed 1128.02 Reimbursement. A responsible school district shall be
reimbursed for special education aid if the requirements of this section are
met:
(a) The special education costs for which the
district is seeking payment shall exceed the statutory threshold established by
RSA 186-C:18, III;
(b) Each child with a disability for whom the
responsible district is seeking special education aid reimbursement shall be:
(1)
Enrolled in an approved special education program that:
a.
Provides FAPE; and
b.
Meets the requirements established in:
1.
Ed 1128.02;
2.
Ed 1128.03;
3.
Ed 1128.05; or
4.
Ed 1117; or
(2)
In a placement for which a hearing officer, pursuant to Ed 1123, orders
the responsible school district to reimburse parents in accordance with 34 CFR
300.148;
(c) The responsible school district shall report
evaluation, placement, and eligible cost data for a child with a disability for
special education aid in accordance with Ed 1128.07; and
(d)
The information entered into NHSEIS under Ed 1128.04 shall be certified on the
“Superintendent’s Verification of SPECIAL EDUCATION AID” form completed, signed
and dated by an individual authorized to make application for special education
aid on behalf of the responsible school district. The form shall certify the following
information: “During the Fiscal Year,
the total expenses entered above were incurred by the school district for
services provided to the Special Education students who were eligible for
Special Education Aid. The cost to the
district for fulfilling each student’s Individual Education Program (IEP)
during Fiscal Year has exceeded 3-1/2 times the estimated state average
expenditure per pupil for the school year preceding the year of
distribution. The district is only
requesting reimbursement for costs paid by local
funds. No reimbursement is being requested for
personnel or services paid by IDEA federal funds. Detailed accounting will be maintained by the
school district and will include the invoices, as well as checks and payment vouchers
on which the payments were made.” The certification form shall be submitted to
the department no later than 4:30 p.m. on August 15 or, if August 15 falls on a
weekend, no later than 4:30 p.m. on the next business day.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #12601, eff 8-9-18
Ed 1128.03 Limitations on Reimbursement. A responsible school district shall:
(a)
Be eligible for reimbursement only for those direct costs which are
included in the IEP of a child with a disability, and which qualify as special
education and related services; and
(b)
Not be reimbursed for:
(1) Costs which exceed rates established by Ed
1129 for tuition, instruction, room and board, and related services; or
(2) Indirect costs.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #12601, eff 8-9-18
Ed 1128.04 Application for Special Education Aid. To apply for the special education aid,
a responsible school district shall:
(a)
Enter the following program information into the NHSEIS database system
for the current reporting year:
(1) Instructional costs;
(2) Room and board costs;
(3) Tuition costs;
(4) Costs for related services, for which the
department has approved a rate under Ed 1129, including:
a. Counseling, both individual and group;
b. Occupational therapy, both individual and
group;
c. Physical therapy, both individual and group;
and
d. Speech pathology, both individual and group;
(5) Costs for related services for which the
department had not approved a rate under Ed 1129, provided such services are
included in the IEP of the child with a disability;
(6) Transportation costs;
(7) Exceptional costs, including diagnostic costs
for services defined under Ed 1107; and
(8) Any contributed funds; and
(b)
Send supporting documentation to the department for:
(1) Transportation costs under (a)(6) above in
excess of $5,000;
(2) Exceptional costs under (a)(7);
(3) Instruction, room and board, and tuition
costs from out-of-state facilities, if applicable;
(4) Instructional costs from public programs; and
(5) All related services when no rate is set.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #12601, eff 8-9-18
Ed 1128.05 Calculation of Cost of Special Education. The cost of special education for a
particular child with a disability shall equal the costs entered into NHSEIS
under Ed 1128.04(a)(1) – (7), less contributed funds entered into NHSEIS under
Ed 1128.04(a)(8).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #12601, eff 8-9-18
Ed
1128.06 Emergency Assistance.
(a) Emergency assistance shall be available
pursuant to RSA 186-C 18, III.
(b) When a responsible school district applies
for emergency assistance, it shall:
(1)
Enter information into NHSEIS as provided in Ed 1128.04(a); and
(2)
Supply supporting documentation as provided in Ed 1128.04(b).
(c) An application for emergency assistance for
the school year in progress shall be submitted to the department by a
responsible school district no later than 4:30 p.m. on the first Friday of May.
(d) On applications for emergency assistance, a
responsible school district shall document that:
(1) The district could not have
anticipated the need of this child with a disability for a comprehensive
special educational program;
(2) The district is experiencing a financial
crisis and could not, through line item budget transfers or other financial
management techniques, appropriate the funds necessary to provide this child
with a disability with FAPE; and
(3) There are no other sources of
financial support available to assist the district with the funding of this
placement.
(e) If a responsible school district receives
emergency assistance funds for certain children with a disability, it shall not
receive special education for these same children.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #12601, eff 8-9-18
Ed
1128.07 Proration. Pursuant to RSA 186-C:18, IX, when a child
with a disability transfers from one responsible school district to another
during the school year, the following shall apply to the proration of special
education aid and emergency assistance among responsible districts:
(a) Each district shall be reimbursed for only
each school day on which the child was a resident of the district; and
(b) Each district shall file separate application
forms.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17; ss by #12601, eff 8-9-18
Ed 1128.08
State Aid For In-District Programs.
(a)
For the purposes of this section,
“supplemental costs” means the difference between the district’s average per
pupil cost and the cost of education for the child with a disability.
(b)
A liable school district shall be reimbursed
for the development or maintenance of an in-district special education program,
under this paragraph, if the following requirements are met:
(1) The
costs for which the district is seeking reimbursement shall establish or
support a school district-based program for a child with disabilities who was
in an out-of-district placement in the previous school year as required in RSA
186-C:18, XI;
(2) The
in-district program shall be approved pursuant to the provisions of Ed 1126.02;
(3) The
child for whom the district is seeking reimbursement shall have been placed in
the in-district program pursuant to the provisions of Ed 1111.02;
(4) The
child for whom the district shall be seeking reimbursement shall be receiving a
FAPE;
(5) The
liable school district shall report eligible cost data for a child with a
disability pursuant to Ed 1128.04, (a), (1) through (5) and in accordance with
Ed 1128.07, if applicable;
(6) The information entered into NHSEIS under
Ed 1128.04 shall be certified on the “Superintendent’s Verification of SPECIAL EDUCATION AID” form signed and dated by an individual authorized to make
application for state aid on behalf of the liable school district;
(7) The
verification form shall be submitted to the department no later than 4:30 p.m.
on August 15 or, if August 15 falls on a weekend, no later than 4:30 p.m. on
the next business day; and
(8)
Payment to the school district, under this paragraph, shall be on or
before January 1.
(c)
Limitations on reimbursement shall be as follows:
(1) A
liable school district shall be eligible for reimbursement under this paragraph
only for children with disabilities whose placement has changed from an
out-of-district placement to an in-district program developed or maintained by
the responsible school district, and only for:
a. The
direct costs that are included in the IEP in accordance with (b) (5) above; and
b. The
direct costs that qualify as special education and related services, that allow
the student with disabilities to be educated in the local school district
program;
(2) A
liable school district shall not be reimbursed for:
a.
Costs which exceed rates established by Ed 1129 for tuition,
instruction, and related services;
b.
Indirect costs; or
c.
Contributed funds;
(3) The
reimbursement amount the school district shall receive shall be the greater of:
a. The
supplemental costs incurred by the school district to educate the child in the
in-district program; or
b. The amount
the school district received for the child in the last year of the
out-of-district program, prior to placing the student in the in-district
program, under this paragraph; and
(4) The
reimbursement under (c) (3) above shall be made for 3 years, as follows:
a.
Reimbursement under (c) (3) a. above the supplemental amount for all 3
years; or
b.
Reimbursement under (c) (3) b. above:
1. In
year one, 70 percent of the total amount in (c) (3) b. above;
2. In
year 2, 50 percent of the total amount in (c) (3) b. above; and,
3. In
year 3, 30 percent of the total amount in (c) (3) above.
(d)
Funds distributed under RSA 186-C:18, XI shall be:
(1) Made in accordance with the provisions of (b)
above;
(2) Prorated in accordance with RSA 186-C:18, III (a), if
insufficient funds are appropriated; and
(3) Used to assist
school districts in meeting special education aid costs in their special education programs to the extent that
they are not used to fund the program set out in RSA 186-C:18, XI.
