Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2024 by Daniel T.S. Heffernan and Alicia M.P. Warren

June 04, 2025

INTRODUCTION             The BSEA had another busy quarter, closing out the calendar year with the issuance of six decisions and twenty rulings.  In three of those decisions, the parents were represented at hearing by their respective educational advocates – an infrequent but not unusual circumstance.  Four of the decisions this quarter, Arlington, Boston, Norwood, and Northborough and Southborough, are discussed within.  The Norwood decision is a continuation of a case on which we provided commentary last quarter; this time, however, the decision was not favorable for the family.  The Arlington decision, which is also a continuation of a case on which we provided commentary last quarter, arises within the context of parents’ claims relating to their student’s placement at an unapproved school.  Having already had their claims for prospective placement at the Carroll School dismissed last quarter, the parents suffered another blow when they lost their claims for retroactive relief this quarter.  Relatedly, the BSEA issued a ruling in another strikingly similar case this quarter, Arlington Public Schools and P.J., ultimately dismissing the parents’ claims for prospective placement and funding at the Carroll School.  Tune into our third quarter 2024 commentary for our full observations on this apparently trending issue.   The remaining rulings this quarter, true to form, considered a wide array of topics, including motions for expedited and accelerated status, the recusal of hearing officers and attorneys, directed verdicts, and the expected discovery-related disputes.  One ruling, Beverly and Seven Hills – Crotched Mountain, is another in a now long line of cases involving the invocation of a student’s stay-put rights when faced with termination from a private school.  Consistent with prior rulings and decisions, the hearing officer ordered the student’s immediate readmittance to Seven Hills, during the pendency of the action.   FISCAL YEAR 2024 BSEA STATISTICS  Before commenting on this quarter’s decisions, we offer an overview of the BSEA statistics for Fiscal Year 2024.   There was a significant jump in rejected IEPs, far exceeding even pre-Covid-19 levels:   Rejected IEPs:   FY 24  -  14,326 FY 23 –  12,560 FY 22 –  11,830 FY 21 –  11,331 FY 20 –  9,442 FY 19 – 11,979 FY 18 – 11,900   The number of hearing requests stabilized over the last few pre-Covid-19 years at around 500, but FY 20 saw a precipitous drop in the number of hearing requests with a further decrease in FY 21. Since then, there has been a steady increase in the number of hearing request, but still well below pre-pandemic levels.   FY 24 -  417 FY 23 – 391 FY22 –  381 FY 21 – 320 FY 20 – 379 FY 19 – 483 FY 18 – 481   Matters going through full hearings resulting in written decisions were consistently around 50 per year until they declined significantly after FY 13.  FY 23 yielded the lowest number of full hearings to date (12) since the early days of the BSEA. That number remained consistent for FY 24. This was attributable to two factors. First, and most significantly, was the number of matters going to settlement conferences and the effectiveness of BSEA Director Reece Erlichman in getting those matters resolved.  Second, was the use of pre-trial motions to resolve matters completely or position them for resolution. Settlement conferences were held in 42 of the cases that were filed for hearing in FY 24, of which 37 were resolved the day of the settlement conference. Although the number of hearing requests filed in FY 24 was higher than FY 23, the number of matters going to full hearings with written decisions was the same: FY 24 - 12 FY 23 - 12 FY 22 - 14 FY 21 - 24 FY 20 - 19 FY 19 - 19 FY 18 - 13   Of the 12 decisions noted above, Parents fully prevailed in only 1.  Parents had counsel in that one, as did the district. The School Districts fully prevailed in 9. Parents had counsel in none, were represented by an advocate in 2 and were pro se in 7.  The district was represented in all 9.  In the 1 case of mixed relief, parents were pro se and the school district was represented by counsel.  One matter involved and LEA assignment.   The BSEA received 310 requests for facilitated Team meetings, a slight increase from the 298 in FY 23.  Of those 310 requests, the BSEA conducted 138 facilitated IEP Team meetings, a decrease from the 204 conducted during the previous year. Note that 40 requests were declined by parents and 22 were declined by school districts, and 110 requests for facilitated IEP Team meetings had to be declined by the BSEA this year owing to staff unavailability   BSEA mediators conducted 703 mediations in FY 24, a slight decrease from the 715 mediations in FY 23. There were 1,275 requests for mediations, further proof that more resources need to be devoted to the BSEA.  The agreement rate was 81%.    Parents Lose Case for TUITION Reimbursement, Following Prior Dismissal of their Prospective Claims  Arlington Public Schools, BSEA No. 2503543, 30 MSER 453 (Nir, Dec. 16, 2024) concerned a fourth-grade student’s receipt of a free appropriate public education (“FAPE”), under various procedural and substantive theories.  The heart of the matter, however, considered whether the student’s individualized education program (“IEPs”), calling for a full inclusion placement within Arlington, was appropriate, and, if not, whether the parents were therefore entitled to some measure of retroactive relief.   Months prior, and as discussed in our third quarter 2024 commentary, Arlington was successful in obtaining a dismissal (with prejudice) of the parents’ claims for prospective relief, namely, an order for or funding relative to the student’s ongoing placement at the Carroll School, an unapproved private school specializing in educating students with language-based learning disabilities.  Arlington Public Schools, BSEA No. 2503543, 30 MSER 310 (Nir, Sep. 30, 2024).  Thus, this hearing considered only the parents’ claims for retroactive relief—reimbursement for all costs associated with the student’s placement at the Carroll School.   The student, who had diagnoses of Dyslexia and Type One Diabetes (T1D), attended elementary school in Arlington through her third-grade school year.  When the student was in second grade, she was found eligible for special education, on the basis of her reading disability.  She began receiving at least some reading services that spring, following the parents’ rejection of the initial menu of proposed services due to their alleged inadequacy.  The parents also questioned why the student appeared to be receiving services that were either the same or similar to those that she had been receiving pursuant to response to intervention (“RTI”), among the same cohort of students, which still included general education students.  By the end of the school year, however, the student’s IEP Team reported on her significant progress, based on various benchmarks and work samples.  That summer, the student received her T1D diagnosis, and did not participate in extended school year programming, for which she was eligible.   Prior to the start of the student’s third-grade year, Arlington developed a Section 504 Plan, separate from her IEP, in consultation with the family and Boston Children’s Hospital, to accommodate the student’s T1D.  In response to a few instances early in the school year during which the parents had to intervene to address the student’s dangerous blood sugar drops, Arlington provided additional nursing support.  Nevertheless, the parents remained concerned about Arlington’s handling of the student’s T1D, along with the student’s concerns about “dying at school.”   Throughout the student’s third-grade year, her IEP Team reconvened, proposing to increase the student’s services, add a written expression goal, and amend her reading goal.  The parents continued to express concern about the appropriateness of the student’s program, questioning how the proposed inclusion-based services differed from the general education services the student had previously received and opining that the did not believe that her goals were well-matched to third-grade curricula.  While Arlington periodically reported on the student’s significant growth, based on various data-collection measures, the parents did not have any independent expert review of the student’s progress to counter the Team’s reports.  It was not until the tail end of the school year that the parents sought an independent observation of the student’s program and obtained an oral and written language evaluation.  Since these reports were never shared with Arlington at any point, and because neither expert testified at trial, the record lacks detail as to what these reports found and concluded, beyond an apparent recommendation that the student needed a language-based program.  The parents informed Arlington that they would be placing the student at the Carroll School, at which point the Team reconvened, proposed additional evaluations, and, after the next school year had already commenced, again increased the student’s services.   The parents advanced a number of legal theories to support their claims, including, but not limited to, Arlington’s alleged failures to: (1) implement the student’s Section 504 Plan; (2) and to propose IEPs that would enable her to receive a FAPE.  The hearing officer readily disposed of all of them.   First, concerning the parents’ FAPE claim under Section 504, even though the hearing officer credited the parent’s testimony and evidence relative to Arlington’s handling of the student’s T1D, she nevertheless found in favor of Arlington.  Under Section 504, a FAPE denial must be “so significant that it effectively denies the child the benefit of a public education.”  The inconsistent application of a Section 504 Plan, therefore, is not tantamount to a FAPE denial.  Here, despite the mother’s compelling testimony regarding her concerns and certain of the plan’s glitches, the hearing officer determined that the student continued to participate and make progress in her academic and social endeavors.   Second, concerning the parents’ FAPE claim under IDEA, the hearing officer analyzed the IEP in place at the time to determine whether the unilateral Carroll School placement was reasonably calculated to enable her to make progress in light of her circumstances.  