 On December 7, 2017, the United States Department of Education ("U.S. DOE") published a document aiming to help parents and other stakeholders better understand the U.S. Supreme Court's decision in Endrew F. v. Douglas County School District Re-1, 137 S. Ct. 988.
In Endrew F., the Court interpreted the free appropriate public education ("FAPE") requirement in the Individuals with Disabilities Education Act ("IDEA") to mean that "a school must offer and IEP [individualized education program] that is reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." The Court further emphasized that "every child should have a chance to meet challenging objectives." This new Q&A document explains that Endrew F. defined a uniform FAPE standard for all students under IDEA. The U.S. DOE further states that the "chance to meet challenging objectives" requirement applies to both challenging State academic content standards and ambitious goals based on the unique circumstances of the child. Finally, the U.S. DOE assures parents that the Endrew F. decision did not affect parents' due process rights under IDEA. If you live in Massachusetts and have a question about your child's IEP and progress, contact attorney Lillian E. Wong . Attorney Wong represents students in the greater Boston area and throughout Massachusetts.
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 Under the Individuals with Disabilities Education Act (“IDEA”) an IEP must be "reasonably calculated to enable the child to receive an educational benefit.” This is sometimes called the Free Appropriate Public Education standard or “FAPE” An "educational benefit" must be more than trivial, meaning the IEP and services must be calculated to enable the student to make "meaningful and effective progress commensurate with his or her educational potential"
Standardized cognitive / intellectual assessments provide one widely-accepted way to assess a child’s potential. The following are a list of common evaluation tools with links to descriptions of the tests:
An experienced special education lawyer or advocate can help you understand how your child’s test scores are analyzed within the context of education law. If you are concerned that your child is not making progress commensurate with his or her potential contact Boston-area Attorney Lillian Wong today.  The Individuals with Disabilities Education Act (IDEA) requires school districts to meet the needs of students with disabilities without regard to the cost. The law refers to this as a Free Appropriate Public Education or FAPE.
The FAPE mandate is at constant odds with the reality of limited school district budgets. Oftentimes, parents are told by their district that the district’s IEP proposal does meet the student’s needs, but the parents suspect the services and placement offered in the IEP are simply a reflection of the programs and services available in the district. A recent BSEA decision by Hearing Officer Lindsay Byrne, In RE: Jolene and the Natick Public Schools, BSEA # #1400521, confirms that this suspicion is often a reality. The Hearing Officer finds that the District violated the law when they offered “what [programming] was available rather than thoughtfully considering and planning for [the Student’s] individual learning needs.” When a student requires a placement or service that is not currently available in district, the district is responsible for identifying and funding that placement or service. If the district refuses to comply with the law, parents often choose to hire a special education attorney or advocate to help them secure appropriate placement and service for their child, whether in-district or out-of-district. If you are concerned about your child's IEP, contact the Boston area Law Office of Lillian E. Wong today. 
First, what is a unilateral placement? It is a self-help mechanism that parents utilize when the school district (the "District") is not providing their child a free appropriate public education (FAPE) and the parents believe that a private placement would provide the child FAPE. Instead of waiting for the District to agree to fund the placement, Parents pay out-of-pocket for the placement and try to seek reimbursement from the District.
Whether or not the Parents are entitled to reimbursement is a complicated legal question. The notice to the District must meet certain procedural requirements. I would NEVER recommend a unilateral placement without working with a special education attorney or a seasoned special education advocate. If Parents' notice is not sufficient, they are not entitled to reimbursement. Even if the request if procedurally valid, a unilateral placement is financial risky. Reimbursement is only warranted if the IEP at the time of the unilateral placement does not provide FAPE and the out-of-district placement does. Reimbursement might also be confined if the District later offers an IEP that does provide FAPE. BEFORE a parents decides to unilaterally place their child, it is very important to a comprehensive case analysis by an experienced special education attorney. This is best way for you to optimize your chances of recouping your expenses. If you are considering a unilateral placement, contact the North Shore Massachusetts Law Firm of Lillian E. Wong.  I often receive calls from parents who believe their child's educational rights are being violated because the child is making very limited or no progress at school. These stories are heartbreaking, but lack of progress alone does not establish that the school failed to provide a Free Appropriate Public Education (FAPE). Instead, to prove that the school is not meeting your child's needs you must show that your child is not making progress commensurate with his or her potential. How do you do this? In three steps. (1) Assess Potential (2) Measure Progress (2) Compare Potential to Progress. Assess Potential Assessing potential is difficult because in a way you are trying to predict the future. One of best ways to assess potential is the seek the advice of an expert. This experts needs to have experience with children whose profiles are similar to your child. This experience with your child's disability, combined with the administration of standardized testing, review of educational records, and consideration of peer-reviewed research, will provide the expert with a reliable estimate of your child's potential. Another indicator of your child's potential is in your child's IEP. When the school proposes IEP goals they are asserting that your child has the potential to meet these goals within a year. If IEP Goals are repeated year after year, there is a strong possibility that your child is not making progress commensurate to his or herpotential. Measure Progress Educational Progress is measured in many ways - report cards, progress reports, standardized tests, and observations. It is also important to consider whether your child has failed to make any progress (stagnation) or lost skills he or she once had (regression). Compare to Potential to Progress Only after you have assessed potential and measured progress can you gauge whether your child's progress is commensurate with their potential. Always keep in mind the ultimate purpose of special educational law - to prepare students for further education, employment and indepedent living. Consider your child's current trajectory of progress. If your child will not reach his or her potential post-secondary goals on this trajectory it may be time for you to request an IEP meeting and advocate for a different approach. If you are concerned that your child is not make effective progress, please contact the Boston area law office of Massachusetts special education attorney Lillian E. Wong.  