Category Archives: Uncategorized

Joining a Third Party to a BSEA Case

When you have been harmed, and you need to take legal action against another party, you probably think of a lawsuit between a plaintiff and defendant. But what if you, as the plaintiff, cannot get complete relief from taking action against just one party? Or what if the relief sought by the plaintiff would result in an unfair burden placed on the defendant? In those types of cases, it might be necessary to “Join” a third party, thereby making that third party part of the lawsuit.

For matters dealing with special education, a due process hearing is the equivalent of a lawsuit in court. Each state has its own administrative body which adjudicates due process hearings. In Massachusetts, the administrative body is called the Bureau of Special Education Appeals (“BSEA”).  The BSEA Hearing Rules for Special Education Appeals list factors that a Hearing Officer should consider when a request is made to join a third party (See BSEA Hearing Rule 1(J) in the above link).

The factors defined in Rule 1(J) are:

  • The risk of prejudice to the present parties in the absence of the proposed party;
  • The range of alternatives for fashioning relief;
  • The inadequacy of a judgment entered in the proposed party’s absence; and
  • The existence of an alternative forum to resolve the issues.

Two recent rulings from the BSEA provide excellent examples of how a Hearing Officer applies the above factors to a real-life situation.  In the case of Student v. North Middlesex Regional School District & Department of Children and Families (22 MSER 156 (2016)), the parents filed a BSEA due process hearing request against both the school district (“NMR”) and the Department of Children and Families (“DCF”) seeking a six month residential placement to address the student’s chronic stress.  DCF believed that it should not be joined as a party, and filed a Motion to Dismiss.  The school district, on the other hand, was opposed to removing DCF as a joined party.

Hearing Officer Rosa Figueroa ruled in favor of the parents and the school district in denying DCF’s Motion to Dismiss. Although DCF did not have care or custody of the student, it did provide a Treatment Plan and also arranged for a neuropsychological evaluation of the student, so there was a pre-existing relationship between the student and DCF. The hearing decision documents the school district’s argument:

NMR argued that the scope of the Hearing therefore involves not only Student’s need for residential placement but also: a) whether her current private day placement offers her a FAPE; b) whether Student requires additional in-home or residential services; (3) whether those in-home or residential services would be educational in nature; and d) if not educational in nature, whether DCF is responsible to provide them. Moreover, according to NMR, given that Student and her family are currently receiving services under a Treatment Plan Document (June 1, 2016 Treatment Plan Document) it would appear that any difficulty experienced by Student in the home is attributable to the home environment rather than unmet educational needs, therefore, a private day placement for Student would suffice to offer her a FAPE in the least restrictive environment. Since a determination of the need for residential placement and/or home wrap-around services, as well as whether such services would be for educational reasons may involve orders against NMR and DCF, the BSEA would be unable to fashion the necessary remedies in the absence of DCF. Lastly, NMR argued that administrative efficiency could only be assured by maintaining DCF as a party.

22 MSER 156 (2016).  Hearing Officer Figueroa agreed that “the existence of an active and comprehensive Treatment Plan establishes enough of a relationship to allow the BSEA to order non-residential services (such as additional home-based or therapeutic services) consistent with DCF’s rules and regulations, that are necessary to enable Student to receive a FAPE.” Id.  In other words, since there was at least a possibility that DCF’s services might be needed in order for the student to be able to receive her Free and Appropriate Public Education (“FAPE”), DCF needed to stay involved as a joined party in the case.

It is important to realize that the ruling against DCF’s Motion to Dismiss does not mean that the parents won their residential placement.  This Motion was just one aspect of the larger overall litigation.  The decision simply kept DCF involved as part of the case.

In the second case, Student & Natick Public Schools (22 MSER 159 (2016)), the result was the exact opposite (DCF was not joined), but for reasons that are very much in line with the North Middlesex case.  In Natick, it was the parent who tried to join DCF “because she asserts that DCF was ‘complicit’ with alleged actions by Natick that Parent believes deprived Student of a free, appropriate public education (FAPE) and created a ‘hostile environment’ within the Natick Public Schools. Parent’s position is that… DCF (among others) collaborated with Natick to deprive Student of her rights.”  22 MSER 159 (2016).

