United States Supreme Court to Consider Whether to Adopt a Heightened FAPE Standard
For the first time since 1982, the United States Supreme Court will consider what level of educational benefit a school must deliver to a student receiving special education services in order to meet the Free and Appropriate Public Education (“FAPE”) requirement of the Individuals with Disabilities Act (“IDEA”). Currently, circuits are split on what level of educational benefit a school must deliver in order to provide FAPE. The Tenth Circuit, among others, merely requires schools to provide “some educational benefit”. On the other hand, the First Circuit (which includes Massachusetts) and others require schools to provide a heightened educational benefit – one that is “meaningful.” “Meaningful” is otherwise understood as “more than . . . trivial.” The case being heard by the Supreme Court is Endrew F. v. Douglas County School District, RE-1. In this case, the parents believed that their son with autism was not being provided FAPE by their local school district in Colorado. Due to their concerns, they unilaterally placed him in a private school and sought reimbursement from their local school district. The hearing officer, U.S. district court, and 10th Circuit Court of Appeals found in the school district’s favor, concluding that the student was being provided FAPE because he was receiving “some educational benefit.” The Obama administration, after being asked to weigh in by the Supreme Court, urged the Supreme Court to adopt the “meaningful benefit” standard, which now applies in Massachusetts. The Supreme Court’s decision will likely impact students receiving special education services in Massachusetts and throughout the country. We remain hopeful that the Court will recognize the importance of providing “meaningful” benefits to students requiring special education services. For more information, please contact us at 781-930-3127 Special Education Lawyer | Massachusetts | Boston For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
Read MoreWho Qualifies for Special Education Services?
When your child demonstrates academic, social or emotional difficulties at school, you may wonder whether he or she might need special education services. How is a child found eligible for such services? The Individuals with Disabilities Education Act (IDEA) and Massachusetts law require that all children with disabilities be provided with a free, appropriate, public education (FAPE) in the least restrict environment (LRE). Public school districts meet these requirement by providing eligible children with special education and related services. In Massachusetts, eligible children can be between the ages of three and twenty-two years old. Children are determined eligible for special education services if they (1) have a disability, (2) are not making effective progress in a general education setting due to that disability, and (3) require specially designed instruction and related services in order to access the general education curriculum. In order to determine whether a child is eligible for special education services, a child must first be referred for an initial evaluation. Parents, caregivers, or professionals can make the referral. Upon receiving a referral, the school district where the child resides is required to seek parental consent before conducting an evaluation. If parental consent is not obtained, the district may seek authorization from the Bureau of Special Education Appeals (BSEA). Once parental consent has been given or authorization has been provided by the BSEA, the school district will conduct an evaluation of the child at no cost to the parents. The school district will then use the results of the evaluation to determine whether the child is eligible to receive special education services. For more information, please contact us at 781-930-3127 Special Education Lawyer | Massachusetts | Boston For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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.No Fields Found.
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.No Fields Found.
