Yesterday, the Supreme Court decided, 8-0, in Fry v. Napoleon Community Schools, that families do not have to exhaust remedies under IDEA when rights are fully supported by the ADA and Section 504. This is a huge deal in the special education legal community. It means that families do not need to wast time and money asserting concerns in a forum that can not address their needs before proceeding to a court that can. You can read the entire decision here.
A big THANK YOU to this family for bringing their fight all the way to the Supreme Court and sharing their story.
Educators, including teachers, professional support personnel, and administrators, are generally required to hold a license issued by the Massachusetts Department of Elementary and Secondary Education to be eligible for employment in public schools in the Commonwealth. The Public Lookup tool provides information about the current status of educator licenses in Massachusetts. You can find the tool here.
Attorney Lillian Wong advocates for the educational rights of children on IEPs throughout Massachusetts. Her office is located in the greater Boston area.
Is your child on an IEP?
Is your child angry, sad, anxious, acting out or withdrawn?
Are you concerned about how your child is behaving?
Has your child been diagnosed with ADHD, Conduct Disorder or other emotional problems?
ARE YOU HAVING A PROBLEM UNDERSTANDING AND COPING?
You are not alone. NAMI Basics is for you!
NAMI Basics is a 6 week education program for parents and caregivers of children and adolescents living with emotional and behavioral issues. NAMI Basics is taught by understanding teachers who are parents or caregivers of children with similar issues. Taking NAMI Basics will give you the tools you will need to help you make the best decisions possible for the care of your child. You will learn communication tips, how to problem-solve and the skills to help you cope with the emotional impact of caring for your challenging child. You will find out about the IEP process, insurance, benefits, diagnoses and treatment.
Read more and preregister here.
As a special education attorney, Attorney Lillian Wong represents and advocates for children with emotional and behavioral challenges throughout Massachusetts. Contact her North Shore office today for more information.
We are pleased to announce that for the fourth consecutive year, Attorney Lillian Wong has been selected to the Super Lawyer New England Rising Star list for her work in School and Education Law.
Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers selects attorneys using a multiphase selection process. Peer nominations and evaluations are combined with third party research. No lawyer pays to be selected to the list.
Lillian Wong is a special education attorney who represents and advocates for children's educational rights throughout Massachusetts. Her office is located in Topsfield, Massachusetts.
Attorney Wong joins leading Massachusetts Attorneys for Children with Special Needs in Response to Settlement Agreement Investigation
Yesterday, in response to a recent news story about the role of settlement agreements in special education disputes, many of Massachusetts' leading special education attorneys for students with special needs, including Attorney Lillian Wong, issued the following statement:
To Channel 5 News:
The undersigned are attorneys who represent parents and children in education cases throughout Massachusetts. Some of us work for not-for-profit law firms and others engage in private practice, but we all have substantial experience with the settlement process as well as with special education litigation in Massachusetts.
Your recent story about settlement agreements in special education cases was somewhat misleading in appearing to suggest that such agreements are an unusual and perhaps inappropriate practice. While all students are entitled to a free appropriate public education from their local public schools, as in many areas of today’s society, it is not unusual for there to be disputes between the participants in the process. In the vast majority of all special education matters, parents and school districts work together and agree on appropriate accommodations, services and programs for special education students.
However, for a small fraction of all special education students, parents and school districts disagree about how a school district should provide the student with a free appropriate public education. When these matters cannot be resolved at the local level, parents have the right to go to a due process hearing before the Bureau of Special Education Appeals.
Like any litigation, a special education hearing can become expensive and risky. Therefore, many parents choose to enter settlement agreements, even paying part of the costs of special education programs, rather than go to a full hearing and risk losing. This is reflected in statistics from the Bureau of Special Education Appeals, indicating that over the last 10 years between 95 and 97 percent of all of these disputes are resolved without a full hearing. (See attached) This is not an unusual statistic. In Superior Court in Massachusetts the percentage of all types of litigation disposed without a trial is strikingly similar. (See attached)
As with any area of law, the terms of settlement agreements vary based on the individual facts in the case, including the strength of the merits of the case. Thus, the very fact that settlement agreements vary does not necessarily mean that the agreements are unfair or that they reflect discrimination or favoritism. To suggest otherwise is both misleading and unfair.
Attorney Wong to discuss the role of discovery at the BSEA before the Coalition to Defend Special Education
On October 27, 2016, Attorney Lillian Wong, the principal at The Law Office of Lillian E. Wong, LLC in Topsfield, and Attorney Eileen Haggerty, a partner at Kotin, Crabtree and Strong, LLP in Boston, will present to the Massachusetts Coalition to Defend Special Education. The Coalition is a major initiative of the Massachusetts Advocates for Children (“MAC”) and is comprised of over 400 parents of children with disabilities, advocates, and special education attorneys in the public and private sector.
Attorneys Haggerty and Wong will examine the role of discovery in Bureau of Special Education Appeals (“BSEA”) disputes and provide practical insights about how to leverage the discovery process to achieve the best outcome for students with disabilities while simultaneously controlling the cost of litigation. Attorney Wong will also discuss a recent BSEA ruling where she successfully advocated for the discoverability of text messages.
For the first time in over thirty years, the nation's highest court has agreed to hear arguments about the level of educational benefit an IEP must provide in order to comply with the Individuals with Disabilities Education Act ("IDEA") and provide a Free and Appropriate Public Education ("FAPE").
