Author Archive: SpecialEducation-Lawyer

MA Legislature Passes Autism Omnibus Bill

The Massachusetts Legislature recently passed the Autism Omnibus Bill.  Massachusetts Advocates for Children, which provided vital advocacy in support of the Bill, has summarized the key provisions as follows:

  • A requirement that MassHealth cover medically necessary treatments for children with ASD who are under 21 years old – including ABA therapies as well as dedicated and non-dedicated AAC devices;
  • Extension of Department of Developmental Services (DDS) eligibility to many persons with Autism, Prader Willi Syndrome and Smith-Magenis syndrome;
  • The creation of an Autism Endorsement for special education teachers to enable them to voluntarily gain in-depth knowledge about the complexities of educating students with ASD;
  • The creation of tax-free saving accounts (called “Achieving a Better Life Experience” or ABLE) to help families cover anticipated disability-related expenses for individuals with ASD and other physical and developmental disabilities;
  • Requiring DMH and DDS to develop and implement a plan to provide services to individuals who have both a mental illness and a developmental disabilities; and
  • Establishing the Autism Commission as a permanent entity.

Mass Advocates Web Site Summary


Mass Advocates has also published:

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit, or call 781-209-1166 for more information.

How We Won School Discipline Reform in Massachusetts

By Tom Mela, Massachusetts Advocates for Children

This guest post was written by Tom Mela, Senior Project Director at Massachusetts Advocates for Children (MAC). The post was originally published on the National Opportunity to Learn blog, and is reprinted in this blog with the permission of Tom Mela.  

Left to right: Gavi Wolfe (ACLUM), Sondra Peskoe (One
Massachusetts), Rep. Alice Wolf, Tom Mela (MAC)
and Ann Lambert (ACLUM) at the Massachusetts
State House when Chapter 222 was passed.
Photo courtesy of MAC.


Though Massachusetts’ public schools rank near the top of schools nationwide, they still struggle to ensure that students are treated fairly in the classroom. In Massachusetts and across the nation, students of color and students with disabilities still face higher suspensions and expulsions rates than their counterparts, often for similar, minor misbehavior.

But starting this year, Massachusetts is taking a bold step to change that. The new Chapter 222 law, which went into effect July 1, puts Massachusetts at the forefront of a nationwide movement to reduce the use of out-of-school exclusions and provide those students who are barred temporarily from the classroom access to the resources they need to keep up with their studies.

It has taken years of organizing to get to this point. Massachusetts Advocates for Children is funded through the state’s civil legal aid system to convene the Education Law Task Force (ELTF), a coalition of public interest legal organizations with expertise in education law. To help advocates in other states learn how they, too, might tackle the school-to-prison pipeline, here’s how our Massachusetts coalition came together, fought hard, and won reform.

As part of a major education reform act in the mid-1990s, Massachusetts enacted laws to empower school principals to exclude students from school for disciplinary reasons. These laws were part of a national push towards “zero-tolerance” discipline policies. But rather than make schools safer, the result was that the number of excluded students increased significantly.

Advocates became concerned about principals’ use of zero tolerance, and especially the policy’s disproportionate impact on students of color and students with disabilities. When a student is barred from the classroom, it increases the likelihood that they might fall behind, drop out and become involved in the juvenile justice system, making exclusions a big contributor to our nation’s pervasive achievement gaps and the school-to-prison pipeline.

In response, a group of advocates including parents, students, teachers and attorneys in Massachusetts came together to form the ELTF. They found a legislative champion in Rep. Alice Wolf of Cambridge, and together they drafted and filed legislation to reform the Massachusetts school discipline laws.

For years their efforts to enact such legislation were stymied by the associations that represent principals, superintendents and school committees, who denied there was a problem and argued that in the interest of school safety (during the “Columbine” era) building administrators should have broad discretion to prevent potential harm to the school.

In the meantime, education reform in Massachusetts began to address the needs of those students who were at high risk of failure. When the Legislature established the Graduation and Dropout Prevention and Recovery Commission in 2008, one of the main question addressed was whether school exclusion contributes to school dropout. School exclusion was becoming a national issue as officials in other states and even the federal government began recognizing the link between suspensions/expulsions and dropout rates. Members of the ELTF testified to the Commission, and the Commission’s final report recommended school discipline reform.

Immediately after Mitchell Chester arrived in Massachusetts in 2008 to become its Department of Elementary & Secondary Education (DESE) Commissioner, the ELTF informed him about the discipline problem in this state. He was particularly shocked to learn that excluded students were not entitled to alternative education services.