Source. #9694, eff
4-16-10; ss by #12141, eff 3-24-17; ss by #12601, eff 8-9-18
PART Ed 1129 RATE SETTING
Ed 1129.01 Definitions. Except where the context makes another
meaning clear, the following words have the meaning indicated when used in Ed
1129:
(a)
“Accrual basis of accounting” means an accounting method which
recognizes revenue when it is earned rather than when it is received, and
expense is recognized when it is incurred rather than when it is paid;
(b)
“Advertising costs” means those costs of media services, solicitations
of bids for goods and services, recruiting personnel and development of school
brochures and program descriptions;
(c)
“Agency” means any private provider of special education services which
has been approved by the department as a provider of special education and/or
related services;
(d)
“Allowable costs” means those costs determined by the department to be
reasonable in accordance with Ed 1129.12 and required for the operation of
approved special education programs pursuant to Ed 1100;
(e)
“Consultant” means an independent contractor who is a member of a
particular profession who provides professional services or expert advice to an
agency;
(f)
“Direct costs” means costs which can be identified specifically with the
organization’s final cost objectives, as determined in accordance with Ed
1129.13;
(g)
“Executive” means the person performing the administrative functions and
duties that are necessary to the general supervision and direction of the
operations of the agency, including, but not limited to:
(1) Hiring
and firing of personnel;
(2) Administrating supervision of the
personnel;
(3) Supervising the maintenance of
educational records;
(4) Maintenance of payroll,
bookkeeping and other records; and
(5) Supervising the maintenance
and repairs of the facility;
(h)
“Indirect costs” means those costs which have been incurred for common or
joint objectives and cannot be readily identified with a particular final cost
objective, as determined in accordance with Ed 1129.14;
(i)
“Length of the school year” means the total number of days during which
the program provides services in the rate setting period;
(j)
“Program capacity” means the maximum number of children with
disabilities that can be enrolled in a school, class or program as specified in
Ed 1100;
(k)
“Related party” means all affiliates of an enterprise, including but not
limited to the following:
(1) Its management and their immediate families;
(2) Its principal owners and their immediate
families;
(3) Beneficial employee trusts that are managed
by the management of the organization; and
(4) Any party that can or does deal with the
organization and has ownership of, control over, or can significantly influence
the management or operating policies of another party to the extent that an
arm’s length transaction cannot be achieved;
(l)
“Reasonable costs” means those costs which are prudent, within cost
limitations and are required for the operation of approved special education
programs;
(m)
“Special education costs” means the sum of all costs less applicable
credits; and
(n)
“Surplus” means the positive net difference of revenue over expense from
operations, regardless of whether that difference is called surplus, profit,
excess of support and revenue over expense, or fund balance increase on the
entity’s books of account.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.02 Rate Setting Budget Proposal.
(a)
In order to obtain a rate for special education instruction, room and
board, physical therapy, occupational therapy, speech therapy and counseling
from the department, the agency shall complete a budget proposal and submit it
to the department.
(b)
The department shall not act on any proposal which is incomplete, and/or
which contains substantive errors or omissions.
Any such proposal shall be returned for corrections and/or completion.
(c)
The agency shall submit the following in the budget proposal:
(1) Form 1129A:
Cover Sheet;
(2) Form 1129B:
Personnel;
(3) Form 1129C:
Assets and Depreciation;
(4) Form 1129D:
Program Data;
(5) Form 1129E:
Revenues; and
(6) Form 1129F:
Expenses by Line Item.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.03 Form 1129A: Cover Sheet.
(a)
The purpose of the cover sheet shall be to identify the agency making
the budget proposal and to provide certification from the agency that the
information in (b) below is correct.
(b)
When completing Form 1129A: Cover Sheet, the agency shall:
(1) Indicate whether the report being submitted
is the original or an amended submission;
(2) Give the name, address, and telephone number
of the agency;
(3) Give the accounting period;
(4) Give the name, title, mailing address and
telephone number of the person completing the budget proposal;
(5) Give the name of the agency’s authorized
representative;
(6) Give the signature of the agency’s authorized
representative certifying that information within the budget proposal is
correct and accurate to the best of the authorized representative’s knowledge
and that information was not deliberately omitted or falsified;
(7) Give the ownership type such as
proprietorship, partnership, or corporation; and
(8) Give the operating agency type such as for
profit or non-profit.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.04 Form 1129B: Personnel.
(a)
When completing Form 1129B: Personnel, the agency shall:
(1) Indicate whether the report being submitted
is the original or an amended submission;
(2) Give the name of the agency;
(3) Give the fiscal year or years for which the
personnel report is being prepared, the month and year or years on which the
fiscal year or years begin, and the month and year or years the fiscal year or
years end;
(4) Give the date on which the original or
amended personnel report is being prepared;
(5) Give each employee’s full name;
(6) Give the field(s) of study and degree(s)
received, if any, for each employee;
(7) Give each employee’s annual wage or salary;
(8) Allocate that portion of each employee’s wage
or salary which pertains to administrative and general management activities;
(9) Allocate that portion of each employee’s wage
or salary which pertains to fundraising;
(10) Allocate that portion of each employee’s wage
or salary which pertains to other non-special education costs;
(11) Give the amount of each employee’s wage or
salary which pertains to special education instruction;
(12) Give the amount of each employee’s wage or
salary which pertains to any special education room and board costs;
(13) Give the amount of each employee’s wage or
salary which pertains to occupational therapy, physical therapy, speech
therapy, and counseling activities;
(14) Give the total of general management costs,
total costs of fund raising, and total costs of non-special education programs;
(15) Give the total of each employee’s wage or
salary which pertains to all special education programs; and
(16) Give the total of each employee’s wage or
salary which pertains to any special education room and board costs, and to
occupational therapy, physical therapy, speech therapy, and counseling
activities.
(b)
The allocation in (10) above, shall be the percentage of each employee’s
total work time which pertains to this activity. Agencies which do not have a fund raising
activity shall indicate “N/A”.
(c)
The allocations in (11) above, shall be the percentage of each
employee’s total work time which pertains to this activity. Entities which do not have non- special
education costs shall indicate “N/A”.
(d)
The allocation in (12) above, shall be the percentage of each employee’s
total work time which pertains to special education instruction.
(e)
The allocation in (13) above, shall be the percentage of each employee’s
total work time which pertains to any special education room and board costs.
(f)
The allocations in (14) above, shall be the percentage of each
employee’s total work time which pertains to these activities.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.05 Form 1129C: Assets and Depreciation. When completing Form 1129C: Assets and
Depreciation, the agency shall:
(a)
Indicate whether the report being submitted is the original or an
amended submission;
(b)
Give the name of the agency;
(c)
Give the fiscal year or years for which the assets and depreciation
report is being prepared, the month and year or years on which the fiscal year
or years begin, and the month and year or years the fiscal year or years end;
(d)
Give the date on which the original or amended assets and depreciation
report is being prepared;
(e)
Give the description of the item to be depreciated such as an electric
typewriter or an automobile;
(f)
Describe how the item was acquired, using the following codes:
(1) “P” for items purchased;
(2) “D” for items donated; and
(3) “O” for other.
(g)
If “O” was used to describe the acquisition of any item in (7) above, an
explanation shall be provided at the bottom of the form;
(h)
Give the month and year or years, using numerals, when the item was put
into use or service;
(i)
Give the number of items acquired;
(j)
Give the amount actually paid for the item(s);
(k)
Give the estimated salvage or trade-in value of the item(s) at the end
of its/their useful life;
(l)
Give the difference between the salvage value and the actual cost;
(m)
Give the expected number of years during which the item(s) will be
effectively usable;
(n)
Give the quotient resulting from dividing the amount to be depreciated
by the useful life;
(o)
Give the percent of time that the item(s) will be used for programs or
activities funded by the department;
(p)
Give the result from multiplying the total annual depreciation by the
percent of the time the item(s) will be used for programs or activities funded
by the department; and
(q)
Give the total applicable annual depreciation amounts.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.06 Form 1129D: Program Data. When completing Form 1129D: Program Data, the
agency shall:
(a)
Indicate whether the report being submitted is the original or an
amended submission;
(b)
Give the name of the agency;
(c)
Give the fiscal year or years for which the program data report is being
prepared, the month and year or years on which the fiscal year or years begin,
and the month and year or years the fiscal year or years end;
(d)
Give the date on which the original or amended program data report is
being prepared;
(e)
Give a listing of each special education program or therapy for which a
rate is being requested;
(f)
Give the maximum capacity of each program, as defined in Ed 1129.01(j),
operating during the regular school year or years;
(g)
Give the length of the regular school year or years for each program;
(h)
Give the inclusive dates of the regular school year or years;
(i)
Give the maximum capacity of each program operating during the summer
school year as defined in Ed 1129.01(j);
(j)
Give the length of the summer school for each program;
(k)
Give the inclusive dates of the summer school year or years;
(l)
Give the actual occupancy figures for each of the 12 months immediately
preceding the preparation of the budget proposal, or for each month of
operation, if a shorter period than 12 months; and
(m)
Give the units of service available for each therapy for which a rate is
being requested.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.07 Form 1129E: Revenues.
