Case Name: In re: Rick (BSEA #11-6535) Foxborough Public Schools Decision Date: September 2, 2011 Hearing Officer: Raymond Oliver Representation: Thomas Nuttall, School Attorney Parents, Pro Se
Issue Presented: Does school's proposed IEP provide a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
Decision: Yes, the IEP provides FAPE. To quote the Hearing Officer, "I find that in all school areas, Rick is truly a success story." In response to Mother's previous multi-page IEP rejections the Hearing Officer writes, "An IEP is designed to be a functional blueprint for addressing a student's special education needs, not an encyclopedia."
My Comments: This decision highlights a common situation when school districts will request a BSEA hearing. In this case, there were five years of partially rejected IEPS and various assertions of stay-put during appeal. The school was confused about what portions of the IEP they were supposed to be implementing. The Hearing Officer agreed that this situation was "unworkable." With this decision, the school has a "clean IEP" and a clear understanding of what program to implement.
Remember, the best special education attorneys in Massachusetts consistently review and analyze hearing decisions by the Massachusetts Board of Special Education Appeals (BSEA). Hearing decisions provide insight into the litigation interests of school districts, their attorneys, and the legal reasoning of hearing officers. If you have a question about your child's special education rights, including the right to stay-put, contact Massachusetts special education Lawyer Lillian E. Wong today.
On December 10, 2010 Mitchell D. Chester, Ed.D., Commissioner of Elementary and Secondary Education, proposed the following changes to Massachusetts' Special Education Regulations.
Parental Consent This proposed change would clarify parents' right to revoke consent to all special education and related services, and will eliminate the suggestion that a school may file a due process hearing or court action to challenge a parent's decision to revoke consent to all special education and related services.
Bureau of Special Education Appeals The proposed change indicates that the BSEA is a subdivision of the Division of Administrative Law Appeals and no longer within the Department of Education.
Interpreting Services The proposed change would require sign language interpreters to be registered with the Massachusetts Commission for the Deaf and Hard of Hearing.
Independent Education Evaluations The proposed change would clarify the five school day timeline for responding for a parents requesting an IEE under federal law.
The Massachusetts Bureau of Special Education Appeals has released its statistics for 2010.The statistics reveal that most disputes with school districts result in a resolution long before a hearing decision is issued, and if the dispute reaches the hearing stage the school district is likely to prevail.854 cases voluntarily participated in mediation and 84.5% ended in a legally binding agreement. 545 parities requested hearings, but the vast majority of disputes were resolved before a decision was issued.Only 50 hearing decisions were issued and the school district prevailed outright in 58% of the time, the parents only prevailed 18%, and 8% of the time mixed relief was granted. School districts were represented by counsel 100% of the time.Of the 29 cases where the school districts fully prevailed, parents were represented by counsel in 8 cases (27% of the time).Of the 9 cases where parents fully prevailed, parents were represented by counsel in 5 cases (56% of the time).In cases where mixed relief was granted, parents were represented by counsel in 5 cases (63% of the time). These statistics highlight the importance working with a special education lawyer when pursuing a due process claim.
Parents have 30 days to review and to make a decision about the IEP. Parents can accept the IEP, reject the IEP or accept in part/reject in part.
When parents reject an IEP in whole or in part, the school must notify the Board of Special Education Appeals (BSEA).After receiving the rejection, the school must notify the BSEA within 5 DAYS.603 CMR 28.08(3)(b).The BSEA then notifies parents and the school of their right to request a hearing and/or mediation. To read more on rejecting an IEP click here, and feel free to leave any comments.
Case Name: Student v. Salem Public Schools (BSEA #10-6335) Decision Date: May 14, 2010 Hearing Officer:Rose I. Figueroa Representation:Colby Brunt,School Attorney Parent, Pro Se Issues Presented: (1) Is Student Safe in school? (2) Is Student's paraprofessional appropriate?
Decision: (1) Student is safe in school.The Hearing Officer concluded that Student's disabilities (a thirteen-year-old seventh grader with autism spectrum disorder) impact her ability to accurately relate back events that occurred at school.Parent's assertion that Student was not safe in school were based entirely on Student's reports.The Hearing Officer found the testimony of School personnel and the Student's Guardian at Litem persuasive on this point.The Hearing Officer seemed satisfied that students Behavioral Intervention Plan and paraprofessional support provided Student with a Free Appropriate Education.
(2) Student's paraprofessional is appropriate, and highly qualified.The Hearing Officer concluded that Student's paraprofessional was not abusing Student and was highly qualified.This decision was based on Student's inability to accurately report events and observations and testimony from School personnel and the Student's Guardian at Litem.
My Comments: This decision highlights a broken relationship between Parents and the School.Mediation between the parties was not successful.The School involved the juvenile justice system, further alienating the mother.Student's mother worried the school was not keeping her daughter safe and did trust the School's assertion that it was keeping Student safe.Ultimately, the Hearing Officer sided with the School.Hopefully the testimony during this due process hearing helped assure the mother that her daughter was indeed safe at school.
Once the IEP team proposes an IEP, parents have the right to accept or reject the program, in whole or in part. Parents must indicate their response on the IEP, sign the document, and return it within 30 days of receipt. If the document is not returned within 30 days, the school may assume that the IEP has been rejected. Even if you strongly disagree with the proposed IEP or placement, it is always better to continue to communicate with the school and express your concerns in writing.
Reject in Whole or in Part?
Usually, it is better to reject only the portions of the IEP you disagree with and to accept the others. This is especially true if this is your child's first IEP. If you reject the entire first IEP, your child will not receive any special education services. Whatever services of the IEP the parents accept should be immediately implemented.
When parents reject the IEP, "stay-put" applies if the child has already been found eligible for special education services . This means that the school must continue to implement the last agreed upon IEP until parties agree otherwise or a hearing officer rules on the child's special education rights.
Referral to BSEA
When parents reject an IEP the school should refer the case to the Bureau of Special Education Appeals (BSEA). Parties can voluntarily participate in mediation. If mediation is forgone or unsuccessful, the dispute is resolved by an impartial hearing officer in a due process hearing. While the school is required by law to refer rejected IEPs to the BSEA, this referral often does not occur. Instead, schools will convene numerous IEP meetings in the hope of resolving the disagreement. If you believe your position is strong, you also have the right to initiate a BSEA hearing.Learn more about due process hearings in Massachusetts here.
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.
Federal law provides for expedited hearings in certain situations. In Massachusetts, The Bureau of Special Education Appeals determines whether expedited status should be granted to all or some of the issues. If there are any remaining issues, those will be processed on a non-expedited track. Whenever possible, both cases will be heard by the same Hearing Officer
Situations Warranting Expedited Status:
Parent disagrees with school district's determination that student's behavior was not a manifestation of the student's disability.
Parent disagrees with any decision regarding placement in the discipline context.
Health and safety of student or others would be endangered by delay.
Special education services the student is currently receiving are sufficiently inadequate that harm to the student is likely.
Student is currently without an available educational program or the student's program will be terminated or interrupted.
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.