Disagreements in Special Education...Weymouth Public Schools – BSEA # 09-1335 - allowed a...
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Disagreements in Special Education SEPAC Presentation: Northborough Southborough
Transcript of Disagreements in Special Education...Weymouth Public Schools – BSEA # 09-1335 - allowed a...
Disagreements in Special EducationSEPAC Presentation: Northborough Southborough
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Thank you for having me.
Welcome
Disagreements in Special EducationSEPAC Presentation: Northborough Southborough
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Introduction
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Due Process Independent Evaluations Working with the Team Responding to an IEP
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Q & A
Due ProcessYour right to disagree
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Under IDEA (20 U.S.C. 1400), and MGL c. 71B, due
process is a formal way to resolve disputes about
special education (services, placement, etc.)
It starts with a formal complaint, and ends with a
decision (or an agreement)
What is it?
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Due ProcessYour right to disagree
Bureau of Special Education Appeals (BSEA) -
Hearing Officers decide if a district is providing FAPE
(among other things)
Appeal to Court - Judge
Who decides due process claims?
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Due ProcessYour right to disagree
Hearing officers and judges interpret the law -
Reading the law alone is not enough to fully
understand your rights and the special education
process
Why does it matter for everyone?
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Due ProcessYour right to disagree
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Question What does FAPE and effective progress mean?
Due ProcessYour right to disagree
FAPE requires that a student’s individualized
education program (IEP) be 1) tailored to address
the student’s unique needs in a way 2) reasonably
calculated to enable the student to make meaningful
and effective progress in the 3) least restrictive
environment (LRE)
FAPE
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Due ProcessYour right to disagree
Documented Growth according to:
1) Age
2) Developmental Expectations
3) Individual Potential
4) Learning standards in MA framework and district
curriculum 603 CMR 28.02
Effective Progress
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Due ProcessYour right to disagree
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Autism IEP Act (DESE Advisory):
“…Team shall consider and shall specifically address the following: the
verbal and nonverbal communication needs of the child; the need to
develop social interaction skills and proficiencies; the needs resulting
from the child's unusual responses to sensory experiences; the needs
resulting from resistance to environmental change or change in daily
routines; the needs resulting from engagement in repetitive activities
and stereotyped movements; the need for any positive behavioral
interventions, strategies, and supports to address any behavioral
difficulties resulting from autism spectrum disorder; and other needs
resulting from the child's disability that impact progress in the general
curriculum, including social and emotional development.”
Students with ASD
Due ProcessYour right to disagree
IEP is designed as a “package” and “must target all
of a child’s special needs, whether they be academic,
physical, emotional, or social…”
Student v. Acton, BSEA # 14-05736 - hearing officer
found that school district’s program denied FAPE
when IEP met academic but not social/emotional
needs
Academic, Social, Emotional…
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Due ProcessYour right to disagree
When a student is 14:
1. Schools must complete age appropriate transition
assessments, and
2. Team must create appropriate measurable
postsecondary goals…related to training,
education, employment, and, where appropriate,
independent living skills.
(20 USC § 1414 (d)(1)(A)(i)(VIII). See also 34 CFR
§300.320(b), MGL c 71B § 2.)
(Dracut PS BSEA # - 08-5330)
Transition
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Due ProcessYour right to disagree
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• Learn about your district
• Learn about an independent evaluator
• Find a similar set of facts
www.specialedlaw.com
Due ProcessYour right to disagree
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Question What other options are there for resolving
disagreements?
Due ProcessYour right to disagree
Program Quality Assurance (DESE) for procedural
violations (missed timelines, etc.)
Mediation
Facilitated Team Meetings
SpedEx (?)
Other options
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Due ProcessYour right to disagree
Independent EvaluationsWhat you need to know
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• Parents can pay privately for IEE at any time • Team must consider IEEs • Under state law, parents can request an IEE
at district expense if income eligible • Under federal law, parents can request an
IEE if district evaluations are not
comprehensive • District can pay or file for hearing within
5 days
Summary
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Independent EvaluationsWhat you need to know
• Observe: Hearing officers sometimes give less
weight to testimony and reports of evaluators who
have not observed (Amherst-Pelham, BSEA #
07-2259 and # 07-3796, but see Student v.
