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MPG + NESCA at Visions of Community Conference

Jaki Fishkin, Esq., M.S.W., will present alongside Angela Currie, Ph.D. (NESCA), at the annual Visions of Community Conference hosted by the Federation for Children with Special Needs (FCSN). The presentation, “Keep Calm and Advocate On,” will inform parents, guardians, and advocates about how to reduce stress while advocating for students through the special education process.

Attorney Fishkin and Dr. Currie will offer ideas and information about the most stressful points of the special education process and how to prioritize advocacy in order to preserve mental health.

The presentation will take place on the Whova platform, Saturday, March 6, 2021, from 12:45 – 1:45.

Register here: https://fcsn.org/voc/

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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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New DESE Guidance on Special Education Requirements and Remote Learning

Yesterday, Governor Baker closed all public schools in Massachusetts through May 4th given the unprecedented health concerns raised by the COVID-19 pandemic. He also advised school districts to provide “the best possible opportunities for remote learning for all students” during this period of school closure.

Today, the Massachusetts Department of Elementary and Secondary Education (DESE) issued a set of recommendations for all students, and an updated FAQ regarding the provision of special education services during the school closure period.

Now that DESE has clarified that all students should be provided with remote learning opportunities during the closure period, the task of actually developing and providing those educational services – whether to general education or special education students – is going to be a challenge. This is a time for us all to be creative, flexible, and reasonable.

General Education – Highlights from DESE’s Remote Learning Recommendations Advisory:

  • While remote learning cannot replicate a traditional day of classroom learning, school districts are obligated to provide all students with “meaningful and productive learning opportunities though an appropriately structured educational program.”
  • School districts are expected to launch remote learning programs no later than early April.
  • Each school district is unique. It will be up to each district to develop its own remote learning plan. There is going to be variation between districts regarding the plans offered.
  • Remote learning should encompass “approximately half the length of the regular school day.” This time may be a mix of teacher-led activities, as well as periods of self-directed student learning.
  • School districts do not need to teach new material. DESE is encouraging districts to “focus on reinforcing skills already taught this year.” If teachers are going to introduce new material, all students must have access to learn that new material, including special education students.
  • Examples of remote learning include: Large group video and audio conference calls; 1:1 phone or video calls; email; work packets; projects; reading lists; online learning; art projects; exploring the natural world (when safe to do so) near a student’s home; and hands-on learning.
  • DESE is encouraging districts to provide students with a schedule that offers: (i) access to one or more educators multiple times per week; (ii) access to multiple hours per day of academic content directed by educators focusing on skills already taught during the school year; (iii) time each day for physical activity; and (iv) time for enrichment activities such as art and music.
  • DESE is advising districts to offer either “credit” or “no credit” on student work rather than traditional academic grades.

Special Education – Highlights from the Updated FAQ:

  • School districts should be providing remote learning special education services to students with IEPs. Relying on recent federal guidance, DESE confirmed that “school districts must provide a free and appropriate public education (FAPE)” to students with special needs, while also protecting their health and safety. In addition, educational opportunities offered to the general education population must be made accessible to students with disabilities.
  • The provision of FAPE and special education services will not look the same as it does during a typical school day. Parents should expect that services are going to be modified and adapted in order to be delivered virtually. Parents should also expect that it may not be possible for their school district to provide all of the services listed on a student’s IEP.
  • Once school resumes, each student’s IEP Team should convene to discuss how the school closure impacted the individual student and will determine if any compensatory services will be needed.
  • School districts should ensure regular communication between parents and an IEP Team member during the school closure.
  • DESE is encouraging parents and districts to work together to meet IEP timelines for evaluations.
  • If a student’s IEP expires during the school closure period, it will remain in effect until a new IEP is developed.
  • IEP meetings should be held using telephone and video conferencing systems.

We continue to encourage parents to reach out to their child’s IEP Team contact to discuss how remote learning IEP services may be modified and delivered. This is a uniquely stressful time for all of us – let’s remain patient with ourselves and with others as we work together to meet the needs of our most vulnerable population.

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FAPE Required During COVID-19 School Closures

Finally, some good news. As we wrote about earlier this month, many states, including Massachusetts, advised school districts that they did not need to provide students with special needs any direct IEP services during the COVID-19 closures, if districts are not providing educational instruction to general education students.

On March 21, 2020, the Office of Civil Rights within the U.S. Department of Education (DOE), issued a supplemental fact sheet to clarify the “serious misunderstanding” that school districts were not required to provide students with special needs any services during the shutdown, explaining:

School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible. However, school districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.