The hearing officer was unmoved by the parents’ arguments that the student continued to receive RTI-related instruction with general education students, even after she had been found eligible.  The parents proffered no evidence that the use of such strategies, or the student’s peer grouping, were inconsistent with the student’s IEP.  Instead, the hearing officer credited the student’s service providers, who, through uncontroverted expert testimony, addressed the student’s progress on her IEP goals, as well as objective, district-wide assessment tools and MCAS.  Thus, the hearing officer found in favor of Arlington, denying the parents all retroactive relief.   This case serves to remind parents and their advocates/practitioners that neither Section 504 nor the IDEA require perfection.  Indeed, the hearing officer explained that the parents’ concern for the student’s “development, safety, and progress led her to blur the line between what would be best for student and what was required for FAPE or meaningful educational progress.”  Further, the parents were hard-pressed to meet their evidentiary burden without any expert support for their arguments.  An acrimonious working relationship between the parents and the district does not excuse the parents from sharing relevant information with the Team.  As was the case here, the parents were prohibited from relying on that information in their attempt to later prove their claims.   PARENTS SUCCEED IN OBTAINING STAY-PUT ORDER REQUIRING DISTRICT TO PROVIDE 24/7 SERVICES WITHIN FAMILY HOME   In In Re: Northborough and Southborough Public Schools, BSEA No. 2504230, 30 MSER 431 (Berman, Nov. 29, 2024), an accelerated decision based on the parties’ written submissions, the hearing officer ordered the district to drastically increase its programming to the student, under the doctrine of stay-put.  There, the nineteen-year-old student with significant disabilities, including Autism Spectrum Disorder, Obsessive Compulsive Disorder, and Intellectual Disability, required around-the-clock support in all facets of his life, such as toileting, bathing, safety, social skills, and emotional regulation.  For over six years, the student attended the New England Center for Children (“NECC”) via IEP, providing for his residential placement within the program.  In July 2024, however, NECC terminated his placement, fearing that it was unable to keep him safe.  Neither the parents nor district challenged the termination.  Without another option, the student returned home.   The student’s operative and last agreed-upon IEP, otherwise referred to as his “stay-put IEP,” provided for “24 hours/day (including awake overnight staff) and 7 days/week coverage” and emphasized that “these supports are critical in maintaining [the student’s] safety and ensuring [his] progress.”  Upon the student’s termination from NECC, and pending its search for a new residential placement for the student which spanned more than thirty programs across seventeen states, the district agreed to provide up to fifteen hours per day of home services.  The district also agreed to take over case management, provide certain safety-care training, and increase specialist consultation services.  The parents requested that the district instead rent an apartment for the student and provide twenty-four – not fifteen – hours per day of services, until it could secure him new residential placement.  Litigation ensued.   As a foundational matter, the doctrine of stay-put affords students the right to remain in their “then-current educational placement” during the pendency of a dispute.  Determining what constitutes a student’s “then-current educational placement,” however, is typically far from self-evident.  In cases such as this one, when the stay-put placement becomes unavailable, the BSEA has interpreted the stay-put doctrine “to require school districts to provide a comparable program.”  Determining what constitutes a “comparable program” requires a fact-specific inquiry that considers a range of factors, but generally is one “which matches as closely as possible the setting, the type, and level of service delivery, the degree of mainstream contact, the methodology and teaching approach, the staff-student ratio, the instructional and therapeutic expertise, and the duration of direct and incidental teaching.”   While stay-put analyses are often complicated, we applaud the hearing officer’s ready determination that in this student’s circumstances, comparability required, at a minimum, 24/7 coverage, including awake overnight staffing.  Thus, the district was ordered to increase stay-put programming from fifteen to twenty-four home service hours per day.  The hearing officer declined to order that the district create a program that includes a rental housing arrangement right now but forecasted that it “may not be out of the question at some point in the future.”  Thus, districts should take caution that even their honest, dedicated efforts to secure another placement for a student does not absolve them of the need to provide creative and perhaps expensive stay-put programming in the interim.   THE DISTRICT CONDUCTS AN ADEQUATE MANIFESTATION DETERMINATION REVIEW   Norwood Public Schools, BSEA #2503348, 30 MSER 337 (Nir, Oct. 8, 2024) is a follow up to Norwood Public Schools and Helena, BSEA # 2501731, 30 MSER 256 (Reichbach, August 29, 2024) (commented in full in our 3rd Quarter 2024 Commentary).  That decision demonstrated how extensive the “child find” obligations of a school district are and how they constrain a district’s ability to discipline to a student not yet on an IEP or 504.   On May 29, 2024, Helena was involved in a fight with a peer at school, during which a staff member had her leg broken in two places while trying to break up the fight.  The superintendent reduced Helena’s permanent expulsion for assault to a suspension lasting from May 31, 2024 through the end of Term 1 of the 2024-2025 school year in November 2024. In the earlier ruling, the hearing officer found that the “totality of the circumstances” deemed Norwood to have knowledge that Helena was a child with a disability which obligated Norwood to conduct a manifestation determination before excluding Helena from school for more than ten days. The hearing officer rejected the parent’s request that she conduct the manifestation determination review, instead ordering Norwood to conduct one within five days of the decision. The hearing officer also rejected Norwood’s assertion that it was empowered to remove Helena on an emergency basis pursuant to MGL c. 71 §37H ¾ whereby an assault of a student may result in suspension of up to 90 school days, whereas assault on school staff pursuant to MGL c. 71 §37H may result in long-term suspension or expulsion from school. While the staff member broke her leg in two places while trying to break up the fight, the hearing officer held that while this terrible injury was as a result of the fight, Helena had not “inflicted” it upon the faculty member.  Rather it was incidental to the fight, tantamount to an unintended consequence.  In addition, Helena’s suspension could not have been extended beyond a current school year pursuant to 603 CMR §53.02, “[n]o long term suspension shall extend beyond the end of the school year in which such suspension is imposed.”  There is no exception for matters under MGL c. 71 §37H or MGL c. 71 §37H ¾.  The hearing officer ordered Norwood to return Helena to school immediately and develop a plan to compensate for school days she improperly missed.  In addition, Norwood had to expedite her special education evaluation but would only be obligated to provide services if she were found to be eligible under IDEA or Section 504.   Consistent with the earlier BSEA ruling, on September 6, 2024, Norwood conducted a manifestation determination review meeting (“MDR”) about the May 29, 2024 fight.  Present at the MDR were the parent, school counselor, special education department head, special education teacher, director of special education, attorney for Norwood, assistant director of special education, attorney for the parent, and Helena’s primary care physician. None of Helena’s teachers from the previous year, nor Dr. Weieneth, a private psychologist, Helena or any witnesses to the incident attended the MDR. At the MDR, the Team reviewed the August 2024 Decision, Helena’s disciplinary record, which reflected no prior infractions, “a little” of the student’s academic record, the videos of the incident, as well as a supportive letter and reports by some of Helena’s care providers. The Team discussed the fact that Helena had not taken her medication on the morning of the incident, as well as the manifestations of ADHD Predominately Inattentive Type. The student’s school file contained no information relative to Student having any history of trauma.  The MDR lasted ninety minutes, which according to school staff, was one of the longest MDRs they had ever attended.   Much of the student-side evidence at the MDR centered on the fact that Helena did not take her ADHD medication the morning of the incident and how that, coupled with her past trauma history, was the cause of Helena’s behavior. The MDR Team concluded that the conduct subject to discipline was not a manifestation of Helena’s disability.  The hearing officer concluded that Helena had a full and fair opportunity to make her case at the MDR.   Dr. Weieneth evaluated Helena after the MDR and testified at the BSEA hearing.  In her opinion, Helena’s ADHD, particularly given her trauma history, inhibited Helena’s behavior throughout the entirety of the incident on May 29, 2024 until she was able to calm down. Her conduct on May 29, 2024 was an impulsive reaction resulting from her ADHD. According to Dr. Weieneth, Helena was experiencing significant stress in ninth grade, and responded impulsively due to a “major provocation.” The “provocation” was a peer coming up to Helena’s table and saying something that Helena found provocative. Her rising from the table and following the peer were all part of one impulsive action according to Dr. Weieneth. In other words, Helen’s ADHD “led to an impulsive decision” that then “brought her down this path” where she could not inhibit her response, or to stop and think. That she did not have such behaviors in the past did not negate the relationship between her ADHD and the conduct. Rather, Dr. Weineneth opined that Helena suffered a “total frontal lobe shutdown” and the incident was the result of a “buildup of stressors and a severe provocation.” Even when told to stop by staff, Helena continued to be in fight or flight mode, and she could not calm down until she felt safe. That Helena was un-medicated on the day of the incident made her vulnerabilities even more pronounced.   