Read MoreWipers on, Lights On: New Massachusetts Law
Beginning on April 7, 2015, a new wipers on, lights on Massachusetts law will go into effect in Massachusetts which requires drivers to turn on their headlights and tail-lights whenever weather conditions require use of windshield wipers. The wipers on, lights on Massachusetts law also states that lights should be turned on a half-hour after sunset and a half-hour before sunrise or when visibility is under 500 feet. The fine for violating the new headlight law is $5. However, a driver who gets ticketed for a headlights offense may also incur a minor surchargeable traffic violation. Under the new wipers on, light on Massachusetts law, insurance surcharges will go on your driving record and could increase your insurance rate. Our advice: keep it simple. When you turn on your wipers, turn on your lights. Be safe, protect your driving record and avoid getting pulled over. If you have legal questions in Massachusetts, we, at Sankey Law, are here to help you. Give us a call today at (781)930-3127 for more information about how we can help you protect your rights. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
Read MoreMA Court Upholds School’s Right to Fire a Teacher for “Joking” About Sex with a Student
Teacher Fired for Sexual Harassment In a decision which strengthens the ability of public school administrators to discipline teachers, the Massachusetts Supreme Judicial Court has upheld the right of a school superintendent to terminate a teacher for conduct which was described as “joking” with a student about sexual favors. The case also provides significant recognition for the rights of students to learn in an environment which is free from sexual harassment. This case involved a veteran and apparently well respected teacher who was approached by a female student who inquired, in front of her classmates, whether there was a way that she could “pay for a better grade.” A male student interjected, “You mean short of sexual favors?” The teacher did not admonish the student for the inappropriate comment but, instead, retorted, “Yes, that is the only thing that would be accepted.” After the students laughed, the teacher stated, “Don’t be ridiculous” and told the student that the only way that she could improve her grade was by doing better work. Two days later, the female student approached the teacher in his classroom seeking extra help. In response to another inquiry from the student whether she could “just pay for a better grade,” the teacher responded, “Well no . . . you know that the only thing that I would accept is a sexual favor.” The student and another student who was in the classroom both laughed and the discussion apparently ended. However, the student subsequently complained to her guidance counselor about the teacher’s comments. After an investigation, the school superintendent terminated the teacher’s employment on the basis that it constituted conduct unbecoming a teacher. The teacher exercised his right under the Massachusetts Education Reform Act to appeal his dismissal to an arbitrator. After an evidentiary hearing, the arbitrator found that although the teacher’s comments were intended as a joke, it created a hostile or offensive school environment for the student and, as such, rose to the level of sexual harassment. Nonetheless, the arbitrator ruled that the teacher’s conduct was a “relatively minor and isolated” violation of school policy and only “nominally” constituted conduct unbecoming a teacher. Considering the teacher’s positive record and “the best interests of the pupils in the District, the arbitrator reversed the Superintendent’s decision and reinstated him to his teaching position. After an unsuccessful appeal to the Superior Court, the District appealed the decision to the full Supreme Judicial Court. In a 6 – 1 decision, the SJC held that once an arbitrator finds that a teacher’s conduct rises to the level of “conduct unbecoming a teacher,” the arbitrator may not lessen or vacate the punishment imposed by the school superintendent. In so ruling, the SJC dismissed the notion that the teacher’s conduct was “minor” in nature, emphasizing the special trust placed in teachers and their obligation to provide an educational environment which is free from any form of sexual harassment. Most pointedly, the court stated that “[a] teacher who models sexually harassing behavior in front
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.No Fields Found.
Read MoreEffective Parents Recognize that Change Takes Time
Effective parents recognize that change takes time, and they implement a plan to make necessary changes Do you recall the old saying, “Patience is a virtue”? While the ability to wait calmly or to accept delay without getting angry may indeed be a commendable quality in some aspects of your life, it has no place when it comes to your child’s education. Your child has one year to devote to each grade level, and a limited time to perfect his reading, math or social skills. When you sense that your child is falling behind, it is difficult to stand by, patiently waiting for things to improve when there is no plan in place. There is another adage that is more appropriately applied when you realize that your child’s needs are not being met. That is, “The squeaky wheel gets the grease.” We all recognize that school systems are often overwhelmed in their efforts to serve the needs of many children. Getting school administrators to focus on your child’s situation requires your persistent involvement to separate him from the pack and to obtain the individual attention he deserves. Sometimes even your persistence is not enough to positively impact your child’s program. If you reach a stalemate with the District, your only alternative is to remove the school from the “driver’s seat.” Let’s face it, the school will make all of the decisions until you level the playing field. The most effective way to do this is to file for a due process hearing. Once you file, the ultimate decisions about your child’s program will be made by a neutral hearing officer who will decide the issues based upon your child’s individual needs and the law, not on budgetary