RIGHTS OF YOUTH WITH MENTAL HEALTH NEEDS REGARDING EDUCATION AND SPECIAL EDUCATION IN

MASSACHUSETTS

Prepared by the Mental Health Legal Advisors Committee December 2011

TABLE OF CONTENTS

Eligibility............................................................................................................................ 2 Referral .............................................................................................................................. 8 Evaluation.......................................................................................................................... 9 IEP/ Services in School ................................................................................................... 13 IEP Placement Options................................................................................................... 21 Transition Planning ........................................................................................................ 27 Chapter 688 Referral...................................................................................................... 30 After School Programming ............................................................................................ 32 School Disciplinary Actions ........................................................................................... 35 Due Process Rights.......................................................................................................... 42 Records............................................................................................................................. 50 Educational Services in Institutional Settings.............................................................. 51 Rights Regarding a GED................................................................................................ 52 Special Education and Autism....................................................................................... 54 MCAS and Students with Disabilities ........................................................................... 57 Children and Trauma..................................................................................................... 59 Positive Behavioral Interventions and Supports (PBIS) and Socio-Emotional Learning (SEL)................................................................................................................ 60 Schools and Rosie D. Implementation........................................................................... 63 Homeless Children and Education................................................................................ 67 Foster Children and Education ..................................................................................... 71 College Age Students with Disabilities.......................................................................... 73

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Eligibility What kind of educational services are available under the law for youth with disabilities? Section 504 and the Individuals with Disabilities Education Act (IDEA) are both federal laws that can help secure a range of services for children with special education needs. It is important to know the differences between them when pursuing special education services. Resources: SPEDWatch, IEP or 504 Plan: What difference does it make?, http://www.spedwatch.org/files/IEP_v_504.pdf How can Section 504 be used by students? Section 504 of the Rehabilitation Act of 1973 covers a broader range of disabilities than IDEA, meaning that more children are entitled to protections under it than are under IDEA.1 Section 504 protects all people with a disability who 1) have a physical or mental impairment that substantially limits one or more major life activity, 2) have a record of such an impairment, or 3) are regarded as having such an impairment.2 Section 504 is an anti-discrimination act, meaning that it aims to remove barriers to equality that stand between disabled and non-disabled people. In special education programs, the services and accommodations available under Section 504 aim to bridge these gaps.3 Any programs that receive federal funding (i.e., all U.S. public schools) are required to recognize Section 504.4

Services available under Section 504, often provided through a document known as a 504 plan, should be tailored to individual students with disabilities to meet their educational needs as equally as students without disabilities. Some students protected under Section 504 may not need additional services beyond education in regular classrooms. However, other students might stay in regular education classrooms but need supplementary

1 S. James Rosenfeld, Esq., Edlaw, Inc., Section 504 and IDEA: Basic Similarities and Differences 2, http://www.wrightslaw.com/advoc/articles/504_IDEA_Rosenfeld.html. 2 29 U.S.C. § 794; 42 U.S.C. § 12102. 3 29 U.S.C. § 794; S. James Rosenfeld, Esq., Edlaw, Inc., Section 504 and IDEA: Basic Similarities and Differences 2, http://www.wrightslaw.com/advoc/articles/504_IDEA_Rosenfeld.html. 4 U.S. Department of Education, Office for Civil Rights, Free Appropriate Public Education for Students with Disabilities: Requirements Under Section 504 of the Rehabilitation Act of 1973 1 (2007), http://www2.ed.gov/about/offices/list/ocr/docs/FAPE504.pdf.

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services or special accommodations. Still others may need to be taken out of the regular education classroom and placed in a special education program with other related services.5

Resources: OCR, Protecting Students With Disabilities, Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, http://www2.ed.gov/about/offices/list/ocr/504faq.html What is the Individuals with Disabilities Education Act (IDEA)? The Individuals with Disabilities Education Act (IDEA) mandates the provision of services to children with a specific range of disabilities. In Massachusetts, the following disabilities may make a child eligible for IDEA services: autism, developmental delay, intellectual impairment, sensory impairment (including hearing or visual impairment, or deaf/blind), neurological impairment, emotional impairment, communication impairment, physical impairment, health impairment, or specific learning disability.6 In addition to proof of one of these disabilities, evaluators must be able to prove that because of the disability, the child is unable to make effective progress in school without special education services.7 Progressing effectively is defined in Massachusetts regulation.8 Children entitled to services under IDEA are required to receive an individualized education program (IEP). What is an IEP? An Individualized Education Program or IEP outlines a child’s needs and details the special education and related services that he should receive in the most appropriate learning environment. Depending on the child’s individual needs, educational services under an IEP include varying combinations of special education and related services,

5 U.S. Department of Education, Office for Civil Rights, Protecting Students With Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, http://www.ed.gov/about/offices/list/ocr/504faq.html. 6 DESE, IEP Process Guide (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf. 7 DESE, IEP Process Guide (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf. 8 Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district. The general education program includes preschool and early childhood programs offered by the district, academic and non-academic offerings of the district, and vocational programs and activities. 603 CMR 28.02(17).