The facts in Natick show that Natick did apply for a Child Requiring Assistance (CRA) petition with the Juvenile Court. Natick also filed a 51A report with DCF because of concerns about the students school attendance.  However, the student was never under DCF care or custody, DCF did not have an open case on the student or her family, and DCF was not providing any services to student or the family.

Hearing Officer Sara Berman provided an excellent summary of the factors that a Hearing Officer considers in determining joinder:

In general, factors that hearing officers consider in determining whether the criteria of 603 CMR 28.08(3) and Rule I.J have been met include the following:

  • The student’s eligibility for services from the agency;
  • status (or lack thereof) as a current client of the agency;
  • length and degree of involvement that the agency already has with the student, if any;
  • likelihood that the evidence at hearing will show that the student needs services that only are available from the agency to benefit from special education, that the agency has refused or failed to provide such services, and that no appropriate forum exists to contest the agency’s decision;
  • likelihood that an order to the school district alone will provide the student with FAPE;
  • administrative efficiency of joining a potentially responsible state agency early in the proceeding.

On the other hand, the BSEA has declined to join human services agencies in situations where the agency has found the student ineligible or has not determined eligibility under its own regulations, where the student is eligible only for minimal services from the agency, or where agency involvement in the future is theoretically possible but speculative.

22 MSER 159 (2016).  The Hearing Officer concluded:

DCF should not be joined as a party in the instant case because none of the criteria for joinder listed in the “Legal Frameworks” section of this Ruling have been met. Student is not a current client of DCF. She is not in DCF care or custody, voluntary or otherwise, and receives no DCF services. Moreover, Parents seek no DCF services for Student and/or their family now, and there is no evidence in the parties submissions that they intend to do so in the future… [C]omplete relief, i.e. all relief sought by Parent from the BSEA, can be granted without DCF as a party. There is no risk of prejudice to any existing party if DCF is not joined because there is no remedy that the BSEA can order against DCF.

Id. Through these two cases, we can see how a very similar approach and analysis resulted in polar opposite decisions because the facts of the cases were so different.

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 http://www.lawbaron.com, or call 781-209-1166 for more information.

 

What Qualifies as a Disability?

Medically speaking, there are countless types of disabilities.  Educationally speaking, the number disability categories is much more limited.  What sometimes causes confusion and frustration for parents and school personnel alike is that the definition of disabilities under state and federal laws differs from the medical definitions used by doctors under the DSM-5 manual.

Massachusetts

For a child in Massachusetts to qualify for an IEP, he or she must have at least one of the following specifically defined types of disabilities:  Autism, Developmental Delay, Intellectual Impairment, Sensory Impairment (Hearing Impairment or Deaf, Vision Impairment or Blind, Deafblind), Neurological Impairment, Emotional Impairment, Communication Impairment, Physical Impairment, Health Impairment, or Specific Learning Disability. 603 CMR 28.02(7).  Although this might seem like a very limited list of disabilities, they are, in fact, very broad categories that cover a wide variety of conditions.  The specific definitions under Massachusetts education law are as follows:

 

(a) Autism – A developmental disability significantly affecting verbal and nonverbal communication and social interaction. The term shall have the meaning given it in federal law at 34 CFR §300.8(c)(1).

(b) Developmental Delay – The learning capacity of a young child (3-9 years old) is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: receptive and/or expressive language; cognitive abilities; physical functioning; social, emotional, or adaptive functioning; and/or self-help skills.

(c) Intellectual Impairment – The permanent capacity for performing cognitive tasks, functions, or problem solving is significantly limited or impaired and is exhibited by more than one of the following: a slower rate of learning; disorganized patterns of learning; difficulty with adaptive behavior; and/or difficulty understanding abstract concepts. Such term shall include students with mental retardation.

(d) Sensory Impairment – The term shall include the following:

 Hearing Impairment or Deaf – The capacity to hear, with amplification, is limited, impaired, or absent and results in one or more of the following: reduced performance in hearing acuity tasks; difficulty with oral communication; and/or difficulty in understanding auditorally-presented information in the education environment. The term includes students who are deaf and students who are hard-of-hearing.

