To: Representative Ralph Boehm

To: Representative Ralph Boehm Representative Joseph Pitre Representative Barbara Shaw Representative Kathleen Rago

From: Chris Hamilton

Date: 9/12/11

Dear House Education Committee study committee members,

After your meeting on 9/6/11, Abbey Lawrence, Michael Faiella, and I expressed concern about removing the DOE’s rule-making authority for the home education law. We believe that in the absence of clarifying rules, districts would need to create policies to guide administrators’ actions where the law was unclear or silent. I expressed the concern that districts would not have the expertise to create policies that work as well as the current rules, Abbey expressed concern that there would be a patchwork of different policies, and Michael expressed concern that protections for homeschoolers found in the current rules would be eliminated. Representative Rago requested that we three produce a list of items in the rules that might be added to the law to preserve those protections. That request was later expanded to include “flaws” in the current law, something that Representative Pitre had wanted.

I have already provided you with a list of problems we have seen with the law, problems that are due to internal inconsistencies, silence on legislative intent, or unworkability. Because we have had only one week to do everything that was asked of us, I am still not sure that list is complete, but I am fairly confident it contains the most pressing problems. One problem I would like to add to the list is that the NHSBA representative to the council is not sure that home education records are protected by FERPA, and I am not sure they are protected from Right-to- Know information requests.

Here is a document that contains each piece of RSA 193-A, the sections of Ed 315 that clarify that section of the law, and an explanation of how the rule benefits homeschoolers (and sometimes other parties, including yourselves). I apologize that it is long. If I had more time, I would try to summarize what I thought were the most important points. However, what seems important to a homeschooler is probably the particular protection they are relying on at that moment, so others might not agree with me.

The current rules are out-of-date. There would not appear to be any advantage to recommending the legislature incorporate out-of-date rules into the law. The council has made its recommendations to the commissioner and board of education for changes it believes need to be made to bring the rules up-to-date. When creating this document, I have relied on the council’s recommendations. The department will not be making any changes beyond what the council recommends in the Initial Proposal it puts forward. Over the summer, I did find a few minor

problems that I will ask the council to fix at tomorrow’s meeting, before the proposal enters the formal rule-making process, which I expect will happen at the BOE’s October meeting.

For your convenience, the council’s recommendations are included in an appendix at the end of this document. Many thanks to Mary Mayo in the office of legislation and hearings at the DOE for making the proposal conform to rule-making format, so we all could read it easily.

Thank you for the opportunity to work on improving the home education law for homeschoolers.

Sincerely, Chris Hamilton 84 Mason Rd Brookline, NH 03033 (603) 673-0189 [email protected]

TITLE XV EDUCATION CHAPTER 193-A HOME EDUCATION

Section 193-A:1

193-A:1 Definitions. – In this chapter: I. "Child'' means a child or children at least 6 years of age and under 18 years of age who is a resident of New Hampshire. II. "Nonpublic school'' means a nonpublic school approved pursuant to rules adopted by the state board of education and administered by the department of education and which has agreed to administer the relevant provisions of this chapter. III. "Parent'' means a parent, guardian, or person having legal custody of a child. IV. "Resident district'' means the school district in which the child resides.

Ed 315.02 (a) “Certificate means a letter signed by a parent of a home schooled child as defined below in Ed 315.02(b) that meets the requirements of 193:1, I(e) (2).

This definition is used in Ed 315.18. Legislative intent in SB18 regarding the meaning of certificate was not clear. When creating this definition, the council relied on conversations it had with department personnel and a representative from the governor’s office where a proposal was floated to allow the parent to submit “a letter certifying that the child had finished high school.”

Ed 315.02 (d) “Composite results,” as referred to in RSA 193-A:6, II (b), means one score that is provided by the publisher of the standardized test, or the average of all such scores that have been provided by the publisher of the standardized test.

This definition was introduced in 2005 because the term was not as well understood as it was in 1990 when the law was created. Some well-recognized test publishers had even stopped providing composite scores. This definition provides a way for parents to continue using those tests by averaging the subscores. Ed 315.02 (f) “Educational progress” means growth in learning commensurate with age and ability within the child’s individual home education program chosen by the parent.

This definition originally specified that the program was as described in Ed 315.04, which itself originally specified what must bePage included 3 when describing the curriculum as part of the notification process. HB406 repealed the requirement that the parent provide a description of the curriculum. However, this definition in the rules preserves and clarifies the intent of the law, both before and after the passage of HB406, that the curriculum against which the child is to be measured in the year-end evaluation is a curriculum of the parent’s choosing. Ed 315.02 (i) “Participating agency” means the resident district superintendent, the commissioner, or a nonpublic school principal.

This definition greatly simplified the text of the rules.

Ed 315.02 (k) “Teacher” means a teacher who holds N.H. certification, is certified in another state which is a party to the interstate compact, or is currently teaching in a nonpublic school,

The law (193-A:6, II (a)) gives the parent the right to select any “certified teacher or a teacher currently teaching in a nonpublic school” to perform the year-end portfolio evaluation. The rules clarify that certification need not be in NH. This allows a parent to have the evaluation done by a teacher employed by a distance learning program in another state, and allows parents in border towns to select teachers in the neighboring state. The requirement that the state in which the teacher holds certification has a reciprocal agreement for teacher certification protects the state’s interest in ensuring the competency of the evaluator. The definition of nonpublic school (above, already in the law) ensures that the employer of a nonpublic school teacher undergoes the NH nonpublic school approval process.

Ed 315.03 Eligibility. A parent shall be eligible under these rules to establish a home education program for a child at least 6 and under 18 years of age including those defined under RSA 186-C:2, I, and I-a.

Prior to the existence of this law, the programs of home educated students identified as having special needs were administered by the department under special rules. This rule clarified that those programs were now to be administered in the same way as other children’s. It was very important at that time, and is probably less so now.

Source. 1990, 279:3. 2007, 242:4, eff. July 1, 2009.

Section 193-A:2

193-A:2 Program Established. – There is established the home education program to be administered by the department of education.

Source. 1990, 279:3, eff. July 1, 1991.

Section 193-A:3

193-A:3 Rulemaking. – The state board of education shall adopt rules, pursuant to RSA 541- A, relative to administering the home education program.

Source. 1990, 279:3, eff. July 1, 1991.

Section 193-A:4

193-A:4 Home Education; Defined. – I. Instruction shall be deemed home education if it consists of instruction in science, mathematics, language, government, history, health, reading, writing, spelling, the history of the constitutions of New Hampshire and the United States, and an exposure to and appreciation of art and music. Home education shall be provided by a parent for his own child, unless the provider is as otherwise agreed upon by the appropriate parties named in paragraph II. II. The department of education, resident district superintendent, or a nonpublic school shall work with parents upon request in meeting the requirements of this section.

Ed 315.04 (a) Pursuant to RSA 193:1, home education shall be an alternative to compulsory attendance at a public school. Dates and hours of instruction shall not be required to coincide with the resident district calendar.

While it may seem odd to specify what may not be required, it turns out that prohibitions in the rules have helped eliminate many conflicts between parents and districts. Turnover in SAU offices is quite high (~20%/year), and personnel new to homeschooling may have preconceived notions about what is or ought to be required, based on their previous experience administering public school programs or home education laws and rules in other states. Source. 1990, 279:3. 2006, 13:1, eff. May 12, 2006.

Section 193-A:5

193-A:5 Notification and Other Procedural Requirements. – A parent may provide home education to a child or children at home, subject to the following requirements: I. (a) Any parent commencing a home education program for a child, for a child who withdraws from a public school, or for a child who moves into a school district shall notify the commissioner of the department of education, resident district superintendent, or principal of a nonpublic school of such within 5 business days of commencing the program. (b) A parent planning to continue a home education program shall notify the commissioner of education, resident district superintendent, or principal of a nonpublic school by the first school day according to the school calendar in the child's resident school district.

II. Notification made by the parent pursuant to paragraph I shall include a list of the names, addresses, and birth dates of all children who are participating in the home education program.

Ed 315.04 (b) A parent commencing a home education program shall notify the participating agency of such within 5 business days of commencing the program. A parent continuing a home education program shall notify the participating agency of such by the first school day according to the school calendar in the child’s resident district. Only the information below shall be required in the notification: (1) The date on which the program will begin or has begun;

(2) The name and full address, including street and town, of the child;

(3) The child's date of birth;

(4) The name and address of the parent(s); and

(5) A phone number at which the parent(s) may be reached during normal business hours.

In keeping with the exercise of a fundamental right, this list contains only those items needed to administer the law. It should be noted that the rules did introduce an additional requirement to provide “a phone number at which the parent(s) may be reached during normal business hours.” One might argue that it exceeds the letter of the law, but it is in the spirit of the law, and contacting a parent by phone can greatly simplify the process of parents and districts dealing with an incomplete notification or evaluation.

