Special Education Tip #8: Provide Consent for School Evaluations
When a school district requests consent to conduct evaluations of a child receiving special education services, many parents’ first inclination is to say no. This is especially true for parents who recently hired an independent evaluator to assess their child’s abilities and make recommendations. Many parents fear that the district will skew evaluations to only show their child’s strengths, making it harder for them to prove that their child is in need of additional services or an out-of district placement. However, it is important to realize that allowing the district to perform its own evaluations is a vital to step in getting your child the necessary services or succeeding at a due process hearing. Therefore, it is important to always provide consent for school evaluations. When facing the possibility of a hearing, parents should do everything possible to be cooperative. By rejecting the district’s requests to conduct its own evaluations, a parent is opening up the possibility that the school district will argue that they could not determine an appropriate placement for the child due to the parent’s refusal to provide information or access to the child. In addition, it is always best for your child’s educational team to have as much information as possible about what your child needs. Providing consent for the school to conduct additional evaluations when requested is one way to ensure that more information about your child’s needs and strengths and weaknesses will be available to all members of your child’s team. In the event that the school district’s evaluations result in recommendations contrary to what you think your child needs, you may request an Independent Educational Evaluation (IEE) for a second opinion or seek out your own private evaluation. And remember, it is completely possible that the district’s evaluations will reinforce what your private evaluator already stated, making your case stronger. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreBackground Checks on Applicants – Massachusetts Law Offers Certain Protections
Employment Background Checks – Massachusetts Law Background checks are often used by employers as part of the pre-employment screening process. Employers may be able to access certain information about applicants through the use of criminal background checks and credit checks, but the amount of information they will be able to access will depend on whether the particular employer is a public or private organization, the type of industry, and the nature of the position. In this article we will discuss the use of criminal records in the interview and pre-employment screening process; our next article will discuss the use of credit checks. Have Questions? Call Sankey Law Offices Today At (781)930-3127 Prospective employees with criminal records may face some challenges in the employment process. However, Massachusetts provides applicants with criminal records fairly strong protections when it comes to obtaining and using criminal record information in the employment process. It is important to note that, although many employers rely heavily on background checks, such as criminal records and credit checks, they may also access additional information about applicants through publicly available sources of information. Criminal Record Checks One of the primary ways prospective employers investigate applicants is through criminal record checks. Many employers in Massachusetts obtain copies of applicants’ criminal records through a state system called CORI. Some employers may also have access to more in-depth criminal record information through the federal government, which allows for nationwide searches into an applicant’s criminal history. Have Questions? Call Sankey Law Offices Today At (781)930-3127 In 2012, the Massachusetts legislature enacted a law that prohibits employers from asking about criminal record information on their initial written applications. However, employers may ask applicants to disclose information about certain types of convictions during an interview. If an employer wishes to ask an applicant about his or her criminal history in an interview, certain rules apply. Felonies: An employer may ask if an applicant has ever been convicted of a felony. Misdemeanors: An employer may only ask an applicant to disclose information about misdemeanors that occurred within the last 5 years. An Employer may not ask an applicant to disclose information about misdemeanors where the date of conviction or completion of incarceration was five or more years prior to the date of application. An employer may not ask an applicant to disclose first-time convictions for: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing of the peace. Employers may not ask about arrests that did not lead to conviction. Most employers cannot ask about sealed criminal records (although some industries, such as daycare centers, do have access to all records, sealed or otherwise.) Have Questions? Call Sankey Law Offices Today At (781)930-3127 What is CORI? CORI stands for Criminal Offender Record Information. CORI provides information about an applicant’s criminal history within the state of Massachusetts. It may also have additional information if outside sources provided the state with their records, but it is not a national criminal record system and typically does not provide information about crimes that occurred in
Read MoreSpecial Education Tip # 7: Recording Team Meetings – is it a Good Idea?