(a)
When completing Form 1129E: Revenues, the agency shall:
(1) Indicate whether the report being submitted
is the original or an amended submission;
(2) Give the name of the agency;
(3) Give the fiscal year or years for which the
revenue report is being prepared, the month and year or years on which the
fiscal year or years begin, and the month and year or years the fiscal year or
years end;
(4) Give the date on which the original or
amended revenue report is being prepared;
(5) Give program service fees from sources other
than the department;
(6) Allocate costs among different funding
sources when anticipated revenues for program funding come from sources other
than the department such as revenues from local and federal governments,
Medicaid, Medicare, private insurance, and special purpose funds;
(7) Give all revenue from sales of goods or
services related to programs;
(8) Give all income from direct sales, contracts
or services;
(9) Give all funds from United Way;
(10) Give all funds from towns, cities and
counties;
(11) Give income from restricted or unrestricted
contributions;
(12) Give interest, dividends, and capital gain
distributions in cash from endowments;
(13) Give any federal grants, including:
a. Funds to supplement the cost of providing
education to children with disabilities;
b. Funds to purchase or subsidize the purchase
of food and the value of food commodities; and
c. Any other federal grants;
(14) Give all revenues from non-endowment savings
accounts;
(15) Give all interest under general management,
unless the interest is restricted and allocated for a specific use or program;
(16) Give all recognized gains on the sale of
assets;
(17) Give all other revenues;
(18) Give any surplus generated in the most recent
fiscal year;
(19) Give total of all revenue amounts;
(20) Give total general management revenue amount
to be allocated as specified by the department;
(21) Give total of all revenue amounts and general
management amount to be allocated; and
(22) Give the amount of the department fees they
are requesting.
(b)
All program service fees identified in (6) above shall be budgeted and
reported.
(c)
All revenue from private and public sources shall be budgeted and
reported. All revenue in this category
shall be allocated based on donor restrictions.
(d)
All revenue line items shall be at least equal to the prior year’s
levels. If expected to be less, specific
explanation and documentation shall be provided. The facility or entity shall apply for public
and private sources of funds. If the
facility or entity does not apply for public and private sources of funds,
specific explanation and documentation shall be provided to the department.
(e)
Rental income which can be allocated to specific programs shall be
allocated on the basis of square footage or full-time equivalents of the
program(s) involved. All rental income
that cannot be identified to specific programs shall be included in general
management. This shall include income
from rental of computer hardware or software, and time-sharing income.
(f)
The following shall apply to revenue allocations:
(1) All revenues shall be reported and the
appropriate allocations made;
(2) A tuition rate shall be computed from
expenses for which no revenue has been received from the following sources:
a. Receipts from federal government;
b. Cash receipts which reduce the cost of an
item; and
c. Donations and gifts;
(3) Agencies shall allocate costs among different
funding sources when revenues come from:
a. Government contracts or grants;
b. Medicaid, Medicare, private insurance; and
c. Specific purpose funds where applicable.
(4) Revenues and expenses of non-special
education programs shall not be reported as special education activity; and
(5) Revenues received from school districts shall
not be offset against costs when a tuition rate is calculated.
(g)
Surplus equal to and for the purpose of funding 6 weeks’ of wage and
salary expense, including benefits and payroll taxes, may be retained by the
entity and may be excluded from the amount of surplus to be carried forward.
Source. (see Revision Note at chapter heading for Ed 1100)
#9197, eff 6-28-08; ss by #12141, eff 3-24-17
Ed 1129.08 Form 1129F: Expenses by Line Item.
(a)
When completing Form 1129F: Expenses by Line Item, the agency shall:
(1) Indicate whether the budget report being
submitted is the original or an amended submission;
(2) Give the name of the agency;
(3) Give the fiscal year or years for which the
budget report is being prepared, the month and year or years on which the
fiscal year or years begin, and the month and year or years the fiscal year or
years end;
(4) Give the date on which the original or
amended budget report is being prepared;
(5) Give the total of expenses;
(6) Give the total general management expenses to
be allocated; and
(7) Give expenses by line item as required in (b)
- (ap) below.
(b)
Salary and wages shall:
(1) Be recorded in account 601; and
(2) Include and comply with the following:
a. Payment for regular full and part-time
personnel services accrued in whatever form by employees of the vendor during
the fiscal year;
b. Premiums for overtime, extra pay-shifts, and
multi-shift work;
c. All salary
and wage costs shall be supported by documented payroll vouchers or a generally
accepted documentation method; and
d. Payroll shall be further supported by time
and attendance records for individual employees.
(c)
Employee benefits shall:
(1) Be recorded in account 602; and
(2) Include and comply with the following:
a. All group fringe benefit plans provided to regular
full and part-time employees, such as, Blue Cross/Blue Shield, retirement
plans, and worker compensation;
b. Benefit plans shall be in conformance with
state and federal law; and
c. The cost of
fringe benefit plans shall be a percentage of total salaries and wages by
program.
(d)
Temporary staff shall:
(1) Be recorded in account 603; and
(2) Include and comply with the following:
a. All temporary personnel costs associated with
staffing coverage needed due to employee absenteeism or staff vacancies; and
b. The amount of substitute coverage budgeted
for direct service staff whose presence is considered essential for the
day-to-day supervision of children with disabilities shall be determined by
documented use and costs.
(e)
Payroll taxes shall:
(1) Be recorded in account 604; and
(2) Include and comply with the following:
a. All payments made for F.I.C.A. and
unemployment insurance;
b. F.I.C.A. shall equal the prevailing rate multiplied
by the total F.I.C.A. salaries per program;
c. State and federal unemployment insurance
shall equal the rate as determined by the applicable state and the federal
agencies; and
d. If an agency elects to fund an unemployment
compensation reserve, the agency shall not also include unemployment tax as an
expense item.
(f)
Client evaluations shall:
(1) Be recorded in account 621; and
(2) Include and comply with the following:
a. All professional services purchased which are
for purposes of obtaining any evaluations;
b. This shall not include the cost of any full
or part-time staff, as reflected in the personnel budget, whose responsibilities
include evaluations of children with disabilities; and
c. The amount budgeted for evaluations of
children with disabilities shall be based upon past documented actual costs.
(g)
Client treatment or services shall:
(1) Be recorded in account 622; and
(2) Include all costs for purchasing specialized
client services on a full or part-time basis.
(h)
Accounting and audit fees shall:
(1) Be recorded in account 623; and
(2) Include and comply with the following:
a. The cost of accounting and auditing services
supplied by outside providers, including check-writing and payroll fees; and
b. These services shall not be provided by
employees of, or other people who are affiliated with the agency. These costs shall be included in general
management.
(i)
Legal fees shall:
(1) Be recorded in account 624; and
(2) Include and comply with the following:
a. All legal service costs which the agency expects
to incur in order to fulfill obligations to the department;
b. No funds shall be used to pay any legal fees
that involve litigation or disputes against the department or any other state
agency; and
c. No funds shall be used to pay any fines,
payback or other court-ordered payments as a result of investigation or
litigation against the facility or program.
(j)
Other professional services and consultants shall:
(1) Be recorded in account 625; and
(2) Include and comply with the following:
a. Consultants or professional fees, such as
program evaluations;
b. Fees incurred for any type of professional
development or training shall be reflected in the appropriate professional
development line item; and
c. Consultants’ costs shall be allowed when:
1. The nature and scope of the consultant’s
services rendered are necessary, pertain to the organization’s functions, activities
or programs or to nutritional services, and cannot be provided by the
organization’s employees or can be more economically performed by consultants
than by employees;
2. The contractual agreement for the services
shall at minimum include fees charged, services to be provided, number of days
to be worked, beginning and end date of contract, and a product evaluation;
3. The consultants costs are reasonable as
specified in Ed 1129.12 and they are not
involved with the recovery of costs or funds from federal, state, or local
government;
4. The consultants are not trustees, directors,
officers or employees of the organization nor of any parent organization; and
5. The need for contracting the services is in
relation to the organization’s capability in the particular area.
