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.
The Massachusetts Bureau of Special Education Appeals has released its statistics for its fiscal 2011 year. From July 1, 2010 until June 31, 2011 the BSEA received 8,348 rejected IEPs, an increase of 473 over the past year.
The statistics reveal that the majority of rejected IEPs resulted in a resolution long before a hearing decision was issued, and if the dispute reached the hearing stage the school district was likely to prevail. 809 cases voluntarily participated in mediation and 86% ended in a legally binding agreement. 544 parties requested hearings, but the vast majority of disputes were resolved before a decision was issued. Only 35 hearing decisions were issued and the school district prevailed outright in 63% of the time, the parents prevailed in 20% of the decisions, and 17% of the time mixed relief was granted. School districts were represented by counsel 100% of the time. Of the 22 cases where the school districts fully prevailed, parents were represented by an attorney in 9 cases (40% of the time). Of the 7 cases where parents fully prevailed, parents were represented by counsel in 5 cases (71% of the time). These statistics highlight the importance working with a special education lawyer when pursuing a due process claim.
Why this change? Are parents and schools better able to settle disputes before resorting to a hearing? Or are parents and schools just not able to afford the cost of litigation?
Whatever the reason, it is important for parents to understand that most disputes, nationally and in Massachusetts, do not result in a hearing decision. Learn more about special education dispute resolution options in Massachusetts here.
If you are in a dispute with your child's school district and considering filing a due process request, contact Boston area special education lawyer Lillian E. Wong today.
If parents are successful at hearing, the law mandates that schools reimburse parents for their attorneys' fees. Currently, expert witness fees are not reimbursable, even if parents prevail at hearing. Expert witnesses fees can be expensive. Most experts I've worked with charge around $200/hr and most hearings require many hours of an expert's time. Expert witnesses are also essential for winning a special education case.
On March 17, 2011, federal legislation was introduced to allow parents to recover expert witness fees in due process hearings and litigation under the Individuals with Disabilities Education Act. The IDEA Fairness Restoration Act was introduced in the Senate (S.613) by Senator Tom Harkin (D-IA), Chair of the Senate Health Education Labor and Pensions Committee; Senator Barbara Mikulski (D-MD), and Senator Bernie Sanders (I-VT); and introduced in the House of Representatives (H.R. 1208) by Congressman Chris Van Hollen (D-MD) and Congressman Pete Sessions (R-TX).
The bipartisan IDEA Fairness Restoration Act will restore Congress’ original intent and make due process hearings more equitable and affordable for parents of children with disabilities. Without the ability to recover their expert witness fees, few parents could afford to exercise their constitutional and IDEA rights to challenge denial of FAPE to their children by school districts.
If you are looking for a special education advocate in Massachusetts, contact Boston area attorney Lillian E. Wong today.
Special Education rights begin at birth. From birth until age three, children who qualify for special education services under Part C of the Individuals with Disabilities Education Act (IDEA) receive supports and services through Early Intervention. In Massachusetts, the agency responsible for implementing Early Intervention services is the Massachusetts Department of Health and Human Services.
Just as the IEP main document for programming the services to be given a child with disabilities under Part B of the IDEA, the principal document for identifying services for an infant or toddler under Part C is the Individualized Family Service Plan (IFSP).
The IFSP must provide the child with a Free Appropriate Public Education (FAPE). If you believe Early Intervention is denying your child a Free Appropriate Public Education, you have the right to request a Due Process Hearing and have an impartial hearing officer decide if your child is receiving FAPE through Early Intervention. IDEA also provides parents of children in Early Intervention other rights, including the right of Parental Participation.
If you need help advocating for your child's rights, contact Boston area attorney Lillian E. Wong today.
The Reality Most special education disputes are not resolved in a hearing or court decision. Instead, the majority of special education disputes are resolved informally at IEP meetings or through settlement agreements. This outcome avoids the time, cost, and stress of litigation, and is usually the best solution for parents and school systems.
The Result Unfortunately, this reality does not provide a public record of the dispute and its outcome. Attorney-Client privilege, settlement agreement confidentiality clauses, and the Federal Educational Privacy Rights Act (FERPA) all prevent parties from discussing the specifics of most special education disputes and their ultimate resolution. My practice is no different than the national trend. The majority of my cases are resolved before a hearing request is filed, and of those cases that do require a hearing request, most are settled.
Celebrating the "Quiet Victories" During the past couple of months in addition to my due process cases, I have witnessed many "Quiet Victories." A middle-school boy who hated school is now thriving in a more therapeutic and appropriate placement. A preschool child is now receiving the full-day program he needs. A young girl is undergoing a much needed extended 45-day evaluation. Because the ultimate goal of this Law Office is to help children obtain a Free Appropriate Public Education, these quiet victories are victories all the same.
If you are looking for a special education advocate in Massachusetts, contact Boston area lawyer Lillian E. Wong today.
Special education law is comprised of federal and state statutes, regulations, and case law.
Statutes The most important statute is the Individuals with Disabilities Act (IDEA). Other relevant federal statutes include Section 504 of the Individuals with Disabilities Act and No Child Left Behind. In Massachusetts, Chapter 71:B of the General Laws governs.
Regulations Federal and state educational agencies publish their interpretations of the statutes in regulations.
Case Law Case law is created when state and federal judges interpret statutes and apply them to individual controversies creating precedent.
If you have questions about special education in Massachusetts, contact Boston area lawyer Lillian E. Wong today.
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.
How do I get my Autistic son into an out of district school when the public school continues to ignore a doctor's recommendation?My son is autistic and I have filed due process last year because of an incident that should not have occurred if he had not been moved to a school that did not have an adequate autism program in place. My son cannot ask questions, still points and moans when he is frustrated. He uses echolalia when talking, which is never in a full sentence. He is 8 years old and still has to wear a overnight pamper because he still doesn't fully understand the concept of going to the bathroom. My son needs one on one therapy, with ABA one on one, a behavioralist needs to be seen at school and at home because of his violent tantrums which are dangerous to himself and others. My son gets none of these services and the school continues to try and convince me otherwise. What do I do now? I'm will file again.
This sounds like a very frustrating situation.Navigating the special education system can be difficult.I applaud your determination.
As you certainly now realize, just because your doctor recommends an out-of-district placement for your son doesn't mean the school is required to provide it.
In order to secure this placement you must establish (1) that the current placement is inappropriate AND (2) that the proposed placement is appropriate.
The law defines "appropriate" as a place where your child can make "effective educational progress" in the "least restrictive environment."Each state defines "effective educational progress" differently, so consult your state regulations and case law.Because an out-of-district placement is less inclusive than your son's current placement, you must also prove that the out-of district placement is the least restrictive environment in which your son can make effective educational progress.
How do you prove your case?With evidence - evaluations, classroom observations, and testing over time, for example.I would strongly urge you to consult with a special education attorney before filing a due process request.Good luck! If you are in the Boston area, contact The Law Office of Lillian E. Wong today.
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.