In a recent decision, C.D. v. Natick Pub. Sch. Dist., No. 18-1794 (1st Cir. May 22, 2019), the First Circuit Court of Appeals grappled with the legal standards at the heart of most special education disputes – namely, the entitlement of a student with special needs to a “free appropriate public education” (FAPE) in the “least restrictive environment” (LRE). The First Circuit’s decision followed the Supreme Court’s decision in Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017), which, for the first time since 1982, squarely considered the contours of a FAPE. For an in-depth discussion about Endrew F., please see our previous post here. Continue reading
Recently, Attorneys from the Special Education and Disability Rights practice group and the Estate Planning and Estate and Trust Administration practice group at Kotin, Crabtree & Strong, LLP, attended the annual conference for the Federation for Children with Special Needs. During the conference, one parent approached us and asked whether her son, who is eighteen years old and has significant disabilities, really needed to register for the Selective Service. It was an intriguing question, one that we had not heard before, and so we looked into it. Continue reading
You won’t want to miss our commentary on the Bureau of Special Education Appeals (“BSEA”) decisions and rulings for the third quarter of 2018, written by KCS attorneys Eileen Hagerty and Alicia Warren for the Massachusetts Special Education Reporter. The commentary is available on our website. It offers summaries of recent cases, discussion of trends, and practical pointers for parents and practitioners. Continue reading
Special education law explicitly requires school districts to meet the unique learning needs of students with disabilities to prepare them to succeed as adults in further education, employment and independent living. This is particularly important as students reach transition planning age, beginning at age 14 in MA. Parents and advocates often face challenges when trying to ensure that school districts address students’ individual academic, social, emotional, and behavioral needs. Continue reading
Today Larry Kotin, my law partner for the last 32 years, my colleague for more than 40 years in countless collaborations on behalf of children and adults with physical, cognitive or emotional/behavioral challenges, and above all my friend through many thicks and many thins in both our work and our personal lives, will move from his position as a partner at KC&S to “of counsel” status. Continue reading
In 2011 I wrote a pair of articles for the Newsline of the Federation for Children with Special Needs describing the legal framework and offering some practical guidelines for public school teachers who wish to advocate for children with disabilities within their districts. Teachers in that role must wrestle with several sources of resistance and limitation, including their own natural reluctance to engage in potentially adversarial interactions with colleagues and/or administrators; the possibility of subtle or not-so-subtle disciplinary repercussions; and the inevitable extra time and energy it requires to advocate effectively – becoming familiar and comfortable with the applicable rights and procedures, educating oneself about alternative solutions, learning to work with diplomacy amid one’s peers, and so forth – none of which extra time and energy is likely to be compensated in one’s paycheck. Continue reading
The Bureau of Special Education Appeals, or the BSEA, is part of the Division of Administrative Law Appeals and has original jurisdiction over all disputes regarding special education in Massachusetts (including claims based on Section 504 of the Rehabilitation Act, i.e., those that allege discrimination based on a child’s disability). The BSEA provides five avenues for dispute resolution in case of a disagreement between a parent and a school district.
This is the third in a series of five posts that will discuss the dispute resolution options at the BSEA.
If you cannot resolve your differences with the school district in an informal way, such as through the team process, through direct discussion with special education administrators or between attorneys, or in mediation, you can initiate litigation about the dispute by filing a hearing request with the BSEA. In Massachusetts, the BSEA is the forum where one must first litigate a special education dispute. The hearing process is commenced by filing a hearing request. Continue reading
While you may know that the law provides protections for your qualified child to be able to access his or her academic education, did you know that the law equally protects your child’s ability to access sports and other extracurricular activities through his or her public school? Earlier this year, the Office for Civil Rights (OCR) of the United States Department of Education provided guidance to school districts and parents, clarifying that Section 504 of the Rehabilitation Act (Section 504) not only applies to your child’s academics, but also applies equally to participation in extracurricular activities provided by the public school. In fact, OCR noted that extracurricular activities and sports “are an important component of an overall education program,” and provide important health and social benefits to qualified students. Continue reading
In the quest for comprehensive services for students with special needs, parents and advocates should not overlook state agencies such as the Department of Mental Health (“DMH”), the Department of Developmental Disabilities (“DDS”), the Department of Elementary and Secondary Education (“DESE”), and the Department of Children and Families (“DCF”). While some, like DMH and DDS, devote the vast majority of their resources to adults who are no longer eligible for services from school districts, all state agencies do provide services to school-age individuals. Their services range from minimal to extensive and can include afterschool, respite, and even residential services. Each agency’s website and governing regulations (see below) describe their programs and services, as well as eligibility criteria and application procedures. Continue reading
Observation of a student’s program or proposed program by parents or by their expert evaluators or consultants is a critical step in many cases for parents to make informed decisions about their child’s special educational services. In addition, an observation is a necessary ingredient of almost any case at the Bureau of Special Education Appeals (“BSEA”), as hearing officers will often discount a witness’s opinion about a district’s program when that witness has not observed the program about which s/he is testifying.
In light of these considerations, it is disheartening that school districts so frequently throw unreasonable (and illegal) conditions and delays into the paths of parents and their experts who seek to observe a program. Examples include requiring criminal record checks, despite the fact that an observer will be accompanied by a school employee and not alone with students at any point; attempts to require that an observer provide a copy of her notes following the observation; long delays (often with phone calls and emails unreturned) in communications about scheduling; arbitrary limits on the amount of time that can be spent observing and/or the classes and activities that may be observed; last minute cancellations or postponements; scheduling unusual and unrepresentative activities (e.g., showing a movie or administering an exam) for the time an observer is at the program; and so on. All of these sorts of tactics play havoc with the experts, whose availability is typically quite limited, and with parents who must negotiate time away from work to observe a program. Continue reading