(k)
Journals and publications shall:
(1) Be recorded in account 631; and
(2) Include the cost of all books, publications
and training materials purchased for professional development or training
purposes.
(l)
In-service training shall:
(1) Be recorded in account 632; and
(2) Include and comply with the following:
a. All professional development and training costs
for conferences, workshops, conventions, in-service training and tuition except
for travel costs;
b. Travel costs shall be shown in staff
transportation;
c. These professional development and training cost
requests shall not exceed a total sum of money computed by multiplying the
number of the program’s full-time employees by the University of New
Hampshire’s in state, per graduate credit cost.
d. Costs of
conferences or meetings shall be allowed when the primary purpose of the
conference is dissemination of technical information and is part of the
facility’s approved professional development plan; and
e. Allowable
costs include meals, transportation, rental of facilities, and other items
incidental to such conferences.
(m)
Conferences and conventions shall:
(1) Be recorded in account 633; and
(2) Include and comply with the following:
a. Expenses for attending any conferences,
workshops, and conventions except travel costs; and
b. Travel costs shall be shown in Account 742,
staff transportation.
(n)
Other professional development shall:
(1) Be recorded in account 634; and
(2) Include any development costs not covered by the
accounts above such as an individual staff member’s tuition.
(o)
Rent shall:
(1) Be recorded in account 641; and
(2) Include and comply with the following:
a. The cost of renting any building utilized for
the facility or program;
b. Rental cost for space shall not exceed the
cost of comparable space and facilities in the same locality;
c. Rentals shall be documented by a lease
agreement;
d. Any leases shall stipulate the extent of the
lessee’s responsibility for renovations;
e. The cost of lease purchase agreements shall
not be included.; and
f. Allowable costs shall be as follows:
1. Rental costs as specified in sale and leaseback
agreements shall be allowable to the extent of actual costs had the
organization continued to own the property;
2. If any party as lessor is in common with the leasee, the rental costs shall be limited to actual costs,
including but not limited to mortgage payments, insurance premium payments, and
property taxes; and
3. The cost of lease-purchase agreements shall
be excluded as a rental expense.
(p)
Heating costs shall:
(1) Be recorded in account 643; and
(2) Include and comply with the following:
a. All heating costs, such as electricity, gas,
or oil;
b. These costs shall be excluded if they are
including in a rental or lease agreement; and
c. These costs shall be cost-allocated to
programs and general management based upon square footage or full-time
equivalents.
(q)
Other utilities shall:
(1) Be recorded in account 644; and
(2) Include and comply with the following:
a. All other utility costs, such as electricity,
water, sewage, and gas;
b. These costs shall be excluded if they are
included in a rental or lease agreement; and
c. These costs shall be cost-allocated to
programs and general management based upon square footage or full-time
equivalents.
(r)
Maintenance and repairs shall:
(1) Be recorded in account 645; and
(2) Include and comply with the following:
a. The costs of
materials and supplies needed for routine maintenance and repairs and
maintenance contracts such as garbage removal and snowplowing;
b. These costs shall be excluded if they are
included in a rental or lease agreement;
c. These costs shall be cost-allocated to
programs and general management based upon square footage or full-time
equivalents; and
d. The following shall apply to repair and
maintenance of plant:
1. Costs incurred for necessary maintenance,
repair, and upkeep of property which do not add to its useful life but keep it
in efficient operating condition shall be allowable when they are not included
in rental or other charges for space; and
2. Costs incurred for necessary maintenance,
repair, or upkeep of movable equipment which keep it in efficient operating
condition shall be allowable.
(s)
Taxes shall:
(1) Be recorded in account 646; and
(2) Include and comply with the following:
a. Taxes which
the organization is required to pay and which are paid or accrued in accordance
with generally accepted accounting principles and payments made to local
governments shall be allowable;
b. These costs
shall be cost-allocated to programs and general management based upon square
footage or full-time equivalents; and
c. Taxes for
which an exemption is available and payments in lieu of taxes shall be
disallowed.
(t)
Other occupancy costs shall:
(1) Be recorded in account 647; and
(2) Include and comply with the following:
a. Any other occupancy costs not covered by
above accounts; and
b. Renovation costs shall be included in account
660 Capital Expenditures.
(u)
Office supplies shall:
(1) Be recorded in account 651; and
(2) Include and comply with the following:
a. Costs of consumable materials used for office
operations, such as paper, pens, notebooks, printed checks, photocopy supplies;
and
b. These costs shall be cost-allocated to
programs and general management based upon direct costs or full-time
equivalents.
(v)
Building and household supplies shall:
(1) Be recorded in account 652; and
(2) Include and comply with the following:
a. Costs of consumable supplies used for
buildings and grounds as well as all household supplies such as toilet paper,
towels, crockery, flatware, and cleaning supplies; and
b. These costs shall be cost-allocated to
programs and general management based upon direct costs or full-time
equivalents.
(w)
Educational and training supplies shall:
(1) Be recorded in account 653; and
(2) Include and comply with the following:
a. Costs of materials used in programs for
children with disabilities, such as paper, pens, paint brushes, sets of
practice materials, and magazine or book subscriptions for children’s use; and
b. These costs shall be cost-allocated to
programs or direct costs or full-time equivalents.
(x)
Production and sales shall:
(1) Be recorded in account 654; and
(2) Include and comply with the following:
a. The cost of materials which are purchased for
the purpose of making products which are to be sold; and
b. The production and sales expense shall not be
more than the revenue generated from sales.
(y)
Food shall:
(1) Be recorded in account 655; and
(2) Include the cost of raw and prepared food
goods:
(z)
Medical supplies shall:
(1) Be recorded in account 656; and
(2) Include and comply with the following:
a. The costs of services which would be
available to children with disabilities if they were enrolled in a public
school;
b. Costs of speech, physical or occupational
therapy, or counseling if included in an IEP of a child with a disability,
shall be allowable under a separate rate setting program and shall not be
included as part of instruction and room and board rates; and
c. The cost of a medical examination for an
employee or applicants for employment, or the cost of furnishing any records
required by the employer as a condition of employment shall be allowable.
(aa)
Capital expenditures shall:
(1) Be recorded in account 660; and
(2) Include and comply with the following:
a. The cost of furnishings and equipment valuing
more than $1,000 for each item;
b. Groups of items valuing $1,000 or more, even
if individual items are valued at less than $1,000, shall be depreciated;
c. Compensation for the use of buildings, or
other capital improvements and equipment shall be made through depreciation
charges;
d. All other asset items used for program
purposes costing $1,000 or more having a useful life of one year or more shall
be depreciated;
e. Reimbursement for capital expenditures shall
be available through depreciation charges only;
f. Depreciation charges shall be based on
historical acquisition cost less estimated salvage value of the asset;
g. Property
records shall be maintained and the straight-line method of computing
depreciation shall be used;
h. All capital expenditures
including purchases, major renovations and leasehold improvements for which
department reimbursement is requested shall be included in the budget proposal;
i. Any expenditure not so included shall not be
reimbursed;
j. The need to fund extraordinary or emergency
capital expenditures shall be approved;
k. These costs shall be cost allocated
to programs and general management based upon square footage or
full-time equivalents;
l. Gains and losses on sale, retirement, or
other disposition of property which qualify as depreciable shall be reflected
as a credit or a charge to the program in which the asset was being used;
m. The amount of the credit or charge under l.
shall be the difference between the amount realized on the asset and the
undepreciated basis;
n. No gain or loss from the sale of depreciated
property shall be recorded as a credit or charge under the following
conditions:
1. The gain or loss is, or could be, processed
against a depreciation account;
2. The property is given in exchange as part of
the price of a similar asset and the gain or loss is taken into account in
determining the depreciation costs basis of the new asset;
3. A loss occurs from the failure to maintain
permissible insurance;
4. Gains or losses resulting from mass or
extraordinary sales, retirements, or other dispositions shall be considered on
a case-by-case basis; and
5. Gains or losses resulting from the sale or
exchange of non-special education assets or those not qualifying for
depreciation are not allowable; and
o. The following shall be excluded from
allowable depreciation expense:
1. Cost of land; and
2. Depreciation expense computed under methods
other than the straight line method.