Ed 315.04 (c) A participating agency or school district shall not require information in addition to the information required under (b) above.

Again, it may seem odd to restate the obvious, but since 2005 when statements like this were added to the rules, there have been fewer incidents of districts requesting/requiring things of parents that are not on this list

Ed 315.04 (d) The participating agency shall not require notification of method or date of evaluation at this time. However, if the parent intends to use the state or local assessment provided by the resident district, the parent shall inform the resident district of his or her intent to do so at the time the information above is provided to the participating agency.

Letting the district know in advance that the child will be using a test provided by the district allows the district to better estimate the number of tests to order, and allows the district to have enough tests on hand to accommodate all students who need one.

Ed 315.04 (e) The parent of a child currently enrolled in a public school in the resident district shall advise the resident district superintendent of the child’s withdrawal from attendance in public school on or before the date the home education program shall begin and shall follow all notification procedures set forth in this section.

This requirement for the parent to tell the superintendent when withdrawing the child to homeschool allows the superintendent to ensure that the child is not truant, and more importantly that the district no longer has the responsibility for the child’s safety during the school day. It is possible that districts have policies regarding withdrawal from public schools that address this. This rule exists because the notification can be sent up to 5 days after the child stops attending school, and because notification is not always sent to the resident district superintendent. There has been discussion on the council as to whether this goes beyond the law. There appears to be no requirement in any law for parents withdrawing their children from public school to tell the district. Practice is for nonpublic schools to request the records of the student when s/he enrolls, so the district de facto gets notice when a child is withdrawn from public school to attend a nonpublic school. There also appears to be no requirement in any law or rules for a parent withdrawing a child from a nonpublic school to tell anyone in the district.

III. Written notice of termination of a home education program shall be filed by the parent with the commissioner of education, and, in addition, the resident district superintendent or nonpublic school principal within 15 days of said termination.

Ed 315.04 (h) A parent wishing to voluntarily terminate an established home education program shall notify the commissioner and the participating agency in writing within 15 business days of satisfying any one of the alternatives for compulsory attendance listed in RSA 193:1 such as enrollment in a public or nonpublic school.

This clarifies whether the 15 days are business days or calendar days. It also emphasizes that when the program ends, the parent must choose another method of meeting the requirements of the compulsory attendance law.

Ed 315.04 (f) A home education program established in accordance with this section shall remain in effect until August 1 of each year unless terminated in accordance with (h) below or Ed 315.17.

When the law was created, parents were required to submit notification by August 1. This was to allow time before the start of school for resolution of any disputes between parents and districts over descriptions of curriculum, which was required at that time. Some districts interpreted that requirement as a prohibition against a parentEd 315.05 beginning is also abased program on RSA mid-year, 193-A:4, which II. Thewas abovenot the section intent ofof thethe law.law Thealso makes Augustreference 1 deadline to the situation was removed where fromthere the is a law dispute in 1996, over with whether assurances or not bythe the notification departmentmeets the requirements that the August of the 1 expirationlaw. date of programs would remain in the rules, making it clear that annual notification was still required. Ed 315.05 Duties of Participating Agencies and Parents.

Ed 315.04(a) A(g) resident The following district superintendentshall apply to transfer on receipt of home of a notification education programs: as described in Ed 315.04 (b),(d) and (f) shall comply with paragraph (e), below. The resident district superintendent(1) Ifshall the assist child themoves parent and making the parent such wishes notification to continue in complying a program with which RSA 193-A:6. No feewas shall established be collected with for the this former service. resident district superintendent as the participating agency and selects the new resident district (b) The commissionersuperintendent on as receipt the new of a participatingnotification as agency, described the in parent Ed 315.04 shall (b), so (d) and (f)shallinform comply both with superintendents paragraph (e), inbelow. writing; The commissioner shall assist the parent making(2) Insuch any notification other case, in bothcomplying the participating with RSA 193-A:6. agency No with fee which shall thebe collected for thisprogram service. was established and the new participating agency shall be informed in writing by the parent; and (c) Participation(3) In either (1)in homeor (2) educationabove, upon programs notification shall in be writing optional by thefor parentnonpublic of a schools. A nonpublicchange school in participating principal whoagencies, agrees the to formerparticipate participating in an individual agency home shall education programtransfer shall,Ed all on315.05 receipt pertinent (d) ofResident a records notification district for assuperintendents the described current in year Ed or 315.04nonpublic to the (b),(d) newschool principals as and (f), complyparticipating with paragraphparticipating agency. (e), agenciesbelow. The shall nonpublic maintain schoola list of principal all home shall education assist programs for which the parent making suchthey notification have received in complying notification. with This RSA list 193-A:6. shall contain The nonpublicthe name, date of birth and schoolThe ability may to charge “transfer” a feeaddress forprograms this of service. each when child a child Pagefor whom moved8 a tohome a new education district programor when ais established. On October parent wished to select1 a of new each participating year, the participating agency mid-year agency was shall created notify tothe make commissioner life of the number Thesesimpler paragraphs for all parties. clarifyof children that a nonpublic for whom school programs may wererefuse established. to act as participating agency, and that it may make participation contingent on a fee. They also clarify that the opposite is true forThis resident paragraph district requires superintendents participating and the agencies commissioner to provide of the department with the education. information it needs to publish annual home education enrollments. Source. 1990, 279:3. 1996, 222:1. 2006, 13:2, 3, eff. May 12, 2006. 2008, 344:1, eff. July 7, 2008.

Section 193-A:6

193-A:6 Records; Evaluation. – I. The parent shall maintain a portfolio of records and materials relative to the home education program. The portfolio shall consist of a log which designates by title the reading materials used, and also samples of writings, worksheets, workbooks, or creative materials used or developed by the child. Such portfolio shall be preserved by the parent for 2 years from the date of the ending of the instruction.

Ed 315.06 (b) The portfolio shall be the property of the parent. Access to the portfolio shall be at the parent’s discretion, except as provided in RSA 193-A:6, II(a).

This provides privacy protection for the parent.

Ed 315.06 (c) Participating agencies shall maintain documents concerning home education programs in a manner consistent with other educational records.

This paragraph clarifies that the records of the home education program are to be treated with the same level of privacy and accuracy protections as other education records. Based on research I did in 2009, there does not appear to be any other place in law or rules that provides this protection. In fact, it may be that districts have the right, but not the obligation, to decline Right-to-Know requests for home education records.

II. The parent shall provide for an annual educational evaluation in which is documented the child's demonstration of educational progress at a level commensurate with the child's age and ability. The child shall be deemed to have successfully completed his annual evaluation upon meeting the requirements of any one of the following: (a) A certified teacher or a teacher currently teaching in a nonpublic school who is selected by the parent shall evaluate the child's educational progress upon review of the portfolio and discussion with the parent or child. The teacher shall submit a written evaluation to the commissioner of education, resident district superintendent, or nonpublic school principal; (b) The child shall take any national student achievement test, administered by a person who meets the qualifications established by the provider or publisher of the test. Composite results at or above the fortieth percentile on such tests shall be deemed reasonable academic proficiency. Such test results shall be reported to the commissioner of education, resident district superintendent, or nonpublic school principal; (c) The child shall take a state student assessment test used by the resident district. Composite results at or above the fortieth percentile on such state test shall be deemed reasonable academic proficiency. Such test results shall be reported to the commissioner of education, the resident district superintendent, or nonpublic school principal; or (d) The child shall be evaluated using any other valid measurement tool mutually agreed upon by the parent and the commissioner of education, resident district superintendent, or nonpublic school principal. The results shall be reported by the parent or the testing agency to such appropriate official.

Ed 315.07 (a) The parent shall provide for an annual evaluation for a child. The parent’s signature shall authorize the use of an evaluation in meeting the requirements of RSA 193-A:6, II and this section. No evaluation shall be used by the participating agency as an annual evaluation unless signed by the parent.

This paragraph ensures that the only evaluation the district is using to decide whether the program should go on probation (or if already in probation, should be allowed to continue) is the one the parent submits. There are two times when this has been particularly important. One is when students take the SAT’s at the resident district school, and the results end up going to the school. (There now is a code for homeschooled students to enter on the form, but some homeschoolers don’t know about it.) Then the district has in its possession the results of a test that could be used as an evaluation, but was not intended to be such. The other is when there is confusion over custody rights, and the parent who does not have the authority to make education decisions for the child, and who did not file the notification, attempts to submit evaluation results.

Ed 315.07 (b) The parent may choose a teacher who agrees to perform evaluation services, or the parent may request the evaluation to be performed through the resident district superintendent when the resident district superintendent is acting as the participating agency. The resident district superintendent, when acting as the participating agency, shall provide evaluation services, upon request of the parent. If the resident district superintendent is not acting as the participating agency, the resident district superintendent shall provide evaluation services at the resident district superintendent’s discretion. No fee shall be required when evaluation services are performed by a resident district.

