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.
Attorney Wong joins leading Massachusetts Attorneys for Children with Special Needs in Response to Settlement Agreement Investigation
Yesterday, in response to a recent news story about the role of settlement agreements in special education disputes, many of Massachusetts' leading special education attorneys for students with special needs, including Attorney Lillian Wong, issued the following statement:
To Channel 5 News:
The undersigned are attorneys who represent parents and children in education cases throughout Massachusetts. Some of us work for not-for-profit law firms and others engage in private practice, but we all have substantial experience with the settlement process as well as with special education litigation in Massachusetts.
Your recent story about settlement agreements in special education cases was somewhat misleading in appearing to suggest that such agreements are an unusual and perhaps inappropriate practice. While all students are entitled to a free appropriate public education from their local public schools, as in many areas of today’s society, it is not unusual for there to be disputes between the participants in the process. In the vast majority of all special education matters, parents and school districts work together and agree on appropriate accommodations, services and programs for special education students.
However, for a small fraction of all special education students, parents and school districts disagree about how a school district should provide the student with a free appropriate public education. When these matters cannot be resolved at the local level, parents have the right to go to a due process hearing before the Bureau of Special Education Appeals.
Like any litigation, a special education hearing can become expensive and risky. Therefore, many parents choose to enter settlement agreements, even paying part of the costs of special education programs, rather than go to a full hearing and risk losing. This is reflected in statistics from the Bureau of Special Education Appeals, indicating that over the last 10 years between 95 and 97 percent of all of these disputes are resolved without a full hearing. (See attached) This is not an unusual statistic. In Superior Court in Massachusetts the percentage of all types of litigation disposed without a trial is strikingly similar. (See attached)
As with any area of law, the terms of settlement agreements vary based on the individual facts in the case, including the strength of the merits of the case. Thus, the very fact that settlement agreements vary does not necessarily mean that the agreements are unfair or that they reflect discrimination or favoritism. To suggest otherwise is both misleading and unfair.
Case Name: In re: Rick (BSEA #11-6535) Foxborough Public Schools
Decision Date: September 2, 2011
Hearing Officer: Raymond Oliver
Representation: Thomas Nuttall, School Attorney
Parents, Pro Se
Does school's proposed IEP provide a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
Yes, the IEP provides FAPE. To quote the Hearing Officer, "I find that in all school areas, Rick is truly a success story." In response to Mother's previous multi-page IEP rejections the Hearing Officer writes, "An IEP is designed to be a functional blueprint for addressing a student's special education needs, not an encyclopedia."
This decision highlights a common situation when school districts will request a BSEA hearing. In this case, there were five years of partially rejected IEPS and various assertions of stay-put during appeal. The school was confused about what portions of the IEP they were supposed to be implementing. The Hearing Officer agreed that this situation was "unworkable." With this decision, the school has a "clean IEP" and a clear understanding of what program to implement.
Remember, the best special education attorneys in Massachusetts consistently review and analyze hearing decisions by the Massachusetts Board of Special Education Appeals (BSEA). Hearing decisions provide insight into the litigation interests of school districts, their attorneys, and the legal reasoning of hearing officers. If you have a question about your child's special education rights, including the right to stay-put, contact Massachusetts special education Lawyer Lillian E. Wong today.
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.
The latest National Assessment of IDEA (the Individuals with Disabilities Education Act) reveals that the number of due process hearing requests stayed the same from 2003 until 2008, but the number of requests that actually proceeded to hearing declined sharply, by more than fifty percent.
Why this change? Are parents and schools better able to settle disputes before resorting to a hearing? Or are parents and schools just not able to afford the cost of litigation?
Whatever the reason, it is important for parents to understand that most disputes, nationally and in Massachusetts, do not result in a hearing decision. Learn more about special education dispute resolution options in Massachusetts here.
If you are in a dispute with your child's school district and considering filing a due process request, contact Boston area special education lawyer Lillian E. Wong today.
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 rights begin at birth. From birth until age three, children who qualify for special education services under Part C of the Individuals with Disabilities Education Act (IDEA) receive supports and services through Early Intervention. In Massachusetts, the agency responsible for implementing Early Intervention services is the Massachusetts Department of Health and Human Services.
Just as the IEP main document for programming the services to be given a child with disabilities under Part B of the IDEA, the principal document for identifying services for an infant or toddler under Part C is the Individualized Family Service Plan (IFSP).
The IFSP must provide the child with a Free Appropriate Public Education (FAPE). If you believe Early Intervention is denying your child a Free Appropriate Public Education, you have the right to request a Due Process Hearing and have an impartial hearing officer decide if your child is receiving FAPE through Early Intervention. IDEA also provides parents of children in Early Intervention other rights, including the right of Parental Participation.
If you need help advocating for your child's rights, contact Boston area attorney Lillian E. Wong today.
Most special education disputes are not resolved in a hearing or court decision. Instead, the majority of special education disputes are resolved informally at IEP meetings or through settlement agreements. This outcome avoids the time, cost, and stress of litigation, and is usually the best solution for parents and school systems.
Unfortunately, this reality does not provide a public record of the dispute and its outcome. Attorney-Client privilege, settlement agreement confidentiality clauses, and the Federal Educational Privacy Rights Act (FERPA) all prevent parties from discussing the specifics of most special education disputes and their ultimate resolution. My practice is no different than the national trend. The majority of my cases are resolved before a hearing request is filed, and of those cases that do require a hearing request, most are settled.
Celebrating the "Quiet Victories"
During the past couple of months in addition to my due process cases, I have witnessed many "Quiet Victories." A middle-school boy who hated school is now thriving in a more therapeutic and appropriate placement. A preschool child is now receiving the full-day program he needs. A young girl is undergoing a much needed extended 45-day evaluation. Because the ultimate goal of this Law Office is to help children obtain a Free Appropriate Public Education, these quiet victories are victories all the same.
If you are looking for a special education advocate in Massachusetts, contact Boston area lawyer 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.
The Massachusetts Bureau of Special Education Appeals has released its statistics for 2010. 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. 854 cases voluntarily participated in mediation and 84.5% ended in a legally binding agreement. 545 parities requested hearings, but the vast majority of disputes were resolved before a decision was issued. Only 50 hearing decisions were issued and the school district prevailed outright in 58% of the time, the parents only prevailed 18%, and 8% of the time mixed relief was granted.
School districts were represented by counsel 100% of the time. Of the 29 cases where the school districts fully prevailed, parents were represented by counsel in 8 cases (27% of the time). Of the 9 cases where parents fully prevailed, parents were represented by counsel in 5 cases (56% of the time). In cases where mixed relief was granted, parents were represented by counsel in 5 cases (63% 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 law office of Lillian E. Wong today.
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