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.
The Supreme Judicial Court of Massachusetts, in Champa v. Weston Public Schools (SJC 11838) (October 23, 2015) recently decided that private settlement agreements between public school districts and parents, once redacted of personally identifiable information, are public records subject to disclosure. Previously, many school districts believed that disclosure of settlement agreements violated the Federal Educational Rights Privacy Act (FERPA) and its Massachusetts equivalent.
Settlement agreements are a frequent dispute resolution mechanism parents and districts utilize to avoid the time and cost of litigation. One of the standard terms of a settlement agreement is a confidentiality clause. It will be interesting to see what, if any, effect this decision has on special education disputes going forward. Will Districts continue to insist on confidentiality in settlement agreements? Will clients decide to request settlement agreements to compare their outcome against the work of another attorney or law firm and then possibly pursue malpractice actions? What information will be considered “personally identifiable?” (Arguably, more than a student's name will need to be redacted as it would be fairly easy to confirm the identity of the student simply by cross-referencing the name of the special education placement and the school district).
In my opinion, this decision is a win for the press, a loss for school districts and a toss-up for parents and students. Parents are now entitled to more information about deals offered to other parents, but Districts may now be more reluctant to offer a concession to Parents if they know that compromise could be broadcast throughout the community. The District’s increased reluctance to settle, combined with the decreased protections for student’s educational records, may ultimately result in a loss for students.
For more information about special education settlement agreements, student's educational privacy rights, and disputes with public school districts, contact the Massachusetts law firm of Lillian E. Wong today.
Parents and educational advocates often ask me what to do when a teacher is "bullying" a student.
Massachusetts' Bullying Law
Many people are surprised to learn that the Massachusetts Anti-Bullying law does not apply when teachers are "bullying" students. The Massachusetts Anti-Bullying law defines a "bully" as a "student," making it legally impossible for the teacher to be labeled a bully under this statute.
Reframing the Question
Just because the anti-bullying law does not apply to teacher/student interactions, doesn't mean the teacher is acting appropriately. When I'm told a teacher is bullying as student I always ask for a more detailed description about the teacher's actions.
Is the teacher refusing to implement the student's IEP or 504 accommodations? Then the teacher is denying the child a Free Appropriate Public Education (FAPE). Is the teacher continually making fun of the child's known or perceived disability? Then the teacher has committed disability-based harassment and discrimination. Is the teacher impermissibly sharing confidential information about the student? Then the teacher is violating the child's privacy rights under FERPA.
Before any parent makes allegations against a teacher, it's important to have a clear understanding of what events took place and what laws are implicated. It's also useful to corroborate reports of teacher "bullying" and provide supporting documentation to the school. If you have questions about the laws governing teacher/student interactions, contact the Boston area law office of Lillian E. Wong today.
I recently wrote an article called Education Law and ADD/ADHD Medication. In that article, I addressed whether it was legal for schools to require ADD/ADHD medication, whether teachers could talk to parents about ADD/ADHD medication, and whether schools could refuse to administer ADD/ADHD medication. Read that article here.
After reading that article, readers had one remaining question - is it permissible for my child's teacher to talk to him or her about their medication?
It depends on whether the conversation is private. If the teacher is asking your child about taking ADD/ADHD medication in front of other students or parents, the teacher is arguably violating the Federal Educational Rights and Privacy Act (FERPA). FERPA mandates that personal information, like what medication a student takes, may only be disclosed if there is a legitimate educational interest in the disclosure. FERPA also provides exceptions for disclosure in emergency situations. If the conversation is private, the teacher has acted appropriately.
If you have questions about the rights of children with ADD/ADHD, contact the Boston area Law Office of Lillian E. Wong today.
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.
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