DOE encouraged the use of “distance instruction, teletherapy, and tele-intervention” when delivering IEP services. DOE also provided examples of how districts may continue to offer students a FAPE virtually, such as encouraging districts to use video conferencing for direct instruction, providing students with accessible materials, having teachers call students to explain lesson materials, and offering related services such as speech-language services through video conferencing.

DOE also explained that IEP Teams will need to make “an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.” This means that each student’s IEP Team will need to consider how to offer services to students that were not provided as a result of the COVID-19 closure.

Bottom line: DOE is advising that school districts and parents be creative to determine ways in which IEP services can be delivered virtually during the school closure period. We encourage parents to reach out to districts to inquire about beginning virtual IEP services when feasible and appropriate.

Stay safe. We are with you,

Michelle, Dan & Sherry

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COVID-19 and Special Education Update

First and foremost, our thoughts are with the entire community and each and every one of our clients. We hope that everyone is staying safe, and taking care of their physical and mental health, during this very stressful time.

The Department of Elementary and Secondary Education (DESE) issued updated guidance (DESE FAQ) yesterday for school districts related to disrupted services during the COVID-19 school closures. Our sense from listening to DESE present this guidance to stakeholders is that the state would like school districts to be creative, and to do what they can to support students during the COVID-19 closures – while also understanding there are going to be significant limitations on what is possible when schools are closed. We found the following information particularly relevant for our clients:

  1. Per DESE, school districts are not required to provide direct special education services to students while schools are closed due to COVID-19.
  2. Per DESE, school districts will not be required to provide “compensatory” services to students who miss special education services due to school closures. However, DESE encourages (but is not requiring) districts to provide “additional” services and/or “enrichment” opportunities to students who are affected by the disruption in programming.
  3. DESE supports (but is not requiring) school districts to hold Team meetings virtually. There are confidentiality and access concerns related to virtual Team meetings – however, this may be an option for some students.
  4. Timelines for evaluations, Team meetings, and other procedural actions will be delayed due to the school closures.
  5. Collaborative, private day and residential special education schools may remain open or re-open earlier than school districts. Transportation for students who are able to access these programs should be provided by districts.

As advocates for students with special needs, we will be encouraging DESE to support providing students with more robust services during and after the school closure period. For the moment, however, everyone will need to band together to make the best of a very difficult and novel situation. This is not business as usual. There are going to be disruptions to IEP services, and delays in timelines. But if we work together, maintain safe and healthy practices, and have reasonable expectations for each other, we will be able to get our kids back to the business of learning together sooner. Be well. We are with you.

-Michelle, Dan & Sherry

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Special Education Rights and Coronavirus (COVID-19)

Many of the families we work with have reached out with questions about their children’s education and rights as they relate to COVID-19. While the situation is rapidly evolving, we have summarized our understanding of the current landscape below, and will continue to update as new information becomes available.

Given the risks associated with COVID-19, the Commonwealth of Massachusetts is taking unprecedented steps to reduce the spread of the virus. On March 15, 2020, Governor Baker signed an Order temporarily closing all public and private elementary and secondary schools in Massachusetts. Schools are not to re-open before Monday, April 6, 2020.  While the Order explicitly excluded approved special education residential and day schools from having to close their doors, on March 15, 2020, the Department of Elementary and Secondary Education (“DESE”) tweeted that they will be working with private and residential schools this week “on next steps.”  At this time, several private special education schools have chosen to close in conjunction with public school districts and in keeping with the advice received from public health agencies. We anticipate these closures will expand within the coming days.

There are many questions about what rights students with disabilities have during this unique time.  Neither the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act of 1973, nor Title II of the Americans with Disabilities Act (“ADA”) addresses the situation in which elementary and secondary schools are closed for extended periods of time due to the outbreak of a disease. However, the US Department of Education has released a Q & A fact sheet to address some common questions.

Specifically, where a school district, also referred to as a Local Education Agency (“LEA”), closes a school and is not providing educational services to the general population, they are not required to provide services to students with disabilities during that same period. Once school resumes, the LEA should attempt to deliver students with disabilities the services provided in the student’s IEP or 504 Plan. In the event that an LEA is not able to provide IEP services when school resumes, compensatory services may be appropriate. However, if the LEA does continue to provide “educational opportunities” to the general student population during the COVID-19 related closure, they must ensure that students with disabilities have equal access to the same opportunities, including the provision of FAPE. (The Q & A is available here: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf)

Some Massachusetts school districts are encouraging students to make use of online “educational activities” while the schools are closed. Without further guidance from DESE, it is unclear what services LEAs will need to provide, if any, to ensure that students with disabilities can access these programs equally. Districts may determine whether they are able to hold previously scheduled TEAM meetings via tele-conference on an individual basis, but as of yet, have been provided no explicit guidance that they have to do so.

