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When and How to Reject a Graduation Date

Under the IDEA and Massachusetts special education law, students who qualify for special education are entitled to receive services until they graduate from high school or until they turn 22. To graduate and receive a diploma, a student must meet the local education agency’s (LEA) graduation requirements, earn the “competency determination” based on MCAS scores, and receive a free appropriate public education (“FAPE”) meeting each of their IEP and transition goals.

Beginning when the student turns 14 years old, the Team should discuss and identify transition goals at every IEP Team meeting, including input directly from the student. If the student has NOT met each of his or her IEP or transition goals prior to the anticipated graduation date specified on the IEP, the student or parent may reject the graduation date. Because graduation is considered to be a change in placement, by rejecting the graduation date, the student is evoking his or her right to “stay put.” Stay put provides that while there is a pending dispute, a student has the right to remain in his or her last-accepted placement [read our recent blog post on the subject to learn more].

In a recent BSEA decision, the Hearing Officer wrote, “Numerous BSEA decisions and rulings have established that once a fully accepted and implemented IEP has expired, hearing officers are precluded from re-visiting those IEPs, as long as the parent had an opportunity to participate in the development of the IEP in question and received the notice of parental rights regarding IEP acceptance/rejection and dispute resolution options.  The BSEA may only review the appropriateness of IEPs rejected during their term prior to expiration.” See In re: Student v. Blue Hills Regional Technical Schools, BSEA #20-08213, Figueroa, July 6, 2020, citing In Re: Westport Community Schools, BSEA #13-02922 (Oliver, 2013).

For students nearing graduation, this means that in order to protect and utilize due process rights, an IEP must be rejected prior to the graduation date and expiration of the student’s IEP. An IEP rejection should always be submitted to the Team in writing. A formally rejected IEP triggers due process rights to dispute resolution systems, including access to BSEA mediation and/or a hearing at the BSEA.

In summary, if a student has not met each of his or her IEP and transition goals and should continue to receive special education services beyond the anticipated graduation date, it is crucial that the final IEP is rejected in a timely manner prior to graduation.

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Three Things to Know about Stay-put

When used correctly, stay-put provides a powerful and important protection for families who have children with disabilities. In short, stay-put prevents unilateral action by a school district when parents object to a change in their child’s educational program or placement.

The protection ensures consistency in a student’s program during a dispute – which is critical for many students with disabilities.

For example: if a student is placed at a private special education school pursuant to an IEP, and a school district proposes to transition the student back to the local public school, the parent can reject the proposal, and the school district will need to continue to fund the private school placement while the dispute is ongoing.

Below are three things to know about stay-put protections:

1) Authority: In Massachusetts, the right to stay-put can be found at 603 CMR 28.08 (7), “during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise.”

Under the IDEA, 20 U.S.C. § 1415(j), “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child…”

2) Application: Parents can assert their stay-put right when a school district proposes to change a student’s placement, program (including extended school year services), or when a district finds that a student is no longer eligible for special education services.

In Leominster Public Schools – BSEA # 12-7450, the hearing officer found that parents properly invoked their right to stay-put when a school district proposed to change a student’s summer program from a 165-hour program to a 108-hour program.

3) Action Items: If a district is proposing something different than the program a student is currently receiving, the student’s parents can reject the proposed IEP in full or in part. Parents should also write a letter accompanying the IEP signature pages, explaining that they want the services or placement to remain the same, and are asserting their right to stay-put.

A district cannot change a student’s educational program or placement unless either: 1) the parents agree to the change; or 2) either the parents or the district files for a hearing at the BSEA, and a hearing officer orders a change. Note that in Massachusetts, parents can invoke their right to stay-put without filing for hearing, which might not be the case in other states.

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Due Process Not Delayed by COVID-19

As we all adjust to life during the COVID-19 pandemic, which has drastically changed the landscape of education, it is necessary to maintain timely access to due process through the Bureau of Special Education Appeals (“BSEA”).

When a dispute regarding special education services arises between a family and their Local Education Agency (school district), either party may exercise their due process right by filing for a hearing at the BSEA. Under typical circumstances, hearings are generally held in person. However, in an effort to adhere to social distancing guidelines, hearings can and should be held via videoconference to allow for timely due process.

