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

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.

Read the entire decision 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.

To read the entire decision, click 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.

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.

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."

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.

This question was posted on Avvo.com by an individual in Melville, NY.  Here is my response:

FERPA stands for the Family Educational Rights and Privacy Act. It gives parents the right to inspect, review, and receive a copy of their child's educational records. Under the law, parents may request that school officials explain the contents of the record, and if the parents disagree with its contents, they may ask the school to amend inaccurate information. FERPA also forbids the disclosure of any "personally identifiable information" about the child without parental consent.

I would recommend hiring a lawyer if you are having difficulty accessing or amending your child's file or if you feel confidential information about your child has been compromised.