The Law Office of Lillian E. Wong
A Massachusetts Special Education Attorney

Independent evaluations are critically important to understanding the educational needs of your child.  Unfortunately, quality evaluations are expensive (around $5000).  In Massachusetts, parents can seek an independent evaluation at public expense under state or federal law.  These laws are complicated, and failure to comply with their requirements will almost always leave parents footing the bill.  Special education attorneys help families navigate these laws.

For more information about the importance of evaluations click here.

Last year, Massachusetts cut state aid for special education by $90 million or approximately 40 percent.  The governor’s proposed state budget for this year cuts special education funding by $5 million.   

How will this affect Massachusetts's parents and their children?  Schools will be forced to tighten their proverbial belts.  Schools districts will be reluctant to indentify children in need of special education.  Districts may fight private placements more vigorously.  One-on-one aide positions may be cut, and remaining aides will be responsible for more children.  Officials may be less likely to suggest assistive technology for those children who may benefit from it.

But while special education budgets are challenged, the laws protecting students remain the same.  If schools fail to provide children with a Free and Appropriate Education (FAPE) in the Least Restrictive Environment (LRE) they will be violating the law.  These violations could lead to costly litigation and more importantly, lost educational opportunity to many of Massachusetts's children.

Special Education Law is all about acronyms.  Here are the most important ones:

BSEA: Bureau of Special Education Appeals

C.F.R.: Code of Federal Regulations

E.I.: Early Intervention

ESY: Extended School Year

FAPE: Free Appropriate Public Education

FERPA: Family Educational Rights and Privacy Act

IDEA: Individuals with Disabilities Education Act of 2004

IEE: Independent Evaluation

IFSP: Individualized Family Service Plan

IEP:  Individualized Educational Plan

LEA: Local education agency or school district

LRE: Least Restrictive Environment

LEP: Limited English Proficient

M.G.L: Massachusetts General Laws

OCR: Office of Civil Rights

RTI: Response to Intervention

SEA: State Department of Education

SLD: Specific Learning Disability

U.S.C.: United States Code

As a parent, you may think your child needs a specific service or program.  Perhaps your belief is founded on some research you did on the internet or a conversation you had with a friend.  But how can you convince the school to implement these changes on your child's IEP?  If the school agrees with you, that's great.  But if the school begins to question your request or flat-out refuses to provide this service or program you need a plan.

First, remember that special education is all about meeting the unique needs of your child.  You must prove with evaluations, statistics, or statements from experts that your child will receive an educational benefit from the proposed service or program.   You must also be able to argue that without this service or program your child will not receive an appropriate education.  Avoid arguing your this program is "best" for your child, since the U.S. Supreme Court held in Rowley that the school is not required to provide your child with the "best"  education possible.

This question was originally posted on www.avvo.com. 

Question:
 
My 8yr old G-son has AD/HD,ODD,OCD & rides a school bus to & from school with other special need children.(7yrolds to13yrolds) There have been problems on this bus (say's the attendant reports) Like calling each other names, getting out of their seat, bouncing up and down in their seat, or just talking to another student 4seats away, some of which are petty things, some are safety issues (getting out of seat while bus is moving), but it seems my grandson is the 1who is getting wrote up, not the other child/children who are involved . Some of these kids ride this bus 7-10miles 1way to school, due to lack of Special Needs School/Education Teachers.
 
We asked that they transfer him to another bus, Transportation Say's No, because he will do the same thing on other buses! They don't know this, How could they know this, if they Don't TRY /Transfer him to another bus!  11 other kids on that bus.  My Daughter has tried to solve this problem by contacted Dept of Ed, Head of Dept. Transp,Legal Aid, Dept of Disab.advoc.(which says this could take 30-to-90 days to resolve), if it gets resolved.  Sch Principal says they will pay my daughter $14. ady to transpt.him,14miles round trip to/frm sch. thats just wrong of them to even ask her, when there's the NO CHILD LEFT BEHIND RULE/LAW! .Is there anyone who can point us in the right Direction to get help?
Thank You.
 

Answer:

First, the most applicable law in your case is the Individuals with Disabilities Education Act (IDEA) and not  No Child Left Behind.

