Attorney Wong recently prevailed in a discovery dispute at the Bureau of Special Education Appeals ("BSEA"). The BSEA does not always publish its rulings, so this Order provides some insight into prehearing motion practice at the BSEA. The Ruling, In Re: Flavio & Beverly Public Schools BSEA #18-10763 (Byrne, 2018) can be read here.
The Ruling was issued in response to the District's request for a protective order. The Parents believe the school's program for their child is not appropriate, and requested, among other things the redacted IEPs of the other students in their child's school program. The District argued that the Parents' request was intrusive, irrelevant and overly burdensome. The District further contended that the production of sensitive information about other students would violate the privacy rights of those students without a countervailing benefit to the student (given the pseudonym "Flavio" by the hearing officer."
Attorney Wong successfully argued that information about the student's cognitive, educational and behavioral characteristics were critical to their assessment of the appropriateness of the District's program. In addition, Attorney Wong, relaying on a "long line of consistent decision" at the BSEA, established that the documents sought, appropriately cleansed of all potentially identifying student information, are not immune from disclosure in special education administrative hearings. As the Hearing Officer explained,
Furthermore, as the information requested by the Parents goes to the heart of their assertion that the peer group in which Beverly proposes to educate the Student is inappropriate for him, the Parents’ discovery requests are directly relevant to one of their primary claims. The Parents’ discovery request is carefully limited in time, nature and scope and is thus not overbroad to accomplish its stated purpose in this administrative hearing. Arguing educational incompatibility is a common, and important, element of many FAPE claims. The accepted peer IEPs sought by the Parents provide critical information known to the School, and not otherwise readily ascertainable by the Parents before hearing, about the level, materials and strategies of instruction, as well as student/adult presence, movement, behaviors and expectations. Anyone reasonably familiar with the development and implementation of individualized education programs in Massachusetts can glean the necessary relevant information from those documents without reference to, or knowledge of, any individual student.
This Ruling is important because it provides Parents' with an additional published ruling explaining the redacted IEPs provide "critical information" for their BSEA case.
If you are considering hiring an attorney to represent your child's rights at the BSEA, contact Lillian E. Wong today.
The Law Office of Lillian E. Wong, LLC is pleased to be an early sponsor for the Massachusetts Advocates for Children's Annual Celebrating Voices Event. The event will highlight MAC's legal advocacy in collaboration with the legal community for children's educational rights in Massachusetts. Attorney Wong is proud to partner with MAC as a pro bono attorney and looks forward to seeing many friends and colleagues on October 30th at Harvard Law School's Wasserstein Hall.
On July 9, 2018, the Bureau of Special Education Appeals ("BSEA") ruled that the Andover Public Schools ("Andover") had violated the Individuals with Disabilities Education Act ("IDEA") by failing to offer a nine-year-old boy with dyslexia an Individualized Education Plan ("IEP") that provided a Free Appropriate Public Education ("FAPE"). The BSEA ordered Andover to reimburse the family for their costs of unilaterally placing their son at the Landmark School and found that the student continued to require intensive, specialized instruction in a fully-subseparate language-based program.
This victory is rare for many reasons. First, more than 90% of parties that request a hearing at the BSEA ultimately settle and do not go to hearing. (Read more about quiet victories here). Second, if the case does go to hearing, parents only prevail in about 20% of the cases. (Read more about other dispute resolutions mechanisms here). Third, because of the legal mandate to keep students in the least restrict environment ("LRE") hearing officers are incredibly reluctant to order this type of placement, especially when the student is in the early elementary years.
You can read the entire decision here. If you believe your child's educational rights are being violated, contact an attorney with experience litigating cases at the BSEA. You can learn more about BSEA hearings here.
On June 7, 2018, the Special Needs Advocacy Network, Inc. ("SPAN") hosted its 10th Annual Same Side of the Table forum. BSEA Director, Reece Erlichman, moderated a panel of two hearing officers (Rosa Figueroa and Catherine Putney-Yaceshyn), Parent Attorney Lillian Wong, School Attorney Paige Tobin and several advocates and SPED Administrators.
The presenters discussed their approaches to settlement conferences and due process hearings by reviewing actual case decisions. The panelists highlighted successful strategies for staying student-focused throughout the the framework of IDEA. Thank you to all the parents, advocates, and educators that attended this event.
