186-C:16-b Due Process Hearing; Appeal. –
I. Any action against a local school district seeking to enforce special education rights under state or federal law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered.
II. Notwithstanding the provisions of paragraph I, any action against a local school district to recover the costs of a unilateral special education placement shall be commenced by requesting an administrative due process hearing from the department of education within 90 days of the unilateral placement.
III. Where the parent, legal guardian or surrogate parent has not been given proper written notice of special education rights pursuant to 20 U.S.C. section 1415(d), including notice of the time limitations established in this section, such limitations shall run from the time notice of those rights is properly given. The department of education shall make available a model notice of rights which school districts may use as one means of complying with this paragraph.
III-a. In all hearings the school district shall have the burden of proof, including the burden of persuasion and production, of the appropriateness of the child's program or placement, or of the program or placement proposed by the public agency. This burden shall be met by a preponderance of the evidence.
IV. An appeal from a final administrative decision in a special education due process hearing to a court of competent jurisdiction pursuant to 20 U.S.C. section 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(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.
VI. Where a unilateral placement has been made, without the school district of residence being offered a reasonable opportunity to evaluate the child and to develop an individualized education program, reimbursement may not be sought for any costs incurred until the school district is given an opportunity to evaluate the child and develop an individualized education program.
Source. 1992, 114:2. 2008, 274:32, eff. July 1, 2008; 302:19, eff. Jan. 1, 2009. 2021, 158:1, eff. July 29, 2021.