BSEA Hearing Officers have an obligation to ensure that fair and orderly hearings occur within the context of federally mandated timelines. 34 C.F.R. § 300.515(c) requires that no more than 45 days after the expiration of the 30-day resolution period, a final hearing decision is reached and mailed to the parties. BSEA Hearing Rule III provides that, at their discretion, Hearing Officers may grant requests for postponement for good cause, but “must give serious consideration to opposition to a request.”

Recently, a school district filed a motion at the BSEA to postpose a hearing, scheduled to begin May 11, 2020. The district argued that a fair hearing could not be conducted virtually. On April 22, 2020, Hearing Officer Reichbach denied the district’s motion to postpone the hearing. While acknowledging that an in-person hearing is preferable, the Hearing Officer ruled that the success of previous telephonic communications, along with a practice videoconference prior to the hearing date to work out any technological glitches, was sufficient to ensure that a fair hearing take place regardless of whether a matter is complicated in nature. After considering the risk of prejudice to each party, the Hearing Officer wrote, “Although not ideal, I believe it will be possible, in the circumstances of this case, for me to ensure that in a virtual hearing, ‘appropriate standards of conduct are observed and that the hearing is conducted in a fair and orderly manner.’”

On the other hand, in what we believe was an exception to the general understanding that video conferences are conducive to fair hearings, in an April 10, 2020 decision, Hearing Officer Reichbach did allow a district’s motion to postpone a hearing. In this extraordinary case, the parties’ relationship had deteriorated so significantly that the Hearing Officer had been unable to maintain order during a prehearing and other conference calls. In this case, the parties were not both represented by attorneys.

Outliers aside, in a time when we all need to be flexible and creative, the BSEA has found that videoconferencing can be used to hold virtual hearings and will meet the criteria for fair, due process hearings. We are thankful for the technology that allows us to move forward with these important matters, and applaud the BSEA for learning and adopting new technologies during this challenging and stressful time.

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Back to Basic Rights: Due Process

As a parent or legal guardian of a child with special needs in Massachusetts, you have the right to due process if you disagree with the services (or lack thereof) that a school district proposes for your child.

Special education disputes in Massachusetts are heard at the Bureau of Special Education Appeals (“BSEA”). The BSEA’s authority comes from both federal and state law[1]. Decisions at the BSEA are made by impartial Hearing Officers. Decisions made by Hearing Officers may not be reconsidered within the BSEA but may be appealed to the Massachusetts Superior Court or the US District Court.

The BSEA can hear and decide disputes including those about a child’s eligibility for special education services, the provision of services through an Individual Education Program (IEP), the placement of a student with an IEP, and procedural violations as provided for by state and federal law.

Federal law requires that students receive a free appropriate public education (“FAPE”). Students are not entitled to the best education possible; the legal standard is that a district’s program must allow a student to make “effective progress.” Additionally, students must receive FAPE in the least restrictive environment (“LRE”), meaning a district’s proposal must allow students with disabilities to learn alongside typically developing peers when appropriate. Most cases revolve around whether a district is providing sufficient services to achieve FAPE in the LRE.

After a hearing is filed at the BSEA, the parties may and often do choose to try to resolve the dispute through settlement negotiation. Understanding the type of evidence that will be persuasive to a Hearing Officer is critical. Even where the goal is to settle a dispute prior to a hearing, persuasive evidence can help resolve a dispute short of a hearing (i.e., at the Team level, or during a settlement negotiation).

If a case is not resolved through settlement negotiation, the parents and the district each present their argument using evidence through testimony of witnesses at a hearing, and through written exhibits. Districts, for example, present the information gained through their triennial evaluations of the student. Districts may also present report cards, progress reports, incident reports, behavior charts, and other data they have collected on the student, as well as testimony by teachers and other staff who work with the student.

Parents may present evidence by their own expert, obtained through an Independent Educational Evaluation (“IEE”). Often, a neuropsychological evaluation is the most comprehensive way to determine a student’s unique learning profile, and in turn is a critical part of a family’s case at hearing. Check back for part two where we will discuss how to develop evidence of your child’s needs through credible evaluators.

[1] The Individuals with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Massachusetts General Law ch. 71B

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Back to Basic Rights: Initial Eligibility

Does your child need special education services? Maybe his grades have suddenly plummeted, he’s repeatedly seeking to stay home from school for a variety of reasons, or has been struggling with behavioral outbursts at home or in the classroom. Perhaps the pediatrician has suggested that you have an evaluation conducted to assess for possible learning disabilities or other needs that could be impacting your child’s performance in school.

