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Attorneys argue over adding more lawyers in ConVal school-funding case
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The N.H. Attorney General’s Office wants to hire two outside lawyers to assist in the latest court battle over the state’s school-funding formula. But attorneys for the growing list of school districts arguing the formula is unconstitutional say they shouldn’t be allowed to join the case, in part because the state has exceeded its total budget for such services by more than $2.4 million.

The state is seeking to retain two St. Louis-based attorneys who specialize in education-funding litigation for the case, which is back in Cheshire County Superior Court after a Supreme Court decision in March found that the original 2019 ruling in the case did not employ the proper legal analysis when it declared the state fails to meet its constitutional duty to fund an adequate education.

But in court documents filed earlier this month, Michael Tierney, the Manchester-based attorney representing the districts — including ConVal, the lead plaintiff; Fall Mountain; Monadnock; and Winchester — argued that the process for securing the funds to hire these attorneys could delay the case, a claim the state denies.

The attorney general’s office has a total budget of $350,000 this year to hire outside counsel in all of the cases it handles, Tierney wrote. If the office exceeds this budget, he added, it must seek approval for additional funds from the Executive Council and the Joint Legislative Fiscal Committee.

“The State neglects to mention, however, that it has already exceeded the $350,000 line item for the 2021 Fiscal Year by over $2.4 million and has had to go through the time consuming and uncertain process of obtaining first Fiscal Committee and then Executive Council approval,” he wrote.

But attorneys for the state argue they do not need this approval moving forward to retain the two attorneys, J. Nicci Warr and John R. Munich of the corporate law firm Stinson LLP.

According to documents filed as exhibits to Tierney’s motion, the state has obtained approval for $2,418,250 in additional litigation expenses for the current fiscal year. Senior Assistant Attorney General Anthony J. Galdieri wrote that the state’s budget for outside litigation would be able to cover the fees for Warr and Munich.

“Thus, contrary to the petitioners’ unsupported assertion in their objection, the respondents do not have to spend time seeking the approval of the fiscal committee or the governor and council to retain Attorneys Munich and Warr in this action,” Galdieri wrote in a motion filed last week. “Regardless, the petitioners fail to explain how seeking such approval (even if it had to be done) would slow the case down in any way.”

The $2.4 million approved for additional litigation expenses, though, is driven by particular cases — including the investigation into alleged sexual abuse at the state-run former Youth Development Center and antitrust investigations into transactions involving health care systems — and not the school-funding lawsuit, these documents show.

The ConVal, Monadnock, Winchester and Mascenic districts spent a combined total of $129,263 on attorney fees in the initial 2019 case, before it went to the Supreme Court, Tierney said Monday, citing the most recent figure included in publicly available court documents. He declined to give an updated total because that number hasn’t been published in subsequent court filings, and ConVal district officials could not be reached Monday to provide that figure.

Cheshire County Superior Court Judge David W. Ruoff, who is presiding over the case, has not issued a ruling yet on whether Warr and Munich will be allowed to join the case.

In the meantime, the number of school districts that have joined the case has grown to 12. The Mascoma Valley Regional School District on Monday became the latest district to become a co-plaintiff, according to a news release from the ConVal School District, which first filed the case in March 2019.

The Winchester, Monadnock and Mascenic districts signed on to the case before it went to Cheshire County Superior Court later that year, after which Ruoff ruled that the state’s school-funding formula is unconstitutional.

Both sides appealed that decision to the state Supreme Court, which ruled in March that the case needs to return to superior court, in part to settle the disputed underlying facts of the case — such as determining the components and costs of a constitutionally adequate education — before Ruoff can rule on whether the formula is unconstitutional.

Since the Supreme Court ruling, the Fall Mountain, Claremont, Derry, Grantham, Hillsboro-Deering, Newport and Oyster River districts also have joined the case. Monday, Mascoma and Manchester — the largest district to join thus far — signed on, according to the N.H. Union-Leader.

During a status conference last month, Ruoff set Friday as the deadline for additional districts to sign on to the case. The Keene Board of Education is scheduled to discuss whether the district will join the case at its meeting Tuesday evening.

The trial date for the case has not been set yet, but Ruoff said during the April status conference it could begin in the summer of 2022.

The ConVal lawsuit is the latest in a line of school-funding cases dating back to the early 1990s, when the state Supreme Court issued its Claremont I and II decisions. Those opinions held that the state must fund an “adequate education.”

For the current school year, the state provided districts with a baseline of $3,708 per student in “adequacy aid,” plus additional amounts tied to students’ socioeconomic status, how many are in special education programs and other factors.

