Special Education Decision Results in Placement at Riverview School
Sankey Law Offices recently prevailed in a hearing before the Bureau of Special Education Appeals which resulted in the placement of a 15 year old boy at Riverview School. The student, who presents with diagnoses of Autism Spectrum Disorder and an intellectual impairment, was placed in a partial inclusion program at Fairhaven High School. It was Fairhaven’s position that its program was appropriate because the student was able to access the general curriculum and was an active participant in his classes. Moreover, Fairhaven argued that the student loved to participate in band and that his removal from the community to attend a private school would deprive him of his independence and the ability to socialize with non-disabled peers. Over the course of a three-day hearing, the student’s parent was able to demonstrate that the student was unable to access grade level academics even with a dedicated paraprofessional. The parent also showed that Fairhaven had failed to provide recommended reading intervention and, most importantly, that the district ignored its obligation to embed social skills instruction throughout the student’s school day. Based in large part upon these deficiencies, the hearing officer ordered Fairhaven to fund the student’s placement at Riverview School. From our perspective, there are at least three important lessons from this case. First, the hearing officer was resolute in requiring that there be objective measures of performance to establish effective progress. The fact that the student appeared engaged and happy in general education classes was not enough to justify Fairhaven’s program. Instead, the hearing officer noted that the lack of objective measures – such as evaluations and data-driven assessments – undermined Fairhaven’s claim that the student was making effective progress. Most notably, the hearing officer rejected the notion that report cards and progress reports are sufficient to establish progress, describing them as little more than “subjective and global reports of class participation” rather than objective measures of academic progress. Second, the parent demonstrated that the student’s goals, objectives and benchmarks were largely unchanged over a three year period. The hearing officer noted, quite correctly, that the continued presentation of identical goals indicated that the student was not making progress. This is a clear reminder that, whether participating in a team meeting or reviewing an IEP, it is critical to pay attention to the goals and benchmarks in order to determine whether the student is truly progressing. Finally, as we always stress to our clients, the retention of highly qualified and articulate experts to evaluate and observe is essential to success at a hearing. In this case, the hearing officer credited and relied upon the parent’s expert to a very high degree in determining the student’s learning needs and in evaluating Fairhaven’s proposed program. We continue to believe that a case cannot be won in any hearing without highly competent and thoughtful expert testimony. The bar is always high when seeking an out-of-district placement for a student at a school district’s expense. This case illustrates the painstaking detail that is required
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 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 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.
Read MoreEffective Parents Cooperate and Share Information with their Child’s Teachers and Special Education Team
Share information with your child’s teachers and team Parents are often frustrated by a school’s failure to conduct thorough evaluations using qualified professionals. Discouraged by the school’s failure to evaluate, many parents hire their own experts at significant personal expense to complete the testing and to provide recommendations for further accommodations and services. Most privately retained experts will write comprehensive reports detailing their findings and recommendations. Medical providers who treat children with special needs also create detailed records describing the child’s disability and needs. Particularly in cases involving emotional disabilities, these records may contain very sensitive and confidential information about the child and the child’s family. I am often asked by parents whether they must disclose the reports of privately retained experts or sensitive medical records to the school. With few exceptions, my answer is, yes. Generally, all records must be disclosed if the parent expects the school to provide services in compliance with the expert’s recommendations. Further, if the parent intends to use the information contained in the reports as evidence at a due process hearing, the documents must always be disclosed. It is important to bear in mind that the District has the responsibility to provide the child with a free appropriate public education. The District cannot be expected to satisfy this obligation if it is not provided with all information necessary to make important decisions about the child. Furthermore, if the parent intends to go to a hearing, the District will have the opportunity to participate in “discovery,” which is a process that allows the District to subpoena virtually all information relating to the child. If a parent requests a hearing before providing all information to the District, it is likely that the entire process will be stopped to allow the team to reconvene to consider the new information. Many hearings are lost by parents when the District proves that the parent’s lack of cooperation interfered with its ability to assess the child’s needs. Your ability to demonstrate that you have fully cooperated with the District and that you have disclosed all relevant information for the team’s consideration is a critical component in a successful due process hearing. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
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