If you are seeking to make a referral for your child to receive special education services, you must do so by contacting your local school district and requesting an evaluation to determine special education eligibility. It is best to make this request in writing. Once the request has been received, the school district has five school days to provide you with an evaluation consent form to begin the evaluation. The school district cannot begin conducting assessments without your written consent.

The school district must complete evaluations within 30 school days of a parent’s signing of the written consent, and within 45 school days a Team meeting must occur to discuss the evaluations, determine eligibility, and complete a formal plan for services (Individual Education Program (IEP)) or accommodation plan (504 Plan) for an eligible student. You have a right to receive the special education evaluation reports two days prior to the Team meeting but must alert the school district that you would like copies to review in advance. The Team will use these evaluations as the basis of its discussion in determining if your child is eligible for special education services. As part of your child’s Team, you are an equal part of this discussion and determination. If your child is found eligible, the Team will use the results of the evaluations to develop an IEP, which will outline specific services and supports believed necessary to enable your child to make measurable progress, which can include academic, social, emotional, and functional progress.

If your child is found not eligible for special education services you will receive a notice from the school district that details the reasons for the denial, as well as a notice that specifies your rights. If you disagree with the decision you have a right to appeal. However, often an effective strategy if you disagree is to first notify the school and schedule an additional meeting with the Team to discuss your concerns regarding your child’s needs and attempt to resolve the disagreement.

Sometimes, students who are not found eligible for an IEP may be found eligible for appropriate accommodations under a 504 Plan. That meeting would be held at a later date and may involve team members different from those who participated in the IEP eligibility meeting.

Meeting with your school district’s special education director, or requesting mediation is another effective way to resolve issues about eligibility. Regardless of the process, you will likely need evidence to resolve a disagreement about eligibility. An independent educational or neuropsychological evaluation is often the most effective strategy to get a “second opinion” about school district evaluations in a way that can be persuasive to the Team.

In the event that you cannot resolve the disagreement informally, you have other options available to you, including:

  • Problem Resolution System (PRS): administered by the office of Program Quality Assurance (PQA) at the Massachusetts Department of Elementary and Secondary Education (DESE). Parents can call PQA to ask a question regarding the laws relevant to a specific concern and/or file a written complaint about procedural violations.
  • Bureau of Special Education Appeals (BSEA): an independent agency within the Division of Administrative Law Appeals (DALA) that conducts mediation and due process hearings to resolve disputes between parents and school districts.

* Check back soon to learn more about your child’s eligibility for an IEP or 504 plan and the differences/benefits to each

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5 Things to Know About “Effective Progress” Under Massachusetts Special Education Law

One of the questions I am asked most frequently by parents who have children with special needs is what does the term “effective progress” actually mean?  Often a parent will ask me this question because they are concerned that their child is not doing well at school despite having an IEP, and yet the school district is insistent that the student is making “effective progress” and is therefore unwilling to amend the child’s IEP to add services. To answer the question of what the term “effective progress” means, it is useful to first review how “effective progress” is technically defined under Massachusetts’ law:

“Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”

This definition is helpful, but not exactly clear. The good news is that BSEA and federal court decisions have provided some additional guidance about what “effective progress” means, including the following:

1. Effective progress does not mean maximum progress. It is critical that parents are aware that school districts are not legally required to ensure that students with IEPs achieve the maximum amount of progress possible.   As the federal court has explained, the “IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.” Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F. 3d 80, 83 (1st Cir. 2004). This means that there is often going to be a discrepancy between what a parent wants for their child (i.e., the best possible program and maximum progress), and what school district legally has to provide (i.e., an adequate program with some amount of progress).

2. Effective progress must be “meaningful”. School districts do have to make sure that a student is receiving a “meaningful” benefit from their educational program.  The Supreme Court has also stated that a “merely trivial benefit” is not enough to be legally adequate.  Bd. of Educ. of the Hendrick Hudson C entral School District v. Rowley, 458 US 176, 201 (1982).  In other words, while a district does not have to ensure that a student achieves an optimal amount of progress, it does need to make sure that the student is making meaningful gains under each IEP.  One way to assess whether a student’s gains are meaningful is to determine whether the student is making progress that is commensurate with their cognitive abilities.

3. Effective progress is based upon each child’s individual learning profile.  This is one of the reasons why effective progress is so hard to define – the standard will vary for each student based upon an assessment of each student’s unique needs. “Whether an educational benefit is meaningful must be determined in the context of a student’s potential to learn.”  Lessard v. Wilton Lyndeborough Coop. School District, 518 F3d 18, 29 (1st Cir. 2008).