(ab)
Equipment rental shall:
(1) Be recorded in account 670; and
(2) Include and comply with the following:
a. Costs of renting equipment, such as copiers;
and
b. The renting of postage meters shall be
included in account 730, postage.
(ac)
Equipment maintenance and repairs shall:
(1) Be recorded in account 680; and
(2) Include costs of equipment repairs, and
service maintenance contracts or agreements.
(ad)
Advertising shall:
(1) Be recorded in account 700; and
(2) Include and comply with the following:
a. Advertising costs for employee recruitment
only;
b. Other advertising costs shall not be
allowed;
c. The costs of media services such as a newspaper,
magazines, radio resulting from the recruitment of personnel, the solicitation
of bids for goods and services; and
d. All other advertising, public relations or
community education costs which cannot be demonstrated to have direct benefit
to the education program shall not be allowable and shall be recorded in a
program cost center not included in the special education rate base.
(ae)
Printing shall:
(1) Be recorded in account 710; and
(2) Include costs of printing forms, leaflets and
brochures, if the costs are specifically related to programs funded by the
department.
(af) Telephone and communications shall:
(1) Be recorded in account 720; and
(2) Include costs related to telephones, and
similar communications expenses.
(ag)
Postage and shipping shall:
(1) Be recorded in account 730; and
(2) Include costs related to postage stamps,
trucking, delivery, and rental of postage meters.
(ah)
Vehicle leasing, maintenance and repair shall:
(1) Be recorded in account 741; and
(2) Include and comply with the following:
a. Vehicle lease expense for vehicles used for
program purposes;
b. Copies of vehicle leases and
registrations;
c. The purchase of a vehicle shall be
depreciated; and
d. Cost related to vehicle maintenance and
repair.
(ai)
Client and staff transportation shall:
(1) Be recorded in account 742; and
(2) Include and comply with the following:
a. Costs of travel directly related to the
school education program;
b. Costs of transportation to and from the home of
a child with a disability to the school program shall be the responsibility of
the local school district and shall be excluded from the tuition rate;
c. The agency shall be compensated for the
lease, purchase, maintenance and use of vehicles provided when they are needed
for an approved education program;
d. Transportation, lodging, subsistence and
related items incurred by employees who are on official business incidental to
a special education program;
e.
Transportation costs shall be charged on an actual cost basis or per
diem/mileage basis provided that the method chosen is consistently applied to
each event;
f. Cost of mileage for the
business use of private vehicles at a rate not to exceed the prevailing reimbursement rate per mile
used by the State of New Hampshire;
g. If vehicles are leased or rented and include
so-called “Free Mileage”, such mileage shall not be eligible for reimbursement;
h. Any portion of vehicle expense which is
reimbursed through depreciation charges shall be excluded from the mileage
reimbursement rate; and
i. Cost of gasoline for leased or purchased
facility vehicles used for program purposes.
(aj) Professional liability and insurance against
crime and theft shall:
(1) Be recorded in account 761; and
(2) Include all costs to meet the department’s
requirements for professional liability and criminal liability.
(ak) Vehicle insurance shall:
(1) Be recorded in account 762; and
(2) Include all vehicle insurance costs.
(al)
Comprehensive property and liability insurance costs shall:
(1) Be recorded in account 763; and
(2) Include and comply with the following:
a. Comprehensive property and liability and
directors’ and officers’ insurance costs;
b. Comprehensive general liability insurance
against all claims of bodily injury, death, and property damage or loss shall
be in amounts of not less than $250,000 per claim and $1,000,000 per incident;
c. Fire and extended coverage insurance covering
all property shall be in an amount not less than 80% of the whole replacement
value of the property;
d. Self-insurance costs but only if the agency
provides documentation to show that sufficient self-insurance coverage is
maintained to guard the program against those losses which would have been
normally covered if the agency had purchased the appropriate level of
insurance;
e. Only employee group insurance plans shall be
approved;
f. Costs resulting from losses not covered under
deductible insurance policy provisions, contracted for and in keeping with
sound business practice; and
g. Actual losses which could have been covered
by permissible insurance shall be excluded.
(am)
Membership dues shall:
(1) Be recorded in account 770; and
(2) Include and comply with the following:
a. Dues, memberships and subscriptions in civic,
business, technical, and professional organizations;
b. Costs shall be allowable only when the
benefit from membership is related to the organization’s special education
programs, the cost is reasonable in relation to the value or benefits received,
and the expense is not for membership in an organization which devotes a
substantial part of its activities to influencing legislation;
c. The total allowable amount of department
funds that may be used for this expense shall not exceed $2,000; and
d. Any amount over $2,000 shall be shown under
non-special education funded programs.
(an)
Interest expense shall:
(1) Be recorded in account 780; and
(2) Include and complying with the following:
a. Interest costs for the purchase or
improvement of capital assets which have been approved;
b. Interest on loans for working capital that
are directly related to cash flow deficiencies which are beyond the entity’s
ability to control;
c. The interest rate shall not exceed the
prevailing rates at the time the loan was secured;
d. Interest charges shall not be at a rate in
excess of what a borrower would pay at the time the loan was taken;
e. Interest charges for borrowing for land,
buildings, and working capital that is in excess of program requirements shall
be excluded. Working capital as used in
this clause means a loan obtained to provide temporary cash in order to meet a
current cash shortfall arising from time differences between expense and
revenue cycles; and
f. The entity
shall bear responsibility for providing documentation that working capital
deficiencies were beyond its control.
(ao) Other expenditures shall:
(1) Be recorded in account 800; and
(2) Include any other program costs not included
in any of the above line items.
(ap)
Parent overhead shall:
(1) Be recorded in account 900; and
(2) Include and comply with the following:
a. Charges to an organization’s programs from a
parent or affiliated organization provided that the charges are defined as
allowable costs and that the charges are allocated to all programs on the same
basis; and
b. If a program or facility includes charges for
general management, parent overhead charges shall not also be reimbursable.
(aq) Salaries of executives included in the
approved special education rate shall be recorded in account 601. Regardless of the actual salary, for the
department rate setting purposes, executive staff salaries shall be reported at
75% of the average full-time, of the previous year, of the New Hampshire
Superintendent salaries.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.09 General Rate Setting Information.
(a)
Tuition rates shall be set based on the agency’s budget proposal which
shall be submitted on those forms prescribed in Ed 1129.02. Deadline for submission of all prescribed
forms shall be the first of April, annually.
(b)
Any adjustments to the agency’s budget proposal shall be made by the
department based solely upon these rules and evaluation of required budget
materials and information.
(c)
Rates shall become effective on July first, and shall be set annually.
(d)
Once the department has established a final rate for an agency, no
further adjustments shall be made to the rate(s) for the fiscal year in which
the agency’s budget proposal was submitted.
(e)
The department shall notify the agency by certified mail of the
established rate(s).
(f)
The daily and annual rate(s) established through this process shall be
the maximum reimbursement paid to the agency on a per-child basis.
(g)
The daily and annual rate or rates or related service rates established
through this process shall be the maximum amount charged to a public agency
without the specific written approval of the responsible public agency.
(h)
Any parent organization or related party providing services, facilities,
or supplies to an agency submitting a budget proposal shall make available
documentation including but not limited to invoices, leases, loan-notes, and
insurance policies supporting the related party costs. The related party costs shall be considered
services for the purposes of establishing rates.
(i)
Each agency shall establish a chart of accounts reflecting the functions
specified in (i) below and shall maintain accounting records in accordance with
the chart.
(j)
All revenues and expenditures shall be assigned to the following
functions:
(1) General management;
(2) Fund raising;
(3) Other non-special education costs;
(4) Special education programs - Instruction;
(5) Special education programs - Room and Board
costs;
(6) Special education programs - Occupational
therapy;
(7) Special education programs - Physical
therapy;
(8) Special education programs - Speech therapy;
and
(9) Special education programs - Counseling.
(k)
Rates for out-of-state agencies shall be set at the rate established by
the rate-setting authority in the state where the agency is located. In states where no rate-setting authority
exists, the department shall establish the rate payable to the agency through
application of these rules. Requests for
rate changes for out-of-state agencies shall be accompanied by a copy of the
revised official rate notification from the rate-setting authority in the state
where the agency operates.