Your child is covered by IDEA if he has an Individualized Education Plan (IEP).  Because you refer to him being in special education, I'm assuming he does have an IEP.

Special education includes "related services" like transportation to and from school, for without transportation your child would not benefit from special education.  See 20 U.S.C. §140 1(26).  Simply stated: if your child can't get to school, he can't learn, if he isn't learning, the school is violating the law.

But the analysis doesn't stop there.   The school has the right to punish your son if he misbehaves on the bus.  However, if you believe your son's behavior is a result of his disability (e.g. ADHD causing poor impulse control) the school is required under IDEA to conduct a functional behavior analysis of your son and implement a behavior plan to help prevent and respond to your child's inappropriate conduct on the bus. 

This question was originally posted on www.avvo.com. 

Question:

He has dyslexia and spelling dyspraxia. He has been on an IEP since 7th grade. He has been extremely successful in high school and his only special ed classes this year are for lang. arts and a study period. He would like to attend college and we have done extensive research on colleges that will offer support services (which he would have to apply for). This year he is due to have his full battery of tests, but on the annual WIATT, he scored well and now they feel he doesn't need his IEP. Our concern is that without the support he receives his senior year he could be dramatically affected along with the assistance of his IEP documentation for college services, when applying for college.

 
My Answer:

In order to remain on an IEP you must prove that your child needs special education and related services.  Read more about gathering evidence in the special education context here.  Keep in mind that the law requires your child be given a Free and Appropriate Education (FAPE) not the best education. 

If the school decides to remove your child from special education, they must hold an IEP meeting because this is a change in placement.  In this meeting voice your opposition to this decision.  Now you must decide how you want to resolve this dispute.  Both parties can voluntarily agree to participate in mediation or you can request a due process hearing.  Either way, the school must continue to provide your child with the programs and services outlined in his current IEP until this dispute is resolved.  This right is sometimes called "stay-put."

This question was originally posted on www.avvo.com.  I have edited the original question.

Question:

My son was constantly getting suspended ... I told the principal I was going to be asking about if this was legal he told me that my son threatened a substitute... I know my son is no angel but they bring it on by segregating these kids that are in a special needs class.  They are not allowed with other students in pe. My son also has an IEP and add / adhd /odd.

 
My Answer:

Your question raises three interrelated issues:

(1) The Individuals with Disabilities Education Act (IDEA) mandates that children should be educated in the least restrictive environment (LRE) that meets the child's needs.    This means you have the right to ask that your child spend as much time as possible with his typically developing peers as long as your child receives an educational benefit.   For example, your child may be able to attend music class, field trips and recess with students in general education, perhaps with the help of a one-on-one aid.

(2) You should also make sure that your son has goals related to social skills in his IEP.  Perhaps the school could include him in a "Friendship Group," facilitated by the school counselor.

(3) Your child should also be given a functional behavioral assessment.  Based on this assessment the school should put a behavior intervention plan in place to help prevent and respond to your child's inappropriate conduct.

Evidence is used to prove what you are saying is true.  It is one thing for a parent to claim a child needs a certain service or program, but quite another thing to prove it.  In a due process hearing you must have independent evidence to prove your case.  But gathering evidence is vital outside of the adversarial process.  Parents who can cite evidence that supports their child's legal rights are likely to reach a more timely and acceptable resolution with the school district.

So what constitutes evidence?   Test scores, evaluations, meeting notes, letters, and emails are all evidence.  Oral communications are also evidence, but they are often seen as less reliable because they are harder to prove.  To deal with this problem I recommend that parents keep a journal that contains the date, location, and content of any verbal communication they have with the school.  Record these interactions directly after they happen, that way your memory is fresh.    

Another way to permanently capture oral communication is by writing a follow-up letter.  If a school administrator promises a service for your child in a meeting, send a follow-up letter to that person the next day and refer specifically to what they said.

Journals and follow-up letters can also be used to document inaction.  It's hard to prove a negative, but if you record your repeated requests or unreturned calls in a journal that is evidence too.

Creating a paper trail of your story not only results in evidence you can put forth at IEP meetings, mediations, and due process hearings,  it makes everything you say more believable because your statements are grounded in facts.