CHAPTER 302

HB 766-FN- FINAL VERSION

16Jan2008… 2650h

16Jan2008… 2008-0115h

05/08/08 1602s

05/08/08 1831s

04Jun2008… 2182eba

2007 SESSION

07-0206

04/09

HOUSE BILL 766-FN

AN ACT making changes to the laws relating to special education.

SPONSORS: Rep. Stiles, Rock 15; Rep. Claire Clarke, Merr 6; Rep. Jillette, Sull 2; Rep. Casey, Rock 11; Rep. Charron, Rock 7; Sen. Hassan, Dist 23

COMMITTEE: Education

AMENDED ANALYSIS

This bill makes changes to the laws governing special education.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

16Jan2008… 2650h

16Jan2008… 2008-0115h

05/08/08 1602s

05/08/08 1831s

04Jun2008… 2182eba

07-0206

04/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Seven

AN ACT making changes to the laws relating to special education.

Be it Enacted by the Senate and House of Representatives in General Court convened:

302:1 Special Education; Policy and Purpose. Amend RSA 186-C:1 to read as follows:

186-C:1 Policy and Purpose. It is hereby declared to be the policy of the state that:

I. All children in New Hampshire be provided with equal educational opportunities. It is the purpose of this chapter to ensure that [the state board of education and the school districts of the state provide a free and appropriate public education for all educationally disabled children] all children with disabilities have available to them a free appropriate public education in the least restrictive environment that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.

II. The rights of children with disabilities and parents of such children are protected.

III. Local school districts, the department of education, and other public agencies or approved programs provide for the education of all children with disabilities.

302:2 Special Education; Definitions. Amend RSA 186-C:2, I-V to read as follows:

I. “[Educationally disabled] Child with a Disability” means any person 3 years of age or older but less than 21 years of age who has been identified and evaluated by a school district according to [the provisions of RSA 186-C:7] rules adopted by the state board of education and determined to [be a person with an intellectual disability, hearing impaired, speech or language impaired or both, visually impaired including blindness, seriously emotionally disturbed, orthopedically impaired, otherwise severely health impaired, deaf-blind, multi-disabled, traumatic brain injured, autistic, or as having specific learning disabilities, who because of such impairment, needs special education or special education and educationally related services] have an intellectual disability, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, an emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, acquired brain injury, an other health impairment, a specific learning disability, deaf-blindness, multiple disabilities, or a child at least 3 years of age but less than 10 years of age, experiencing developmental delays, who because of such impairment, needs special education or special education and related services. “[Educationally disabled] Child with a disability” shall include a child ages 18 to 21, who was identified as [an educationally disabled] a child with a disability and received services in accordance with an individualized education [plan] program but who left school prior to his or her incarceration, or was identified as [an educationally disabled] a child with a disability but did not have an individualized education [plan] program in his or her last educational institution.

I-a. “Developmentally delayed child” means a child [between 3 and 9 years of age] at least 3 years of age or older, but less than 10 years of age, who, because of impairments in development, needs special education or special education and [educationally] related services, and may be identified as being developmentally delayed provided that such a child [must first be determined to have an educationally disabling condition as defined in RSA 186-C:2, I] meets the criteria established by the state board of education.

I-b. “Division” means the division of educational improvement, department of education.

II. “Approved program” means a program of special education that has been approved by the state board of education and that is maintained by a school district, regional special education center, private organization, or state [institution] facility for the benefit of [educationally disabled] children with disabilities and may include [a home-based program] home instruction provided by the school district.

III. “Individualized education [plan] program” means a written plan for the education of [an educationally disabled] a child with a disability that has been developed by a school district in accordance with rules adopted by the state board of education and that provides necessary special education or special education and [educationally] related services within an approved program.

IV. “Special education” means instruction specifically designed to meet the unique needs of [an educationally disabled] a child with a disability.

V.(a) “[Educationally] Related services” means:

(1) Suitable transportation [and] to all children with disabilities whose individualized education program requires such transportation. The school district may board a child as close to the place where instruction is to be furnished as possible, and shall provide transportation, if required by the child’s individualized education program, from the place where the child is boarded to the place of instruction; and

(2) Such developmental, corrective, and other supportive services as are specifically required by an individualized education [plan] program to assist [an educationally disabled] a child with a disability to benefit from special education; and

(3) Services necessary for a child with a disability to benefit from special education and when placement in a residential facility has been made by the legally responsible school district in order to comply with RSA 186-C:9, or when placement has been ordered by a hearings officer or by a court of competent jurisdiction on appeal, pursuant to rules adopted by the state board of education under RSA 186-C:16, IV.

(b) “[Educationally] Related services” [do] shall not include medical services unless such services are necessary for purposes of diagnosis and evaluation.

302:3 Special Education; Division of Educational Improvement. Amend RSA 186-C:3 to read as follows:

186-C:3 Division of Educational Improvement; Special Education; Programs and Services. The department shall [appoint] hire and assign such personnel or contract for services [as may be necessary for proper operation of special education programs] to perform responsibilities required under state or federal special education law, including, but not limited to, monitoring, compliance, and technical assistance and support to school districts. Special education services of the division of educational improvement shall be fully coordinated and integrated with the department’s general curriculum and instruction activities.

302:4 Special Education; Division Duties; Advisory Committee. Amend RSA 186-C:3-a and RSA 186-C:3-b to read as follows:

186-C:3-a Duties.

I. The division shall help school districts meet their responsibilities under this chapter and under federal law regarding the education of [students] children with [educational] disabilities.

I-a. The special education program of the department of education shall develop and analyze information on issues and problems of regional and statewide importance and on assisting school districts in dealing with these issues and problems. The department shall ensure that the regulation and monitoring of school district activities shall not exceed what is necessary for compliance with this chapter and with state and federal law regarding the education of [students with educational] children with disabilities.

II. The [division] department of education shall, [subject to available funding, develop, implement and evaluate statewide special education policies, standards and programs. In carrying out this mission, the division shall gather and] collect, organize, and analyze data [and organize and analyze instruction] and information about programs, conditions, instruction, and trends in special education in the state. In addition, the [division] department shall be responsible for monitoring and maintaining information about national and regional trends, instructions and issues affecting special education in New Hampshire. The [division] department shall make this information available to the districts and use this information to:

(a) Assess the needs of school districts for assistance in carrying out their responsibilities for educating [students with educational] children with disabilities;

(b) Identify cost effective and appropriate alternative programs [for serving students with educational disabilities] that meet the needs of children with disabilities;

(c) Focus resources on students requiring extensive services; [and]

(d) Develop cost and service level benchmarks for special education in New Hampshire which may be used as reference points by districts to measure the effectiveness of their programs in meeting [educational] goals and objectives of the individualized education program; and.

(e) Develop and promote evidence-based practices supporting the education of children with disabilities in the least restrictive environment, provided that:

(1) If children with disabilities are being placed in out of district programs solely due to a lack of qualified personnel, the department shall develop and implement strategies, in addition to the requirements of RSA 186-C:21, to help address the shortage and increase the capacity of local education agencies to serve children in the schools they would attend if not disabled.

(2) The department shall identify disproportionate representation in out-of-district programs and provide focused technical assistance to help the identified school districts serve children with disabilities in the least restrictive environment.

II-a.(a) In addition to the requirements of paragraph II, the [division] department of education shall annually submit a report to the commissioner of the department and the state board of education that:

(1) Shows the identification of children with [educational] disabilities analyzed according to the following criteria: age [or] and grade level, and number [of students in each disability category, ]and percentage of the total number of children with [educational] disabilities in each disability category. [The report shall also]

(2) [include] Includes expenditures for special education as reported to the department of education by school districts and state and federal revenues for special education received by school districts. [The first report shall include data from the 2 preceding school years.]

(3) Shows the annual progress and compliance on the state’s performance plan required by 20 U.S.C. section 1416(b), 20 U.S.C. section 1412(a)(15), and 20 U.S.C. section 1416(a)(3).

(4) Shows the progress and compliance with the requirements in the No Child Left Behind Act of 2001, 20 U.S.C. section 6311(b), and RSA 193-E:3 and RSA 193:H-2 with respect to children with disabilities.

(b) These findings shall be reported for the state and for each school district. [The report shall be based on existing special education disability categories, and any other related special education data already collected within the department or the division.] The commissioner shall make this report available upon request to all legislators, school officials from school districts, school administrative units, cooperative schools, AREA schools, and the general public, and shall make it available in an easily accessible format on the department of education website. In preparing such reports, the department of education shall not disclose personally identifiable information.

III. The [division] department of education shall provide technical assistance and information to the school districts so that the districts may effectively and efficiently identify, clarify and address their specific responsibilities under state and federal special education laws. This assistance shall include the provision of mediation services to resolve special education disputes and the provision of expertise regarding specific educationally disabling conditions. Whenever technical assistance of a specialized nature, beyond that available in the department, is required, the [division] department shall assume a leadership role in identifying sources of such assistance in other state agencies, the federal government, volunteer services or the private sector.

IV. The [division] department of education shall administer those federal and state funding programs for special education assigned to it by law. The [division] department shall also make recommendations to the state board regarding management systems, standard definitions and procedures in order to provide uniform reporting of special education services and expenditures by school districts and school administrative units.

V. The [division] department of education shall monitor the operations of local school districts, regional special education centers, charter schools, and private organizations or state programs for the benefit of the education of children with disabilities regarding compliance with state and federal laws regarding the education of students with [educational] disabilities. The [division’s regulatory program] department’s monitoring, regulatory oversight, and program approval shall be structured and implemented in a prudent manner and shall not place an excessive administrative burden on local districts. The [division] department and districts shall approach monitoring and regulation in a constructive, cooperative manner, while also ensuring accountability for failing to meet standards [with a goal of improving special education in New  Hampshire] and ensuring that the special education needs of children with disabilities are met.

VI. [Repealed.]

VII.(a) Granite State high school shall submit a plan for department approval to be adopted by November 1, 2009, to meet the special education needs of persons incarcerated in the state prison system.

(b) Each county correctional facility shall designate one special education coordinator who shall act as the contact person for outside entities on matters related to special education, and to consolidate and coordinate existing functions associated with providing a free appropriate public education to eligible students, including the assessment of eligibility and educational needs, and who shall participate in hiring or contracting with necessary staff, coordinate with local school district staff or other individuals to provide special education and related services, coordinate evaluations and meetings, and oversee the planning of special education after discharge.

(c) County correctional facilities shall be exempt from state board of education rules, except that the standards for the education of students with disabilities and all educational programs shall be set by interagency agreements between the department of education and each county correctional facility.

(d) Granite State high school and each county correctional facility shall be subject to the monitoring requirements in RSA 186-C:5, and shall be monitored in 2007, and subject to on-site monitoring at least annually through 2010.

[The division shall, in conjunction with the department of corrections and county governments, prepare and adopt a plan for meeting the special education needs of persons incarcerated in the state prison system and county correctional facilities. Such plan shall be adopted no later than November 1, 1997.]

186-C:3-b Advisory Committee; Purpose; Membership; Terms; Duties; Meetings.

I. In accordance with the provisions of 20 U.S.C. section [1413(a)(12)] 1412(a)(21) and 34 C.F.R. sections [300.650-300.653] 300.167-300.169, there is established an advisory committee on the education of children/students with disabilities to advise the commissioner of education on issues relating to special education, and to promote communication and cooperation among individuals involved with students with disabilities. In addition, the committee shall review the federal financial participation and the level of state funding to determine their impact on the programs and delivery of services to children/students with disabilities.

II. The committee shall [consist of the following members] be composed of individuals involved in, or concerned with, the education of children with disabilities. A majority of the committee membership shall be composed of individuals with disabilities or parents of children with disabilities. The committee membership shall be as follows:

(a) Individuals with disabilities or parents of children with disabilities, appointed by the governor.

[(a)] (b) Two members of the house education committee, appointed by the speaker of the house.

[(b)] (c) Two members of the senate education committee, appointed by the president of the senate.

[(c)] (d) One representative of a vocational, community, or business organization concerned with the provision of transition services to children/students with disabilities, appointed by the governor.

[(d)] (e) One state education official, appointed by the governor.

[(e)] (f) One local educational official, who shall be an administrator, appointed by the governor.

[(f)] (g) [One] Two teachers, one of whom shall be a special education teacher, appointed by the governor.

[(g)] (h) One representative of the department of health and human services involved in the financing or delivery of special education or related services to children with disabilities, recommended by the commissioner of the department of health and human services, and appointed by the governor.

[(h)] (i) One representative of the Disabilities Rights Center, recommended by the Disabilities Rights Center and appointed by the governor.

[(i)] (j) One representative of the Parent Information Center, recommended by the Parent Information Center and appointed by the governor.

[(j)] (k) Two individuals with disabilities who may have [benefited from] received special education services, one of whom may be a high school student, appointed by the governor.

[(k)] (l) One administrator of a public special education program, appointed by the governor.

[(l)] (m) One representative of an institution of higher education that prepares special education and related services personnel, appointed by the governor.