(l)
Each agency shall submit the following information:
(1) A complete rate setting budget proposal as
specified in Ed 1129.02(c)(1)-(6); and
(2) Actual data from the previous year or years
to allow the department to compare the budget to actual expenditures for the
year or years.
(m)
The agency shall submit a copy of the audited financial statements and
special report made by an independent auditor as specified in Ed 1129.18. The actual data and independent auditors’
reports shall be due within 120 days of completion of the fiscal year. The financial statements shall at a minimum
contain supplemental schedules using the same line items and functions used in
the budget submitted with the rate request.
(n)
A semi-annual Summary of Revenues and Expenditures report shall be
prepared using the same line items and functions as used in preparation of the
budget. The first summary shall contain
information for the first 6 months of the fiscal year or years and shall be
submitted with the rate setting proposal.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by 12141, eff
3-24-17
Ed 1129.10 Allowable Costs.
(a)
To be considered an allowable special education cost the following
criteria shall be met:
(1) The cost shall be reasonable as determined by
application of Ed 1129.12;
(2) The cost shall have a direct relationship to
the policies and procedures of the organization;
(3) The cost shall be recognized by and reported
in accordance with generally accepted accounting principles;
(4) The cost shall be supported by documentation
including but not limited to:
a. Invoices;
b. Leases;
c. Loan-notes;
d. Insurance policies; and
e. Service contracts; and
(5) The cost shall pertain and be readily
identifiable to an activity, function or program relative to the provision of
special education and related services.
(b)
If personal vehicles or living accommodations are prerequisites for
certain positions such expenses shall be approved.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.11 Non-Allowable Costs. The following shall not be allowed as special
education costs:
(a)
Political and charitable contributions;
(b)
Investment expenses which are in excess of investment income;
(c)
Amusement of facility or program officers or employees or for
non-organization related activities, entertainment, and any related costs such
as meals, lodging, rentals, transportation and gratuities;
(d)
Ordinary living expenses which are normally assumed by parents of
children attending public day schools;
(e)
Fees and expenses of trustees and directors;
(f)
Fines and penalties which are imposed by a court and which result from
violations of or the failure to comply with federal, state, county or municipal
law, rule, or regulation;
(g)
Bad debts, actual or estimated, resulting from uncollectible accounts or
other claims, and related collection and legal costs;
(h)
Contributions to a contingency fund or any similar fund except for an
unemployment reserve fund;
(i)
Advertising expenses except for personnel recruitment, bids for goods
and services, and medical services;
(j)
The following organized fund raising costs:
(1) Solicitations of gifts;
(2) Bequests;
(3) Financial campaigns; and
(4) Endorsement drives.
(k)
Voluntary payments and contributions such as payments in lieu of real
estate taxes;
(l)
Any expenses of the organization which are not reasonable as defined in
Ed 1129.12 or unrelated to required special education or necessary related
services;
(m)
Management fees or payments included in lease or rental agreements
between parties who are related as defined in Ed 1129.01(k);
(n)
Reimbursement for expenditures or depreciation of personally owned or
leased assets excluding motor vehicles;
(o)
Income and business profits taxes;
(p)
Bonuses of any nature conveyed and paid;
(q)
Charges by parties who are related as defined in Ed 1129.01(k) for
services, facilities, and supplies furnished to the operating entity if such
charges exceed the cost to the related party for providing the services,
facilities or supplies;
(r)
Charges for investment counsel, staff, and similar expenses incurred
solely to enhance income from investments;
(s)
All personal expenses such as:
(1) Personal travel expenses;
(2) Laundry charges;
(3) Beverage charges;
(4) Gift certificates to staff and vendors;
(5) Flowers or parties for departing staff;
(6) Holiday parties;
(7) Repairs on a personal vehicle; and
(8) Rental expenses of personal apartments.
(t)
Medical services and supplies, other than those cited in Ed 1129.08(z);
(u)
Medical supplies or costs of medical supplies provided by the agency’s
own staff; and
(v)
Salaries for positions that are vacant for 2 consecutive years shall not
be used in the calculation of the rate(s).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.12 Reasonable Costs.
(a)
The reasonableness of specific costs shall be determined by the
department by applying (b), below.
(b)
Costs shall be allowed provided they can be justified by one or more of
the following criteria:
(1) The cost shall be of a type necessary for the
operation of the organization or performance of an activity or function of the
program;
(2) The cost shall be consistent with accepted
sound business practices, arm’s length bargaining, federal and state law, rules
of the state board of education, or generally accepted accounting principles;
(3) The cost request shall not deviate by more
than 5% from the average cost incurred in facilities or circumstances which are
similar;
(4) Year to year cost increase shall not deviate
from those cost increases as measured by the price indices in the consumer
price index or 5%, whichever is greater.
(5) The cost request can be explained by a
minimum 10% fluctuation in school enrollment from year to year.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.13 Direct Costs.
(a)
Costs identified specifically with activities required for operation of an
approved facility, function or program shall be treated as direct costs.
(b)
If costs are not allowable as special education costs, they shall be
treated as direct costs and allocated with their share of the organization’s
indirect costs when they represent activities which:
(1) Include the salaries of non-executive
personnel;
(2) Occupy space; or
(3) Benefit from the organization’s direct costs,
including, but not limited to, the types of costs listed in Ed 1129.16(c).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.14 Indirect Costs.
(a)
Indirect costs shall be allocated to all of the organization’s
activities pursuant to Ed 1129.16.
(b)
Indirect costs shall include, but not be limited to:
(1) Salaries and expenses of executives;
(2) Expenses for accounting;
(3) Costs of operating and maintaining
facilities;
(4) Depreciation allowances on buildings and
equipment; and
(5) General administration expenses.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.15 Basis of Accounting. The system for reporting special education
costs shall be based on the accrual basis of accounting.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.16 Method of Allocation.
(a)
When an organization has only one major purpose or when all its major
functions benefit from its indirect costs to approximately the same degree, the
direct allocation method shall be used.
Under the direct allocation method all costs except general
administration shall be treated as direct costs.
(b)
Costs shall be separated into 9 basic functions as outlined in Ed
1129.09(j).
(c)
Costs which directly benefit multiple final cost objectives of an
organization and include such costs as depreciation, operation and maintenance
of facilities, telephone and utilities shall be prorated individually as direct
costs of each function using a base appropriate to the costs being prorated.
(d)
Indirect costs consisting exclusively of general administration and
general expenses shall be distributed to the organization’s functions using
total direct costs of each activity as a base.
(e)
Organizations proposing to treat indirect costs in a manner different
from (a) and (b) above shall submit a waiver request to the department which
is:
(1) In writing;
(2) Signed by the person who has prepared the
rate setting proposal; and
(3) Submitted not later than 120 days prior to
the submission of a new rate proposal.
(f)
The department shall approve all requests received pursuant to (e) above
unless the request(s) violates any requirement of Ed 1129 or generally accepted
accounting principles.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.17 Form 1129.11: Rate Computations for
Instruction, Room and Board, Occupational Therapy, Physical Therapy, Speech
Therapy and Counseling.
(a)
On Form 1129.11, the agency shall calculate the rate for a special
education program as follows:
(1) The agency shall compute the net expenses of
the program;
(2) The net expenses of the program shall be
equal to the total expenses from Form 1129F less the total revenues from Form
1129E;
(3) The agency than shall multiply the program
capacity rate by 90%;
(4) The agency shall compute the annual rate by
dividing the net expenses of the program by 90% of the program capacity rate;
and
(5) The agency shall compute the daily rate by
dividing the annual rate by the length of the program year.
(b)
On Form 1129.11, the agency shall calculate the rates for special
education therapies as follows:
(1) The agency shall compute the net expenses of
the program;
(2) The net expenses of the program shall be
equal to the total expenses from Form 1129F less the total revenues from Form
1129E;
(3) The agency shall record the units of service
available as reported on Form 1129D; and
(4) The agency shall compute the therapy rate by
dividing the net expenses of the program by the units of service available.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.18 Audit Requirements.
(a)
Audits shall include an examination of the systems of internal control,
systems established to insure compliance with laws and rules affecting the
expenditure of LEA funds, and financial transactions and accounts.
(b)
The examinations required by (b), above, shall be used to determine
whether:
(1) There is effective control over and proper accounting
for revenues, expenses, assets and liabilities;
(2) The financial statements are presented fairly
in accordance with generally accepted accounting principles;
(3) The department financial reports contain
accurate and reliable financial data; and
(4) LEA funds are being expended in accordance
with Ed 1129.