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modifications to programs, supplementary services and accommodations, or supports to school staff in both regular education and separate classroom settings. What is FAPE? Any person with a disability is entitled to what is known as a “free appropriate public education” (FAPE). FAPE generally provides students with disabilities with the right to an education that meets their needs in the public school setting and is of no cost to them or their families. However, FAPE is defined slightly differently in Section 504 and in IDEA. Section 504 defines FAPE to include special or regular education and related services, while IDEA counts only special education and related services.9 In addition, FAPE under IDEA must conform to a student’s IEP.10 Resources: SPEDWatch, What Does ‘FAPE” Really Mean?, http://www.spedwatch.org/files/FAPE.pdf Should I pursue special education and how would I do so? If a parent or guardian thinks that a child may have a disability that is preventing him from making effective progress in school, they might first request non-special education classroom accommodations. If these efforts are still not helping the child, it may be advisable to pursue special education services. The first step in this process is to make referral to the school district, which must then pursue a special education evaluation. Parents, guardians, teachers or other school staff all may make referrals for an evaluation. Once a referral has been made, the school must contact the child’s parents to seek consent in writing before the evaluation process may begin.11 After parents give written consent, the evaluations must be completed within 30 days.12 The school district also should send a copy of the Parent’s Notice of Procedural Safeguards to parents before the process begins. Resources: DESE, Parent’s Notice of Procedural Safeguards, http://www.doe.mass.edu/sped/prb/ DESE, Eligibility Flow Chart, http://www.doe.mass.edu/sped/iep/forms/pdf/ED1.pdf DESE, A Parent’s Guide to Special Education, http://www.fcsn.org/parentguide/parentguide.pdf

9 34 CFR § 300.17. 10 34 CFR § 300.17. 11 The Federation for Special Needs and DESE, A Parent’s Guide to Special Education 12, http://www.fcsn.org/parentguide/parentguide.pdf. 12 The Federation for Special Needs and DESE, A Parent’s Guide to Special Education 13, http://www.fcsn.org/parentguide/parentguide.pdf.

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How do I advocate for services for my mentally ill child if not child is not displaying problems in school? If you feel that your child’s mental illness is negatively affecting his education, even if he is not displaying problems in school, then there are steps you can take to advocate for your child. It is important to document the behaviors in the home, and preferable to have this done by a clinician or doctor. You or the clinician must then determine if there is a connection between those behaviors and educational progress, and, if so, explain the relationship. It is also important to look to see if there is really no evidence of behavioral or other problems in school. Reviewing your child’s school records may provide you with additional information. It is also possible that your child may be displaying these behaviors in some capacity at school, even if not in the classroom, so it is important to look at other settings, like transportation to and from school, afterschool programming, and homework time at home. Documenting the services tried in the home will also provide evidence as to the need for additional supports during the school day, if the services at home are not effective. It is important for schools to be aware of a child’s mental health needs, even if the child is not displaying problems in school or does not qualify for special education. Teachers and other school staff members can provide a more supportive learning environment if they are aware of special behavioral needs. Parents and guardians should determine what services are available at a child’s school, which is responsible for providing them, and how to access them. Mental health services in public schools vary greatly by school and may include in-school programs, services from outside providers (including Community Service Agencies or CSAs), and School-Based Health Centers.13 Mental health professionals who work with schools may include guidance counselors, social workers, adjustment counselors, and psychologists. Approaching teachers, school counselors or psychologists, and other school personnel to discuss a child’s mental health needs may be useful in getting the appropriate evaluations and in-school services and establishing a mutually beneficial relationship with the school. Parents do not have to disclose any information and should only relay what they feel comfortable discussing. School staff members must keep confidential any information relayed to them by a child’s doctor or therapist.14

Resources:

13 Boston Bar Association, The Parents’ How-To Guide to Children’s Mental Health Services in Massachusetts 86 (2d ed. 2009), http://www.bostonbar.org/theguide/bba_theguide_jan2009.pdf. 14 The HSC Foundation, Partnering with Your Child’s School: A Guide for Parents 6, http://www.hscfoundation.org/aboutus/publications/partnering_with_schools_english_guide.pdf.

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HSC Foundation Partnering you’re your Child’s School: A Guide for Parents http://www.hscfoundation.org/aboutus/publications/partnering_with_schools_english_guide.pdf (includes questions parents can ask when advocating for school mental health services) Boston Bar Foundation The Parents’ How-to Guide to Children’s Mental Health Services, http://www.bostonbar.org/theguide/bba_theguide_jan2009.pdf What should I do if the school tries to dissuade me from advocating for my child? Some parents face issues from their school district when trying to advocate on behalf of their children with disabilities. For example, a school district may deny that a child has problems that warrant special education, or may fail to write adequate services into the IEP by claiming that those services are not necessary. The school may refuse to conduct an evaluation, or refuse to consider information from outside consultants. In severe cases, parents have reported some extreme tactics by schools to dissuade them from involvement, including schools filing a 51A suspected abuse report against the parent.15 The prevalence of these actions is unknown. Seek help from an advocate if you face these issues. What if my school district is saying that, despite my child’s disability, he/she is making effective progress? One difficulty faced by many parents is determining how the school defines “effective progress.” Massachusetts defines “progress effectively” as making “documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general curriculum…”16 However, this definition can still lead some schools to interpret effective progress too narrowly. While some schools may include things such as attendance, behavior, and social interactions in addition to grades when determining a student’s progress, other schools look strictly at test scores and grade completion. Look at the goals written into your child’s IEP. If you think that the goals are appropriate but that your child is not successfully completing those goals, then it will be necessary to show the school that those goals have not been met. Evidence of not progressing can include not performing up to expected levels on standardized, criterion-referenced, or curriculum-based assessments, or failing to earn promotion to the next grade level at the end of the school year.17

If you feel that the goals of the IEP are not sufficient because they are not accommodating all aspects of your child’s disability, such as social or emotional

15 Email from Ellen Chambers, Executive Director, SpedWatch to listserve (Jan. 11, 2010). 16 603 CMR 28.02(17). 17 See In Re Canton Public Schools, 6 MSER 239 (2000).