This paragraph establishes that the only time the resident district is required to provide a portfolio evaluation or administer a standardized test for the parent (as opposed to the parent hiring a teacher or test provider him/herself) is when the superintendent is the participating agency. The district may not charge a fee for providing the services, even though it may be required to pay the teacher for performing the evaluation, or pay the test provider for a copy of the test.

EdEd 315.07 315.07 (c) The written evaluation shall include the following:

(1) The name and address of the teacher, including state recognized documentation of certification or the name and address of the nonpublic school in which the teacher is currently teaching;

(2) The date(s) on which the evaluation(s) took place;

(3) A description of the work reviewed including quantitative data if available;

(4) A summary of the child’s educational progress in the home education program as presented in the notification, concluding with a statement that the child has or has not made educational progress; and

(5) The signatures of the teacher and the parent

The important parts here are:  The teacher must provide documentation of his/her qualifications to perform the evaluation.  The evaluation date would show that the evaluation was of the current year’s work.  The description of the work reviewed allows the participating agency assurance that the evaluation actually took place, and demonstrates a basis for the teacher’s conclusions.  The summary of progress assures the participating agency that the requirement to document progress is met.  The signatures of the parent and teacher ensure that it is their intent to submit this as the evaluation.

When this paragraph was created, there was considerable controversy over items (3) and (4). Homeschooling parents were not happy that legislators agreed with the department that the evaluation report should contain a description of the work reviewed and a summary of progress. The council has preserved what it believes was legislative intent.

Ed 315.07 (d) A copy of the evaluation may be retained by the teacher.

This clarifies that, even though the evaluation belongs to the parent, and as a part of the child’s educational records access to it is restricted, the author of the evaluation can protect his/her interests by keeping a copy.

Ed 315.07 (e) The parent may choose a standardized test which may be a nationally recognized test, a state assessment instrument, or a test used in the child’s resident district. The parent shall report the results of the test to the participating agency and shall include the name of the test and the name and address of the test administrator. A composite result at or above the 40th percentile on such tests shall be deemed reasonable academic proficiency.

This clarifies that a standardized test that is “nationally recognized” meets the requirements for 193-A:6, II (b). In practice, this has come to mean tests which are nationally normed. This also clarifies that if the resident district uses a particular test to evaluate its own students, the homeschooling parent has the right to use that test as well, even if it does not meet the other criteria for RSA 193-A:6, II (b). This is important to parents who use free evaluation services provided by the district (see Ed 315.07(b)).

Ed 315.07 (f) The parent may choose any other valid measurement tool mutually agreed upon by the parent and the participating agency provided that:

(1) The agreement shall be made in writing and signed by the parent and the participating agency; and

(2) A valid measurement tool as provided for in RSA 193-A:6, II(d), may include but shall not be limited to the following:

a. Interview;

b. Educational progress in a particular curriculum as measured by the parent;

c. Educational progress in a particular curriculum as measured by the provider;

d. Review of the child’s portfolio by a participating agency;

e. Evaluation by a teacher in a program recognized by any state department of education; or

f. Specially prepared tests or evaluations measuring educational progress in a particular subject or curriculum.

This clarifies that the parent is not bound to use, nor is the participating agency bound to accept, any other form of evaluation unless the agreement is in writing, and is signed.

The list provided is not meant to be exclusive, it merely reflects common methods of evaluation used prior to the existence of the law. There has been discussion of eliminating the list from the rules, which was opposed by homeschooling parents, as it shows precedence for use of those particular methods. There has also been discussion of updating the list to include additional methods used today.

Ed 315.07 (h) If the evaluation has not been received by the participating agency on or before July 1, the participating agency shall notify the parent in writing that, unless the evaluation is received by July 15, the program shall be placed on probation for the following year in accordance with Ed 315.09.

This paragraph establishes that failure to send in any evaluation is also a condition under which a program achieves probationary status. It requires the participating agency to give the parent notice that the evaluation is late, and to do it in writing. Many times when the evaluation is “late”, it is because the family no longer lives at that address, in that district, or even in the state, and has chosen not to notify the participating agency that it is terminating the program. Once the participating agency knows that it is no longer administering the program, it need take no further action.

Ed 315.08 (f) If no evaluation has been received by the participating agency by July 15, the participating agency shall comply with Ed 315.09 unless:

(1) The participating agency receives, by July 15, an explanation in writing from the parent that the evaluation has been performed, there is a delay in the transmission of evaluation results, and the results will be transmitted to the department as soon as they are available; or

(2) The parent and the participating agency reach an agreement in writing explaining how the parent will arrange for an evaluation that meets the requirements of RSA 193-A:6 and Ed 315.07(a)-(f) that will be completed by August 15, with its results transmitted to the department as soon as they are available.

Ed 315.08 (f)(1) and (2) are an attempt to lessen the need to put programs on probation merely because the evaluation was late, unless the tardiness is egregious. The most common reason for programs having probationary status appeared to be late evaluations (this is anecdotal - no formal statistics have been gathered). Many times it was the parent’s intent to provide a timely evaluation, but “life got in the way.”

When a participating agency sends out a letter to parents in April, reminding them that a evaluation is due July 1, this appears to decrease the number of late evaluations. This practice has been adopted by many participating agencies, and home education organizations also strive to include a timely reminder when communicating with their members.

III. The commissioner of education, resident district superintendent, or nonpublic school principal shall review the results of the annual educational evaluation of the child in a home education program as provided in paragraph II.

Ed 315.08 Review of Evaluation Results.

(a) The participating agency shall review the evaluation to establish that:

(1) The evaluation meets the requirements of Ed 315.07(a)-(h); and

(2) The results state that educational progress has or has not been demonstrated.

(d) If educational progress has been demonstrated the participating agency shall so notify the parent in writing within 21 calendar days. A program which has been placed on probation pursuant to Ed 315.09 shall be released from probation.

Please note that there will be a request of the council to recommend that this paragraph refer to Ed 315.07 (a)-(f).

This clarifies that the participating agency will acknowledge, in writing, receipt of an evaluation, and also its sufficiency. Homeschoolers felt strongly that it was important for there to be a written reply from the participating agency whenever important documents required from the parent were received. This letter, like the letter acknowledging receipt of the notification letter, is proof that the parent has complied with the law.

RSA 193-A:6, III, continued If the child does not demonstrate educational progress for age and ability at a level commensurate with his ability, the commissioner, superintendent, or principal shall notify the parent, in writing, that such progress has not been achieved.

Ed 315.08 (b) If any of the requirements of Ed 315.07 (a) - (f) are not met by the evaluation, the participating agency shall return by certified mail with return receipt the evaluation to the parent within 10 business days along with a letter describing the information required to comply with the Ed 315.07 (a)-(h).

Please note that there will be a request of the council to recommend that this paragraph refer to Ed 315.07 (a)-(f) in both places in this paragraph.

This paragraph clarifies that the participating agency is obliged to use certified mail, a more reliable method of delivery than first class mail, to notify the parent of this important finding. It also sets a deadline for sending this information, and includes a requirement that the participating agency explain how the parent can remedy any problems.

Many times the evaluation is simply missing a required item, which the parent can easily remedy and resubmit the evaluation. This requirement can sometimes be circumvented by a phone call to the parent, if the parent chooses to respond to the participating agency’s concerns promptly (which is possible because the parent is required to provide a phone number in the notification).

RSA 193-A:6, III, continued The parent shall have one year from the date of receipt of the written notification to provide remedial instruction to the child. At the end of the one-year probationary period, the child shall be reevaluated in a manner as provided in this section. Continuation in a home education program shall be contingent upon the child demonstrating at the end of the probationary period educational progress commensurate with his age and ability.

Ed 315.09 Probation.

(a) If pursuant to Ed 315.07 educational progress has not been demonstrated, the participating agency shall so notify the parent in writing.

(b) The participating agency shall state the reasons for which the program has been placed on probation in accordance with RSA 193-A:6, III. It shall also state what conditions, if any, shall be met to release the program from probation in less than a year.

(c) The parent may choose to comply with the conditions for release of the program from probation. If these conditions are met, the program shall be released from probation.

(d) If the parent chooses not to comply or the conditions for release of the program for probation are not met, the probational status shall continue.

Theses paragraphs require the participating agency to provide information about how the parent can have the program removed from probationary status. Prior to the introduction of Ed 315.08 (f)(1) and (2) (described in comments above), this was most frequently used to tell the parent that the evaluation was overdue. The intent of requiring the participating agency to explain conditions for early release was to keep the duration of probationary status as short as possible.