As a result, the legislation was revised and re-filed by Rep. Wolf and others in 2011, and, with the support of the legislative leadership, was enacted minutes before midnight on the final day of the session in 2012. Many members and associates of the ELTF had testified at the legislative hearing, and they signed a letter to the governor urging his approval. Governor Patrick signed Chapter 222 on August 6, 2012.

The most important provisions of Chapter 222 are:

  • All public schools, including charter schools, must comply and revise their policies to assure that exclusion is a last resort and that alternatives to exclusion are tried first.
  • Students who face school exclusion are entitled to full due process rights, including parental involvement and accommodation for students with limited English proficiency
  • During both short-term and long-term exclusions, students have the right to make academic progress.
  • During long-term exclusions, students must be provided alternative education services.
  • Except for very serious offenses, students may not be excluded for more than 90 school days.
  • Schools must review their school exclusion data and increase their reporting to DESE.
  • DESE must post annual state-wide exclusion data each fall.
  • DESE must analyze the annual exclusion data and follow-up when the numbers are high and when there are significant disparities by race and for students with disabilities.

To help with the implementation of Chapter 222 (especially for the requirement that excluded students be provided with alternative education services) the ELTF monitored a cost study and worked to ensure funding. In early July 2014, Governor Patrick signed the Fiscal Year 2015 Massachusetts Budget, which includes funds specifically to help schools implement Chapter 222.

Though the new law did not to take effect until July 1, 2014, soon after it passed in 2012 the Superintendent of the Boston Public Schools expressed an interest in immediately revising the city’s Code of Conduct before the start of the 2013-2014 school year. The ELTF collaborated with the district’s Code of Conduct Advisory Committee (COCAC) and worked intensively to align the revisions to the code with the requirements of Chapter 222. The Boston School Committee approved those changes during the summer of 2013. Now that the law’s regulations have been put in place, the ELTF is revisiting the Boston code with school officials to make sure it remains aligned.

During the period between the enactment of the law and when it went into effect this July, Chapter 222 required DESE to issue implementing regulations. The ELTF submitted draft regulations, submitted “Public Comments,” and testified to the Board of Elementary & Secondary Education. At the end of April 2014, the board issued its final implementing regulations, which the ELTF found satisfactory. The ELTF plans to monitor compliance with Chapter 222 and its regulations at the local, district and state levels. Members of the ELTF will also continue to collaborate with COCAC by representing families of city’s students facing school exclusion and by monitoring citywide school data. The ELTF remains available to consult with school reform advocates throughout the country.

Chapter 222 constitutes a dramatic change in law and policy for all Massachusetts public school students. Fewer students will be excluded from school, struggle and drop out, and more students will thrive, graduate and go on to become strong, productive members of our Commonwealth.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit, or call 781-209-1166 for more information.

Transition Specialists

Massachusetts recently enacted a new regulation creating something called a Transition Specialist Endorsement.  This is basically a way for a special education teacher or vocational rehabilitation counselor to obtain official state recognition of additional training and experience specific to Transition Planning. The citation of the new regulation is 603 CMR 7.14(4).  The Department of Elementary and Secondary Education (DESE) has also published a set of guidelines to help better understand what is required to obtain the Transition Specialist Endorsement.

This Endorsement was created because of the ongoing difficulty that students with special needs have been encountering trying to transition from secondary to postsecondary life. To highlight some of these challenges, the DESE guidelines note the following:

Too many students with disabilities are unprepared to live and work independently when they exit high school. Currently, according to the US Department of Labor, only 25% of 20-24 year olds with disabilities are employed, compared with 60% of their non-disabled peers. Nearly half of all disabled adults who are employed have an income of less than $15,000 per year. In 2012, data shows only 68.6% of Massachusetts students with disabilities graduated on time with their peers, compared to 84.7% for non-disabled students and the dropout rate for students with disabilities was almost twice as high as the rate for non-disabled students. The President’s Commission on Excellence in Special Education acknowledged that, “One reason for these outcomes is that educators are inadequately prepared to provide the transition services required under IDEA.”


Massachusetts Department of Elementary & Secondary Education, Guidelines for the Transition Specialist Endorsement 2 (2013).

In order to obtain the endorsement, an individual must have at least two years of experience as a special education teacher or as a vocational rehabilitation counselor. They must also complete courses specific to transition services that have been approved by the DESE. The person must also complete 150 hours of field-based experience providing transition services for transition aged students with disabilities. They must also show subject matter knowledge in four different areas (refer to the regulation for details). There are exceptions to these requirements for individuals who can show that they already have met the subject matter knowledge and skills requirements.