The hearing officer failed to overturn the MDR Team’s decision.  Concerning the composition of the MDR Team, the hearing officer cited 34 CFR 300.530(e), which provides that the MDR must be conducted by the district, the parent, and relevant members of the IEP team, as determined by the parent and the district. In determining who the “relevant members of the IEP team” are, at least two BSEA Hearing Officers have found that the MDR Team should comprise individuals who possess “personal knowledge” or “first-hand information” of the student.  Here, only one member of the MDR Team here had personal knowledge of Helena  However, the parent, who along with her attorney had significant input into the MDR and exercised her right to have other people present at the MDR, did not seek to invite additional people, such as Helena’s teachers from her previous year, to the MDR.  Also, while attendance of a general education teacher at an IEP Team meeting is mandatory, there is no specific attendance mandates beyond “relevant members of the IEP Team” for an MDR.  In addition, since the conduct did not occur in the classroom, any insufficiency in the composition of the MDR Team would be harmless error since there was no evidence that others would have provided information that would have changed the decision of the MDR Team.   Concerning the basis of their decision, the hearing officer found that the MDR Team considered the parent’s expert opinions, Helena’s disability and past history.  The opinion of Dr. Weieneth could not have been considered since it was rendered after the MDR.  The hearing officer was convinced that the MDR Team complied with its obligation to review all available relevant information that was available at the time.  In reviewing the determination, the hearing officer placed no weight on the opinion of Dr. Weieneth, since it was not available to the Team.  Based on the information available to the MDR Team, the hearing officer found that it properly concluded that Helena’s disability of ADHD Predominantly Inattentive Type, even as it was compounded by past trauma, did not “cause or ha[ve] a direct and substantial relationship” to her disability.  The “global” view that ADHD Inattentive Type may impact impulse control and inhibition is inadequate as there must have been established a specific link to this specific student and the specific May 29. 2024 incident.  There was no evidence that Helena’s past conduct showed similar manifestations and indeed when she was angry and dysregulated in the past she would bite her own arm, not aggress against others. Regarding the fact that Helena did not take Concerta the morning of the incident, her dose was sub-therapeutic and her behavior when taking it would not have been significantly different.  The ten second or so delay between the provocation and Helena’s aggression also undercut the notion of an impulsive action. The conclusion of the MDR Team that Helena’s conduct was not a manifestation of her disability was proper. However, as was held in the earlier hearing, the suspension imposed during the 2023-2024 school year could not extend into the 2024-2025 school year and Helena was still ordered to be returned to school immediately.     THE DISTRICT’S TRANSITION SERVICES PROVIDED A FAPE BUT THE DISTRICT VIOLATED THE STUDENT’S STAY-PUT RIGHTS INVOKED BY REFUSING HIS DIPLOMA  Boston Public Schools, BSEA #2403492, 30 MSER 314 (Figueroa, October 5, 2024) involved the claim that Boston (BPS) did not provide a FAPE and appropriate transition services for the student and therefore he could not be graduated, and, further, that BPS violated the student’s stay-put rights after challenging the graduation date.   The student was twenty-one years old and carried diagnoses of ASD and ADHD which significantly impacted his social interactions and verbal and non-verbal communication. In seventh and ninth grades, he tested into Boston’s exam schools.  By June 2021, the student had passed all the requisite MCAS exams. He participated in various transition service opportunities during the 2021-2022 school year. The Team determined that the student was ready to graduate in June 2022. The parent rejected that proposed graduation date alleging that he was not provided a FAPE during the 2022-2023 school year.   The hearing officer determined that there was no dispute that the student had met local graduation requirements by June 2021 by completing all required coursework and passing the MCAS.   Regarding whether the student had received a FAPE, the hearing officer detailed the extensive array of transition services provided to the student and, therefore, held that BPS had provided a FAPE. During the period between January of 2021 and April of 2023, Boston convened numerous Team meetings to address newly acquired information regarding the student’s progress and interests. The transition evaluations considered during the Team meetings in November of 2022 and April of 2023 resulted in the proposal of IEPs that were aligned with the recommendations of the evaluators and with the student’s vision statement that he wanted to graduate from high school, attend college, and have a career in animation/IT. Boston also made timely 688 referrals to the Massachusetts Rehabilitation Transition Pathway and sought the participation of a DDS caseworker (Student’s agency for adult services) during Team meetings. The student was found eligible to receive DDS services in 2022 and funds had been allocated for him to receive such services when he graduated from high school.  BPS coordinated and offered the student participation in multiple activities involving career exploration, college campus navigation, job readiness, job coaching, task completion, appropriate workplace communication, work stamina, development of soft skills, behavior management, self-advocacy, hygiene, and finances.   The IEP and Transition Plan offered Student a dual enrollment program through which he would attend Boston Community Leadership Academy; take two classes per semester at Bunker Hill Community College; and participate in a range of transition services and experiences. The hearing officer found the evidence convincing that as of June 2023, in addition to having passed all of his MCAS assessments and high school graduation courses two years prior, the student was ready to transition into adult living, including pursuing his goal of attending college. None of this would have been achievable had the program, placements, internships, and opportunities offered by Boston not been appropriate.   Concerning the issue of procedural violations and compensatory services, those relating to the purported failure of BPS to conduct evaluations and consider assessments were not found actionable since by the time BPS actually attempted to graduate Student in 2023, it had offered him extensive services to address his areas of deficits, taking into account the student’s vision. In addition, it had conducted an in-district transition assessment, and funded an independent transition assessment. While the parent was correct that Boston should have conducted the student’s transition assessments in December of 2021 as opposed to the late summer of 2022, this delay did not deprive the student of a FAPE as he continued to receive appropriate services uniquely designed to help him transition into adult life.  It was simply a case of “no harm, no foul.”  As always, in assessing the viability of a claim based upon a district’s delays or procedural violations, it is essential to take the measure of what damage, if any, has been visited upon the student as a result.   Regarding stay-put, it is well-established that graduation constitutes a change in placement for IDEA eligible students. As a result, this change of placement is subject to procedural protections and written notice. 34 CFR §300.102(a)(3)(iii) and (iv). The proposed graduation date must be reflected in the IEP to satisfy the prior notice requirement of the regulations. 34 CFR §300.102(a)(3)(iii). Here, the IEPs covering the periods from January 20, 2022 to January 20, 2023 and the IEP for the period from April 24, 2023 to June 23, 2023 listed the student’s graduation as January 2023 and later June 2023. The parent rejected the IEP in May of 2023, after receiving the IEP proposing to graduate Student in June of 2023, alleging that Boston had failed to offer the student a FAPE. The parent also requested that Boston fund the North Shore Educational Consortium program at Salem State University (“SOAR”) program for the student. While stay-put was properly invoked, when the student went to BPS on the first day of school for the 2023- 2024 school year, he was turned away. Pursuant to settled law as well as DESE’s Administrative Advisory SPED 2018-2, Secondary Transition Services and Graduation with a High School Diploma, BPS was obligated to offer Student dual enrollment services consistent with the student’s prior IEP and Transition Plan. Unlike the other procedural violation, this one was substantial and had to be addressed. BPS was ordered to refund the parent for her out-of-pocket expenses associated with the student’s courses at Bunker Hill Community College during the 2023-2024 school year and transportation.  However, there was no basis for funding SOAR.   A NOTE OF GRATITUDE ABOUT STEVE LILLY-WEBER   On behalf of our community, we express our deep gratitude for the work of Steve Lilly-Weber, who retired at the end of 2024.  For two decades, Steve served as a mediator with the BSEA. Over that time period, he was invaluable in assisting thousands of families resolve disputes with their school districts.  Steve’s manner was always gentle but forceful and highly effective.  He was dedicated to his craft, and without exception demonstrated his integrity and neutrality.  His colleagues have noted how supportive of, and generous toward them that he always was.  Thank you, Steve.  We are all sad to see you retire but are so very grateful for all you have done.