(c)
In order to accomplish the above purposes cited in (c) above, a
representative number of charges to special education programs shall be tested
to determine whether the charges:
(1) Are required for the proper administration of
the program;
(2) Were given consistent accounting treatment
and applied uniformly to all activities of the organization;
(3) Were net of applicable credits;
(4) Did not include costs properly chargeable to
the organization’s other programs;
(5) Were properly recorded with the correct
amount and date and supported by source documentation; and
(6) Were allocated equitably to benefiting
activities, including non-special education activities.
(d)
Audits shall be made annually and include:
(1) Financial statements, including footnotes, of
the organization;
(2) The auditors’ comments on the financial
statements which shall:
a. Identify the statements examined and the
period covered;
b. Identify the various special education
programs for which a rate was set and the amounts of LEA funds received;
c. State that the audit was done in accordance
with Ed 1129.18;
d. Express an opinion as to whether the
financial statements are fairly presented in accordance with generally accepted
accounting principles, but if an unqualified opinion cannot be expressed then
the nature of the qualification shall be stated; and
e. Comment on the accuracy and completeness of
the department financial reports, including an expression of negative assurance
with respect to compliance with Ed 1129.
(e)
Work papers and reports shall be retained for a minimum of 3 years from
the date of the audit report unless the auditor is notified in writing by the
department of the need to extend the retention period. The work papers shall be made available upon
request to the department.
Source. (see Revision Note at chapter heading for Ed 1100)
#9197, eff 6-28-08; ss by #12141, eff 3-24-17
Ed 1129.19 Rate Notification.
(a)
The department shall notify the agency by certified mail of the tentative
rate(s) and the notification shall include any schedule of adjustments used in
the determination of the tentative rate(s).
(b)
The agency shall review the notification and schedule of
adjustments. If the agency has
questions, problems, or both, with the tentative rate(s) the agency shall
request a meeting with the department’s rate setter within 14 working days of
receipt of the notification letter from the department which states the
tentative rate(s).
(c)
The request for a meeting with the department’s rate setter shall state
the specific reasons why the agency believes there was an error in the
tentative rate(s).
(d)
Unless a written request for a meeting with the department’s rate setter
is received by the department within 14 working days of the agency’s receipt of
the letter or other written notification from the department which states the
tentative rate(s), the tentative rate(s) shall become final.
(e)
If the agency requests a meeting with the department’s rate setter
concerning the tentative rate(s) and the results of that meeting do not
satisfactorily resolve the concern(s) of the agency, the agency shall be
informed by the department’s rate setter of his or her right to a review
pursuant to Ed 1129.20.
(f)
During any review held pursuant to Ed 1129.20, the agency’s most recent
approved final rate(s) shall remain in effect for billing purposes. If the agency has not had a previously
approved final rate(s) adopted by the department, the agency may
bill-for-services at the tentative rate(s).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.20 Hearing Mechanism for Special Education
Rates.
(a)
A private provider of special education making a request for
reconsideration of the rates established by the department shall adhere to the
procedures set forth in (b) - (d) below.
(b)
A request for reconsideration shall be filed within 14 days of the date
of the receipt of the notification letter which states the rate(s) and which is
sent by the state to the agency.
(c)
A request for reconsideration shall be made in writing, shall be signed
by a person duly authorized by the agency to submit the request for
reconsideration and shall be filed with the director, division of instruction,
New Hampshire department of education.
(d)
The request for reconsideration shall state the specific reasons why the
agency believes there was an error in the original determination.
(e)
The director shall render a decision in writing regarding the request
within 14 days of the date on which the letter is received by the state. If the director determines that the request
for reconsideration reasons are vague, he or she shall require that the agency
file a more detailed statement of request for reconsideration. In such case, the requirements specified in
(b) - (d) above shall apply to any such statements.
(f)
If the director agrees with any or all portions of the agency’s request
for reconsideration, the department’s rate setter shall recalculate the
agency’s rate(s) accordingly.
(g)
If the director does not agree with any or all portions of the agency’s
request for reconsideration, the director shall notify the agency of his or her
decision pursuant to the requirements set forth in (e) above.
(h)
Agencies who wish to appeal the decision of the director pursuant to Ed
1129.20(e) shall do so by filing an appeal with the commissioner of education,
New Hampshire department of education.
(i)
The appeal shall be made in writing, shall be signed by a person duly
authorized by the agency to submit the appeal and shall state specific reasons
for the appeal.
(j)
The appeal shall be filed within 14 days of the date of the notification
letter which states the decision of the director which is sent by the
department to the agency.
(k)
The appeal shall be heard under RSA 541-A:31-36 by the commissioner of
education or his/her designee and in accordance with Ed 200.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.21 The Joint Rate Setting Process.
(a)
The department shall jointly administer the joint rate setting process
with the department of health and human services pursuant to the requirements
of Ed 1129.21, Ed 1129.22 and Ed 1129.23.
(b)
When rates are jointly set by the department of health and human
services and the department in accordance with RSA 170-G:4, XVII and XVII-a,
any conflicts identified by the state agencies existing between rate setting
rules of the department of health and human services and the department shall
be resolved by both state agencies applying the stricter of the 2 sets of
rules.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.22 Joint Rate Notification.
(a)
The department and the department of health and human services shall
both notify the agency by certified mail of the tentative rate(s) and the
notification shall include any schedule of adjustments used in the determination
of the tentative rate(s).
(b)
The agency shall review the notification and schedule of
adjustments. If the agency has
questions, problems, or both, with the tentative rate(s) the agency shall
request a joint meeting with the department’s rate setter and the department of
health and human services rate setter within 14 working days of receipt of the
notification letter from the department and department of health and human
services which states the tentative rate(s).
(c)
The request for a joint meeting with the department’s rate setter and
the department of health and human services rate setter shall state the
specific reasons why the agency believes there was an error in the tentative
rate(s).
(d)
Unless a written request for a meeting is received by the department and
the department of health and human services within 14 working days of the
agency’s receipt of the notification letter from the department and the
department of health and human services which states the tentative rate, the
tentative rate(s) shall become final.
(e)
If the agency requests a joint meeting with both of the state’s rate
setters concerning the tentative rate(s) and the results of that meeting do not
satisfactorily resolve the concern(s) of the agency, the agency shall be
informed by both rate setters of his/her right to review pursuant to rules of
the department of health and human services and the department.
(f)
During any review held pursuant to rules of the department of health and
human services or the department, the agency’s most recent approved final
rate(s) shall remain in effect for billing purposes. If the agency has not had a previously
approved final rate(s) adopted by the department and the department of health
and human services, the agency may bill for services at the tentative rate(s).
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
Ed 1129.23 Hearing Mechanism for Jointly Set Special
Education Rates.
(a)
A private provider of special education services making a request for
reconsideration of the rates established jointly by the department and the
department of health and human services shall adhere to the procedures set
forth in (b) - (d) below.
(b)
A request for reconsideration made under (c) below shall be filed within
14 days of the date of receipt of the notification letter which states the
rate(s) and which is sent by both state agencies to the private provider.
(c)
A request for reconsideration shall be made in writing, shall be signed
by a person duly authorized by the agency to submit the request for
reconsideration and shall be filed with the director, DCYF and the director,
division of instruction, New Hampshire state department of education or their
designees.
(d)
The request for reconsideration shall state the specific reasons why the
agency believes there was an error in the original determination.
(e)
Both directors or their designees shall render a joint decision in
writing regarding the request within 14 working days of the date on which the
letter is received by both state agencies.
If the directors or their designees determine that the request for
reconsideration reasons are vague, they shall require that the private provider
file a more detailed statement of request for reconsideration. In such case, the requirements specified in
(b) - (d) above shall apply to any such statements.
(f)
If the directors agree with any or all portions of the agency’s request
for reconsideration, both state rate setters shall recalculate the agency’s
rates accordingly.
(g)
If the directors disagree with each other, and the agency wishes to
pursue the issue, the agency shall appeal under RSA 541-A:31-36 as provided in
(l) below.
(h)
If the directors do not agree with any or all portions of the agency’s
request for reconsideration, the directors shall notify the agency of their
decision pursuant to the requirements set forth in (e) above.
(i)
Agencies who wish to appeal the decision of both directors pursuant to Ed 1129.23(e) shall do so
by filing an appeal with the commissioner, department of education, and the
commissioner, department of health and human services.