Today the Supreme Court of the United States granted a writ of certiorari in the matter of Endrew F. v. Douglas County School District RE-1. This case is an appeal of the Tenth Circuit ruling that held an IEP needed to provide a boy with autism "merely more than a di minimis" educational benefit. Many other circuit court of appeals use this standard to measure FAPE. Other circuit court of appeals use a "meaningful educational benefit" standard, which is arguably much higher than a "merely more than a di minimis" standard.
Massachusetts, as part of the First Circuit, requires more than simply a “trivial” or “de minimis” benefit, while also noting that the benefit or access provided must be “meaningful.” See, e.g., D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012);
I look forward to closely following this case as it will likely have important implications for children with special education needs in Massachusetts and throughout the country.
Attorney Wong recently prevailed in an important discovery dispute at the Bureau of Special Education Appeals ("BSEA"). While the BSEA does not always publish its Rulings, this Ruling was published and can be read here - In Re: Student v. Arlington Public Schools BSEA # 16-11465 (Figueroa, 2016). This is the first published Ruling in Massachusetts regarding the relevance of text messages in special education disputes.
The Ruling was issued in response to the District's request for a protective order (the District did not want to provide Parents with all the documents requested via discovery). The District, citing another BSEA Ruling (In Re: Grafton Public Schools and Logan, BSEA #1506275, 21 MSER 131, 132-133 (2015), claimed they only had to provide Parents with documents placed in the student record, but did not need to provide teacher meeting notes or text messages. Attorney Wong successfully argued that documents not located in the student's educational file, including text messages, are in fact discoverable. As the Hearing Officer explained,
At times, information shared informally between teachers/service providers and parents/ students or between school personnel may not be maintained in the ordinary course because the communication occurs via a private telephone, or computer, and is discarded or may be kept in a private device. This is particularly so with information shared via emails or text messages. While much of this information may be inconsequential, some may be relevant as to the student’s academic and/or emotional functioning, and or a staff’s impressions or concerns regarding the student. These snapshots may bear direct relevance to the appropriateness of a student’s program and placement as they may provide insightful information as to what works or not with a student, and therefore, should be part of the student’s record. However, because of the private nature of the device used for communicating, there may be a false sense of privacy regarding those communications; while the device may be private, the communications are not. As such, the communications are discoverable whether or not they are contained in the student record.
This Ruling is important, not only because it was a case of first impression regarding text messages, but also because it stands in opposition to the previously cited Grafton ruling. Grafton greatly restricted Parents' access to information about their child's program. This Ruling counters Grafton with a broader discovery standard that will help Parents meet their burden of persuasion.
If you are considering hiring an attorney to represent your child's rights at the BSEA, contact Lillian E. Wong today.
On July 26, 2016, the United States Department of Education’s Office for Civil Rights (OCR) published a Dear Colleague letter and Resource Guide to ensure that students with attention-deficit/hyperactivity disorder (ADHD) were receiving a Free Appropriate Public Education (FAPE). OCR wrote the letter in response to concerns that school districts were not properly identifying, evaluating, and meeting the needs of students with ADHD. You can read the entire letter and guide here.
OCR reminded districts that because of the Americans with Disabilities Amendments Act of 2008 (Amendments Act), more students with ADHD are entitled to protections under section 504. This is because the Amendments Act required a broad definition of disability; expanded the list of major life activities to include concentrating, reading, thinking and functions of the brain; and prohibited the consideration of the ameliorative effects of medication when evaluating whether a student has a disability. You can read more about those changes here.
OCR warned that school districts should not assume that a student’s academic success necessarily means that the student does not have a disability. If a student was receiving good grade, but spent an extraordinary amount of time studying, required extra help at home to complete assignments and/or needed extra time to finish exams, this student may in fact have a disability and these mitigating measures would in fact serve as evidence of the disability-related need. OCR reminded districts that an academically gifted student may still require specific and explicit instruction in order to reliably record homework assignments, organize information into class notes, state a multi-stage project, write more efficiently, or respond to challenges relating to attention and concentration.
Another interesting aspect of the guidance is the reminder that in order to evaluate a student with suspected ADHD, the school district may need to provide a medical assessment of the student (with parental consent) at no cost to the parents. In other words, the district cannot deny services because a student has not been diagnosed with ADHD by a medical doctor. If that evaluation is required, the district must propose and provide it.
Finally, OCR wrote that they “cannot overemphasize” the importance of ensuring that a 504 Plan or IEP is actually implemented. OCR explained this failure occurs most in two different scenarios: first, teachers and other staff are completely unaware that a plan exists; or, the plan is so vaguely worded that the parties are unclear or disagree about what the plan requires. In my years of experience as a lawyer representing students with ADHD, I have to agree that these failures are pervasive and often result in a denial of FAPE.
If your child has ADHD and you are concerned about their educational progress, contact the North Shore Massachusetts office of attorney Lillian E. Wong for an initial consultation.
On July 14, 2016 the State Director of Special Education issued an advisory to help school districts provide students on IEPs with high quality transition services. You can read the entire advisory here. The advisory encourages districts to make transition services "purposeful and sequential" with the goal of being individualized and results oriented.
If you are concerned that your child's IEP and transition services are not preparing him or her to function as independently as possible, contact Massachusetts attorney Lillian E. Wong.
|The Law Office of Lillian E. Wong||
the law office of lillian e. Wong
It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.
Brown v. Board of Education, 347 U.S. 483 (1954)
The Law Office of Lillian E. Wong, LLC
15 Morningside Drive
Topsfield, MA 01983
15 Morningside Drive
Topsfield, MA 01983