Is it a Good Idea to Record Team Meetings in MA? Team meetings can be stressful and confusing. During a typical meeting, teachers, administrators and specialists offer opinions about your child, often at a rapid pace and using terms with which you may not be familiar. Naturally, it is important for parents to understand what is being said about their child during team meetings so that they can evaluate the special education programs and placements that are being proposed. Given the importance of this information, it would seem to make sense to record the team meeting so that you can review the tape later at home. But is recording a good idea? First, be aware that under Massachusetts law, it is a criminal offense to record another person’s conversation without their consent. This means that, if you wish to record a meeting, you must disclose your intention to the team. With few exceptions, if you notify the team that you want to record the meeting, you will be allowed to do so. If you are denied the right to record a meeting, you should ask the team for a copy of any school policy that they are relying upon to deny your request. However, in our experience, the presence of a recording device at a team meeting often inhibits the participants’ honest discussion about your child and may make it more difficult to reach a decision. Team members are just less likely to speak candidly when they know they are being recorded. Therefore, unless there is some unusual reason for recording the meeting, we suggest that parents forego recording and instead do their best to simply take notes of what transpires. Better still, bring a family member or friend with you whose only job is to write down what is said at the meeting. Most frequently, parents want to record when there is a history of adversarial meetings. Even in these situations, however, recording rarely demonstrates that the team is hostile because members will not speak freely when the recorder is on. Furthermore, parents will need to be cautious in their own remarks because, when the parents record, the team will undoubtedly make its own recording. When would we recommend recording team meetings? Certainly, if a parent has difficulty hearing or understanding what is being said, recording may be the only alternative. Furthermore, recording may be appropriate during any disciplinary hearings or manifestation determination meetings that could result in suspension or expulsion of the student. Honest and candid discussion of a student’s strengths and weaknesses are hallmarks of a good team meeting. When recording the meeting is likely to inhibit this discussion, we suggest that parents carefully consider whether it is worthwhile. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MorePre-Employment Testing: What Employers Can and Cannot Require
Pre-Employment Testing Under Massachusetts Law During the hiring process, job applicants may be asked to undergo various forms of testing in order to obtain employment. As a job applicant, you might expect a prospective employer to investigate your criminal background or check your references, but there are many other types of pre-employment screening that are sometimes used. These tests may include medical examinations, drug tests, and lie detector tests. Some of these examinations may be acceptable regardless of the nature of the position, while others may only be used by an employer when the essential duties associated with a position requires additional testing or when such testing is required by federal or state law. Below we will describe several different types of pre-employment screening, and when they are permissible in Massachusetts. Do You Have Pre-Employment Testing Legal Questions? Call Sankey Law Offices Today At (781)930-3127 Medical Examinations Medical exams, prior to the employer making an offer of employment, are not permitted unless they simply involve demonstrating how, with or without reasonable accommodation, the applicant intends to perform the essential duties related to the position. Employers may make an offer of employment contingent upon the applicant’s ability to successfully pass a medical examination. This practice is permitted as long as the exam is required of all employees entering the same position, regardless of any perception of disability. Potential employees may not be excluded from the opportunity to gain employment unless they are unable to pass any portion of a medical exam that directly relates to the applicant’s ability to perform a necessary job function and the problem cannot be remedied