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

 
 
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Last year, Massachusetts cut state aid for special education by $90 million or approximately 40 percent.  The governor’s proposed state budget for this year cuts special education funding by $5 million.   

How will this affect Massachusetts's parents and their children?  Schools will be forced to tighten their proverbial belts.  Schools districts will be reluctant to indentify children in need of special education.  Districts may fight private placements more vigorously.  One-on-one aide positions may be cut, and remaining aides will be responsible for more children.  Officials may be less likely to suggest assistive technology for those children who may benefit from it.

But while special education budgets are challenged, the laws protecting students remain the same.  If schools fail to provide children with a Free and Appropriate Education (FAPE) in the Least Restrictive Environment (LRE) they will be violating the law.  These violations could lead to costly litigation and more importantly, lost educational opportunity to many of Massachusetts's children.
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Alphabet Soup 02/14/2010
 
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Special Education Law is all about acronyms.  Here are the most important ones:

BSEA: Bureau of Special Education Appeals

C.F.R.: Code of Federal Regulations

E.I.: Early Intervention

ESY: Extended School Year

FAPE: Free Appropriate Public Education

FERPA: Family Educational Rights and Privacy Act

IDEA: Individuals with Disabilities Education Act of 2004

IEE: Independent Evaluation

IFSP: Individualized Family Service Plan

IEP:  Individualized Educational Plan

LEA: Local education agency or school district

LRE: Least Restrictive Environment

LEP: Limited English Proficient

M.G.L: Massachusetts General Laws

OCR: Office of Civil Rights

RTI: Response to Intervention

SEA: State Department of Education

SLD: Specific Learning Disability

U.S.C.: United States Code
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As a parent, you may think your child needs a specific service or program.  Perhaps your belief is founded on some research you did on the internet or a conversation you had with a friend.  But how can you convince the school to implement these changes on your child's IEP?  If the school agrees with you, that's great.  But if the school begins to question your request or flat-out refuses to provide this service or program you need a plan.

First, remember that special education is all about meeting the unique needs of your child.  You must prove with evaluations, statistics, or statements from experts that your child will receive an educational benefit from the proposed service or program.   You must also be able to argue that without this service or program your child will not receive an appropriate education.  Avoid arguing your this program is "best" for your child, since the U.S. Supreme Court held in Rowley that the school is not required to provide your child with the "best"  education possible.
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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."
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This question was originally posted by an individual in Oklahoma on www.avvo.com. 

Here is the unedited text of his question:

If a high school i am attending is clarly messing up my credits in orderfor e to graduate what are my rights?  I have been going to western heights in oklahoma since 2007..and they keep telling me i have thive me the help i need the same credits when i workhard to do what i need to.they keep switching me in and out and wont give me help i deserve

Here is my response:

Have you ever been evaluated for or identified as having a disability?  Do you have an individualized education plan (IEP)?  If so, your school is required by law to provide you with a free and appropriate education (FAPE), through special education and related services.  Special education is not a room or a specific program, but "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability" and to "prepare them for further education, employment, and independent living." 20 U.S.C. §1401.  If you believe you qualify for special education, but have not been identified, you can request an evaluation.  You also may be entitled to compensatory education if you should have been receiving special education earlier.  Compensatory education is a legal term used to describe future educational services awarded to disabled students for the school district's failure to provide a Free and Appropriate Education (FAPE) in the past.

If you need help advocating for your child's special education rights, contact the Boston area law office of Massachusetts special education lawyer Lillian E. Wong.

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Question:
What is Texas education law regarding missing school due to a disability?  My daughter is an A student but due to her blood disorder she has missed 20 days from school so far this year. Can she be left back due to her disability? (Houston, TX)

My Answer:
Your child may qualify as a student with a disability under the Individuals with Disabilities Education Act (IDEA) if your child's disability adversely affects her educational performance. If this is the case, the school district must provide your child with an Individualized Education Plan (IEP). The IEP will dictate what services your child receives regardless of where she receives them. Instead of missing 20 days of school, your child might be able to be taught (at public expense) while in the hospital or at home recovering. Then, if the school decides to hold your daughter back due to her disability, they are conceding that they failed to provide her with a Free and Appropriate Education (FAPE) as mandated by IDEA and you may be entitled to compensatory services such as summer school or after school tutoring. Whenever you disagree with the school you are entitled to a due process hearing.
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When parents request a necessary, but expensive program or service for a child the school district often claim that they don't have the funding.  This response has become even more prevalent during the current economic recession.   Not only is this excuse impermissible under the Individuals with Disabilities Education Act (IDEA), it may not be true.  A recent Wall Street Journal article reports that school districts have been "redirecting" millions of dollars meant for special education students.  What's more, President Obama has increased IDEA funding by $11.3 billion for the next year.  The bottom line: if your child has a disability covered by IDEA your child is entitled to a Free and Appropriate Education (FAPE).   Cost should never be a factor.
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Parents and advocates are often too quick to view teachers as the opposition instead of the child's greatest potential ally.   Teachers in Dedham demonstrated their commitment to educating students when they filed a complaint with the Department of Education against their Superintendent for her failure to implement thirteen childrens' IEPs.

See the complete Boston Globe story here.

The school district has agreed to provide the children with compensatory education.  Compensatory education is a legal term used to describe future educational services awarded to disabled students for the school district's failure to provide a Free and Appropriate Education (FAPE) in the past.

If you need help advocating for your child's special education rights, contact the Boston area law office of Massachusetts special education lawyer Lillian E. Wong.

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