(j)
The appeal shall be made in writing, shall be signed by a person duly
authorized by the agency to submit the appeal and shall state specific reasons
for the appeal.
(k)
The appeal shall be filed within 14 days of the date of the letter or other
written notification which states the decision of the directors or their
designees which is sent by the department and DCYF to the agency.
(l)
The appeal shall be heard under RSA 541-A:31-36 by the commissioner of
education and the commissioner of the department of health and human services
or their designees in accordance with Ed 200 and He-C 200, provided that, if
such rules are in conflict, the stricter rules shall apply.
Source. (see Revision
Note at chapter heading for Ed 1100) #9197, eff 6-28-08; ss by #12141, eff
3-24-17
APPENDIX
Rule
|
Specific State or Federal
Statute the Rule Implements
|
Ed 1101.01 |
34 CFR 300.1 |
Ed 1101.02 |
34 CFR 300.2 |
Ed 1102 |
RSA 541-A:7 |
Ed 1102.01(r) |
RSA 186-C:2, I |
Ed 1102.01(s) |
RSA 186-C:2, I-a |
Ed 1102.01(t) |
RSA 186-C:2, I |
Ed 1102.01, (y),
(z), (aa) |
RSA 186-C:16, 20
U.S.C 6301 |
Ed 1102.03 |
RSA 186-C:16, 20
U.S.C 6301 [ESEA as amended
by ESSA P.L. 114-95] |
Ed 1102.04(h) |
RSA 186-C:16,
VIII |
Ed 1103.01 |
34 CFR 300.321 |
Ed 1103.02 |
34 CFR 300.322 |
Ed 1104.01 |
RSA 541-A:7 |
Ed 1105 |
34 CFR 300.111 |
Ed 1106.01 |
34 CFR
300.101(a) and (b), 300(a), 124, and 530(d) |
Ed 1107.01 |
34 CFR.320, 34
CFR.531, 34 CFR.533-34 CFR.536 |
Ed 1107.01(a) |
34 CFR 300.301(a),(c),
and (d) and 300.321 |
Ed 1107.01(b) |
34 CFR 300.302 -
305 |
Ed
1107.01(c)&(d) |
34 CFR
300(c)(1)(ii) |
Ed 1107.01(e) |
34 CFR
300.124(b) |
Ed 1107.02 |
34 CFR 300.121,
34 CFR 300.132, 34CFR 300.533 (a); 34 CFR
300.307(a)(2) and (a)(3) |
Ed 1107.03 |
34 CFR 300.502 |
Ed 1107.04 |
34 CFR
300.304(c),(1)(iv), |
Ed 1107.05 |
34 CFR
300.306(a)(2) |
Ed 1108 |
34 CFR 300.301 -
311 |
Ed 1109.01 |
34 CFR 300.320 |
Ed 1109.02 |
RSA 263:29, RSA
266:7 |
Ed 1109.03 |
34 CFR 300.323, 324(c),
RSA 186-C:7-b, and RSA 186-C:9 |
Ed 1109.04 |
34 CFR
300.323(d) |
Ed 1109.05 |
34 CFR 300.325 |
Ed 1109.06 |
34 CFR
300.322(a)-(b) and 34 CFR 300.324(b) |
Ed 1110.01 |
34 CFR 300.106 |
Ed 1111.01 |
34 CFR 300.114 |
Ed 1111.02 |
34 CFR 300.115 |
Ed 1111.03 |
34 CFR 300.116 |
Ed 1111.03(c) |
RSA 186-C:11 |
Ed 1112 |
34 CFR
300.130-144 and 34 CFR 300.148 |
Ed 1113.01 -
1113.02(e) |
34 CFR 300.320 |
Ed
1113.02(f)-(g) |
34 CFR 300.320(a)(4),
34 CFR 300.107-108, 34 CFR 300.110 and 34 CFR 300.117 |
Ed 1113.03 |
34 CFR 300.320 |
Ed 1113.03(b)(3) |
RSA 186-C:10 |
Ed 1113.03(c) |
34 CFR
300.114(a)(2)(i) |
Ed 1113.04 |
RSA
126-U:1,IV(d) |
Ed 1113.04(c) |
RSA 541-A:7 |
Ed 1113.05 |
RSA 126-U:5 |
Ed 1113.07 |
RSA
126-U:1,IV(d) |
Ed 1113.08 |
RSA 126-U:5 |
Ed 1113.09 |
34 CFR 300.105 |
Ed 1113.10 |
RSA 186-C:9 |
Ed 1113.11 |
RSA 189:24 |
Ed 1113.12 |
34 CFR 300.18
and 34 CFR 300.156, RSA 186-C:16,VIII, RSA 186-C:16, 20
U.S.C 6301 [ESEA as amended by ESSA P.L. 114-95] |
Ed 1113.13 |
34 CFR 300.102 |
Ed 1113.14 |
RSA 189:1 and
RSA 189:24 |
Ed 1113.15 |
RSA 189:1; RSA
189:2, RSA 189:24 and RSA 189:25 |
Ed 1114.01 – Ed
1114.04 |
34 CFR 300.149
and RSA 541-A:7 |
Ed 1114.05 – Ed
1114.06 |
34 CFR 300.325 and
RSA 186-C |
Ed 1114.07 |
34 CFR
300.324(a)(2) |
Ed 1114.08 |
34 CFR 300.15
and 34 CFR 300.34(b)(10) |
Ed 1114.09 |
34 CFR 300.156 |
Ed 1114.10 |
34 CFR 300.156
(a) and (b) |
Ed 1114.11 |
RSA 189:13-a |
Ed 1114.12 |
34 CFR 300.325 |
Ed 1114.13 |
34 CFR 300.501 |
Ed 1114.14 |
RSA 186-C:9 |
Ed 1114.15 |
RSA 189:1; RSA
189:2, RSA 189:24 and RSA 189:25 |
Ed 1114.16 |
RSA 200:11 |
Ed 1114.17 – Ed
114.18 |
34 CFR 300.149
and RSA 541-A:7 |
Ed 1114.19 |
RSA 186-C:3-a,
IV |
Ed 1114.20 |
34 CFR 300.625 |
Ed 1114.21 |
34 CFR 300.320 |
Ed 1114.22 |
34 CFR 300.146 |
Ed 1115 |
RSA 186-C:14 |
Ed 1116 |
34 CFR 300.519 |
Ed 1117.01 -
1117.07 |
RSA 169-B,
169-C, and 169-D |
Ed 1117.02 |
RSA 186-C:13 |
Ed 1117.03 |
RSA 193:28 |
Ed 1117.04 |
34 CFR 300.149 |
Ed 1117.05 |
34 CFR 300.149 |
Ed 1117.06 – Ed
1117.10 |
REPEALED |
Ed 1118 |
RSA 194:60 |
Ed 1119 |
RSA 186-C:10-a |
Ed 1120.01 – Ed
1120.04 |
34 CFR 300.500 –
34 CFR 300.518 and 34 CFR 300.520 |
Ed 1120.04 (a)
intro and (a)(7) |
34CFR 300.154(d) |
Ed 1120.05 |
20 USC § 1414(a)(1)(D);
34 CFR§300.300 |
Ed 1120.06 – Ed
1120.07 |
34 CFR 300.500 –
34 CFR 300.518 and 34 CFR 300.520 |
Ed 1120.06(c) |
20 USC §
1414(a)(1)(D); 34 CFR§300.300 |
Ed 1120.08 |
34 CFR 300.154 |
Ed 1120.08 (a)
intro.,(a)(1)-(2) |
34CFR 300.154(d) |
Ed 1121 |
34 CFR 300.151 -
34 CFR 300.153 |
Ed 1122 |
34 CFR 300.506
and RSA 186-C:23-a, -b and RSA 186-C:24 |
Ed 1123 |
34 CFR 300.507 -
34 CFR 300.515 |
Ed 1124 |
34 CFR 300.530 -
34 CFR 300.536 |
Ed 1125 |
34 CFR 300.149
and 34 CFR 300.600 et seq |
Ed 1126 |
34 CFR 300.600 -
34 CFR 300.609 |
Ed 1127 |
RSA 186-C:19-a
and -b |
Ed
1128.01-1128.07 |
RSA 186-C:18 |
Ed 1128.08 |
RSA 186-C:18,
XI(b) |
Ed 1129 |
RSA 21-N:5,I(g)
and RSA 186-C:7,III |