with reasonable accommodations. Drug Tests Federal law generally takes a neutral stance on an employer’s ability to administer drug tests as a condition of employment in most industries – although industries such as transportation, aviation, and defense may require drug tests in light of safety concerns. Under Massachusetts law the use of drug tests as a hiring mechanism is neither encouraged nor prohibited. If an employer in Massachusetts chooses to administer a drug test it should occur after an offer of employment has already been made – drug tests should not be administered at any earlier stage in the hiring process. Additional Considerations: If an employer chooses to administer drug tests it must be done so uniformly to all applicants; an employer may not single out specific applicants or groups of applicants based on a suspicion that a particular applicant might be a drug user. An employer that singles out specific applicants or groups of applicants may risk a discrimination claim. Employers who choose to administer drug tests must do so in a manner that does not amount to a significant, unreasonable, or serious invasion of privacy. For example, a drug test should not be administered under circumstances that would require multiple test takers to disrobe in the same room. Determining appropriate level of privacy often requires a consideration of the competing interests of the applicant’s need for privacy and the
Read MoreMA Supreme Judicial Court Bars Warrantless Searches of Vehicles Based on Marijuana Odor
Massachusetts Court Bars Warrantless Searches of Vehicles Based on Marijuana Odor In a pair of decisions issued on July 9, 2014, the Massachusetts Supreme Judicial Court refused to uphold warrantless searches of motor vehicles which the police had attempted to justify based upon officers’ detection of a smell of marijuana emanating from the vehicles. These decisions demonstrate the court’s adherence to the 2008 Massachusetts voters’ initiative which decriminalized the possession of one ounce or less of marijuana. In the first decision, the police argued that they had probable cause to search a vehicle based upon the officer’s perception of a “very strong” odor of unburnt marijuana coming from inside the vehicle. The court rejected this argument, finding that it was “dubious” that an officer could determine by smell alone that what he smelled was a criminal amount of marijuana – more than one ounce – necessary to provide probable cause to search. The court stated that it was not confident “that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine.” In a previous case from 2011, the SJC had held that the odor of burnt marijuana could not reasonably provide suspicion of criminal activity and, in the present case, the court extended that ruling to unburnt marijuana. In the second case, the SJC rejected two reasons offered by the Commonwealth to justify a vehicle search based upon the odor of unburnt marijuana: (1) that the search was necessary to prevent the driver from smoking marijuana while driving and (2) that the search was authorized because possession of even less than one ounce of marijuana remains a criminal offense under federal law. In regard to the first argument, the SJC noted that the smell of unburnt marijuana did not suggest a likelihood that the driver would smoke marijuana and drive unless the police intervened to stop him. To the contrary, the court found that the fact that the smell was of unburnt marijuana more likely demonstrated that the driver was not smoking while driving. The SJC recognized that were it to accept the Commonwealth’s flawed argument, “it would necessarily follow that police could search any vehicle containing sealed bottles of alcohol, based upon a potential risk that the driver could open a bottle and begin drinking while driving.” The SJC also pointedly dismissed the Commonwealth’s argument that the search was justified to enforce a federal prohibition of possession of small amounts of marijuana. The court emphasized that “given the clear preference expressed in the 2008 initiative that police focus their attention elsewhere, Federal law does not supply an alternative basis for investigating possession of one ounce or less of marijuana.” These cases seem to curtail all possible police arguments that they may search a vehicle based upon an odor of marijuana, whether the smell is of a burnt or unburnt nature. Recognizing that possession of one ounce of marijuana or less is not a criminal
Read MoreUsing a Fake ID in Massachusetts – Not a Big Deal? Think Again!
