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.
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.
“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:
- 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.
- 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.
- 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.
I was recently interviewed for an article in Lawyer’s Weekly about the various ways in which attorneys use smartphones. You can view the article here: http://tinyurl.com/5suswvu
Vanderbilt Kennedy Center is conducting a survey of parents of children with disabilities. They would like to learn more about you, your children, and your relationship with the school. For more information, visit my website (http://www.lawbaron.com/).
Massachusetts Appeals Court Rules That School System Is Not Immune from Being Sued after First Grader Suffered Injuries during Recess
The Massachusetts Appeals Court has ruled that a public school system can be sued by a student who suffered permanent injuries when he was pushed to the ground by a fellow student during recess. The event took place in 2004 at the Wood End Elementary School in Reading.
Some Legal Background
There is a law in Massachusetts called the Massachusetts Tort Claims Act (MTCA). Basically, the MTCA defines the liability and limits of liability for government entities and their employees. The following is a list of some of the more interesting features of this law. There is a lot more to the law than this, so please note that this is not a complete and thorough explanation – it is simply a summary of some of the interesting points:
- Protects state and city government workers from liability when the claim is based on the employee’s negligent or wrongful act when done while acting within the scope of his duties (G.L. 258, Sect. 2).
- Allows for public employers to be sued just like private employers for an employee’s negligent or wrongful act, BUT limits liability for governmental entities to $100,000. Interestingly, the MBTA is not subject to this $100,000 limit (Id.).
- Requires that a written claim be presented to the governmental entity prior to initiating a lawsuit (G.L. 258, Sect. 3).
The government has legal immunity in certain circumstances:
- When a claim is based upon an employee’s act or omission, if the employee was exercising due care in the execution of his duties (G.L. 258, Sect. 10(a)).
- When a claim is based upon the exercise or failure to exercise a discretionary function of the public employee’s job (G.L. 258, Sect. 10(b)).
- When a claim is based upon harm originally caused by a third person’s violent or tortious conduct, rather than the public employee’s act or omission (G.L. 258, Sect. 10(j)). As with many facets of the law (to the chagrin of so many law students sitting for the bar exam), there are exceptions to this exception, but that goes beyond the scope of this blog.
I underlined sections 10(b) and 10(j) because those were the items which were in dispute in this Reading case.
Some Case Background
As described by the Appeals Court decision, here is some factual background: “On November 1, 2004, plaintiff Nicola Gennari (Nico or plaintiff), then a first-grade student attending Wood End Elementary School (Wood End) in Reading, was seriously and permanently injured during a school-mandated recess period. At the time of Nico’s injury, Wood End lacked a playground. Principal Karen Callan, who had served as an elementary school principal for eleven years, directed that the first graders’ recess be conducted in a concrete courtyard, although there were alternative locations where that recess might have been held, including the school gymnasium which was equipped with padded walls. The courtyard was not simply an empty area with a concrete surface. It was populated by several ‘bench-walls,’ essentially low, concrete-topped brick walls, each several feet long, that could be used as benches, and that had sharp edges and corners. The plaintiff filed this action against the defendant Reading Public Schools, alleging that Principal Callan’s choice of recess location was negligent, and was the proximate cause of Nico’s injury… At his deposition, Nico testified that his injury occurred while he was racing with other children around the courtyard. He ‘felt a push’ from behind, which caused him to fall, and his face struck the corner of a concrete bench-wall, resulting in a severe laceration. The push came from his fellow first grader and friend, six year old Samuel Turrecamo (Sam).” Genarri v. Reading Public Schools, 09-P-644 (Mass. App. 2010).
Reading then filed a Motion for Summary Judgment, meaning that they wanted the lower district court to make a decision based on the facts presented, without even having a trial. This is a very common motion in litigation. The district court rejected the Motion for Summary Judgment, and Reading then appealed that decision to the Massachusetts Appeals Court.
The Court’s Analysis
Reading tried to argue that the principal’s decision was a discretionary one, and thus Reading should be immunized under section 10(b). The Appeals Court did not agree. In his decision, Appeals Court Judge Peter J. Rubin wrote “decisions that require some discretion but do not involve social, political, or economic policy considerations are not immunized by section 10(b)” (emphasis added). This short phrase appears to set new precedent, since it more strictly refines what is meant by “a discretionary function.”
Reading also tried to argue that it should be immune under section 10(j) because the town believed that the student’s push, rather than the principal’s decision to hold recess in the courtyard, was the “original cause” of the harm. Again, the appeals court disagreed. In its decision, the Court wrote, “Running, falling, and pushing are understood, foreseeable, even inherent parts of first-grade recess. Thus, even though [the classmate’s] conduct in pushing or falling into [the plaintiff] can be said to be the more immediate cause of the injury, [the principal’s] decision to hold recess in the concrete courtyard, which contained whatever danger the protruding edge-walls represented, materially contributed to the ‘condition or situation’ which caused the harm.” What this means is that the principal should have taken into account the expectation that first graders are going to run, fall, and bang into each other. Being an expert on children, the principal should have realized that she was placing children into harm’s way by allowing them to have recess in an all-concrete environment.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal disputes. Please visit http://www.lawbaron.com for more information.
The Patriot Ledger newspaper published the following article today:
Special-education review in Milton set for mid-November
Representatives from the state Department of Elementary and Secondary Education will be in local schools during the week of Nov. 15 to review the town’s compliance with special-education laws.
Included will be an examination of selected student records, classroom visits, and interviews with staff members, parents and others.
Federal and state special-education laws ensure that students with disabilities receive educations that prepare them for employment, independent living and possible post-high-school education.
Parents who feel their child is not receiving proper services are encouraged to meet with a state education staff member prior to Nov. 15.
To request an interview, call Paul Aguiar at 781- 338-3781.
SPEDWatch Inc., a statewide nonprofit working to secure the educational rights of all Massachusetts schoolchildren with disabilities, is also offering its services to parents in connection with the state’s review of the Milton school system.
For more information about the organization, go to http://www.spedwatch.org.