Statewide, districts spent an average of $16,823 per student in the 2019-20 school year, not including tuition to out-of-district schools, transportation, equipment and construction, according to data from the N.H. Department of Education.


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Peterborough
Crews start righting overturned drill rig in Peterborough
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PETERBOROUGH — Nearly a month after a drilling rig tipped over on Route 202 while working on the Main Street bridge construction project, crews on Monday began the process of righting it.

The work will continue Tuesday and is being done by the project’s general contractor, Franklin-based Beck & Bellucci Inc.

The intersection at Main Street will be closed both days between 7 a.m. and 7 p.m. Drivers are being detoured onto Route 101 and Route 137.

The 90-ton rig tipped over the morning of April 22 while working on the retaining wall portion of the bridge project, landing near the Contoocook River. The cause of the incident — which did not result in any injuries — is still undetermined, according to Seth MacLean, Peterborough’s director of public works.

Teams met daily over the past few weeks to prepare for the rig’s removal, he said in an email. Engineers determined detailed plans to manage and properly distribute the weight of the rig once it’s pulled up onto Route 202, he explained.

Righting the rig

The rig was resting against a newly rebuilt section of the Route 202 retaining wall, so after the situation was reviewed for safety, MacLean said, engineers determined no additional stabilization was required.

Starting Monday morning, a tow truck, three rotators and an excavator were coordinated to counterbalance the rig’s weight, and to bring the machine upright in incremental stages, according to MacLean.

Because the Route 202 portion of the project is is being done independently of the Main Street bridge, he said he does not foresee any significant delays to the bridge’s reopening.

Peterborough is replacing the 1940s bridge that connects Main Street to Route 202 across the Contoocook River because it has been on the state’s “red list” of structurally deficient bridges since 2006, a town official told The Sentinel last year.

Voters appropriated $6.6 million for the project two years ago, and in January, authorized another $1.4 million in a specially convened town meeting. Federal funds will cover 80 percent of the cost, with the town bearing the remaining 20 percent.

Construction on the site began in the spring of 2020, town officials said previously.

The Route 202 retaining wall work is funded entirely by federal and state money, MacLean explained, so while both projects are running concurrently and through the same contractor, they are “largely independent of one another in terms of the finances, crews, subcontractors, and scheduling being utilized for each.”

The bridge project was able to continue work the day after the incident, but the retaining wall work has been stalled since, he added.

At this point, MacLean said, the bridge is still slated to open at the end of the year. The project team will discuss the incident’s implications on the retaining wall project after the rig’s removal, he said.

Beck & Bellucci Inc. will be covering the costs to right the rig, which aren’t “fully known at this time,” according to MacLean. The company could not immediately be reached for comment Monday.


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Federal money could be key to building new Secure Psychiatric Unit

The $17.25 million Gov. Chris Sununu wanted for a new 60-bed Secure Psychiatric Unit was axed from the House budget. But the chairman of a House finance committee knows where he might find it: the state’s nearly $1 billion in federal pandemic relief money.

Rep. Jess Edwards, an Auburn Republican who chairs House Finance Committee Division III, floated the idea in a letter to the Senate Finance Committee. The federal aid may not cover a new forensic unit, he wrote, but it does cover water, sewer, and broadband investments. Move those infrastructure investments to the federal aid wishlist, and there would be money in the state budget for a new Secure Psychiatric Unit, which houses people with mental illness who pose a serious danger to themselves or others.

“The state CANNOT afford to bond $25 — $40 (million),” Edwards wrote. In an interview Monday, Edwards said the committee also cut the Secure Psychiatric Unit from its budget because it had too many questions about its location, patient population, and size. There has also been debate about who’d manage: a private company or the state.

The Senate Finance Committee is still working on its budget, but federal dollars is something Sununu contemplated in his proposed budget. He hoped to find the $17.25 million within federal pandemic aid if it became available by the end of the year. If not, he directed that money to come from state dollars.

The money would be added to the $8.75 million approved last year for a 25-bed facility in a compromise between Sununu and the Legislature. Current plans call for it to sit on the state hospital grounds in Concord, a neighborhood location Deputy City Manager for Development Carlos Baia told lawmakers the city opposes.

“Right now, in this city, we have a state prison, a women’s prison, a state hospital — a lot of state institutions in this community,” Baia said in an interview Monday. “Now the state is looking to local a facility that is functioning as a hospital, but for all intents and purposes, looks like a prison.”

The Secure Psychiatric Unit was moved from the state hospital grounds to inside the prison in 1985, a location that allows a team of psychiatrists, clinicians, and nurses to provide mental and physical health care and occupational therapy with the protection of prison-level security, said Tina Thurber, Department of Corrections spokeswoman.