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problems, show how those problems negatively impact your child’s ability to successfully access a free and appropriate education.18 For example, in one case, a student with good grades at grade level material who was tutored at home because of stress around attending school was found to be failing to make effective progress.19 The reasoning in this case was that the inability to attend school affects progress towards independence and educational progress.20 The idea that school is supposed to teach students more than academics has been supported in other cases, such as a federal court case that held that when analyzing educational performance, it is necessary to look not only at academic performance, but also at other aspects of performance, such as behavior and attendance.21 Although the schools are required to provide the students with an education in the least restrictive environment, “the opportunity to be educated with non-disabled students does not cure a program that otherwise is inappropriate.”22 Providing evidence of the areas in which your child is lacking, such as independent evaluations, will help to show why you feel your child is not making effective progress. Resources: SPEDWatch, What Does ‘Effective Progress’ Really Mean?, http://www.spedwatch.org/files/Effective_Progress.pdf

18 See In Re New Bedford, 7 MSER 261 (2001). 19 See Dighton-Rehoboth Regional School Dt., BSEA #06-2145 (2006). 20 See Dighton-Rehoboth Regional School Dt. , BSEA #06-2145 (2006). 21 See Mr. and Mrs. I v. Maine School Administrative District, 416 F. Supp.2d 147,159 (D. Maine 2006) (citing Robert A. Garda, Jr., Untangling Eligibility Requirements under the Individuals with Disabilities Education Act, 69 MO. L.REV. 443- 47 at 498-99 (2004)). 22 See In Re Milton Public Schools, 15 MSER 270 (2009).

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Referral Who can make a referral for special education services? Any person who is concerned that a child may have a disability or is having difficulty developing in school may refer a student for an initial evaluation. If the person who refers a child is not the child’s parents, the school district needs to get consent for the evaluation from the child’s parents first. Within 30 days of receiving consent, the school district has to perform the evaluation. May a school district refuse to conduct an evaluation for a referred student? School districts may not refuse to evaluate a student who has been referred. Even if the school district has made efforts to meet a child’s needs in a regular education program, it is still required to evaluate the child.23 What are my rights once my child is referred for an evaluation? Once you or someone else has referred your child for an evaluation, you will receive a packet called the Parent’s Notice of Procedural Safeguards that explains your rights throughout the process.24

Resources: DESE, Parent’s Notice of Procedural Safeguards, http://www.doe.mass.edu/sped/prb/

23 DESE, IEP Process Guide (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf. 24 DESE, Parent’s Notice of Procedural Safeguards (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf.

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Evaluation What happens during the assessment and evaluation process? Parents should be actively involved in the evaluation process. Evaluations should assess a child in all areas of his suspected disability and be based on the child’s needs. The child should be evaluated in multiple ways. Evaluations should consist of formal and informal assessments, as well as information provided by parents, observation, samples of the child’s work, an interview with the child about his abilities, and a full review of the child’s record. If a specific learning disability is suspected, evaluators must take further steps. At least one member of the IEP team must observe the child’s classroom academic performance. According to A Parent’s Guide to Special Education, evaluations “may include looking at how your child communicates and understands language, your child’s educational development, and how your child thinks, behaves, and adapts to changes. Evaluations may look at your child’s health, vision, hearing, social and emotional well-being, performance in school, how your child uses his/her body, and for older students, what job-related and other post-school interests and abilities your child has.”25 “Understanding Assessment in the Special Education Process” by Joseph Moldover, Psy.D. features a list of specific tests that may be used in evaluations.26

Evaluators must write an assessment report for each component of the evaluation. Assessment reports should state information regarding the possible presence or absence of a disability. Reports should address the child’s needs, possible strategies for the child’s teachers, and other relevant recommendations.27 What happens when the team convenes? After the evaluation has been completed, a team of qualified professionals and parents must first determine if the child has a disability. If so, the team evaluates whether this disability is preventing the child from making progress in school. Finally, the team decides if special education is necessary to help the child make progress in school. If so, he becomes eligible for special education and the school district must develop an IEP for the child.28

25 The Federation for Special Needs and DESE, A Parent’s Guide to Special Education 13, http://www.fcsn.org/parentguide/parentguide.pdf. 26 Joseph Moldover, Psy.D, Understanding Assessment in the Special Education Process 7 (2009). 27 DESE, IEP Process Guide 7 (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf. 28 DESE, IEP Process Guide 8-9 (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf.

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Team members should complete a written report on their findings and certify in writing whether or not the results show that the child has a learning disability. Can a parent appeal an eligibility determination? Parents have the right to appeal any eligibility determination to the Massachusetts Bureau of Special Education Appeals. Another evaluation and reconsideration of eligibility is possible.29 May parents request another evaluation? Parents may also request an independent evaluation known as an Independent Educational Evaluation (IEE). Depending on a family’s income level, the school district may be required to pay for all or part of this outside evaluation.30

What kind of evaluations should I ask my child’s school to do? The school district must perform assessments in all areas of the child’s suspected disability, in addition to a required educational assessment. The educational assessment should include a history of the student’s educational progress in the general curriculum, provided by a knowledgeable teacher. It should also include an assessment of the student's attention skills, participation behaviors, communication skills, memory, and social relations with groups, peers, and adults. Furthermore, the educational assessment should thoroughly evaluate and provide a narrative description of the student's educational and developmental potential. If a child is being evaluated for or is already receiving early intervention services, further educational assessment is needed.31

If a student will be out of school for more than 60 days for medical reasons (and this has been verified by the student’s physician), the school district should examine the student’s evaluation needs and revise or develop the student’s IEP according to the new situation.32 If parents are dissatisfied with the scope of the school district’s evaluations, they may request that more extensive testing be done. It may be helpful to connect with a parent advocacy group for guidance on what evaluations a child may need that are specific to his/her suspected disability. Resources for evaluations generally: DESE, A Parent’s Guide to Special Education, http://www.fcsn.org/parentguide/parentguide.pdf

29 DESE, IEP Process Guide 11 (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf. 30 DESE, Parent’s Notice of Procedural Safeguards 5 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf. 31 603 C.M.R. 28.04. 32 603 C.M.R. 28.04(5).