RSA 193-A:6, III, continued At the end of the one-year probationary period, the child shall be reevaluated in a manner as provided in this section. Continuation in a home education program shall be contingent upon the child demonstrating at the end of the probationary period educational progress commensurate with his age and ability.

Ed 315.08 Review of Evaluation Results. (d) If educational progress has been demonstrated the participating agency shall so notify the parent in writing within 21 calendar days. A program which has been placed on probation pursuant to Ed 315.09 shall be released from probation.

This rule (Ed 315.08) is set up as an ordered series of steps or a checklist for a participating agency. Very often, the person in an SAU who is checking for compliance is not the superintendent, but an office worker to whom s/he has delegated that task. This paragraph at this place in the sequence contains a clear reminder to someone not familiar with home education law that if a program was on probation because of the previous year’s failure to document needed progress, to take the program off probationary status.

(e) The parent shall provide for the annual evaluation pursuant to Ed 315.07 while the program is under probation. After the parent has provided such evaluation, and if educational progress has been demonstrated, the participating agency shall so notify the parent in writing within 21 calendar days. A program which had been placed on probation pursuant to Ed 315.09 shall be released from probation.

This paragraph clarifies that the participating agency shall notify the parent in writing when the program is released from probation. It also sets a deadline of 21 calendar days.

RSA 193-A:6, III, continued The parent of a child who fails to demonstrate such progress at the end of the probationary period shall be notified by the commissioner that the parent is entitled to a hearing as provided in RSA 193-A:7, I and II and that the program will be terminated absent a finding for continuation pursuant to such hearing.

Ed 315.09 Probation. (f) If the evaluation does not meet the requirements of Ed 315.07and those outlined in RSA 193-A:6, the participating agency shall notify the commissioner, and the commissioner shall notify the parent(s) of the right to a hearing, pursuant to Ed 315.17 and RSA 193-A:7, or a grievance conference unless the home education program is voluntarily terminated by the parent pursuant to Ed 315.04(g).

NOTE: There will be a request that the council recommend that this paragraph specify that the commissioner do this in writing, sent by certified mail.

This paragraph establishes that the commissioner shall notify the parent of his/her right to a grievance conference, as well as a due process hearing, and do so in writing. The council has recently recommended this paragraph be made consistent with the requirement in law that the commissioner notify the parent of his/her rights. Prior to that, the rules required the commissioner to automatically schedule a due process hearing.

(g) If no evaluation has taken place by July 15 of the probationary year, the participating agency shall notify the commissioner, and the commissioner shall schedule a hearing pursuant to Ed 315.17 and RSA 193-A:7, unless the home education is voluntarily terminated by the parent pursuant to Ed 315.04(g). The program shall be terminated if the child has not demonstrated educational progress based on age and ability as provided in RSA 193-A:6, III.

NOTE: There will be a request that the council recommend that this paragraph be made consistent with the requirement in law that the commissioner notify the parent of his/her right to a due process hearing or a grievance conference, rather than automatically schedule a due process hearing. There will also be a request to specify that the commissioner do this in writing, sent by certified mail.

RSA 193-A:6, III, continued Upon a finding that the program should be terminated, the child shall be reported by the commissioner or nonpublic school principal to the appropriate resident district superintendent, who shall, if necessary, take appropriate action to ensure that compulsory attendance requirements are met.

There does not appear to be anything in the rules that clarifies this sentence.

(d) Pursuant to RSA 193-A:7, I, notice of such hearing shall be provided within 10 days of the request for such hearing, shall include a brief summary of the material facts, and shall be sent to each parent and each instructor of the child known to the commissioner at the time by certified mail. The hearing shall occur within 30 days of the date of such notice. Upon request, the hearing officer shall conduct the hearing at a location near the site of the home education program.

RSA 193-A:4, I makes provision for the parents and participating agency to agree that instruction is to be provided to the child by someone other than the parents. This paragraph re-iterates that, even though the child’s instructor/s is/are not a party in the dispute, the law requires that they be notified about the dispute. This paragraph also clarifies that notice is to be given in writing by certified mail.

(h) In accordance with RSA 193 A:7, for an order of termination to be issued, the participating agency shall have the burden of proof that the parent or the home education program has failed to comply with the requirements of RSA 193-A:5, II or has substantially failed to provide the child with the minimum course of study as required by RSA 193-A:4, I.

In keeping with court opinions that the right of the parent to provide home education is a fundamental right, the rules clarify that if the program is to be terminated against the wishes of the parent, the state has the burden of proof to show that the parent is not meeting the obligations imposed on him/her by law and rules.

(i) The hearing officer shall enter an order within 10 calendar days pursuant to RSA 193-A:8. The decision of the hearing officer shall list the pertinent facts found by the hearing officer. The decision shall take effect immediately unless, pursuant to RSA 193-A:8, an appeal is made to a court of competent jurisdiction within 30 days of when the order is entered, at which time, the home education program shall continue pending appeal. A copy of the decision shall be mailed by certified mail, return receipt requested, to all parties named in the order of notice.

This paragraph clarifies that the 30-day window for appeal begins when the order is entered, which could be up to 10 days after a decision has been reached by the hearing officer.

Source. 1990, 279:3. 2006, 13:4, eff. May 12, 2006.

Section 193-A:7

193-A:7 Hearing, Notice, and Procedure. – I. A parent shall be entitled to a due process hearing which shall be conducted by an impartial hearing officer appointed by the commissioner of education.

NOTE: It would be wise to check with the office of legislative services on this, but it is likely that without this portion of the rules, the hearing officer would rely on Ed 200 to conduct the hearing, and each hearing officer would have to figure out as the hearing progressed in what ways the home education law conflicted with or was not addressed by Ed 200. It should also be noted that during the 20+ years that RSA 193- A has existed, there has never been a home education program terminated through a due process hearing, so these rules have not been fully vetted by practice.

Ed 315.17 Due Process Hearing Procedure.

(a) A party requesting a due process hearing shall notify in writing the office of legislation and hearings. The office of legislation and hearings shall schedule a due process hearing with an impartial hearing officer in accordance with RSA 193-A:7.

(b) All communication with the department of education’s office of legislation and hearings shall be in writing and mailed to the office at:

The New Hampshire Department of Education Office of Legislation and Hearings 101 Pleasant Street Concord, NH 03301

These paragraphs clarify that the responsibility for conducting due process hearings has been delegated by the commissioner to the office of legislation and hearings in the DOE. It allows parties to a hearing, and especially parents who are not familiar with the workings of the DOE, to know exactly how to route a request for a hearing and other communications so that it reaches the appropriate party within the department.

193-A:7, I, continued

Notice of such hearing shall be provided within 10 days of the request for such hearing, shall include a brief summary of the material facts, and shall be sent to each parent and each instructor of the child known to the commissioner. The hearing shall occur within 30 days of the date of such notice. Upon request, the hearing officer shall conduct the hearing at a location near the site of the home education program.

Ed 315.17

(c) The parties to the hearing shall include, at a minimum, the parent or parents, any student who is 18 years or older, and, the participating agency.

This paragraph clarifies that the parties include any student who was 17 when the dispute arose but who has since turned 18, and any student who is 18 and who, with his/her parents, has voluntarily participated in a home education program agreed to by the participating agency.

(d) Pursuant to RSA 193-A:7, I, notice of such hearing shall be provided within 10 days of the request for such hearing, shall include a brief summary of the material facts, and shall be sent to each parent and each instructor of the child known to the commissioner at the time by certified mail. The hearing shall occur within 30 days of the date of such notice. Upon request, the hearing officer shall conduct the hearing at a location near the site of the home education program.

RSA 193-A:4, I makes provision for the parents and participating agency to agree that instruction is to be provided to the child by someone other than the parents. This paragraph re-iterates that, even though the child’s instructor/s is/are not a party in the dispute, the law requires that they be notified about the dispute. This paragraph also clarifies that notice is to be given in writing by certified mail (which may also be a requirement in Ed 200).

II. In order to terminate a program, the hearing officer shall find at the hearing at least one of the following: (a) The parent has failed to comply with the requirements of this chapter; or (b) The parent or the home education program has substantially failed to or cannot provide a child with the minimum course of study as required by RSA 193-A:4, I.

Ed 315.17

(h) In accordance with RSA 193 A:7, for an order of termination to be issued, the participating agency shall have the burden of proof that the parent or the home education program has failed to comply with the requirements of RSA 193-A:5, II or has substantially failed to provide the child with the minimum course of study as required by RSA 193-A:4, I.

In keeping with court opinions that the right of the parent to provide home education is a fundamental right, the rules clarify that if the program is to be terminated against the wishes of the parent, the state has the burden of proof to show that the parent is not meeting the obligations imposed on him/her by law and rules.

Source. 1990, 279:3. 2006, 13:5, eff. May 12, 2006.