 Vision Impairment or Blind – The capacity to see, after correction, is limited, impaired, or absent and results in one or more of the following: reduced performance in visual acuity tasks; difficulty with written communication; and/or difficulty with understanding information presented visually in the education environment. The term includes students who are blind and students with limited vision.

 Deafblind – Concomitant hearing and visual impairments, the combination of which causes severe communication and other developmental and educational needs.

 (e) Neurological Impairment – The capacity of the nervous system is limited or impaired with difficulties exhibited in one or more of the following areas: the use of memory, the control and use of cognitive functioning, sensory and motor skills, speech, language, organizational skills, information processing, affect, social skills, or basic life functions. The term includes students who have received a traumatic brain injury.

 

(f) Emotional Impairment – As defined under federal law at 34 CFR §300.8(c)(4), the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance: an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems. The determination of disability shall not be made solely because the student’s behavior violates the school’s discipline code, because the student is involved with a state court or social service agency, or because the student is socially maladjusted, unless the Team determines that the student has a serious emotional disturbance.

(g) Communication Impairment – The capacity to use expressive and/or receptive language is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: speech, such as articulation and/or voice; conveying, understanding, or using spoken, written, or symbolic language. The term may include a student with impaired articulation, stuttering, language impairment, or voice impairment if such impairment adversely affects the student’s educational performance.

(h) Physical Impairment – The physical capacity to move, coordinate actions, or perform physical activities is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: physical and motor tasks; independent movement; performing basic life functions. The term shall include severe orthopedic impairments or impairments caused by congenital anomaly, cerebral palsy, amputations, and fractures, if such impairment adversely affects a student’s educational performance.

(i) Health Impairment – A chronic or acute health problem such that the physiological capacity to function is significantly limited or impaired and results in one or more of the following: limited strength, vitality, or alertness including a heightened alertness to environmental stimuli resulting in limited alertness with respect to the educational environment. The term shall include health impairments due to asthma, attention deficit disorder or attention deficit with hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia, if such health impairment adversely affects a student’s educational performance.

(j) Specific Learning Disability – The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think speak, read, write, spell, or to do mathematical calculations. Use of the term shall meet all federal requirements given in federal law at 34 CFR §§300.8(c)(10) and 300.309.

 

New Hampshire and Federal Education Law

Unlike Massachusetts, New Hampshire education law simply defers to the federal educational definitions of disability, but then adds two more categories not found in the federal law.  The federal special education disability categories are as follows: mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.  34 CFR 300.8.  The extensive definitions are as follows:

(1)

(i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.

(ii) Autism does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (c)(4) of this section.

(iii) A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied.

(2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.

(3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification that adversely affects a child’s educational performance.

(4)

(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

(ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section.

(5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in this section.

(6) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance.

(7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness or mental retardation-orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include deaf-blindness.

(8) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

(9) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that–

(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and

(ii) Adversely affects a child’s educational performance.

(10) Specific learning disability.

(i) General. Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

(ii) Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

(11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance.

(12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.

(13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness.

34 CFR 300.8(c).

New Hampshire specifically references the federal definition (Ed 1102.01(t)(1)), but then also includes developmental delays and acquired brain injury as two additional categories. Ed 1102.01(t)(2 – 3).

 

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 http://www.lawbaron.com, or call 781-209-1166 for more information.

Cambridge Sped PAC to Present Several Programs

The Cambridge, Massachusetts Special Education Parent Advisory Council (C-PAC) will have several interesting programs coming up in the near future.  Check out the C-PAC website for more details:

November 7, 2012: Basic Rights in Special Education

  • Learn about the legally defined role of parents in the Special Education process.  This presenter is bilingual and can answer questions in English and Spanish.

December 5, 2012: Section 504 Plans

  • 504 Plans protect individuals with disabilities from discrimination and outline accommodations students need to participate fully at school. Learn how this process works in Cambridge.

