HB753

Rep. Nancy Murphy Feb. 3, 2025 HB753 Testimony Dear Chair Cordelli and Honorable Committee Members, The following are my notes in support of HB753 that I was prepared to summarize and deliver at today’s public hearing for your review and consideration. What is the problem HB753 seeks to address? HB753 was filed at the request of a constituent to solve the problem of “expedited” due process hearings that at certain times of the year (see * examples below), can actually take much longer to occur than a regular due process hearing. In NH, it could take up to 10 ½ weeks longer (more than twice as long as a regular due process hearing). This is contrary to the definition of the word “expedited” (“accelerated” or “sped up”) and in some circumstances, can result in a child with a disability and an extended year program, not having access to special education and related services for up to sixty days (see example **below) when they were to have been provided with ESY services. What is the proposed language to address this concern? HB753 relative to expedited due process hearings to enforce special education rights: Amends RSA 186-C:16-b by adding (a) after 186-C:16-b, I. 186-C:16-b Due Process Hearing; Appeal. – I. Any action against a local school district seeking to enforce special education rights under state or federal law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered. (a) In no case may an expedited due process hearing pursuant to 34 C.F.R. 300.532(c)(2) exceed the timeline for conducting a regular due process hearing pursuant to 34 C.F.R. 300.515(a). (Background Info) Timeline for a regular due process hearing – 34 CFR 300.515(a) The public agency must ensure that not later than 45 days after the expiration of the 30 day period under 300.510(b) or the adjusted time period described in 300.510(c) – (1) A final decision is reached in the hearing, and (2) A copy of the decision is mailed to each of the parties. 34 CFR 300.510(b) is the resolution period, which gives the LEA an opportunity to resolve the dispute. The resolution period could be any number of days between 0 and 30 calendar days. 300.510(c) provides adjustments to the 30 day resolution process, including the option to waive the resolution session, ending the resolution process if the parties agree that an agreement is not possible, or to continue with mediation. In accordance with 34 C.F.R. 300.515 & 300.507, the timeline for resolving a [regular] due process hearing is 45 calendar days, beginning at the end of the 30-day resolution period, which would total a maximum of 75 calendar days (45 + 30). However, the resolution session may be waived if the parent and LEA agree in writing to waive the meeting; or agree to use mediation instead of holding a resolution session. If the resolution session is waived, the total timeline for resolving the due process complaint would be 45 calendar days (45 + 0). (Background Info) Timeline for an expedited due process hearing 7 – 34 CFR 310.532(c)(2) The SEA or LEA is responsible for arranging an expedited due process hearing, which must be completed no later than the 20th school day from the date the complaint requesting the expedited hearing is filed. The hearing officer must make a decision within 10 school days after the hearing concludes- even if the complaint was filed during the previous school year or during the summer, and the due date falls during the following school year. (Background Info) Discipline issues require an expedited due process hearing: Because 34 C.F.R. 532(c) requires that a hearing on a discipline issue (§§300.530 and 300.531) must be an expedited hearing, there is no option for a parent or LEA to choose to file a regular due process complaint instead of an expedited due process complaint, even if they know that the regular due process hearing timeline would be shorter than that for an expedited due process hearing. [Note: It should be noted that, while there is not an option to file for a regular due process hearing instead of an expedited due process hearing in the disciplinary issue example provided above, the 45-calendar day timeline (§300.515(a) would meet the requirement in §300.532(c)(2) that an expedited due process hearing occur within 20 school days and a decision made within 10 school days after the hearing.] How is the timeline calculated for an “expedited” due process hearing versus a regular due process hearing? -It seems that “school days” are considered when calculating “expedited” due process hearing timelines; while “calendar days” are considered when calculating “regular” due process hearing timelines. *Examples of how/why an expedited due process hearing can take much longer to occur than a regular due process hearing: “Question E-5 from the OSEP letter to Fletcher dated August 23, 2018: How must SEAs and LEAs apply the timeline requirements for expedited due process hearings if the due process complaint is filed when school is not in session? When a due process complaint requesting an “expedited” due process hearing [on the matters described in 20 U.S.C. 1415(k)(3) and 34 CFR §300.532(a)] is filed during the summer or when school is not otherwise in session, the SEA or LEA responsible for arranging the expedited due process hearing is not required to count those days in calculating the expedited due process hearing timelines. … In contrast, if a [regular] due process complaint requesting a hearing is filed when school is not in session, the SEA is required to meet the 30-day resolution period and 45-day hearing timelines in 34 CFR §§300.510 and 300.515(a).” -Here is a real world example of how the current “expedited” vs “regular” due process hearing scheduling process works to the disadvantage of the child awaiting an expedited due process hearing when school is not in session: If a child with a disability was removed for a violation of a code of student conduct on June 3, 2024: -[And if said child was not already required by statute d/t a “discipline issue” (see background info above) to have an expedited due process hearing and was instead eligible for a regular due process hearing, which takes 45 calendar days], a regular due process hearing would be completed by August 16, 2024 if the full 30-day resolution period was used, or by July 18, 2024 if the resolution session was waived. . July 18th is 6 ½ weeks after the date the child was removed; . August 16th is 10 ½ weeks after the child was removed. - For an expedited due process hearing, which takes 20 school days to be held, plus an additional 10 school days for a decision to be made, the process would be completed the parties would be notified of the decision by October 2, 2024. . October 2nd is 17 ½ weeks after the child was removed. In the example provided above comparing the expedited due process hearing and a regular due process hearing, the expedited due process hearing takes between 7 and 11 weeks longer than a regular due process hearing! **How does an “expedited” due process hearing delay impact a child’s access to education and services? -In the aforementioned example, a child with a disability whose IEP includes extended school year (ESY) services, will be missing more than just 30 school days of instruction. Because a day is only counted as a “school day” if it is a day when all children attend school, if the child’s IEP included 6 weeks of ESY services to be provided over the summer, that child would not receive special education and related services. -Additionally, those days would not be counted towards the 20 “school” days in which the expedited due process hearing must be held, meaning that instead of missing 30 school days (20 school days for the hearing to be held + 10 school days for the decision to be made), that child would miss 60 days of instruction (20 school days for the hearing to be held + 10 school days for the decision to be made + 6 weeks (30 school days) when the child would have received ESY services). The goal of HB753 is to ensure a process that quite honestly, just seems logical- that “expedited” due process hearings be completed more quickly than “regular” due process hearings. The 'intent' that an expedited due process hearing will result in a faster decision than a regular due process hearing is reflected in the OSEP letter to Snyder dated December 13, 2015: “The purpose of expediting the due process hearing related to a disciplinary decision is to ensure that the matter is resolved promptly and that the child’s educational program is not adversely affected by undue delays”. The only other place in the IDEA regulations that the term “expedited” is used, is regarding the requirement that an evaluation conducted when a child is referred for special education when they are removed from school for a violation of a code of student conduct (34 CFR 300.534(d)(2)(i). The interpretation that “expedited” here means “faster” is reflected in the Analysis of Comments and Discussion, as well as in the OSEP letter to Coombs dated August 15, 2008. Passing HB753 will be to both ensure that "expedited" due-process hearings are in fact, expedited, and support eligible children’s rights to special education. I ask that you please recommend HB753 as OTP. Thank you for your time and consideration, Rep. Nancy Murphy

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