What is one of the biggest mistakes parents make in the IEP process? Surprisingly, asking the school to provide "the best" for their child. Yes, all parents want the best for their child, and the other parts of the law consider "the best interest of the child," but when it comes to a Free Appropriate Public Education (FAPE) the school is only required to provide the special education supports and services that your child needs in order to make effective progress. Courts try to explain this distinction with the Cadillac vs. Chevrolet analogy. The law requires that each child receive an education comparable to a "serviceable" Chevrolet, not a luxurious Cadillac. As the U.S. Supreme Court explained in Rowley, the Individuals with Disabilities Education Act (IDEA) requires a "basic floor of opportunity," not the best possible education. The takeaway: don't ask the school to provide what's best for your child (the Cadillac), but frame all special education requests in terms of your child's needs (the Chevrolet). If you have questions about special education law, contact the Boston area law office of Lillian Wong today.  The Question 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. Getting Help 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.  On December 16, 2011 the State Director of Special Education, Marcia Mittnacht, issued a Memorandum advising against Procedures Lite for "legal and policy reasons." In October, I warned parents against Procedures Lite. Read the entire article here. Many other special education advocates did the same. Ultimately, the Massachusetts Department of Education came to the same conclusion I made in October - "Procedures Lite" violates the law. If you have questions about your child's special education rights, contact the Boston area office of Lillian E. Wong today.  UPDATE: On December 16, 2011 the Massachusetts Department of Education advised against Procedures Lite. Read the entire article here. Have you heard about "Procedures Lite?" If you have a child in special education you need to. What is Procedures Lite? Procedures Lite is contract between schools and parents that waives special education procedural rights. Parents waive the right to convene an IEP meeting, develop an IEP, receive progress notes, and request annual evaluations. Parents also waive the right to enforce these rights and seek compensatory services and damages. What does the school waive? Nothing. Instead the school gains the unilateral right to educate your child without parent input, updated evaluations, and judicial oversight. What is the purpose of Procedures Lite? Schools and their attorneys claim that the purpose of Procedures Lite is to foster trust and communication between Parents and Schools. They believe that special education law, and not school officials or budgetary concerns, create conflict and distrust between parents and schools. Their solution - do away with IEPs as we know them and replace them with a one page Student Learning Plan (SLP). Don't allow parents to enforce the supports and services outlined in the SLP. Eliminate IEP meetings and Progress Reports in the name of better communication. Does this sound counter-intuitive? Maybe. But it's happening in Massachusetts. Read the current Weston, Massachusetts Procedures Lite contract here. What is the ultimate agenda of Procedures Lite proponents? Those proposing Procedures Lite would like to eliminate special education rights. One of Procedure Lite's vocal advocates is Massachusetts school attorney Miriam Kurtzig Freedman. In her recent presentation at the University of Chicago School of Law, Ms. Freedman compared special education to welfare and talked about the need to eliminate special education rights. In the meantime, Ms. Freedman supports Procedures Lite because, "Even if we won't or can't end the [special education] entitlement right away, [we can] end litigation and the fear of litigation about a proposed FAPE." Read the entire presentation abstract here. What can you do? First, NEVER sign away your child's special education rights without consulting an experienced special education attorney. Procedures Lite is a relatively new idea, but convincing parents to waive their child's rights is not. Read my warning to parents about waiving rights in settlement agreements here. Second, inform other parents. Make sure every parent who has a child on an IEP is aware of their rights and the serious consequences of "Procedures Lite." Third, talk to school administrators. Explain to them that eliminating laws designed to protect your child will not make your more trusting of the school. Emphasize that IEP meetings, Progress Reports and the IEP document are fundamental to parent-school communication. Point out that without required evaluations, your child's needs cannot be assessed and the school cannot provide a Free Appropriate Public Education (FAPE). If you have any other questions about your child's special education rights, feel free to contact Massachusetts special education attorney Lillian E. Wong today.  The law requires public schools to provide a Free Appropriate Public Education to all children. This means that if your child's needs cannot be met in the public school, the school district must pay for your child to attend a private school that meets your child's needs (a "private placement"). If parents and schools disagree about what placement meets the child's needs, the dispute can be resolved in a number of ways. One way is for a hearing officer to decide what placement is appropriate. This is an all or nothing approach. Either the school is right or the parent is right. If the parent is right, the school must fund the private placement in full. But hearings can be expensive, stressful, and most importantly risky - even if you have a strong case, there is no guarantee that the hearing officer will agree. This is why many special education disputes are resolved in settlement agreements. Sometimes, these settlement agreements provide for cost-sharing, meaning that parents and the school both pay for a portion of the private placement. Cost-sharing is a particularly good idea if the parents' case for a private placement is not a "slam-dunk." Cost-sharing is also a good option if the parents and school agree that the child needs a private placement, but will disagree over the particular school. Usually the school's choice is less expensive than the parents'. In this scenario, parents can offer to make up the difference between the school's offer and their preferred placement. Of course, cost-sharing is only a viable option for parents who can afford it. That said, cost-sharing can provide a cost-savings for parents. Cost-sharing can expedite the settlement process, leading to lower attorney's fees and settlement-related costs. Even parents who cannot afford a traditional cost-sharing option should not ignore the cost-sharing . Instead, those parents should consider applying for grants, scholarships, and financial aid to help fund the private placement. Remember - any way you can lessen the financial burden on the school, the better your chances to obtaining an appropriate placement for your child. If you want to request a private school (out-of-district) placement at public expense, contact a Massachusetts special education lawyer for help navigating this complex progress. |
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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
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15 Morningside Drive
Topsfield, MA 01983
978-561-9001 (P)
978-561-1591 (F)
lwong@lillianwongesq.com
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