NH Changes Law Regarding Burden of Proof in Special Education Due Process Hearings

New Hampshire has revised the state’s process for resolving disputes between the families of children with educational disabilities and public school districts.

Parents who cannot reach an agreement with their children’s school about providing special education for their child, including pandemic-related compensatory education, can request a hearing, called a “due process hearing,” where they can ask an impartial hearing officer to order the school to provide their children with a free appropriate public education (FAPE).

Governor Sununu recently signed HB 581 into law shifting the burden of proof in special education due process hearings from the initiating party (usually the parent) to the school district. Prior to this law, the parent of a student with a disability who requested a due process hearing had to prove that the school district failed, or its proposal failed, to address the student’s individual needs adequately. With this change in the law, it is now the school district that must prove that the child’s current, or proposed, placement or program is appropriate.

Note that there are deadlines for filing a due process complaint – in general, a due process complaint must be filed within two years of the date that the parents knew or reasonably should have known about the problem complained about.

Parents of students with disabilities are often unaware of their legal rights or how to effectively advocate for their children in due process hearings. A school district’s knowledge of special education law is typically more sophisticated than a parent’s, and it will have ready access to the expertise of educators and related service providers when the time comes to defend its decisions.  These factors give schools a significant advantage in special education disputes.  By shifting the burden of proof to school districts, the legislature has taken an important step toward levelling the playing field.

If you have concerns about a child’s access to special education services, including questions about filing a complaint, you can contact us to speak with an attorney free of charge.


Disability Rights Center – New Hampshire is a statewide non-profit organization dedicated to eliminating barriers for people with disabilities across New Hampshire. DRC is the federally designated protection and advocacy agency for New Hampshire and has authority under federal law to conduct investigations in cases of probable abuse or neglect.

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