Using a Fake ID is Illegal in Massachusetts Summer is upon us. It’s a great time of year to go to clubs and concerts. It’s tough being 19 or 20 years old though, when you’re left behind by your 21 year old friends as they head out to experience the Boston nightlife. The easy solution – a fake ID. The chances of getting caught seem slim, and they are easy and not too expensive to obtain. Using a fake ID is easy to justify because “everyone else has one” and even if your parents know, they don’t seem to get overly upset. It will also be useful to take back to college in September. Our advice: think again! There are serious criminal consequences in Massachusetts for offenses involving false identification cards, and police are very aggressive in detecting and prosecuting these offenses. It is against the law in Massachusetts to falsely make or alter a driver’s license or other forms of identification. This offense is a felony, with possible punishment of 5 years in prison. A felony conviction has serious permanent ramifications and can affect eligibility for financial aid as well as the right to vote or to possess a firearm. It is also a criminal offense to use or carry a false identification card. The simple act of using or carrying a fake ID can result in a misdemeanor conviction punishable by imprisonment of not more than three months and a fine of not more than $200. Now, let’s consider reality. Is it likely that a teenager will actually go to jail for using a false identification card? Of course not. However, he may be summoned to appear in court with the result that the charge will appear on his criminal record, with negative implications for future employment. The main consequence that should get the attention of any teenager is the impact on his driver’s license if caught using a fake ID. Even if a car was not involved in the offense, most police departments will report any arrests for false identification offenses to the Registry of Motor Vehicles. The Registry is required to suspend the driver’s license of any person convicted of making or altering a driver’s license for one year. If the charge is for using or carrying a false identification card, the Registry may suspend the driver’s license for 180 days, even if there is not a conviction. Offenses involving false identification cards are serious. Ask any teenager who has been through the process what it was like to be without a license for six months. Getting into a club for one night seems hardly worth the risk of serious criminal consequences and the inconvenience of being without transportation. If you have the unfortunate experience of being charged with a false identification offense, call a lawyer. There are things that can be done to avoid many of these consequences, but it is critical to intervene at the earliest possible stage. Written by Jeffrey Sankey For more
Read MoreSpecial Education Tip #1: Do Not Forget to Provide Notice of Unilateral Placement
As the school year comes to a close, perhaps you have decided to place your child in a private special education school program in September. Parents may be able to receive public funding for a private placement, but only if they can demonstrate that the District did not offer their child a free appropriate public education (FAPE). If you intend to seek reimbursement from your public school district for a unilateral placement – that is, a private school placement made without the consent of the District – you must provide timely notice of your intention to the District’s Director of Special Education or Superintendent. Under federal law, a parent must give notice either orally at the last team meeting prior to the placement, or in writing at least ten business days before enrollment. Pay attention: notice must be provided within 10 business days, not calendar days, so be sure to subtract weekends and holidays when calculating the time. A written notice – sent by certified mail – is almost always preferable so that there will be a record that the District received notification. The notice must include a brief statement explaining why the parents are rejecting the placement proposed by the District and a statement that the parents intend to seek reimbursement for the costs of the private placement. The key word is brief. You do not need to provide a detailed or lengthy explanation of your reasons. If you fail to provide the requisite notice to the District prior to your child’s placement, you will, with few exceptions, be barred from receiving reimbursement. This is an easy step to overlook with severe consequences, so make sure to set reminders to send timely notification. This is the first post in a new series of articles we have started where we will provide a special education tip each week. Please check back each week for more tips and answers to frequently asked questions related to special education law. If you have questions about notice requirements, unilateral placement or any other special education issues as you begin to plan for September, please contact us for further information and advice. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreEmployers Must Accommodate Employees Unless it Presents an Undue Hardship
In our last article, we discussed the protections afforded to disabled individuals in the hiring process. As we mentioned, qualified individuals with disabilities are entitled to “reasonable accommodations” to allow them to perform the essential functions of their job. However, an employer is not required to provide an accommodation if it will cause an undue hardship for the employer. In general, employers must accommodate employees unless it presents an undue hardship. But what is an undue hardship? An undue hardship occurs when providing the requested accommodation will substantially interfere with the employer’s ability to carry out business. There are a variety of reasons why an employer may not be able to grant a request for an accommodation. Some of these reasons include: instances when granting such a request renders the employer unable to comply with federal or state laws, where health or safety would be compromised, when the job function cannot be performed by another employee, or where the expense is too great. Massachusetts law outlines several specific considerations for determining an undue hardship: 1. The overall size of the employer’s business with respect to the number of employees, the number and type of facilities, and the size of budget or available assets. 