Leaving the District: Pack your IEP and take it with you!
Under federal law, your new school district must honor and implement a current IEP. This means that the new school district must put in place the same or comparable services that your child was given in the previous school district.
Do go on the school district website and familiarize yourself with its special education department and the services and information that it provides. Don't wait to ask for a meeting: the special education director should be around during the summer. Join the Special Education Parent Advisory Counsel; email the parent leaders and ask for some local "navigation" tips.
Each state has its own special education laws and regulations: those laws implement the federal laws, and can offer additional protections to children beyond those provided under federal law. However, the state cannot take away protections given under federal law. So, if you receive any push back from your new district, don't take it! If they say look at your child's IEP and say "we don't do that here," then they must offer you something substantially the same or equivalent. If the school district tells you that it will be "months" to get the IEP in place, don't accept that either: the law does not allow the school to wait to implement the services.
Unfortunately, it is not uncommon for the school districts to delay in sending records to the new school, even when requested. This may make it difficult for the new school to get up to speed quickly on your child's needs. It is smart to get a copy of your child's records before you move: you can give them to the new school yourself.
I want to tell you about the new decision from the Massachusetts Supreme Judicial Court: Champa v. Weston Public Schools, et. al. The case concerned whether settlement agreements between parents and school districts are confidential under federal and state law. In summary, the Court ruled that the agreements may be redacted to protect privacy concerns, but after that, the agreements must be made public.
The Court ruled that settlement agreements are not public records, but rather are "education records" under FERPA (the Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g (2012 & Supp. II 2014).
The Court further ruled that the agreements fall within a FERPA exemption which protects disclosure when it amounts to an "unwarranted invasion of personal privacy."
The Court concluded that the settlement agreements may be redacted to remove personally identifiable information; when that is done, the agreements are subject to disclosure under Massachusetts public records law. M.G.L. Ch. 66, section 10.
Personally identifiable information includes name, social security number, and birth date. The analysis of what is personally identifiable beyond that is to be done on a case-by-case basis. Consideration of the viewpoint of the public and those familiar with the student must be considered. The Court recognized that disclosure of information about the child's disability and the identity of the school placement "may result in embarrassment and potentially lead to stigma, bringing it within the school of the [FERPA] exemption."
Financial terms must be disclosed. As the Court held: "Notably, once personally identifiable information is redacted, the financial terms of such agreements, which necessarily reflect the use of public monies, partially or fully, to pay for out-of-district placements, do not constitute an unwarranted invasion of personal privacy; indeed, the public has a right to know the financial terms of these agreements."
The Court further ruled that "the fact that the school district and the family contractually agreed to keep the settlement private cannot, by itself, trump the public records law and the school district's obligation to comply with the law's requirements."
This decision is a positive one for families. While protecting the privacy rights of litigants, it recognizes the needs of others in the community to know the terms of the settlement agreements between the school district and their students.
Congratulations, you have advocated well for your child and have an IEP in place that you feel good about. The school year is about to start. What should you do next to help your child have a great year?
Here are a few steps you can take as school starts to maximize your child's opportunity to succeed in school:
1. Take another look at the IEP and make sure you remember all services and attention that your child is expected to receive.
2. If appropriate, discuss the services and accommodations with your child to make sure she (or he) knows how to advocate on her behalf for what she needs.
3. Make copies of the IEP for your child's key teachers! Many teachers only have access to a short blurb about your child's IEP, which is hidden away in online student records.
4. Write a short letter to your child's teachers (as soon as you know who they are). Let them know how much you appreciate what they do, and the special attention that they will give to each of their students, including your child. Keep it positive and personal. Let them know your child's strengths, as well as his needs. Include a photo if you can.
5. Take time to meet your child's key teachers early in the year. Bring an office supply store gift card, if you can. Gently but firmly let them know your expectations for the attention your child needs and deserves!
Many IEPs provide that students will receive supports such as verbal cues, preferential seating, repeated directions, teacher monitoring of agenda books and more. However, there are upwards of 24 other students in the classroom. Telling the teachers specifically what your child is entitled to under the IEP will go a long way to ensuring that he receives the attention he deserves.
As the year progresses, continue to stay in touch, through a quick email. In addition to raising concerns, be sure to let the teacher know when you have the opportunity to celebrate your child's achievements.
If you have serious concerns, remember you can always ask for the opportunity to come to the school to observe, or to have an advocate or clinician do that for you.
Marianne E. Brown Attorney at Law
Starting at age three, your child is "school aged" and ready to be considered for special education services. Prior to age three, your child may have qualified for early intervention services. If you are currently receiving early intervention services for your child, those services end at age three. Your district may attempt to end all support services at that time.
Massachusetts defines "disabled school aged children" as those between the ages of 3 and 21 who:
"if, because of a disability consisting of a developmental delay or any intellectual, sensory, neurological, emotional, communication, physical, specific learning or health impairment or combination thereof, is unable to progress effectively in regular education." M.G. L. Ch. 71B, §1.
