Sununu signs bill shifting burden of proof in special education hearings to schools

A bill signed by Gov. Chris Sununu Thursday gives parents more power during disputes with schools over special education arrangements.

House Bill 581, signed by Sununu Thursday afternoon, places the burden of proof on schools during hearings of children’s individualized education programs. The change means that when parents request due process hearings to challenge the school’s implementation of the IEPs, the schools will have the burden of proving that their decisions were justified, through both persuasion and production of evidence. 

“This burden shall be met by a preponderance of the evidence,” the law states.

Under the Individuals with Disabilities Education Act, first passed in 1975, school districts across the United States are required to provide special education to students with identified disabilities. That law also created IEPs, which constitute the district’s personalized plan for each student, informed by evaluations of the student and input from the school and the family.

New Hampshire has a resolution process for families dissatisfied with the way the IEP has been crafted or implemented. According to state statute, the Department of Education must appoint “hearing officers” who oversee disputes and can issue subpoenas to compel evidence. 

But some parents had complained that the process to raise concerns with their child’s special education provisions was convoluted and preferential to schools. 

During testimony for HB 581 earlier this year, some said that school districts can make it difficult for parents to access sufficient testing and evaluation data to know whether their student has been helped or harmed by an IEP. Others cited the significant costs of hiring an attorney to amass the evidence necessary to win against their school district.  

But the New Hampshire School Board Association opposed the bill, contending that due process hearings are already rare, with the majority of issues every year being resolved without the formal hearing process. Shifting the burden of proof to schools would mean those cases that did make it to the due process hearing stage could become costly for schools without legal insurance, the association argued. 

The New Hampshire Association of Special Education Administrators also opposed the bill, warning of increases to local property taxes. 

The Disability Rights Center of New Hampshire, which supported the bill, rejected the financial argument. Mike Skibbie, policy director for the center, responded that the center would welcome the decision by schools to devote more resources to special education programming in response to the bill. 

IEP implementation has been a national issue for years. In one 2005 case, two Maryland parents sued their school district in federal court over a suggested IEP; the lawsuit was struck down by a federal appeals court. 

When the matter came before the U.S. Supreme Court, the court found that parents by default have the burden of proof in making their case against the school district. But the court left open the possibility of states passing laws to reverse that power dynamic and put the burden on schools instead. 

HB 581 is New Hampshire’s attempt to take that legislative approach, sponsor Glenn Cordelli, a Tuftonboro Republican, said earlier this year. 

The bill had unanimous bipartisan support this year, with a 24-0 vote in the Senate and a voice vote in the House. 

The new law also establishes a legislative study committee to look at options for improving the dispute resolution process for IEPs, including how the state can better monitor schools for their compliance with the Individuals with Disabilities Education Act. That committee must release its first report Nov. 1.

In a statement Thursday, Cordelli praised the bill, arguing it “levels the playing field.”

“Every student deserves access to a quality education that best suits their needs, and it is incumbent upon us to ensure that children with disabilities have that same opportunity,” he said. “. . . Prior to this legislation, parents attempting to ensure their child’s needs were met had to spend thousands of dollars to challenge a plan without the significant resources afforded to the school district.”