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.

Uncharted Territory: What Will School Look Like for Special Education Students in the Summer and Fall of 2020?

As most Massachusetts residents know, on March 15, 2020 Governor Charlie Baker ordered all public and private schools in the Commonwealth to cease in-person instruction through April 6, 2020.  That restriction was later extended through the end of the 2019-2020 school year.  The Massachusetts Department of Elementary and Secondary Education (“DESE”) directed school districts to provide students (including special education students) with remote instruction during that time.  With the 2019-2020 school year drawing to a close, DESE been considering summer school programs and looking toward the reopening of school in the fall.  DESE has issued the following guidance on those subjects:

All four documents may be found at http://www.doe.mass.edu/covid19/on-desktop.html. Continue reading

U.S. DOE and DESE Make Clear: Districts Must Provide FAPE During School Closure and Timelines Remain in Effect

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), signed into law on March 27, 2020, contains a provision allowing the U.S. Secretary of Education, Betsy DeVos, to recommend that Congress waive certain requirements during the COVID-19 pandemic, including requirements under the Individuals with Disabilities Education Act (“IDEA”).  Many attorneys and advocates for students with disabilities feared that the Secretary would seek congressional approval to excuse school districts from complying with all of IDEA’s provisions during the current crisis.  Such approval, if granted, could have relaxed IDEA’s substantive obligations, such as the requirement that school districts provide a free appropriate public education (“FAPE”) to students with disabilities, during periods of school closure and/or could have tolled or extended IDEA’s procedural obligations, such as the requirements that district perform evaluations and re-evaluations within specific timeframes. 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

KCS Settles Civil Rights Suit Against the Holyoke Public Schools for $950,000

KCS attorneys Daniel Heffernan, Alicia Warren, and Carl Misitano resolved a complex civil rights suit against the Holyoke Public Schools.  The case arose out of the abuse and mistreatment of fifteen students with special needs in a program within the Holyoke Public Schools.The students, who were in grades four through eight, all had pre-existing emotional disabilities including anxiety and trauma-related disorders.  The defendants included the municipal entities and various school employees. Continue reading

New First Circuit Opinion Elucidates Exhaustion Requirement for School-Related Claims Under Sections 504 and 1983

The First Circuit has recently clarified the exhaustion requirements for school-related Section 504 and Section 1983 claims in light of Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743 (2017).  In Doucette v. Georgetown Public Schools, #18-1160 (1st Cir. Aug. 26, 2019), a divided panel reversed a District Court decision that dismissed parents’ Section 504 and Section 1983 claims for failure to exhaust IDEA’s administrative process. Continue reading

House 518 Would Require Transportation and Increased Funding for Recovery High Schools – a Proven Resource in a Troubled Time

Readers may recall a number of posts we have entered over the past few years regarding Recovery High Schools. Massachusetts currently has five such high schools – in Boston, Brockton, Beverly, Worcester and Springfield – and they have each proven to be an excellent support for high school age students who are struggling to disengage from drug and/or alcohol dependence/abuse. A Recovery High School’s ability to provide a solid high school education along with appropriate services and supports to such students, in the company of peers who are struggling with the same issues, is critical to the success of this resource. The alternative – returning to the student’s home high school – is all too often disastrous, as a student’s fragile beginning toward recovery can so easily be crushed by a school district’s lack of supports while a user subculture of peers eagerly draws the student back into its mix. Continue reading

A New First Circuit Case: C.D. v. Natick Public School District

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