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

Check out this great New York times article and video about APD and Rosie O'Donnell's personal experience with her son's disorder.  It is inspiring to hear that with proper diagnosis and intervention children with this challenge can make such amazing progress.

I recently came across this article in my copy of Parenting magazine.  While I applaud the magazine for addressing learning disabilities, I was disappointed with the advice.  In the article, a mother of a child with learning disabilities asked the magazine financial expert, "My son has been diagnosed with learning disorders. A special school could help him -- but it costs $7,000 a year. That's about what we have budgeted for savings and chipping away at our debt. Should we do it?"  While the expert did indicate that public funding for the school may be available, that was not the main focus of her answer.


My Response:

As a special education attorney, I think it is very important to emphasize that if a child needs to be educated in a special school it is the school district's legal responsibility to pay for the tuition.  Navigating special education law can be confusing, especially when advocating for private placements.  It is a good idea to contact a special education lawyer who can consult with you about the process and assess the strength of your case.

Yesterday's Boston Globe Sunday Magazine had a very interesting article about early-childhood mental health and treatment.  To read the entire article click here.

My comments:

Early intervention programs for learning disabilities have been proven effective scientifically, which saves taxpayers money. I believe the same will be proven true for emotionally disturbed children.

Massachusetts Education Regulation 603 CMR 46.00 governs the laws of physical restraint in public elementary and secondary education. 

Purpose

The purpose of the regulation is "to ensure that every student participating in a Massachusetts public education program is free from unreasonable use of physical restraints."  As a general rule, "physical restraint shall be used only in emergency situations, after other less intrusive alternatives have failed or been deemed inappropriate, and with extreme caution."  The regulations require schools to develop written physical restraint procedures and to conduct in-depth staff training. 

When Physical Restraints can be Used

Physical restraint can only be used if non-physical interventions would not be effective AND the student's behavior poses a threat of imminent, serious, physical harm to self and/or others.  Physical restraint may NEVER be used as a form or punishment or as a response to property destruction, disruption of school order, a student's refusal to comply with a school rule or staff directive, or verbal threats that do not constitute a threat of imminent, serious, physical harm.

The major exception to these requirements is when restraint is administered to a student with a disability pursuant to IEP or other written plan to which student's parent or guardian has agreed.

Proper Administration of Physical Restraint

Restraint must only be administered by trained personal in the safest method available and appropriate for the situation.  Restraint must never prevent student from speaking or breathing.  Restraint must prevent or minimize physical harm.  If, at any time during a physical restraint, the student demonstrates significant physical distress, the student must be released from the restraint immediately and school staff must seek medical assistance.   Restraint must discontinue as soon as possible.  Restraint lasting more than twenty minutes is considered an "extended restraint," which triggers additional reporting requirements.

Reporting Requirements

Physical restraint must be reported if it results in injury to a student or staff member or if the restraint lasts longer than five minutes.  Parents and school administration must be verbally notified as soon as possible.  School administration must a written report on the next school working day.  Parents must receive a written report in three school working days.  The regulations also describe the contents of the report.  If the restraint resulted in serious injury to the student or staff or if the restraint lasted more than 20 minutes, the written report must be send to the Department of Elementary and Secondary Education within five school working days.

Update on HR 4247

HR 4247, which would prohibit use of physical restraints in schools, passed the House on March 3, 2010.  The Senate has not yet voted on the bill.  For more about the bill, click here.

When to Contact an Attorney

If you believe your child has been improperly physically restrained or disagree with the school's decision to include physical restraint in your child's IEP or behavior plan, contact a special education attorney.

Case summary:  School district indefinitely suspended Student with a disability, alleging Student had inappropriately touched others, attempting to give them "wedgies."   School proposed a substantially separate placement.  Attorney Wong, on behalf of  Parents, argued for Student's return to the general education setting with a comprehensive behavior plan in place.  Hearing Officer agreed with Parents that the general education classroom was the least restrictive environment and ordered that Student be allowed to return to his regular education classroom.

To read the entire decision, click here.

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

Question:
My son is disabled and we have been having a problem with our school system. He has a special ed teacher that has said statements to him like "you will never get your driver's license because you can't read" "you will never get a job because you are too lazy and don't know how to do anything" there has been many other comments. I'm just wondering if I have a case?