Medical Expense Deductions for Special Education

October 15, 2018

Confused About Medical Expense Deductions for Special Education Costs? Not Surprising!

For the tax lawyer in a firm best known for representing parents of special needs students, there have been many opportunities to respond to the question whether the costs of providing special education services for a dependent child are deductible as medical expenses, and there have been a surprising number of opportunities to debate the question with recalcitrant tax return preparers. The problem may stem from a paucity of guidance on the subject, or more likely on the lack of clarity introduced by the applicable Treasury Regulations. The basic rule, of course, appears in Section 213 of the Internal Revenue Code of 1986 (“Code”), which provides for a deduction for unreimbursed expenses paid (over a floor of 10% of Adjusted Gross Income for 2019 and years thereafter) for the “medical care” of the taxpayer or his/her spouse or dependent.¹ Medical care is defined, in pertinent part, as “amounts paid (A) for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body, [and] (B) for transportation primarily for and essential to [such] medical care…”² This does little to answer the ultimate question, so the next step is to look at the Regulations, and specifically at Reg. §1.213-1(e)(1)(v)(a), which purports to define “medical care” in the context of care in a non-hospital institution, as follows: “Where an individual is in an institution because his condition is such that the availability of medical care (as defined in subdivisions (i) and (ii) of this subparagraph) in such institution is a principal reason for his presence there, and meals and lodging are furnished as a necessary incident to such care, the entire cost of medical care and meals and lodging at the institution, which are furnished while the individual requires continual medical care, shall constitute an expense for medical care. For example, medical care includes the entire cost of institutional care for a person who is mentally ill and unsafe when left alone. While ordinary education is not medical care, the cost of medical care includes the cost of attending a special school for a mentally or physically handicapped individual, if his condition is such that the resources of the institution for alleviating such mental or physical handicap are a principal reason for his presence there. In such a case, the cost of attending such a special school will include the cost of meals and lodging, if supplied, and the cost of ordinary education furnished which is incidental to the special services furnished by the school. Thus, the cost of medical care includes the cost of attending a special school designed to compensate for or overcome a physical handicap, in order to qualify the individual for future normal education or for normal living, such as a school for the teaching of braille or lip reading. Similarly, the cost of care and supervision, or of treatment and training, of a mentally retarded or physically handicapped individual at an institution is within the meaning of the term medical care.” (emphasis added) On the one hand, the highlighted sentences appear to provide support for the proposition that the cost of tuition, fees, room and board and transportation for attendance at a “special education” school qualify as expenses for medical care. On the other hand, the caveat that “ordinary education is not medical care” and the examples that are provided to illustrate the type of institution that qualifies as a “special school”, i.e., “a school for the teaching of braille or lip reading” have given some taxpayers and their tax return preparers pause. The Regulation goes on to make reference to Code Section 262 and the Regulations thereunder “for disallowance of deduction for personal, living, and family expenses not falling within the definition of medical care”.³ At this point a position of doubt and insecurity may well seem justified. However, as early as 1978 the Internal Revenue Service (“Service”) cast considerable gloss on the matter in the form of Revenue Ruling 78-340.⁴ This Ruling considered the case of a child with “severe learning disabilities”, including “congenital impairment in the areas of visual memory and visual matching”, whose disabilities had been determined by “competent medical authorities” to be caused by “a neurological disorder”. The Service determined that amounts paid for tuition at a “special school” having a “program designed to educate children with severe learning disabilities so that they can return to a regular school within a few years” qualified as expenses for medical care under Code Section 213. These facts constitute a fairly typical scenario involving attendance at a “special education” school. The Service has been consistent in its application of the rules developed in Revenue Ruling 78-340. In a series of Private Letter Rulings spanning the years 1978 to 2007⁵ , the Service has determined that expenses of special education constitute deductible expenses in instances in which the fact pattern is similar to that in the Revenue Ruling, i.e., there is a diagnosis of a neurologically based learning disability or other handicap, leading to a recommendation of and attendance at an institution specially equipped to help the student overcome the handicap. In the few instances in which the Service has ruled against the taxpayer, the basis for the adverse ruling was factual. In each case the school program was found to be insufficiently “special” or insufficiently geared to enable the student to cope with a “medical” issue.⁶ Of course, Private Letter Rulings are not precedential, but they do provide an indication of the policies and predilections of the Service. The Tax Court, on the other hand, has somewhat muddied the waters with a series of decisions in favor of the government in the 1970’s and 1980’s⁷. Review of these decisions reveals that the adverse rulings resulted from reasoning similar to that in the adverse Private Letter Rulings cited above, i.e. a determination that the educational program, even if recommended by a physician or psychotherapist, was not “special” enough, as exemplified in the following selections: “We have recognized that because of the difficulty of distinguishing personal educational expenses of an emotionally disturbed child from payments for medical care a careful analysis should be made of the evidence not only to determine if the school the child attended is a “special school” but also to determine to what extent the services rendered to the child are educational and to what extent the services are medical care.”⁸ “This Court has rarely allowed a medical expense deduction for the full cost of a private school education. Although the individual attention, small class size, and strict discipline characteristic of good private schools often are beneficial to students suffering from mental or physical defects or illnesses, the cost of a basic education is still primarily a personal expense, and it does not become a medical expense merely because it is prescribed by a physician. If a private school provides no special services beyond the ordinary educations program offered as a part of its regular curriculum, then the cost of attending the school is not deductible, notwithstanding that attendance may help alleviate a student’s mental or physical defect or disease.”⁹ “We have construed the regulation to mean that a school is a special school only if the ordinary education it provides is incidental to medical care.”¹⁰ The facts are preeminent in the analysis, and in an early decision, on more favorable facts, the Tax Court did in fact rule in favor of the taxpayer, in a case involving a learning disability stemming not from neurological causes, but rather from an emotional disturbance.¹¹ The clear conclusion is that if the fact pattern is appropriate, taxpayers and their advisors should not be reluctant to claim a medical deduction for expenses of providing special education to a dependant, including tuition, fees, room and board, transportation and related medical and counseling services. A more challenging and perhaps more interesting question is whether legal fees expended by parents in their quest to obtain special education services from a city or town can be included in the foregoing compilation of deductible medical expenses. For many years there was no specific answer from the courts or the Service, but an analogy could be made to the Gerstacker decision¹², accepted by the Service in Revenue Ruling 71-281¹³. In that case the 6th Circuit Court of Appeals ruled that legal fees incurred in a guardianship proceeding were deductible as a medical expense as they were required in order to obtain necessary medical care for the ward, specifically commitment to a hospital for treatment of mental illness. By analogy, parents might argue that their legal battle with the municipality is a necessary avenue to obtain special education services, which in turn constitute medical care. This argument was finally rejected by the Tax Court in 1998 in Lenn v. Commissioner,¹⁴ in which the underlying legal dispute was over reimbursement for special education expenses paid by the parent. The Court distinguished the Gerstacker reasoning because the case against the town was not brought to “legitimate or authorize medical treatment” but was instead brought to determine who would pay for such services. This is a logical and cogent response to the attempt to extend the Gerstacker rationale, but it leaves open the question whether the same argument can be made in the case of destitute parents whose child cannot and will not receive needed services unless the city or town pays for them. This question will have to be left to another day.

1. Code Section 213(a).
2. Code Section 213(d)(1).
3. Reg. §1.213-1(e)(1)(vi).
4. 1978-2 CB 124.
5. See, e.g., PLR 7827020, PLR 7843032, PLR 8033096, PLR 8401024, PLR 8445032, PLR 8447014, PLR 200521003, PLR 200704001, and PLR 200729019.
6. See, e.g., PLR 8303037, and PLR 8616069.
7. See, e.g., Jack W. Reiff, TC Memo 1974-20, John A. Dreifus, TC Memo 1977-83, Alvin J. Sims, TC Memo 1979-499, Harry J. Vankirk, TC Memo 1980-572, Fay v. Commissioner, 76
8. TC 408 (1981), Bruce S. Walton, TC Memo 1982-648, Devora R. Shidler, TC Memo 1971-126, and Donald R. Pfeifer, TC Memo 1978-189.
9. Reiff, supra.
10. Sims, supra.
11. Vankirk, supra.
12. Greisdorf, Lawrence D. 54 TC 1684 (1970).
13. Gerstacker v. Commissioner, 414 F.2d 448 (6th Cir. 1969).
14. 1971-2CB 165.
15. TC Memo 1998-85.

