The Individuals with Disabilities Education Act (IDEA) requires school districts to meet the needs of students with disabilities without regard to the cost. The law refers to this as a Free Appropriate Public Education or FAPE.
The FAPE mandate is at constant odds with the reality of limited school district budgets.
Oftentimes, parents are told by their district that the district’s IEP proposal does meet the student’s needs, but the parents suspect the services and placement offered in the IEP are simply a reflection of the programs and services available in the district.
A recent BSEA decision by Hearing Officer Lindsay Byrne, In RE: Jolene and the Natick Public Schools, BSEA # #1400521, confirms that this suspicion is often a reality. The Hearing Officer finds that the District violated the law when they offered “what [programming] was available rather than thoughtfully considering and planning for [the Student’s] individual learning needs.”
When a student requires a placement or service that is not currently available in district, the district is responsible for identifying and funding that placement or service. If the district refuses to comply with the law, parents often choose to hire a special education attorney or advocate to help them secure appropriate placement and service for their child, whether in-district or out-of-district.
If you are concerned about your child's IEP, contact the Boston area Law Office of Lillian E. Wong today.
On April 26, 2013, the Massachusetts Department of Elementary and Secondary Education issued a new Memorandum entitled, "Access to School Meals in Publicly Funded Out-of-District Programs"
The memo reminds Districts that they are responsible to offer school lunch to all students, including students who are enrolled in out-of-district at public expense. Further, Districts must provide qualifying out-of-district students with free or reduced breakfast and/or lunch.
If you have a child in an out-of-district placement and have questions about equal access to school meals, or any other questions about your child's rights, contact the special education law practice of Lillian E. Wong today.
First, what is a unilateral placement? It is a self-help mechanism that parents utilize when the school district (the "District") is not providing their child a free appropriate public education (FAPE) and the parents believe that a private placement would provide the child FAPE. Instead of waiting for the District to agree to fund the placement, Parents pay out-of-pocket for the placement and try to seek reimbursement from the District.
Whether or not the Parents are entitled to reimbursement is a complicated legal question. The notice to the District must meet certain procedural requirements. I would NEVER recommend a unilateral placement without working with a special education attorney or a seasoned special education advocate. If Parents' notice is not sufficient, they are not entitled to reimbursement.
Even if the request if procedurally valid, a unilateral placement is financial risky. Reimbursement is only warranted if the IEP at the time of the unilateral placement does not provide FAPE and the out-of-district placement does. Reimbursement might also be confined if the District later offers an IEP that does provide FAPE. BEFORE a parents decides to unilaterally place their child, it is very important to a comprehensive case analysis by an experienced special education attorney. This is best way for you to optimize your chances of recouping your expenses.
If you are considering a unilateral placement, contact the North Shore Massachusetts Law Firm of Lillian E. Wong.
Question: My child has complicated issues and the district granted a 45 day placement for evaluation. I am not in agreement with what they have proposed. The 45 day placement is over and I wanted to reject their proposal to bring him back to district. I am told I have no stay put rights. Is this true?
Answer: Yes, it is true. There are no stay-put rights to a 45 day placement. Unlike what the name implies, 45 day placements are evaluations, not placements for IEP purposes. Your child's stay-put placement is the last placement you and the district both agreed to.
If you have more questions about special education law and need help advocating for the placement your child needs, contact the Boston area Law Office of Lillian E. Wong.
What is "Stay-Put"?
Stay-put is the right to keep your child in his or her current special education placement and/or receive your child's current special education services, even if the school proposes to change the placement or remove the services.
When Does "Stay-Put" Apply?
Stay-put only applies when the school has offered and the parent has accepted the previous placement and services. Therefore, there is no right to "stay-put" if the child has not been found eligible for special education, if the school is proposing an initial IEP, or if parents have always rejected the IEP proposal outright. In these situations, there is no "previously agreed-to" placement or services, so there are no stay-put rights.
Massachusetts vs. Federal Law
Under Federal law, stay-put rights apply only when parents have filed a due process hearing request. Massachusetts law provides more rights for parents and students. In Massachusetts, once the parents reject the IEP, they can invoke stay-put.
If you have questions about stay-put rights or need help navigating the special education process, contact the Boston area Law Office of Lillian E. Wong today.
If you place your child in private school at your own expense (including a religious school) your child still has the right to receive special education services from the school district in which you reside.
While federal law requires only "equitable services" for children in this situation, Massachusetts sets a higher standard. Massachusetts requires that special education provided by the school district to a private school student shall be comparable in quality, scope and opportunity for participation to that provided to public school students with needs of equal importance.
If you believe your school district is not proposing adequate services for your child because your child is in private school contact a Massachusetts special education attorney.
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.
Under IDEA, your child is entitled to:
A "Free Appropriate Public Education" (FAPE) in the "Least Restrictive Environment" (LRE).
An initial eligibility evaluation and thereafter, a yearly reevaluation.
An independent evaluation at public expense if you disagree with the school district's evaluation.
A written individualized education program (IEP).
An education as close to home as possible and in the school he or she would attend if not disabled.
Support services, called "related services," such as a one-on-one instructional aide, speech-language pathology, psychological services, physical and occupational therapy, therapeutic recreation, transportation, and school nurse services.
Assistive technology such as a communication system, computer, or spell-checker.
Placement in a private school at public expense if the public school cannot provide a "free appropriate public education."
A transition plan and services.
If you need help advocating for your child's educational rights contact Boston area special education lawyer Lillian E. Wong today.
This question was originally posted on www.avvo.com
How do I get my Autistic son into an out of district school when the public school continues to ignore a doctor's recommendation? My son is autistic and I have filed due process last year because of an incident that should not have occurred if he had not been moved to a school that did not have an adequate autism program in place. My son cannot ask questions, still points and moans when he is frustrated. He uses echolalia when talking, which is never in a full sentence. He is 8 years old and still has to wear a overnight pamper because he still doesn't fully understand the concept of going to the bathroom. My son needs one on one therapy, with ABA one on one, a behavioralist needs to be seen at school and at home because of his violent tantrums which are dangerous to himself and others. My son gets none of these services and the school continues to try and convince me otherwise. What do I do now? I'm will file again.
This sounds like a very frustrating situation. Navigating the special education system can be difficult. I applaud your determination.
As you certainly now realize, just because your doctor recommends an out-of-district placement for your son doesn't mean the school is required to provide it.
In order to secure this placement you must establish (1) that the current placement is inappropriate AND (2) that the proposed placement is appropriate.
The law defines "appropriate" as a place where your child can make "effective educational progress" in the "least restrictive environment." Each state defines "effective educational progress" differently, so consult your state regulations and case law. Because an out-of-district placement is less inclusive than your son's current placement, you must also prove that the out-of district placement is the least restrictive environment in which your son can make effective educational progress.
How do you prove your case? With evidence - evaluations, classroom observations, and testing over time, for example. I would strongly urge you to consult with a special education attorney before filing a due process request. Good luck! If you are in the Boston area, contact The Law Office of Lillian E. Wong today.
The trial of John Odgren, a child with Asperger's syndrome who was found guilty of first-degree murder, has been all over the headlines. This article contains one of the first interviews with his parents, and provides some important insights into the trial, the child, and the tragedy. As a special education attorney, I think it is very interesting that the parents and school struggled to find the proper placement for Odgren, a child with superior cognitive scores but severe emotional disabilities. In my experience, finding a school for a child with this profile in Massachusetts is incredibly difficult. Read the entire article here and feel free to leave your comments.
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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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Topsfield, MA 01983