CRA Petitions for Children with Disabilities – Are They Proper?
In an important opinion released on February 6, 2018, the Massachusetts Supreme Judicial Court (SJC) made clear that the truancy provisions of the Children Requiring Assistance (CRA) statute must not be applied to children whose failure to attend school is not willful but instead results from medical or mental health issues. For years, I have appeared in court alongside young people who have been summoned to juvenile court through school petitions for truancy when, in fact, their absences directly stemmed from their struggles connected with disabilities such as autism, anxiety, depression or mood disorders or, all too often, from relentless bullying that made them unable to enter the school building. On too many occasions, I have been forced to stand by while these children have been labelled as truants, chastised by school administrators and probation officers and threatened by judges with being removed from their parents’ homes if they did not return to school. In virtually all of these cases I have been struck by the unwillingness of all of these adults to recognize that these children genuinely want to go to school but, due to their disabilities, simply lack the ability to do so. Ordering these children to “just go to school,” without addressing the underlying reason for their inability to attend was doomed to failure and, more often than not, was utterly cruel and served only to exacerbate their anxiety and depression. In the case of Millis Public Schools v. M.P., the SJC was explicit that CRA truancy petitions are improper unless the child’s failure to attend school is purposeful. Importantly, the court made clear that “purposeful” conduct is only reflected by “behavior arising from reasons portending delinquent behavior.” In this case, the SJC found that while the student, a 15-year old girl, wanted to attend school, she was unable due to complications from a bladder condition compounded by autism and other cognitive and emotional disorders. In reversing the findings of a juvenile court judge that the child was truant, the SJC recognized that the child’s failure to attend school was not purposeful but, rather, was the product of her medical and associated mental and emotional impairments. The lesson from this case is that, unless a child’s absence is due to “playing hooky” or conduct beyond the parents’ control, CRA petitions are not an appropriate tool to try to compel a child to attend school. Instead, the SJC pointed out that, where a child with a disability is unable to attend school for reasons related to that disability, the proper venue is not juvenile court but, alternatively, is the Bureau of Special Education Appeals which is best equipped to ensure that the child’s needs are being met. Hopefully, this case will eliminate the all-too-common reaction of school administrators to refer school attendance issues to the juvenile courts which, unfortunately, are ill-equipped to provide services to children with complex medical, mental and emotional disabilities. If you have questions about CRAs or other juvenile court matters involving children with special
Read MoreSankey Law Wins Hearing that Will Impact Attendance Policies for Students with Disabilities
Sankey Law Offices recently prevailed in a hearing at the Massachusetts Bureau of Special Education Appeals (BSEA) that will substantially impact the manner in which schools apply their attendance policies to students with disabilities. In Student v. Bay Path Regional Vocational Technical High School, Hearing Officer Rosa Figueroa found that Bay Path’s Attendance Policy, as applied to the student in this case, was discriminatory and violated his rights under Section 504 of the Rehabilitation Act of 1973. As a result, the hearing officer ordered Bay Path to modify its policy for this particular student. School Attendance Policies and Section 504 of the Rehabilitation Act of 1973 It is well established under Section 504 that a student with a disability is entitled to a reasonable modification of policies, practices, or procedures if such policies, practices and/or procedures discriminate against the student on the basis of his or her disability. Under state law, schools have the authority to create their own local attendance policies for students, but the policies cannot be discriminatory. If the policy is discriminatory, then the school must provide reasonable accommodations and/or modifications to the policy so that the student can have equal access to his or her education similar to the access provided to non-disabled peers. Application of Section 504 in Sankey Law’s Recent Case In this case, the student suffered from intense migraine headaches that frequently prevented him from attending school. The migraines were sporadic and unpredictable. Each time that the Student was absent due to a migraine, he provided a note from his doctor excusing his absence. However, under Bay Path’s Attendance Policy, once a student was absent for 10 full school days or 20 course periods in a school year, even if the absences were medically excused, the student could not earn graduation credits, despite completing all of the work for each course. As a result, the student would be retained the following school year. Bay Path applied this policy to the student knowing that his absences were medically excused and that they clearly resulted from his disability. Bay Path also required the student to attend Saturday School, which otherwise was primarily used as a punitive measure for truant students. In ruling that the school policy was discriminatory, the Hearing Officer wrote: In sum, I find that Student is an individual with a qualifying disability who is entitled to the protections of Section 504 of the Rehabilitation Act of 1973 and that Bay Path, a Federal funds recipient, discriminated against Student in failing to make reasonable modifications to its facially neutral Attendance Policy to accommodate Student’s known medically related disabilities. In doing so, Bay Path violated Section 504 and denied Student equal access to Bay Path’s general education program. The Hearing Officer issued several orders that Bay Path is obligated to implement, including ordering that the student’s medically excused absences due to migraines shall be deemed “exempt from the Attendance Policy” and not counted toward Bath Path’s maximum attendance limit. She also ordered that the
