 The Massachusetts Bureau of Special Education Appeals has released its statistics for its fiscal 2011 year. From July 1, 2010 until June 31, 2011 the BSEA received 8,348 rejected IEPs, an increase of 473 over the past year. The statistics reveal that the majority of rejected IEPs resulted in a resolution long before a hearing decision was issued, and if the dispute reached the hearing stage the school district was likely to prevail. 809 cases voluntarily participated in mediation and 86% ended in a legally binding agreement. 544 parties requested hearings, but the vast majority of disputes were resolved before a decision was issued. Only 35 hearing decisions were issued and the school district prevailed outright in 63% of the time, the parents prevailed in 20% of the decisions, and 17% of the time mixed relief was granted. School districts were represented by counsel 100% of the time. Of the 22 cases where the school districts fully prevailed, parents were represented by an attorney in 9 cases (40% of the time). Of the 7 cases where parents fully prevailed, parents were represented by counsel in 5 cases (71% of the time). These statistics highlight the importance working with a special education lawyer when pursuing a due process claim. Read the entire report here. If you are considering filing a due process request with the Massachusetts Board of Special Education Appeals, contact the North Shore special education Law Office of Lillian E. Wong today.
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 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.  Settlement of special education disputes can be a good thing. Most of my hearing requests are resolved this way. But there are dangers. I receive many calls from parents who are asked to waive their child's stay-put, transportation and transition rights in settlement agreements. I have even heard of parents being asked to waive their child's right to a Free Appropriate Public Education! What's worse, hearing officers and courts are upholding these agreements. Your child's rights under IDEA are there for a reason - your child needs them. If you chose to proceed to a hearing in lieu of a settlement, a hearing officer would never order you to forgo these rights. It is a wise investment to have an experienced special education attorney review your settlement contract and make sure you are not waiving these and other critical rights. If you are looking for a special education lawyer in Massachusetts, contact Boston area attorney Lillian E. Wong today.  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 Issues Presented: (1) Is Student Safe in school? (2) Is Student's paraprofessional appropriate? Decision: (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. My Comments: 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:  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.  This question was originally posted on www.avvo.com. Question: 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. My Answer: 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."  Evidence is used to prove what you are saying is true. It is one thing for a parent to claim a child needs a certain service or program, but quite another thing to prove it. In a due process hearing you must have independent evidence to prove your case. But gathering evidence is vital outside of the adversarial process. Parents who can cite evidence that supports their child's legal rights are likely to reach a more timely and acceptable resolution with the school district. So what constitutes evidence? Test scores, evaluations, meeting notes, letters, and emails are all evidence. Oral communications are also evidence, but they are often seen as less reliable because they are harder to prove. To deal with this problem I recommend that parents keep a journal that contains the date, location, and content of any verbal communication they have with the school. Record these interactions directly after they happen, that way your memory is fresh. Another way to permanently capture oral communication is by writing a follow-up letter. If a school administrator promises a service for your child in a meeting, send a follow-up letter to that person the next day and refer specifically to what they said. Journals and follow-up letters can also be used to document inaction. It's hard to prove a negative, but if you record your repeated requests or unreturned calls in a journal that is evidence too. Creating a paper trail of your story not only results in evidence you can put forth at IEP meetings, mediations, and due process hearings, it makes everything you say more believable because your statements are grounded in facts.  The Massachusetts Bureau of Special Education Appeals has released its statistics for 2009. The statistics reveal that most disputes with school districts result in a resolution long before a hearing decision is issued, and if the dispute reaches the hearing stage the school district is likely to prevail. 846 cases voluntarily participated in mediation and 84.5% ended in a legally binding agreement. 609 parities requested hearings, but the vast majority were resolved before a decision was issued. Only 48 hearing decisions were issued and the school district prevailed outright in 75% of the time, the parents only prevailed 12.5%, and 10.5% of the time mixed relief was granted. See the complete report here. If you need help advocating for your child's special education rights, contact the Boston area law office of Massachusetts special education lawyer Lillian E. Wong. |
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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)
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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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