To the Fall Back to School Issue of the Rap Sheet. It has been more than 30 years since the United States Congress passed legislation guaranteeing that icon

To the Fall Back to School Issue of the Rap Sheet. It has been more than 30 years since the United States Congress passed legislation guaranteeing that

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The Rap Sheet

Fall issue 2006


Welcome to the Fall Back to School Issue of the Rap Sheet. It has been more than 30 years since the United States Congress passed legislation guaranteeing that all children, including those with disabilities, have the right to an education. This issue looks at how New Hampshire students with disabilities are faring and highlights the challenges that must be addressed if we are to fully include all children as valued members of their school communities.

Promising Practices in Inclusive Education

Cheryl M. Jorgensen, Ph.D., Project Director, Institute on Disability/UCED

Assistant Research Professor, University of New Hampshire

Jason attends a school just for students with disabilities. His educational goals focus on increasing his speech, using a picture exchange communication system, maintaining appropriate behavior, reading sight words, and learning such functional skills as getting dressed and cooking. Jason is taught using discrete trials and when he responds appropriately, he is rewarded with food or tokens that can be exchanged for small trinkets. He receives services and supports from a special education teacher, speech-language pathologist, occupational therapist, behavior therapist, and a one-on-one paraprofessional. Jason’s parents and teachers expect that he will one day live in a group home and attend a day habilitation program with other adults who have significant disabilities.

Miranda is a 7th grader who attends middle school in her community. She participates in all the same classes as her peers who do not have disabilities. Miranda’s educational goals focus on acquiring core knowledge in literacy, math, social studies, science, the arts, physical education, and computers – all part of her school’s general curriculum. She also is learning functional skills that include using a voice-output communication device, sending emails to friends, budgeting for personal expenses, and shopping with friends at the mall. Like Jason, Miranda receives specialized services and supports, but hers are provided in regular general education classes and in the context of typical activities at her school. Miranda and her parents envision a future where she will go to college, travel, live in the community with friends who don’t have disabilities, marry, and have a job that allows her to earn a living and pursue her interest in health and fitness.

Both Jason and Miranda experience autism. According to their school records, their adaptive skills are “low,” they have similar scores on measures of intellectual functioning, they do not speak to communicate, and they have difficulty managing sensory input, their emotions, and their behavior. Which student’s educational program is more “appropriate?” Which student’s educational program is based on the latest research? Which program is more likely to result in the student having a high quality of life while they are in school and in the future? How do parents and educators decide?

Making decisions about the educational programs for students with disabilities requires that families and educators take into account their values, current research, the desired vision for the student’s life, and requirements of the special education law. In 1975, the Education of All Handicapped Children Act guaranteed for the first time universal access to a free and appropriate public education for students with disabilities. In the most recent reauthorizations of that law (Individuals with Disabilities Education Act of 1997 and 2004) greater emphasis was placed on assuring that children with disabilities make progress within the general education curriculum based on learning objectives that are, to the maximum extent appropriate, the same for children with disabilities as for those without. The law also requires that all school districts disseminate and implement “promising educational practices – systems of teaching and learning that have a record of success

The following are values- and research-based promising practices for students with disabilities. These practices define a quality education that is most likely to result in students having full lives in their communities as adults. “Knowing" these practices is not enough. Educational teams must implement these practices in their daily work, collect student and team performance data, reflect on the meaning of the data, and revise their practices accordingly. Success also depends on school districts providing adequate administrative supports and resources. (A more detailed description of each practice and a “how to know it when you see it” checklist can be found in The Inclusion Facilitator’s Guide, available from or

^ Presuming Competence

All students with disabilities pursue the same learner outcomes as students without disabilities. Even when students do not currently demonstrate content knowledge or skills, their educational programs still reflect a presumption that they can learn content knowledge and skills from the general education curriculum.

^ General Education Class Membership and Full Participation

Students with disabilities are members of age-appropriate general education classes in their neighborhood schools and have access to the full range of learning experiences and environments offered to students without disabilities. There are no programs or rooms just for students with disabilities.

^ Quality Augmentative and Alternative Communication

Students with disabilities are provided with accurate and reliable augmentative and alternative communication (AAC) supports and services that enable them to communicate both in the classroom and in social situations with adults and age-appropriate classmates.

^ Curriculum, Instruction, and Supports

Curriculum and instruction are designed to accommodate the full range of student diversity. Individualized supports are provided to students with significant disabilities to enable them to fully participate and make progress within the general education curriculum. Students learn functional or life skills within typical routines in the general education classroom or by participating in other inclusive activities and environments.

^ Family-School Partnerships

Families and schools are engaged in a partnership to create quality inclusive educational experiences for students with disabilities. Families are connected to resources for developing their own leadership and advocacy skills.

Team Collaboration

General and special education teachers and related service providers demonstrate shared responsibility by collaborating in the design, implementation, and evaluation of students’ educational programs.

