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.

As discussed in our May 5, 2020 blog post, the U.S. Department of Education (“USDOE”) and the Massachusetts Department of Elementary and Secondary Education (“DESE”) have explicitly stated that, despite COVID-19-related issues, school districts must continue providing their students with special education services and programming and that special education timelines (including timelines for completion of assessments, convening Team meetings, and issuing IEPs) must be followed. On a May 1, 2020 Zoom call with the state’s special education directors, Massachusetts’ State Director of Special Education, Russell Johnston, commented that waivers of these obligations “aren’t going to hold up.” On May 21, 2020, DESE issued guidance, noting that school districts cannot ask for such waivers.

The Globe reports that a Massachusetts special education activist group, SPEDWatch, has filed complaints against twenty-five school districts, with seventeen of them accused of pushing these waivers on parents. Eleven have been found noncompliant and reprimanded by DESE; the other seven remain under investigation. The noncompliant districts have been required to notify parents that the waivers that the parents previously signed are void. However, parents and their attorneys remained concerned that other districts are continuing these practices, or are forgoing the waiver but ignoring special education timelines.

Guidance from USDOE and DESE strongly suggests that previously signed waivers are invalid. As discussed above, it is clear that districts must continue providing special education students with a free appropriate public education and follow mandated special education timelines. Parents should be mindful of districts presenting these waivers or using COVID-19-related issues as justification for failing to provide special education services and programming and/or failing to timely hold IEP Team meetings, conduct evaluations, and issue IEPs. Parents who have previously signed such waivers should not wait for their districts to retract them, but should consider notifying the district in writing that they have learned that the waiver is illegal and are therefore withdrawing their previous consent to excuse the district from its obligations. (As always, parents are advised to consult an experienced special education attorney or advocate about their child’s particular situation.)

Nathan Y. Sullivan is an associate in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

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

Seeking Services: Tips for Preparing for IEP Team Meetings and Beyond

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