concerns. All too often, parents wait to seek additional services or a specialized placement for a child who cannot read at grade level until the child is entering middle school. These well-meaning parents have waited patiently during the elementary school years, accepting that the school “knows best” and not challenging the District’s proposals. This patience is not rewarded. Obviously, the sooner a child receives appropriate services, the better chance she will have to overcome her disability. It is essential that you become actively involved in your child’s program as soon as you sense that something is wrong, and that you seek the assistance of an advocate or attorney if you need further assistance. My practical advice concerning out-of-district placements: Parents often come to see me in May or June with the idea that they would like an out-of-district placement for their child to begin the following September. Please bear in mind that it will be several months before you can expect a decision through a due process hearing. Schools will usually seek delays in hearings during the summer because of staff vacations. In my experience, it is unreasonable to expect a decision before September in any case which is not filed by mid-April. This can be very frustrating because the private schools usually will not hold your spot pending the decision. Therefore, planning is critical, and I would encourage
Read MoreEffective Parents Build a Team of Professionals to Evaluate and Advocate for their Children
Build a team of professionals to evaluate and advocate for your child Convincing a school district to increase your child’s services or to change his or her placement almost always requires the assistance of a professional who practices in the area of your child’s disability. Whether it is a neuropsychologist who can testify as to your child’s cognitive abilities, or a therapist to describe your child’s mental health needs, the participation of these professionals is absolutely critical to your case. If you end up at a due process hearing, I would say that it is practically impossible to prevail without the expert testimony of highly qualified professionals. Retaining experts can be expensive, and it often takes several months just to schedule an evaluation and to obtain the reports. Parents often ask me if they can go without expert assistance and if they can just testify as to their own observations of their child. I do not doubt that parents very often know more about their child’s needs than anyone they could hire. Unfortunately, however, the testimony of an expert – that is, a person with specialized training, education and experience in their field – is the most critical component of your case. School officials and hearing officers expect to hear from experts who will explain why your child needs specialized services or a different placement. If you are going to a due process hearing, it is short sighted to scrimp on the expert. How do you find qualified experts? Very often, they are the professionals who are already involved in providing treatment to your child. Other times, you may obtain referrals from your child’s primary care physician or through your insurance company. Sometimes, if you are lucky, your insurance may actually cover some or all of the costs of an expert evaluation. Special education lawyers and advocates are also a good resource to help you find experts who have experience testifying in these types of cases. One important piece of advice: make sure that you ask anyone who provides care to your child if they are willing to testify at a hearing if it is necessary. Be aware that many physicians and other providers do not want to testify and will decline to do so. If they will not agree to testify, you may want to reconsider using their services. Recently I was informed by a psychiatrist at a major Boston hospital, who has treated my client for years that he will not be permitted by “hospital policy” to testify at an upcoming hearing. Even though this psychiatrist has written an excellent report, my case will be severely weakened if he ultimately refuses to appear to actually testify before the hearing officer. Expert testimony is critical to success at a hearing, and you do not want to find out when it is too late that the professional who has been working with your child will not take the time to provide the support that is needed. It is important to
Read MoreEffective Parents Maintain a Cordial and Professional Relationship with School Staff
Maintain a cordial and professional relationship with school staff It goes without saying that maintaining respectful and cordial relations with school personnel – even if you disagree on the issues – is a worthy objective. Effective parents know that their relationship with a school district may last 12 years or more, and the way in which they choose to communicate with school officials may well impact their child’s education. Email seems to have become the most common method of communication between parents and teachers and school administrators. While the simplicity and convenience of an email cannot be matched, the down side is that, all too frequently, an email is sent impulsively or when the sender is angry or frustrated. As a result, many parents – and school officials – have been embarrassed when called upon to explain inaccurate or disrespectfully written communications. Effective parents read and re-read each email before hitting the “send” button. They realize that their written correspondence is a reflection on their character and credibility. They know that all communications – written and verbal – must be courteous, professional and accurate and should never contain any personal attacks. They don’t allow personal animosity to cloud your judgment. Effective parents also allow school professionals the opportunity to do their jobs. They know that, if a parent is uncooperative or interferes in an inappropriate manner, a hearing officer may eventually decide that the parent’s actions undermined the school staff’s ability to educate the child. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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