Special Education Blog

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

lawbaronblog — Mon, 19 Dec 2011 03:25:31 +0000

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

lawbaronblog — Sun, 13 Nov 2011 18:37:59 +0000

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:

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.

Special Education Eligibility

lawbaronblog — Fri, 28 Oct 2011 15:23:28 +0000

For a child to be eligible for special education services, all of the following must be true:

The child must be between the age ranges specified by federal and state law:

Massachusetts: Ages 3 – 21, inclusive. 20 U.S.C. 1412(a)(1)(A) and 603 C.M.R. 28.02(9).
New Hampshire: Ages 3 – 20, inclusive. New Hampshire also requires the identification and evaluation of special education students starting at age 2.5, so that an IEP can be in place immediately upon reaching age 3. Ed 1105.

The child must have a disability (see below for more information);
The child must not be making effective progress in regular education due to that disability; and
The child requires specially designed instruction or a related service.

To qualify as a child with a disability for special education purposes, your child’s disability must be categorized according to terms set out under the Individuals with Disabilities Education Act (“IDEA”) or under state law. New Hampshire follows the IDEA categories, which are:

intellectual disabilities,
hearing impairments (including deafness),
speech or language impairments,
visual impairments (including blindness),
serious emotional disturbance (referred to in IDEA as “emotional disturbance”),
orthopedic impairments,
autism,
traumatic brain injury,
other health impairments, or
specific learning disabilities.

20 U.S.C. 1401(3)(A); 34 CFR 300.8.

New Hampshire also recognizes developmental delays in children ages 3 – 9 as a disability category. 20 U.S.C. 1401(3)(B); 34 C.F.R. 300.8(b); RSA 186-C:2, I-a.

Massachusetts has its own disability category list, which is as follows (603 C.M.R. 28.02(7)):

autism,
developmental delay,
intellectual impairment,
sensory impairment (including hearing impairment, deafness, visual impairment, and blindness),
neurological impairment,
emotional impairment,
communication impairment,
physical impairment,
health impairment, or
specific learning disabilities.

Referral: The First Step in the Special Education Process

lawbaronblog — Wed, 26 Oct 2011 16:01:55 +0000

As the school year moves along, you may start to suspect that your child should be evaluated for special education. To start the process, you should make a “referral.” The following describes the referral process and timelines for Massachusetts and New Hampshire:

Write a Letter to the special education director in your school system requesting a special education evaluation. Explain that you are the parent or guardian of the child, and then explain some of your concerns (e.g. failing grades, distractibility, emotional concerns, etc.). Be very clear that you are requesting an evaluation to determine eligibility for special education services or accommodations under the Individuals with Disabilities Education Act (IDEA). If you are able to go to the school office in person, you should obtain a date-stamped receipt as proof that you submitted the request on a certain date (read on to see why proof of the date is important). If you are not able to go to the school office in person, you should send the letter certified, return receipt requested. E-mail is also acceptable, as long as you get a response indicating that the e-mail has been received.
Consent Form. Federal law requires school districts to obtain parental consent before performing any evaluations. This process can be more difficult for New Hampshire parents than for Massachusetts parents:

Massachusetts: In Massachusetts, school districts must send the consent form to the parents within 5 school days of receiving the referral (i.e. your letter). 603 C.M.R. 28.04(1)(a).
New Hampshire: In New Hampshire, when a referral is made, the IEP team must meet within 15 days of the referral to determine:

whether the concerns raised by the referral can be addressed by existing educational supports that are available to all children;
whether additional information is required; and
what testing, if any, is needed to address any remaining concerns raised by the referral. Ed 1106.01(d).

Evaluation. If an evaluation will take place, federal law requires that it occur within 60 days of receiving parental consent. 300 C.F.R. 300.301(c)(1)(i). Both Massachusetts and New Hampshire provide shorter timeframes, though.

Massachusetts: Schools must complete the evaluation within 30 school days of receiving the consent form. 603 C.M.R. 28.04(2).
New Hampshire: Schools must complete the evaluation within 45 days of receiving the consent form. Ed 1107.01(c).

I will examine the Evaluation procedures in more detail in a subsequent blog post.

Procedures Lite – Running List

lawbaronblog — Fri, 21 Oct 2011 15:12:00 +0000

I have been made aware of just 2 school districts that have offered or utilized Procedures Lite: Weston and Lincoln-Sudbury. Please post a comment to this blog entry if you know of others.

Categorizing Your Dispute

lawbaronblog — Thu, 20 Oct 2011 14:31:18 +0000

The school year is now well underway. It is a sad fact of life that as the school year rolls along, more and more disputes arise between parents and school systems regarding a child’s education. For disputes that cannot be resolved directly between the parents and the school systems, it is sometimes necessary to engage an attorney. When parents call my office, one of the first things I do is to categorize the dispute into one of four major categories (and then further sub categorize within those categories):

Eligibility and Evaluations. Does the child have a disability? Is the child not making effective progress in regular education due to that disability? Does the child require specially designed instruction or related services in order to access the curriculum? If the answers to these questions are yes, then the child should be eligible for special education services.
The Team process and IEP services. Who makes up the Team? Do Team meetings take place when and how they are supposed to according to the law? Does the IEP properly reflect the special needs of the child? Do the accommodations and services match what the medical professionals and recommended in the evaluations?
Placement. Where will services be provided? In-district or out-of-district?
Discipline. Has a child been removed from their educational placement because of discipline? Has this happened for more than 10 days? Did the school conduct a Manifestation Determination and a Functional Behavioral Assessment?