[(m)] (n) One representative of a private school approved for special education, appointed by the governor.

[(n)] (o) One representative of a public charter school, appointed by the governor.

[(o) One representative from the department of health and human services, appointed by the governor.]

(p) One individual representing children with disabilities who are home-schooled, appointed by the governor.

(q) One representative from the department of corrections, and one representative from a county correctional facility, both of whom are responsible for administering the provision of special education or special education and related services, appointed by the governor.

[(q) Parents of children/students with disabilities, appointed by the governor. A simple majority of the members of the committee shall be individuals with disabilities or parents of children/students with disabilities.]

(r) [An official who carries out] A state and a local educational official who are responsible for performing activities under subtitle B of title VII of the McKinney-Vento Homeless Assistance Act, 42 U.S.C. section 11431, et seq, appointed by the governor.

(s) A representative from the department of health and human services responsible for foster care, recommended by the commissioner of the department of health and human services and appointed by the governor.

III.(a) Committee members shall be appointed to [3-year] staggered 2-year terms, and members may succeed themselves [for one additional term].

(b) A chairperson shall be selected by a majority of the committee members on an annual basis.

IV. The committee shall:

(a) Advise the department of education regarding unmet needs within the state in the education of children/students with disabilities.

(b) Provide an annual report to the governor and the state legislature on the status of education of students with disabilities in New Hampshire.

(c) Comment publicly on the state plan and rules or regulations proposed for issuance by the state regarding the education of children/students with disabilities.

(d) Assist the state in developing and reporting such information and evaluations as may assist the U.S. Secretary of Education in the performance of responsibilities under [section 618] 20 U.S.C. section 1418 of the Individuals with Disabilities Education Act.

(e) Advise the department of education in developing corrective action plans to address findings identified in federal monitoring reports.

(f) Advise the department of education in developing and implementing policies relating to the coordination of services for children/students with disabilities.

V. The committee shall meet at least quarterly or as often as necessary to conduct its business.

VI. The department of education shall provide administrative support for the committee.

302:5 Special Education; Program Approval, Monitoring, and Corrective Action. Amend RSA 186-C:5 to read as follows:

186-C:5 Program Approval, Monitoring, and Corrective Action.

I.(a) The state board of education shall adopt rules establishing a process and standards for the approval and monitoring of programs of education that are maintained by school districts, regional special education centers, and private organizations or state [institutions] facilities for the benefit of [educationally disabled] children with disabilities, including charter schools, home-based programs and alternative schools or programs; except, however, that approval of education programs for the special district established in RSA 194:60 shall be pursuant to the standards set forth in the interagency agreements between the department of corrections and the department of education.

(b) The division of educational improvement of the department of education, through its program approval and monitoring process shall determine if a district is making diligent efforts to resolve personnel shortages that result in children with disabilities being placed out of district.

II. The purpose of program approval and monitoring is to ensure that the programs specified in paragraph I comply with applicable federal and state law, including standards related to improving educational results and functional outcomes.

III. Program approval and monitoring shall utilize professionally recognized program evaluation and other verification methods to ensure reliable and valid findings and corrective actions. The department shall develop and apply standards and procedures to determine whether each program specified in paragraph I complies with the requirements of applicable federal and state law. Such standards shall give considerable weight to rigorous benchmarks or performance outcomes and indicators required by federal and state law most relevant to achieving educational results and functional outcomes. Program approval and monitoring shall also include, but not be limited to the following components and processes:

(a) Reporting of outcome or indicator data by school district and non-district programs to the department in a manner and frequency as the department shall determine.

(b) Development and application of methods to ensure the accuracy of all such data including data as entered in student records and as transmitted to the department, to include necessary on-site verification of data.

(c) Determinations by the department as to whether the reported data complies with such standards.

(d) On-site monitoring to further evaluate noncompliance, verify accuracy of data, assess the adequacy of the corrective action plans and their implementation, or other purposes as the department may determine, which may include:

(1) Regular or periodic monitoring.

(2) Special on-site monitoring required as part of the resolution or remediation of a complaint under 34 C.F.R. sections 300.151-152, or based on reliable information received indicating that there is reason to believe that there is noncompliance with standards.

(3) Random or targeted visits which may be unannounced when the department determines that an unannounced visit is needed.

(e) Program monitoring, including the on-site monitoring components, shall use multiple program evaluation techniques in accordance with professionally recognized standards and to achieve the purposes set forth in paragraphs I-III, including, but not limited to, random sampling stratified as necessary to cover discrete sites or programs such as alternative programs or schools.

(f) Program approval and monitoring personnel or teams, which shall be knowledgeable in research-based education, special education practices, professionally recognized program evaluation practices, the Individuals With Disabilities Education Act, and state special education laws and which shall receive appropriate training to participate in the monitoring process. Such personnel or teams for on-site monitoring shall consist of at least one of each of the following: an educator, an educational administrator, and a parent who resides in another school district, who shall receive mileage reimbursement. The department may determine that for certain on-site visits less than a full team is necessary. The department directly or by contract shall develop and train a group of parents on the requisites needed to carry out the monitoring duties. Where volunteers or contracted personnel are used for the non-parent team slots, attempts shall be made to use or balance teams with personnel from non-school district sources such as qualified individuals from higher education. Educators and educational administrators that are used (1) may not review schools in school districts in which they are employed or have been employed in the previous 2 years and (2) may not be from schools which in the current or prior 3 years have been the subject of mandatory technical assistance under subparagraph V(e)(2) or any of the interventions in subparagraphs V(e)(3)-(12). The department shall make available sufficient funds for stipends or similar financial remuneration, in addition to expense reimbursements to ensure that teams have a diversity of perspectives and high quality professional membership The department of education may contract with an individual or organization which has the requisite expertise and skill to perform the monitoring activities, and who is otherwise independent from school district and non-school district programs in New Hampshire. This subparagraph shall not be construed to preclude individuals who may have performed sporadic or occasional contract or volunteer work for school district or non-school district programs.

IV. The department shall issue a report granting full or conditional approval, or denying, suspending, or revoking approval prior to the expiration of the existing program approval which shall include:

(a) Findings detailing exemplary characteristics and strengths of each program and each instance of noncompliance and failure to meet performance outcome or indicator measures in accordance with standards set forth in paragraph III.

(b) Recommendations for actions needed to correct noncompliance or failure to meet performance outcome or indicator measures.

(c) School districts and non-district programs may appeal decisions granting conditional approval or denying, suspending, or revoking approval pursuant to paragraph VII.

(d) The department may issue reports outside of the regular approval process directing school districts or non-school district programs to take any of the actions set forth in paragraph V.

V.(a) The provisions of this paragraph shall be enforced subsequent to the issuance of an order resulting from a complaint investigated, a due process hearing, or a monitoring activity pursuant to rules adopted under RSA 541-A.

(b) At the conclusion of the time limit specified for the school district, public agency, private provider of special education, or other non-school district based program to have completed the corrective action specified in the orders of compliance, the administrator of the bureau of special education of the department of education shall forward to the commissioner of the department of education a written report indicating the extent to which the agency took corrective action to achieve compliance with state and federal law.

(c) In the event the written report shows that the school district, public agency, private provider of special education, or other non-school district based program has not complied with orders issued by the department, the commissioner of the department of education shall give the written notice of the enforcement action to be taken.

(d) When taking enforcement action, the commissioner of the department of education shall consider:

(1) The severity and length of noncompliance.

(2) Whether a good faith effort was made to correct the problem.

(3) The impact on children who are entitled to a free appropriate public education.

(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 compensatory education.

(5) Targeting or redirecting the use of federal special education funds in the areas of concern.

(6) Formal referral to the bureau of credentialing in the department of education for review of compliance with professional licensure or certification requirements.

(7) Ordering the cessation of operations of discrete programs operated by a school district, collaborative program, private provider of special education, public academy, or state facility for the benefit of children with disabilities.

(8) A review of programs which may include a desk audit, scheduled on-site reviews, and unannounced on-site reviews, to ensure compliance. The frequency of the program reviews may, at the discretion of the department, take place weekly, monthly, or quarterly.

(9) Requiring redirection of federal funds to remediate noncompliance of more than one year.

(10) Ceasing payments of state or federal special education funds to the school district or other public agency until the department of education determines the school district or other public agency is in compliance.

(11) Ordering, in accordance with a final state audit report, the repayment of misspent or misapplied state and/or federal funds.

(12) In the case of a school district or other public agency, referring the matter to the department of justice for further action.

(13) In the case of a private provider of special education or other non- school district based program, ordering 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 state and federal law.

VI. The commissioner shall notify the superintendent and local school board, and post findings and corrective actions recommended on the department Internet website. The commissioner shall also notify the advisory committee on the education of children/students with disabilities of the findings, remedies, and sanctions.

VII. The department shall adopt rules for the school district appeals process for corrective actions imposed under subparagraphs V(a)(5)-(11).

VIII. The commissioner shall employ or contract with a sufficient number of qualified personnel to carry out the activities enumerated in this section, including but not limited to managing, analyzing, and verifying data, coordinating and staffing on-site monitoring teams, preparing reports, including findings and corrective actions, and determining, monitoring, or supervising corrective actions and sanctions.

IX. The department, with input from the advisory committee on the education of children/students with disabilities, shall select and contract with an independent, nationally recognized organization in program evaluation and quality assurance to evaluate in 2010 and decennially thereafter, the effectiveness of the program approval and monitoring system, including whether it is carrying out activities in RSA 186-C:5 in an efficient manner. Such organization shall submit recommendations for any improvements to the commissioner, the state board of education, the governor, and the general court within 90 days of completing the program evaluation.

302:6 Special Education; Individualized Education Programs. Amend RSA 186-C:7 to read as follows:

186-C:7 [Individual] Individualized Education [Plans] Programs.

I. The development of an individualized education [plan] program for each [educationally disabled] child with a disability shall be the responsibility of the school district in which the child resides or of the school district which bears financial responsibility for the child’s education.

II. The parents [or legal guardian] of [an educationally disabled] a child with a disability have the right to participate in the development of the individualized education [plan] program for the child and to appeal decisions of the school district regarding such child’s individualized education [plan] program as provided in rules adopted in accordance with RSA 541-A by the state board of education.

III. [The division of educational improvement of the department of education shall assist each school district in developing an approved program or programs for educating the educationally disabled children of the district including the setting of approved rates for private providers of special education services pursuant to RSA 21-N:5, I(h).

IV. [Repealed.]] Each child’s individualized education program shall include short-term objectives or benchmarks unless the parent agrees that they are not necessary for one or more of the child’s annual goals.

302:7 Special Education; Interagency Agreement for Special Education. Amend RSA 186-C:7-a to read as follows:

186-C:7-a Interagency Agreement for Special Education.

I. The commissioner of the department of education, [with the approval of], the state board of education, and the commissioner of the department of health and human services shall, consistent with applicable state and federal law, enter into [a comprehensive, cooperative special education] an interagency agreement [to ensure the provision of necessary services by their agencies to educationally disabled children.] for the purposes of:

(a) Meeting the multi-service agency needs of children with disabilities in an efficient and effective manner and without delays caused by jurisdictional or funding disputes;

(b) Providing for continuity and consistency of services across environments in which children function; and

(c) Ensuring well-planned, smooth, and effective transitions from early intervention to special education and from special education to postsecondary life.

II. This agreement shall address programs and services for [each appropriate category of educationally disabled] children with disabilities, provided, funded, or regulated by the department and local school districts, and the department of health and human services and its local counterparts, the district offices, the area agencies, and the community mental health centers.

III. [For each category of educationally disabled children,] The agreement shall [include] address the functions set forth in paragraph I including, but not limited to:

(a) [A definition of the]Defining the specific [population] populations to be served.

(b) [An identification and description of] Identifying and describing the services available through each agency.

(c) [A description of]Describing the specific programmatic and financial responsibilities of each department, and its divisions, bureaus, and local counterparts.

(d) [An estimate of] Estimating the costs of, and source of funds for, all services to be provided by each department.

(e) [A method for implementing and administering the agreement which shall include a procedure for settling disputes regarding its administration or the financial and programmatic responsibilities of each department] Implementing methods to ensure prompt and timely initiation of services, including criteria for determining agency responsibility for service provision and payment, which shall include:

(1) A provision permitting a parent or agency, believing that it is not responsible for the services at issue, to request the participation of another potentially responsible agency, provided that in the case of an agency request, the parent or child who has reached majority has been advised of his or her appeal rights and the parent or child, as applicable, consents to the participation of the other agency.

(2) The procedure and criteria, when more than one agency is involved, for determining who should provide and pay for the needed services, such criteria to include a requirement that the school district is responsible to provide and pay for all special education, related services, supplemental aids and services, and accommodations for children with disabilities, unless:

(A) Medicaid is responsible or the department of health and human services or another agency is required to pay; or

(B) Another agency agrees to pay voluntarily or pursuant to an agreement; or

(C) The service is primarily non-educational in nature, involving only care or custodial activities and serves no educational purpose, and does not pertain to curriculum or individualized skills or behavior change or development aimed at enabling a child to function in the school, workplace, home, and community, and are neither related services, supplementary aides, and services, or as defined by state or federal law.