^ Facilitating Social Relationships

Students with disabilities are supported to participate in the same social and extracurricular activities as students without disabilities. Intentional facilitation of their social relationships is provided when typical relationships are missing, lack reciprocity, or are not satisfying.

^ Self-Determination and Futures Planning

Students with disabilities are supported to advocate for themselves and to make age-appropriate choices about their lives. A futures planning process is used with students and their families that identifies dreams, hopes, goals, and needed supports for participation in typical school and community activities and environments.

^ Professional Development

Professional development for general and special education staff is linked to improved educational outcomes for students with and without disabilities.

Special and General Education Reform

Administrators provide leadership to align general and special education reform and improvement with respect to the creation of a community of learners that is inclusive of students with disabilities.

Preparation of this article was supported in part by a grant from the U.S. Department of Education, Office of Special Education Programs, #H324M020067.


Beukelman, D., & Mirenda, P. (2005). Augmentative and alternative communication (3rd Edition). Baltimore: Paul H. Brookes Publishing Co.

Fisher, D. & Ryndak, D. L. (2001). The foundations of inclusive education: A compendium of articles on effective strategies to achieve inclusive education. Baltimore: TASH (

Jackson, L., Ryndak, D., & Billingsley, F. (2000). Useful practices in inclusive education: A preliminary view of what experts in moderate to severe disabilities are saying. ^ The Journal of the Association for Persons with Severe Handicaps, 25(3), 129-141.

Jorgensen, C., Schuh, M., & Nisbet, J. (2005). The inclusion facilitator’s guide. Baltimore: Paul H. Brookes Publishing Co.

Nisbet, J., & Hagner, D. (2000). Part of the community: Strategies for including everyone. Baltimore: Paul H. Brookes Publishing Co.

Powers, L., Singer, G., & Sowers, J. (1996). ^ On the road to autonomy: Promoting self-competence in children and youth with disabilities. Baltimore: Paul H. Brookes Publishing Co.

Rainforth, B., York, J, & Macdonald, C. (1992). Collaborative teams for students with severe disabilities: Integrating therapy and educational services. Baltimore: Paul H. Brookes Publishing Company.

Villa, R., & Thousand, J. (Eds.) (2005). ^ Creating an inclusive school. Alexandria, VA: Association for Supervision and Curriculum Development.

The Alphabet Soup of NCLB, NHEIAP, NECAP, IDEA*: What Do Objective Performance Measures Mean for Students with Disabilities?

Richard A. Cohen, Esq., Executive Director, Disabilities Rights Center

New Hampshire officials proudly state that students in the Granite State generally do better on most performance measures (e.g. SAT scores) than students in other states. This promise of a quality education, however, cannot be claimed for most New Hampshire students with disabilities. For years there has been a crisis in educating children with disabilities in New Hampshire one that has been difficult to expose because of the individualized nature of the special education process and the lack of effort by schools and the state to shine light on the problem.

It has been more than thirty years since Congress passed the Individuals with Disabilities Education Act (IDEA), yet the quality of education for students with disabilities in New Hampshire remains woefully inadequate, even though New Hampshire does not have the magnitude of societal and educational challenges confronting most other states. More recently, Congress enacted No Child Left Behind (NCLB) for the purpose of “improving the academic achievement of the disadvantaged,” including those who are “limited English proficient children, migratory children, children with disabilities, Indian children, neglected or delinquent children, and young children in need of reading assistance”. (Emphasis added.) In spite of these federal mandates, the results for students with disabilities continue to be far below where they should be.

For the past several years, the Disabilities Rights Center has been tracking educational data for New Hampshire students with disabilities. The data paints a very poor picture indeed. For example, the Department of Education (DOE) reported that the dropout rate for students with disabilities is over twice that of the students without disabilities; the dropout rate for all students entering public high schools during this same period has been reportedly between 20-25%. Even more disturbing, studies show that the majority of youth in the state’s juvenile justice system are children with disabilities; something, that in the view of many, is the result of a failed educational system. There is also strong anecdotal evidence that students with disabilities who do finish high school, are “graduated” by school districts prematurely and without adequate skills. The performance of students with disabilities on the grade level expectation assessments bears this out.

In the past the New Hampshire Educational Improvement and Assessment Program (NHEIAP), and more recently the New England Common Assessment Program (NECAP), verify what many would say is an unconscionable disparity between the performance of children with disabilities and those without disabilities. This gap exists even for students whose only disabilities are physical, as well as for those with learning disabilities where educational strategies and accommodations should make it possible for them to perform commensurate with students without disabilities. Students with learning disabilities make up about half of all students with disabilities.

This gap has continued despite the fact that in 1997, IDEA was amended to stress educational results and outcomes, not just compliance with process. This results oriented approach was re-affirmed and strengthened with the passage of No Child Left Behind (NCLB) in 2001 and amendments to IDEA in 2004. At the state level, the New Hampshire Supreme Court in its Claremont II decision also affirmed the importance of focusing on educational results. Yet, with some important exceptions, children with disabilities continue to be left behind.

