On September 6, the U.S. Department of Education released new regulations that govern the rights of infants and toddlers (birth through two years) with disabilities (Part C of the Individuals with Disabilities Education Act).
The regulations are over 900 pages long and will take effect soon.
What are some of the important changes?
When it comes to due process hearings, parents are disadvantaged. Schools always hire attorneys to represent them, but most parents cannot afford legal representation. Schools are repeat-players in the due process game, while most parents have never filed for a hearing and don't know what to expect.
If parents are successful at hearing, the law mandates that schools reimburse parents for their attorneys' fees. Currently, expert witness fees are not reimbursable, even if parents prevail at hearing. Expert witnesses fees can be expensive. Most experts I've worked with charge around $200/hr and most hearings require many hours of an expert's time. Expert witnesses are also essential for winning a special education case.
On March 17, 2011, federal legislation was introduced to allow parents to recover expert witness fees in due process hearings and litigation under the Individuals with Disabilities Education Act. The IDEA Fairness Restoration Act was introduced in the Senate (S.613) by Senator Tom Harkin (D-IA), Chair of the Senate Health Education Labor and Pensions Committee; Senator Barbara Mikulski (D-MD), and Senator Bernie Sanders (I-VT); and introduced in the House of Representatives (H.R. 1208) by Congressman Chris Van Hollen (D-MD) and Congressman Pete Sessions (R-TX).
The bipartisan IDEA Fairness Restoration Act will restore Congress’ original intent and make due process hearings more equitable and affordable for parents of children with disabilities. Without the ability to recover their expert witness fees, few parents could afford to exercise their constitutional and IDEA rights to challenge denial of FAPE to their children by school districts.
If you are looking for 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.
Attorney Wong was recently interviewed about Massachusetts' new anti-bullying law and how the law affects children with special needs. Read the entire article Some Question Whether Mass. Anti-Bullying Legislation Will Leave Special Needs Students Vulnerable here.
If your child is being bullied or being labeled a bully, contact the Massachusetts North Shore Law Office of Lillian E. Wong.
On October 26, 2010 the Assistant Secretary for Civil Rights Russlynn Ali issued a "Dear Colleague" letter to educators throughout the country. The purpose of the letter is to remind school officials that "some student misconduct that falls under a school's anti-bullying policy may also trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department's Office of Civil Rights (OCR)." Ms. Ali warns schools that, "by limiting its response to a specific application of its anti-bullying policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment." The letter specifically addresses disability-based harassment, and warns that bullying of a child with a disability, because that child is disabled, may very well violate Section 504 and Title II.
Read the entire 10-page letter here.
Read more about Massachusetts' new anti-bullying law here.
If your child is being bullied or harassed at school, contact the eduction law practice of Lillian E. Wong, located in the North
Yesterday, President Obama signed legislation, known as Rosa's Law, into law. Under this new law, federal legislation will no longer use the term mentally retardation. Instead, federal law will use the term "intellectual disability." Similarly, laws containing the term "a mentally retarded individual" will be replaced to read, "an individual with an intellectual disability."
This changes specifically applies to the Individuals with Disabilities Education Act, the law governing special education law. If your child's IEP describes your child as "mentally retarded" you now have the right to request the school change this reference to "an individual with an intellectual disability."
Does your child have a disability on the autism spectrum? Does your child's disability affect social skills development or make your child vulnerable to bullying, harassment, or teasing?
If you answered "yes" to either question, Massachusetts law now requires that your child's IEP team consider and address the skills and proficiencies your child needs to avoid and respond to bullying. Consider bringing this issue up at your next IEP meeting, or request an IEP meeting today if bullying is a particular concern.
Because this law is new, you might need to educate your child's school of these requirements. Remember the ultimate goal of the new law - protecting our children from bullying.
Last month, the Department of Education released its Model Bullying Prevention and Intervention Plan. While Massachusetts' new anti-bullying law requires schools to create anti-bullying plans, it does not require the schools to implement this model. However, for school districts looking for guidance, this is a good place to start. Remember that schools must also consider parents and community input when drafting the plans, so become involved today! The law requires that public schools submit their plans by December 31, 2010.
On August 3, 2010 Governor Patrick signed the bill , "An Act Relative to Insurance Coverage for Autism" (HB 4935), into law. The law mandates broader insurance coverage of diagnostic tests, medical treatment, and services for children and adults with autism. The law will go into effect on January 1, 2011.
Does the law say anything about IEPs and Special Education Services?
Yes. The statute explicitly states that this new law "shall not affect any obligation to provide services to an individual under an individualized family service plan, an individualized education program or an individualized service plan."
This means that for the purposes of special education, nothing has changed. Schools cannot forgo their legal obligations to autistic students because of this new law.
How will this new law affect special education in Massachusetts?
Especially in these difficult economic times, I expect to see more disagreements between school districts and insurance companies over which party is responsible for providing autism related services.
As I interpret the current state of the law, schools must provide assessments and services if there is an educational need and insurance companies must cover any remaining medical needs associated with autism.
Of course, how the courts will interpret this intersection of law has yet to be seen. Until these issues are clarified by the legal system, both insurance companies and schools may refuse to provide services by claiming that the other party is legally responsible. If this happens, the new law will have an unexpected consequence - hurting the very population it aims to protect.
Starting tomorrow (July 1, 2010) parents in Maryland will be more prepared for IEP meetings. At least, that is the purpose of S.B. 540, a law that requires schools to provide parents with IEP meeting documents 5 days business days prior to an IEP meeting. Documents covered by this new rule include draft IEPs, assessments, and any other documents the team plans to discuss. What a wonderful idea! One of the fundamental pillars of the Individuals with Disabilities Education Act (IDEA) is parental participation. However, it is common practice, at least here in Massachusetts, that only school personnel have access to draft IEPs prior to meetings. Allowing parents to have time to better comprehend the draft IEP and propose changes is a positive step to encouraging parental participation in the special education process. Maryland should be applauded for providing parental rights above and beyond IDEA.
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