The Bureau of Special Education Appeals (“BSEA”) has announced that beginning on March 15, 2020, there will not be any in-person proceedings until further notice. If you have a previously scheduled upcoming proceeding, the BSEA staff will contact you, or your attorney, to make arrangements for remote meetings where possible.

It is anticipated that DESE and Governor Baker will continue to provide updated information about education and special education as we learn more about COVID-19. Please stay healthy and safe. We know these are stressful times for our families, and we will be with you every step of the way.

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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: IEP vs 504

A common area of confusion for parents in the area of special education is the difference between an Individualized Education Plan (IEP) and a Section 504 accommodation plan (504). Both the IDEA and 504 require that a school evaluate a student for a suspected disability without delay to ensure that the student is able to receive a “free appropriate public education” (FAPE). However, the requirements that the school must abide by in providing a student with FAPE differ depending on the student’s specific needs and whether he or she is on an IEP or a 504 plan.

 

Individualized Education Plan (IEP)

 

The IEP is a written document that sets the learning goals for the student and describes the intensity of services and level of professional involvement that a school must provide in order to enable a qualified student to make effective progress. The Individuals with Disabilities Education Act (IDEA) is the federal law that, in conjunction with the state law, Massachusetts General Laws Chapter 71B, specifies the process for the development and enforcement of an IEP. As suggested by the name, the IEP is individualized and responsive to the unique needs of the student and can provide both special education and related services. In order to qualify for an IEP, there are two requirements that must be met:

  • The student has one or more of the disabilities specified in the IDEA; and
  • The disability impacts the student’s educational capacity and/or ability to learn and benefit from the general education curriculum, which results in the need for specialized instruction.

 

The IDEA establishes strict guidelines regarding the creation of the IEP and who participates in its development. The IEP Team must include the student’s parent(s) or guardian(s), at least one of the student’s general education teachers, at least one special education teacher, school psychologist or another specialist who can interpret evaluation results, and a district representative with authority to make special education decisions.

 

Some of the components that the IEP must include are:

  • Annual education goals for the student and how progress toward those goals will be measured
  • Services that the student will receive, which can include special education, related, supplementary, transportation, and/or extended school year services
  • Placement in which the student will receive the services, which can include full inclusion, partial inclusion, or substantially separate programming
  • How the student will be included in extra-curricular and other school activities
  • Consideration of potential factors that could place the student at risk of bullying

 

The IDEA also requires that parents receive written notice when the school wants to change a student’s services or placement, prior to enacting any changes. Notice and written consent is also required prior to any formal school evaluations not provided routinely to other students or the beginning of IEP services. Parents can seek funding from the district to pay for an independent educational evaluation (IEE) by an outside expert.

 

504 Accommodation Plan (504)

 

A 504 is a plan that enables a student to successfully access the curriculum in school through specific accommodations and/or related services. The 504 process is outlined by Section 504 of the Rehabilitation Act of 1973, which is a federal law that seeks to protect any student with a disability from discrimination as a result of his or her disability. A 504 plan is a good option for students with disabilities who do not require specialized instruction but do need specific accommodations in order to receive FAPE and benefit from the same access to an education as their classmates. For example, accommodations can include extended time on tests, priority seating close to the front of the classroom, and check-ins from teachers. To qualify for a 504 plan, the student must:

1) have a disability (which “substantially limits one or more major life activities”) and

2) the disability must interfere with the student’s ability to access and/or learn in a general education setting.

 

The 504 process is less intensive and specific than the IEP process. For instance, the 504 Team is not strictly defined, as compared to an IEP Team, and typically includes the student’s parent(s) or guardian(s) and general/special education teachers. Additionally, school districts are not required to include parents to participate in the process or to document a 504 plan in writing, although most districts will do both. The 504 plan includes the specific accommodations and supports for the student, as well as the names of the staff that will provide each service and the individual responsible for implementing the plan. Parents cannot seek funding for an IEE from the school district under a 504 plan but always have the option to pay for a private evaluation by an outside expert.

 

Whether your student would benefit from an IEP or a 504 plan depends on his or her specific needs and challenges, as well as the recommendations from the district’s evaluators and any outside experts that may have conducted an assessment and provided recommendations.

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