In 2005-06, statewide only 20% of eighth grade students with disabilities met the NCLB standard on the NECAP reading assessment as compared with 70% of all other students, a gap of 50%. In eighth grade math, statewide only 14% of students with disabilities met the standard, compared with 63% of all other students, a gap of 51%. With few exceptions the gap in scores for all subjects in all grades has been large and has remained roughly the same for the past five to seven years.

As of August 2006, 90 out of roughly 500 New Hampshire schools failed to make adequate progress in at least one area for two years in a row and were designated as schools in need of improvement. Schools in need of improvement are required to take steps to improve their test scores; this includes offering options that parents may want to take advantage of. In the first year of failing to make adequate progress schools that receive Title I funding (about 40% of New Hampshire schools) are required to offer students the choice of attending another in-district school, and to a certain extent provide transportation. Practically speaking, in New Hampshire there often isn’t another in-district school to attend. A school that has been in need of improvement for two years must also offer supplemental educational services (tutoring, academic intervention) to students from economically disadvantaged families.

Non-Title I schools in need of improvement do not have to offer school choice or supplemental services. All schools in need of improvement are required to notify parents if their school has failed to make adequate yearly progress. They must also develop a plan to improve the school’s performance.

New Hampshire is taking some steps to address the performance gap between students with disabilities and those without, but it is not nearly enough. A more comprehensive statewide approach and a concerted effort by local districts are needed to ensure that New Hampshire students with disabilities receive a quality education. New Hampshire has the know-how and the skills; it must now exercise the will to move forward.


NCLB: No Child Left Behind

IDEA: Individuals with Disabilities Education Act (also often refers to Individuals with Disabilities Education IMPROVEMENT Act, or IDEIA)

NHEIAP: New Hampshire Educational Improvement and Assessment Program, testing in grades 3, 6, and 10, testing began in 1994

NECAP: New England Common Assessment Program, testing began in the 05-06 school year in grades 3-8

SINI: School in Need of Improvement

Title I: refers to Title I of the Elementary and Secondary Education Act of 1965, enacted to improve the achievement of economically and academically disadvantaged students.

What can you do if your child’s school is underperforming and your child is not getting the education he or she needs? First, work with your school to ensure that a quality Individualized Education Program (IEP) is developed and implemented for your child, in addition:

Obtain your school’s NECAP profile and decipher it, paying special attention to the performance of students with IEPs;

Find out whether your child’s school is a School in Need of Improvement;

Find out whether your child’s school is a Title 1 School. If it is, consider using the option of school choice or supplemental services.

Get involved in developing the school’s plan and monitoring progress.

Links to more information can be found at

IDEA: The Rules Have Changed

In August 2006, the federal government published the final regulations following the changes to the Individuals With Disabilities Education Act of 2004. These rules are in the Code of Federal Regulations beginning at 34 CFR §300.

The final regulations are in the Federal Register, vol. 71, no. 156: (note: the document is 307 pages long)

Wrightslaw has reformatted and published them on its website:

A 10-page summary of major changes is available from Wrightslaw:

Check It Out: Why Early Identification is Essential for the Health and Development of Young Children

Debra Nelson, M. S., Institute on Disability/UCE

Stroking her three-month-old baby's cheek, the first time mother told her pediatrician, "I know something's not quite right, but I don't know what. He cries all the time, hardly ever sleeps, and wants to be held all day long." In an examining room down the hall, a father worried about his three-year-old daughter. "She isn't talking like the other kids her age in our neighborhood. She only has a few words, and even then no one but her brother can understand her."

Later both parents emerged from the doctor’s office feeling that they had been "listened to" and relieved that their concerns would be investigated. The baby's mother was eager to rule out any health conditions that could be making her baby so fussy; she also had a number to call to schedule a developmental screening. In the meantime, she was thankful for the doctor’s suggestions on things she could do to calm her baby and was hopeful that they could both get some much-needed sleep.

Following the doctor’s recommendations, the little girl's father arranged to have her hearing checked and contacted the local school district's preschool special education coordinator to request an evaluation. He appreciated the written materials that the doctor had given him on helping children learn to talk, and shared this information with his whole family and with the neighbor who took care of his daughter during the day.

Both these parents and their doctors recognized the importance of identifying and addressing health and development concerns as early as possible. Whether the issue is hearing, vision, achievement of developmental milestones, or overall health, early identification and appropriate supports and services are critical for the following reasons:

To correct existing concerns when possible and prevent other problems from developing later on. Some concerns, such as amblyopia (lazy eye), can be corrected if identified before the age of five. Others, such as hearing and speech, when addressed early, may prevent related problems from developing. For example speech therapy incorporated into daily routines by families and childcare providers may prevent preschoolers with articulation challenges from feeling lonely or frustrated because no one can understand them.

To help assure that children can reach their full potential. For example, young children with chronic health conditions who receive medications, special attention to nutrition, and regular therapies are likely to be healthier and better able to learn in school and to pursue their dreams than those who are identified at an older age and receive none of those benefits.