(3) A procedure for dispute resolution, including a provision for binding dispute resolution, which may be initiated by any participating agency, parent, guardian, educational surrogate, or child who has reached the age of majority to determine whether or not the child is entitled to the services in dispute, when service entitlement by all agencies is in dispute, and which agency is responsible to pay and provide the service, when agency financial and programmatic responsibility is in dispute.

(4) When there is a dispute as to financial or programmatic responsibility, a provision that the local school district shall provide the service or otherwise ensure that the service is provided, subject to the local school district’s right of reimbursement if another agency is found responsible.

(f) [A procedure for monitoring the operation of the agreement and for revising it periodically as necessary] Consistent with federal and state privacy laws, provisions for state and local educational and health and human service agencies to share and exchange necessary child and program specific information and data.

IV. The commissioners of the departments of education and health and human services shall submit a copy of the [initial] interagency agreement for special education, reflecting changes required under this section, to the appropriate standing committees of each house of the general court on or before [September 1, 1985] October 1, 2008, and shall submit [a revision to the agreement no later than January 1, 1999. Any subsequent proposed] any subsequent amendments or revisions to the agreement [shall be submitted] to the appropriate standing committees of the house and senate, no later than 60 days after adoption of the amendments or revisions. Prior to adopting any revisions or amendments to the agreement, the commissioners shall jointly solicit input from relevant advisory committees and the public.

V. Nothing in this section shall require:

(a) A parent, guardian, or child to pay for services provided by a local school district or other local or state public educational program, if the services are educational in nature or are otherwise required by the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 et seq.

(b) A local school district to provide any educational services beyond those required under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 et seq., or this chapter.

(c) The department of health and human services to provide services not otherwise required by other state or federal laws.

302:8 New Section; Special Education; Rate Setting. Amend RSA 186-C by inserting after section 7-b the following new section:

186-C:7-c Rate Setting.

I. The division of educational improvement of the department of education shall ensure that each school district develops approved programs for children with disabilities in the school district.

II. The division of educational improvement of the department of education shall set an approved rate for private providers of special education services pursuant to RSA 21-N:5, I(h).

III. Such rates shall be sufficient to reflect costs and expenses of comparable or similar programs in the region or state and sufficient to provide children with disabilities with a free appropriate public education.

IV. No provider shall charge the department of education or any school district in this state an amount in excess of the rate established by the division of educational improvement of the department of education.

302:9 Special Education; Collaborative Programs; Education Required. Amend RSA 186-C:8-9 to read as follows:

186-C:8 Collaborative Programs.

I. School districts or school administrative units, or both, may enter into cooperative agreements in order to provide approved programs for educating [educationally disabled] children with disabilities [in regional special education centers]. The state board of education, when appropriate because of a low incidence of a disabling condition, high cost of services, or scarcity of trained personnel, shall encourage such cooperative agreements and shall serve as a source of information, advice and guidance to school districts, school administrative units, or both.

II. The state board of education, together with representatives of neighboring states, shall study the feasibility of interstate agreements [or interstate compacts] for the provision of services to [educationally disabled students] children with disabilities.

186-C:9 Education Required. Each child who is determined by the local school district, or special school district established under RSA 194:60, as [being educationally disabled] having a disability in accordance with RSA 186-C:2 and in need of special education or special education and [educationally] related services shall be entitled to attend an approved program which can implement the child’s individualized education [plan] program. Such child 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 21, whichever occurs first, or until the [school district responsible for developing the] child’s individualized education [plan] program team determines that the child no longer requires special education in accordance with the provisions of this chapter.

302:10 Special Education; Responsibility of School District. Amend RSA 186-C:10 to read as follows:

186-C:10 Responsibility of School District. A school district shall establish an approved program or programs for [educationally disabled] children with disabilities, or shall enter into cooperative agreements with other districts to provide approved programs for [educationally disabled] children with disabilities, or shall pay tuition to such an approved program maintained by another school district or by a private organization. [Eligibility for participation in an approved program of special education shall be determined by the school board of the school district under rules adopted by the state board of education.]

302:11 Special Education; Federal Assistance. Amend RSA 186-C:12 to read as follows:

186-C:12 Federal Assistance. The state board of education is authorized to cooperate with the federal government or any agency of the federal government in the development of any plan for the education of [educationally disabled] children with disabilities and to receive and expend, in accordance with such plan, all funds made available to the state board of education from the federal government or any of its agencies, from the state, or from other sources. The [several] school districts of the state are authorized to receive, incorporate in their budgets, and expend for the purposes of this chapter such funds as may be made available to them through the state board of education from the federal government or any of its agencies.

302:12 Special Education; Liability for Expenses. Amend RSA 186-C:13 to read as follows:

186-C:13 Liability for Expenses.

I. All expenses incurred by a school district in administering the law in relation to education for [educationally disabled] children with disabilities in need of special education and related services shall be paid by the school district where the child resides, except as follows:

(a) When [an educationally disabled] a child with a disability in need of special education and related services is placed in a home for children or health care facility as defined in RSA 193:27, the liability for expenses for such child shall be determined in accordance with RSA 193:29.

(b) When [an educationally disabled] a child with a disability in need of special education and related services is placed in a state [institution] facility, the liability for expenses for such child shall be determined in accordance with RSA 186-C:19.

II. For the purposes of meeting the financial obligation for expenses incurred under this chapter, a school district may exceed its annual budget to the extent of additional special education aid which the district has actually received from the state after the annual school district budget was approved.

III. No school district shall be required to pay the expenses of the education program of a child adjudicated under RSA 169-B, 169-C, or 169-D except as provided by RSA 186-C. The sending district shall be notified of a court ordered placement of a child adjudicated under the provisions of RSA 169-B, 169-C, or 169-D, and may submit recommendations to the court concerning the financial impact of the placement on the sending district and the appropriateness of the placement.

302:13 Special Education; Surrogate Parents. Amend RSA 186-C:14 to read as follows:

186-C:14 Surrogate Parents.

I. PURPOSE. The purpose of this section is to protect the educational rights of eligible, [educationally disabled] children with disabilities.

II. DEFINITIONS. The following words as used in this section shall be construed as follows:

(a) “Surrogate parent”' shall mean a person appointed to act as a child's advocate in place of the child's [birth] biological or adoptive parents or guardian in the educational decision-making process.

(b) “Educational decision-making process”' shall include identification, evaluation, and placement as well as the hearing, mediation, and appeal procedures.

(c) [Repealed.]

(d) [Repealed.]

III. DETERMINING NEED.

(a) When[, in the opinion of the commissioner of education or designee, an educationally disabled child] a child with a disability, as defined in RSA 186-C:2, needs special education and the parent or guardian of the child is unknown or after reasonable efforts cannot be located, or the child is [a ward of the state, the commissioner or designee shall] in the legal custody of the division of children, youth, and families, the commissioner, or designee, may appoint a surrogate parent who shall represent the child in the educational decision-making process, provided that for a child in the legal custody of the division of children, youth, and families, a judge overseeing the child’s case pursuant to the Individuals With Disabilities Education Act, 20 U.S.C. section 1415(b)(2)(A)(i), may appoint a surrogate parent.

(b) 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 pursuant to this section.

IV. APPOINTMENT OF SURROGATE. [Once the commissioner of education or designee determines that a surrogate parent is needed, the commissioner or designee shall appoint a surrogate parent. Such] Appointment of a surrogate parent under this section shall be effective until the child reaches 18 years of age, and may be extended by order of the commissioner until the child graduates from high school or reaches 21 years of age, whichever occurs first. If the surrogate parent resigns, dies or is removed, the commissioner of the department of education or designee, or the court with jurisdiction over the child’s case, may appoint a successor surrogate parent in the same manner as provided in paragraph III.

V. RIGHT OF ACCESS. When a surrogate parent is appointed, the surrogate parent shall have the same right of access as the natural parents or guardian to all records concerning the child. These records shall include, but not be limited to, educational, medical, psychological and [welfare] health and human service records.

VI. LIMITED LIABILITY. No surrogate parent appointed pursuant to the provisions of paragraph III or IV shall be liable to the child entrusted to the surrogate parent or the parents or guardian of such child for any civil damages which result from acts or omissions of such surrogate parent which may arise out of ordinary negligence. This immunity shall not apply to acts or omissions constituting gross, willful, or wanton negligence.

VII. RULES. The state board of education shall adopt rules necessary for the administration of the provisions of this section.

302:14 Special Education; Foster Parent Representation. Amend the section heading in RSA 186-C:14-a to read as follows:

186-C:14-a Foster Parent Representation of Foster Children With [Educational] Disabilities.

302:15 Special Education; Foster Parent Representation. Amend RSA 186-C:14-a, I(b)(1) to read as follows:

(1) Is in an ongoing, long-term parental relationship with the child, as determined by the [department of health and human services] commissioner of the department of education or the child placing agency;

302:16 Special Education; Foster Parent Representation. Amend RSA 186-C:14-a, III to read as follows:

III. A foster parent acting as a parent shall have the same right of access as the birth parents or guardians to all records concerning the child. These records shall include, but are not limited to, educational, medical, psychological, and [welfare] health and human service records.

302:17 Special Education; Length of School Year. Amend RSA 186-C:15 to read as follows:

186-C:15 Length of School Year.

I. The length of the school year and school day for [an educationally disabled] a child with a disability shall be the same as that provided by the local school district for a child [not educationally disabled] without a disability of the same age or grade, except that the local school district shall provide an approved program for an extended period when [it can be demonstrated by a preponderance of evidence, in accordance with rules adopted by the state board of education, that interruption of the program of an educationally disabled child would result in severe and substantial harm and regression and would have the effect of negating the benefits of such educationally disabled child's regular special education program] the child’s individualized education program team determines that such services are necessary to provide the child with a free appropriate public education.

II. The length of the school year and school day for a preschool child with a disability shall be determined by the child’s individualized education program team and shall not be governed by the school district’s school calendar. A free appropriate public education shall be provided to a preschool child with a disability as of the child’s third birthday and when the child’s individualized education program team determines that services are necessary to provide a free appropriate public education to the child.

302:18 Special Education; Rulemaking. Amend RSA 186-C:16 to read as follows:

186-C:16 Rulemaking. The state board of education shall adopt rules, pursuant to RSA 541-A, and consistent with the provision of a free appropriate public education, relative to:

I. Developing individualized education [plans] programs;

II. Approving and monitoring special education programs;

III. Reporting the number of [educationally disabled] children with disabilities in a school district;

IV. Requesting administrative due process hearings and appealing a final administrative decision;

V. Determining eligibility for participation in approved programs;

VI. Appointing surrogate parents;

VII. Determining the length of the school year for [disabled] children with disabilities; and

VIII. Other matters related to complying with provisions of this chapter.

302:19 Special Education; Due Process Hearing. Amend RSA 186-C:16-b, III-V to read as follows:

III. Where the parent, legal guardian or surrogate parent has not been given proper written notice of special education rights pursuant to 20 U.S.C. section [1415(b)] 1415(d), including notice of the time limitations established in this section, such limitations shall run from the time notice of those rights is properly given. The department of education shall make available a model notice of rights which school districts may use as one means of complying with this paragraph.

IV. An appeal from a final administrative decision in a special education due process hearing to a court of competent jurisdiction pursuant to 20 U.S.C. section [1415(e)] 1415(i)(2)(A) shall be commenced within 120 days from receipt of the final decision. All such decisions shall be sent certified mail, return receipt requested.

V. An action pursuant to 20 U.S.C. section [1415(e)] 1415(i)(3) seeking reimbursement for attorney's fees or seeking reimbursement for expert witness fees shall be commenced within 120 days from receipt of the final decision in accordance with RSA 186-C:16-b, IV. All such decisions shall be sent certified mail, return receipt requested.

(a) The court may award reimbursement to a parent of a child with a disability for expert witness fees incurred as part of a due process complaint at which the parent was the prevailing party and when the court determines that a school has not acted in good faith in developing or implementing a child’s individualized education program, including appropriate placement.

(b) The court may deny or reduce reimbursement of expert witness fees if the hearing officer determines:

(1) The expert witness was not a necessary component to the parent’s complaint.

(2) The expert witness fee exceeds an amount that is reasonable, given the type and location of the service provided and the skill, reputation, and experience of the expert witness.

(3) The parent, or the parent’s attorney, did not provide notice to the school district of their intent to have the expert witness participate in the due process hearing.

302:20 New Subparagraph; Special Education; Alternative Dispute Resolution. Amend RSA 186-C:23, I by inserting after subparagraph (b) the following new subparagraph:

(c) Facilitated individualized education program meeting.