The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit, or call 781-209-1166 for more information.



Dyslexia, Specific Learning Disabilities and the IEP

Does your child have dyslexia? Have school district personnel ever told you that they cannot recognize dyslexia as a disability on the IEP? If so, they are incorrect. In fact, IDEA says just the opposite. Dyslexia can be considered one of the many possible specific learning disabilities.

20 U. S. C. § 1401(30)(A) defines a specific learning disability as “a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.”  § 1401(30)(B) goes on to provide examples of conditions that should be included as a specific learning disability. In particular, “Such term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.”

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit, or call 781-209-1166 for more information.

NH Statute of Limitations for Unilateral Placements – A Trap for the Unwary

A statute of limitations defines how long you have to bring a legal action.  With special education matters, if you are going to file for a due process hearing, the general rule is that you have 2 years to file for a hearing regarding any alleged violation. 20 U.S.C. § 1415(b)(6)(B).  If you make a unilateral placement (i.e. make a “unilateral” decision to enroll your child in a private school without school district approval), NH has significantly limited the time period that is allowed for filing for a hearing related to that placement.  In particular, New Hampshire allows just 90 days for filing for a hearing regarding the unilateral placement.  RSA 186-C:16-b.  The 90 days runs from the date the unilateral placement is made.  Further complicating this is that the date of the unilateral placement is not always clearcut.  For example, is it:

  1. The date that the parents applied to the private school?
  2. The date that the private school accepted the student?
  3. The date that the parents returned the acceptance letter to the private school?
  4. The date that the parents sent in their first deposit to the private school?
  5. The date that payment was made in full?
  6. The date that the parents notified the public school district that they were withdrawing their child from the public school, and enrolling him or her at the private school?

Parents might have a bit of a reprieve from the 90 day burden if the school district did not provide the parents with notice of their special education rights, which they usually do at least annually.  If notice was not given, then the 90 days would not start running until proper notice is given to the parents.

The exact wording of the NH law is:

 186-C:16-b Due Process Hearing; Appeal. –
    I. Any action against a local school district seeking to enforce special education rights under state or federal law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered.
II. Notwithstanding the provisions of paragraph I, any action against a local school district to recover the costs of a unilateral special education placement shall be commenced by requesting an administrative due process hearing from the department of education within 90 days of the unilateral placement.
III. Where the parent, legal guardian or surrogate parent has not been given proper written notice of special education rights pursuant to 20 U.S.C. section 1415(d), including notice of the time limitations established in this section, such limitations shall run from the time notice of those rights is properly given. The department of education shall make available a model notice of rights which school districts may use as one means of complying with this paragraph.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit, or call 781-209-1166 for more information.

What Should Happen When a Special Ed Child Moves

Consider this hypothetical (or not so hypothetical) situation: You have made the decision to move to a different school district.  Your child is on an IEP.  The new school district believes that the services documented in the IEP are not appropriate, and tells you that they will not be providing those services, or that they do not have anything comparable.

In the above situation, is the school district operating within the law?  NO!  The Individuals with Disabilities Education Act (IDEA) is very clear that when a child changes school districts within the same state, “the local educational agency shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law.”  20 U.S.C. § 1414(d)(2)(C)(i)(I).  Massachusetts has very similar wording in its regulations: 603 C.M.R. § 28.03(c)(1).

In other words, the new district must immediately provide services that are comparable to the old district’s IEP.  At some point, the new district will need to decide whether it will adopt the old district’s IEP, or attempt to develop a new IEP.  If the new district tries to develop a new IEP, that new IEP would not be considered the effective IEP until the parent accepts it.

For families who are moving across state lines, the IDEA provides very similar wording and protections.  The big difference for families changing states is that the new district must provide comparable IEP services until the new district conducts an evaluation of the student and develops a new IEP.  20 U.S.C. § 1414(d)(2)(C)(i)(II)34 C.F.R. § 300.323(f).

There is also often a question of records.  How do the old records get to the new school?  Again, IDEA defines the district’s responsibilities.  The new school “shall take reasonable steps to promptly obtain the child’s records… from the previous school in which the child was enrolled.” 20 U.S.C. § 1414(d)(2)(C)(ii).

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit, or call 781-209-1166 for more information.

