Tag Archives: IDEA

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

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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 http://www.lawbaron.com, 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 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.