Once you know where the dispute exists within this special education “lifecycle,” you can then better understand your rights and the school district’s responsibilities under the law.

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, or call 781-209-1166 for more information.

Procedures Lite = Rights Lite

lawbaronblog — Wed, 19 Oct 2011 18:43:20 +0000

Have you ever heard of “Procedures Lite?” If not, don’t feel bad. Very few people have, though you will probably be seeing reference to this more and more.

Federal and state special education laws grant numerous rights to parents, and create numerous requirements for public school systems, to ensure that disabled children are provided with a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). Anyone who has been involved with creating or implementing an IEP, or dealing with disputes that may crop up regarding a child’s education, can attest to the large overhead that is involved with special education.

Procedures Lite is an attempt by school districts to avoid the time, paperwork, cost and accountability that are required by federal and state special education laws. Here’s how you will “ benefit:”

You will “agree to suspend state and federal special education procedural requirements…”
You will “understand that an Individualized Education Program (IEP) will be replaced by a one-page Student Learning Plan (SLP)…”
You will agree not to:
1. _____convene the Team meeting to develop an IEP.
2. _____develop an IEP.
3. _____ send/receive periodic parent notices.
4. _____conduct procedurally required evaluations

You will agree to “forever WAIVE [your] rights to appeal all issues under all state and federal laws… including all rights related to compensatory services or damages.”

Is Procedures Lite sanctioned by the Massachusetts Department of Elementary and Secondary Education (DESE) or the Bureau of Special Education Appeals (BSEA)? I can find no reference to it in any state or federal website or communication, yet its advocates will have you believe that it is sanctioned by the DESE. The Town of Weston – the only district of which I am aware that openly makes reference to this procedure – states, “DESE identifies the purposes of Procedures Lite as follows… DESE suggests that Procedures Lite agreements be limited….” http://bit.ly/owsn9r.

I can’t think of any good reason for parents to agree to the use of Procedures Lite. I see lots of benefits for the school districts, but none for the parents. Is a district asks you to utilize Procedures Lite, would you mind notifying my office? I would like to keep a running list of districts attempting to utilize Procedures Lite. Thank you.

For further information about the Law Office of James M. Baron, please visit http://www.lawbaron.com,or call 781-209-1166.

Can a School District Use RTI to Delay a Special Education Evaluation?

lawbaronblog — Thu, 04 Aug 2011 21:51:00 +0000

The short answer is “no,” but since no attorney can ever give a one word answer, here are more details…

RTI stands for Response to Intervention. It is a way for schools to identify students who are at risk for poor learning performance, to monitor student progress, and to provide appropriate interventions depending on how a student responds. It is used for students who are struggling, whether or not they have disabilities. RTI has been very controversial, because some schools have used it to delay special education evaluations and implementation of special education services.

The federal Department of Education has characterized RTI as follows: “[T]he core characteristics that underpin all RTI models are: (1) students receive high quality research-based instruction in their general education setting; (2) continuous monitoring of student performance; (3) all students are screened for academic and behavioral problems; and (4) multiple levels (tiers) of instruction that are progressively more intense, based on the student’s response to instruction.” (OSEP 11-07 RTI Memo, Jan. 21, 2011)

So here’s the problem: Parents have the right to request an initial special-education evaluation at any time to determine whether a child is eligible for special education services. When such evaluation referrals are made, most school systems conduct the evaluations in a timely manner. However, some school systems try to delay the evaluations to see what the results are of RTI.

A school system which tries to delay an evaluation due to RTI is at risk of violating both federal and state law. Federal law requires school districts to conduct an initial evaluation within 60 days of receiving parental consent for the evaluation. 34 CFR 300.301(c). In Massachusetts, the timeframe is even shorter: 30 school days from the time the parents provide consent. 603 CMR 28.04(2). These time frames do not provide for any exception due to RTI.

The federal Department of Education has clearly advised school districts that “It would be inconsistent with the evaluation provisions… [for a school district] to reject a referral and delay provision of an initial evaluation on the basis that a child has not participated in an RTI framework.” (OSEP 11-07 RTI Memo, Jan. 21, 2011)

For more information about the Law Office of James M. Baron, visit http://www.lawbaron.com.

Worries About Bullying Insufficient to Prove Lack of FAPE

lawbaronblog — Mon, 28 Feb 2011 13:34:43 +0000

An interesting case in Pennsylvania, which made it all the way up to the US District Court there, stands for the proposition that fears about bullying are insufficient to prove that there was a lack of FAPE (Free Appropriate Public Education). The plaintiffs in this case (J. E. et al. v. Boyertown Area School District, 10 – 2958 (E.D. Pa., 2011)), made a unilateral placement of the student at a private school that they believed would provide the child with a FAPE. The student had been diagnosed with Asperger’s Syndrome. They claimed that the placement proposed by the school district would subject their child to bullying. The student had previously been subjected to bullying at a previous school district placement, but not at the placement that was then being proposed by the school district. The parents were simply fearful of potential bullying at the school district’s proposed placement. The court determined that a fear of bullying is not sufficient to prove a lack of FAPE. “The Hearing Officer concluded that the AS program could appropriately deal with any bullying that occurred and that this concern was only prospective. There is no reason for the Court to find otherwise. J.E. may face bullying, but a fair appropriate public education does not require that the District be able to prove that a student will not face future bullying at a placement, as this is impossible.”

For more information about the Law Office of James M. Baron, visit http://www.lawbaron.com.

Article: Smartphones a Handy Tool for Lawyers

lawbaronblog — Mon, 28 Feb 2011 01:49:35 +0000

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