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DESE, Parent’s Notice of Procedural Safeguards, http://www.doe.mass.edu/sped/prb/ What are Independent Evaluations and who pays for them? If dissatisfied with a school district’s evaluation, parents have the right to request an independent evaluation known as an Independent Educational Evaluation (IEE). The school district must provide parents with state requirements pertaining to IEEs and where to get them. Parents are under no obligation to share financial information with the school district, but if they choose to do so, they may be eligible to get a fully or partially funded IEE. The school district must fully pay for an IEE for a student whose family’s income makes him eligible for free or reduced cost school meals. Other income-eligible families may pay for an IEE on a sliding fee scale.33

Parents who choose not to disclose financial information to the school district, are not income-eligible, or are seeking an IEE in an area not previously evaluated by the school district may still be able to get an IEE at no cost. School districts are required to consider providing an IEE at public expense to any family who requests one, even if the family is unwilling to disclose financial information. The school district may decide to either provide the IEE at public expense or to prove, through a hearing before the Bureau of Special Education Appeals (BSEA) hearing, that the school district’s evaluation was comprehensive and a publicly funded IEE is unnecessary. Regardless of whether parents are able to get a publicly funded IEE, they may procure an IEE at their own expense at any time. Within ten school working days after receiving an IEE, school districts must consider the evaluation results and determine whether to make changes to a student’s IEP.34 Parents may be able to find an independent evaluator through a local agency, hospital, or by talking to other parents whose children have similar disabilities. It is important to ensure that any independent evaluator has experience with children who have the disability in question and knowledge of programs or services that may be appropriate. Resources for independent evaluations: DESE, Administrative Advisory SPED 2004-1: Independent Educational Evaluations (Oct. 23, 2003), http://www.doe.mass.edu/sped/advisories/04_1.html SPEDWatch, Independent Evaluations, http://www.spedwatch.org/files/Independent_Evaluations.pdf

33 DESE, Parent’s Notice of Procedural Safeguards 5 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf34 Massachusetts Department of Elementary and Secondary Education, Parent’s Notice of Procedural Safeguards 4-5 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf. See also 603 C.M.R. 28.04 5.c.

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When can a student get a Functional Behavioral Assessment? A Functional Behavioral Assessment (FBA) is a test that school districts must conduct under certain circumstances as part of the process of developing an IEP. An FBA pinpoints the cause, or “function” of a student’s problematic behavior and aims to remedy it with an appropriate intervention addressing the underlying cause. If evaluators believe that behavior is an issue for a child, they should concretely define the problem behavior and conduct an FBA to determine causes for and solutions to the behavior.35 However, student access to FBAs varies because each school district may interpret the guidelines for conducting FBAs differently, and some schools may opt to conduct them less frequently than others.36

Resources for FBAs: OSERS, Questions and Answers On Discipline Procedures (Rev. June 2009), http://idea.ed.gov/explore/view/p/,root,dynamic,QaCorner,7,

35 The Center for Effective Collaboration and Practice, Addressing Student Problem Behavior 4 (1998), http://cecp.air.org/fba/problembehavior/funcanal.pdf. 36 Stephen Starin, Ph.D., Functional Behavioral Assessments: What, Why, When, Where, and Who? 1, http://www.wrightslaw.com/info/discipl.fab.starin.htm.

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IEP/ Services in School Who develops the IEP? An IEP should be developed by the IEP team, a group which includes:

• At least one of the parents. • At least one of the child’s regular education teachers (if the child is currently, or

may be in the future, attending regular education classes.) • At least one of the child’s special education teachers, or where appropriate, at

least one of the child’s special education providers. • A school district representative who meets all of the following criteria:

o Is qualified to provide or supervise the provision of special education services;

o Is knowledgeable about the general education curriculum; and o Has the authority to commit the resources of the school district (i.e., can

approve services that cost money.) o Someone who understands the results of evaluations and how they impact

the way in which the student must be taught. • Whenever appropriate, the student.37

Resources: SPEDWatch, Team Meetings, http://www.spedwatch.org/files/Team_Meetings.pdf. SPEDWatch, Draft IEPs, http://www.spedwatch.org/files/Draft_IEPs.pdf What should an IEP include? A good IEP should provide a clear, comprehensive plan for how a child can participate and succeed in the general curriculum. Perhaps one of the most important elements of IEP is extensive input from parents and, if possible, the child about not only what is realistic for the child but also the child’s future hopes and dreams. Overall, the IEP should address the child’s particular strengths, weaknesses, concerns and desires. In addition to academic supports, an IEP should address needs outside of the classroom such as positive behavioral interventions, communication support, the assistive technology, the use of Braille for visually impaired students, and other considerations unique to the child. IEP goals should be measurable, attainable, challenging, positive, and the IEP should specifically outline how they will be achieved. An IEP should also outline services, supports and an appropriate placement. Furthermore, a good IEP should determine the 37 34 CFR 300.321(a); see also SPEDWatch, Team Meetings, http://www.spedwatch.org/files/Team_Meetings.pdf.