Greenwood Public Schools – BSEA # 14-03564
• Seek input from staff: Evaluators should
communicate with district (Norwood Public
Schools – BSEA # 11-5444)
What evaluators should do
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Independent EvaluationsWhat you need to know
• Testify: Hearing officers give little or no weight to
evaluators who do not testify (Pentucket Regional
School District – BSEA # 11-5530)
• Review Records (all records, even those that don’t
support your position)
What evaluators should do
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Independent EvaluationsWhat you need to know
Observation Law passed in 2008, instructing districts
to allow parents and evaluators access to observe
Weymouth Public Schools – BSEA # 09-1335 -
allowed a parent’s request to observe for 13 hours
over four days
School District must allow evaluators to speak with
staff (Northbridge Public Schools, BSEA # 09-2533)
Observations
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Independent EvaluationsWhat you need to know
• When possible, parents should work with
independent evaluators early in the process
(Boston Public Schools, BSEA # 09-0294)
• Use it at a Team meeting or lose it at a hearing (In
Re: Richmond Consolidated School District
(“RCS”) – BSEA # 14-10881)
Timing
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Independent EvaluationsWhat you need to know
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Independent Evaluations
Question How do I choose an evaluator?
What you need to know
• Rely on referrals from an attorney, advocate, or advocacy organization
• Ask an evaluator if s/he will testify at the BSEA, if necessary
• Consider an evaluator who is willing to observe, and ask that evaluator to seek input from school staff - follow-up questions by phone or e-mail
What you need to know
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Independent Evaluations
IEE Tips
Working with the TeamNegotiation strategy
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1. Separate the issues from the people, and assume
that staff wants to help
2. Stay polite, respectful, but firm - easier said than done
3. Understand the bigger picture (budget and
resources, hierarchy, etc.)
Negotiation
Negotiation strategy
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Working with the Team
4. Make sure that the district understands your
position - consider drafting a short opening
statement:
a) describe your child’s needs and disability
b) brief history
c) current issues (separating the people from
the issues)
d) clear “ask” and risks if changes aren’t provided
Negotiation
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Working with the TeamNegotiation strategy
5. Know when to agree to disagree, and to move
forward in the process
6. Understand your rights
Cite the law at meetings? Sparingly
Negotiation
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Working with the TeamNegotiation strategy
7. Ensure that the disagreement is in writing -
reject the IEP in part
8. Rely on Independent Educational Evaluations
early in the process
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Negotiation
Working with the TeamNegotiation strategy
Responding to an IEPIn 3 Steps
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1. Accept
2. Reject
3. Partial Rejection
Can revoke signature and instead reject or reject in
part at any time (34 C.F.R. §300.9(c); 603 CMR
28.07(1)(a)(2).
Three options
In 3 Steps
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Responding to an IEP
1. Statement
2. Concerns
3. Omissions
Partial Rejection - 3 Steps
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Responding to an IEPIn 3 Steps
I accept all of the services offered, but reject the
IEP to the extent that my child needs services and
supports beyond those proposed to make effective
progress.
* I understand that the district will implement the
IEP as written.
Partial Rejection - Statement
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Responding to an IEPIn 3 Steps
I am very concerned about my son/daughter
because…
He cries when he returns home from school
His grades are declining and he failed MCAS
She has no friends and plays videogames by herself
all night
Partial Rejection - Concerns
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Responding to an IEPIn 3 Steps
I reject the omission of…
An embedded social skills curriculum
A 1:1 paraprofessional
A full-year, full-day ABA program
…as recommended by Dr. X
Partial Rejection - Omissions
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Responding to an IEPIn 3 Steps
1. Length - short paragraphs, bullets, concise
2. Focus on the big picture: “An IEP is designed to
be a functional blueprint for addressing a
student's special education needs, not an
encyclopedia.” - In re: Rick and Foxborough
Public Schools (BSEA #11-6535)
Partial Rejection - Mistakes to Avoid
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Responding to an IEPIn 3 Steps
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Question What about “stay-put”?
In 3 Steps Responding to an IEP
During a dispute regarding placement or services,
student remains in last agreed-upon program and
placement, unless parents or district agree
otherwise. (20 U.S.C. §1415(j), 34 C.F.R. §300.518,
603 CMR 28.08(7))
“I am exercising my right to stay-put to these
services and understand that the services will
continue.”
Stay-put
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Responding to an IEPIn 3 Steps
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The disagreement persists
Question What should I do if I have an independent
evaluation and my Team meeting strategy is
perfect, but the district just disagrees?
• First, try to determine the source of the
disagreement
•Is the evaluation sound (did the evaluator use the
right assessment tools, did the evaluator observe,
talk to staff, etc.)?
• Does the Team understand the evaluation, and
should the evaluator attend a Team meeting or
speak with school staff?
• Then, consider due process and dispute resolution
District Disagrees with IEE
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The disagreement persists
CONTACT&
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Contact
42 Davis Road
Suites 3 & 4
Acton, MA 01720
www.perlmanlegal.com
(978) 274-7101 twitter.com/spedlawyer
facebook.com/specialedlawyer
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