2. The type of the employer’s operation, including the composition and structure of the employee’s workforce. 3. The nature and cost of the accommodation needed. As the factors listed above indicate, there are several different items that must be weighed when determining whether an accommodation would pose an undue hardship. Notably, what may constitute an undue hardship to one employer may not be an undue hardship to another employer, so these determinations must be made on a case-by-case basis. In cases where providing an accommodation creates an undue hardship for an employer, the employer must consider alternative accommodations that would not impose an undue hardship. To this end, employers and employees must work together through an interactive process to determine what constitutes a reasonable accommodation and how to best implement such accommodation. If, after considering alternatives, an employer determines that it cannot reasonably accommodate an employee, the employer or employee may wish to consult legal counsel to ensure there are sound business reasons for denying the accommodation request. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreSpecial Education Tip #5: Determine if Your Child is Eligible for Special Education Services
Determine if Your Child is Eligible for Special Education Services Many parents of students who require special education services have concerns about their child’s progress or particular learning needs beginning at a young age. While parents always know their child best, in order to receive special education services in Massachusetts through the public school system, a student must first be referred for an evaluation to determine if he is eligible to receive such services. To be eligible for services, a child must: Have a disability; Not be making effective progress in regular education due to the disability; and Require either specially designed instruction or a related service that is necessary to access the general education curriculum. The local school district where the child resides will make the determination as to whether a child meets these criteria and is therefore eligible to receive special education or related services. As mentioned above, the initial step in this process is the referral for an evaluation. Under Massachusetts and federal law, a parent or a person in a caregiving or professional position may refer a child for an initial evaluation to determine if a child is eligible for special education services. Once the school district receives this referral, the district must send a written notice to the parents requesting parental consent to conduct an evaluation, and also provide an opportunity for the child’s parents to discuss their concerns and share information with district personnel. If parental consent is not given, the district may obtain authorization from a hearing officer at the Bureau of Special Education Appeals (BSEA). After consent or authorization is obtained, the district must conduct the evaluation at no cost to the parent. Massachusetts special education law provides specific timelines for conducting this evaluation and reviewing the results with parents, which we will discuss in our next special education article. Our suggestion: if you have concerns about your child’s progress, request an evaluation. The findings of an evaluation may lead to entitlement to necessary services, or, at the very least, assure you that your child’s progress is satisfactory. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreSpecial Education Tip # 4: Do You Need an Evaluation to Determine Your Child’s Progress?
Evaluations are Often Necessary to Determine Your Child’s Progress As the school year comes to an end, take the time to carefully review your child’s final report card and progress reports. Are you satisfied that your child made progress this year? How did he perform in relation to the goals set forth in his IEP? Under federal and state law, your child’s team must provide an educational program that is designed to allow her to make meaningful progress in accordance with her potential. Measuring “meaningful progress” is difficult and requires consideration of many factors. Grades and progress reports alone are insufficient indicators of progress, and parents should be wary if the team’s assessment of progress is based entirely on these subjective measures. In our view, objective measures and standardized tests are the best ways to assess a student’s performance and to determine whether he or she is demonstrating progress over time. If you have concerns about your child’s performance, we strongly recommend that you consider scheduling an evaluation to assess his progress. Evaluations can be requested through the school district or, if you have the financial means or insurance to cover the cost, you may wish to retain a private evaluator. Private evaluations can be costly but are generally more extensive and detailed than evaluations conducted within the district. These evaluations are critical not only to show your child’s progress but also to provide recommendations for services designed to improve your child’s performance. When considering whether to retain a private evaluator, be sure to inquire whether he or she is willing to present the findings of the evaluation at a team meeting or, if necessary, at a due process hearing. An evaluation by someone who is unwilling to present it is essentially worthless. If you have decided to arrange for an evaluation, be aware that this can be a lengthy process. The most experienced evaluators are often booked months in advance. Because of their expertise, they are often worth waiting for, but advance planning is critical. It is best to schedule evaluations when you first have concerns about your child’s performance so that you can obtain a timely assessment and helpful recommendations. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
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