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most appropriate way for the child to take the MCAS, which all students must take regardless of special education status.38 Finally, an IEP for a student age 14 or older must include extensive transition planning for when the student graduates from high school or turns 22.39 What are potential problems in an IEP? Parents should be aware of several potential pitfalls in the IEP development process. An IEP should not provide a low-level, watered down version of the general education curriculum. It should enable the child to succeed in the general education curriculum, with the same opportunities to do so as children without special education needs. An IEP team ought to be careful not to limit an IEP only to what they consider realistic. Such a limitation could prevent a child from reaching his full potential and the hopes and dreams he may be capable of realizing. Moreover, IEP goals should not be vague, immeasurable, or unachievable. Resources: Parents may access the forms and notices that an IEP should include at http://www.doe.mass.edu/sped/iep/eng_toc.html DESE, IEP Process Guide, http://www.doe.mass.edu/sped/iep/proguide.pdf DESE, IEP forms and notices, http://www.doe.mass.edu/sped/iep/eng_toc.html DESE, Parent’s Notice of Procedural Safeguards, http://www.doe.mass.edu/sped/prb/ DESE, A Parent’s Guide to Special Education, http://www.fcsn.org/parentguide/parentguide.pdf SPEDWatch, IEP Delivery Timelines, http://www.spedwatch.org/files/IEP_Delivery_Timelines.pdf (information on the timeframe within which a school district must provide parents with a completed IEP following a team meeting) When and how do I change an IEP? If parents are unsatisfied with an IEP in its final stage of development (before services outlined in the IEP begin) they may choose to either fully or partially reject the plan.

38 The Federation for Special Needs and DESE, A Parent’s Guide to Special Education, 23, http://www.fcsn.org/parentguide/parentguide.pdf. 39 For a discussion of transition planning requirements, see DESE, Technical Assistance Advisory SPED 2009-1: Transition Planning to Begin at Age 14 (Sept. 3, 2008), http://www.doe.mass.edu/sped/advisories/09_1ta.html.

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Sometimes it is a good idea to only reject certain parts of the IEP so that other necessary services may begin.40 If a parent rejects all or part of a proposed IEP, a prior IEP, if one exists, remains effective with respect to the disputed services until a subsequent IEP is accepted by both sides or the dispute is otherwise resolved.41 School districts cannot unilaterally change services without the consent of parents. This concept is commonly referred to as the “stay put” provision because it applies to special education placements as well as other services. If a child is in a placement and the school proposes to move the child, the child may not be moved during the pendency of any dispute between the school district and the parents.42 There are exceptions to “stay put” in certain disciplinary proceedings.43

If parents are unsatisfied with a child’s progress after the implementation of IEP services, they may consult the child’s special education teacher or ask the IEP Team to meet again and discuss making changes to the IEP. With respect to any changes to the IEP, parents must receive notification from the school district and provide written consent.44 In addition, the IEP Team meets at least annually to review a child’s IEP and discuss any possible changes that need to be made, so parents may bring up concerns at these meetings.45

Resources: DESE, IEP forms and notices, http://www.doe.mass.edu/sped/iep/eng_toc.html DESE, A Parent’s Guide to Special Education, http://www.fcsn.org/parentguide/parentguide.pdf DESE, IEP Process Guide, http://www.doe.mass.edu/sped/iep/proguide.pdf SPEDWatch, “Stay Put”, http://www.spedwatch.org/files/Stay-Put.pdf

40 The Federation for Special Needs and DESE, A Parent’s Guide to Special Education, 25, http://www.fcsn.org/parentguide/parentguide.pdf. 41 603 CMR 28.08(7). 42 603 CMR 28.08(7). 43 See SPEDWatch, “Stay Put”, http://www.spedwatch.org/files/Stay-Put.pdf. 44 The Federation for Special Needs and DESE, A Parent’s Guide to Special Education, 25, http://www.fcsn.org/parentguide/parentguide.pdf. 45 The Federation for Special Needs and DESE, A Parent’s Guide to Special Education, 25, http://www.fcsn.org/parentguide/parentguide.pdf.

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What if I need an advocate to come to a team meeting with me? Parents seeking a special education advocate may contact the Federation for Children with Special Needs for a referral list of advocates within their geographic area. Some advocates on this list are available free of charge because they are still fulfilling training requirements. However, most special education advocates on the Federation’s referral list are professionals who charge from $40-$125/hour for their services. The Special Needs Advocacy Network, Inc. also has a referral list predominantly consisting of advocates who charge for their services. Special education advocates are generally not covered by health insurance. Resources: FCSN, A Parent’s Guide to Selecting a Special Education Advocate in Massachusetts, http://fcsn.org/pti/advocacy/advocacy_brochure.pdf What are a student’s rights regarding progress reports, annual re-evaluation and 3-year re-evaluation of the IEP? Parents have a right to stay informed of a child’s educational progress under an IEP through several measures including progress reports, annual re-evaluation and 3-year re-evaluation of the IEP. What are a student’s rights regarding progress reports? Progress reports for children with IEPs must be sent to parents at least as often as parents are informed of a nondisabled child’s progress.46 Progress reports must answer the following two questions for each of the child’s measurable annual goals:

• What is the student’s progress toward the annual goal? • Is the progress sufficient to enable the student to achieve the annual goal by the

end of the IEP period?47

Progress reports should clearly answer these questions by specifying what the student has been working on; listing what the student has achieved; indicating any stumbling blocks to progress; and projecting whether the student will reach the annual goal if progress continues at its current pace.48 Progress reports should be written in clear language that parents will be able to understand. If a child displays a lack of progress, the IEP Team

46 DESE, IEP Process Guide (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf. 47 DESE, IEP Process Guide (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf. 48 DESE, IEP Process Guide (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf.