Read MoreMassachusetts Passes Law that Increases Workplace Protections for Pregnant Employees
On July 27, 2017, the Massachusetts legislature signed The Pregnant Workers Fairness Act (“PWFA”), which will take effect on April 1, 2018. The PWFA amends Massachusetts’ discrimination statute (MGL c. 151B) to prohibit employers who have six or more employees from discriminating against pregnant employees or employees experiencing a condition related to pregnancy. Prior to the PWFA, pregnancy was not considered a disability and pregnant employees were not a protected class in Massachusetts. Pregnancy related disabilities, such as pre-eclampsia or gestational diabetes, were treated the same as other disabilities and therefore triggered protections under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. However, conditions associated with pregnancy that did not rise to the level of a disability, such as shortness of breath or inability to lift a certain amount of weight, did not trigger legal protections. The broad language of the PWFA – “pregnancy or any condition related to the employee’s pregnancy” – means that employees who, for example, have shortness of breath, a sensitive stomach, back pain, or swollen feet, so long as it is related to their pregnancy, are arguably entitled to request and receive reasonable accommodations at work. The PWFA explicitly lists several reasonable accommodations that employers may have to provide, including but not limited to: Temporary transfer to a less strenuous or hazardous position Light duty Assistance with manual labor, or A modified work schedule. Because these accommodations are defined as “reasonable” within the PWFA, employers will be hard pressed to argue that providing these accommodations poses an undue hardship. Under the language of the PWFA, employers claiming undue hardship must show that the accommodation poses “significant difficulty or expense” to the employer. This long overdue law spells out in clear terms what employers are required to provide to pregnant employees or employees experiencing a condition related to pregnancy and hopefully will serve its purpose of normalizing pregnancy in the workplace. For more information, please contact us at 781-930-3127 Notice: JavaScript is required for this content.
Read MoreHeightened FAPE Standard Announced by the Supreme Court
As the new school year begins, it’s important to keep in mind the new Free and Appropriate Public Education (FAPE) standard introduced by the United States Supreme Court earlier this year. On January 11, 2017, the Supreme Court heard oral arguments in Endrew F. v. Douglas County School District to decide the level of educational benefit a school must deliver to students with disabilities in order to meet the FAPE requirement of the Individuals with Disabilities Education Act (“IDEA”). By way of background – In 1982, the Supreme Court decided that the FAPE requirement compelled schools to provide services to students with disabilities that confer “some educational benefit.” The 10th Circuit, the relevant circuit in Endrew F., interpreted “some educational benefit” to mean “merely more than de minimis.” The family in Endrew F., however, argued that FAPE required schools to provide students with disabilities with a higher level of educational benefit – specifically, a “meaningful” educational benefit. The Endrew F. case involved a young boy with autism whose parents believed that he was not being provided FAPE by his Colorado school district. Because of this, the boy’s parents unilaterally placed him in a private educational setting and sought reimbursement from the school district. The administrative hearing officer, U.S. District Court for the District of Colorado, and 10th Circuit Court of Appeals applied the “merely more than de minimis” standard and determined that the boy had received enough of an educational benefit to meet the FAPE requirement, and ruled in favor of the school district. In reviewing the lower courts’ decisions, the Supreme Court issued a unanimous ruling on March 22, 2017. It vacated the 10th Circuit Court of Appeals’ decision and announced a higher standard of education for children with disabilities. The Supreme Court rejected the “merely more than de minimis” standard and adopted a standard that neither party had argued for, holding that schools must provide students with an education program that is “reasonably calculated to allow the child to make progress appropriate in light of the child’s circumstances.” Justice Roberts, who penned the court’s decision, noted that every child should be given an opportunity to meet challenging objectives and that “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.” Many Special Education Advocates and parents have celebrated the Endrew F. outcome, hopeful that it will give way to improvements in special education programs for children with disabilities across the country. In Massachusetts, it has been our experience that hearing officers have always applied this higher standard so, in our opinion, this decision will not have much impact on BSEA cases. However, it is certainly a relief that the Supreme Court has supported a child’s right to a program intended to result in more than minimal progress. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MorePolice Officer Conduct in School Settings Addressed By Supreme Judicial Court
