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.
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 National Center for Learning Disabilities, Inc. recently released Massachusetts' Special Education Scorecard. The Scorecard summarizes the U.S. Department of Education's report on Massachusetts' compliance with the Individuals with Disabilities Education Act (IDEA) and provides statistics about Massachusetts students with specific learning disabilities.
Massachusetts Falls Short
For the fifth year in a row, Massachusetts received a "Needs Assistance" grade. Where are the major problems?
(1) Children who were in Early Intervention and eligible for Special Education do not have an IEP developed and implemented by their third birthdays.
(2) Massachusetts' supervision system does not effectively identify and corrects noncompliance in a timely manner.
(3) Massachusetts struggles to resolving complaints within the required 60-day time limit.
If you need a special education advocate in Massachusetts, contact Boston area attorney Lillian E. Wong today.
Special education law is comprised of federal and state statutes, regulations, and case law.
The most important statute is the Individuals with Disabilities Act (IDEA). Other relevant federal statutes include Section 504 of the Individuals with Disabilities Act and No Child Left Behind. In Massachusetts, Chapter 71:B of the General Laws governs.
Federal and state educational agencies publish their interpretations of the statutes in regulations.
Case law is created when state and federal judges interpret statutes and apply them to individual controversies creating precedent.
If you have questions about special education in Massachusetts, contact Boston area lawyer Lillian E. Wong today.
Yesterday the Alexa Posny, the assistant secretary for the federal Office of Special Education and Rehabilitative Services, announced that Ms. Melody Musgrove had been named the Director of the Office of Special Education Programs (OSEP).
What does OSEP do?
In a nutshell, OSEP administers the Individuals with Disabilities Education ACT (IDEA). You can find more about OSEP here.
Who is Ms. Musgrove?
Formerly, Ms. Musgrove was the State Director of Special Education in Mississippi, a due process hearing officer, an Assistant Superintendent for Curriculum and Federal Programs for the Lawrence County School District, an Assistant Principal, and a special education teacher at the elementary, middle and high school levels. Melody has been noted for her work to reduce the achievement gap for traditionally under-performing students, conducted statewide self-assessments, and designed and implemented a focused system of monitoring local districts. You can find Ms. Musgrove's LinkedIn profile here.
I've personally heard good things about her from several attorneys in Mississippi. Let's hope she is able to live up to her reputation.
The Office of Special Education Programs (OSEP) recently released its state-by-state IDEA compliance findings for the 2008-2009 school year. For the fourth consecutive year, Massachusetts has not met the IDEA Part B (children 3 - 21) requirements. Read the complete report here. In addition, OSEP determined that Massachusetts is so far behind its IDEA Part C requirements (birth - 3) that federal intervention is necessary.
The main difference is that parents have fewer rights and schools have fewer legal obligations under Section 504. For example, IEP plans have to be in writing. 504 plans do not. IEP requires that school's take reasonable efforts to ensure parental participation, including inviting parents to IEP meetings. Section 504 does not require notice of meetings. IDEA requires parental notice before a change of placement. Section 504 does not. Children with 504 Plans can be permanently expelled for behavior that is not a manifestation of their disability. Children with IEP plans can be removed from school for behavior that is not a manifestation of their disability, but the school is still required to provide a free appropriate education.
How can I get my child off a 504 and on an IEP plan?
Schools must provide a child with an IEP if the child's disability makes special education and related services necessary. If your school refuses to provide your child with an IEP, you should contact a special education attorney.
Every six years the Massachusetts Department of Elementary and Secondary Education investigates Districts' compliance with education regulations, including federal and state special education law. Districts receive ""Commendable," "Implemented" (meaning at least substantially implemented), "Partially Implemented," "Not Implemented" (meaning at least substantially not implemented), and "Not Applicable" ratings for each compliance criterion.
Find your District's most recent report here:
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.
|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