College Bound

January 17, 2013

Jayme Finstein and Daniel T.S. Heffernan Perhaps there has been no greater sense of being “left behind” or “left out” for high school students with Down syndrome than when their peers become seemingly all consumed with college in junior year. For our children, college was something that few dared to dream about. However, the improvement in the education of children with disabilities has led to an expectation of a more meaningful and fulfilling post-high school life. More and more opportunities for students with Down syndrome to attend college have sprung up and offer myriad models for college careers. Several laws have helped develop some of these opportunities. When the cornerstone federal statute, the Individuals With Disabilities Education Act, was reauthorized in 2004, it and resulting regulations emphasized successful transition to post-school life as an important goal of the education of children with special needs. A crucial component of the transition planning that school districts must begin when the student turns fourteen years old is the post-school vision. Transition services are to be coordinated, results oriented, and based on the individual student’s strengths, preferences and interests. Where appropriate, therefore, there is no barrier to have college as the post-high school vision for a student with Down syndrome. Because students with disabilities are entitled to special education services until they graduate from high school or turn twenty-two, one model provides for the student with Down syndrome to attend college while still eligible for special education services from his or her town. Services such as education coaches, travel training, tutoring and other supports can be incorporated into IEPs to allow students to attend college. One superb example of partnership between school districts and Massachusetts community colleges has been the Inclusive Concurrent Enrollment Program (“ICE”). The state-funded ICE discretionary grant pilot program began developing new partnerships between high schools and public institutions of higher education in 2007. This program offers students with intellectual disabilities, ages 18-22, who have not passed MCAS, or 20-21 year olds who have passed MCAS but are still receiving special education services, the opportunity to participate in inclusive college courses. MassBay Community College, along with five other community college partnerships across Massachusetts, has been offering students with intellectual disabilities this unique opportunity to participate in an inclusive college experience with the necessary supports and services as determined by the college and school district. Through this program, students learn to function independently on the college campus, use self-determination skills in adult settings, learn content area skills, and request accommodations and other services at the college. Students are also developing career-planning and employment skills, self-advocacy skills, and new life skills that will assist them in their post-secondary interests and activities. Although the five-year grant pilot program for ICE is ending, many of the partnerships plan to sustain these programs on their campuses so that college is still a viable option for students with intellectual disabilities. MassBay will begin its own Transitional Scholars Pilot Program for the Fall 2011 semester. The vision is for the program to grow to include even more comprehensive services such as a program certificate, scholarships, job development, and an internships. Another model is for students with Down syndrome to attend college independent of their local school districts. Section 504 of the Rehabilitation Act of 1973, as well as the Americans with Disabilities Act (“ADA”), were both enacted to level the playing field by eliminating barriers to full participation by people with disabilities in our society. Section 504 calls for colleges to make reasonable accommodations to allow students with disabilities to meaningfully participate. Such reasonable accommodations include extra time for tests, scribes, textbooks online, and permission to tape classes. Technological advances, such as speech recognition and other software, also have helped students with Down Syndrome successfully attend college. Many colleges now have offices and programs supporting students with disabilities. Colleges offer services to all students with a documented disability through their campus Disability Resources Office. Students do not have the framework of the IEP process in college. Instead, students need to seek out services, show proof of a disability with the proper paperwork, and register with the Disability Office to receive the appropriate accommodations. This “self-advocating” is often a new concept for students entering college. Various colleges in Massachusetts have specially designed programs that serve students with specific needs with services that go beyond those offered by the Disability Office on campus. The Threshold Program at Lesley University, The Transition Program at Middlesex Community College, and Project Forward at Cape Cod Community College are three of the programs offered at colleges in the state to students who have graduated from high school or who have aged out of services from the district. Massachusetts is leading the charge in creating post-secondary options for students with intellectual disabilities across the country. College is now, more than ever before, a real option for students with Down syndrome, and why shouldn’t it be? Daniel T.S. Heffernan, Esq. is a partner at Kotin Crabtree and Strong, LLP in Boston, Massachusetts. He concentrates his practice in representing families in special education and civil rights matters. From 1995 to 2007, Dan served as president of the board of directors of The Federation For Children with Special Needs. His son, Brian, who is twenty years old and has Down syndrome, currently attends Massachusetts Bay Community College through the Inclusive Concurrent Enrollment Program (ICE). In 2002 Dan and his wife, Julie, received the Dr. Allen C. Crocker Award of Excellence by the Massachusetts Down Syndrome Congress. He writes and lectures frequently on special education law and advocacy. Dan can be reached at dheffernan@kcslegal.com. Jayme Finstein is the Coordinator of the Inclusive Concurrent Enrollment Program (soon to be, Transitional Scholars Pilot Program) at MassBay Community College in Wellesley, MA. She focuses her work on developing ways to give students with intellectual disabilities every opportunity at the college level to be fully included, to achieve their goals and to be successful members of society. She hopes for the day that students with intellectual disabilities will be included in all institutions of high education across the country. Jayme can be reached at jfinstein@massbay.edu.

Transition Planning and Services

January 03, 2013

By Daniel T.S. Heffernan

If there is one area in which the law has gotten stronger on the side of students with disabilities in the last ten years, it is in the area of transition. When the cornerstone federal statute, the Individuals With Disabilities Education Act, was reauthorized in 2004, it and resulting regulations emphasized successful transition to post school life as an important goal of the education of children with special needs. School districts are now required to begin transition planning when the student turns fourteen years old and IEPs thereafter must include a post-school vision and incorporate “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills.” 20 U.S.C section 1414(d)(1)(A)(i)(VIII)(aa)). Transition services are to be coordinated, results oriented, and based on the individual student’s strengths, preferences and interests. The litigation that resulted over the provision of appropriate transition has clarified the required components of transition services. In a case recently decided by the Massachusetts Bureau of Special Education Appeals and currently under appeal in federal court, Dracut Public Schools, BSEA #08-5330, 15 MSER 78 (2009), the hearing officer strongly reiterated the responsibilities of a school district to focus meaningful attention on non-academic goals and prepare a student for independent living, employment and/or post secondary education. The district was taken to task for not conducting adequate assessments of the student in the area of transition, relying instead on the pro forma completion of transition planning forms. In Dracut, the school district was ordered to provide compensation in the form of two additional years of meaningful transition services despite the fact the student had passed MCAS and was eligible for his high school diploma. Other factors have combined with the law to make transition services and planning an extremely “hot” area. First, the improvement in the education of children with disabilities has led to an expectation of a more meaningful and fulfilling post school life. Second, special education law accords children with special needs a strong entitlement to services from school districts until that child graduates from high school or turns twenty-two years old. The reality in times of extreme budget crises and the ever present vagaries of the availability of adult services is that the best source of transition services, through either the direct provision of those services or funding of those services, is the school district. Whereas the Department of Developmental Services may develop a fabulous post secondary program for your child, there is, in reality, no real entitlement to that program and little recourse if it was suddenly eliminated for budgetary or other reasons. A school district’s ability to restrict or eliminate programs and services is constrained by federal and state law. In my practice, I often advise parents to hold onto the eligibility of special education services as long as possible, even in some situations by refusing a high school diploma. Some school districts have attempted to trivialize or eliminate non-academic goals in IEPs to lessen their obligation to provide services to meet those goals. Others have made a strong effort to “push” children off the school rolls by offering diplomas when further services are necessary. Fortunately, these factors have spawned a boom in transition programs. Private programs have sprung up or expanded, and parents have been successful in getting school districts to partially or fully fund these programs when the school district’s transition programs have been inadequate. Many school districts, even those strapped for cash, have hired transition specialists, vocational experts, and the like to focus resources on developing or improving their home grown transition services motivated, in part, by the desire to avoid having to fund outside placements. It is crucial that good transition planning begin early - at the latest when the student turns fourteen. The Federation for Children with Special Needs (www.fcsn.org) is one organization that offers excellent workshops throughout the year on transitions. Having good evaluations in the areas of transition, vocational and neuropsychological is key in crafting an effective and appropriate transition plan for the student. The school district is obligated to provide evaluations in these areas and you have a right to obtain an independent evaluation if dissatisfied with those evaluations or in areas the school district has failed to evaluate and, in some circumstances, have the school district fund those independent evaluations. To prevail in a dispute with a school district over transition, or any other services, independent experts retained by the family is essential. You always have the right to have your child evaluated at your own expense (or possibly covered by your health insurance) by whoever you wish, including a reasonable opportunity to have any current or proposed program observed by those experts. Know your rights about transition services. My firm’s website (www.kcslegal.com) has articles on special education including summaries of key decisions in special education law that include transition cases. The Massachusetts Department of Elementary and Secondary Education (www.doe.mass.edu) has links to advisories and special education law and decisions in the area of transition. First and foremost, be aware that you have strong rights to have meaningful and comprehensive transition planning and services for your child and there are many great ideas and programs emerging in the areas of transition. Daniel T.S. Heffernan, Esq. is a partner at Kotin Crabtree and Strong, LLP in Boston, Massachusetts. He concentrates his practice in representing families in special education and civil rights matters. From 1995 to 2007, Dan served as president of the board of directors of The Federation For Children with Special Needs. His son, Brian, who is eighteen years old and has Down syndrome, currently attends Massachusetts Bay Community College through the Inclusive Concurrent Enrollment Program (ICE). In 2002 Dan and his wife, Julie, received the Dr. Allen C. Crocker Award of Excellence by the Massachusetts Down Syndrome Congress. He writes and lectures frequently on special education law and advocacy. Dan can be reached at dheffernan@kcslegal.com.

The Paper Case: Managing Your Documents Under IDEA, Part Two

January 03, 2013

What Documents Should You Create?

Why create any documents? One simple reason is that you may have to tell your child's story to another person - perhaps to an evaluator, an advocate or lawyer, or a hearing officer – in order to get help, and documenting events as they occur will help you tell the story accurately and in good order. Another reason is that documents can help clarify understandings you reach with people – particularly with service providers or school administrators. Yet another reason is that a note written at the time something significant has happened may help to support you when you need to prove to another person that the event happened the way you claim it happened. It sometimes takes years before parents realize that they should have kept better notes of meetings, telephone calls and significant events in their child's educational career. If you are the parents of a very young child with a disability in need of special education, you can get ahead of the game by developing this habit now. The notes you take may be important later when you need an accurate description of what key people said at a TEAM meeting, in the hall after a parent-teacher meeting, in an evaluator's office when you were given a report, and so on. Some parents keep a journal or simply a running chronology with dates, short descriptions of events or conversations and names of people concerned. This does not need to include every tiny detail of your child's life, but a well-kept journal or chronology can help you explain to others (or to yourself) how you got to the current situation if you have recorded key events and communications along the way. Among other events, you should record dates of meetings with school personnel, dates you received key documents (notices of TEAM meetings, etc.), dates you sent or delivered key documents (e.g., “December 1, 2005 - hand-delivered our consent to the proposed school evaluations”), dates on which you gave school personnel important information (e.g., “January 6, 2006 – told Mary's teacher that Mary had been spending 3 hours every night trying to do 15 minute math homework assignments”), dates on which your child was suspended or otherwise disciplined, and so forth. Some documents are created in order to record understandings reached with others. The most formal example of this type of document is a contract signed by the parties who agree to its terms. (An IEP should be treated as a contract. It records an agreement reached between parents and school systems to govern the types of services to be delivered to a child for a specific period of time, the location of those services, the identity of service providers and so on, and is signed by each party.) Even without such an official agreement, however, you can create a document yourself that can help prove that an understanding was reached. Suppose, for example, that you have a conversation with your special education director in which s/he says that the school system will hire an expert on inclusion techniques to consult to your child's classroom and that you will be given the opportunity to meet with that consultant about your child. You should follow up this conversation with a friendly letter to the director thanking her for taking the time to discuss your concerns about the classroom and describing your understanding of what steps s/he promised to take. You should conclude such a letter by requesting the director to respond immediately if your understanding is incorrect in any way. Such a letter may not actually “prove” that the director said the things you claim, but if s/he doesn't respond with a correction, there is at least an implication that s/he did say those things. There may be other documents you could create that will help your child. Have there been years of repeated testing in which scores have declined steadily? You might want to create a chart of test results to focus the TEAM on that history. Have people working with your behaviorally involved child wondered what precipitates his/her aggressive outbursts? Keep a record of things said or done immediately before such explosions for a while – whether seen by you personally or reported to you. Perhaps you can help solve the mystery and focus service providers on developing a plan to work with those behaviors. (Note: There is a kind of evaluation called a “functional behavioral assessment” which is a more formal version of this kind of analysis. You should request that such an evaluation be performed if you become concerned that your child may fall into the disciplinary system because of behaviors that you believe are caused by a disability.)