Section 193-A:8

193-A:8 Order; Appeals. – I. Subsequent to a hearing conducted in accordance with RSA 193-A:7, the hearing officer shall enter an order within 10 working days which shall order either the continuance or termination of the home education program under scrutiny. Such order shall take effect immediately. A copy shall be given to the appropriate superintendent of schools, who shall, if necessary, take appropriate action to ensure that compulsory attendance requirements are met. II. Following such order, the parent or the commissioner may appeal the decision of the hearing officer to a court of competent jurisdiction. Said notice of appeal shall be filed within 30 days of such decision by the hearing officer. Pending appeal, the home education program shall continue.

Ed 315.17

(i) The hearing officer shall enter an order within 10 calendar days pursuant to RSA 193-A:8. The decision of the hearing officer shall list the pertinent facts found by the hearing officer. The decision shall take effect immediately unless, pursuant to RSA 193- A:8, an appeal is made to a court of competent jurisdiction within 30 days of when the order is entered, at which time, the home education program shall continue pending appeal. A copy of the decision shall be mailed by certified mail, return receipt requested, to all parties named in the order of notice.

This paragraph clarifies that the order must be sent in writing by certified mail to all parties. It makes it clear that the 30-day window for appeal begins when the order is entered, which could be up to 10 days after a decision has been reached by the hearing officer.

NOTE: A section of the law which permits the commissioner to ask a hearing officer to rule on whether or not a parent is capable of providing home education as defined by RSA 193- A:4, I was repealed in 2006 by HB406. Therefore, the retention of the phrase “or cannot” in RSA 193-A:8, II (b) was probably a drafting error in HB406.

Source. 1990, 279:3. 2006, 13:6, eff. May 12, 2006.

Section 193-A:9

193-A:9 Liability Limited. – The resident school district, the board of such district, and any employees of the resident school district associated with a child who is receiving home education in accordance with this chapter, are not liable in damages in a civil action for any injury, death or loss to person or property allegedly sustained by that child, his parent, or any other person as a result of the child's receipt of home education, including but not limited to, any liability allegedly based on the failure of the child to receive a free appropriate or adequate public education.

Ed 315.18 Certificate of Completion (b) A letter that meets all the requirements of Ed 315.09 (a) shall be conclusive evidence of:

(1) Completion of the parent’s duty of compulsory attendance, as set forth in RSA 193:1; and,

(2) Acknowledgment of the responsibilities outlined in RSA 193-A:9.

This language was supplied by the department. Homeschoolers have had no objection to it, but I think what the department really means is “acknowledgment of the release from liability outlined in RSA 193-A:9.”

Source. 1990, 279:3, eff. July 1, 1991.

Section 193-A:10

193-A:10 Home Education Advisory Council. – I. There is established the home education advisory council which shall consist of the following members: (a) Two members of the house of representatives from the house education committee, appointed by the speaker of the house of representatives. (b) One member of the senate from the senate education committee, appointed by the president of the senate. (c) The following individuals who shall be appointed by the commissioner of the department of education from persons named as follows: (1) Six members nominated by home educator associations organized within New Hampshire. (2) Two members nominated by the commissioner of the department of education, or designee. (3) One member nominated by the New Hampshire School Administrators Association. (4) One member nominated by the New Hampshire School Boards Association. (5) One member nominated by the New Hampshire Association of School Principals. (6) One member nominated by the nonpublic school advisory council established by the state board of education pursuant to RSA 21-N:9, II(f). II. The duties of the council and the terms of office of the members appointed under subparagraph I(c) shall be prescribed in accordance with rules proposed by the commissioner of education and adopted by the state board of education pursuant to RSA 541-A. Legislative members of the council shall serve a term which is coterminous with their elected office. III. The chair of the council shall be elected by the council members from the home educator membership on the council appointed under subparagraph I(c). All vacancies on the council shall be filled in the same manner as that of the original appointment. IV. Legislative members of the council shall receive mileage at the legislative rate when attending to the duties of the council.

Source.Ed 1990, 315.10 279:3, The eff. Home July 1,Education 1990. 2008, Advisory 344:2, Council eff. July. 7, 2008.

(a) The home education advisory council shall carry out those duties assigned to it by the commissioner. The council shall work with home educators and representatives of private and public education to encourage an understanding of home education.

(b) Assigned areas of responsibility for the council shall include the following:

(1) Developing and maintaining effective communications between home educators and those public, and nonpublic schools and state and local agencies involved in home education;

(2) Recommending to the commissioner and state board of education desired changes in rules pertaining to home education;

(3) Establishing a grievance committee to hear grievances referred to it by the commissioner; and

(4) Providing an annual report to the state board on its activities.

Ed 315.10 through Ed 315.16 all pertain to the duties of the council. (See accompanying document.) Probably the most significant rules are Ed 315.14, 15, and 16, which pertain to grievance conferences. The law and rules about rule-making encourage agencies to create administrative paths for dispute resolution, so that there is an alternative to adjudication in a court of law. One of the benefits of using the council to do this is that council members are very familiar with home education law and practices. Even non-homeschooling council members have more exposure to home education than most hearing officers or judges.

However, the biggest benefit of having a council is the opportunity for all parties with a stake in home education to weigh in on issues, and to communicate to each other the concerns of their constituencies. Information flows from the constituencies to the council and back out again to the constituencies. Quite a bit of informal dispute resolution takes place because of other networks enabled and empowered by the council’s activities.

There is an inherent conflict between the function of sharing information openly and having a responsibility to make decisions. Information flows less freely when one is put in a position of needing to persuade others. The council has kept the atmosphere conducive to the free flow of information by minimizing the situations in which it, as a body, takes a position, and especially by not taking a position on legislative proposals. Page 29 TITLE XV EDUCATION CHAPTER 193 PUPILS School Attendance

Section 193:1

193:1 Duty of Parent; Compulsory Attendance by Pupil. – I. A parent of any child at least 6 years of age and under 18 years of age shall cause such child to attend the public school to which the child is assigned in the child's resident district. Such child shall attend full time when such school is in session unless: … (f) The pupil has successfully completed all requirements for graduation and the school district is prepared to issue a diploma or the pupil has successfully achieved the equivalent of a high school diploma by either: (1) Obtaining a GED certificate; or (2) Documenting the completion of a home school program at the high school level by submitting a certificate or letter to the department of education; …

Ed 315.18 Certificate of Completion

(a) The student meets the requirements for successful completion of a home school program for a child under 18 years of age when, pursuant to RSA 193:1, I(f)(2), the parent submits a letter to the department of education certifying that the child has completed the home school program at the high school level. The letter containing the statement above shall also include the following information: (1) Name and address of the child;

(2) Name and address of the parents;

(3) Date of completion of the home school program;

(4) A phone number at which the parent may be reached during normal business hours; and

(5) Signature of the parent Page 30

Consistent with the exercise of a fundamental right, this list is the bare minimum of items that is needed to implement legislative intent. Ed 315.18

(b) A letter that meets all the requirements of Ed 315.09 (a) shall be conclusive evidence of:

(c) The parent is responsible to maintain a record of proof of delivery of such certification.

Source. 1903, 13:1. 1911, 139:1. 1917, 52:1. 1919, 84:1. 1921, 85, III:1. PL 118:1. RL 137:1. 1949, 92:1. 1953, 223:1. RSA 193:1. 1985, 47:1. 1990, 279:1. 1994, 121:1. 1996, 157:1. 1997, 183:1. 1999, 17:42; 39:1. 2005, 257:15. 2007, 242:5, eff. July 1, 2009; 270:3, eff. June 29, 2007; 350:1, eff. June 30, 2009; 350:2, eff. July 1, 2009. 2008, 173:11, eff. July 1, 2009.

Appendix Proposed changes to Ed 315 Approved by the Home Education Advisory Council 6/14/11

PART Ed 315 PROCEDURES FOR THE OPERATION OF HOME EDUCATION PROGRAMS

Readopt Ed 315.01 effective 1-22-05 (Document #8262), to read as follows:

Ed 315.01 Statement of Purpose. The purpose of these rules is to provide standards applicable to home education programs. These rules take into account the fact that home education is an alternative to attendance at a public or private school and is an individualized form of instruction in accordance with chapter 279:2, laws of 1990.

Readopt with amendment Ed 315.02, effective 1-22-05 (Document #8262), to read as follows:

Ed 315.02 Definitions.

(a) “Certificate” means a letter signed by the parent of a home schooled child as defined below in Ed315.02(b) that meets the requirements of 193:1 I(e)(2) [(a)](b) “Child” means “child” as defined in RSA 193-A:1, I.

[(b)](c) “Commissioner” means commissioner of education.