302:21 New Paragraph; Special Education; State Aid for Out-of-District Placements. Amend RSA 186-C:18 by inserting after paragraph X the following new paragraph:

XI.(a) The state board of education, through the commissioner of the department of education, shall distribute to school districts the lesser of 3.5 percent or $1,000,000 in catastrophic aid funds appropriated in the fiscal year, to establish or support school district-based programs for children with disabilities who have been in out-of-district programs in the previous school year. Funds shall be distributed to school districts as reimbursement for the establishment or support of such programs and shall be applied to the greater of the following:

(1) Supplemental costs incurred by the school district for educating the child within a local school district program; or

(2) The amount the school district received to educate the child in an out-of-district program, with the school district receiving in year one, 70 percent of the catastrophic aid the school district received from the previous school year, which would constitute the base year; in year 2, 50 percent of the catastrophic aid the school district received during the base year, and in year 3, 30 percent of the catastrophic aid the school district received during the base year.

(b) The state board of education shall adopt rules, pursuant to RSA 541-A, establishing procedures pursuant to this paragraph for reimbursement to school districts.

302:22 Special Education; Children with Disabilities in State Institutions. Amend RSA 186-C:19 to read as follows:

186-C:19 [Educationally Disabled] Children with Disabilities in Certain State [Institutions] Facilities.

I. For [an educationally disabled] a child with a disability in a state [institution] facility, the school district responsible for selecting and funding the child’s special education or special education and [educationally] related services shall be as follows:

(a) If such child is in the legal custody of the parent, the school district in which the child’s parent resides shall be the liable school district.

(b) If such child is not in the legal custody of the parent, or if the parent resides outside the state, the school district in which the child most recently resided other than in a state [institution] facility, home for children or health care facility as defined in RSA 193:27 shall be the liable school district.

(c) [For the purposes of this chapter, children 18 years of age or older but less than 21 years of age at Laconia developmental services or at the Philbrook center shall be deemed to be in the legal custody of their parents if they were in such legal custody upon reaching the age of 18.

(d)] For the purposes of this section a parent shall not have legal custody if legal custody has been awarded to some other individual or agency, even if that parent retains residual parental rights. An award of legal custody by a court of competent jurisdiction, in this state or any other state, shall determine legal custody under this section.

II. For [an educationally disabled] a child with a disability in a state [institution] facility, the responsible school district shall be liable for all expenses incurred in administering the law in relation to [educationally disabled] children with disabilities [except as follows: For the 1982 and 1983 fiscal years, the responsible school district’s annual financial liability for a child who was enrolled at the Laconia state school and training center as of July 1, 1981, shall not exceed the applicable state average per pupil cost as determined by the state board of education, and the state shall be liable for the balance of such costs, which shall in no case be taken from the $ 10,000,000 appropriated for state aid under RSA 186-C:18. If more than one school district is liable for such a child during a single fiscal year, the total annual financial liability to the school districts shall not exceed the applicable state average per pupil cost, said liability to be prorated on a per diem basis. For such a child who is enrolled at Laconia developmental services for less than a full year, the liability for such costs shall be prorated on a per diem basis by Laconia developmental services].

III. Nothing in paragraphs I or II of this section shall diminish the responsibility of the financially liable school district as defined in paragraphs I and II to develop and implement an individualized education [plan] program or to fulfill its obligations under other sections of this chapter for [an educationally disabled] a child with a disability in a state [institution] facility, regardless of whether such child was initially placed by a school district, the parent or some other agent.

IV. “State [institution] facility” as used in this section means [the Philbrook center for children and youth and Laconia developmental services. If a special education program at a state institution is the least restrictive placement and offers appropriate services for an educationally disabled child, such institution shall be utilized by a local school district for such child, subject to the approval of said institution] any state operated facility for children and youth with disabilities.

302:23 Special Education; Liability for Children with Disabilities in Certain Court Ordered Placements. Amend RSA 186-C:19-b to read as follows:

186-C:19-b Liability for [Educationally Disabled] Children with Disabilities in Certain Court Ordered Placements.

I.(a) As used in this section “children in placement for which the department of health and human services has financial responsibility” means all children receiving special education or special education and [educationally] related services whose placements were made pursuant to RSA 169-B, 169-C, or 169-D, except children at the youth development center and children placed at the youth services center maintained by the department of health and human services while awaiting disposition of the court following arraignment pursuant to RSA 169-B:13.

(b) In the case of an out-of-district placement, the appropriate court shall notify the department of education on the date that the court order is signed, stating the initial length of time for which such placement is made. This subparagraph shall apply to the original order and all subsequent modifications of that order.

II. The school district liability for expenses for special education or for special education and [educationally] related services for [an educationally disabled] a child with a disability in placement for which the department of health and human services has financial responsibility shall be limited to 3 times the estimated state average expenditure per pupil, for the school year preceding the year of distribution. The liability of a school district under this section shall be prorated if the placement is for less than a full school year and the district shall be liable for only the prorated amount. This section shall not limit a school district’s financial liability for children who receive special education or special education and [educationally] related services in a public school or program identified in RSA 186-C:10.

(a) Any costs of special education or special education and [educationally] related services in excess of 3 times the estimated state average expenditure per pupil for the school year preceding the year of distribution shall be the liability of the department of education. Costs for which the department of education is liable under this section shall be paid to education service providers by the department of education. The department of education shall develop a mechanism for allocating the funds appropriated for the purposes of this section.

(b) The department of health and human services shall be liable for all court-ordered costs pursuant to RSA 169-B:40, 169-C:27, and 169-D:29 other than for special education or special education and [educationally] related services.

(c) The department of education shall distribute special education payments under subparagraph II(a) within 60 days of receipt of invoice from the school district. School districts shall submit education service providers costs to the department within 30 days of receipt of such costs. The department shall then verify the cost and distribute the appropriate amounts to the education service provider.

III. The department of education shall by rules adopted under RSA 541-A establish the rates charged by education service providers to the department of education or to school districts for [educationally disabled] children with disabilities in placement for which the department of health and human services has financial responsibility.

IV. The department of education is authorized to receive and take appropriate action on complaints regarding the failure to provide necessary special education or special education and [educationally] related services to [educationally disabled] children with disabilities in placement for which the department of health and human services has financial responsibility.

V. All appropriations made for the purposes of funding court-ordered placements shall be nonlapsing.

302:24 Special Education; Special Education Program at the Youth Services Center. Amend RSA 186-C-20, I to read as follows:

I. Notwithstanding the provisions of any other law to the contrary, the expenses for [an educationally disabled child assigned to] a child with a disability receiving services at the special education program at the youth services center maintained by the department of health and human services shall be the responsibility of the liable school district so assigning the child. Such a school district shall pay the rate established for the special education program of the center.

302:25 Special Education; Subdivision Heading Amended. Amend the subdivision heading immediately preceding RSA 186-C:25 to read as follows:

Medicaid [Reimbursement] to Schools Program

302:26 Special Education; Medicaid to Schools Program. RSA 186-C:25 is repealed and reenacted to read as follows:

186-C:25 Medicaid to Schools Program Established.

I. There is established within the department of health and human services a Medicaid reimbursement program to be known as the “Medicaid to schools” program providing medical assistance for covered services furnished to children with disabilities. The purpose of the program is to seek Medicaid reimbursement for services provided by local school districts and school administrative units to children with disabilities which are reimbursable under federal law but which were previously fully funded by such districts or administrative units. The program shall be voluntary and is designed to assist children with disabilities by maintaining them in their own homes and communities. This subdivision is intended to provide Medicaid funding for services which, in the absence of such funding, nevertheless qualify as special education or related services under this chapter. It is not the intention of this subdivision to increase school district responsibility or liability beyond what is required by other sections of this chapter.

II. Eligible services may be provided to children with disabilities and may include, but shall not be limited to, the following:

(a) Screening, evaluation, and diagnostic services.

(b) Speech pathology and audiology.

(c) Occupational and physical therapy.

(d) Any other service which qualifies as a special education or related service under RSA 186-C or federal law and which also qualifies for reimbursement under Medicaid as a covered service.

III. Services provided under this subdivision shall:

(a) Offer the least restrictive setting for children receiving the services.

(b) Be provided to children in conformity with any medical criteria necessary for Medicaid reimbursement.

(c) Be in addition to any special education program as defined in the New Hampshire Rules for the Education of Children with Disabilities.

(d) Be provided only after obtaining informed parental consent.

IV. The commissioner of the department of health and human services, after consultation with the commissioner of the department of education, shall adopt rules, pursuant to RSA 541-A, relative to:

(a) State plans and reimbursement procedures necessary for local school districts or school administrative units to receive appropriate Medicaid reimbursement for eligible services under paragraph II of this section that are provided or paid for by school districts or school administrative units. Such rules shall recognize the financial obligation of the department of health and human services, and that any disputes between the department of health and human services and a school district or school administrative unit regarding whether such reimbursement is required shall be resolved pursuant to RSA 186-C:7-a.

(b) Monitoring mechanisms to ensure that services provided under this subdivision meet the requirements of paragraph III of this section. Monitoring responsibilities shall be consistent with the jurisdiction of the different departments.

(c) A financial mechanism by which the federal mandatory matching requirement is met through collection, or other means, of 50 percent of the cost of allowable services from local school districts and/or school administrative units.

V. The commissioner of the department of health and human services, after consultation with the commissioner of the department of education, shall adopt rules, pursuant to RSA 541-A, relative to further defining services eligible for medicaid reimbursement under this subdivision.

VI. New Hampshire local school districts or school administrative units shall be the enrolled Medicaid providers for the purpose of administration and billing.

302:27 Special Education; Neutral Conference. Amend RSA 186-C:23-b, III(a)(1) to read as follows:

(a)(1) The neutral who presides at a conference shall have experience with [students] children with [educational] disabilities and shall have knowledge of special education law, rules, and regulations.

302:28 Reference Change; Special Education; Alternative Dispute Resolution. Amend RSA 186-C:24, I(b) to read as follows:

(b) Either party may be accompanied and advised at mediation by individuals with special knowledge or training with respect to [educationally disabled pupil] the needs of children with disabilities. At least 5 days prior to the mediation conference, the mediator shall contact the parties to determine whether either party will be accompanied by an individual with special knowledge or training and shall notify the other party if such an individual will be in attendance.

302:29 Reference Changes. Amend the following RSA provisions by replacing the phrase “an educationally disabled child” with “a child with a disability”: RSA 186-C:19-a; and RSA 193:3, III(g).

302:30 Reference Changes. Amend the following RSA provisions by replacing the phrases “educationally disabled children,” “educationally disabled pupils,” “educationally disabled students,” and “educationally disabled individuals” with “children with disabilities”: RSA 21-N:9, II(l); RSA 35:1-b; RSA 169-B:7, III; RSA 169-C:8, III; RSA 169-D:6, III; RSA 186-C:11; RSA 186-C:18, III(a); the section heading of RSA 186-C:19-a; RSA 186-C:21, IV; RSA 193:3, I; RSA 194-B:3, II(n); the introductory paragraph of RSA 198:40-b, I; RSA 198:40-b, I(b); the introductory paragraph of RSA 198:40-b, II; RSA 198:40-b, II(a); and RSA 198:42, I.

302:31 Reference Changes. Amend the following RSA provisions by replacing the phrase “individualized education plan” or “individual education plan” with “individualized education program”: RSA 186-C:16-b, VI; RSA 186-C:19-a, I; RSA 193:12, VI(a); and RSA 265:107-a, II.

302:32 Reference Changes. Amend the following RSA provisions by replacing the phrase “educationally related services” with “related services”: RSA 126-A:40, I(b); RSA 169-B:40, I(b); RSA 169-C:27, I(b); RSA 169-D:29, I(b); and RSA 193:29, I(a).

302:33 Repeal. The following are repealed:

I. RSA 186-C:9-a, relative to educationally related services.

II. RSA 186-C:11 relative to transportation for children receiving special education services.

III. RSA 186-C:26, relative to eligible services for disabled children.

IV. RSA 186-C:27, relative to rulemaking for Medicaid reimbursement.

V. RSA 186-C:28, relative to enrolled Medicaid providers for special education services.

302:34 Special Education; Policy and Purpose. Amend RSA 186-C:1 to read as follows:

186-C:1 Policy and Purpose. It is hereby declared to be the policy of the state that:

I. All children in New Hampshire be provided with equal educational opportunities. It is the purpose of this chapter to ensure that [the state board of education and the school districts of the state provide a free and appropriate public education for all children with disabilities] all children with disabilities have available to them a free appropriate public education in the least restrictive environment that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.

II. The rights of children with disabilities and parents of such children are protected.

III. Local school districts, the department of education, and other public agencies or approved programs provide for the education of all children with disabilities.

302:35 Special Education; Definitions. Amend RSA 186-C:2, I-V to read as follows:

I. “Child with a disability means any person 3 years of age or older but less than 21 years of age who has been identified and evaluated by a school district according to [the provisions of RSA 186-C:7] rules adopted by the state board of education and determined to [be a person with an intellectual disability, hearing impaired, speech or language impaired or both, visually impaired including blindness, seriously emotionally disturbed, orthopedically impaired, otherwise severely health impaired, deaf-blind, multi-disabled, traumatic brain injured, autistic, or as having specific learning disabilities, who because of such impairment, needs special education or special education and related services] have an intellectual disability, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, an emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, acquired brain injury, another health impairment, a specific learning disability, deaf-blindness, multiple disabilities, or a child at least 3 years of age but less than 10 years of age, experiencing developmental delays, who because of such impairment, needs special education or special education and related services. “Child with a disability shall include a child ages 18 to 21, who was identified as a child with a disability and received services in accordance with an individualized education [plan] program but who left school prior to his or her incarceration, or was identified as a child with a disability but did not have an individualized education [plan] program in his or her last educational institution.