Documents In The Hearing Process: Preparing To Meet Your Lawyer.

When parents ask an attorney or lay advocate to advise them about their child's rights under IDEA, the first thing the adviser must do is review all the relevant documents. How should you organize them? We ask parents to send copies of all their documents in strict chronological order before we meet so we can read them and get as full a picture as possible about who the child is and what has been done for him or her in the special education system. Unless the attorney or advocate asks you to do so, don't try to organize your documents by category (e.g., placing all the IEPs in one file, all the evaluations in another, all the correspondence in another, etc.). The most efficient way for the advocate or attorney to get the picture and the history is to see the development step by step. Note that in the sequence of those documents, an IEP should be placed according to the date of the Team meeting that developed the IEP. Because any document might eventually have to be introduced as an exhibit at a hearing or in court, we ask that parents not write any comments on them. (You can point out particular items or ask questions by using sticky notes.) You should also give the attorney or advocate a chronology of the events that have led you to consult with him/her – not an extremely detailed description of every thing that happened, but an outline that will give the advisor a perspective on what led to your child's current situation. Finally, you should give your attorney or advocate a list of all the key people that have been involved with you or your child, with full names, addresses and phone numbers if you can find out that information.

Documents In The Hearing Process: Formal Discovery.

If your quest for services leads to a formal due process proceeding, you will have whatever “discovery” rights are available to parties under the rules in your state's due process system. (Some states' hearing procedures do not provide for any such formal discovery process at all.) Typically, those rules allow parties to have the opposing parties produce documents that are either relevant in their own right to the issues the hearing officer must decide or could lead to relevant evidence. Here are some of the kinds of documents we would typically ask school systems to produce in formal discovery:

• descriptions of proposed programs;
• copies of the child's proposed daily/weekly schedule under the proposed IEP;
• copies of the daily/weekly schedules of proposed service providers;
• copies of curricula, materials, behavioral plans, etc. that are used the classroom(s) where the child would be placed;
• resumes and information about certification, training and experience of proposed service providers;
• profiles of other students with whom the school system has proposed to place the student;
• IEPs, with names blacked out, of those other students;
• reports of any program or fiscal audits of the school system and of the particular program in which the school system proposes to place the child;
• annual or other periodic reports the school system files with the state education agency concerning special education programs;
• minutes taken by school system personnel at any key meetings about the child (particularly TEAM meetings).

Conclusion

It is a long road from the beginning to the end of your child's school life. If your child has a disability, you will be hauling a wagon that grows heavier with documents every year along that road. I hope the guidelines I've given you here will help you keep, organize and use those documents in a way that will help you make the most of your child's entitlements under IDEA. Copyright © 1998, 2006 Robert K. Crabtree Kotin, Crabtree and Strong, LLP

The Paper Case: Managing Your Documents Under IDEA, Part One

January 03, 2013

Parents of children with special educational needs can easily be overwhelmed by paper in a short time. From the beginning of school to the time their child either graduates or “ages out” of entitlement to special education services, the accumulation of IEPs, evaluations, progress reports, correspondence, notes, journals, samples of the child's work, medical records and so forth can fill several drawers of a file cabinet or several feet of shelf space. Some may be tempted to throw out documents when they become too cumbersome to manage easily, but it may be a mistake to do so. Even the oldest documents in a child's history can sometimes help parents make a case for increased or different services for their child under IDEA. Parents should learn the relative importance of various kinds of documents and organize them sensibly. With this in mind, here are some guidelines for managing documents under IDEA. What Documents Should You Keep? What follows is a list of the kinds of documents that will be generated during the educational life of a child with special educational needs. You should keep them all! You should also go to your child's school or the special education office occasionally to inspect your child's student records to be sure you have all the documents the school has and to see if there are documents in your possession that have been omitted from the files. You should find out about your state's rules and regulations for accessing your child's records. In general all states must provide access under a federal law called the Buckley Amendment (the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. §§ 1221, 1232g). Generally, with reasonable notice, you will have the right to see the records, wherever and by whomever they may be kept, and to have copies provided to you, at a reasonable copying charge, of any documents you request. You may also have the right to request that a document be removed, with an appeal process if that request is denied, and the right to place a document next to the one you wish to have removed with your comments or with additional information. A general comment: Except in rare cases, once you have a final version of a document you are creating or that others are developing with your review, you should discard all prior drafts of documents and you should both delete any drafts from your computer and then “empty trash” in the computer. Those earlier drafts can lead to confusion if you ever need to seek services for your child through the due process system. This is one area where you can and most often should lighten your document load.

1. Individualized Educational Programs (“IEPs”) and other official service plans. In addition to IEPs, these might include, for example, Individualized Family Service Plans (“IFSP”) (the service plans that describe early intervention programs for children before they are old enough to receive special education services); Section 504 plans (describing accommodations necessary for a student to access the educational program); or plans that are written by agencies other than the local school system such as a department of mental health or mental retardation.
2. Evaluations. You should keep copies of all evaluations performed by the school system and those written by independent evaluators whom you have chosen. Depending on the child, these might include, for example: Educational; Psychological and/or Neuropsychological; Speech and Language; Occupational Therapy; Physical Therapy and other evaluations.
3. Medical records. You probably don't need to keep all medical records with your child's IDEA documents – only those that bear on the disability or disabilities that affect his/her ability to learn or to access school programs and facilities. As with any other kind of document, however, when in doubt, keep it!
4. Progress reports and report cards. Keep any formal documents in which the school system periodically describes how your child is doing.
5. Standardized test results. Under the No Child Left Behind Act, school districts administer periodic testing to measure how students are progressing in fundamental academic skills. Also, school systems often administer other standardized tests, such as the California Achievement Tests, to students to measure their skill development. Such tests can provide a helpful objective comparison to the more subjective reports of progress provided by a child's teachers.
   1. Notes from the teacher to the parents, or from the parent to the teacher, about the child's progress or behavior, and/or journal entries between the child's service providers and parents. Sometimes the occasional notes from a concerned teacher tell a different story than the formal report the same teacher develops at the request of his/her supervisor when the TEAM convenes.
6. Any correspondence between the parents and the teacher(s), special education administrators, TEAM Chairpersons, evaluators, etc. pertaining to the child. Don't forget emails: print them out and include them in your correspondence file. Also, correspondence from the school system addressed to parents generally or to all special education parents describing issues that affect the child: for example, letters describing new programs or changes in programs or services or describing school system policies around children with special education needs or budget issues.
   1. Note: Should you use certified mail, return receipt requested, when you send letters or notices to the school system? While sometimes you do need to have the kind of record of delivery that certified mail would give you, often using that system merely adds unnecessary delay to your delivery of the letter or notice. It is better to hand-deliver the document and, if you are concerned that it might get lost, ask the secretary or person to whom you hand it to date-stamp a copy of the letter or give you a receipt. (Remember, too, that in most courts and administrative forums, a letter mailed in ordinary first-class mail is presumed to have been delivered within three days of its mailing.)
7. The parents' notes or minutes of conversations or meetings with school personnel, evaluators, the child's TEAM, or any other interactions bearing on the child's program or needs. We advise parents to be certain to take excellent notes at key meetings or, better yet, to have someone with them whose only task is to take such notes, especially at TEAM meetings. Such notes can help enormously when, months later, parents try to recall exactly what various people said or what agreements were reached.
   1. Note: Do you have a right to tape TEAM meetings? Should you tape meetings? The answer to both of these questions is “probably not” in most instances. Under the laws pertaining to discrimination on the basis of handicap you may have a right to tape a meeting if that is necessary to accommodate a disability (for example, if one or both parents have a language processing disorder). You may also have a right to tape if the meeting is conducted in a language other than the parents' first language. Generally, though, no right to tape a meeting has been determined to exist under IDEA. Ordinarily, if you ask in advance to tape a TEAM meeting, a school system should permit you to do so as a courtesy and most likely will also tape the meeting themselves. You need to consider, however, that having a tape recorder present may inhibit the participants and/or create a feeling of hostility at the meeting. Again, it is usually preferable simply to have someone take excellent notes.
8. Any documents having to do with discipline and/or behavioral concerns. These include, for example, notices of detentions and suspensions (both in-school and out of school suspensions), letters describing the concerns of service providers or school administrators about behaviors, records of behavioral assessments, and records of behavioral plans for addressing behavioral issues.
   1. Note: Under the amendments to IDEA which became effective in July 2005, school districts are deemed to have knowledge that a child's misbehavior may be caused by a disability if: 1) the parent expresses concern in writing to a teacher of the child or to supervisory or administrative special education personnel that their child is in need of special education and related services; 2) the parent requests an evaluation of their child; or 3) the teacher of the child, or other personnel of the LEA, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education or to other supervisory personnel of the agency. 20 USC 1 415(k)(5)(B). Thus, it is important to communicate concerns before behaviors lead to disciplinary actions for a school to be held accountable for providing services to address the behaviors through special education services.
9. Formal notices of meetings scheduled to discuss your child. You should develop the habit of marking on the top of any such notice the date on which you receive it, since the question whether a school system has met time requirements is sometimes important under IDEA. (Note that it is sometimes a good idea to keep copies of the envelopes in which such notices arrive: check the date of the notice or letter and the date of the postmark – if the postmark is later than the date on the notice, that fact could be significant.)
10. Samples of schoolwork. You don't need to keep every scrap of writing or drawing your child produces for this purpose, but it sometimes is helpful to keep examples from year to year, or even shorter periods, which can be compared to show whether and how much progress your child is making in various academic areas.
11. Invoices and cancelled checks relating to services that you provide on your own for your child relating to his/her educational development. For example, if you pay for an independent speech and language pathologist to provide an hour per week of therapy to supplement the school system's services, keep a record and evidence of your payments for that service; eventually, you might seek reimbursement for that expense if you can prove that it was necessary because the school's services were insufficient to enable your child to progress effectively.
12. Public documents that help explain how your school system works with children like yours. These might include, for example, newspaper articles describing pronouncements by special education administrators, school committee members or superintendents about how they are planning to reorganize all special education programs, how they plan to cut expenses in special education, what new teaching approach they plan to use, etc.

