N.H. Admin. Code § Ed 1203.03

Current through Register No. 50, December 12, 2024

Section Ed 1203.03 - Investigative Process

(a) If a complaint is not dismissed, the investigator shall:

(1) For cases involving serious injury, determine whether the allegations must be referred to law enforcement for investigation as mandated by RSA 161-F:51, II or 169-C:29;

(2) Pursuant to (1) above, make reports at any point during the investigation when he or she obtains information that he or she is required to report under RSA 161-F:51 or 169-C:29;

(3) Contact such persons and examine such records and other documents as are reasonably necessary to determine whether or not the allegations are true and whether any violation of 126-U occurred;

(4) Review findings of facts from other investigative agencies; and

(5) Review any and all protective measures for the child that the school has put in place before or after the complaint, and if no protective measures have been put in place, the investigator shall instruct the school to develop a procedure to protect the child.

(b) Investigations shall not constitute a disciplinary hearing and shall not constitute an allegation of misconduct against an employee by the department of education;

(c) Once the investigator completes the investigation, the following procedures shall apply:

(1) The investigator shall file a written report with the commissioner or the commissioner's designee including findings of fact specifying any of the following specific grounds listed in RSA 126-Uupon which the findings are based:

a. Failure to implement written policy and procedures as required in RSA 126-U;

b. Failure to properly notify a parent, guardian, or guardian ad litem in a timely manner, in violation of RSA 126-U:7, IV;

c. Retaliation against any individual involved in a complaint or proceeding under this chapter, pursuant to RSA 126-U:8;

d. Repeated improper use of restraint, pursuant to RSA 126-U:8;

e. Improper use of seclusion as punishment, pursuant to RSA 126-U:5-a, I;

f. Restraint by personnel not trained to restrain a child, pursuant to RSA 126-U:5;

g. Use of any restraint technique prohibited by RSA 126-U:4;

h. Improper use of restraint when other interventions were appropriate, pursuant to RSA 126-U:5;

i. Improper use of seclusion or restraint that unnecessarily subjects a child to a risk of ridicule, humiliation, or emotional or physical harm pursuant to RSA 126-U:4, IV and RSA 126-U:5-a;

j. Improper seclusion under conditions that do not meet RSA 126-U:5-b;

k. Failure to comply with the requirements for authorization and monitoring of extended restraint, pursuant to RSA 126-U:11;

l. Failure to comply with the restriction on the use of mechanical restraint during the transport of children, pursuant to RSA 126-U:12; and

m. Any other conduct in which a school or school personnel violate RSA 126-U, or this chapter;

n. Written statements by any employees who are the subject of the complaint, if the employees choose to provide such statements; and

o. A recommendation for further action, if necessary.

(d) The investigator shall file a report with the commissioner within 30 days of the filing of the complaint. The investigator may request a time extension from the commissioner for good cause shown, including, the coordination of investigations with other agencies or unavailability of a witness. If good cause is shown, the commissioner shall permit a time extension.

(e) The commissioner shall review the investigator's report and recommendation based on a review of the case in relation to the grounds listed in RSA 126-U to:

(1) Provide a written decision and recommendations which shall include, if necessary, based on the conclusions of the investigator's report:

a. Appropriate remedial measures to address physical and other injuries;

b. Appropriate remedial measures to address protection against retaliation; and

c. Appropriate remedial measures to reduce the incidence of violations of RSA 126-U.

(2) Identify remedial measures necessary to remedy the problem. Such remedial measure may include but are not limited to:

a. Training of an individual or a group of school employees;

b. Revision of policies and procedures;

c. Revision of notice and record keeping practices;

d. Compliance with conditions of seclusion per 126-U:5-b; and

e. Any other action designed to address physical and other injuries, protect against retaliation, and reduce the incidence of violations of RSA 126-U; and

(3) The commissioner's decision and recommendations shall be provided to the superintendent, the school administrator, and any employee found to have performed or accused of performing a restraint or using seclusion. The commissioner's decision shall be provided to the child's parent or guardian. Copies of the decision which are provided to the parents, guardians or employees under this subsection shall be redacted as necessary, to comply with federal and state law.

(f) If the commissioner determines that disciplinary proceedings concerning credentialing are warranted, the commissioner shall notify the director of the division of program support.

(g) Disclosure of investigatory reports shall be made in compliance with state and federal law.

(h) In addition to any disclosure required by (e), above, the investigator's report and commissioner's decision shall be disclosed as follows:

(1) The investigator's report and commissioner's decision shall be made available, upon request, to the parties in any adjudicatory proceeding arising out of the same facts as the complaint alleging violations of RSA 126-U;

(2) If disciplinary proceedings are to be conducted as a result of the investigation, the commissioner or the commissioner's designee shall provide information gathered during an investigation to:

a. A law enforcement agency when the agency is conducting a criminal investigation related to the subject matter of the investigation;

b. A certifying agency of another jurisdiction for:

1. Purposes of certification of the credential holder in another jurisdiction; or

2. An investigation in another jurisdiction, when:

(i) The person was the subject of a formal investigation under Ed 1200; or

(ii) Disciplinary action was taken against the person by the state board of education under Ed 510;

c. Board investigators or prosecutors; and

d. Expert witnesses or assistants retained by board prosecutor or investigators in the same or related disciplinary matters; and

(3) Whether or not further disciplinary proceedings are to be conducted as a result of the investigation, the board shall provide information gathered in disciplinary investigations to persons to whom the person facing disciplinary proceedings has given a release.

(i) Prior to commencement of an adjudicatory proceeding, the person being investigated shall be notified promptly of the nature of any allegations that result in an adjudicatory proceeding under these rules unless notification is prohibited by law or will interfere with a criminal investigation.

(j) If further disciplinary proceedings are to be conducted as a result of an investigation, the person shall be given the opportunity to respond, in writing, to the investigator prior to the initiation of disciplinary proceedings.

N.H. Admin. Code § Ed 1203.03

Derived From Volume XXXVI Number 06, Filed February 11, 2016, Proposed by #11019, Effective 1/8/2016, Expires 1/8/2026.