For example, Student A has average to above average cognitive abilities and has been diagnosed with a specific learning disability.  Since Student A has average cognitive potential, it would be reasonable to expect that she would be able to read, write and perform math around her grade level with appropriate instruction.  So effective progress in this case might be measured by assessing whether Student A is achieving meaningful gains toward grade level academic achievement.

However, Student B presents with low average cognitive abilities and developmental delays. In this case, Student B’s version of effective progress is going be different than Student A’s. Effective progress for Student B is going to be progress that is commensurate with his cognitive ability – which may mean a slower rate of progress than what the Team would expect for Student A, and may include consideration of Student B’s non-academic needs.

4. Effective progress encompasses non-academic needs.  This issue has been litigated several times, and I think it is fair to say at this point that the BSEA and the federal courts are in agreement that school districts have to make sure that special education students are making progress not just academically – but socially, emotionally, behaviorally and physically as well.  For example, in a recent ruling, the BSEA found that a school district was required to provide an IEP to a student who was meeting academic expectations yet was not making adequate progress developing appropriate social skills.  See In re Belmont Public Schools, BSEA No. 1305177. In other words, school districts cannot refuse to address a student’s non-academic needs just because the student is passing their classes and/or the MCAS.

For students on the autism spectrum in Massachusetts, the Team also has to review 8 specific non-academic areas of potential need when developing an IEP – for more on this topic see my prior post here.

5. Effective progress must be “documented”. When assessing a child’s progress, it is important for the Team to consider a variety of sources of information.  Academic grades alone, for example, are not an adequate basis for determining that a child is making progress (or for finding a child ineligible for an IEP). Similarly, parents should be wary if the only evidence of progress offered by a Team is based on subjective feedback that a student “appears” to be making progress. Objective data and assessments are an excellent way to capture a student’s performance over time, and can help to document whether or not a student is making meaningful and effective progress. 

Consideration of effective progress also reveals why the evaluation process is so important.  It is very difficult to know whether an IEP is appropriate if the Team does not have a complete understanding of the student’s learning needs. Similarly, a parent may have trouble confirming that their child is making effective progress if objective data has not been collected to assess achievement levels and progress over time.

(Originally posted by Michelle Moor – February 13, 2014)

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Academic Progress Alone is not FAPE

A recent Massachusetts Bureau of Special Education Appeals (BSEA) decision makes clear that an Individualized Education Program (IEP) that allows for academic progress is not enough. Even when an IEP is appropriate academically, if it does not provide appropriate services to address other areas of need, such as social and emotional needs, it is a denial of a Free and Appropriate Public Education (FAPE).

In Student v. Acton and Acton-Boxborough Public Schools – BSEA # 14-05736, hearing officer Rosa Figueroa, supported a family’s decision to unilaterally place their fourteen-year-old child, who has a diagnosis of autism, in a private school. According to the hearing officer, “the sufficiency of a student’s IEP is not measured solely by [ ] academic success … an IEP that provides FAPE must promote a student’s development in all areas of need.”

The student called everyone a friend but did not understand the elements of friendship (e.g., trust, having fun together, etc.). He had limited understanding of perspective taking and the nuance of social norms. After school, he preferred to play video games, watch television, or read by himself. The social isolation was taking an emotional toll.

The hearing officer gave significant weight to an independent evaluator’s testimony that Acton’s program was fragmented, and it “lacked the type of cohesiveness necessary for the natural development of relationships Student required.”

The parents and independent evaluators asked Acton repeatedly for a goal related to friendship, and for a program that could provide the student with appropriate peers. The hearing officer found that Acton failed to provide these and other necessary elements of an appropriate program.

On the other hand, the private placement (Learning Prep School), provided the student with like peers and direct social skills instruction throughout his school day. As a result, the student made significant social and emotional gains over a short period.

Despite a finding that “from an academic standpoint Acton provided Student a program that offered him a FAPE, and its proposed seventh-grade academic program would have also afforded Student a FAPE” the parents still prevailed. The hearing officer found that Acton’s program did not and would not allow for social and emotional progress. The hearing officer awarded the family tuition reimbursement and ordered Acton to continue to pay for the student’s placement at Learning Prep School.

(Originally posted by Daniel S. Perlman – March 17, 2015)

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