On August 29, 2017, the Massachusetts Supreme Judicial Court announced a decision that required the court to balance an individual’s right to be free from unreasonable searches on school property against the public’s interest in maximizing safety in schools. In this case, school officials saw the defendant, who was not a student, on the grounds of a public school. The defendant entered the school, lied about his identity and his reason for being there, and ultimately returned to the school parking lot. School officials approached the defendant in the parking lot and, after smelling marijuana, brought him into a conference room inside the school and called the Milton Police Department. Importantly, when the reporting police officer arrived, school officials did not inform her of the defendant’s interactions with school officials or that he had lied in order to enter the school. Operating only on her knowledge that the vice-principal was “excited” and that the vice principal and principal were “rattled,” the police officer proceeded to conduct (1) a pat-frisk and search of the defendant’s person, during which she found marijuana and close to $3000 in cash, and (2) a pat-frisk and search of the defendant’s backpack, during which she found a bottle of alcohol, a bag of marijuana, a scale and a loaded handgun. The police officer then arrested the defendant. The defendant was later tried and convicted in Quincy District Court of various gun and drug charges. Because the police officer did not have information from school officials to suggest that the defendant was criminally trespassing on school grounds, or that the defendant was armed, the Court held that the pat-frisk and search of the defendants’ backpack was not justified. In a split decision, the Court ruled that when a police officer conducts a search in a school setting, his conduct is governed by traditional Fourth Amendment standards rather than the reduced standard applied to searches by school officials when acting to ensure student safety. This means that when a police officer is investigating a suspicious person on school grounds, the officer must have reasonable suspicion supported by articulable facts that the defendant committed a crime in order to conduct a “pat frisk” of the person. Furthermore, the police officer must have probable cause to conduct a search, along with a search warrant, unless an exception to the warrant requirement exists. As a result, the Court vacated the defendant’s gun and drug convictions on the premise that the evidence used against him at trial was illegally obtained and should be suppressed. Importantly, the Court emphasized that its decision clarifies only the manner in which police officers must conduct themselves on school grounds and in no way impacts the ability of school officials to respond to threats to student safety, stating “it is important to emphasize here that our ruling does not bear on what school officials themselves can and should do to ensure the safety of students.” This decision certainly presents a predicament for school administrators who are not
Read MoreSupreme Court Hears Service Dog Case
Under the Individuals with Disabilities Education Act (“IDEA”), individuals claiming a violation of IDEA must exhaust administrative proceedings before bringing a case against a school district in federal court. But what happens if individuals bring a claim against a school district under other discrimination laws and do not raise an IDEA violation? May they proceed directly to federal court and bypass IDEA’s administrative requirements? On October 31, 2016, the United States Supreme Court heard arguments in Frye v. Napoleon Community Schools addressing this very question. In this case, a Michigan school district refused to allow a trained service dog to attend school to assist a student with cerebral palsy and impaired mobility. The student’s parents sued the school district in federal court under the Americans with Disabilities Act and the Rehabilitation Act for money damages. They did not claim an IDEA violation because they were not seeking educational relief. The school district argued that excluding a service animal from a student’s individual education plan was a violation of the student’s rights under IDEA and therefore the parents were required to exhaust the administrative process before filing in federal court. The student’s parents argued that because they are seeking money damages rather than educational relief for the emotional harm their daughter suffered by not having her dog attend school with her, they were not required to exhaust administrative proceedings under IDEA before filing in federal court. We are often faced with this type of issue when we represent students who seek damages for injuries that they suffer in school. We are hopeful that the Supreme Court will recognize the futility of requiring parents to proceed before the Bureau of Special Education Appeals when the Bureau does not have the power to award damages. A decision can be expected in 2017. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreWhat Are Related Services for Special Education?
