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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.
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.
Parents have 30 days to review and to make a decision about the IEP. Parents can accept the IEP, reject the IEP or accept in part/reject in part.
When parents reject an IEP in whole or in part, the school must notify the Board of Special Education Appeals (BSEA). After receiving the rejection, the school must notify the BSEA within 5 DAYS. 603 CMR 28.08(3)(b). The BSEA then notifies parents and the school of their right to request a hearing and/or mediation. To read more on rejecting an IEP click here, and feel free to leave any comments.
When you disagree with the school in a special education matter, there are a variety of ways you can try to resolve the dispute. The avenue you pursue may affect the outcome, so it's important to discuss the pros and cons of each approach with a special education attorney.
Mediation: Special Education Mediation is a voluntary and confidential dispute resolution process available at no cost through the BSEA. In mediation, an impartial mediator helps parents and school staff clarify the issues and underlying concerns, explore interests, discuss options and collaborate to reach mutually satisfying agreements that address the needs of the student. The mediator does not decide how to resolve the dispute.
Advisory Opinion: The advisory opinion process is an optional dispute resolution process available to parties who have requested a due process hearing. Each party has one hour to give a brief presentation of its case after which the hearing officer issues a written, nonbinding opinion within an hour of the close of the presentations. The parties may agree prior to the commencement of the process, apart from the hearing officer, to make the resulting opinion binding on the parties
SpedX: A dispute resolution pilot project that will be available in certain cases after an IEP has been rejected or a hearing request has been filed. It is voluntary and involves a jointly agreed-upon independent SpedEx consultant at no cost to the parent. The consultant helps determine whether the IEP provides the child with FAPE in the LRE. Parties are not bound by the consultant's report and recommendation.
Due Process: Due Process hearings are more like a formal trial. Parties often employ attorneys and a hearing officer issues a binding decision. Witnesses can be subpoenaed and exhibits are introduced. Read more about due process hearings here.
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
(1) Is Student Safe in school?
(2) Is Student's paraprofessional appropriate?
(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.
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.
Federal law provides for expedited hearings in certain situations. In Massachusetts, The Bureau of Special Education Appeals determines whether expedited status should be granted to all or some of the issues. If there are any remaining issues, those will be processed on a non-expedited track. Whenever possible, both cases will be heard by the same Hearing Officer
Situations Warranting Expedited Status:
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.
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.
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."
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