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

 
 
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This question was originally posted on www.avvo.com

Question:

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.

My Answer:

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.
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This question was originally posted on the Concord SPEC PAC Discussion List.

Question:
How do you handle a school district, when you find out that the school attorney is blatantly misrepresenting the law? She has done that very clearly with my son.  Attorneys are very expensive, and I am not sure on how to take this further?


Answer:
First, keep your child's needs in mind.  It is very easy to get in a war of wills with the school attorney.  Before you do that ask yourself - how important is this disagreement to my child's education?  If it is important, return the discussion to your child's unique needs and away from the attorney's ego.  

Second, inform the attorney that going forward, you will only communicate in writing.  If the school attorney is misrepresenting the law make her do it in writing.  Many people say things they would never put in writing.  Why?  Because they know what they are saying is wrong.

Third, combat the attorney's inaccuracies with the truth.  Support your position with specific statutes, regulations, and case law.  Consider any legal basis for the school's attorney's position, and then discredit it.
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This question was originally posted on www.avvo.com.

Question
My child's transfer into a school district has been denied due to excessive absences although they are medically necessary.  Can I do anything to force the district to allow my child to remain in this school?

Answer
You should contact a special education lawyer. You can find on at www.copaa.org. If your child medical condition is affecting his or her ability to go to school your child might require an Individualized Education Plan. Either way, the school should not discriminate against your child because of their medical condition. That said, you will need to speak with an attorney in your area and state that understands the nuances of local and state law. In the meantime, make sure the medical absences are well documented so the school doesn't pursue truancy charges against you and your child.
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Question:

I feel like my child is being treated unfairly by his 2nd grade teacher what more can I do?  I have made it clear to the principal and teacher that I'm not happy with the situation. I have asked for a classroom change, sat in class with my son and I am at a point where I just have to tell him to grin and bare it. He is ADHD and has had no efforts by the teacher to facilitate his needs. It is to a point where she has been embarrassing him in front of other students in the classroom and although I complained It has currently had no action taken. Frankly I'm tired of him crying everyday because of her persistent bullying. Any advice would be appreciated. Thank you.

My Response:

If your child doesn't have a 504 or IEP plan, I would request that the school evaluate him, if you suspect his disability is interfering with his ability to learn. Children with ADHD often act impulsively because of their disability, and this can lead to school disciplinary action. It is always better to avoid this issue by proactively addressing the situation, often with a functional behavioral assessment and a positive behavior plan.  Other children with ADHD are disciplined by teachers for their lack of attention in class or constant fidgeting.  It is important that teachers understand that these behaviors are a result of a disability, and not simply bad behavior.

Once your child's special education needs are addressed, you could consider filing a complaint against the teacher with the Department of Education.
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This question was originally posted on www.avvo.com.

Question:

How do I pursue litigation for discrimination in the school against my son who has ADHD?  My son is diagnosed with ADHD. We recently moved into a new state/school system. He is currently under a 504 plan, but the school refuses to follow it and issues punishments for actions that are due to his disability without any discussion with us (the parents). They have repeatedly said they would call, set up a hearing, etc., but none of those things has yet happened. He has just been suspended for 10 1/2 days. How to we proceed with a grievance, and what type of lawyer would be able to represent us in this situation?

 

My Answer:

You need to talk to a special education attorney. You can find one via the Council for Parent Attorneys and Advocates website (www.copaa.org). There are special legal protections for children whose disability causes inappropriate behavior. These protections only apply if the team decides the behavior was a manifestation of the child's disability. There are also rules regarding transferring a 504 plan from the old school to the new school. A special education lawyer can also help you with this issue.
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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.
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Question:

My son is 5 yrs old and now in Kindergarten. He was just recently diagnosed w/ selective mutism. He struggles at school socially, I addressed this concern with the head start program last year, they continued to pass it off as shyness. He went the ENTIRE year without speaking to the teacher and/or social worker. The head start program is meant for "early intervention" yet no screening took place. I am concerned for other children who may be experiencing this same problem, tax dollars and/or county money is used for this early intervention program yet they are not properly screening and/or detecting issues that are of concern. Please advise, any help is appreciated.