I-a. “Developmentally delayed child” means a child [between 3 and 9 years of age] at least 3 years of age or older, but less than 10 years of age, who, because of impairments in development, needs special education or special education and related services, and may be identified as being developmentally delayed provided that such a child [must first be determined to have an educationally disabling condition as defined in RSA 186-C:2, I] meets the criteria established by the state board of education.

I-b. “Division” means the division of educational improvement, department of education.

II. “Approved program” means a program of special education that has been approved by the state board of education and that is maintained by a school district, regional special education center, private organization, or state [institution] facility for the benefit of children with disabilities, and may include [a home-based program] home instruction provided by the school district.

III. “Individualized education [plan] program” means a written plan for the education of a child with a disability that has been developed by a school district in accordance with rules adopted by the state board of education and that provides necessary special education or special education and related services within an approved program.

IV. “Special education” means instruction specifically designed to meet the unique needs of a child with a disability.

V.(a) “[Educationally] Related services” means:

(1) Suitable transportation [and] to all children with disabilities whose individualized education program requires such transportation. The school district may board a child as close to the place where instruction is to be furnished as possible, and shall provide transportation, if required by the child’s individualized education program, from the place where the child is boarded to the place of instruction; and

(2) Such developmental, corrective, and other supportive services as are specifically required by an individualized education [plan] program to assist a child with a disability to benefit from special education; and

(3) Services necessary for a child with a disability to benefit from special education and when placement in a residential facility has been made by the legally responsible school district in order to comply with RSA 186-C:9, or when placement has been ordered by a hearings officer or by a court of competent jurisdiction on appeal, pursuant to rules adopted by the state board of education under RSA 186-C:16, IV.

(b) “Related services” [do] shall not include medical services unless such services are necessary for purposes of diagnosis and evaluation.

302:36 Special Education; Division Duties; Advisory Committee. Amend RSA 186-C:3-a and RSA 186-C:3-b to read as follows:

186-C:3-a Duties.

I. The division shall help school districts meet their responsibilities under this chapter and under federal law regarding the education of [students] children with [educational] disabilities.

I-a. The special education program of the department of education shall develop and analyze information on issues and problems of regional and statewide importance and on assisting school districts in dealing with these issues and problems. The department shall ensure that the regulation and monitoring of school district activities shall not exceed what is necessary for compliance with this chapter and with state and federal law regarding the education of [students with educational] children with disabilities.

II. The [division] department of education shall[, subject to available funding, develop, implement and evaluate statewide special education policies, standards and programs. In carrying out this mission, the division shall gather and] collect, organize, and analyze data [and organize and analyze instruction] and information about programs, conditions, instruction, and trends in special education in the state. In addition, the [division] department shall be responsible for monitoring and maintaining information about national and regional trends, instructions and issues affecting special education in New Hampshire. The [division] department shall make this information available to the districts and use this information to:

(a) Assess the needs of school districts for assistance in carrying out their responsibilities for educating [students with educational] children with disabilities;

(b) Identify cost effective and appropriate alternative programs [for serving students with educational disabilities] that meet the needs of children with disabilities;

(c) Focus resources on students requiring extensive services; [and]

(d) Develop cost and service level benchmarks for special education in New Hampshire which may be used as reference points by districts to measure the effectiveness of their programs in meeting [educational] goals and objectives of the individualized education program; and

(e) Develop and promote evidence-based practices supporting the education of children with disabilities in the least restrictive environment, provided that:

(1) If children with disabilities are being placed in out-of-district programs solely due to a lack of qualified personnel, the department shall develop and implement strategies, in addition to the requirements of RSA 186-C:21, to help address the shortage and increase the capacity of local education agencies to serve children in the schools they would attend if not disabled.

(2) The department shall identify disproportionate representation in out-of-district programs and provide focused technical assistance to help the identified school districts serve children with disabilities in the least restrictive environment.

II-a.(a) In addition to the requirements of paragraph II, the [division] department of education shall annually submit a report to the commissioner of the department and the state board of education that:

(1) Shows the identification of children with [educational] disabilities analyzed according to the following criteria: age [or] and grade level, and number [of students in each disability category, ]and percentage of the total number of children with [educational] disabilities in each disability category. [The report shall also]

(2) [include] Includes expenditures for special education as reported to the department of education by school districts and state and federal revenues for special education received by school districts. [The first report shall include data from the 2 preceding school years.]

(3) Shows the annual progress and compliance on the state’s performance plan required by 20 U.S.C. section 1416(b), 20 U.S.C. section 1412(a)(15), and 20 U.S.C. section 1416(a)(3).

(4) Shows the progress and compliance with the requirements in the No Child Left Behind Act of 2001, 20 U.S.C. section 6311(b), and RSA 193-E:3 and RSA 193-H:2 with respect to children with disabilities.

(b) These findings shall be reported for the state and for each school district. [The report shall be based on existing special education disability categories, and any other related special education data already collected within the department or the division.] The commissioner shall make this report available upon request to all legislators, school officials from school districts, school administrative units, cooperative schools, AREA schools, and the general public, and shall make it available in an easily accessible format on the department of education website. In preparing such reports, the department of education shall not disclose personally identifiable information.

III. The [division] department of education shall provide technical assistance and information to the school districts so that the districts may effectively and efficiently identify, clarify and address their specific responsibilities under state and federal special education laws. This assistance shall include the provision of mediation services to resolve special education disputes and the provision of expertise regarding specific educationally disabling conditions. Whenever technical assistance of a specialized nature, beyond that available in the department, is required, the [division] department shall assume a leadership role in identifying sources of such assistance in other state agencies, the federal government, volunteer services or the private sector.

IV. The [division] department of education shall administer those federal and state funding programs for special education assigned to it by law. The [division] department shall also make recommendations to the state board regarding management systems, standard definitions and procedures in order to provide uniform reporting of special education services and expenditures by school districts and school administrative units.

V. The [division] department of education shall monitor the operations of local school districts, regional special education centers, chartered public schools, and private organizations or state programs for the benefit of the education of children with disabilities regarding compliance with state and federal laws regarding the education of students with [educational] disabilities. The [division’s regulatory program] department’s monitoring, regulatory oversight, and program approval shall be structured and implemented in a prudent manner and shall not place an excessive administrative burden on local districts. The [division] department and districts shall approach monitoring and regulation in a constructive, cooperative manner, while also ensuring accountability for failing to meet standards [with a goal of improving special education in New  Hampshire] and ensuring that the special education needs of children with disabilities are met.

VI. [Repealed.]

VII.(a) Granite State high school shall submit a plan for department approval to be adopted by November 1, 2009, to meet the special education needs of persons incarcerated in the state prison system.

(b) Each county correctional facility shall designate one special education coordinator who shall act as the contact person for outside entities on matters related to special education, and to consolidate and coordinate existing functions associated with providing a free appropriate public education to eligible students, including the assessment of eligibility and educational needs, and who shall participate in hiring or contracting with necessary staff, coordinate with local school district staff or other individuals to provide special education and related services, coordinate evaluations and meetings, and oversee the planning of special education after discharge.

(c) County correctional facilities shall be exempt from state board of education rules, except that the standards for the education of students with disabilities and all educational programs shall be set by interagency agreements between the department of education and each county correctional facility.

(d) Granite State high school and each county correctional facility shall be subject to the monitoring requirements in RSA 186-C:5, and shall be monitored in 2007, and subject to on-site monitoring at least annually through 2010.

[The division shall, in conjunction with the department of corrections and county governments, prepare and adopt a plan for meeting the special education needs of persons incarcerated in the state prison system and county correctional facilities. Such plan shall be adopted no later than November 1, 1997.]

186-C:3-b Advisory Committee; Purpose; Membership; Terms; Duties; Meetings.

I. In accordance with the provisions of 20 U.S.C. section [1413(a)(12)] 1412(a)(21) and 34 C.F.R. sections [300.650-300.653] 300.167-300.169, there is established an advisory committee on the education of children/students with disabilities to advise the commissioner of education on issues relating to special education, and to promote communication and cooperation among individuals involved with students with disabilities. In addition, the committee shall review the federal financial participation and the level of state funding to determine their impact on the programs and delivery of services to children/students with disabilities.

II. The committee shall [consist of the following members] be composed of individuals involved in, or concerned with, the education of children with disabilities. A majority of the committee membership shall be composed of individuals with disabilities or parents of children with disabilities. The committee membership shall be as follows:

(a) Individuals with disabilities or parents of children with disabilities, appointed by the governor.

[(a)] (b) Two members of the house education committee, appointed by the speaker of the house.

[(b)] (c) Two members of the senate education committee, appointed by the president of the senate.

[(c)] (d) One representative of a vocational, community, or business organization concerned with the provision of transition services to children/students with disabilities, appointed by the governor.

[(d)] (e) One state education official, appointed by the governor.

[(e)] (f) One local educational official, who shall be an administrator, appointed by the governor.

[(f)] (g) [One] Two teachers, one of whom shall be a special education teacher, appointed by the governor.

[(g)] (h) One representative of the department of health and human services involved in the financing or delivery of special education or related services to children with disabilities, recommended by the commissioner of the department of health and human services, and appointed by the governor.

[(h)] (i) One representative of the Disabilities Rights Center, recommended by the Disabilities Rights Center and appointed by the governor.

[(i)] (j) One representative of the Parent Information Center, recommended by the Parent Information Center and appointed by the governor.

[(j)] (k) Two individuals with disabilities who may have [benefited from] received special education services, one of whom may be a high school student, appointed by the governor.

[(k)] (l) One administrator of a public special education program, appointed by the governor.

[(l)] (m) One representative of an institution of higher education that prepares special education and related services personnel, appointed by the governor.

[(m)] (n) One representative of a private school approved for special education, appointed by the governor.

[(n)] (o) One representative of a chartered public [charter] school, appointed by the governor.

[(o) One representative from the department of health and human services, appointed by the governor.]

(p) One individual representing children with disabilities who are home-schooled, appointed by the governor.

(q) One representative from the department of corrections, and one representative from a county correctional facility, both of whom are responsible for administering the provision of special education or special education and related services, appointed by the governor.

[(q) Parents of children/students with disabilities, appointed by the governor. A simple majority of the members of the committee shall be individuals with disabilities or parents of children/students with disabilities.]

(r) [An official who carries out] A state and a local educational official who are responsible for performing activities under subtitle B of title VII of the McKinney-Vento Homeless Assistance Act, 42 U.S.C. section 11431, et seq, appointed by the governor.

(s) A representative from the department of health and human services responsible for foster care, recommended by the commissioner of the department of health and human services and appointed by the governor.

III.(a) Committee members shall be appointed to [3-year] staggered 2-year terms, and members may succeed themselves [for one additional term].

(b) A chairperson shall be selected by a majority of the committee members on an annual basis.

IV. The committee shall:

(a) Advise the department of education regarding unmet needs within the state in the education of children/students with disabilities.

(b) Provide an annual report to the governor and the state legislature on the status of education of students with disabilities in New Hampshire.

(c) Comment publicly on the state plan and rules or regulations proposed for issuance by the state regarding the education of children/students with disabilities.

(d) Assist the state in developing and reporting such information and evaluations as may assist the U.S. Secretary of Education in the performance of responsibilities under [section 618] 20 U.S.C. section 1418 of the Individuals with Disabilities Education Act.

(e) Advise the department of education in developing corrective action plans to address findings identified in federal monitoring reports.

(f) Advise the department of education in developing and implementing policies relating to the coordination of services for children/students with disabilities.

V. The committee shall meet at least quarterly or as often as necessary to conduct its business.

VI. The department of education shall provide administrative support for the committee.

302:37 Special Education; Program Approval, Monitoring, and Corrective Action. Amend RSA 186-C:5 to read as follows:

186-C:5 Program Approval, Monitoring, and Corrective Action.

I.(a) The state board of education shall adopt rules establishing a process and standards for the approval and monitoring of programs of education that are maintained by school districts, regional special education centers, and private organizations or state [institutions] facilities for the benefit of children with disabilities, including charter schools, home-based programs and alternative schools or programs; except, however, that approval of education programs for the special district established in RSA 194:60 shall be pursuant to the standards set forth in the interagency agreements between the department of corrections and the department of education.

(b) The division of educational improvement of the department of education, through its program approval and monitoring process shall determine if a district is making diligent efforts to resolve personnel shortages that result in children with disabilities being placed out of district.

II. The purpose of program approval and monitoring is to ensure that the programs specified in paragraph I comply with applicable federal and state law, including standards related to improving educational results and functional outcomes.