[(c)] (d) “Composite results,” as referred to in RSA 193:A-6 II(b), means one score that is provided by the publisher of the standardized test, or the average of all such scores that have been provided by the publisher of the standardized test.

[(d) “Correspondence school” means a distance learning, web based, or other similar program of instruction.]

(e) “Department” means the New Hampshire department of education.

(f) “Educational progress” means growth in learning commensurate with age and ability within the child’s individual home education program [that is described in Ed 315.04] chosen by the parent.

(g) “Nonpublic school” means “nonpublic school” as defined in RSA 193-A:1, II.

(h) “Parent” means “parent” as defined in RSA 193-A:1, III.

(i) “Participating agency” means the resident district superintendent, the commissioner, or a nonpublic school principal.

(j) “Resident district” means “resident district” as defined in RSA 193-A:1, IV.

(k) “Teacher” means a teacher who holds N.H. certification, is certified in another state which is a party to the interstate contract, or is currently teaching in a nonpublic school.

Readopt Ed 315.03, effective 6-11-2010 (Document #9723), to read as follows:

Ed 315.03 Eligibility. A parent shall be eligible under these rules to establish a home education program for a child at least 6 and under 18 years of age including those defined under RSA 186-C:2, I, and I-a.

Ed 315.04 Notification.

(a) Pursuant to RSA 193:1, home education shall be an alternative to compulsory attendance at a public school. Dates and hours of instruction shall not be required to coincide with the resident district calendar. (b) [(a) A parent commencing a home education program shall notify in writing the participating agency with which the program shall be established by providing only the information listed below within 5 business days of commencing the home education program, provided that the commencement date of a continuing home education program shall be on or before the first day of school in the resident district.] A parent commencing a home education program shall notify the participating agency of such within 5 business days of commencing the program. A parent continuing a home education program shall notify the participating agency of such by the first school day according to the school calendar in the child’s resident district. Only the information below shall be required in the notification: (1) The date on which the program will begin or has begun;

(2) The name and full address, including street and town, of the child;

(3) The child's date of birth;

(4) The name and address of the parent(s); and

(5) A phone number at which the parent(s) may be reached during normal business hours.

(c)[(b)] A participating agency or school district shall not require information in addition to the information required under [(a)](b) above.

(d) [(c)] The participating agency shall not require notification of method or date of evaluation at this time. However, if the parent intends to use the state or local assessment provided by the resident district, the parent shall [notify] inform the resident district of his or her intent to do so at the time the information above is provided to the participating agency.

(e) (d) The parent of a child currently enrolled in a public school in the resident district shall advise the resident district superintendent of the child’s withdrawal from attendance in public school on or before the date the home education program shall begin and shall follow all notification procedures set forth in this section.

(f) [(e)] A home education program established in accordance with this section shall remain in effect until August 1 of each year unless terminated in accordance with [(g)](h) below or Ed 315.17. If a program is transferred because of a change in resident district for the child or by choice of the parent, the program shall continue until August 1 under the new participating agency.

(g) [(f)] The following shall apply to transfer of home education programs:

(1) If the child moves and the parent wishes to continue a program which was established with the former resident district superintendent as the participating agency and selects the new resident district superintendent as the new participating agency, the parent shall so inform both superintendents in writing;

(2) In any other case, both the participating agency with which the program was established and the new participating agency shall be informed in writing by the parent; and

(3) In either (1) or (2) above, upon notification in writing by the parent of a change in participating agencies, the former participating agency shall transfer all pertinent records for the current year to the new participating agency.

(h) [(g)] A parent wishing to voluntarily terminate an established home education program shall notify the commissioner and the participating agency in writing within 15 business days of satisfying any one of the alternatives for compulsory attendance listed in RSA 193:1 such as enrollment in a public or non-public school. [A parent wishing to voluntarily

terminate an established home education program shall notify in writing within 15 calendar days of termination the appropriate agencies as listed below:

(1) If a program was established with the resident district superintendent, the parent shall notify the resident district superintendent and the commissioner;

(2) If a program was established with the commissioner, the parent shall notify the commissioner and the resident district superintendent; and

(3) If a program was established with a nonpublic school principal, the parent shall notify the nonpublic school principal, the commissioner and the resident district superintendent.]

Ed 315.05 Duties of Participating Agencies and Parents.

(a) A resident district superintendent on receipt of a notification as described in Ed 315.04[(a),(c) and (e)] (b),(d) and (f) shall comply with paragraph (e), below. The resident district superintendent shall assist the parent making such notification in complying with RSA 193-A:6. No fee shall be collected for this service.

(b) The commissioner on receipt of a notification as described in Ed 315.04[(a),(c) and (e)] (b),(d) and (f)shall comply with paragraph (e), below. The commissioner shall assist the parent making such notification in complying with RSA 193-A:6. No fee shall be collected for this service.

(c) Participation in home education programs shall be optional for nonpublic schools. A nonpublic school principal who agrees to participate in an individual home education program shall, on receipt of a notification as described in Ed 315.04[(a),(c) and (e)] (b),(d) and (f), comply with paragraph (e), below. The nonpublic school principal shall assist the parent making such notification in complying with RSA 193-A:6. The nonpublic school may charge a fee for this service.

(d) Resident district superintendents or nonpublic school principals as participating agencies shall maintain a list of all home education programs for which they have received notification. This list shall contain the name, date of birth and address of each child for whom a home education program is established. On October 1 of each year, the participating agency shall notify the commissioner of the number of children for whom programs were established.

(e) Once the notification is filed, the following shall apply:

(1) The resident district superintendent, commissioner or nonpublic school principal shall review the notification for compliance with Ed 315.04[(a),(c) and (e)] (b),(d) and (f);

(2) If the notification complies with Ed 315.04[(a),(c) and (e)] (b),(d) and (f) the resident district superintendent, commissioner, or nonpublic school principal shall send a letter acknowledging the establishment of the home education program within [21]14 calendar days of receipt of such notification;

(3) If any of the requirements of Ed 315.04[(a),(c) and (e)] (b),(d) and (f) are not met by the notification, the resident district superintendent, commissioner, or nonpublic school principal shall return by certified mail with return receipt the notification to the parent within 5 business days along with a letter describing the information required to comply with Ed 315.04[(a),(c) and (e)] (b),(d) and (f);

(4) The parent shall have 10 calendar days from receipt of the returned letter to send an amended notification to the resident district superintendent, commissioner, or nonpublic school principal;

(5) If an amended notification meets the requirements of Ed 315.04[(a),(c) and (e)] (b),(d) and (f) the resident district superintendent, commissioner, or nonpublic school principal shall [immediately] send a letter within five (5) business days acknowledging that the notification now meets the requirements of RSA 193-A:5, II [the establishment of the home education program];

(6) If an amended notification does not meet the requirements of Ed 315.04[(a),(c) and (e)] (b),(d) and (f), the resident district superintendent, commissioner, or nonpublic school principal shall [immediately] send a letter within five (5) business days explaining the deficiencies;

(7) The resident district superintendent or nonpublic school principal shall forward a copy of the original notification, the amended notification, and the letter explaining the deficiencies to the commissioner;

(8) If the commissioner determines that the [amended] notification meets the requirements of [RSA 193-A:4, I and] RSA 193-A:5, II, the commissioner shall acknowledge such in writing within five (5) business days [the establishment of the home education program];

(9) If the commissioner determines that the amended notification does not meet the requirements of [RSA 193-A:4, I and ]RSA 193-A:5, II, the commissioner shall notify the parent that she/he is [considering] withholding acknowledgment;

(10) The commissioner shall notify the parent or parents in writing within five (5) business days of the following options:

a.[ then notify ] Tthe parent or parents [that the parent] may request [the initiation of] a grievance conference with a [the] grievance committee of the home education advisory council under the provisions of Ed 315.10; or

b. The parent or parents may request a due process hearing pursuant to RSA 193-A:7 and Ed 315.17

(11) The parent or parents shall have 10 calendar days to request either a [the] grievance conference or a due process hearing and shall do so in writing to the commissioner;

(12) If a grievance conference was requested and held, A[a]fter considering the findings of the grievance committee the commissioner shall:

a. Acknowledge in writing within five (5) business days that the notification [the establishment] of the home education program [if it] meets the requirements of [RSA 193-A:4, I and] RSA 193-A:5, II; or

b. Withhold acknowledgment if the program does not meet the requirements of [RSA 193-A:4, I and] RSA 193-A:5, II, [thereby denying the establishment of a home education program,] and within five (5) business days notify the parent or parents in writing of the right to request a due process hearing within 10 calendar days pursuant to the provisions of RSA 193-A:7 and of Ed 315.17 [immediately schedule a due process hearing pursuant to the provisions of RSA 193-A:7 and of Ed 315.17];

(13) [If the parent does not request a grievance conference in writing within 10 calendar days, the commissioner shall withhold acknowledgment and immediately schedule a due process hearing pursuant to the provisions of RSA 193-A:7 and of Ed 315.17.] If a due process hearing was requested and held, after considering the findings of the due process hearing the commissioner shall:

a. Acknowledge in writing within five (5) business days that the notification of the home education program meets the requirements RSA 193-A:5, II; or

b. Withhold acknowledgment if the program does not meet the requirements of RSA 193-A:5, II, and notify the parent or parents within five (5) business days of the right to appeal to a court of competent jurisdiction; and

(14) If the parent does not request a grievance conference or due process hearing in writing within 10 calendar days, or if neither takes place after a request is made, the commissioner shall withhold acknowledgment and notify the parent or parents in writing.