^ To assist the family to help their child grow and learn. The right information, supports, and services at the right time can make an enormous difference to children and families. These resources can help families better understand their child’s condition, gain confidence in supporting their child’s development in the course of their family’s daily routine, and offer access to supports and services in their community.

^ Early Identification Tips

Check it out! If you have a question or concern about a child’s health, development, or well being, don’t just wait and hope that he or she will grow out of it. Parents can talk to their child’s doctor or other trusted person and ask for a screening. In New Hampshire, parents, child care providers, preschool providers, and others can call the Family Resource Connection toll free (1-800-298-4321) to find out about screening in their area.

Know the signs—both what to expect regarding child health and typical development and the “red flags,” or indications that a child may need an evaluation. Call the Family Resource Connection to request their free publications, The First Five Years at Your Fingertips, a brochure on developmental milestones and red flags, and a copy of Ages & Stages Questionnaire, a screening tool that parents, early care providers, and teachers can use for children ages 4 months to five years.

Screen early/screen often—whether or not there is a pressing concern. Periodic screening in the first five years of life, using a valid and reliable tool (i.e., one that research has demonstrated to be effective), can help determine whether or not a child is growing, learning, and developing as expected.

^ What’s the Difference? Early Identification Terms to Know

“Screening” is a brief look at a child’s development designed to show if he or she is developing as expected or needs an evaluation in areas of concern.

“Evaluation” is an in-depth look at development, often used for diagnostic purposes and to determine eligibility for certain services and programs.

“Child find” for children aged birth to five is a continuous process of public awareness activities, screening, and evaluation designed to locate, identify, and refer as early as possible all young children with disabilities and their families who are in need of Early Intervention Program (Part C) or Preschool Special Education (Part B/619) services of the Individuals with Disabilities Education Act (IDEA). For more information on child find, visit the following websites: National Early Childhood Technical Assistance Center: (includes state-by-state contacts);; and the Tracking, Referral and Assessment Center for Excellence (TRACE):

Little Ones Have Big Dreams Too: Person-Centered Planning for Families with Young Children

Ann Donoghue Dillon, M.Ed, OTL, Institute on Disability/UCE

Many people are familiar with person-centered planning as a way to help young adults transition from school to adult services. Person-centered planning for two-year olds is quite a different experience. However, whether the person is two or 22, the underlying process is amazingly similar. Person-centered planning brings together a committed group of people to engage in an ongoing and creative process to plan for someone who needs extra support in the coming months or years.

What is person-centered planning and how does it work?

According to Pete Ritchie, who helped to pioneer this approach to planning, “Person-centered-planning is a way of organizing around one person to define and create a better future.” What an exciting concept: people who have the child’s best interests in mind commit to working together to create a meaningful plan to support the individual. It is a process that is innovative, informal, and individualized; person-centered planning can be used effectively for anyone in need of planning at any age.

Planning meetings take place in a comfortable environment of the family’s choosing. A facilitator uses flip charts and markers to help the group engage in a creative process where ideas are explored and illustrated on colorful maps. Over several meetings, the team defines its purpose and illustrates a history of the child’s life (e.g., home, education, health, family). As the team moves forward it may bring in others with the “right” skills to help establish a vision for the child’s future, set realistic outcomes, and propose action steps. Each meeting is unique and outcomes are individually tailored to the child, family, and group of people engaged in the process. Person-centered planning creates a sense of shared trust and energy with the thoughts of one member sparking the rest of the group to explore new ideas and possibilities.

What is the role of the facilitator?

Ideally, the planning facilitator is someone who has been trained in person-centered planning and is both an effective communicator and a good listener. It is the facilitator’s job to guide the group through a series of planning meetings. Between meetings the facilitator reflects on the work of the group to date and creates maps for the next meeting that will help the group to move forward. In between meetings the participants work on specific action items. The planning process continues until the group decides that its purpose has been accomplished.

What are the challenges?

There are several challenges to engaging families of young children in a person-centered planning process, these include:

How to make families aware of this planning process as an option for support for their child and themselves.

How to get service system team members to participate when there are time and personnel constraints.

How do have service systems make adjustments in people’s schedules so they can participate in an ongoing series of meetings?

How to make families comfortable with a new approach to planning that is different from they are used to.

More work is needed to create an increased awareness and interest in this planning tool. Person-centered planning should become an accepted component of family centered supports and services for young children. This planning process has the potential to bring about a more creative and organized approach to supporting children and their families, resulting in a more efficient service delivery system that actually saves time and money, and reduces frustration for both families and providers. More importantly, person-centered planning can help families feel less alone and more relaxed and confident about their child’s future.

Charting Her Course

Julia Freeman-Woolpert, Disabilities Rights Center

^ No person has the right to rain on your dreams.

Marian Wright Edelman, President and Founder of the Children’s Defense Fund

Staci Smith is a lover of whales; once on a whale watch she found herself staring eye to eye with a humpback. For more than thirteen years Staci has been keeping track of Salt, a humpback whale with an unusually white dorsal fin that frequents Rye Harbor. Staci, who is now 23, has wanted to be a marine biologist since she was five.