 

My Answer:

The "child find" requirement covers all children, from birth to 21 years old.  Compensatory education may be granted in local educational agencies fail to perform this affirmative duty.  Please be advised, however, that early intervention laws and procedures vary by state, so I suggest you consult with a special education attorney in your state.  You can find one by visiting www.copaa.org.
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Question:

Can a negative mark on my child's record be avoided by removing him from a school district prior to a hearing?  If my child is removed from the district prior to his hearing, does that keep his record clear. He is being evaluated for ADD/ADHD.

My Answer:

You should contact a special education attorney.  There are special legal protections for children being disciplined if their behavior was a manifestation of their disability. Does your child have an Individualized Education Program (IEP)? Even if he doesn't, he may still receive special education protections if he should have been receiving special education services due to his ADD/ADHD. A special education attorney can also help you request to amend your child's record
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This question was originally posted on www.avvo.com. 

Question:

My son has an autism spectrum disorder. He has problems, and is not in the appropriate special ed class, despite a request to change. He has had CPS called because of issues that are related to his problems, more than once. He has trouble with appropriate urination, which is common in autism, and he has had times where he has been told he stinks even though he has showered and his clothes directly from the dryer. They say it is cat pee, and while we have cats, this isn't the problem. I do everything I can to make sure he doesn't "smell" before he leaves. This isn't the first time they have called, despite my discussing his issues beforehand, and I believe that some of his other harassment including excessive use of time out room are because the teacher doesn't know how to deal with him.

Answer:

The short answer is yes, you can file a harassment claim.  The real question is, should you?  First, schools have an obligation to call CPS if they suspect a problem.  Courts will give this obligation a lot of deference.  Courts give schools a lot of deference in general.  Also, since your child may have difficultly expressing himself, the school may feel an investigation is even more necessary.  That said, I understand how insulting and frustrating a situation like this can be.  Unfortunately, your story is quite common.

In my opinion, your real focus should be your son's education.  If I had to pick a battle to fight, I would begin fighting for him to be in the appropriate class.  If you sue the school, you risk creating an even more adversarial relationship with the school, and the school may in turn, automatically disagree with your requests for placement.

I recommend that you consult a special education attorney.  You can find one via the Council of Parent Attorney and Advocates (www.copaa.org).
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Question:
 
My 8yr old G-son has AD/HD,ODD,OCD & rides a school bus to & from school with other special need children.(7yrolds to13yrolds) There have been problems on this bus (say's the attendant reports) Like calling each other names, getting out of their seat, bouncing up and down in their seat, or just talking to another student 4seats away, some of which are petty things, some are safety issues (getting out of seat while bus is moving), but it seems my grandson is the 1who is getting wrote up, not the other child/children who are involved . Some of these kids ride this bus 7-10miles 1way to school, due to lack of Special Needs School/Education Teachers.
 
We asked that they transfer him to another bus, Transportation Say's No, because he will do the same thing on other buses! They don't know this, How could they know this, if they Don't TRY /Transfer him to another bus!  11 other kids on that bus.  My Daughter has tried to solve this problem by contacted Dept of Ed, Head of Dept. Transp,Legal Aid, Dept of Disab.advoc.(which says this could take 30-to-90 days to resolve), if it gets resolved.  Sch Principal says they will pay my daughter $14. ady to transpt.him,14miles round trip to/frm sch. thats just wrong of them to even ask her, when there's the NO CHILD LEFT BEHIND RULE/LAW! .Is there anyone who can point us in the right Direction to get help?
Thank You.
 

Answer:

First, the most applicable law in your case is the Individuals with Disabilities Education Act (IDEA) and not  No Child Left Behind.

Your child is covered by IDEA if he has an Individualized Education Plan (IEP).  Because you refer to him being in special education, I'm assuming he does have an IEP.

Special education includes "related services" like transportation to and from school, for without transportation your child would not benefit from special education.  See 20 U.S.C. §140 1(26).  Simply stated: if your child can't get to school, he can't learn, if he isn't learning, the school is violating the law.

But the analysis doesn't stop there.   The school has the right to punish your son if he misbehaves on the bus.  However, if you believe your son's behavior is a result of his disability (e.g. ADHD causing poor impulse control) the school is required under IDEA to conduct a functional behavior analysis of your son and implement a behavior plan to help prevent and respond to your child's inappropriate conduct on the bus. 
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