IEP Protections and Autism

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The Autism IEP Act, championed by Massachusetts Advocates for Children, took effect in July 2006, amending M.G.L c. 71B § 3. Fast approaching its 10-Year anniversary, the law provides critical protections for students on the Autism spectrum and has had a significant impact on how school districts meet the needs of students.

The law requires that an Individualized Education Program (“IEP”) Team consider and specifically address the full range of a student’s complex communication, social, behavioral, and academic needs resulting from Autism Spectrum Disorder (ASD) to help ensure the provision of appropriate supports and services.

Following the passage of The Autism IEP Act, the Massachusetts Department of Elementary and Secondary Education issued an Advisory to school districts instructing that “[i]mpairment in communication is one of the defining characteristics of ASD; therefore communication skill development should be addressed as an essential piece of the student’s IEP.” Further, “[p]rogress in social skill development is a likely focus within the IEP of every student with ASD.”

Massachusetts Bureau of Special Education Appeals (BSEA) hearing officers have highlighted the importance and power of the protections. In Re: Amherst-Pelham Regional School District – BSEA # 12-1264 provides a helpful roadmap and analysis of the law. In Amherst, the parents of a twenty-one-year-old man challenged the appropriateness of their school district’s program and sought a private residential school placement for their son. Applying the content of the Autism IEP Act to the facts of the case, the hearing officer found that the district had failed to address the student’s communication and social skill needs, as required, and, in turn, failed to provide a Free Appropriate Public Education (FAPE).

The hearing officer wrote, “Social skill development is also a central area of focus for Student, as it is generally for all students on the autism spectrum. As discussed above in the Legal Standards section, [The Autism IEP Act] requires Amherst to have an IEP for students on the autism spectrum to ‘specifically address the … the need to develop social interaction skills and proficiencies.’” Further, “..notwithstanding the critical importance of communication skills, as recognized for many years…Student has virtually no functional communication skills, with the result that he is not able to express his choices or preferences in a reliable manner with respect to the vast majority of routine decisions and life choices…”

Student v. Belmont Public Schools – BSEA # 13-05177, and In Re Uxbridge Public Schools – BSEA # 11-1115 discuss eligibility for students on the autism spectrum, following the passage of the Autism IEP Act. Importantly, in Belmont, the hearing officer highlighted that an IEP Team must consider and specifically address a student’s need resulting from autism, even if the school district disagrees with the diagnosis.

After quoting the entirety of the Autism IEP Act, the hearing officer wrote, “On cross examination it was clear that the Team did not discuss Student’s engagement in repetitive activities, stereotyped movements, resistance to environmental changes, and the impact of changes in daily routines, even though the Belmont service providers, evaluators and teachers testified as to observations of some form of manifestation of same, as discussed in the Facts section of this Decision… Belmont’s witnesses conceded that no meaningful discussion regarding the diagnosis of autism ensued because the Belmont Team did not see its manifestation.”

In Belmont, the hearing officer concluded: “the evidence is persuasive that Student has made progress, but said progress is not meaningful progress in his greatest areas of need: the social, emotional and behavioral realms.” Similarly, in Uxbridge, the hearing officer, relying on the language of the Autism IEP Act, concluded that the student had significant social and communication needs that could not be remediated within the context of a general education program.

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SEPAC Presentation: Acton-Boxborough

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Important Special Education Law Updates 

Presentation by Daniel S. Perlman for the Acton-Boxborough SEPAC

Presentation followed by questions and answers. Questions should please be submitted in advance to abspedpac@gmail.com. The SEPAC’s regular business meeting will follow this event. Food and refreshments will be served.

Date: Wednesday, November 18th

Location: R.J. Grey Junior High library (16 Charter Rd, Acton, MA 01720)

Time: 7:30 PM

More Information: http://abspedpac.org/

3 Steps to Understanding Stay-Put

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When used correctly, stay-put provides a powerful and important protection for families who have children with disabilities. In short, stay-put prevents unilateral action by a school district when parents object to a change in their child’s educational program or placement.

The protection ensures consistency in a student’s program during a dispute – which is critical for many students with disabilities.

For example, a student is placed at a private special education school placement pursuant to an IEP, and a school district proposes to transition the student back to the local public school. A parent can reject the proposal, and the school district will need to continue to fund the private school placement while the dispute is ongoing.

1) Where?  In Massachusetts, the right to stay-put can be found at 603 CMR 28.08 (7), “during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise.”

Under the IDEA, 20 U.S.C. § 1415(j), “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child…”

2) When? Parents can assert their stay-put right when a school district proposes to change a student’s placement, program (including extended school year services), or when a district finds that a student is longer eligible for special education services.

In Leominster Public Schools – BSEA # 12-7450, a hearing officer found that parents properly invoked their right to stay-put when a school district proposed to change a student’s summer program from a 165-hour program to a 108-hour program.

3) How? If a district is proposing something different than the program a student is currently receiving, the student’s parents can reject the proposed IEP in full or in part. Parents should also write a letter accompanying the IEP signature pages, explaining that they want the services or placement to remain the same, and are asserting their right to stay-put.

A district cannot change a student’s educational program or placement unless either: 1) the parents agree to the change; or 2) either the parents or the district files for a hearing at the BSEA, and a hearing officer orders a change. Note that in Massachusetts, parents can invoke their right to stay-put without filing for hearing, which might not be the case in other states.

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Why Emotional Progress Matters

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The U.S. Department of Education (“DOE”) recently reminded school districts about the importance of evaluating and providing special education services to students considered “twice exceptional.” This group includes individuals who have a disability and are also intellectually gifted. Of note, the DOE expressed concern about supporting students with emotional disabilities.