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should first recommend any refinements to strategies being used in the child’s classroom and then, if it becomes necessary, consider revisions to the IEP.49 What are a student’s rights regarding the annual review meeting? Another important step of the IEP process is the annual review meeting. At the annual review meeting, the Team should review progress made towards the child’s goals, adjust the IEP in any necessary section to ensure the information is current, and add new goals for the next IEP period.50

What are a student’s rights regarding re-evaluations? School districts conduct re-evaluations of children with IEPs every three years. At this point, they must request consent from the child’s parents to do so with prior written consent.51 The school district might also recommend that re-evaluation is not necessary. In this case, the school district may believe that current evaluation information is sufficient to know that a child is still eligible and to write an appropriate IEP.52 However, parents have the right to request that some or all of the assessments from the child’s initial evaluation be conducted again at the re-evaluation if they believe this to be necessary. If requested, school districts must provide these assessments.53

What is a parent’s right to observe classes?

Parents have the right to observe any program(s) proposed for their child if the child is identified as eligible for special education services.54

State law limits the restrictions or conditions that schools may put on the ability of parents, evaluators or consultants to observe a child in class.55 The purpose of this law is to ensure that parents can participate fully and effectively in determining the child's appropriate educational program.56 In addition, school committees must have an efficient and effective process in order to provide timely and sufficient access to classroom

49 DESE, IEP Process Guide (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf. 50 DESE, IEP Process Guide (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf. 51 DESE, Parent’s Notice of Procedural Safeguards 2 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf. 52 The Federation for Special Needs and DESE, A Parent’s Guide to Special Education 16, http://www.fcsn.org/parentguide/parentguide.pdf. 53 The Federation for Special Needs and DESE, A Parent’s Guide to Special Education 16, http://www.fcsn.org/parentguide/parentguide.pdf. 54 603 CMR 28.07(1)3. 55 G.L. c. 71B, § 3 (as amended by Chapter 363 of the Acts of 2008). 56 DESE, Technical Assistance Advisory SPED 2009-2: Observation of Education Programs by Parents and Their Designees for Evaluation Purposes, http://www.doe.mass.edu/sped/advisories/09_2.html.

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observation; the process should be used to respond to requests by a parent, parent-designated independent evaluator, or educational consultant.57 Resources: DESE, Technical Assistance Advisory SPED 2009-2: Observation of Education Programs by Parents and Their Designees for Evaluation Purposes,http://www.doe.mass.edu/sped/advisories/09_2.html SPEDWatch, School Observations, http://www.spedwatch.org/files/School_Observations_Oct_2008.pdf What mental health resources do schools have — both for children with and without special education services? Massachusetts schools usually have a mental health support staff available for all students. This can include guidance counselors, adjustment counselors, and school psychologists. The type of staff available might vary between school districts. Most school districts have websites that list the staff at the schools, and it is likely that you can find out what personnel are available by going to your school’s website. Some schools have received the Trauma-Sensitive School Grant, which provides funding for schools to adopt strategies to become trauma sensitive. Massachusetts also has a School-Based Health Center Program. This program funds health center within some of the schools that are operated by outside providers, such as hospitals, community health centers, and local health department. The newly passed state Anti-Bullying Law requires that schools implement training for all school staff about bullying and its effect, and so eventually all teachers will be able to assist students to some degree, and can certainly help students in accessing other mental health resources within the schools.58

Schools can also provide a referral to Community Service Agencies (CSAs). CSAs provide wrap-around, home based services for qualified families whose children receive MassHealth services and have serious emotional disturbance. See also How do I advocate for services for my mentally ill child if not child is not displaying problems in school? Resources:

57 G.L. c. 71B, § 3 (as amended by Chapter 363 of the Acts of 2008). 58 G.L. c. 71, § 370(d).

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Massachusetts Advocates for Children, Trauma and Learning Policy Initiative, http://www.massadvocates.org/trauma-learning.php DESE, Trauma Sensitive Schools, http://www.doe.mass.edu/tss/ DPH, School Based Health Centers, http://www.mass.gov/dph/schoolbasedhealthcenters Mass. Coalition of School-Based Health Centers, http://www.mcsbhc.org/ DESE, Bullying Prevention and Intervention Resources, http://www.doe.mass.edu/bullying/ Mass. Behavioral Health Partnership, Community Service Agencies by Service Area or Specialty Population, http://www.masspartnership.com/doc/CSAWinnersforPosting03_6_09.pdf What is the education surrogate parent program of DESE? Children in the care or custody of the Department of Children and Families (DCF) may be able to access an educational surrogate parent (ESP) who will make decisions related to the child’s special education needs when the child’s parents are unable or unavailable to do so.59 Whether or not the child is eligible for an ESP depends on the reason why the child is in DCF custody – for example, all children in DCF custody for protective reasons are entitled to an ESP, but children in care or custody for child related issues as distinct from parental issues are likely not to be appointed an ESP.60 If a child is in need of and eligible for an ESP, a DCF worker should refer the child to the ESP Program.61 If a child

59 Memorandum from Lewis H. Spence, Commissioner of the Massachusetts Department of Social Services and David P. Driscoll, Commissioner of the Massachusetts Department of Education to DSS Staff, Administrators of Special Education, and Directors of Massachusetts Private Special Education Schools 2 (Oct. 28, 2002), http://www.sespprogram.org/documents/DSSDoememo_guidelines.pdf. 60 Memorandum from Lewis H. Spence, Commissioner of the Massachusetts Department of Social Services and David P. Driscoll, Commissioner of the Massachusetts Department of Education to DSS Staff, Administrators of Special Education, and Directors of Massachusetts Private Special Education Schools 3-4 (Oct. 28, 2002), http://www.sespprogram.org/documents/DSSDoememo_guidelines.pdf. 61 Memorandum from Lewis H. Spence, Commissioner of the Massachusetts Department of Social Services and David P. Driscoll, Commissioner of the Massachusetts Department of Education to DSS Staff, Administrators of Special Education, and Directors of Massachusetts Private Special Education Schools 4 (Oct. 28, 2002), http://www.sespprogram.org/documents/DSSDoememo_guidelines.pdf.