Hamilton-Wenham Special Education Basic Rights Workshop – 02/27/13

Basic Rights In Special Education: A Workshop for Parents and Professionals will be held Wednesday, Feb. 27, at 6:30 p.m. in the multi-purpose room of the Buker School, 1 School St., Wenham. The Basic Rights workshop provides families and professionals with an introduction to their rights and responsibilities under the Individuals with Disabilities Education Act (IDEA), Massachusetts Special Education Law and No Child Left Behind (NCLB). It is designed to help parents learn to be effective partners with their child’s school to decide their child’s eligibility for special education, and to plan, make decisions and monitor their child’s progress in school. A presenter from the Federation for Children with Special Needs will conduct this workshop.  Federation workshops are free and open to the public.  You are welcome to attend any workshop in or outside of your immediate community. For more information, contact Adele Raade at 617-335-1124 or

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit, or call 781-209-1166 for more information.

Metrowest Special Needs Resource Fair

I will be participating at the 2nd Annual Metrowest Special Needs Resource Fair.  There will be vendors available to discuss their special-needs based programs, services and resources.  The event, sponsored by the Natick SEPAC, will be held at Natick High School, 15 West Street in Natick, this Sunday, February 10, 2013 from 1:00 PM – 3:00 PM.  Admission is free.  If you are there, please stop by and say hi (I will be at Table 14).  I would be happy to talk with you about special education legal issues or special needs estate planning. Hopefully the impending snowstorm will be cleared out by Sunday!

For more information, go to the Natick SEPAC web site.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit, or call 781-209-1166 for more information.

New Section to Student Discipline: 37H 3/4

There is an entirely new section that will be added to the student discipline statute in Massachusetts, effective July 1, 2014.  This new section will provide students with several important rights in the disciplinary process, and will assign several new responsibilities to school districts.  It will be referred to as section 37H 3/4, and will have 6 supbarts, summarized as follows:

  • (a):  This subpart  states that 37H 3/4 applies to all students who are suspended or expelled, with a few very big exceptions.  37H 3/4 does not apply:
    • If a student is found with a dangerous weapon or a controlled substance on school grounds, or at a school-sponsored or school-related event; or
    • If a student assaults school faculty or staff on school grounds, or at a school-sponsored or school-related event; or
    • If a student is charged with a felony.
  • (b):  This subpart requires the  decision maker at a disciplinary hearing  to “exercise discretion; consider ways to reengage the student in the learning process; and avoid using expulsion as a consequence until other remedies and consequences have been employed.”
  • (c): Students suspended or expelled under 37H 3/4, as well as their parents, must be provided with written notice  of the charges and the reason for the suspension or expulsion in English, as well as in the student’s primary language if that language is other than English.   The affected student also must have the opportunity to meet with the principal, headmaster, or other designee to discuss the charges and reasons for the suspension or expulsion prior  to the suspension or expulsion taking effect.  Parents must be given the opportunity to participate in this meeting, as well.
  • (d): This subpart concerns notification:
    • If  the principal makes a decision to suspend or expel a student after the meeting described in subpart (c),  then the principal shall  update the written notification to reflect the meeting that took place;
    • If a student is suspended or expelled for more than 10 school days in any school year, the school must provide the  student and parents  with written notification of a right to appeal and the process for appealing.  However, the suspension or expulsion will remain in effect prior to any appeal hearing;
    • If a student in kindergarten through grade 3 receives an out of school suspension, the principal shall notify the superintendent in writing “prior to such suspension taking effect.”
  • (e): This subpart concerns the appeals process:
    • Students suspended or expelled for more than 10 school days – whether contiguous or cumulative – shall have the right to appeal the suspension or expulsion to the superintendent;
    • Students or parents  must notify the superintendent in writing of their request for an appeal within 5 calendar days of the effective date of the suspension or expulsion.  However parents or students may also request an extension of up to 7 calendar days, and if such an extension is requested, then it “shall be granted.” The wording of this law is a bit vague.  My reading of this law is that students can request an additional 7 calendar days beyond the initial 5, allowing for a total of 12 calendar days to appeal.  However, I can foresee some school districts trying to argue that the law only allows for an additional 2 days, for a total of 7 calendar days;
    • The superintendent must make a good faith effort to include the parent or guardian in any appeal, but does have the right to proceed with an appeal hearing without the parent or guardian, as long as that good faith effort was made;
    • At the appeal hearing, students have the right to present  oral and written testimony, and to cross-examine witnesses.  Interestingly, it is only the student who has this right, not the parent or guardian.  However, the student does have the right to counsel at the appeal hearing;
    •  The superintendent must render his or her decision within 5 calendar days of the hearing, and this decision is the final decision of the school district.  No further appeals within the school district are allowed.
  • (f): “No student shall be suspended or expelled from a school or school district for a time period that exceeds 90 school days, beginning the first day the student is removed from an assigned school building.”