If you believe your three year old may qualify for special education services, what can you do? You may ask your school district to perform an evaluation on your child. You may ask before your child's third birthday (while still receiving early intervention services).
Specifically, you may ask your school district to perform assessments, such as these: Speech/Language Assessment, Developmental Inventory Assessment, Occupational Therapy Assessment, and Physical Therapy Assessment.
Assessments will help to determine whether your child is qualified for special education, and if so, what course of action be taken. If your child qualifies, you and the school will develop an Individualized Education Program (IEP) for your child.
At any time, you may have your own evaluations done, especially if you know the nature of your child's disability and already have medical practitioners providing care for your child. They can make referrals for you.
You will be invited to a school meeting to discuss the results of the assessments with the team. If you don't agree with the recommendations of the school, you may ask that an independent evaluation be done at the school's expense.
You may also ask for mediation, a due process hearing, or you may file a complaint with the Board of Education. The process is the same, regardless of the age of your school-aged child, so you can read more about this on the page entitled "Snapshot of an IEP."
Please note that developmental delay is a disability qualifying your child for special education services. If your child was born prematurely, she may very well continue to have developmental delays as she grows to preschool age. There are many good books to read. One is A Parent's Guide to Developmental Delays: Recognizing & Coping with Missed Milestones in Speech, Movement, Learning and Other Areas by Laurie LeComer, M.Ed., (Berkeley 2006). It is available in public libraries, including the Robbins Library in Arlington, Massachusetts.
Upon completion of the IEP, children from three to five are given a "placement consent form" that differs from older students. Take a look at the consent form before you attend the team meeting. I have a link to the form on my website: www.marianne-brown.com
Special Education and Divorce in Massachusetts
17.4 percent of Massachusetts children receive services under the Individuals with Disabilities Education Act (IDEA)(as of 2011).
When divorce happens to a family with a special needs child, both the divorce and the special education are implicated. Family stress and household changes affect learning and performance for all children, but especially those with special needs. Couples must usually renegotiate the way they make decisions for their child, both for medical needs and educational needs.
The IDEA requires only one parent with legal custody to "sign off" on school decisions regarding special education: that is, only one parent need agree with the school's plan for placement and services. Under the IDEA, the first parent to sign or reject an IEP and return it to the school may have the say. Some times, the school has a relationship with the other parent and will opt to consider that parent's views as well. However, when the school receives one parent's signature, it is not required to inquire as to whether the parent has decision-making authority, or will be implementing supports for the student.
Most parents have joint legal custody, and thus have agreed to share education decisions for their children. Under the IDEA, both parents may receive progress reports, notice of team meetings and be members of the IEP process. However, even if the parents have joint legal custody, under the IDEA, only one parent signature is needed to implement the school's special education plan.
Where a special needs child is involved, the divorce decree may address this. It may identify one parent as the special education decision maker, or it may provide that the parents must make best efforts to agree to a joint decision, with a process to address disputes. In contentious circumstances, a concerned parent may notify the school in advance of his or her special education decision-making rights.
Variation from the base calculation for child support is often appropriate, where the child requires supports such as tutoring and educational aids. Support may continue beyond age 23 for some.
The child's special education needs must be re-evaluated every three years under the IDEA. The parents are entitled to seek a reevaluation every year. This may result in a change in the child's diagnosis, assessment and educational needs. This could result in placement at a school in another community, perhaps closer to the non-custodial parent. Expenses may increase also, and a modification of custody and support may be required.
Under the IDEA, children are entitled to receive special education services until the age of 23, when appropriate. When a severely disabled child reaches 18, it is time to consider legal guardianship to address ongoing decision-making powers for the child.
When a family experiencing divorce is also facing issues concerning special education services, it may be appropriate to retain an education lawyer such as myself to advocate for the student.
Chapter 222 of the Acts of 2012 went into effect on July 1, 2014. This new law will greatly change the way public school students are disciplined in Massachusetts. Disciplined students will have greater rights and more opportunities to learn while out of school due to discipline.
Beginning with this new school year, all Massachusetts school districts must put into place new requirements for school discipline that expand the due process rights of students and require schools to provide all expelled and suspended children with opportunities to continue making educational progress while out from school.
This means that all students who are absent from school due to discipline will have the right to make up all missed assignments, including homework, papers, projects and quizzes.
In addition, children suspended for more than ten days are allowed access to educational services. Such services can include tutoring, Saturday school and distance learning. In addition, for non-serious offenses, the new laws require schools to attempt alternative discipline before expulsion, including positive behavior supports.
This is a strong bill that supports the rights of all children to a free and appropriate public education.
© 2014 Marianne E. Brown, Education Lawyer in Arlington, MA. Follow me on Twitter @MarianneEBrown and find me on the web at www.marianne-brown.com
This is where I'll be sharing my thoughts on legal topics that matter to me and you.
If I catch your interest, let me hear from you.