January 9, 2012: Sarah Ward – Executive Functioning
Cambridge Citywide Senior Center – 806 Massachusetts Avenue (Central Square)

  • Sarah Ward, M.S., CCC/SLP will present a workshop on executive function skills, which include time management, attention, organization, memory and problem solving.

January 23, 2013: IEP Goals & Progress Monitoring

  • Trudy Wilcox will assist parents in understanding data to set goals and monitor your child’s progress at school.

February 6, 2013: Special Education Mediation

  • Mediator Myrto Flessas will explain the process how parents and school districts may access mediation to resolve disagreements.

March 6, 2013: Behavioral Disabilities Panel Discussion

  • Learn about a variety of strategies for helping students develop skills for positive behavior.

March 20, 2013: Summer Programs & Services

  • Learn who qualifies for extended year programs and how to access summer services;  and hear from a variety of private summer programs that welcome or specifically serve students with disabilities.

April 3, 2013: Who Cares About Kelsey?

May 1, 2013: The Impact of Trauma on Learning

  • Learn about ways parents and schools can effectively support students whose learning is affected by past trauma.
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 http://www.lawbaron.com, or call 781-209-1166 for more information.

Marlborough Public Schools and Child Find Responsibilities

Wicked Local Marlborough has posted the following online:

If you know of any school-age child, ages 3 to 21, who is a resident of Marlborough, who is attending a public or private school or who is homeless or has left school, and who could benefit from an evaluation under special education, 504 or educational services under the McKinney-Vento Homeless Assistance Act, contact the Marlborough Public Schools Office of Special Education for information regarding eligibility guidelines and services.

It is the responsibility of the Marlborough Public Schools to identify any child who is a resident of Marlborough who may have a disability, regardless of the severity of the disability.  It is also the responsibility of the Marlborough Public Schools to evaluate those students to determine if they are eligible for special education or related services under IDEA (Individuals with Disabilities Education Act) or 306 CMR 28 (Massachusetts Special Education Regulations).

Write inquiries to Special Education Director Tina M. Betley or Assistant Special Education Director Karen Sturges at Marlborough Public Schools, Office of Special Education, 25 Union St., Marlborough, MA 01752 or call 508-460-3502 and press 2.

To the extent practical and as required by law, the Marlborough Public School district will work with students and their families to provide stable in-school attendance and other services, according to the department.

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 http://www.lawbaron.com, or call 781-209-1166 for more information.

Special Education “Basic Rights Workshop” in Wilmington

Wicked Local Wilmington has posted the following online:

Wilmington Special Education Parent Advisory Council (SEPAC) invites parents, guardians and other interested parties to attend a workshop entitled “Basic Rights Workshop” on Thursday, Oct. 25, 6:30-8:30 p.m., at the Wilmington High School Library, 159 Church St., in Wilmington.

Presented by a representative from the Federation for Children Special Needs, this workshop provides families 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 how to be effective partners with the school, to decide the child’s eligibility for special education, to plan, make decisions and to monitor the educational progress of their child.

If you plan to attend this workshop, it would be helpful, but not necessary, if you send an email to fjobrien@gmail.com, so we will have a sufficient number of handouts available.

For more information about Wilmington SEPAC, go to www.wilmington.k12.ma.us/SEPAC.htm.

Read more: Wilmington basic rights workshop set for Oct. 25 – Wilmington, MA – Wilmington Advocate http://www.wickedlocal.com/wilmington/news/x1826359608/Wilmington-basic-rights-workshop-set-for-Oct-25#ixzz2AJkYmDCh

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 http://www.lawbaron.com, or call 781-209-1166 for more information.

School Discipline Gets Even More Draconian with Mass. Gen. Laws ch. 71 § 37H 1/2 –

In a prior blog post, I discussed how Draconian Mass. Gen. Laws ch. 71 § 37H can be.  For example, if a student is simply found in possession of marijuana at a school-sponsored event – regardless of amount, regardless of use or non-use, regardless of whether they are even aware of being in such possession – not only can the student be expelled from school, but they can also be prevented from enrolling in any other school district in the Commonwealth.

