NH DOE #IDPH-FY-26-03-034: New... | Special Education Law

New Hampshire Department of Education

Student/School District

IDPH FY 26-03-034

Due Process Decision

I. Introduction

The parents requested an expedited hearing seeking an order enforcing the student’s stay put placement at the private school, restoring the student's placement at the private school, and ordering the district to provide compensatory services.

The parents subsequently filed a motion to enforce stay put. The private school objected to the request and filed a motion to dismiss, arguing that it cannot be a party to a due process hearing. The school district filed a response to the parents' due process request.

While these documents show that some facts are disputed, they provide sufficient information and grounds to address the motions in this due process decision and to decide this matter without the need for a hearing to obtain additional factual information.

II. Facts

1. The student’s IEP team agreed to place the student at the private school over 9 years ago.

2. The student was hospitalized for periods in November and December 2025.

3. In January 2026, the student attempted to return to the private school after being hospitalized, but the private school and the parents disagreed over the medical releases necessary for the student to return, and the private school did not permit the student to return.

4. On January 12, 2026, the private school terminated the student’s placement.

5. An IEP meeting was held on February 5, 2026. The details of the IEP meeting are incomplete and not agreed upon by the parties in the information provided.

6. The School District’s response to the parents’ due process request states that the private school’s director stated at the February 5th meeting that the student’s placement had been terminated due to lack of progress and the student’s inability to access services at the school.

7. The parents' motion to enforce the stay put states that the private school “categorically refused to discuss the reasons for seeking to terminate” the placement at the February 5th meeting.

8. The private school’s objection to the motion for stay put states that the termination of placement was due to the parents not providing sufficient medical releases and necessary medical information as required by the contract between the private school and the parents to allow the school to meet the student’s needs.

9. The private school’s objection to the motion for stay put states that when the student attended school between hospitalizations in November/December 2025, private school staff had “significant concerns regarding the student’s well-being,” noting increased periods of sleep, intolerance of feeds through their feeding tube, and being “unable to tolerate [their] educational instruction for more than 5 minutes during a planned 30- minute session before becoming exhausted and expressing discomfort.”

10. The parent does not agree that the private school cannot meet the student’s needs or that they have not provided sufficient medical information, and wants the student to continue attending the private school.

11. The school district’s response to the parents' due process requests does not directly address whether the school IEP team members agreed that a change of placement was needed on February 5, but it states that school is “disappointed that [student] has not returned to [the private school] and believes that [they] could safely attend there with the current level of medical information in the parties’ possession.”

12. The school district states that it has offered to explore alternative placement and service options for the student since the private school will not allow the student to return.

III. Rulings of law

1. Ed 1114.12 states:

(a) A private provider of special education or other non-LEA program which believes it can no longer implement a child's IEP or provide FAPE shall immediately convene or request the convening of the IEP team to review the facility's or program's concerns and to amend the IEP and placement, if necessary.

(b) An IEP meeting convened under Ed 1114.12 shall:

(1) Review the child's needs;

(2) Determine whether the current IEP meets the needs of the child and, if appropriate, propose changes to the IEP;

(3) Review the child's current placement; and (4) Determine whether the placement can fully implement the child's IEP and provide FAPE.

(c) If the IEP team determines that the current placement cannot implement the IEP and provide FAPE, the LEA shall immediately place the child in an approved facility or program which can implement the IEP and provide FAPE.

(d) If a private provider of special education or other non-LEA program wishes to suspend or expel a child, it shall immediately inform the LEA. The LEA shall comply with the disciplinary procedures in 34 CFR 300.530- 34 CFR 300.536.

2. Ed 1123.23 states:

(a) Unless both parties agree otherwise, during the pendency of an administrative due process hearing or judicial proceeding, the child involved shall remain in his or her current educational placement, pursuant to 34 CFR 300.518 except for the circumstances detailed in 34 CFR 300.533.