My Answer:
I'm not sure what kind of case you are contemplating.  Certainly, this teacher should be reported to the Department of Education in your state.  You can file a complaint yourself, or work with an education attorney.

My main concern is that this person is charged with educating your son.  There is an argument that the school has failed to provide your child with a free and appropriate education (FAPE) if the special education teacher is disparaging your son, calling him lazy, and your child is not able to read.  The remedy for failure to provide FAPE is compensatory education. 
 
Cases like these are complicated.  It is hard for me to give more advice without consulting with you further.  I suggest you speak with a special education attorney in your area.  You can find one at www.copaa.org. 

Until then, I would encourage you to document each one of these comments and make the school aware of these issues in writing.  You can learn more about creating a paper trail here.

I've spoken to many parents who believe that mediation is mandatory in Massachusetts.  This is not the case.  Mediation is voluntary.  If the school requests mediation, parents can decline.  Similarly, parents can invite the school to mediation and the school can refuse to participate.  Participation in a due process hearing is mandatory.  This is one way mediation differs from a due process hearing. 

There are many other important differences between due process and mediation.  The outcome of a due process hearing is the decision of the hearing officer.  In mediation, if any decision is reached (sometimes parties can't resolve their dispute via mediation) the outcome represents the mutual decision of the parties.  The mediator's job, as the name implies, is to mediate.  If parties cannot resolve their dispute with mediation, a due process hearing may be necessary.  Mediation generally take less time than due process hearings.  Therefore, a successful mediation session saves time, but an unsuccessful mediation session prolongs the process.  There are other very important factors to consider when deciding to pursue or decline mediation.  I frequently consul clients on this issue, as the best  approach depends on individual circumstances.

Due Process hearings in Massachusetts are conducted by the Bureau of Special Education Appeals (BSEA).  The BSEA is located with the Massachusetts Department of Elementary and Secondary Education, but is independent from the Department.  Most Massachusetts hearings occur in Malden, although some hearings are held in Springfield and on the Cape.  Directions and parking information to the Malden location can be found here.

Due process hearings are best described as a mix between an IEP meeting and a traditional court case.   Hearings are held in conference rooms, not courtrooms.  A hearing officer presides over the hearing.  Because a hearing officer is not a judge, you should not call the officer "your honor," a respectful "Mr." or "Ms." will do.  School districts are always represented by an attorney.  Parents have the right to be represented by an attorney, advocate, or can represent themselves pro se.   Before the hearing officially begins (is "on the record") the hearing officer sets some ground rules (whether drinks or snacks are in the room permitted and how to request breaks).

Once the hearing begins the hearing officer describes the rules of the hearing.  The hearing officer will also admit the exhibits submitted by the parties into evidence.  At this point parties may bring motions.   For example, the parents may move to open the hearing or sequester witnesses.  Most hearings are closed, meaning they are confidential, but if the parent requests and the hearing officer approves, hearings may be opened to the public, including the media.  Similarly, parents may move to sequester witnesses.  The default rule, however, is that witnesses called by the school and the parents can be present throughout the entire hearing, and will hear testimony of other witnesses.

After preliminary motions, most hearing officers ask parties to present their opening statements.  After the opening statements, the moving party (the party that requested the hearing) calls their first witness.  The witness is sworn in, and the moving party examines the witness.  Witnesses cannot ask others in the room for help answering the questions posed, but if directed by the questioner, can refer to exhibits. 

Unlike traditional rules of evidence, hearsay is allowed.  Parties can object to questions.  Parties can object to the question's relevance to the case ("relevance"), that the question has already been asked of the witness and answered by the witnesses ("asked and answered",),or that the witness lacks any foundation of knowledge to answer the question ("foundation.")  

After the moving party examines the witness ("direct examination,") the non-moving party cross-examines the witness.  After the cross examination there is an opportunity for the moving party to ask any remaining questions (redirect).  The hearing officer may also ask questions of the witness throughout the testimony.  After the moving party calls their witnesses, the non-moving party calls their witnesses.  After all witnesses have testified it is time for closing arguments. The hearing officers may request oral or written closing arguments.  At this point the record of the hearing is closed.  Parties wait until the hearing officer issues his or her decision.  Parties are bound by the decision, but have the right to appeal.