Presentation: Discovery of Advocate Emails and Records

I’m looking forward to presenting at the Coalition to Defend Special Education meeting about Discovery and Maintaining Client Records and Communications for Advocates and Attorneys.

The meeting will also include an Ask the Attorney session on special education topics – please send your questions to Leslie Lockhart in advance of the meeting.

Date: October 26, 2017

Location: The meeting will be held at the Institute for Human Centered Design, 200 Portland St, Boston 02114. For more information on the Institute and for directions and parking information, see their website, http://humancentereddesign.org/

Time: 10 am – 12 pm

RSVP: Leslie Lockhart

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Popular Post: Academic Progress Alone is not FAPE

[This post was first published on March 17, 2015. Since then, it has been shared on social media nearly 1,000 times] 

A recent Massachusetts Bureau of Special Education Appeals (BSEA) decision makes clear that an Individualized Education Program (IEP) that allows for academic progress is not enough. Even when an IEP is appropriate academically, if it does not provide appropriate services to address other areas of need, such as social and emotional needs, it is a denial of a Free and Appropriate Public Education (FAPE).

In Student v. Acton and Acton-Boxborough Public Schools – BSEA # 14-05736, hearing officer Rosa Figueroa, supported a family’s decision to unilaterally place their fourteen-year-old child, who has a diagnosis of autism, in a private school. According to the hearing officer, “the sufficiency of a student’s IEP is not measured solely by [ ] academic success … an IEP that provides FAPE must promote a student’s development in all areas of need.”

The student called everyone a friend but did not understand the elements of friendship (e.g., trust, having fun together, etc.). He had limited understanding of perspective taking and the nuance of social norms. After school, he preferred to play video games, watch television, or read by himself. The social isolation was taking an emotional toll.

The hearing officer gave significant weight to an independent evaluator’s testimony that Acton’s program was fragmented, and it “lacked the type of cohesiveness necessary for the natural development of relationships Student required.”

The parents and independent evaluators asked Acton repeatedly for a goal related to friendship, and for a program that could provide the student with appropriate peers. The hearing officer found that Acton failed to provide these and other necessary elements of an appropriate program.

On the other hand, the private placement (Learning Prep School), provided the student with like peers and direct social skills instruction throughout his school day. As a result, the student made significant social and emotional gains over a short period.

Despite a finding that “from an academic standpoint Acton provided Student a program that offered him a FAPE, and its proposed seventh-grade academic program would have also afforded Student a FAPE” the parents still prevailed. The hearing officer found that Acton’s program did not and would not allow for social and emotional progress. The hearing officer awarded the family tuition reimbursement and ordered Acton to continue to pay for the student’s placement at Learning Prep School.

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FAPE and the School Bus

The right to a Free Appropriate Public Education (FAPE) does not end at the school house doors.

Students who have disabilities have a right to transportation as a “related service” when it is necessary to benefit from special education. A school district is responsible for providing transportation to ensure a student receives all the special education services outlined in his or her Individualized Education Program (IEP).

In a recent Massachusetts Bureau of Special Education Appeals (BSEA) decision, a hearing officer made clear that the obligation of a school district to provide appropriate transportation should not be taken lightly.

In Vladimir & Acton-Boxborough Regional School District – BSEA # 15-03957, hearing officer Lindsay Byrne found that Acton-Boxborough had failed to act on numerous occasions, despite clear evidence that the transportation it was providing was problematic.

In the case, Acton-Boxborough was contracting with CASE Collaborative to provide transportation for a 16-year-old student to LABBB Collaborative. CASE refused to drive the student due to evolving safety concerns. On the bus, the student removed his clothing and struggled with reflux/vomiting.

In the decision, the hearing officer chastised the school district for its failure to act, “Acton-Boxborough did not reconvene the Team to discuss the new information it had received concerning Vladimir’s transportation requirements. Acton-Boxborough did not evaluate Vladimir or his transportation environment to determine whether developing a plan to address the behavioral concerns raised by CASE could avoid the diminishment of special education programming Vladimir was then experiencing. Acton-Boxborough did not address the Parent’s specific request to change the transportation plan set out in Vladimir’s 2014-2015 IEP from ‘regular’ to ‘special’. No explanation was offered for Acton-Boxborough’s inaction.”