As the TV commercials say, “But wait, there’s more…”

Massachusetts has also enacted Mass. Gen. Laws ch. 71 § 37H 1/2.  Under 37H and 1/2, if a student is simply charged with a felony – even if the charge is baseless, and regardless of where the alleged event supposedly took place – the student can be suspended by the school principal.  For how long?  “[F]or a period of time determined appropriate by said principal or headmaster…” A day, a week, a month – the length of time is completely up to the principal.  There is a standard that the principal is supposed to utilize, but even that is very subjective.  Before a student can be suspended under this section of the law, the law requires that the principal determine that “the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school.”  The student does have the right to appeal the principal’s decision to the superintendent, but that has to be done within 5 calendar days.

But wait, there’s more…

If the student is actually convicted of a felony – even if the felony has absolutely nothing to do with the school – the student can be permanently expelled.  The same time frames, standards, and right to appeal as described above for suspensions apply equally to expulsions, as well.  And as described in the prior blog post for 37H, no other school system in the Commonwealth is required to admit a student who has been expelled under this section of the law.

37H and 37H 1/2 have unfortunately been used too often in an unfair way to keep certain students from accessing a public school education.  My child attended public school, so I certainly can appreciate the need to keep schools completely safe for all students and teachers.  As a lawyer, though, it is very frustrating to see students being denied an education – sometimes permanently – simply because they may have been in the wrong place at the wrong time.  It is also possible that a student may have made a really stupid decision that they could learn from if given the chance.  When 37H 1/2 is used improperly, what it teaches young people who have made a mistake is that there is no sense being remorseful for one’s acts or learning from one’s mistakes, because punishment can be severe and permanent, even at a young age. Thanks to the very hard work and dedication of many state legislators and the fine people at Massachusetts Advocates for Children, improvements to the discipline laws are finally coming.  I will provide details of the upcoming changes in future blog posts, so stay tuned.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

Free Guide for Parents of Children with Autism

The National Autism Center has made a guide on autism available for free.  It is intended to assist parents of children with autism.  It is available for download here: A Parent’s Guide to Evidence-Based Practice and Autism.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

Norton Public Schools: DESE to Conduct Coordinated Program Review

The Norton Patch published the following online.  The original article can be found here: http://preview.tinyurl.com/75f8jca.

Patricia H. Ansay, Ed.D., Superintendent of the Norton Public Schools was informed by the Massachusetts Department of Elementary and Secondary Education of an upcoming Coordinated Program Review that will be taking place this school year.

As part of this review, department staff will visit the district during the week of March 5. Such visits are routinely conducted by the department to satisfy federal and state requirements for the periodic review of specific education programs and services in schools throughout the Commonwealth. The department is reviewing several programs during a single visit in order to use department and school staff’s time most efficiently and to encourage strong connections among the programs.

The review will address the following programs: Special Education, English Language Acquisition and Civil Rights. After reviewing school district procedures for these programs, a department team will make its onsite visit, during which it will review individual student records, interview administrators, teachers and paraprofessional staff, survey parents and observe instructional spaces. After the onsite visit, it will prepare a report for the superintendent and school committee with detailed findings for each program.

Using a scale of ratings ranging from “Commendable” to “Not Implemented,” the report will rate the implementation of each requirement reviewed by the department. Where requirements are found not implemented or only partially implemented, the district must propose to the department corrective action to bring those areas into compliance with statutes and regulations. Districts and schools are encouraged to incorporate the corrective action into their district and school improvement plans and professional development plan. The school district will be provided with technical assistance from the department in developing a corrective action plan.

Both the department’s report and the corrective action plan are public information and will be available to the public upon request. Program Review Final Reports are also available on the Department’s Internet website at http://www.doe.mass.edu/pqa/review/cpr/reports/.

Any member of the public may request to be interviewed by telephone by a member of the department’s visiting team. Those wishing to be interviewed should call the Superintendent’s office at 508-285-0100 no later than Feb. 22 to leave their name and phone number, or they may call the Department of Elementary and Secondary Education at 781-338- 3722.

