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

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

Question:

My son is 5 yrs old and now in Kindergarten. He was just recently diagnosed w/ selective mutism. He struggles at school socially, I addressed this concern with the head start program last year, they continued to pass it off as shyness. He went the ENTIRE year without speaking to the teacher and/or social worker. The head start program is meant for "early intervention" yet no screening took place. I am concerned for other children who may be experiencing this same problem, tax dollars and/or county money is used for this early intervention program yet they are not properly screening and/or detecting issues that are of concern. Please advise, any help is appreciated.

 

My Answer:

The "child find" requirement covers all children, from birth to 21 years old.  Compensatory education may be granted in local educational agencies fail to perform this affirmative duty.  Please be advised, however, that early intervention laws and procedures vary by state, so I suggest you consult with a special education attorney in your state.  You can find one by visiting www.copaa.org.

Call your state representatives and tell them you support House Bill 487, also called the Special Education Attorney's Fees Bill.  You can find your representative here.

Summary of the Attorney's Fees Bill
(Summarized by the Massachusetts Advocates for Children)

This bill is critical to save money for school districts and families and level the playing field by encouraging prompt and fair settlement agreements, and ensuring that all families, regardless of income, have an opportunity to exercise essential due process rights

As a result of a Rehnquist Supreme Court decision in 2001, parents are no longer entitled to attorney s fees if the parties negotiate a settlement agreement. Prior to this Supreme Court decision, parents who filed appeals were entitled to fees if they prevailed in a case that was fully adjudicated by a hearing officer or if the parent prevailed through a settlement that was negotiated as a result of litigation.H.487 will reinstate parents' rights to fees as previously available prior to the 2001 Rehnquist decision. 

The impact of the Rehnquist decision is to discourage settlements, with lengthy delays in resolution of cases, resulting both in harm to children who remain without services for the lengthy duration of the legal process and in needless litigation expense.

Delays do not impact all children equally.  Under federal special education law, families with the means can place a child in a private school pending a hearing and seek retroactive reimbursement, while low and middle income families cannot afford this opportunity.

The sooner children receive appropriate special education services, the more likely they will be to make adequate progress and achieve state standards as measured by MCAS.

In 2005, the US Supreme Court ruled that the party seeking to change a placement the parents in the vast majority of cases carry the burden of proof in special education cases, creating even greater obstacles for parents. As emphasized by the dissent, districts have greater access to information, expertise, and resources.  

We now have a two tier system:

1. Families with means can enforce their special rights
2. Middle and low-income families are left behind

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

Question:

Can a negative mark on my child's record be avoided by removing him from a school district prior to a hearing?  If my child is removed from the district prior to his hearing, does that keep his record clear. He is being evaluated for ADD/ADHD.

My Answer:

You should contact a special education attorney.  There are special legal protections for children being disciplined if their behavior was a manifestation of their disability. Does your child have an Individualized Education Program (IEP)? Even if he doesn't, he may still receive special education protections if he should have been receiving special education services due to his ADD/ADHD. A special education attorney can also help you request to amend your child's record

The Individuals with Disabilities Education Act (IDEA) and its Massachusetts equivalent provide children receiving special education numerous rights and protections.  These and other statutes, regulations, and decisions constitute special education law.  But the law is only effective if it is enforced.   To understand the implications of enforcement, speed limits provide a useful analogy. 

We all know it is against the law to drive over the posted speed limit, and yet many people continue to speed.  Admittedly, there are people who drive under or at the speed limit simply because it is the law.  Those people are few and far between.  Sometimes we speed because we honestly don't know the limit or we are not paying attention to the speedometer.  But most of us also know that if we go only a few miles per hour over the limit, we probably won't get pulled over.  We also learn what roads are speed traps and which ones are never monitored and adjust our behavior accordingly. 

School Districts are like drivers.  There are some who follow the law because it is the law.  Others are confused or ignorant about special education law, or simply overburdened with their many other responsibilities.  But then there are the school districts that know the law, and blatantly disregard it.  Why do they do this?  Because they are not being held accountable for their actions. 

So how do you as a parent enforce your child's rights?  Figure out what kind of "driver" your school district is.  If they don't know the law or were unaware of their mistake, a simple written reminder quoting the law will often solve the problem.  But sometimes, schools, like speeders, need a fine to alter their behavior.  If the school knows the law, but willfully ignores it, parents must pursue a due process hearing and hold the school accountable.  While this process can be stressful and costly, it is sometimes the only way to take this allegorical reckless driver off the road.

The Op-Ed:

Hold up on cuts to special needs

My response to those complaining that medical insurance should pay for disabled students' medical care while at school:

The laws and regulations governing what constitutes a special education cost are complex.    For example, surgically implanted medical devices, like cochlear implants cannot be funded through special education.  However, school nurse services such as catheterization or blood pressure monitoring may be considered a related service under the Individuals with Disabilities Education Act (IDEA) if such services are necessary for a child to access special education.

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

Question:

My son has an autism spectrum disorder. He has problems, and is not in the appropriate special ed class, despite a request to change. He has had CPS called because of issues that are related to his problems, more than once. He has trouble with appropriate urination, which is common in autism, and he has had times where he has been told he stinks even though he has showered and his clothes directly from the dryer. They say it is cat pee, and while we have cats, this isn't the problem. I do everything I can to make sure he doesn't "smell" before he leaves. This isn't the first time they have called, despite my discussing his issues beforehand, and I believe that some of his other harassment including excessive use of time out room are because the teacher doesn't know how to deal with him.

Answer:

The short answer is yes, you can file a harassment claim.  The real question is, should you?  First, schools have an obligation to call CPS if they suspect a problem.  Courts will give this obligation a lot of deference.  Courts give schools a lot of deference in general.  Also, since your child may have difficultly expressing himself, the school may feel an investigation is even more necessary.  That said, I understand how insulting and frustrating a situation like this can be.  Unfortunately, your story is quite common.

In my opinion, your real focus should be your son's education.  If I had to pick a battle to fight, I would begin fighting for him to be in the appropriate class.  If you sue the school, you risk creating an even more adversarial relationship with the school, and the school may in turn, automatically disagree with your requests for placement.

I recommend that you consult a special education attorney.  You can find one via the Council of Parent Attorney and Advocates (www.copaa.org).

The Article:

Sensory processing disorder is real to thousands of kids - The Boston Globe

My thoughts:
I am interested to know what kind of services, if any, Ana receives from her public school. The Individuals with Disabilities Education Act (IDEA) and its Massachusetts equivalent seems like it should apply in this case. I am a special education lawyer and help children like Ana and her parents advocate for their legal right to free and appropriate education. While a DSM addition would certainly help children like Ana receive appropriate accommodations, it is not legally necessary.