The hearing officer decided that, “While reimbursing the Parent for some of the costs she incurred in taking up the school’s transportation responsibilities is a start, it does not meet Acton-Boxborough’s obligations to ensure seamless access to all of the special education services set out in Vladimir’s IEP.” The hearing officer also ordered that Acton-Boxborough complete a Functional Behavioral Assessment, update the student’s IEP to reflect that he needed special transportation, and convene the Team to develop a transportation plan.

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Academic Progress Alone is not FAPE

A recent Massachusetts Bureau of Special Education Appeals (BSEA) decision makes clear that an Individualized Education Program (IEP) that allows for academic progress is not enough. Even when an IEP is appropriate academically, if it does not provide appropriate services to address other areas of need, such as social and emotional needs, it is a denial of a Free and Appropriate Public Education (FAPE).

In Student v. Acton and Acton-Boxborough Public Schools – BSEA # 14-05736, hearing officer Rosa Figueroa, supported a family’s decision to unilaterally place their fourteen-year-old child, who has a diagnosis of autism, in a private school. According to the hearing officer, “the sufficiency of a student’s IEP is not measured solely by [ ] academic success … an IEP that provides FAPE must promote a student’s development in all areas of need.”

The student called everyone a friend but did not understand the elements of friendship (e.g., trust, having fun together, etc.). He had limited understanding of perspective taking and the nuance of social norms. After school, he preferred to play video games, watch television, or read by himself. The social isolation was taking an emotional toll.

The hearing officer gave significant weight to an independent evaluator’s testimony that Acton’s program was fragmented, and it “lacked the type of cohesiveness necessary for the natural development of relationships Student required.”

The parents and independent evaluators asked Acton repeatedly for a goal related to friendship, and for a program that could provide the student with appropriate peers. The hearing officer found that Acton failed to provide these and other necessary elements of an appropriate program.

On the other hand, the private placement (Learning Prep School), provided the student with like peers and direct social skills instruction throughout his school day. As a result, the student made significant social and emotional gains over a short period.

Despite a finding that “from an academic standpoint Acton provided Student a program that offered him a FAPE, and its proposed seventh-grade academic program would have also afforded Student a FAPE” the parents still prevailed. The hearing officer found that Acton’s program did not and would not allow for social and emotional progress. The hearing officer awarded the family tuition reimbursement and ordered Acton to continue to pay for the student’s placement at Learning Prep School.

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Independent Educational Evaluations: Use it or Lose it

In special education law, independent educational evaluations are important both to inform parents and school districts about the unique needs of a student. Parents can pay privately for an evaluation at any time, and share the results with the school district at a Team meeting.

Parents can choose whether to share an evaluation. Sometimes, for example, evaluations contain private information that might not be appropriate to share with a school district.

However, a Massachusetts Bureau of Special Education Appeals (BSEA) hearing officer recently found that when parents did not share an evaluation with a Team, they could not use that evaluation as evidence at hearing. The strongly worded opinion serves as a warning that parents should either use an evaluation at the Team level or lose it if the matter requires a BSEA hearing.

In Richmond Consolidated School District (“RCS”) – BSEA # 14-10881, the hearing officer decided that the school district’s IEP provided FAPE when the parents were unable to present sufficient evidence to the contrary. The parents could not rely on an independent evaluation that they had not previously shared with the Team.

Hearing officer Raymond Oliver wrote, “By not providing this report to Richmond, the TEAM process could not be fully implemented. By all accounts, the TEAM would have convened to review this report in the same manner it had convened to review other reports and information that was presented to them. To allow the parents to rely on the testimony and report of Ms. Imperatore and Ms. Odato-Staed to attempt to prove that the IEP was not reasonably calculated to provide a FAPE to Mark, would circumvent the TEAM process, violate the special education laws and prejudice the school district. I, therefore, have not given any weight to the testimony of Ms. Imperator or Odato-Staed or their respective report.” (emphasis supplied)

Read the full decision here