III. Program approval and monitoring shall utilize professionally recognized program evaluation and other verification methods to ensure reliable and valid findings and corrective actions. The department shall develop and apply standards and procedures to determine whether each program specified in paragraph I complies with the requirements of applicable federal and state law. Such standards shall give considerable weight to rigorous benchmarks or performance outcomes and indicators required by federal and state law most relevant to achieving educational results and functional outcomes. Program approval and monitoring shall also include, but not be limited to the following components and processes:

(a) Reporting of outcome or indicator data by school district and non-district programs to the department in a manner and frequency as the department shall determine.

(b) Development and application of methods to ensure the accuracy of all such data including data as entered in student records and as transmitted to the department, to include necessary on-site verification of data.

(c) Determinations by the department as to whether the reported data complies with such standards.

(d) On-site monitoring to further evaluate noncompliance, verify accuracy of data, assess the adequacy of the corrective action plans and their implementation, or other purposes as the department may determine, which may include:

(1) Regular or periodic monitoring.

(2) Special on-site monitoring required as part of the resolution or remediation of a complaint under 34 C.F.R. sections 300.151-152, or based on reliable information received indicating that there is reason to believe that there is noncompliance with standards.

(3) Random or targeted visits which may be unannounced when the department determines that an unannounced visit is needed.

(e) Program monitoring, including the on-site monitoring components, shall use multiple program evaluation techniques in accordance with professionally recognized standards and to achieve the purposes set forth in paragraphs I-III, including, but not limited to, random sampling stratified as necessary to cover discrete sites or programs such as alternative programs or schools.

(f) Program approval and monitoring personnel or teams, which shall be knowledgeable in research-based education, special education practices, professionally recognized program evaluation practices, the Individuals with Disabilities Education Act, and state special education laws and which shall receive appropriate training to participate in the monitoring process. Such personnel or teams for on-site monitoring shall consist of at least one of each of the following: an educator, an educational administrator, and a parent who resides in another school district, who shall receive mileage reimbursement. The department may determine that for certain on-site visits less than a full team is necessary. The department directly or by contract shall develop and train a group of parents on the requisites needed to carry out the monitoring duties. Where volunteers or contracted personnel are used for the non-parent team slots, attempts shall be made to use or balance teams with personnel from non-school district sources such as qualified individuals from higher education. Educators and educational administrators that are used (1) may not review schools in school districts in which they are employed or have been employed in the previous 2 years and (2) may not be from schools which in the current or prior 3 years have been the subject of mandatory technical assistance under subparagraph V(e)(2) or any of the interventions in subparagraphs V(e)(3)-(12). The department shall make available sufficient funds for stipends or similar financial remuneration, in addition to expense reimbursements to ensure that teams have a diversity of perspectives and high quality professional membership. The department of education may contract with an individual or organization which has the requisite expertise and skill to perform the monitoring activities, and who is otherwise independent from school district and non-school district programs in New Hampshire. This subparagraph shall not be construed to preclude individuals who may have performed sporadic or occasional contract or volunteer work for school district or non-school district programs.

IV. The department shall issue a report granting full or conditional approval, or denying, suspending, or revoking approval prior to the expiration of the existing program approval which shall include:

(a) Findings detailing exemplary characteristics and strengths of each program and each instance of noncompliance and failure to meet performance outcome or indicator measures in accordance with standards set forth in paragraph III.

(b) Recommendations for actions needed to correct noncompliance or failure to meet performance outcome or indicator measures.

(c) School districts and non-district programs may appeal decisions granting conditional approval or denying, suspending, or revoking approval pursuant to paragraph VII.

(d) The department may issue reports outside of the regular approval process directing school districts or non-school district programs to take any of the actions set forth in paragraph V.

V.(a) The provisions of this paragraph shall be enforced subsequent to the issuance of an order resulting from a complaint investigated, a due process hearing, or a monitoring activity pursuant to rules adopted under RSA 541-A.

(b) At the conclusion of the time limit specified for the school district, public agency, private provider of special education, or other non-school district based program to have completed the corrective action specified in the orders of compliance, the administrator of the bureau of special education of the department of education shall forward to the commissioner of the department of education a written report indicating the extent to which the agency took corrective action to achieve compliance with state and federal law.

(c) In the event the written report shows that the school district, public agency, private provider of special education, or other non-school district based program has not complied with orders issued by the department, the commissioner of the department of education shall give the written notice of the enforcement action to be taken.

(d) When taking enforcement action, the commissioner of the department of education shall consider:

(1) The severity and length of noncompliance.

(2) Whether a good faith effort was made to correct the problem.

(3) The impact on children who are entitled to a free appropriate public education.

(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 compensatory education.

(5) Targeting or redirecting the use of federal special education funds in the areas of concern.

(6) Formal referral to the bureau of credentialing in the department of education for review of compliance with professional licensure or certification requirements.

(7) Ordering the cessation of operations of discrete programs operated by a school district, collaborative program, private provider of special education, public academy, or state facility for the benefit of children with disabilities.

(8) A review of programs which may include a desk audit, scheduled on-site reviews, and unannounced on-site reviews, to ensure compliance. The frequency of the program reviews may, at the discretion of the department, take place weekly, monthly, or quarterly.

(9) Requiring redirection of federal funds to remediate noncompliance of more than one year.

(10) Ceasing payments of state or federal special education funds to the school district or other public agency until the department of education determines the school district or other public agency is in compliance.

(11) Ordering, in accordance with a final state audit report, the repayment of misspent or misapplied state and/or federal funds.

(12) In the case of a school district or other public agency, referring the matter to the department of justice for further action.

(13) In the case of a private provider of special education or other non-school district based program, ordering 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 state and federal law.

VI. The commissioner shall notify the superintendent and local school board, and post findings and corrective actions recommended on the department Internet website. The commissioner shall also notify the advisory committee on the education of children/students with disabilities of the findings, remedies, and sanctions.

VII. The department shall adopt rules for the school district appeals process for corrective actions imposed under subparagraphs V(a)(5)-(11).

VIII. The commissioner shall employ or contract with a sufficient number of qualified personnel to carry out the activities enumerated in this section, including but not limited to managing, analyzing, and verifying data, coordinating and staffing on-site monitoring teams, preparing reports, including findings and corrective actions, and determining, monitoring, or supervising corrective actions and sanctions.

IX. The department, with input from the advisory committee on the education of children/students with disabilities, shall select and contract with an independent, nationally recognized organization in program evaluation and quality assurance to evaluate in 2010 and decennially thereafter, the effectiveness of the program approval and monitoring system, including whether it is carrying out activities in RSA 186-C:5 in an efficient manner. Such organization shall submit recommendations for any improvements to the commissioner, the state board of education, the governor, and the general court within 90 days of completing the program evaluation.

302:38 Special Education; Program Approval, Monitoring, and Corrective Action. Amend RSA 186-C:5 to read as follows:

186-C:5 Program Approval, Monitoring, and Corrective Action.

I.(a) The state board of education shall adopt rules establishing a process and standards for the approval and monitoring of programs of education that are maintained by school districts, regional special education centers, and private organizations or state [institutions] facilities for the benefit of [educationally disabled] children with disabilities, including chartered public schools, home-based programs and alternative schools or programs; except, however, that approval of education programs for the special district established in RSA 194:60 shall be pursuant to the standards set forth in the interagency agreements between the department of corrections and the department of education.

(b) The division of educational improvement of the department of education, through its program approval and monitoring process shall determine if a district is making diligent efforts to resolve personnel shortages that result in children with disabilities being placed out of district.

II. The purpose of program approval and monitoring is to ensure that the programs specified in paragraph I comply with applicable federal and state law, including standards related to improving educational results and functional outcomes.

III. Program approval and monitoring shall utilize professionally recognized program evaluation and other verification methods to ensure reliable and valid findings and corrective actions. The department shall develop and apply standards and procedures to determine whether each program specified in paragraph I complies with the requirements of applicable federal and state law. Such standards shall give considerable weight to rigorous benchmarks or performance outcomes and indicators required by federal and state law most relevant to achieving educational results and functional outcomes. Program approval and monitoring shall also include, but not be limited to the following components and processes:

(a) Reporting of outcome or indicator data by school district and non-district programs to the department in a manner and frequency as the department shall determine.

(b) Development and application of methods to ensure the accuracy of all such data including data as entered in student records and as transmitted to the department, to include necessary on-site verification of data.

(c) Determinations by the department as to whether the reported data complies with such standards.

(d) On-site monitoring to further evaluate noncompliance, verify accuracy of data, assess the adequacy of the corrective action plans and their implementation, or other purposes as the department may determine, which may include:

(1) Regular or periodic monitoring.

(2) Special on-site monitoring required as part of the resolution or remediation of a complaint under 34 C.F.R. sections 300.151-152, or based on reliable information received indicating that there is reason to believe that there is noncompliance with standards.

(3) Random or targeted visits which may be unannounced when the department determines that an unannounced visit is needed.

(e) Program monitoring, including the on-site monitoring components, shall use multiple program evaluation techniques in accordance with professionally recognized standards and to achieve the purposes set forth in paragraphs I-III, including, but not limited to, random sampling stratified as necessary to cover discrete sites or programs such as alternative programs or schools.

(f) Program approval and monitoring personnel or teams, which shall be knowledgeable in research-based education, special education practices, professionally recognized program evaluation practices, the Individuals with Disabilities Education Act, and state special education laws and which shall receive appropriate training to participate in the monitoring process. Such personnel or teams for on-site monitoring shall consist of at least one of each of the following: an educator, an educational administrator, and a parent who resides in another school district, who shall receive mileage reimbursement. The department may determine that for certain on-site visits less than a full team is necessary. The department directly or by contract shall develop and train a group of parents on the requisites needed to carry out the monitoring duties. Where volunteers or contracted personnel are used for the non-parent team slots, attempts shall be made to use or balance teams with personnel from non-school district sources such as qualified individuals from higher education. Educators and educational administrators that are used (1) may not review schools in school districts in which they are employed or have been employed in the previous 2 years and (2) may not be from schools which in the current or prior 3 years have been the subject of mandatory technical assistance under subparagraph V(e)(2) or any of the interventions in subparagraphs V(e)(3)-(12). The department shall make available sufficient funds for stipends or similar financial remuneration, in addition to expense reimbursements to ensure that teams have a diversity of perspectives and high quality professional membership. The department of education may contract with an individual or organization which has the requisite expertise and skill to perform the monitoring activities, and who is otherwise independent from school district and non-school district programs in New Hampshire. This subparagraph shall not be construed to preclude individuals who may have performed sporadic or occasional contract or volunteer work for school district or non-school district programs.

IV. The department shall issue a report granting full or conditional approval, or denying, suspending, or revoking approval prior to the expiration of the existing program approval which shall include:

(a) Findings detailing exemplary characteristics and strengths of each program and each instance of noncompliance and failure to meet performance outcome or indicator measures in accordance with standards set forth in paragraph III.

(b) Recommendations for actions needed to correct noncompliance or failure to meet performance outcome or indicator measures.

(c) School districts and non-district programs may appeal decisions granting conditional approval or denying, suspending, or revoking approval pursuant to paragraph VII.

(d) The department may issue reports outside of the regular approval process directing school districts or non-school district programs to take any of the actions set forth in paragraph V.

V.(a) The provisions of this paragraph shall be enforced subsequent to the issuance of an order resulting from a complaint investigated, a due process hearing, or a monitoring activity pursuant to rules adopted under RSA 541-A.

(b) At the conclusion of the time limit specified for the school district, public agency, private provider of special education, or other non-school district based program to have completed the corrective action specified in the orders of compliance, the administrator of the bureau of special education of the department of education shall forward to the commissioner of the department of education a written report indicating the extent to which the agency took corrective action to achieve compliance with state and federal law.

(c) In the event the written report shows that the school district, public agency, private provider of special education, or other non-school district based program has not complied with orders issued by the department, the commissioner of the department of education shall give the written notice of the enforcement action to be taken.

(d) When taking enforcement action, the commissioner of the department of education shall consider:

(1) The severity and length of noncompliance.

(2) Whether a good faith effort was made to correct the problem.

(3) The impact on children who are entitled to a free appropriate public education.

(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 compensatory education.

(5) Targeting or redirecting the use of federal special education funds in the areas of concern.

(6) Formal referral to the bureau of credentialing in the department of education for review of compliance with professional licensure or certification requirements.

(7) Ordering the cessation of operations of discrete programs operated by a school district, collaborative program, private provider of special education, public academy, or state facility for the benefit of children with disabilities.

(8) A review of programs which may include a desk audit, scheduled on-site reviews, and unannounced on-site reviews, to ensure compliance. The frequency of the program reviews may, at the discretion of the department, take place weekly, monthly, or quarterly.

(9) Requiring redirection of federal funds to remediate noncompliance of more than one year.

(10) Ceasing payments of state or federal special education funds to the school district or other public agency until the department of education determines the school district or other public agency is in compliance.

(11) Ordering, in accordance with a final state audit report, the repayment of misspent or misapplied state and/or federal funds.

(12) In the case of a school district or other public agency, referring the matter to the department of justice for further action.