Copyright © 1998, 2006 Robert K. Crabtree Kotin, Crabtree and Strong, LLP

Mistakes People Make – School Districts

January 03, 2013

(An earlier version of this article first appeared at the Family Education Network at www.familyeducation.com.) Copyright © 1998, 2006, Kotin, Crabtree and Strong, LLP This is the second of a series of short articles I have written to discuss some of the mistakes people make in the special education process. This article focuses on mistakes commonly made by school districts. A general theme ran through the comments I received from attorneys, advocates and parents while I prepared this article: - Anything a school system does that undermines parents' trust creates a climate that is costly in dollars, time, peace of mind and the quality and success of services given to the child.

School System Mistakes:

Here are the most significant school system mistakes, according to persons at every level of the system:

1. Refusing to let parents or parents' experts see programs, either within or outside of the school system. When school systems tightly restrict the parents' access to their own programs, the parents wonder what they are hiding and assume the worst; when they refuse to clear the way for parents to see an outside program, the parents will assume that the grass is greener over there.
2. Failing or refusing to communicate and actively coordinate with outside experts working with the child, such as the child's therapist or a tutor;
3. Ignoring reports from independent evaluators; failing to speak to those evaluators to clarify ambiguous information or recommendations; failing to add the evaluator's recommendations to the IEP when reasonable;
4. Failing to respond to parents in writing or at a meeting when a problem arises;
5. Taking a patronizing and/or antagonistic and/or insulting attitude toward parents; personalizing issues between school and parents; attempting to blame parents for their children's educational failures rather than looking for solutions (school system professionals need to treat parents with respect even if those parents are insulting and belligerent themselves);
6. Sweating the small stuff (e.g., spending twenty minutes at a team meeting arguing about whether the meeting can be tape-recorded);
7. Failing to observe procedural timelines and notice requirements (e.g., scheduling timely meetings, getting evaluations to the parents before the team meeting, notifying the parents who will attend the meeting, providing clear written explanations of parent rights);
8. Writing careless and sloppy IEPs. Parents, evaluators and hearing officers all look first at the extent to which the written IEP reflects a thorough and logically coherent view of the child, the goals and objectives for that child's program, and a clear and understandable description of what will be provided, how, by whom, and when; and how the child's program will be evaluated.
9. Failing to implement an IEP and, worse, trying to cover up that failure;
10. Failing to modify an IEP that is not working and waiting, instead, for the program – and the child - to collapse;
11. Failing to provide additional or different services within the district that might ultimately avoid having to make more restrictive (and expensive) outside placements;
12. Failing to call in expert consultants from outside the school system with good reputations among both school and parent communities who can help develop or monitor a program for a child with unusual needs;
13. Losing contact with families that have placed their child unilaterally. Some school systems forget or ignore their continuing responsibility to evaluate, review, and propose IEPs for children when they are attending outside placements at their parents' expense;
14. Botching the required procedures around suspension or expulsion of students with identified or suspected special education needs (e.g., failing to do functional behavioral assessments to determine the causes of a student's maladaptive behaviors; failing to convene the team, failing to make a manifestation determination, failing to re-examine the IEP to see if services are appropriate and have actually been provided, failing to provide FAPE to suspended or expelled students with special education needs).
15. Failing to ensure that non-special education administrators – particularly building principals – are fully informed about and are following the required special education policies and procedures.

Mistakes People Make: Parents

January 03, 2013

(An earlier version of this article first appeared at the Family Education Network at www.familyeducation.com.) Copyright © 1998, 2006, Kotin, Crabtree and Strong, LLP In my practice as a special education attorney for parents and students for more than twenty-five years, I have seen certain issues and frustrations expressed repeatedly. I have written a series of short articles to discuss some of the mistakes people make in the special education process that often cause or exacerbate those issues and frustrations. The articles focus in turn on mistakes commonly made by parents; school districts; independent evaluators; and, finally, advocates for parents and students. For these articles, with a promise of anonymity, I solicited the comments of several persons who either work in special education or are the beneficiaries of it and for whom I have great respect. They include lawyers who regularly represent school systems, hearing officers in special education proceedings, evaluators, parents, and parent/child advocates. These are the results: Here are several common errors which can undermine parents' ability to obtain appropriate services. In these descriptions I sometimes refer to “hearing officers.” That is a reference to persons whose job is to decide, after hearing testimony and reviewing documents, whether a school district's proposed program and services for a student with a disability is enough to provide a “free appropriate public education” – often called “FAPE” - the legal standard required by federal special education law – the Individuals with Disabilities Education Act, or “IDEA”: -

1. Viewing the special education process as the moral equivalent of war, fighting that war with a “scorched earth” approach, and letting personal animosity toward administrators and/or teachers distort one's judgment about both what is best for the child and what is realistic to accept;
2. The opposite mistake: Trusting administrators and teachers too uncritically; assuming that if they are “nice” they are also competent and interested in serving the child's best interest; not questioning slow, or nonexistent progress as long as the child, parent and teacher have a cordial relationship;
3. Taking an “all or nothing” approach: waiting too long before getting good independent advice, then insisting on instant delivery of needed services rather than steady progress toward the right program;
4. Failing to understand that the special education process sometimes requires that the parent educate the child's special education team about the child's disabilities and needs (the school system may not be willfully refusing to meet the child's needs; they may simply not understand those needs);
5. Not trying a program or added services, even on a temporary basis, when they are offered by the school system – holding out for an alternative program only to have a hearing officer later decide that the untried program might have worked (remember that under IDEA, school districts generally enjoy the benefit of any doubt, especially if a proposed service or program – if it is at all reasonable – has not been tried);
6. Attempting to “micro-manage” the details of a child's life in school; even if parents don't feel things are going well, their efforts to control the child's day usually backfire when a hearing officer concludes that the parents were over-protective and didn't let the school professionals do their job or, worse, actively undermined the school's ability to provide services;
7. Focusing on minor, nonprejudicial procedural missteps by the school (e.g., the parent who already knows her rights who says, “Aha! Gotcha! School district forgot to give me the brochure telling me about my rights!") instead of focusing on the substantial issues in the case;
8. Not consenting to school evaluations;
9. Choosing the wrong independent evaluators: e.g., “hired guns” who only say what the parents want them to say, and have a reputation for doing so; those who will not follow through by observing programs, attending team meetings, etc.; those who do not have training or experience to evaluate a child like yours;
10. Not providing copies of independent evaluations to the school, or not providing them in a timely way (note that if information in an independent evaluation is withheld from the school district, all the district needs to say later is “If we'd only had this information, we could have met this student's needs”);
11. Not responding in a timely way to proposed IEPs (whether a response is “timely” depends on whether the student is already getting the services s/he needs and the IEP proposes reducing those services, in which case a parent may want to use as much time as is allowed, or the student is not getting the services s/he needs and the IEP proposes increasing services, in which case a quick response is usually what's called for);
12. Not documenting issues with the school; not sending letters to confirm agreements with the school or to record important conversations with school personnel;
13. Seeing the school system as a monolith (“ All those teachers are incompetent [or wonderful!]”); failing to look carefully at alternatives within the system for this year and at next year's teacher possibilities.