(b) If the matter involves an application for initial admission to public school, the student, with the consent of the parent if a minor, or a consenting adult student, shall be placed in the public school until the completion of all the proceedings.

(c) If the decision of a hearing officer in an administrative due process hearing agrees with the child's parents or the adult student that a change of placement is appropriate, that placement shall, pursuant to 34 CFR 300.518(d), be treated as an agreement between the state or LEA and the parents or adult student for the purposes of (a) above.

3. 34 CFR § 300.518 Child's status during proceedings states:

(a) Except as provided in § 300.533, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under § 300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.

4. Ed 1123.03 states:

(a) A parent or a public agency may file a due process hearing complaint on any matter described in 34 CFR 300.503(a)(1)-(2).

(b) The due process hearing complaint shall allege a violation that occurred not more than 2 years before the parent knew or should have known about the alleged action that forms the basis of the due process complaint as detailed in 34 CFR 300.507(a)(2).

(d) The public agency shall comply with the provisions of 34 CFR 300.507(b) relative to information for parents.

5. 34 CFR § 300.146 Responsibility of SEA states:

Each SEA must ensure that a child with a disability who is placed in or referred to a private school or facility by a public agency— (a) Is provided special education and related services— (1) In conformance with an IEP that meets the requirements of §§ 300.320 through 300.325; and (2) At no cost to the parents;

(b) Is provided an education that meets the standards that apply to education provided by the SEA and LEAs including the requirements of this part, except for § 300.156(c); and (c) Has all of the rights of a child with a disability who is served by a public agency.

6. Ed 1123.25 states:

(a) An expedited due process hearing procedure shall be available for disciplinary issues in accordance with 34 CFR 300.532(b)-34 CFR 300.533, as provided in 34 CFR 300.532(c).

7. 34 CFR § 300.532 states:

(a) General. The parent of a child with a disability who disagrees with any decision regarding placement under §§ 300.530 and 300.531, or the manifestation determination under § 300.530(e), or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing. The hearing is requested by filing a complaint pursuant to §§ 300.507 and 300.508(a) and (b).

(b) Authority of hearing officer.

(1) A hearing officer under § 300.511 hears, and makes a determination regarding an appeal under paragraph (a) of this section.

(2) In making the determination under paragraph (b)(1) of this section, the hearing officer may— (i) Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of § 300.530 or that the child's behavior was a manifestation of the child's disability; or (ii) Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

(3) The procedures under paragraphs (a) and (b)(1) and (2) of this section may be repeated, if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.

(1) Whenever a hearing is requested under paragraph (a) of this section, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing consistent with the requirements of §§ 300.507 and 300.508(a) through (c) and §§ 300.510 through 300.514, except as provided in paragraph (c)(2) through (4) of this section. … (4) A State may establish different State-imposed procedural rules for expedited due process hearings conducted under this section than it has established for other due process hearings, but, except for the timelines as modified in paragraph (c)(3) of this section, the State must ensure that the requirements in §§ 300.510 through 300.514 are met.

(5) The decisions on expedited due process hearings are appealable consistent with § 300.514.

8. 34 CFR § 300.507 Filing a due process complaint states:

(a) General.

(1) A parent or a public agency may file a due process complaint on any of the matters described in § 300.503(a)(1) and (2) (relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child).

(2) The due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, or, if the State has an explicit time limitation for filing a due process complaint under this part, in the time allowed by that State law, except that the exceptions to the timeline described in § 300.511(f) apply to the timeline in this section.

9. 34 CFR §300.533 placement during appeals states:

When an appeal under § 300.532 has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in § 300.530(c) or (g), whichever occurs first, unless the parent and the SEA or LEA agree otherwise.

10. The student’s stay put placement at the private school is unavailable, so the responsibility to provide or obtain services falls to the school district.