The Individuals with Disabilities Education Act (IDEA) is the federal law that governs special education. Children who are eligible to receive special education services are eligible to receive both (1) special education and (2) related services. IDEA defines related services as “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education . . . .” Examples include, but are not limited to: speech-language pathology services, audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, social work services, school nurse services, counseling services, orientation and mobility services, and medical services for diagnostic or evaluation purposes The IEP team determines what related services the child needs and includes them in the IEP. The team must specify in the IEP when the service will begin, where it will be provided, and how often and for how long the service will be provided. See What is An IEP Team and Who Are its Members for more information regarding IEP teams. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MorePregnant Women Are Protected from Discrimination at Work
In Massachusetts, pregnant women are considered members of a protected class under anti-discrimination laws. Because pregnancy is linked to sex, discrimination based on pregnancy is considered a form of sex discrimination in Massachusetts. This means that employers cannot refuse to hire, terminate or otherwise discriminate against an employee because of her pregnancy. Additionally, an employer cannot consider a woman’s pregnancy, or her need to take maternity leave, when making an employment decision. Pregnancy discrimination can take many forms. It may be that an employer treats a pregnant employee differently that non-pregnant employees, or engages in practices or institutes policies that only limit or impact pregnant employees and not others. A closer look at pregnancy discrimination In a recent case, Gonsalez v. Marin, a pregnant employee alleged that she was discriminated against as a result of her pregnancy. Under a disparate treatment approach to discrimination, the employee was able to successfully show that she was treated differently by her employer because of her pregnancy. The plaintiff in this case, Laura Vidals, was an employee at a piñata manufacturing factory. Six months after she began work there, Ms. Vidals became visibly pregnant, which was seen by her coworkers and employer. At this time, her employer significantly reduced the number of shifts Ms. Vidals was given per week. In order to prove that the reduction in shifts constituted pregnancy discrimination, Ms. Vidals was required to show that the change in her employment status was directly related to her pregnancy. In this case, Ms. Vidals was able to meet this burden based on several factors: Prior to her pregnancy, Ms. Vidals had not received any indication that her work product was poor; The shifts of other non-pregnant employees’ had not been reduced, A new full-time employee had been hired right when Ms. Vidals’ shifts were reduced; and The employer allegedly stated that he could not have a pregnant employee working in a factory because it would “cause problems.” Based on these facts, a judge was able to find that Ms. Vidals was, indeed, a victim of pregnancy discrimination. See Gonsalez v. Marin, Slip Op. (WestLaw 2514704), (E.D. NY 2014). If you are facing discrimination based upon pregnancy at work, please contact an employment attorney today. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreMassachusetts Maternity Leave Act
Although having a baby is an exciting time in many people’s lives, it is not uncommon for employees to struggle with how to tell an employer that they are expecting. Employees are often concerned with how they will be perceived if they ask for time off, and if their job will be waiting for them when they return. The Massachusetts Maternity Leave Act helps ease many of these fears by outlining employee’s rights when their families are growing. Under the Massachusetts Maternity Leave Act, eligible, full-time, female employees are entitled to up to 8 weeks of unpaid leave when they are giving birth or adopting a child. To be eligible, an employee must have completed the employer’s initial probationary period, or have worked for the employer for at least 3 consecutive months if no probationary period exists. The employer must also have 6 or more employees. How can you exercise your rights under the Massachusetts Maternity Act? An employee who is having a baby or adopting a child must give at least 2 weeks’ notice prior to the anticipated departure date and 2 weeks’ notice before returning to the workplace in order to be eligible. In addition to having the right to take up to 8 weeks leave, eligible employees also have the right to be restored to their previous position or be placed in a similar position to the one held prior to taking maternity leave. Similar positions are defined as those that have the same status, length of service credit, and seniority as the position the employer held prior to taking leave. Are Fathers Eligible for Paternity Leave under the Massachusetts Maternity Act? Although the Massachusetts Maternity Leave Act specifically states that eligible employees must be female, employers in Massachusetts have often been advised to extend leave under the MMLA to fathers as well. In fact, in June 2008, the Massachusetts Commission Against Discrimination released an official statement interpreting the Act to include fathers. To be eligible to take paternity leave a father must meet all of the eligibility requirements under the MMLA. If you have questions about maternity and paternity leave in Massachusetts, please contact an employment attorney. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreFamily Medical Leave Act
Many employees face the challenge of balancing the demands of their job with the need to care for their family. The Family Medical Leave Act, or FMLA, was created in order to help employees who find themselves in this difficult position. The FMLA is a federal law that requires certain employers to allow their employees to take up to 12 weeks of unpaid leave over the course of a 12 month period for a serious medical condition or to care for a family member. Leave can be in the form of a full time absence, a reduced work schedule, or intermittent leave depending on the situation. Who Qualifies? Not every employee is eligible for extended leave under the FMLA. In order to qualify for this type of leave, you must: Have been working at your current place of employment for at least 12 months, and have worked at least 1,250 hours over that 12 month period; and Work for an employer who employs at least 50 employees within 75 miles of your worksite. Example: A company with two worksites located ten miles apart with a combined total of 50 employees would be required to grant eligible employees at those worksites leave under the FMLA, but a company with two worksites located 100 miles apart with a combined total of 50 employees would not. For What Purposes Can I Take Leave? Employees are only entitled to leave under the FMLA for certain reasons. Eligible employees are entitled to up to 12 workweeks of unpaid leave during a 12 month period for any of the following reasons: The birth of a child in order to care for him or her. The placement of a child in your home for adoption or foster care. Caring for a spouse, son, daughter, or parent with a serious health condition. A serious health condition of yours that renders you unable to perform your job. Any “qualifying exigency” resulting from the fact that a spouse, son, daughter, or parent is covered on active duty in the Armed Forces. There are many other provisions of the FMLA to consider if you are thinking about taking leave under this statute. For more information about FMLA leave, please consult an employment attorney. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
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