[(f) Prior to acknowledgment of notification, if the commissioner has written and substantiated information which strongly implies that a home education program will not meet the requirements of RSA 193-A:4, I and RSA 193-A:5, II and intends to withhold acknowledgement, the commissioner shall immediately schedule a due process hearing as provided in RSA 193-A:7.

(g) If, after acknowledgment of notification has been made, the commissioner has written and substantiated information which would justify an order of termination as pursuant to RSA 193-A:5, I, the commissioner shall immediately schedule a due process hearing pursuant to the provisions of RSA 193-A:7 and Ed 315.17.]

Ed 315.06 Records.

(a) In accordance with RSA 193-A:6, the parent shall keep a portfolio each year the child is being home educated. The portfolio shall contain the child’s work pursuant to RSA 193-A:6, I.

(b) The portfolio shall be the property of the parent. Access to the portfolio shall be at the parent’s discretion, except as provided in RSA 193-A:6, II(a).

(c) Participating agencies shall maintain documents concerning home education programs in a manner consistent with other educational records.

Readopt with amendment Ed 315.07- Ed 315.09 effective 1-22-05 (Document #8262), to read as follows:

Ed 315.07 Annual Evaluation.

(a) The parent shall provide for an annual evaluation for a child. The parent’s signature shall authorize the use of an evaluation in meeting the requirements of RSA 193-A:6, II and this section. No evaluation shall be used by the participating agency as an annual evaluation unless signed by the parent.

(b) The parent may choose a teacher who agrees to perform evaluation services, or the parent may request the evaluation to be performed through the resident district superintendent when the resident district superintendent is acting as the participating agency. The resident district superintendent, when acting as the participating agency, shall provide evaluation

services, upon request of the parent. If the resident district superintendent is not acting as the participating agency, the resident district superintendent shall provide evaluation services at the resident district superintendent’s discretion. No fee shall be required when evaluation services are performed by a resident district.

(c) The written evaluation shall include the following:

(1) The name and address of the teacher, including state recognized documentation of certification or the name and address of the nonpublic school in which the teacher is currently teaching;

(2) The date(s) on which the evaluation(s) took place;

(3) A description of the work reviewed including quantitative data if available;

(4) A summary of the child’s educational progress in the home education program as presented in the notification, concluding with a statement that the child has or has not made educational progress; and

(5) The signatures of the teacher and the parent

(d) A copy of the evaluation may be retained by the teacher.

(e) The parent may choose a standardized test which may be a nationally recognized test, a state assessment instrument, or a test used in the child’s resident district. The parent shall report the results of the test to the participating agency and shall include the name of the test and the name and address of the test administrator. A composite result at or above the 40th percentile on such tests shall be deemed reasonable academic proficiency.

(f) The parent may choose any other valid measurement tool mutually agreed upon by the parent and the participating agency provided that:

(1) The agreement shall be made in writing and signed by the parent and the participating agency; and

(2) A valid measurement tool as provided for in RSA 193-A:6, II(d), may include but shall not be limited to the following:

a. Interview;

b. Educational progress in a particular curriculum as measured by the parent;

c. Educational progress in a particular curriculum as measured by the provider;

d. Review of the child’s portfolio by a participating agency;

e. Evaluation by a teacher in a program recognized by any state department of education; or

f. Specially prepared tests or evaluations measuring educational progress in a particular subject or curriculum.

(g) The evaluation shall be submitted annually on or before July 1 for the current school year and shall meet the requirements of RSA 193-A:6, II. Any evaluation submitted to a participating agency shall be signed by the parent acknowledging acceptance of its use to meet the requirements of RSA 193-A:6, II and this section.

(h) If the evaluation has not been received by the participating agency on or before July 1, the participating agency shall notify the parent in writing that, unless the evaluation is received by July 15, the program shall be placed on probation for the following year in accordance with Ed 315.09.

Ed 315.08 Review of Evaluation Results.

(a) The participating agency shall review the evaluation to establish that:

(1) The evaluation meets the requirements of Ed 315.07(a)-(h); and

(2) The results state that educational progress has or has not been demonstrated.

(b) If any of the requirements of Ed 315.07 (a)-[(h)] (f) are not met by the evaluation, the participating agency shall return by certified mail with return receipt the evaluation to the parent within 10 business days along with a letter describing the information required to comply with the Ed 315.07 (a)-(h).

(c) If the home education program had been operating under probation pursuant to Ed 315.09, the participating agency shall proceed pursuant to Ed 315.09(e)-(g) below.

(d) If educational progress has been demonstrated the participating agency shall so notify the parent in writing within 21 calendar days. A program which has been placed on probation pursuant to Ed 315.09shall be released from probation.

(e) If educational progress has not been demonstrated, the participating agency shall comply with Ed 315.09.

(f) If no evaluation has been received by the participating agency by July 15, the participating agency shall comply with Ed 315.09 unless:

(1) The participating agency receives, by July 15, an explanation in writing from the parent that the evaluation has been performed, there is a delay in the transmission of evaluation results, and the results will be transmitted to the department as soon as they are available; or

(2) The parent and the participating agency reach an agreement in writing explaining how the parent will arrange for an evaluation that meets the requirements of RSA 193-A:6 and Ed 315.07(a)-(f) that will be completed by August 15, with its results transmitted to the department as soon as they are available.

(a) If pursuant to Ed 315.07 educational progress has not been demonstrated, the participating agency shall so notify the parent in writing.

(b) The participating agency shall state the reasons for which the program has been placed on probation in accordance with RSA 193-A:6, III. It shall also state what conditions, if any, shall be met to release the program from probation in less than a year.

(c) The parent may choose to comply with the conditions for release of the program from probation. If these conditions are met, the program shall be released from probation.

(d) If the parent chooses not to comply or the conditions for release of the program for probation are not met, the probational status shall continue.

(e) The parent shall provide for the annual evaluation pursuant to Ed 315.07 while the program is under probation. After the parent has provided such evaluation, and if educational progress has been demonstrated, the participating agency shall so notify the parent in writing within 21 calendar days. A program which had been placed on probation pursuant to Ed 315.09 shall be released from probation.

(f) If the evaluation does not meet the requirements of Ed 315.07and those outlined in RSA 193-A:6, the participating agency shall notify the commissioner, and the commissioner shall notify the parent(s) of the right to [schedule] a hearing, pursuant to Ed 315.17 and RSA 193-A:7, or a grievance conference unless the home education program is voluntarily terminated by the parent pursuant to Ed 315.04[(i)](g).

(g) If no evaluation has taken place by July 15 of the probationary year, the participating agency shall notify the commissioner, and the commissioner shall schedule a hearing pursuant to Ed 315.17 and RSA 193-A:7, unless the home education is voluntarily terminated by the parent

pursuant to Ed 315.04[(i)](g). The program shall be terminated if the child has not demonstrated educational progress based on age and ability as provided in RSA 193-A:6, III.

Ed 315.10 The Home Education Advisory Council.

(a) The home education advisory council shall carry out those duties assigned to it by the commissioner. The council shall work with home educators and representatives of private and public education to encourage an understanding of home education.

(b) Assigned areas of responsibility for the council shall include the following:

(1) Developing and maintaining effective communications between home educators and those public, and nonpublic schools and state and local agencies involved in home education;

(2) Recommending to the commissioner and state board of education desired changes in rules pertaining to home education;

(3) Establishing a grievance committee to hear grievances referred to it by the commissioner; and

(4) Providing an annual report to the state board on its activities.

Ed 315.11 Membership Selection For the Home Education Advisory Council and Term of Appointment.

(a) Membership selection shall be as specified in RSA 193-A:10, I. Council Chair selection shall be as specified in RSA 193-A:10, III.

(b) Members appointed by the commissioner shall have a term of 3 years, and such terms shall end on June 30 of the year in which the term is completed. Legislative members shall serve a term which is coterminous with their elected office.

(c) [Terms of appointment as provided in (a) above shall end on June 30 of the year in which the term is completed.] The conduct of business shall not depend on the maintenance of full council membership.