It’s taking Staci longer than she expected to reach her goal; getting through high school took her seven years. Staci, who has a learning disability and a seizure disorder, began receiving special education when she was seven and until she entered Manchester’s Central High School was a straight-A student.

Staci’s freshman year got off to a rocky start. Her great-grandmother, with whom she was very close, had recently died and Staci’s mother was seriously ill. Staci began the year anxious and depressed, and terrified to leave her mother home alone. Her attendance fell off and her grades plummeted from A’s to F’s; though when she was in school Staci was a model student who worked hard. “I never got into trouble. I never got kicked out of school. I never got detention. I was just having an issue about being in school.” The school made no attempt to find out what was wrong or to help her get back on track; Staci, who knew she needed more help than she was getting, was too shy to speak up for herself.

By the end of her freshman year Staci had rallied and was attending school regularly. “I talked to my resource teacher and asked if there was any way for me to get help,” Staci remembered. “My teacher told me, ‘There’s no way you can do this, don’t even bother coming back to school. You’re failing anyway.’ ” Staci was devastated and told her mother, “My life is over. … I’m never going to get into college now.”

Staci repeated her freshman year and was doing well, when three weeks before summer vacation in the middle of the Central’s courtyard, “in front of the whole school,” she had a grand mal seizure. As a shy, insecure teen, it was her worst nightmare. Unable to face going back to school, Staci failed ninth grade for the second time.

Still she refused to let go of her dream of college; in the fall she entered 9th grade for the third time. School personnel were not supportive; they hinted that she could drop out and could get her GED later. Staci’s mother tried, without luck, to get the school to schedule meetings to come up with a workable plan for her daughter.

With seizures, neurology appointments, and a knee injury Staci’s attendance again became an issue. When the school refused to honor their agreement to count neurology appointments as excused absences; Staci had to file a formal appeal to get her record corrected. All of this added to Staci’s already high stress level, aggravating more seizures, causing her to miss yet more school. While Staci did receive some assistance through the resource room, she didn’t find it very helpful. Rather than explaining the material, Staci explained, “their idea of helping was the answer is this, this, and this.”

Still in spite of everything, Staci excelled at some subjects. Inspired by her history teachers she couldn’t wait to get to class. “I usually sit in the back ‘cause I’m shy. When you have a learning disability you don’t like to raise your hand … but in history I knew all the answers and I was not afraid of saying them. I was always in the first row. It’s totally different if you know what you’re talking about.” She continued to love biology, but the school refused to let her take additional classes in the subject because she hadn’t passed the required physical science course.

In her senior year, Staci’s mother heard about Project RENEW, an alternative high school program. Though they initially refused to enroll Staci in the program, Central finally capitulated to her mother’s persistent advocacy and agreed to include RENEW’s services in Staci’s Individual Education Plan. Through RENEW, Staci received individualized supports including tutoring, mentoring, and the academic help she needed to complete her coursework. After seven years in high school Staci had finally earned enough credits to graduate. As graduation approached, the school delivered its last insult telling Staci that she could not participate in the graduation ceremony. It took more advocacy on the part of Staci, her mother, and Project RENEW before Central allowed her to march with the rest of the graduating class. “It meant the world to me,” Staci said.

Staci still doesn’t understand why her high school didn’t do more to support and encourage her, or to provide the services and accommodations she needed to succeed. “I know I was barely there, but when I was there I was a hard worker,” she said. “Maybe if they just gave me a little help, it wouldn’t have taken me seven years to get out of high school.”

Still pursuing her dream to earn a degree in marine biology, Staci is applying to the University of New Hampshire. Meanwhile, she is the enthusiastic new Youth Leadership Coordinator for the Alliance for Community Supports and in her work with Alliance has been a guest lecturer in several college classes, including some at UNH.

2006-2007 Youth Leadership Series

The Alliance for Community Supports offers a Youth Leadership Series for New Hampshire students age 15-22 with mental health diagnoses. The Series provides a supportive environment for students to explore their strengths and needs, develop effective communication skills, and learn about their rights. This seven month series begins October 21, 2006 with monthly Saturday workshops on topics that include: group dynamics, lobbying government agencies and elected officials, leadership skills, conflict resolution, peer support, disability awareness, and self-awareness.

The Alliance is seeking participants for this year's Series. If you feel that you would make a good candidate for our program, or know of someone who would, please visit our online application section of our website. For additional information, contact our Youth Leadership Coordinator, Staci Smith. - Telephone (603)628-7681

What You Can Do When You Disagree with the School District on Special Education Issues

Amy Messer, Esq., Disabilities Rights Center

Advocating for your child to obtain special education and appropriate services can be a difficult task, particularly when you and the School District do not agree on the appropriate course of action. However, arriving at an impasse only means arriving at a new phase of your advocacy. The Individuals with Disabilities Education Act (IDEA) and State Special Education laws contemplate that there will be disagreements between School Districts and Parents in implementing IDEA requirements. As a result, federal and state laws provide several avenues for resolution of such disputes. Parents or school districts may: (1) request mediation, (2) file for due process, or (3) file a complaint. 1 Individuals may use any of these processes to seek to resolve a dispute “with respect to any matter relating to the identification, evaluation, or educational placement of the child or the provision of a free appropriate and public education (FAPE) to such child.”

