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 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
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
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
The Department of Elementary and Secondary Education (“DESE”) recently released an advisory concerning the responsibilities of charter schools to special education students. Although charter schools have been a feature of the Massachusetts school landscape for over twenty years, there are still misunderstandings about charter schools’ obligations to their students who require special education. The DESE advisory addresses some of these issues. It focuses on a Massachusetts special education regulation found at 603 CMR 28.10(6)(a), which covers the responsibilities of the charter school and the student’s public school district (“district of residence”) in the event that a student with special needs may need to leave the charter school in order to obtain an appropriate education. (This regulation also covers special education students who attend vocational schools, Commonwealth of Massachusetts virtual schools, and schools attended through the METCO program. However, the advisory targets charter schools specifically.) Continue reading
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
On 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
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
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). The BSEA provides five avenues for dispute resolution in case of a disagreement between a parent and a school district.
This is the first in a series of five posts that will discuss the dispute resolution options at the BSEA.
Your child’s annual IEP meeting is coming up and you believe your voice will not be heard or it may get contentious due to past conflict, current controversy, or your future wishes for your child. You question your own ability to keep the meeting on track and feel as though a neutral third party’s presence may be beneficial. What options do you have?
One option, which can be requested by either a parent or a school district, is to ask a facilitator from the BSEA to help with a difficult IEP meeting. Both parties must agree to the facilitator’s presence and the service is free of charge. Continue reading