(d) In the event of vacancies, replacement members shall be appointed as required under RSA 193-A:10 to fill the unexpired term.

Readopt Ed 315.12-Ed 315.16 effective 1-22-05 (Document #8262), to read as follows:

Ed 315.12 Records of the Advisory Council. The records and minutes of the home education advisory council shall be filed and maintained in the department.

Ed 315.13 Funding and Support of Council Activities. The members of the home education advisory council shall serve without compensation. Subject to available funds, the department shall financially support the activities of the council, including but not limited to such expenses as mileage, secretarial assistance, and meeting facilities.

Ed 315.14 Grievance Committee.

(a) The grievance committee shall be a subcommittee of the home education advisory council appointed by the chairperson, consisting of no more than 5 members, a majority of whom shall be representatives of home education associations. One member of the grievance committee shall be appointed by the chairperson to preside at grievance conferences.

(b) The grievance committee shall hear all grievances referred to it by the commissioner.

(c) The grievance committee shall call upon consultants and conduct interviews for the purpose of gathering relevant facts if the committee lacks relevant expertise. The grievance committee shall keep a written account of its investigations and shall submit such an account, together with its findings, to the commissioner within 30 calendar days of the commissioner’s referral.

Ed 315.15 Request for Grievance Conference.

(a) Any party to a home education program may request a grievance conference as follows:

(1) Such request shall be in writing to the commissioner;

(2) The request shall state in detail the reasons for the request for a grievance conference and name the parties involved;

(3) The commissioner shall notify the requestor within 5 business days in writing that he/she has scheduled a grievance conference in accordance with Ed 315.16 or that he/she requires additional information to clarify the issues;

(4) The requestor shall have 10 calendar days from receipt of the commissioner’s request for additional information to respond with the requested information; and

(5) The commissioner shall, upon receipt of the requested information, forward the request to the chairperson of the home education advisory committee who shall schedule a grievance conference in accordance with Ed 315.16(b).

Ed 315.16 Grievance Conference.

(a) Upon receipt of a request pursuant to Ed 315.05(e)(10) or concerning an action taken under these rules, the commissioner shall notify the chairperson of the home education advisory council of the request for a grievance conference, and the grievance conference shall then proceed in accordance with this section.

(b) Within 5 business days of the commissioner’s notification of a request for a grievance conference, the chairperson shall schedule the conference with the parties to the grievance.

(c) At the conference, each party shall be prepared to consider:

(1) The simplification of the issues and an agreement of facts;

(2) Possibility of settlement; and

(3) Such other matters as may aid in disposition of the action.

(d) Parties to a grievance may be represented at the conference by counsel.

(e) At the grievance conference the grievance committee shall interview the parties to the grievance to reach a proposed settlement on the facts of the grievance.

(f) The grievance committee shall present its findings on unresolved grievances or report on the proposed settlement reached by the parties to the commissioner within 10 calendar days of the conference.

(g) Any settlement reached at a grievance conference shall be subject to review by the commissioner and shall not be implemented unless it is consistent with these rules and with applicable statutes.

(h) The findings shall list the pertinent facts found by the committee.

(i) If the parties do not reach a settlement prior to, or during, the grievance conference, the commissioner shall notify the parties of her/his decision on unresolved grievances within 10 calendar days of receipt of the committee’s findings.

Readopt with amendment Ed 315.17- Ed 315.18 effective 1-22-05 (Document #8262), to read as follows:

Ed 315.17 Due Process Hearing Procedure.

(a) [If a due process hearing is required under these rules and pursuant to RSA 193-A:7, the commissioner shall immediately schedule a due process hearing with an impartial hearing officer in accordance with RSA 193-A:7-8 and Ed 200, unless otherwise provided in this section] A party requesting a due process hearing shall notify in writing the office of legislation and hearings. The office of legislation and hearings shall schedule a due process hearing with an impartial hearing officer in accordance with RSA 193-A:7.

(b) All communication with the department of education’s office of legislation and hearings shall be in writing and mailed to the office at:

The New Hampshire Department of Education Office of Legislation and Hearings 101 Pleasant Street Concord, NH 03301

(c) [(b) As provided in RSA 193-A:7, the hearing officer shall begin the hearing process by issuing an order of notice within 10 calendar days of the request for a hearing.] The parties to the hearing shall include, at a minimum, the [child or] parent or parents, any student who is 18 years or older, [or both] and, [as applicable, the resident district superintendent, nonpublic school principal, or the commissioner] the participating agency.

[(c) The order of notice shall be sent to the parties to the hearing by certified mail, return receipt requested, no later than 20 calendar days prior to the first day of oral hearings.] (d) Pursuant to RSA 193-A:7, I, notice of such hearing shall be provided within 10 days of the request for such hearing, shall include a brief summary of the material facts, and shall be sent to each parent and each instructor of the child known to the commissioner at the time by certified mail. The hearing shall occur within 30 days of the date of such notice. Upon request, the hearing officer shall conduct the hearing at a location near the site of the home education program.

[(d) Upon good cause shown, including but not limited to illness, accident or death of a family member, the hearing officer shall continue the hearing and reschedule it for a date later than that shown in the order of notice but in no case shall the continuance be granted for more than 15 calendar days. Notice of the continuance shall be made in writing to all parties except

that, if the continuance is granted less than 3 business days before the scheduled hearing date, notice shall be made by telephone followed by notice in writing.]

(e) Upon agreement of the parties or upon good cause shown, including but not limited to illness, accident or death of a family member, the hearing officer may continue the hearing and reschedule it for a date later than that specified in the notice, provided that the right of parties and intervenors to a timely resolution of the dispute is not significantly affected in an adverse manner. Notice of the continuance shall be made in writing to all parties except that, if the continuance is granted less than 3 business days before the scheduled hearing date, notice shall be made by telephone followed by notice in writing.

(f) [(e)] Any party, who has been served notice in accordance with this chapter, who fails to appear and who fails to obtain a continuance from the hearing officer prior to the scheduled time of the hearing, shall have a decision rendered against her[/]or him if the interests of justice will be served by such action.

(g) [(f)] Within a reasonable time, but in any event no less than 5 business days before the hearing, the parties shall give notice to the hearing officer and [each other of] all opposing parties regarding the character of the evidence to be presented at the hearing. [Such notice shall state whether or not new evidence, the same evidence, or legal argument will be presented at the hearing.]

[(g) In accordance with RSA 193-A:7, I, in order to be granted acknowledgment of notification, the parent at such hearing shall establish by a preponderance of evidence, and the hearing officer shall so find, that both the parent and home education program comply with RSA 193-A:4, I and RSA 193-A:5, II.]

(h) [For an order of termination to be issued for a program which has been acknowledged, the resident district superintendent, nonpublic school principal or the commissioner shall have the burden of proof that the parent or the home education program has substantially failed to or cannot provide the child with the minimum course of study as required by RSA 193-A:4, I.] In accordance with RSA 193 A:7, for an order of termination to be issued, the participating agency shall have the burden of proof that the parent or the home education program has failed to comply with the requirements of RSA 193-A:5, II or has substantially failed to provide the child with the minimum course of study as required by RSA 193-A:4, I.

(i) [The hearing officer shall render a decision within 10 calendar days pursuant to the provisions of RSA 193-A:8. The decision shall list the pertinent facts found by the hearing officer. The decision shall take effect immediately unless an appeal is made pursuant to Ed 315.17. A copy of the decision shall be mailed by certified mail, return receipt requested, to all parties named in the order of notice.]

The hearing officer shall enter an order within 10 calendar days pursuant to RSA 193-A:8. The decision of the hearing officer shall list the pertinent facts found by the hearing officer. The decision shall take effect immediately unless, pursuant to RSA 193-A:8, an appeal is made to a court of competent jurisdiction within 30 days of when the order is entered, at which time, the home education program shall continue pending appeal. A copy of the decision shall be mailed by certified mail, return receipt requested, to all parties named in the order of notice.

Ed 315.18 Certificate of Completion [Appeal of Decision. In accordance with RSA 193- A:8, II the parent or the commissioner may appeal the decision of the hearing officer to a court of competent jurisdiction within 30 calendar days of the decision. Pending appeal, the home education program shall continue.] (a) The student meets the requirements for successful completion of a home school program for a child under 18 years of age when, pursuant to RSA 193:1, I(f)(2), the parent submits a letter to the department of education certifying that the child has completed the home school program at the high school level. The letter containing the statement above shall also include the following information: (1) Name and address of the child;

(2) Name and address of the parents;

(3) Date of completion of the home school program;

(4) A phone number at which the parent may be reached during normal business hours; and

(5) Signature of the parent

(b) A letter that meets all the requirements of Ed 315.09 (a) shall be conclusive evidence of:

(c) The parent is responsible to maintain a record of proof of delivery of such certification.

Page 48