11. Issues regarding the student’s placement and whether the student is entitled to compensatory education are not within the jurisdictional requirements of an expedited hearing process because the facts asserted in the due process complaint and other information provided do not include any disciplinary issues or other matters that permit an expedited hearing under Ed 1123.25

IV. Decision

a. Stay put

When a private school that serves as an agreed-upon IEP team-based placement for a public school determines that it can no longer meet the student’s needs, Ed 1114.12 requires the school to convene or request the convening of the IEP team to review the school’s concerns and “to amend the IEP and placement if necessary.”

It is not clear whether the requirements of this rule were met since the private school appears to have decided to terminate the placement before any team meeting, but some type of team meeting occurred on February 5, 2026, to discuss the student’s placement, and the version of events provided by the school district is that the private school's director stated that the school could not meet the student’s needs. The parents disagreed, and it may be that the school district team members disagreed as well. The school district stated in its due process response that it believes the private school can meet the student’s needs, though additional medical information has been provided since the team meeting.

Ed 1114.12 does not state what should occur if team members disagree with the private school about the need for a change in placement, but it may be that the parents or school district could challenge the private school’s decision by requesting due process, since it involves the student’s placement, and state and federal laws permit the parent or the LEA to file a due process hearing request over placement issues. Ed 1123.03; 34 CFR § 300.507. When that occurs, the “child involved shall remain in his or her current educational placement pursuant to 34 CFR § 300.518.” Here, that would mean the student’s stay-put placement would be the private school during the pendency of an administrative due process hearing or judicial proceeding under 34 CFR § 300.518 and Ed 1123.23(a).

However, as noted below, the parents did not file their due process request under Ed 1123.03/34 CFR §300.507 because they filed an expedited due process request under Ed 1123.25. The stay put requirements in 34 CFR § 300.518 and Ed 1123.23(a) do not apply to expedited due process requests because 34 CFR § 300.518 references due process requests filed pursuant to 34 CFR § 300.507, which are non-expedited due process proceedings. The state rule Ed 1123.23 references stay put requirements pursuant to 34 CFR § 300.518. Expedited requests for due process have a different stay put requirement, discussed below.

Setting that issue aside, even if the private school were the stay put placement in this proceeding, since the school unilaterally terminated the student’s placement and is not permitting the student to return because of disputes over access to medical information and concerns about whether they can meet the student’s needs going forward, that means that the stay-put placement is unavailable and the school district is responsible for ensuring the student receives services some other way during the pendency of a due process hearing or judicial proceeding under its overall obligation to ensure the student receives FAPE even if the student is placed out of district at a private school. 34 CFR § 300.146.

The parents seek an order requiring the private school to accept the student's return as their stay-put placement, but that is not an appropriate remedy where the private stay-put school discharged the student and contends that it lacks the medical information necessary to “safely and appropriately care for the student.” The parents’ motion essentially asks the hearing officer to second-guess or overrule the private school’s determination of what medical information is necessary to meet the student’s needs, based on a letter from their pediatrician stating that the school has been provided with sufficient information. The private school’s objection states that the information provided was confusing and insufficient.

While it may be that the parents can ultimately prove that they have provided sufficient information to the school and the school can meet the student’s needs, such a determination cannot be made based on the evidence provided and requires an evidentiary hearing that cannot be provided in this proceeding because it does not fall within the jurisdictional requirements of an expedited due process request as noted below.^[1] Since the stay-put placement is considered unavailable, the proper recourse is to order the public school to take all necessary steps to ensure the student receives FAPE during the pendency of the proceeding and going forward. See, e.g, Davis v. D.C., 80 F.4th 321 (D.C. Cir. 2023) (Stay-put responsibility applies to school district not private school when private school unilaterally discharged student making that placement unavailable); Knight v. D.C., 877 F.2d 1025, 1028-29 (D.C. Cir. 1989); Henry v. School Administrative Unit No. 29, 70 F.Supp. 52, 60 (D.N.H. 1999).

b. Expedited hearing process

Similarly, while the parents may be able to establish that the private school can meet the student’s needs with the information provided and ultimately obtain an order requiring the student's return to the private school as the student’s placement, that issue is not proper for an expedited due process hearing, given the facts of this case. Since it is a jurisdictional issue, the hearing officer must address it even if the parties do not raise it.