According to the DOE’s memorandum:

“In spite of the guidance provided in [a previous letter], we continue to receive letters from those who work with children with disabilities with high cognition, particularly those with emotional disturbance or mental illness, expressing concern that some local educational agencies (LEA) are hesitant to conduct initial evaluations to determine eligibility for special education and related services for children with high cognition.”

In its letter, the DOE sternly advises school districts to evaluate students suspected of having a disability, including emotional disabilities, regardless of cognitive strengths.

Anecdotally, over the last few years, I have seen a significant increase in referrals and calls from families who have experienced this “hesita[tion] to conduct initial evaluations” first-hand. Often school districts rely on academic achievement (e.g., passing grades, MCAS) as evidence that a student does not require initial evaluation or services, even when the student is falling apart in all other domains.

School districts wait to evaluate, services are delayed, and often a student’s unaddressed social and emotional needs become increasingly significant. I have seen school districts attempt to shift and avoid responsibility, insisting that emotional disabilities are not a school district’s responsibility – even when a student is struggling to attend classes and is socially isolated. Time and time again, I have seen these delays result in self-harm and hospitalizations. Sometimes these delays prevent a student from learning in a less restrictive setting, and result in the need for a residential placement.

Last week, I had the privilege of presenting to families at The Massachusetts Resiliency Center about their special education due process rights. The Resiliency Center is an organization that provides resources to survivors of the Boston Marathon bombing. I was struck by the stories I heard about students who are not receiving support in school despite significant emotional needs.

The mandate to evaluate and provide services to students who have emotional needs is clear, and the importance of doing so in a timely way is critical.

 

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SEPAC Presentation: Northborough

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Special Education Basic Rights and Practical Tips

Presentation by Daniel S. Perlman for the Northborough Southborough SEPAC

The workshop introduces participants to the federal and state special education laws, special education process, practical tips to navigate the process, and how to resolve disagreements with the school district.

Date: October 15, 2015

Location: Algonquin Regional High School Library – 79 Bartlett Street, Northborough, MA 01532

Time: 7-9 PM

More Information: http://www.nspac.org/

 

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FAPE and the School Bus

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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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Newton SEPAC Presentation – March 19, 2015

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Navigating the Special Education Process (Followed by Questions and Answers)

Presentation by Daniel S. Perlman for the Newton SEPAC

When:  Thursday, March 19th, 6:30-9:00 PM

Where:  Newton family private residence – If you would like to attend, please contact Julia Elhauge, who is graciously hosting this event. Julia can be reached by email at elhauge@verizon.net.

I’m looking forward to meeting with folks in Newton. Many thanks to Julia for organizing and hosting.

 

School Observations: A Parent’s Right

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Recently, a parent sent me an email asking whether a school district could significantly limit an observation of her son’s classroom. The school district was attempting to impose numerous restrictions.

An amendment to the special education law in 2008 solidified a parent’s right to observe, and an advisory from the Massachusetts Department of Elementary and Secondary Education (DESE) instructed school districts that they must follow the amendment. Legislators and the department have made clear that observations, whether by a parent or an independent evaluator, are critical in helping families and schools determine if a student is making effective progress. School districts can rarely limit or restrict observations.

Below I have provided the school district’s “requirements” and a brief analysis of whether its requests were reasonable and consistent with the law:

 

1) You must provide a detailed reason for the observation, and tell us specifically what you are seeking to gain by observing.

 

A school district cannot impose this restriction.

The 2008 amendment provides that “upon request from a parent” a school district must provide “timely access” for an observation. There is little room for interpretation. School districts cannot require parents to jump through additional hoops such as providing specific or detailed reasons for the observation. A parent can simply state that they are trying to determine whether their child is making progress.

 

2) All observations are limited to 20 minutes.

 

A school district cannot impose this restriction.

The 2008 amendment instructs that school districts must permit access to programs that is of “sufficient duration and extent” to determine whether a student is making progress. The DESE advisory states that the average observation runs from 1 to 4 hours and time should be decided on an individual basis. For one student, in a recent Massachusetts Bureau of Special Education Appeals (BSEA) decision, a hearing officer ruled that an observation could last a full, continuous school day (Mansfield Public Schools – BSEA #13-07030).

Similarly, in Weymouth Public Schools – BSEA # 09-1335, the Bureau of Special Education Appeals allowed a parent’s request to observe for 13 hours over four days. In the Weymouth ruling, the hearing officer relied on the DESE advisory and found that the school district’s 60-minute observation limit was unlawful, as duration and extent of observations should be determined on an individual basis.

 

3) You must sign a confidentiality agreement.

 

A school district can impose this restriction.

It is likely reasonable for a school district to require a confidentiality agreement. Special education law allows school districts to restrict observations in order to protect the confidential or personally identifiable information of other students.

While this does not mean that an observer cannot have access to the classroom, schools can take reasonable steps to protect information that a parent or an independent evaluator might observe about other students.

The law only allows school districts to limit observations in two other circumstances — to ensure the safety of students or the integrity of the program. A school district cannot claim that an observation will be “disruptive” without evidence as all observations will cause some level of disruption.

 

4) All observers must be accompanied by the special education director who is not available during the time of day you want to observe.

 

A school district cannot impose this restriction.

If an observation during a particular time of day is necessary to determine whether a student is making progress, school districts must accommodate the request. Arbitrarily assigning one staff person or administrator to accompany observers creates unreasonable restrictions on parents and independent evaluators. In the Mansfield ruling, hearing officer William Crane found the school district’s arguments about similar restrictions unpersuasive.

Independent Educational Evaluations: Use it or Lose it

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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