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit, or call 781-209-1166 for more information.

My Child Was Suspended for Having a Knife at School – Now What?

The first assumption I am going to make for this blog article is that the child has an IEP.  Having an IEP does make a big difference in terms of how the school can deal with disciplining the child.

There are three distinct discipline time-frames that should be considered.  The first time-frame is short term, and concerns suspensions for 10 school days or less; the second time-frame is medium term, and concerns discipline for up to 45 school days; the third time-frame is long-term, and concerns discipline that might extend beyond 45 school days.

Regarding a 10 day suspension, the federal Individuals with Disabilities Education Act (IDEA) applies.  Under the IDEA, “School personnel… may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).” 20 U.S.C. § 1415(k)(1)(B).  In other words, a special education child can be disciplined just like a non-special education child for up to 10 school days.

Any removal beyond 10 school days is considered a change in placement.  For any such change in placement, the school district needs to conduct a Manifestation Determination to determine if the behavior in question is a manifestation of the child’s disability, or if the conduct in question may have been caused by the school district’s failure to implement the IEP.  If the conduct is found to be a manifestation of the disability, the district is required to conduct a Functional Behavioral Assessment and to develop a Behavior Plan, and also to return the child to the placement from which he was removed.  20 U.S.C. § 1415(k)(1)(E)-(F).  If the behavior was not a manifestation of a disability, the child can be removed from his then-current placement, though he shall “continue to receive educational services… so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.”

The above paragraph applies to any type of discipline issue if the school district is trying to remove the child for more than 10 days.  However, regardless of the outcome of the Manifestation Determination, the school district may remove a child to an interim alternative educational setting in various special circumstances.  One such special circumstance is when a child possesses a weapon – which includes a knife – on school grounds.  20 U.S.C. § 1415(k)(1)(G).  Under federal law, one big question concerns the size of the knife.  According to 18 U.S.C. § 930(g)(2), the definition of a weapon “does not include a pocket knife with a blade of less than 2½ inches in length.”  If the knife in question is less than 2½ inches in length, the district would not have the right to remove the child under this section of the law.

So far we have discussed only federal law.  In Massachusetts, state law also applies for longer term suspensions (potentially beyond 45 school days).  Under Mass. Gen. Laws ch. 71 § 37H(a), a school principal may expel any student “who is found on school premises or at school-sponsored or school-related events, including athletic games, in possession of a dangerous weapon, including, but not limited to, a gun or a knife.”  Any student so charged must be notified in writing of an opportunity for hearing, and be allowed to have legal representation, as well as the opportunity to present evidence and witnesses at a hearing with the principal. The principal does have discretion to suspend rather than expel a student. (Mass. Gen. Laws ch. 71 § 37H(c)).  There is also the right to appeal to the superintendent within 10 days of the expulsion.  (Mass. Gen. Laws ch. 71 § 37H(d)).

To make matters even more concerning, Massachusetts law also states:  “When a student is expelled under the provisions of this section, no school or school district within the commonwealth shall be required to admit such student or to provide educational services to said student. If said student does apply for admission to another school or school district, the superintendent of the school district to which the application is made may request and shall receive from the superintendent of the school expelling said student a written statement of the reasons for said expulsion.”  (Mass. Gen. Laws ch. 71 § 37H(e)).   In other words, if a principal, in his or her sole discretion, expels a student from school because of one of the above violations, the student may not be able to attend public school anywhere else in Massachusetts.  Even moving from one district to another might not help.  Luckily, federal law does serve as a safety net, such that school districts do need to provide IEP services for special education children, regardless of any discipline decisions that are applied.

Regarding the size of the knife, Massachusetts law does not have the same 2 ½ inch provision that federal law does.  This means that even if you might have a strong argument that the district should not be able to apply a 45 day removal under IDEA because it cannot prove that the child had a knife larger than 2 ½ inches, the school district would still be able to apply a 45 day or longer suspension or removal under Massachusetts law.

For more information about Chapter 37H, 37H 1/2, and upcoming changes to this area of the law in Massachusetts, please refer to my other blog articles:

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit, or call 781-209-1166 for more information.