Ed 1123.25 permits expedited hearings “for disciplinary issues in accordance with 34 CFR 300.532(b) – 34 CFR 300.533 as provided in 34 CFR 300.532(c).” Those federal regulations address placement decisions in the context of discipline and special circumstances involving weapons, drugs, and students inflicting serious bodily harm on another student, none of which are at issue in this case.

Additionally, while the parents seek to enforce stay-put requirements under 34 CFR § 300.518 and Ed. 1123.23(a), those provisions do not apply to expedited due process hearings. Instead, they apply to non-expedited due process requests filed pursuant to Ed 1123.03/34 CFR § 300.507. Stay put for expedited due process hearings are governed by 34 CFR § 300.533, which states:

§ 300.533 Placement during appeals.

There is no interim alternative placement in this matter, which further demonstrates that it does not meet the expedited due process requirements.

Therefore, if the parents want to contest the private school’s assertion that it can no longer meet the student’s needs and seek the student’s return placement, they must file a non-expedited due process request under Ed 1123.03. A request for an expedited hearing cannot be converted or extended to the timeframes in Ed 1123.03. Instead, a new request for due process must be filed.

The parents also requested compensatory education. It may be that the student is entitled to some form of compensatory education from the public school for the time they have not received services, but more factual information is needed to address that issue, and that issue does not, on its own, fit within the requirements of an expedited hearing. The public school and parents should work together to address the issue, and if they cannot reach an agreement, either party may request a non-expedited due process hearing under Ed 1123.03.

While the private school moved to dismiss, arguing that state and federal law do not permit the parents to include the private school as a party, that issue need not be resolved in this case because even if the parents can do so, they cannot do so using an expedited hearing procedure under Ed 1123.25 in this case. As a result, that issue has not been considered and can be addressed if the parents file for due process under Ed 1123.03.

V. Order

For these reasons, the parents' motion to enforce stay put by requiring the private school to re-admit the student is denied. The private school’s motion to dismiss on the grounds that it is a private school is denied as moot in light of this decision.

The public school district stated in its due process response that it has taken steps to secure services/placement. The public school district must continue to take all necessary steps to ensure the student receives FAPE, given that the student's last agreed-upon placement is unavailable, including convening a team meeting and offering services that provide the student with FAPE within 10 days of this order.

The team meeting shall include a discussion of whether compensatory education services are necessary.

If the parents and the school district do not agree on services, placement, or compensatory services, either party can request due process on those issues. This decision resolves the expedited due process request, and a new due process request must be filed to address services, placement, compensatory services, or other issues.

So ordered.

3/23/26

___ __/s/__ Scott F Johnson______________ Date

Scott F. Johnson

Appeal and Post-Hearing Enforcement

Any party aggrieved by this may appeal as noted in Ed 1123.20, Ed 1123.25, and 34 CFR § 300.514.

This due process decision shall be implemented by the school district and monitored and enforced by the Department of Education pursuant to Ed 1123.22 and Ed 1125.

Footnotes

[1] The statement that the parents may be able to prove sufficient information was provided to the school with a full evidentiary hearing here and below in section b of this decision should not be read as a signal or statement suggesting that they will be able to do so when private school staff state the information provided is not sufficient. The issue involves medical information, and the hearing officer would have to decide the issue based on the evidence provided by witnesses. Without deciding the issue here, it would seem that there would not be an objective basis or standard to use to determine how much information is sufficient, so it would be a matter of assessing witnesses' opinions about the issue. Along those lines, assuming there were conflicting witness testimony on the issue, it would seem that some deference may need to be given to the school staff’s statements regarding whether the medical information provided was sufficient/whether they can perform the services/procedures, since they are the ones performing the services/procedures, but those issues should be decided during a full evidentiary hearing.

New Hampshire Due Process Decision

I. Introduction

II. Facts

V. Order