POLICY LETTER: December 10, 2003 to individuals (personally identifiable information redacted)

Dated December 10, 2003This letter is in response to your September 4, 2003 e-mail and your numerous e-mails sent thereafter to the Office of Special Education Programs (OSEP), U.S. Department of Education regarding allegations against the State of New Hampshire's Department of Education (NHDOE) in its administration of the Individuals with Disabilities Education Act (IDEA). In your September 4, 2003 e-mail, you allege that NHDOE has failed to provide X with a free appropriate public education (FAPE) and that there is a lack of accountability from the State agencies that oversee education in New Hampshire. In a letter dated September 25, 2003, sent via e-mail on or about October 2, 2003, you allege that NHDOE violated the requirements under 34 CFR 300.508(c) by failing to maintain a copy of the hearing officer qualifications on file. In that same letter, you ask OSEP to investigate NHDOE's failure to provide a properly qualified hearing officer, failure to hold X School District accountable for carrying out X's IEP, and you ask OSEP to investigate a pattern of harassment by the School District and the District's attorney and failure to conform X's individualized education plan (IEP) with the January due process hearing decision. In a letter dated September 30, 2003, sent via e-mail on or about October 2, 2003, you allege that the NHDOE is violating the terms of its agreement with the U.S. Department of Education, 34 CFR 300.2 by failing to: 1) exercise general supervisory authority, 20 U.S.C. 1412(a)(11) and 34 CFR 300.600; and 2) enforce the complaint provisions at 20 U.S.C. 1221(e)(3) and 34 CFR 300.660-300.662. I will address your concerns below. OSEP is responsible for administering Part B of the IDEA, which provides financial assistance to State educational agencies (SEAs) and, through the SEA, to local educational agencies to assist them in making available a FAPE to eligible children and youth with disabilities. An SEA is responsible for ensuring that the requirements of Part B are carried out and that each educational program administered in the state meets the requirements of Part B. (34 CFR 300.141). Under the Part B regulations, the State is required to have a dispute resolution system that includes: 1) State complaint procedures (34 CFR 300.660-300.662); and 2) due process procedures (34 CFR 300.500-300.513). Under the due process procedures, each public agency is required to have mediation available, at a minimum, when a due process hearing is requested. (34 CFR 300.506.) Under the state complaint resolution system, each SEA is required to have written procedures to resolve any complaint, including a complaint filed by an organization or individual from another State. (34 CFR 300.660.) An organization or individual must file a signed, written complaint alleging that a public agency violated a requirement under Part B not more than one year prior to the date the complaint is received. The complaint must also include a statement of facts on which the allegation is based. (34 CFR 300.662.) The regulations do not include a provision for OSEP's review of the State's decision. I have enclosed a memorandum on complaint resolution procedures under Part B for your reference. Under the due process hearing system, a parent of a child with a disability or the public agency may initiate a hearing on any matters relating to the identification, evaluation or educational placement of a child with a disability, or the provisions of FAPE to the child. (34 CFR 300.507.) Under the Part B regulations, an impartial hearing officer must conduct the due process hearing. (34 CFR 300.508.) The hearing officer cannot be an employee of the public agency that is involved with the education or care of the child, nor can the hearing officer have a personal or professional interest that would conflict with his or her objectivity in the hearinDr. Mary J. FordDirector of Special EducationNew Hampshire Department of Education101 Pleasant StreetConcord, NH 03301-3860(603) 271-3741 Phone(603) 271-1953 Fax HYPERLINK "mailto:mford@ed.state.nh.us" mford@ed.state.nh.us I hope this information is helpful. Thank you for sharing your concerns with us.Sincerely,/s/ Patricia J. Guard forStephanie Smith LeeDirectorOffice of Special Education ProgramsEnclosurecc:Dr. Mary J. FordPage 2