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is in foster care, DCF will usually request that the Program appoint a child’s foster parent as his ESP.62 Resources: Mass. Special Education Surrogate Parent Program, http://www.sespprogram.org/ and http://www.sespprogram.org/documents/DSSDoememo_guidelines.pdf DESE, Guidance on Appointment of Educational Surrogate Parents (Nov. 4, 2002), http://www.doe.mass.edu/sped/2002/news/1104memo.html

62 Memorandum from Lewis H. Spence, Commissioner of the Massachusetts Department of Social Services and David P. Driscoll, Commissioner of the Massachusetts Department of Education to DSS Staff, Administrators of Special Education, and Directors of Massachusetts Private Special Education Schools 5 (Oct. 28, 2002), http://www.sespprogram.org/documents/DSSDoememo_guidelines.pdf.

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IEP Placement Options How do I advocate for accommodations and services in the regular classroom setting? Massachusetts regulations state that a school must provide education within the least restrictive environment, which means that schools are required to integrate the special education students into the mainstream school environment as much as possible.63 Maintaining special education students in the regular classroom setting is known as “inclusion.” An alternative to full inclusion is partial inclusion where a student receives some services in the regular classroom setting and is pulled out to receive some specialized services in another setting. The appropriate balance of regular classroom and specialized services will depend on the student. To succeed in regular classroom settings, special education students may seek a range of accommodations, services and supports such as modifications to assignments, adapted teaching methods and adapted learning methods. For youth with mental health issues there are some particular modifications and services that can be helpful. For example, an IEP may provide regular and/or as needed access to in-school mental health services. IEPs may also provide that students can avail themselves of certain options, such as a self-directed time out, when they are experiencing emotional stress. IEPs also can incorporate behavior plans that guide teacher and other school staff response when a student exhibits certain targeted behaviors or is in crisis. An IEP may provide access for a student to a classroom aide or even may provide a 1:1 aide in a classroom setting. To advocate for accommodations and services, it is necessary to assemble documentation as to how your child is doing in the classroom. Request your child’s educational records from the school. It is also helpful to have clinical support from individuals who have worked with and/or evaluated your child for the specific accommodations and services that you are requesting. You may want to observe your child or have a professional observe your child in the classroom. You may want to clarify your child’s mental health diagnosis and symptoms and organize the documentation of those conditions. Such information should inform the discussion of the IEP. You also should organize the information regarding what mental health services and supports your child currently receives (as well as those services that have worked and not worked for your child in the past). You should explore whether there are any additional services and supports available in the community for your child. 63 34 CFR § 300.114(a)(2); 603 CMR 28.06(2).

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You may want to consult with educational advocates as to what accommodations and services might be appropriate for your child. Resources: SPEDWatch, Least Restrictive Environment, http://www.spedwatch.org/files/lre.pdf How do I advocate for a substantially separate classroom, a day school, or residential services? As explained above, Massachusetts schools must provide education within the least restrictive environment.64 The school is also required to look to an in-district placement before considering out-of-district placement.65 The schools are required to provide the resources necessary to provide the student with a free and appropriate education, and if you feel that this can only be accomplished with a separate program or residential placement, then it may be necessary to advocate for it. When advocating for these types of placements, it is helpful to show that other services have already been tried and were not sufficient to provide your child with FAPE.66

In particular, it is often difficult to have residential services written into the IEP. It is not uncommon for parents to have to submit an appeal to the Board of Special Education Appeals (BSEA) in order to obtain residential services for their children. It is usually necessary to show not only that the child requires 24-hour care and programming, but that without this, the child will not receive a free and appropriate education. This has been successful in previous cases, such as by showing that a student’s social, emotional, and behavioral deficits were his most substantial educational needs, which could only be addressed by a residential placement.67 It is essential to show that the placement is needed for education purposes. Providing expert witnesses who can attest to the necessity of a residential placement will also greatly strengthen the appeal, as the parents bear the burden of persuading the court that the placement is necessary if the school disagrees.68 For example, in one case, the BSEA was persuaded by a psychologist who testified that it was unlikely that the student

64 34 CFR § 300.114(a)(2); 603 CMR 28.06(2). 65 Id. 66 See In Re: Dracut Public Schools,13 MSER 280 (2007) (Parents’ request for residential placement was denied because Hearing Officer found a new approach had been improving the student’s attendance, and neither intensive home services nor DDS services had been tried); In Re: Wayland Public Schools, 13 MSER 71 (2007) (Parents won reimbursement for unilateral residential placement after Hearing Officer found highly structured therapeutic academic residential program was necessary for educational progress because numerous less restrictive options had been tried and proved ineffective). 67 See In Re: Fall River Public Schools, 15 MSER 189 (2009). 6

8 See In Re: North Andover Public Schools, 14 MSER 14 8 (2008). See also In Re: arblehead Public Schools, 14 MSER 39 (2008).