Mediation is voluntary and is intended to be non-adversarial. A request for mediation should be made, in writing, to the Department of Education. The Department will then assign a trained mediator and a date and time for mediation will be selected. Parents or School Districts may bring and be advised by individuals with specialized knowledge or training to assist them at the mediation session. The role of the mediator is to sit down with the parties and try to help them to reach an agreement to resolve their disputes. If the parties agree, they may enter into a binding agreement which is enforceable in court. If they are unable to reach an agreement, they may request due process or file a complaint. Should the parties proceed to due process, any statements made in the course of the mediation are confidential and may not be used in subsequent proceedings.

A request for Due Process can be made any time the School District proposes to initiate or change the identification, evaluation, or educational placement of a child, or the provision of FAPE, or refuses to make such changes when requested by the parent. A request for due process must be filed with the Department of Education and a copy must be sent to the School District. The request must include the name and address of the student, the school the student is attending, a description of the nature of the problem, the facts related to the problem, and a proposed resolution to the extent it is known. Include in the due process request all issues that you wish to be heard at the hearing otherwise you may not be permitted to raise them at the hearing. The School District must respond to the request for due process within 10 days. School Districts are now required to schedule a “resolution meeting” within 15 days. This resolution meeting is designed to bring together the individuals with specific knowledge regarding the subject of the due process complaint, and give the School District the opportunity to resolve the issues. School attorneys are not permitted to attend unless the parent is accompanied by an attorney. The parties may waive the resolution meeting, or they may request mediation.

If the options for alternative dispute resolution fail, the parties may proceed to a due process hearing. This is an adversarial process where schools and parents have the right to be represented by counsel, present evidence, confront and cross examine witnesses, compel the presence of witnesses, obtain a record of the hearing, and request findings of fact and rulings of law. Hearing Officers are supposed to limit each party to one day to present their case, unless additional time is necessary for a full, fair disclosure of the facts. The Hearing Officer is also supposed to limit witnesses if their testimony is redundant, cumulative, or irrelevant.

The Hearing Officer must issue a final decision within 45 days after receipt of the request for a due process hearing unless a specified exception is made in accordance with the law. Either party may appeal the decision of the Hearing Officer to state or federal court. State law requires that appeals be filed within 120 days from receipt of the decision.

Attorneys’ fees may be available to the parent’s attorney if they are the “prevailing party” at the due process hearing. If the School District prevails at the hearing the parent is required to pay the District’s attorney’s fees only if there is a finding that the case was frivolous, unreasonable, or without foundation, or the parent continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation.

A final alternative to resolve disputes is the filing of a Complaint. Anyone may file a complaint with the Department of Education that alleges a violation of state or federal requirements. Complaints should be in writing and signed, and include the facts on which the statement is based. Alleged violations must have occurred not more than one year prior to the date the complaint is received, unless the violation is continuing, or the complainant is requesting compensatory services of a violation that occurred not more than three years prior to the date the complaint is filed. The Department of Education will investigate the complaint and issue a written report to the Commissioner of Education. The Commissioner will issue a written decision including findings of fact, conclusions, and the reasons for the decision. If the Commissioner finds that the School District has failed to provide appropriate services, the Commissioner’s order shall include direction to the School District as to how to remediate the denial of services, and where appropriate, award monetary reimbursement or other corrective action appropriate to the needs of the child. The order may also include a direction for appropriate future provision of services for all children with disabilities.

All complaints are to be resolved within 60 days, but may be extended to 90 days if certain conditions apply. Any party to the complaint may request reconsideration and appeal the decision of the Commissioner. When a finding has been made that requires that the School District take action, the Department of Education is required to monitor compliance and can enforce the decision by, among other things, withholding state or federal funds, ordering repayment of misspent or misapplied funds, or referring the matter to the Department of Justice.

For more information on your rights and special education laws and regulations or to obtain forms for filing complaints and due process requests, you can visit the New Hampshire Department of Education website at You can also contact the Disabilities Rights Center at 1-800-834-1721 or 603-228-0432 or visit our website at A copy of this article, which includes legal citations, may be found at our website.

Parent Information Center

Need help or information? PIC offers:

* Help in finding resources

* Workshops

* Help for parents of children with disabilities

* Help in building family-school partnerships

* Newsletters

* Disability Awareness Kits

* Family Learning Kits

The Parent Information Center (PIC) is a recognized leader in building strong family/school partnerships. PIC provides information, support, and educational programs for parents, family members, educators, and the community. PIC is a pioneer in promoting effective parent involvement in the special education process. To learn more visit our website at or contact us at:

Parent Information Center

P.O. Box 2405,

Concord, NH 03302-2405

(603) 224-7005 Voice/TDD

(800) 947-7005 (N.H. only)

Discipline for Students with Disabilities

Karen Rosenberg, J.D., Disabilities Rights Center

If your child has a disability that affects his behavior in school and as a result is facing suspension, is there anything you can do to ensure that he continues to receive the special education and related services in his Individual Education Plan (IEP)?

