COVID-19 Compensatory Services: What Are They and Will Your Child Receive Them?

Compensatory education is a well-established remedy for deprivations of special education services, recognized in Massachusetts at least since Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184 (1st Cir. 1993).  The purpose behind compensatory relief is to make the student whole by to providing services that place the student in the position that he or she would have occupied if the services been delivered in a timely manner.  The remedy is an equitable one that has been characterized as broad and flexible.  In some cases, school districts (or, when disputes occur, courts, administrative hearing officers, and state complaint agencies) have used a “one-for-one” approach, calculating the hours or days of services that the student missed and ensuring that the student receives compensatory services of the same type and in the same amount.  At other times, compensatory services may differ in type or amount from those the student missed, with the goal of redressing the deprivation by meeting the student’s current needs. Continue reading

A Concerning Trend: Massachusetts Districts Asking Parents to Waive Special Education Rights

In a recently published article, the Boston Globe reports that during this past spring, many school districts across the state asked parents to forgo their children’s special education rights by signing waivers releasing the districts from important special education obligations. These waivers have included releasing districts from providing IEP-related services and programming, conducting special education assessments, and issuing IEPs within state and federal timelines. That districts would request such waivers is concerning enough, in light of clear federal and state guidance that districts must adhere to these obligations despite the COVID-19 crisis. Further concerning is how districts have presented these waivers. Attorneys, parents, and advocates have stated that districts have portrayed the signing of these waivers as a necessary condition for parents to get IEP Team meetings scheduled or for certain services to continue. As a result, many less informed or less assertive parents consented to the waivers, misled by the districts to believe that they had no choice but to do so if they wanted their children to receive assessments, services, or meetings to which the families were in fact already entitled. Continue reading

Encouraging Changes: DESE Provides Updated Guidance to School Districts Regarding the Provision of FAPE During School Closures

On March 26, 2020, the Massachusetts Department of Elementary and Secondary Education (“DESE”) provided an important update to school districts on their legal responsibility to provide a free appropriate public education (“FAPE”) to their students with disabilities during the COVID-19-related school closures. This guidance, entitled “Coronavirus/Covid-19 Frequently Asked Questions For Schools and Districts Regarding Special Education,” replaces the previous one that DESE published on March 17, 2020. Also on March 26, 2020, DESE Commissioner Jeffrey Riley issued specific recommendations to school districts about implementing remote learning models, entitled “Remote Learning Recommendations During COVID-19 School Closures.” Continue reading

Reversing a FAPE Freefall? U.S. DOE Upholds Students’ Rights to Special Education During Coronavirus Crisis

On March 21, 2020, the United States Department of Education (“USDOE”), through its Office of Civil Rights (“OCR”) and Office for Special Education and Rehabilitative Services (“OSERS”), issued a Supplemental Fact Sheet, “Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities.”  This guidance provides a necessary corrective to earlier guidance issued by USDOE on March 12, 2020 and by the Massachusetts Department of Elementary and Secondary Education (“DESE”) on March 17, 2020. Continue reading

When Must Massachusetts School Districts Provide Copies of Reports? – An Interpretation and a Call for Revision

We often hear from parents who have asked their school districts to give them copies of evaluation reports as soon as the reports are completed, only to be told that they cannot have those reports until two days before the Team meeting at which the reports will be considered. Many districts will take this position even though the reports in question may have been completed weeks before that meeting. In our opinion, the districts’ position in those cases is flat wrong. Continue reading

Federal Guidance Regarding Speech-Language Services for Students with Autism

The Office of Special Education Programs of the United States Department of Education (“OSEP”) issued a “Dear Colleague Letter” letter on July 6, 2015 regarding speech-language services and evaluations for children with Autism Spectrum Disorder (ASD). Continue reading

Discovery of Information about Proposed Peers at the BSEA: A Practice Note

Why proposed peer group information is essential in BSEA proceedings

The capacity of a school district’s program to meet the needs of a student with a disability often depends heavily on the learning, behavioral, and social communication needs of the peers with whom the district proposes to group the student.   An inappropriate classroom cohort can significantly undermine a student’s ability to make effective progress.  For example, suppose that a child of average intelligence who has severe dyslexia requires placement in small classes where all core subjects are taught with a specialized language-based methodology.  Placing that student in a classroom with students who have different disabilities (such as emotional or intellectual impairments) that require different methodologies would not be appropriate.  Continue reading

Don’t Get Taken for (too long) a Ride; Watch Out for Silent Waivers in an IEP!

Parents should keep an eye out for language in their IEPs that might have them unwittingly signing away the right to limit the duration of their child’s transportation to and from a placement to an hour or less each way.   Massachusetts special education regulations provide, at 603 C.M.R. §28.06 (8)(a):

The district shall not permit any eligible student to be transported in a manner that requires the student to remain in the vehicle for more than one hour each way except with the approval of the Team.  The Team shall document such determination on the IEP. Continue reading

U.S. Department of Education Issues Guidance Regarding Bullying of Students with Disabilities

Bully Free ZoneOn August 20, 2013, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (“OSERS”) issued a “Dear Colleague” letter that explains, in clear and unequivocal language, school districts’ responsibilities to prevent and address bullying of students with disabilities. Continue reading

Latest Developments in Transition Planning in Massachusetts

Transition services are part of, and not separate from, a school district’s responsibility to provide FAPE.  The IDEA requires transition services that are developed through transition planning by the IEP Team.  Specifically, the IDEA requires every IEP, beginning no later than the one that will be in effect when the child is 16 years old (age 14 in MA), to include “appropriate measurable postsecondary goals based on age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills,” and to describe the “transition services (including courses of study) needed to assist the child in reaching those goals.” 20 USC § 1414 (d)(1)(A)(i)(VIII).  See also 34 CFR § 300.320(b). Continue reading