Mistakes People Make: Independent Evaluators

January 03, 2013

(An earlier version of this article first appeared at the Family Education Network at www.familyeducation.com.) Copyright © 1998, 2006, Kotin, Crabtree and Strong, LLP As informed and articulate as particular parents may be, they usually cannot make a case for particular services or programs for their child without the help of a competent and credible independent evaluator. In due process hearings there is usually no more important witness for the family. (Even with such an evaluator it can be a steep uphill fight for services because of the deference that is given under IDEA to school districts in special education proceedings, but without such an evaluator there often is no chance at all.) In this light, the most serious mistakes evaluators can make are the ones that undermine their credibility or which render their opinions powerless for lack of the evaluator's follow-through. Here are some mistakes independent evaluators should try to avoid:

1. Failing to assess the student's testing performance in the larger context of his/her educational history, family situation, school setting, psychological make-up and other factors. An evaluation can only provide a snapshot of a student in any event. A report that only describes current test scores explains nothing and provides little foundation for the evaluator's recommendations.
2. Not contacting the student's teacher(s), special education administrator, or other school personnel involved with the student as key sources of information in the evaluation. Evaluators should not simply assume that the parents' perceptions are more accurate than the school's; sometimes the evaluator's most important role is to reassure parents that their child's public school program is essentially sound.
3. Writing reports that are poorly organized, full of jargon, carelessly proofread, or in which the recommendations do not connect logically to the testing results; using boilerplate recommendations that are obviously not specifically geared to the student and his/her particular circumstances.
4. Limiting program and service recommendations only to those the evaluator knows are available in the student's particular school system and/or taking the potential cost of providing recommended services into account. Worse, failing to make any educational recommendations at all on the misguided premise that only school employees can decide how to meet identified needs. Special education law entitles the student to services that will enable him/her to make meaningful educational progress. The evaluator's job is to recommend appropriate services, not to limit recommendations to those that are convenient or less costly for school systems.
5. Failing to consider and report on the likely risks for a student if recommendations are not implemented.
6. Not clarifying for parents that there is often a real difference between recommendations that are clinically desirable and recommendations that are legally mandated (e.g., the best educational program for Johnny may be at an alternative school that will cater to his specific needs, but the public school program, which offers less intensive special education services in the “least restrictive” setting may be all that the law entitles Johnny to)..
7. Refusing to leave the citadel: - not following through after the report is written: e.g., not attending team meetings, observing programs and/or testifying when those activities are necessary to ensure that the evaluator's recommendations will be understood, accepted and implemented. (We have seen many due process decisions in which experts' testimony is dismissed because there was no observation of the school district's proposed program or genuine effort to understand that program's structure and services.)
8. Working exclusively as a parents' or as a school system's evaluator; this is a sure way to lose credibility as an evaluator over time.
9. Not referring parents to a competent special education attorney or advocate to evaluate and advocate for their legal rights.

Mistakes People Make – Advocates

January 03, 2013

(An earlier version of this article first appeared at the Family Education Network at www.familyeducation.com.) Copyright © 1998, 2006, Kotin, Crabtree and Strong, LLP In other articles of this series I have discussed some common mistakes parents and school systems make that tend to undermine the system's ability to respond effectively to a child's special education needs. In this piece I turn to the more serious mistakes that parent advocates sometimes make with equally detrimental effects. My sources again include lawyers who regularly represent school systems, hearing officers in special education proceedings, evaluators, parents, and parent/child advocates. Part of the reward of working in this area of the law has been to work with (and sometimes, respectfully, in opposition to) these professionals, and I greatly appreciate their thoughtful contributions to this discussion. The non-lawyer advocate plays an extremely important role in the special education process. Often the parent of a child with special education needs him- or herself, a well-trained advocate can provide valuable assistance to parents trying to navigate the maze of special education law and procedures. A competent advocate can help parents to obtain necessary information about their child and about available educational alternatives, to organize presentations for key meetings, to develop effective strategies to obtain necessary services, and to make intelligent and realistic choices along the way. Advocates need to be constantly mindful of the power of their role and the trust parents place in them. Parents see their advocate as a person with special knowledge of a difficult system; they rely on that person to have a cool head and to apply keen, informed judgment every step of the way. One clarification – there are some individuals who help parents in the special education process who are trained in the field of special education and are experts in their own right in the areas of their training and experience – typically, persons with M.Ed.'s or Ph.D.'s in education or related fields. While these individuals may act as “advocates” from time to time, they are better able to help parents as another kind of expert – an educational consultant. In that role they need to be objective, applying their expertise to understand the student's situation and needs, and they may not always agree with the parents' aims. They may offer expert counsel to the team and they can testify as experts in due process proceedings. Such educational consultants should be clear about their roles with parents and with school districts and, to the extent possible, should leave “advocacy” to lawyers, advocates and the parents themselves. The more serious mistakes advocates sometimes make are generally ones of excess – excessive emotion that clouds judgment; excessive advice in areas beyond the advocate's expertise; excessive involvement in a case where the parents would be better off doing things for themselves; raising parents' expectations excessively; and feeding parents' sense of outrage rather than helping them cultivate a calm, persistent approach. (Please note that the roles of lay advocates and lawyers are similar in many respects, and special education lawyers can and do make the same mistakes on occasion.) Here are some of the more common serious mistakes we see:

1. Perhaps the most harmful mistake some advocates make is replaying their own special education or health advocacy battles through their advocacy for other families. This clouds the advocate's judgment and tends to create a hostile relationship between the family and the school system that has more to do with the advocate than with the family's real needs.
2. Not informing parents up front what the special education process entails so that parents are aware from the beginning of the potential costs in time, money, and energy that will be required, particularly if they are seeking expensive services or an outside placement. For example, advocates should inform families that just obtaining even an excellent independent evaluation is not necessarily enough to convince a school system to implement the evaluator's recommendations (or a hearing officer to order them); the family may have to incur the evaluator's additional expense of school observation(s), consulting with the family's advocate and/or lawyer, testifying, etc., and even all those additional tasks may not suffice.
3. Assuming they know the child's disability and educational needs before the independent evaluation is complete. Also, attempting to interpret testing results – scores, percentiles, etc. – without the experience and training to do so. These mistakes too often lead to giving advice outside of the advocate's expertise, setting parents up for a fall if the evaluator's findings and recommendations are different. The parent needs to hear from his/her independent evaluator, rather than the advocate, about what their child's needs are and what services or program might meet those needs.
4. Raising parents' expectations too high without regard for the real limits of the process, the available services, and the legal standards that apply.
5. Being habitually confrontational – mistaking an “in your face” approach for dealing from strength - and encouraging parents to do likewise. This type of approach by an advocate not only undermines a particular family's work with a school system; over time, the advocate gets a negative reputation and becomes increasingly ineffective for all the families he or she attempts to help.
6. The opposite problem: becoming too “chummy” with the special education administrators the advocate deals with repeatedly. The best approach for the advocate – and for the parent – is to combine a steady skepticism with a willingness to try all reasonable options offered by the school system, and to treat even the most arrogant or adversarial school personnel with the same degree of respect the advocate and parent wish to receive themselves.
7. Failing to learn about the child from the school personnel who work with him or her. The advocate should listen carefully to what the child's teachers say about the child and help the parents evaluate the credibility and usefulness of the teachers' opinions and observations, rather than simply rejecting them out of hand.
8. Not staying informed about special education procedural and substantive requirements. This means being completely familiar with the governing laws and regulations, state and federal, and with changes in those laws as they are enacted (e.g., studying IDEA 2004, the amendments to the federal special education law that became effective in July 2005). It also means following the decisions that are issued by the due process administrative hearing officers in your state to know how issues are being decided and what kind of attitude to expect from the individuals who make those decisions.
9. Not consulting with an attorney knowledgeable in special education law at key decision points and on difficult issues of law or procedure; waiting until it is too late for the lawyer to be fully effective. (Typically one of the worst mistakes an advocate can make is to advise parents to open a due process proceeding and only then advise them to consult with a special education attorney – more often than not, under those circumstances, the attorney then needs to have the parent withdraw from the appeal they had just filed in order to further develop the case.)