When children with disabilities are suspended from school they are likely to miss important services, fall behind, and are at increased risk of failing or dropping out. Before Congress enacted the Individuals with Disabilities in Education Act (IDEA) and its prior law, the Education of the Handicapped Act, schools frequently excluded children with disabilities. IDEA and other laws protect students with disabilities from being unfairly disciplined for behaviors that are directly related to their disabilities.

In general, all students, including those with disabilities, are expected to follow school conduct codes. As long as the punishment for violating the code is removal from school for 10 days or less, schools may impose the same punishment on children with disabilities as children who do not have disabilities. Schools may not impose harsher punishments on students with disabilities. If your child is suspended for 10 days or less, and the school is applying the disciplinary code the same way it would to all students, your child does not have a right to avoid suspension. In this case, the school may exclude your child from all educational opportunities, including extra-curricular activities, special education, and related services during the time he is suspended.

If the punishment for violating the conduct code is removal from school for more than 10 days, you may be able to reduce the punishment or prevent the punishment from being imposed on your child. When the punishment in the school code is more than 10 days suspension, the school may consider whether the student’s “unique circumstances” warrant a lesser punishment. Also, the school must provide additional procedural protections to students with disabilities. In most situations, students with disabilities who have not been “coded” are entitled to the same protections as students with IEPs, if the school had reason to know before the incident at issue, that the student might be eligible for special education.

If the punishment is more than 10 days suspension, the school must hold a meeting to determine whether the student’s behavior at issue was a “manifestation” of the student’s disability. The “manifestation meeting” may occur after the student is removed from the school, but must occur within 10 school days of the decision to remove the student. The parent(s) and other “relevant members” of the student’s IEP team should attend the meeting.

During the meeting, participants review all relevant information in the student’s file, including the IEP, observations, evaluations, and information that parents provide. To prove the conduct at issue was a manifestation of the child’s disability, the parent/student must show that the conduct was caused by, or was directly and substantially the result of, the child’s disability or was the direct result of the school’s failure to implement the student’s IEP. This is a tough standard to meet and one that often will turn on the opinion of experts such as behavioral specialists or psychologists.

If the team decides the behavior was a manifestation of the child’s disability, the school must immediately return the child to the original school placement. In addition, the school must conduct a functional behavioral assessment (FBA) and develop a behavior intervention plan (BIP). If the child already has a BIP, the IEP team must review the plan and modify it, if necessary, to address the behavioral problems. However, even if the “manifestation team” determines that the behavior at issue was not a manifestation of the child’s disability, the school is not permitted to deny educational services to a child with a disability for more than 10 school days. In this case, the school is required to implement the child’s IEP in an interim alternative setting.

In “special circumstances,” a school may place a child with a disability in an alternative educational setting for up to 45 school days, regardless of whether the conduct at issue was a manifestation of the child’s disability. Special circumstances include: 1) carrying a weapon to school or a school function; 2) knowingly possessing, using, or selling illegal drugs at school or a school function; and 3) causing serious bodily injury to another person on school grounds or at a school function. Before seeking a placement in an alternative educational setting that is longer than 45 days, the school must first get an order from an independent hearing officer. In addition, the school must conduct an FBA and develop a BIP if it removes a child from school due to “special circumstances.”

If your child is removed from school for more than 10 days and you disagree with either the “manifestation determination” or the school’s placement decision, you may request a hearing before a Department of Education Hearing Officer. If you request a hearing or have questions about school discipline imposed on your child, consider obtaining further information and/or legal representation from a qualified attorney or organization, including the Disabilities Rights Center.

Dropping Out, But Not Giving Up

Julia Freeman-Woolpert, Disabilities Rights Center

When dropped out of school two years ago, he knew his chances for success dropped too. He talked about how his behavior put him at odds with the school, “I put teachers through a lot and I put the people that were surrounding me through a lot. They kind of started shutting down on me and kind of gave up on me. I wish that they wouldn’t have given up on me.”

Oscar talked about his problems at school, “My big thing was tardiness, just going to school late. When your tardiness adds up, then you’d get a suspension.” Suspension was a punishment that didn’t make sense to him, “It’s like they’ve got more reason to fool around.” Oscar explained how things went from bad to worse, “As a young guy I got in trouble. I didn’t know what I wanted to do, and I didn’t know who my friends were. I tried to impress people and did stupid stuff. I hung out with the wrong crowd and got into some stupid trouble.” The trouble was bad enough that he landed in the Youth Development Center and later, in a series of foster homes.