(13) In the case of a private provider of special education or other non-school district based program, ordering 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 state and federal law.

VI. The commissioner shall notify the superintendent and local school board, and post findings and corrective actions recommended on the department Internet website. The commissioner shall also notify the advisory committee on the education of children/students with disabilities of the findings, remedies, and sanctions.

VII. The department shall adopt rules for the school district appeals process for corrective actions imposed under subparagraphs V(a)(5)-(11).

VIII. The commissioner shall employ or contract with a sufficient number of qualified personnel to carry out the activities enumerated in this section, including but not limited to managing, analyzing, and verifying data, coordinating and staffing on-site monitoring teams, preparing reports, including findings and corrective actions, and determining, monitoring, or supervising corrective actions and sanctions.

IX. The department, with input from the advisory committee on the education of children/students with disabilities, shall select and contract with an independent, nationally recognized organization in program evaluation and quality assurance to evaluate in 2010 and decennially thereafter, the effectiveness of the program approval and monitoring system, including whether it is carrying out activities in RSA 186-C:5 in an efficient manner. Such organization shall submit recommendations for any improvements to the commissioner, the state board of education, the governor, and the general court within 90 days of completing the program evaluation.

302:39 Special Education; Program Approval, Monitoring, and Corrective Action. Amend RSA 186-C:5 to read as follows:

186-C:5 Program Approval, Monitoring, and Corrective Action.

I.(a) The state board of education shall adopt rules establishing a process and standards for the approval and monitoring of programs of education that are maintained by school districts, regional special education centers, and private organizations or state [institutions] facilities for the benefit of children with disabilities, including chartered public schools, home-based programs and alternative schools or programs; except, however, that approval of education programs for the special district established in RSA 194:60 shall be pursuant to the standards set forth in the interagency agreements between the department of corrections and the department of education.

(b) The division of educational improvement of the department of education, through its program approval and monitoring process shall determine if a district is making diligent efforts to resolve personnel shortages that result in children with disabilities being placed out of district.

II. The purpose of program approval and monitoring is to ensure that the programs specified in paragraph I comply with applicable federal and state law, including standards related to improving educational results and functional outcomes.

III. Program approval and monitoring shall utilize professionally recognized program evaluation and other verification methods to ensure reliable and valid findings and corrective actions. The department shall develop and apply standards and procedures to determine whether each program specified in paragraph I complies with the requirements of applicable federal and state law. Such standards shall give considerable weight to rigorous benchmarks or performance outcomes and indicators required by federal and state law most relevant to achieving educational results and functional outcomes. Program approval and monitoring shall also include, but not be limited to the following components and processes:

(a) Reporting of outcome or indicator data by school district and non-district programs to the department in a manner and frequency as the department shall determine.

(b) Development and application of methods to ensure the accuracy of all such data including data as entered in student records and as transmitted to the department, to include necessary on-site verification of data.

(c) Determinations by the department as to whether the reported data complies with such standards.

(d) On-site monitoring to further evaluate noncompliance, verify accuracy of data, assess the adequacy of the corrective action plans and their implementation, or other purposes as the department may determine, which may include:

(1) Regular or periodic monitoring.

(2) Special on-site monitoring required as part of the resolution or remediation of a complaint under 34 C.F.R. sections 300.151-152, or based on reliable information received indicating that there is reason to believe that there is noncompliance with standards.

(3) Random or targeted visits which may be unannounced when the department determines that an unannounced visit is needed.

(e) Program monitoring, including the on-site monitoring components, shall use multiple program evaluation techniques in accordance with professionally recognized standards and to achieve the purposes set forth in paragraphs I-III, including, but not limited to, random sampling stratified as necessary to cover discrete sites or programs such as alternative programs or schools.

(f) Program approval and monitoring personnel or teams, which shall be knowledgeable in research-based education, special education practices, professionally recognized program evaluation practices, the Individuals with Disabilities Education Act, and state special education laws and which shall receive appropriate training to participate in the monitoring process. Such personnel or teams for on-site monitoring shall consist of at least one of each of the following: an educator, an educational administrator, and a parent who resides in another school district, who shall receive mileage reimbursement. The department may determine that for certain on-site visits less than a full team is necessary. The department directly or by contract shall develop and train a group of parents on the requisites needed to carry out the monitoring duties. Where volunteers or contracted personnel are used for the non-parent team slots, attempts shall be made to use or balance teams with personnel from non-school district sources such as qualified individuals from higher education. Educators and educational administrators that are used (1) may not review schools in school districts in which they are employed or have been employed in the previous 2 years and (2) may not be from schools which in the current or prior 3 years have been the subject of mandatory technical assistance under subparagraph V(e)(2) or any of the interventions in subparagraphs V(e)(3)-(12). The department shall make available sufficient funds for stipends or similar financial remuneration, in addition to expense reimbursements to ensure that teams have a diversity of perspectives and high quality professional membership. The department of education may contract with an individual or organization which has the requisite expertise and skill to perform the monitoring activities, and who is otherwise independent from school district and non-school district programs in New Hampshire. This subparagraph shall not be construed to preclude individuals who may have performed sporadic or occasional contract or volunteer work for school district or non-school district programs.

IV. The department shall issue a report granting full or conditional approval, or denying, suspending, or revoking approval prior to the expiration of the existing program approval which shall include:

(a) Findings detailing exemplary characteristics and strengths of each program and each instance of noncompliance and failure to meet performance outcome or indicator measures in accordance with standards set forth in paragraph III.

(b) Recommendations for actions needed to correct noncompliance or failure to meet performance outcome or indicator measures.

(c) School districts and non-district programs may appeal decisions granting conditional approval or denying, suspending, or revoking approval pursuant to paragraph VII.

(d) The department may issue reports outside of the regular approval process directing school districts or non-school district programs to take any of the actions set forth in paragraph V.

V.(a) The provisions of this paragraph shall be enforced subsequent to the issuance of an order resulting from a complaint investigated, a due process hearing, or a monitoring activity pursuant to rules adopted under RSA 541-A.

(b) At the conclusion of the time limit specified for the school district, public agency, private provider of special education, or other non-school district based program to have completed the corrective action specified in the orders of compliance, the administrator of the bureau of special education of the department of education shall forward to the commissioner of the department of education a written report indicating the extent to which the agency took corrective action to achieve compliance with state and federal law.

(c) In the event the written report shows that the school district, public agency, private provider of special education, or other non-school district based program has not complied with orders issued by the department, the commissioner of the department of education shall give the written notice of the enforcement action to be taken.

(d) When taking enforcement action, the commissioner of the department of education shall consider:

(1) The severity and length of noncompliance.

(2) Whether a good faith effort was made to correct the problem.

(3) The impact on children who are entitled to a free appropriate public education.

(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 compensatory education.

(5) Targeting or redirecting the use of federal special education funds in the areas of concern.

(6) Formal referral to the bureau of credentialing in the department of education for review of compliance with professional licensure or certification requirements.

(7) Ordering the cessation of operations of discrete programs operated by a school district, collaborative program, private provider of special education, public academy, or state facility for the benefit of children with disabilities.

(8) A review of programs which may include a desk audit, scheduled on-site reviews, and unannounced on-site reviews, to ensure compliance. The frequency of the program reviews may, at the discretion of the department, take place weekly, monthly, or quarterly.

(9) Requiring redirection of federal funds to remediate noncompliance of more than one year.

(10) Ceasing payments of state or federal special education funds to the school district or other public agency until the department of education determines the school district or other public agency is in compliance.

(11) Ordering, in accordance with a final state audit report, the repayment of misspent or misapplied state and/or federal funds.

(12) In the case of a school district or other public agency, referring the matter to the department of justice for further action.

(13) In the case of a private provider of special education or other non-school district based program, ordering 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 state and federal law.

VI. The commissioner shall notify the superintendent and local school board, and post findings and corrective actions recommended on the department Internet website. The commissioner shall also notify the advisory committee on the education of children/students with disabilities of the findings, remedies, and sanctions.

VII. The department shall adopt rules for the school district appeals process for corrective actions imposed under subparagraphs V(a)(5)-(11).

VIII. The commissioner shall employ or contract with a sufficient number of qualified personnel to carry out the activities enumerated in this section, including but not limited to managing, analyzing, and verifying data, coordinating and staffing on-site monitoring teams, preparing reports, including findings and corrective actions, and determining, monitoring, or supervising corrective actions and sanctions.

IX. The department, with input from the advisory committee on the education of children/students with disabilities, shall select and contract with an independent, nationally recognized organization in program evaluation and quality assurance to evaluate in 2010 and decennially thereafter, the effectiveness of the program approval and monitoring system, including whether it is carrying out activities in RSA 186-C:5 in an efficient manner. Such organization shall submit recommendations for any improvements to the commissioner, the state board of education, the governor, and the general court within 90 days of completing the program evaluation.

302:40 Special Education; Individualized Education Programs. Amend RSA 186-C:7 to read as follows:

186-C:7 [Individual] Individualized Education [Plans] Programs.

I. The development of an individualized education program for each child with a disability shall be the responsibility of the school district in which the child resides or of the school district which bears financial responsibility for the child’s education.

II. The parents [or legal guardian] of a child with a disability have the right to participate in the development of the individualized education program for the child and to appeal decisions of the school district regarding such child’s individualized education [plan] program as provided in rules adopted in accordance with RSA 541-A by the state board of education.

III. [The division of educational improvement of the department of education shall assist each school district in developing an approved program or programs for educating the children with disabilities of the district including the setting of approved rates for private providers of special education services pursuant to RSA 21-N:5, I(h).

IV. [Repealed.]] Each child’s individualized education program shall include short-term objectives or benchmarks unless the parent agrees that they are not necessary for one or more of the child’s annual goals.

302:41 Special Education; Interagency Agreement for Special Education. Amend RSA 186-C:7-a to read as follows:

186-C:7-a Interagency Agreement for Special Education.

I. The commissioner of the department of education, [with the approval of] the state board of education, and the commissioner of the department of health and human services shall, consistent with applicable state and federal law, enter into [a comprehensive, cooperative special education] an interagency agreement [to ensure the provision of necessary services by their agencies to children with disabilities.] for the purposes of:

(a) Meeting the multi-service agency needs of children with disabilities in an efficient and effective manner and without delays caused by jurisdictional or funding disputes;

(b) Providing for continuity and consistency of services across environments in which children function; and

(c) Ensuring well-planned, smooth, and effective transitions from early intervention to special education and from special education to postsecondary life.

II. This agreement shall address programs and services for [each appropriate category of] children with disabilities, provided, funded, or regulated by the department and local school districts, and the department of health and human services and its local counterparts, the district offices, the area agencies, and the community mental health centers.

III. [For each category of educationally disabled children,] The agreement shall [include] address the functions set forth in paragraph I including, but not limited to:

(a) [A definition of the]Defining the specific [population] populations to be served.

(b) [An identification and description of] Identifying and describing the services available through each agency.

(c) [A description of]Describing the specific programmatic and financial responsibilities of each department, and its divisions, bureaus, and local counterparts.

(d) [An estimate of] Estimating the costs of, and source of funds for, all services to be provided by each department.

(e) [A method for implementing and administering the agreement which shall include a procedure for settling disputes regarding its administration or the financial and programmatic responsibilities of each department] Implementing methods to ensure prompt and timely initiation of services, including criteria for determining agency responsibility for service provision and payment, which shall include:

(1) A provision permitting a parent or agency, believing that it is not responsible for the services at issue, to request the participation of another potentially responsible agency, provided that in the case of an agency request, the parent or child who has reached majority has been advised of his or her appeal rights and the parent or child, as applicable, consents to the participation of the other agency.

(2) The procedure and criteria, when more than one agency is involved, for determining who should provide and pay for the needed services, such criteria to include a requirement that the school district is responsible to provide and pay for all special education, related services, supplemental aids and services, and accommodations for children with disabilities, unless:

(A) Medicaid is responsible or the department of health and human services or another agency is required to pay; or

(B) Another agency agrees to pay voluntarily or pursuant to an agreement; or

(C) The service is primarily non-educational in nature, involving only care or custodial activities and serves no educational purpose, and does not pertain to curriculum or individualized skills or behavior change or development aimed at enabling a child to function in the school, workplace, home, and community, and are neither related services, supplementary aides, and services, or as defined by state or federal law.

(3) A procedure for dispute resolution, including a provision for binding dispute resolution, which may be initiated by any participating agency, parent, guardian, educational surrogate, or child who has reached the age of majority to determine whether or not the child is entitled to the services in dispute, when service entitlement by all agencies is in dispute, and which agency is responsible to pay and provide the service, when agency financial and programmatic responsibility is in dispute.

(4) When there is a dispute as to financial or programmatic responsibility, a provision that the local school district shall provide the service or otherwise ensure that the service is provided, subject to the local school district’s right of reimbursement if another agency is found responsible.

(f) [A procedure for monitoring the operation of the agreement and for revising it periodically as necessary] Consistent with federal and state privacy laws, provisions for state and local educational and health and human service agencies to share and exchange necessary child and program specific information and data.