A member of the visiting team will contact each person desiring an interview within two weeks after the completion of the onsite visit. If an individual is not comfortable communicating in English or requires some other accommodation, the Department will make arrangements to communicate appropriately with the individual.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

DESE Directs School Districts to Discontinue Use of “Procedures Lite”

Some advocates of Procedures Lite had tried to convince the public that the Massachusetts Department of Elementary and Secondary Education sanctioned its use (see my earlier blog post – “Procedures Lite = Rights Lite” – for more background information).  I could find no evidence on the state’s web site sanctioning such use.  On Friday, the state’s Director of Special Education, Marcia Mittnacht, hopefully put the final nail in the Procedures Lite coffin when she posted the following on the DESE web site: “[W]e have directed districts that have implemented the practice to discontinue it.”  Her complete Procedures Lite statement is now online.  Thank you to Dan Perlman from Massachusetts Advocates for Children for bringing this update to my attention.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

Massachusetts Special Education Evaluation Timelines

The law regarding timelines for special education evaluations can be confusing.  State law can vary from the federal IDEA requirement, and parents also need to be aware of whether the law refers to “days” or “school days.”  The term “days” refers to calendar days, which includes weekends, holidays and vacations; the term “school days” refers to days in which school is in session.

Federal law states that evaluations must be conducted within 60 days of receipt of parental consent for the evaluation, but defers to state timelines if such timelines exist (34 C.F.R. 300.301(c)).  Both Massachusetts and New Hampshire have implemented their own specific timelines.  The remainder of this article will be specific to Massachusetts law; I will post a separate article specific to New Hampshire law.

In Massachusetts:

“Within 45 school working days after receipt of a parent’s written consent to an initial evaluation or reevaluation, the school district shall: provide an evaluation; convene a Team meeting to review the evaluation data, determine whether the student requires special education and, if required, develop an IEP in accordance with state and federal laws; … The evaluation assessments shall be completed within 30 school working days after receipt of parental consent for evaluation. Summaries of such assessments shall be completed so as to ensure their availability to parents at least two days prior to the Team meeting.” 603 C.M.R. 28.05(1).

In other words, in Massachusetts, once a parent provides consent, the school district has 30 school days to complete the evaluation.  The entire process, including conducting the evaluation and convening the Team meeting to discuss the results, must be complete within 45 school days of parental consent.  Furthermore, a summary of the evaluations must be provided to the parents at least 2 days prior to the Team meeting.

We can look at an example to better understand these timelines.  Let’s assume that a parent provided consent for an evaluation on 09/12/11.  Counting ahead 30 school days, including a day off for Columbus Day, brings us to 10/25/11, which in this example is the deadline for conducting the evaluation.  Counting ahead 45 school days from 09/12/11, including days off for Columbus Day and Veteran’s Day, brings us to 11/16/11, which is the deadline for conducting the Team meeting and drafting the IEP.

But what happens if consent is provided at the end of the school year, and there is not enough time under the law as listed above to complete the evaluation and conduct the Team meeting?  In Massachusetts, parents may still be in luck.  Massachusetts has added the following protection:

“If consent is received within 30 to 45 school working days before the end of the school year, the school district shall ensure that a Team meeting is scheduled so as to allow for the provision of a proposed IEP or written notice of the finding that the student is not eligible no later than 14 days after the end of the school year.” 603 C.M.R. 28.05(1).

Again, let’s look at an example to better understand this law.  Assume that the school year ends on Friday, June 22, 2012.  45 school days prior to June 22, 2012 brings us to April 12, 2012.  30 school days prior to June 22, 2012 brings us to May 10, 2012.   Thus, we have three time frames to consider:

  1. Consent provided prior to April 12, 2012: the school district will be expected to complete the evaluation, Team meeting, and draft IEP before the end of the school year on June 22.
  2. Consent provided after May 10, 2012: the school district will not be required to complete the evaluation prior to the end of the school year, because there are fewer than 30 school days remaining.
  3. Consent provided between April 12, 2012 and May 10, 2012: the school district will be required to complete the evaluation prior to and of the school year.  If the 45 day rule would go beyond June 22, then the school district will be required to convene the Team meeting no later than 14 calendar days following the end of the school year.
 The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.