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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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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The Power of the Partial Rejection

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An Individualized Education Program (IEP) is a legal document that guides the delivery of special education services and supports for a student. After a school district proposes an IEP, parents, who are members of their child’s special education Team, have an opportunity to respond.

A family can accept, reject, or reject an IEP in part. Whenever a dispute exists, I almost always advise to reject an IEP in part (a partial rejection).

When a family fully accepts an IEP, they are telling the school district that they agree wholeheartedly with its proposal. A full acceptance signifies that there is no disagreement. The Massachusetts Bureau of Special Education Appeals (BSEA) has consistently held that it will not consider disputes over past IEPs that were accepted in full. Hearing officers have said, “without a showing of lack of notice of parental options and due process rights, lack of meaningful parental participation in the development of the IEP, or any other procedural impropriety, the BSEA does not revisit accepted expired IEPs.” (Sudbury Public Schools – BSEA # 05-4726 and 05-4827)

On the other hand, a partial rejection makes clear that a family does not agree with the program a school district is proposing. A partial rejection also preserves the right to later seek compensatory services — services to make-up for the inappropriate program.

A partial rejection does not necessarily mean that a family is refusing special education services. By partially rejecting an IEP, and including a cover letter or email, a family can clarify that they are allowing a school district to implement its proposed program, but are rejecting the program to the extent that their child needs services beyond those proposed to make effective progress. This process informs a school district that there is a disagreement, but it should still provide services.

If parents have already accepted an IEP and have concerns about whether it is appropriate, they can revoke their acceptance at any time, and partially reject instead, by sending a letter or email to a school district.

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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

10 Red Flags in Special Education School Records

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The best way for parents to determine whether their child is making effective progress is to rely on independent evaluators. In addition, there are red flags to look for within a student’s school records, including those found in Individualized Education Programs (IEP) and progress reports.

Below are ten examples of red flags that might indicate that a student is not making effective academic, social, and emotional progress.

  1. Goals and short-term objectives that repeat year after year.
  2. Goals and short-term objective that change without an indication that the student met the previous years’ goals.
  3. Goals and short-term objective that are not measurable. Note that in November, 2013, a law was passed that requires school districts to continue the current practice of including measurable short-term objectives and benchmarks in the IEPs of all students with disabilities. The Massachusetts special education law (Chapter 71B) was amended to include: “A child’s individualized education program, or IEP, as defined is 20 USC sec 1401 (14) shall include a statement of measurable annual goals, including academic and functional goals, and a description of benchmarks or short-term objectives.”
  4. Lack of measurable post-secondary goals (transition goals) based on a transition assessment for students 14 and older.
  5. Progress Reports that use amorphous/vague language.
  6. Progress Reports that specifically state that goals or short-term objectives are not met.
  7. Drastic changes in services year after year.
  8. Reduction of services with a change in school.
  9. Failing grades or MCAS scores.
  10. Language in evaluations or IEPs related to the student’s lack of consistency, including “varying progress,” “day to day,” “sometimes,” “with varying degrees of prompts,” “depending on mood/behavior,” etc.