IV. The commissioners of the departments of education and health and human services shall submit a copy of the [initial] interagency agreement for special education, reflecting changes required under this section, to the appropriate standing committees of each house of the general court on or before [September 1, 1985] October 1, 2008, and shall submit [a revision to the agreement no later than January 1, 1999. Any subsequent proposed] any subsequent amendments or revisions to the agreement [shall be submitted] to the appropriate standing committees of the house and senate, no later than 60 days after adoption of the amendments or revisions. Prior to adopting any revisions or amendments to the agreement, the commissioners shall jointly solicit input from relevant advisory committees and the public.

V. Nothing in this section shall require:

(a) A parent, guardian, or child to pay for services provided by a local school district or other local or state public educational program, if the services are educational in nature or are otherwise required by the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 et seq.

(b) A local school district to provide any educational services beyond those required under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 et seq., or this chapter.

(c) The department of health and human services to provide services not otherwise required by other state or federal laws.

302:42 Special Education; Collaborative Programs; Education Required. Amend RSA 186-C:8-9 to read as follows:

186-C:8 Collaborative Programs.

I. School districts or school administrative units, or both, may enter into cooperative agreements in order to provide approved programs for educating children with disabilities [in regional special education centers]. The state board of education, when appropriate because of a low incidence of a disabling condition, high cost of services, or scarcity of trained personnel, shall encourage such cooperative agreements and shall serve as a source of information, advice and guidance to school districts, school administrative units, or both.

II. The state board of education, together with representatives of neighboring states, shall study the feasibility of interstate agreements [or interstate compacts] for the provision of services to children with disabilities.

186-C:9 Education Required. Each child who is determined by the local school district, or special school district established under RSA 194:60, as [being educationally disabled] having a disability in accordance with RSA 186-C:2 and in need of special education or special education and [educationally] related services shall be entitled to attend an approved program which can implement the child’s individualized education [plan] program. Such child 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 21, whichever occurs first, or until the [school district responsible for developing the] child’s individualized education [plan] program team determines that the child no longer requires special education in accordance with the provisions of this chapter.

302:43 Special Education; Responsibility of School District. Amend RSA 186-C:10 to read as follows:

186-C:10 Responsibility of School District. A school district shall establish an approved program or programs for children with disabilities, or shall enter into cooperative agreements with other districts to provide approved programs for children with disabilities, or shall pay tuition to such an approved program maintained by another school district or by a private organization. [Eligibility for participation in an approved program of special education shall be determined by the school board of the school district under rules adopted by the state board of education.]

302:44 Special Education; Federal Assistance. Amend RSA 186-C:12 to read as follows:

186-C:12 Federal Assistance. The state board of education is authorized to cooperate with the federal government or any agency of the federal government in the development of any plan for the education of children with disabilities and to receive and expend, in accordance with such plan, all funds made available to the state board of education from the federal government or any of its agencies, from the state, or from other sources. The [several] school districts of the state are authorized to receive, incorporate in their budgets, and expend for the purposes of this chapter such funds as may be made available to them through the state board of education from the federal government or any of its agencies.

302:45 Special Education; Liability for Expenses. Amend RSA 186-C:13 to read as follows:

186-C:13 Liability for Expenses.

I. All expenses incurred by a school district in administering the law in relation to education for children with disabilities in need of special education and related services shall be paid by the school district where the child resides, except as follows:

(a) When a child with a disability in need of special education and related services is placed in a home for children or health care facility as defined in RSA 193:27, the liability for expenses for such child shall be determined in accordance with RSA 193:29.

(b) When a child with a disability in need of special education and related services is placed in a state [institution] facility, the liability for expenses for such child shall be determined in accordance with RSA 186-C:19.

II. For the purposes of meeting the financial obligation for expenses incurred under this chapter, a school district may exceed its annual budget to the extent of additional special education aid which the district has actually received from the state after the annual school district budget was approved.

III. No school district shall be required to pay the expenses of the education program of a child adjudicated under RSA 169-B, 169-C, or 169-D except as provided by RSA 186-C. The sending district shall be notified of a court ordered placement of a child adjudicated under the provisions of RSA 169-B, 169-C, or 169-D, and may submit recommendations to the court concerning the financial impact of the placement on the sending district and the appropriateness of the placement.

302:46 Special Education; Surrogate Parents. Amend RSA 186-C:14 to read as follows:

186-C:14 Surrogate Parents.

I. PURPOSE. The purpose of this section is to protect the educational rights of eligible[,] children with disabilities.

II. DEFINITIONS. The following words as used in this section shall be construed as follows:

(a) “Surrogate parent”‘ shall mean a person appointed to act as a child’s advocate in place of the child’s [birth] biological or adoptive parents or guardian in the educational decision-making process.

(b) “Educational decision-making process”‘ shall include identification, evaluation, and placement as well as the hearing, mediation, and appeal procedures.

(c) [Repealed.]

(d) [Repealed.]

III. DETERMINING NEED.

(a) When[, in the opinion of the commissioner of education or designee,] a child with a disability, as defined in RSA 186-C:2, needs special education and the parent or guardian of the child is unknown or after reasonable efforts cannot be located, or the child is [a ward of the state, the commissioner or designee shall] in the legal custody of the division of children, youth, and families, the commissioner, or designee, may appoint a surrogate parent who shall represent the child in the educational decision-making process, provided that for a child in the legal custody of the division of children, youth, and families, a judge overseeing the child’s case pursuant to the Individuals With Disabilities Education Act, 20 U.S.C. section 1415(b)(2)(A)(i), may appoint a surrogate parent.

(b) 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 pursuant to this section.

IV. APPOINTMENT OF SURROGATE. [Once the commissioner of education or designee determines that a surrogate parent is needed, the commissioner or designee shall appoint a surrogate parent. Such] Appointment of a surrogate parent under this section shall be effective until the child reaches 18 years of age, and may be extended by order of the commissioner until the child graduates from high school or reaches 21 years of age, whichever occurs first. If the surrogate parent resigns, dies or is removed, the commissioner of the department of education or designee, or the court with jurisdiction over the child’s case, may appoint a successor surrogate parent in the same manner as provided in paragraph III.

V. RIGHT OF ACCESS. When a surrogate parent is appointed, the surrogate parent shall have the same right of access as the natural parents or guardian to all records concerning the child. These records shall include, but not be limited to, educational, medical, psychological and [welfare] health and human service records.

VI. LIMITED LIABILITY. No surrogate parent appointed pursuant to the provisions of paragraph III or IV shall be liable to the child entrusted to the surrogate parent or the parents or guardian of such child for any civil damages which result from acts or omissions of such surrogate parent which may arise out of ordinary negligence. This immunity shall not apply to acts or omissions constituting gross, willful, or wanton negligence.

VII. RULES. The state board of education shall adopt rules necessary for the administration of the provisions of this section.

302:47 Special Education; Length of School Year. Amend RSA 186-C:15 to read as follows:

186-C:15 Length of School Year.

I. The length of the school year and school day for a child with a disability shall be the same as that provided by the local school district for a child [not educationally disabled] without a disability of the same age or grade, except that the local school district shall provide an approved program for an extended period when [it can be demonstrated by a preponderance of evidence, in accordance with rules adopted by the state board of education, that interruption of the program of a child with a disability would result in severe and substantial harm and regression and would have the effect of negating the benefits of such educationally disabled child’s regular special education program] the child’s individualized education program team determines that such services are necessary to provide the child with a free appropriate public education.

II. The length of the school year and school day for a preschool child with a disability shall be determined by the child’s individualized education program team and shall not be governed by the school district’s school calendar. A free appropriate public education shall be provided to a preschool child with a disability as of the child’s third birthday and when the child’s individualized education program team determines that services are necessary to provide a free appropriate public education to the child.

302:48 Special Education; Rulemaking. Amend RSA 186-C:16 to read as follows:

186-C:16 Rulemaking. The state board of education shall adopt rules, pursuant to RSA 541-A, and consistent with the provision of a free appropriate public education, relative to:

I. Developing individualized education [plans] programs;

II. Approving and monitoring special education programs;

III. Reporting the number of children with disabilities in a school district;

IV. Requesting administrative due process hearings and appealing a final administrative decision;

V. Determining eligibility for participation in approved programs;

VI. Appointing surrogate parents;

VII. Determining the length of the school year for [disabled] children with disabilities; and

VIII. Other matters related to complying with provisions of this chapter.

302:49 Special Education; Children with Disabilities in State Institutions. Amend RSA 186-C:19 to read as follows:

186-C:19 Children with Disabilities in Certain State [Institutions] Facilities.

I. For a child with a disability in a state [institution] facility, the school district responsible for selecting and funding the child’s special education or special education and related services shall be as follows:

(a) If such child is in the legal custody of the parent, the school district in which the child’s parent resides shall be the liable school district.

(b) If such child is not in the legal custody of the parent, or if the parent resides outside the state, the school district in which the child most recently resided other than in a state [institution] facility, home for children or health care facility as defined in RSA 193:27 shall be the liable school district.

(c) [For the purposes of this chapter, children 18 years of age or older but less than 21 years of age at Laconia developmental services or at the Philbrook center shall be deemed to be in the legal custody of their parents if they were in such legal custody upon reaching the age of 18.

(d)] For the purposes of this section a parent shall not have legal custody if legal custody has been awarded to some other individual or agency, even if that parent retains residual parental rights. An award of legal custody by a court of competent jurisdiction, in this state or any other state, shall determine legal custody under this section.

II. For a child with a disability in a state [institution] facility, the responsible school district shall be liable for all expenses incurred in administering the law in relation to children with disabilities [except as follows: For the 1982 and 1983 fiscal years, the responsible school district’s annual financial liability for a child who was enrolled at the Laconia state school and training center as of July 1, 1981, shall not exceed the applicable state average per pupil cost as determined by the state board of education, and the state shall be liable for the balance of such costs, which shall in no case be taken from the $ 10,000,000 appropriated for state aid under RSA 186-C:18. If more than one school district is liable for such a child during a single fiscal year, the total annual financial liability to the school districts shall not exceed the applicable state average per pupil cost, said liability to be prorated on a per diem basis. For such a child who is enrolled at Laconia developmental services for less than a full year, the liability for such costs shall be prorated on a per diem basis by Laconia developmental services].

III. Nothing in paragraphs I or II of this section shall diminish the responsibility of the financially liable school district as defined in paragraphs I and II to develop and implement an individualized education program or to fulfill its obligations under other sections of this chapter for a child with a disability in a state [institution] facility, regardless of whether such child was initially placed by a school district, the parent or some other agent.

IV. “State [institution] facility” as used in this section means [the Philbrook center for children and youth and Laconia developmental services. If a special education program at a state institution is the least restrictive placement and offers appropriate services for child with a disability, such institution shall be utilized by a local school district for such child, subject to the approval of said institution] any state operated facility for children and youth with disabilities.

302:50 Special Education; Special Education Program at the Youth Services Center. Amend RSA 186-C-20, I to read as follows:

I. Notwithstanding the provisions of any other law to the contrary, the expenses for a child with a disability [assigned to] receiving services at the special education program at the youth services center maintained by the department of health and human services shall be the responsibility of the liable school district so assigning the child. Such a school district shall pay the rate established for the special education program of the center.

302:51 Contingencies.

I. If HB 679-FN-LOCAL of the 2008 regular legislative session becomes law and SB 418 of the 2008 regular legislative session does not become law, sections 4, 34, 35, 37, and 40-50 shall take effect January 1, 2009 and sections 1, 2, 5-7, 9-13, 17, 18, 22-24, 29-32, 36, 38, and 39 shall not take effect.

II. If neither HB 679-FN-LOCAL of the 2008 regular legislative session nor SB 418 of the 2008 regular legislative session become law, sections 1, 2, 4-7, 9-13, 17, 18, 22-24, and 29-32 shall take effect January 1, 2009 and sections 34-50 shall not take effect.

III. If SB 418 of the 2008 regular legislative becomes law and HB 679-FN-LOCAL of the 2008 regular legislative session does not become law, sections 1, 2, 6, 7, 9-13, 17, 18, 22-24, 29-32, 36, and 38 shall take effect January 1, 2009 and sections 4, 5, 34, 35, 37, and 39-50 shall not take effect.

IV. If SB 418 of the 2008 regular legislative and HB 679-FN-LOCAL of the 2008 regular legislative session both become law, sections 34-36 and 39-50 shall take effect January 1, 2009 and sections 1, 2, 4-7, 9-13, 17, 18, 22-24, 29-32, 37, and 38 shall not take effect.

302:52 Effective Date.

I. Sections 1, 2, 4-7, 9-13, 17, 18, 22-24, 29-32, and 34-50 of this act shall take effect as provided in section 51 of this act.

II. The remainder of this act shall take effect January 1, 2009.

Approved: July 2, 2008

Effective Date: I. Sections 1,2, 4-7, 9-13,17,18, 22-24, 29-32, and 34-50 shall take effect as provided in section 51.

II. Remainder shall take effect January 1, 2009.