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Bill to limit unfunded mandates could have unintended effect on special ed

  • The State House dome is seen on Nov. 18, 2016, as the restoration project nears completion. (ELIZABETH FRANTZ / Monitor staff)



Monitor staff
Monday, March 06, 2017

A bill intended to limit unfunded mandates in education and give school districts greater flexibility has special education advocates worried that major protections for students could be imperiled.

As written, House Bill 620 would prohibit the State Board of Education from proposing any rule “that exceeds the minimum requirements of state or federal law.”

The bill would affect all education rulemaking, but both the State Board and advocates said the biggest impacts would be in special education.

“New Hampshire has some of the highest graduation rates for students with disabilities, and it’s because we’ve spent 30 years clarifying and building upon the federal law – the Individuals with Disabilities Education Act,” said Lisa Beaudoin, of ABLE New Hampshire. “This is a direct threat to major civil rights achievements that we’ve made.”

Rules, which have the force of law, are developed to fill in the blanks after state or federal laws are passed. In New Hampshire, it’s up to the State Board of Education to come up with the details after laws are passed.

Examples of rules that affect special education students include the requirement that examiners who determine whether a child has a disability be certified or licensed, and that districts must respond within 21 days when parents ask for a meeting about a child’s individualized education plan – or IEP – which governs what special education services a student receives.

But what exactly it means for a rule to “exceed” federal or state law is often a matter of contention, both advocates and the state board argue. Often, federal law is scant on details and relies on state agencies to interpret them in local contexts.

“Rules that are meant to clarify statutory language could be considered exceeding minimal requirements under HB 620’s provisions,” Tom Raffio, the state board’s chairman, told House Education Committee members in a letter. “For example, New Hampshire law states that students must be evaluated as part of the process for determining eligibility for special supports, but the law does not provide specific criteria for the evaluation or requirements for who can perform such an evaluation . . . HB 620 would prevent the board from creating such rules and could deny at-risk students access to vital supports.”

The New Hampshire School Boards Association – which has seen its members increasingly struggle to put budgets together as special education costs rise and state aid dwindles – is supporting the bill.

The Association adopted a resolution in 2009 that the state should “should fully fund those mandates that exceed federal requirements to the local school districts.”

NHSBA Deputy Executive Director Barrett Christina said the Association supported giving students high-quality special education services, but couldn’t support unfunded mandates.

“NHSBA has been putting pressure on the state to pony up for several years . . . but until that happens and the state decides that it’s going to fully fund its promises, this is the position that we find ourselves in,” he said.

Christina also added that he understood the bill, if passed, wouldn’t affect existing rules – at least until they were up for reauthorization. And that at that point, the Legislature could write exceptions into law to allow the state board to exceed federal and state minimums.

But Raffio said that, as the board understands it, a slew of scenarios could immediately require all rules technically in excess of state and federal law to revert to back to their minimums.

“Either the federal IDEA is reauthorized, any state statute concerned with some element of special education is amended (either of which could happen at any time), or there is any other need to reopen the rules for some reason,” he wrote in an email.

HB 620 is scheduled to go before the full House on Wednesday with a 10-8 vote in favor from the House Education Committee. One of its sponsors is House Majority Leader Dick Hinch, a Merrimack Republican.

(Lola Duffort can be reached at 369-3321 or lduffort@cmonitor.com.)