A new unit would be under the oversight of the state Department of Health and Human Services. In the 2019 budget talks, Democrats insisted it be managed by the state, not a private operator. Pending legislation, Senate Bill 156 would prohibit the state from contracting with a private company to build or operate a new forensic hospital, but there was a question at the bill’s public hearing on whether the state could contract with an outside provider for psychiatric services.

The 66-bed unit for men and women is used by jail and prison inmates, people involuntarily committed by a court to a psychiatric hospital, and individuals with developmental disabilities who require intervention for extreme dangerousness. On Monday, there were 58 people there, 35 of them serving sentences and the rest held under the state’s civil commitment law. (The same law is used to involuntarily commit people in a mental health crisis to the state hospital who are not identified as dangerous.)

There’s been widespread agreement that those in the latter group should be treated in a hospital setting, not in a prison. Lawmakers, mental health advocates, and state officials have tried to agree on a new space with the appropriate level of care and security. Disagreements over funding, location, and size have stalled each attempt — and are obstacles now.

Should the unit be small enough to house only those currently at the prison or big enough to relocate some people from the state hospital, thereby freeing up beds for the adults and children who sometimes wait days in emergency rooms for a bed? On Monday, that count was 42 adults and 25 children.

“If you are going to go with a new building, just for forensic patients ... our position is that it should be big enough to take care of civil patients at the Secure Psychiatric Unit and no bigger,” said Mike Skibbie, policy director at the Disabilities Rights Center-New Hampshire. Based on census numbers from the Department of Corrections, a 25-bed unit would provide more than enough beds for that group.

Sen. Cindy Rosenwald, a Nashua Democrat, agrees. She said housing someone in the proposed Secure Psychiatric Unit on hospital grounds would cost $3,000 a day, twice the cost of a New Hampshire Hospital bed.

Kibbie has argued against the larger 60-bed proposal and favors instead solving the capacity problem by building transitional housing for New Hampshire Hospital patients who are well enough to be discharged but still need treatment. Insufficient transitional housing options are one of the main reasons people who can be discharged aren’t.

The $8.75 million in the 2019 compromise remains available but falls far short of what the state would need to build a 25-bed or 60-bed unit. Rosenwald is concerned that there is no money in the budget to run a new unit, which she said the state Department of Health and Human Services has estimated to be $27 million and $50 million, respectively.

Sununu, who issued an executive order Thursday calling for more mental health services, said he remains committed to the larger forensic hospital.

“I support building a new SPU because the stakes are too high not to act,” he said Monday. “When I proposed a transformative facility in 2019, the Democrats dramatically underfunded these costs during budget negotiations during the last budget cycle. Now, we are moving forward full steam ahead so that we can stand up a facility to help our most vulnerable citizens get the mental health care they deserve.”


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Lawmakers aim to prevent schools, employers from mandating COVID vaccination

A last-minute amendment to a bill that protects the governor’s pandemic-related emergency orders would prohibit private and public K-12 schools, colleges, and employers from mandating COVID-19 vaccination. Dartmouth College, New England College and Southern New Hampshire University have said they will require students to have a COVID-19 vaccination.

The amendment to Senate Bill 155 would also prevent any public or private “entity” from asking someone about their vaccination status before allowing them to use transportation or “public accommodations.” Health care employers could ask about vaccination status, but only if the employee poses a “direct threat” that could not be eliminated or reduced by an “accommodation.”

The House Executive Departments and Administration Committee will hold a public hearing on the amendment Tuesday at 1:30 p.m. via Zoom.

The amendment mirrors language in House Bill 220 that passed the House and is now before the Senate Health and Human Services Committee. That “medical freedom” bill generated fierce debate between personal liberty advocates and medical providers during the Senate committee’s public hearing.

Rep. Terry Roy, a Deerfield Republican, sponsored the amendment being heard Tuesday. He could not be reached Monday.

New Hampshire public schools, like those around the country, require students to be immunized against polio, measles, mumps, and other diseases but provide religious and medical exemptions. Roy’s bill would not prohibit those existing vaccines but instead vaccines that have been in use for fewer than 10 years, which targets the COVID-19 vaccination.

Pamela DiNapoli, executive director of the N.H. Nurses Association, said the group would oppose an amendment to prohibit asking about vaccines.

“Currently students in New Hampshire are required to provide information to schools about required vaccines to attend school,” she said. “They are excluded from school if they do not provide the information or request an exemption. The same should be true for COVID.”

Other sections of the bill are more far-reaching. It would prohibit a state or “political subdivision” from passing any law, rule, ordinance, or order that would require a vaccine or maintain any list or registry with personal identification information regarding vaccine status.

It would also prohibit any “person or entity” from denying a person goods or services based on vaccination status.


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