On April 2, 2018, Russell Johnston, PhD, the Senior Associate Commissions and State Director of Special Education issued a Technical Assistance Advisory called "Addressing the Communication Needs of Students with Disabilities Through Augmentative and Alternative Communication (AAC)" Dr. Johnston begins the advisory by expressing his concern that Massachusetts students with limited oral communication skills have insufficient access to AAC. The purpose of the advisory is to encourage more consistency in AAC services throughout the state and to remind schools districts of best practices and legal responsibilities.
You can read the entire advisory here.
Today, the Massachusetts Department of Elementary and Secondary Education ("DESE") issued an administrative advisory on graduation requirements for students with IEPs. You can read the entire document here.
The advisory specifically addresses whether and when a student may refuse a diploma in order to continue to receive transition and other special education services.
DESE concludes that a student cannot "refuse" a diploma, outright. At the same time, a student (or parent) can reject the graduation date on the IEP (based on FAPE) and invoke stay-put (thereby continuing to receive the services). The result of this procedure is similar to the outright refusal of the diploma, but the process allows for a more individualized approach and builds in dispute resolution mechanisms such as mediation or a due process hearing.
If you have a question about transition services, graduation requirements, and FAPE, contact Boston area Law Office of Lillian E. Wong today.
On Friday, March 9th Attorney Lillian Wong will serve on the faculty of the MCLE School Law Conference in Boston, Massachusetts. MCLE’s 18th Annual School Law Conference 2018 examines the latest changes in school-related laws, regulations, and policies. Experienced attorneys and other school-related professionals distill the most significant updates of the preceding year into a single day of cutting-edge information and lively discussion.
Agenda l The Most Critical Issues Encompassing Education in 2018 l Education Law Update l Student Discipline and Educational Alternatives l Privatization and Choice l Curriculum and Student Assessment l School Safety l “Ask the Experts” Q&A Session l Networking Reception for Faculty and Registrants
Hearing Officer Rosa Figueroa's most recent decision, In Re: Student v. Hamilton-Wenham Regional School District – BSEA # 17-07353 & # 18-04291, is a page turner. The family comes across as highly-distrusting and the district as exceedingly accommodating. The most interesting sentence of the decision, however, is what Hearing Officer Figueroa says about parental rights:
A parent’s right to meaningful participation does not equate to micromanagement of a case to the point of stifling every process and impeding determinative decisions by those with the knowledge and experience to make them.
The right to to parental participation in the IEP process is important, but it is not unlimited. It is important for parents to understand their role in the special education process and to accept the advise of experts that have the student's best interest in mind.
It is common for parents to worry when a child returns home from school upset. Parents of children with disabilities, especially nonverbal children or children who have difficulty communicating, experience an extreme form of this worry. Not only are these children unable to tell their parents about their day and why they are upset, they are also more vulnerable to bullying and harassment.
Today, the U.S. First Court of Appeals will hear a case (Pollack v. Regional School Unit 75) that started when a nonverbal boy from Maine came home from school uncharacteristically upset. His parents proposed a solution - they asked their son's school to allow him to wear a recording device throughout the day. When the school said no, citing in part the privacy rights of the other students, the family sued. To date, two hearing officers, one lower court judge and a jury have denied the parents' request. You can read press coverage of the case here.
The First Circuit Court’s decision in this case could have important implications for school students throughout the First Circuit, including Massachusetts.
2017 was an eventful year in the world of special education. At the national level, the U.S. Supreme Court decided Endrew F., its first special education case in over thirty years. The unanimous Court held that FAPE requires a school to offer an IEP 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.”
The U.S. Department of Education also made headlines throughout 2017. At the beginning of the year Betsy DeVos was confirmed as Secretary of Education after a contentious confirmation hearing and a historic tie-breaking vote by the vice president. In October, the Education Department rescinded 72 "outdated, unnecessary or ineffective" special education guidance documents. In December, the Department published a guidance document further explaining Endrew F. and empathizing the importance of "challenging objectives" under IDEA.
In Massachusetts, the Bureau of Special Education Appeals ("BSEA") began implementing the new Endrew F. legal standard. Due to the similarities between Endrew F. and the previous First Circuit Court standard, the change did not have a noticeable effect on the Hearing Officers’ decisions. At the end of the year, Massachusetts lawmakers removed the essential ban on bilingual education that had been in place for fifteen years. Now English Language Learners with and without disabilities can receive instruction in English or their native language. Regulations for this new law are expected in 2018.
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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
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Topsfield, MA 01983
15 Morningside Drive
Topsfield, MA 01983