Oscar’s difficulties with school and the law are not unique. A 2003 study showed that minority students are more likely to get suspended for minor offenses and to receive more severe punishments. The study concluded that, “…school suspension often is not successful in decreasing students’ chronic and inappropriate behavior, and it is related to a variety of negative academic and educational outcomes for students.” i Without the structure of school, students are more likely to get into trouble and end up in the court system. In New Hampshire, children from minority groups are three times more likely to end up in the Youth Development Center, a rate higher than the national average.ii Students with disabilities also are more likely than those without disabilities to end up in the juvenile justice system and once in the system, these children are less likely to be released on parole or administrative release.

Aida Cases, former director of the Bienestar Mental program of NAMI-NH, has worked with Latino youth who, like Oscar, have dropped out of school. She says there are many issues with Latino families that do not get addressed effectively, making it harder for Latino students to overcome cultural and linguistic challenges. Latino/Hispanic families often trust the school to do the right thing; they are reluctant to speak up about problems and many parents are often unaware that their child is having behavioral or educational difficulties. Most school personnel are not adequately trained to understand a student’s needs for ESL (English as a Second Language) services versus the need for special education services. Too frequently these students end up in less challenging courses, are bored, and more likely to drop out. Cases said that simple steps, such as providing information to parents in their native language, could make a big difference. With appropriate ESL or special education supports, New Hampshire schools could do a better job educating and graduating their Latino students.

In spite of everything, Oscar is optimistic about his future. While school did not work out for Oscar, he has been willing to work and has had a number of jobs. “You name it, I’ve done it, “ said Oscar, “I’ve done landscaping. I’ve done construction. I’ve done cleaning. I’ve done restaurant business. I’ve done little shops, department stores. I used to sell cars.” Currently, he’s working part time and training to be a manager at Classic Tuxedos in Nashua’s Pheasant Lane Mall, a job well suited to Oscar’s outgoing and friendly personality. Oscar knows that good paying jobs require a high school diploma or its equivalent. “My plan right now is to focus on getting my GED and try to move forward. Nobody told me to get my GED. I just kinda motivated myself.”

Raffaele Mendez, Linda M. ^ Who Gets Suspended from School and Why: A Demographic Analysis of Schools and Disciplinary Infractions in a Large School District, from Education and Treatment of Children, Vol. 26 No. 1, Feb 2003

Children with Disabilities in the New Hampshire Juvenile Justice System, a report to the Division of Juvenile Justice Services, by Michael Skibbie, Justiceworks, April 2004 .

In recent years the New Hampshire Department of Education (NHDOE) has taken some important steps to improve discipline practices in our state’s schools. In 2003 the Department initiated Positive Behavioral Intervention Systems (PBIS) to improve the management and teaching of behavioral skills. PBIS is an approach that “encourages a positive climate school wide by focusing systematically on the general school population, students at risk, and students with intensive or chronic behavioral and emotional problems.” For more information about PBIS and the New Hampshire Center for Effective Behavior Interventions and Supports, see go to

In October 2005, the NHDOE issued, FY 06 Memo #13, a memorandum concerning the use of physical restraints in school settings. The intent of the document is “to provide guidance on the adoption of guidelines and policy towards the practice of promotion, creating, and enhancing positive school climates that encourage social, emotional and academic growth.” You can find this document at:

An Individualized Education

Julia Freeman-Woolpert, Disabilities Rights Center

A few days a week, Ethan Colgan can be found at PetSmart, Concord’s newest pet store. He volunteers wiping down fish tanks, filling bins with dog biscuits, and doing a variety of jobs. Ethan loves the dogs that come in and since working at the store he has conquered his fear of birds.

Ethan, who has Down Syndrome and autism, is a student at Hopkinton High School. Due to his extensive needs, he has a year-round educational program; volunteering at PetSmart is part of Ethan’s education. Jen Drouin, his teacher - technically she is a behavior specialist assistant - works alongside Ethan, showing him how to do the work. At PetSmart Ethan is doing more than just helping out; he also is adjusting to having a schedule and practicing his social and communication skills.

Ethan was in an inclusive classroom until 8th grade. “Inclusion was excellent for him,” said his mother, Debby Colgan. In high school, however, being in classes was not as successful for Ethan. Now he works one to one with his teacher. Hopkinton students know Ethan well from the cafeteria, the halls, and from visits Ethan makes to their classrooms. Ethan enjoys going to school events, especially baseball games, and he’s been to the prom twice.

For Ethan, who speaks only seven words, learning to communicate is the most important part of his IEP (Individual Education Plan). A few years ago, his mother heard about PECS, Picture Exchange Communication System, designed to help students with autism communicate. The picture system has become an invaluable teaching tool; Ethan now understands and uses about 30 pictures. Debby wishes she had known about PECS sooner; she believes Ethan would be able to communicate much better now if he had been using pictures all along.

In teaching Ethan, Jen uses a strategy called Discrete Trial Training.2 This is a highly structured approach that uses the principles of Applied Behavior Analysis to break down complex tasks into smaller, teachable steps. A behavior specialist consults with Jen on a regular basis to help guide Ethan’s training.

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