The middle school years can be challenging for any child and
any family. Students are expected to be more independent,
adjust to different teachers for each different subject area and,
of course, navigate the maze of social cliques. However, these
years can present even more challenges for children with
disabilities and their families. We often hear from our clients
about the difficulties of moving from the more supportive
and nurturing world of elementary school to the more
academically competitive and socially challenging world of
middle school.
As children with disabilities approach these middle school
and early teenage years, an unfortunate reality is that disputes
between parents and school districts about special education
programming and placement are very common. These disputes
usually take shape in one of three ways. One scenario involves
parents wanting their child to remain either fully or partially
included in classes with peers without disabilities, while
the school district wants the child placed in a substantially
separate classroom in the local school or in an out-of-district
placement. The second situation essentially just flips the
positions of the parties; the parents feel an out-of-district
placement is necessary for their child, but the school refuses.
The third scenario involves parents encountering resistance
when seeking a residential placement for their child.
Regardless of the situation in which a family finds itself, in
order to increase their chances of success, parents should
have an understanding of the basic laws and principles that
apply to special education services. The Individuals with
Disabilities Education Act (IDEA) is the federal law that
protects the educational rights of children with disabilities.
Under IDEA and Massachusetts law, every child receiving
special education services is entitled to receive a “free and
appropriate education” (FAPE) and to be educated in the
“least restrictive environment” (LRE). The law does not
require the school to provide the best possible program for
the student, nor does it require the school to provide services
that will maximize the student’s educational potential.
Instead, the school must provide “meaningful access” to
public education that allows a student to make meaningful
and effective progress commensurate with his or her
educational potential.
The principle of LRE is that, to the maximum extent
appropriate, a child with a disability must be educated
with other students who do not have a disability. LRE is a
continuum, and the more separated the child with a disability
is from students without disabilities, the more restrictive
the setting is considered. In most situations, a residential
placement is considered one of the most restrictive options.
When either a school district or parents seek a more
restrictive placement, the party must show that the student
cannot make effective progress and receive FAPE in a less
restrictive setting.
The standard for determining the need for a residential
placement, as reflected in First Circuit case law and King
Philip, BSEA #12-0783, 18 MSER 20 (2012), is whether
the educational benefits to which a child is entitled can be
provided only “through around-the-clock special education
and related services, thus necessitating a placement in an
educational residential facility.” Furthermore,particularly
in situations in which a child has behavioral or emotional
issues that are difficult to manage at home, parents should
be prepared to show that their child cannot receive FAPE
in a day program even if home-based services and supports
or other “wraparound” services are provided. Practically
speaking, this often means that parents have to try in-home
services for a reasonable period of time before seeking a
residential placement.
With this legal framework as a backdrop, if parents are
not in agreement with the school about programming
and placement, it is important to remember that parents
have valuable input as members of the IEP team, but it is
crucial to have professional support for their position. We
cannot emphasize this point enough. Parents need to be
prepared to prove their case at a team meeting, at mediation
or at a hearing at the Bureau of Special Education Appeals
(BSEA), if it gets that far. Parents have the right to obtain
an independent evaluation if they are not satisfied with the
school’s evaluations and, in some circumstances, to have the
school district pay for that independent evaluation. However,
parents are almost always best served by retaining their own
independent expert. A well-credentialed independent expert
usually is essential to prevail in a dispute with the school over
programming and placement. Parents always can have their
child evaluated by whomever they wish at their own expense.
Health insurance may cover the cost of some evaluations.
When choosing an evaluator to serve as an expert if the
dispute is not resolved, parents should make sure the evaluator
has experience with their child’s particular disability and age
group. In addition, we always recommend that parents have
their expert observe any current or proposed program or
placement. The school must allow the parents’ expert to have a
reasonable opportunity for such observations. Finally, parents
should ensure that the evaluator is willing to testify at the
BSEA, if needed.
A final thought for parents as they wade through the
difficulties of middle school – begin thinking about the
future. By this, we mean begin thinking about transition
planning and the transition services that may be appropriate
for the child. Massachusetts law requires transition planning
to begin at age 14. Transition services must be coordinated,
results-oriented, and focused on improving academic
and functional achievement to facilitate the move from
school to post-school activities. All IEPs from age 14 on, in
accordance with IDEA, must include a post-school vision
and incorporate “appropriate measurable postsecondary
goals based upon ageappropriate transition assessments”
related to training, education, employment and, if
appropriate, independent living skills.
This material is intended to offer general information to clients and potential clients of the firm, which information is current to the best of our knowledge on the date indicated below. The information
is general and should not be treated as specific legal advice applicable to a particular situation. Fletcher Tilton PC assumes no responsibility for any individual’s reliance on the information
disseminated unless, of course, that reliance is as a result of the firm’s specific recommendation made to a client as part of our representation of the client. Please note that changes in the law occur and
that information contained herein may need to be reverified from time to time to ensure it is still current. This information was last updated Winter, 2013.
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