M

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could successfully be provided with services outside of a residential placement, because he needed trained staff that would be constantly available to respond to the student’s aggressive behavior.69 Additionally, it may be necessary to have a specific recommendation for residential placement in an evaluation (whether the evaluation conducted by the school or an independent evaluation).70 If your child is receiving services from a state agency, such as the Department of Mental Health, then it may be possible to join them as a party in the appeal. The BSEA has the power to order state agencies to provide services that are necessary to enable the student to access educational services provided by the school district.71 Parents may request the joinder of an additional party by submitting a written request. If the Hearing Officer finds that this third party bears some of the responsibility for providing the necessary services, then it may order the agency and the school district to share the financial responsibility of the placement. Resources: SPEDWatch, Out-of-district placements, http://www.spedwatch.org/files/Out_of_District_Placements.pdf SPEDWatch, Sole Source Placement, http://www.spedwatch.org/files/sole_source_placement.pdf How do I evaluate a therapeutic school/collaborative school? What should I ask during a visit? When determining what therapeutic or collaborative school might be appropriate for your child, it is very important to visit the schools so that you can see the environment first-hand. Parents should ask to see the classroom that would be appropriate for their child, and if it is a residential placement, to see the residential facilities. It is also important to come prepared with questions. Some examples of good questions include: • What kind of clinical support services are available to the students? • What is the makeup of the student body, and about how long does each of the

students remain at the school? • What are the credentials or experience levels of the educational and other staff

members? • What emergency facilities are available to the school, and how often are they used? • Are there vocational or employment resources on or off campus?

69 See In Re Lunenberg Public Schools, 10 MSER 518 (2004). 70 See In Re North Andover Public Schools, 14 MSER 14 8 (2008),. See also Marblehead Public Schools, 14 MSER 39 (2008). 71 603 CMR 28.8(3); Massachusetts Hearing Rules for Special Education Appeals, Rule 1J.

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• For residential placements: What residential services are in place? Are there trips off campus? If so, how can the students access them?

It is also a good idea to ask for the student handbook, and to talk to other parents with children in therapeutic schools. Resources: An easy way to contact other parents is through parent support groups or other networks, such as the Parent/Professional Advocacy League (PPAL) (www.ppal.net/default/), the Massachusetts Association of Approved Private Schools (MAAPS) (http://www.maaps.org), or the special education parent advisory council in your school district. National Association of Therapeutic Schools and Programs, Selecting the “Right” Therapeutic School or Program, http://www.natsap.org/right-school.asp gives criteria and questions to ask when evaluating potential programs for your child. How do I find an appropriate special education day school or special education residential school? There are a number of sources for information about special education programs. Your school district will have suggestions and may be able to speak from past experience about some programs. Other parents and parent advocates will be able to speak about their experiences. One helpful parent group is the Parent Professional Advocacy League as they have regional support groups where you could learn about programs in your geographic area. Special education advocates can also suggest appropriate programs. If your child has a disability requiring specialized services, like autism or fire-setting, contact organizations that advocate for youth with such issues for their suggestions. If your child is involved with a state agency, such as DMH or DCF, ask to speak to staff at those agencies who are familiar with special educational placements and have followed clients placed in the past. The Massachusetts Association of 766 Approved Private Schools’ maintains a complete listing of approved private special education schools. You can search the directory of Chapter 766 private special education schools or related educational programs or services on line. Resources: Massachusetts Association of 766 Approved Private Schools, Membership Directory, http://memberdir.maaps.org/MAAPS-Community/DesktopModules/Directory.aspx Parent Professional Advocacy League, PAL Affiliated Parent Support Groups, http://ppal.net/default/Resources/ParentSupportGroupNetwork/tabid/74/Default.aspx

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What kinds of public school settings are available outside the traditional school setting? There are a range of public school options beyond the regular public school setting including alternative education schools, educational collaboratives, and charter schools? Resources: DESE, Profiles, http://profiles.doe.mass.edu/ (to find collaboratives, alternative education programs, or charter schools) What are alternative education schools? Alternative education schools are public schools that serve at-risk students whose needs are not being met in the traditional school setting. Unlike alternative education programs within public schools, alternative education schools are self-contained.72 Students in alternative education schools should learn the same curriculum as students in all other Massachusetts public schools. The Massachusetts Department of Elementary and Secondary Education provides some guidelines on how to determine the quality and appropriateness of alternative education programs, in addition to general information on alternative education at http://www.doe.mass.edu/alted/faq.html. Resources: DESE, Alternative Education: Frequently Asked Questions and Promising Practices, http://www.doe.mass.edu/alted/faq.html What are educational collaboratives? Educational collaboratives provide inter-district public school services to students with a variety of needs, including mental health issues. Students who use collaborative services have usually not been able to function successfully in traditional school settings. Collaborative services range from supports in regular education settings to separate therapeutic schools. Collaboratives are public schools. Resources: Mass. Organization of Educational Collaboratives, http://moecnet.org/ What are charter schools? Charter schools are also part of the public education system. Therefore, charter schools must abide by federal special education laws and regulations.

72 DESE, About Alternative Education, http://www.doe.mass.edu/alted/about.html?section=definition.

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Resources: DESE, Massachusetts Primer on Special Education and Charter Schools (Feb. 2009), http://www.doe.mass.edu/charter/sped/primer_sI.doc What are a special education student’s rights regarding private schools? Special education students may be placed in an approved private school if the IEP Team makes such a determination. In such cases where an out-of-district placement (which includes private schools) is written into the student’s IEP, tuition should be paid at public expense.73 Publicly funded students have the same substantive and procedural rights as other special education-eligible students.74 Special education schools, public or private, cannot terminate enrollment of a student until his public school district is informed and agrees to assume responsibility for the student. The school must wait up to two calendar weeks to terminate enrollment if the public school district makes such a request. In this period, the school district may convene emergency IEP team meetings or other planning discussions. The period may be extended beyond two weeks with mutual agreement.75

Furthermore, special education-eligible students attending private schools at private, not public expense have the right to genuine opportunities to participate in their public school district’s special education program.76 The school district must evaluate students attending private schools and, if necessary, provide them with an IEP.77 The district is also responsible for providing any services outlined by the IEP. Furthermore, these services should be comparable in quality, scope, and opportunity for participation to special education services that eligible public school students receive.78

73 603 C.M.R. 28.09 (4)(b). 74 603 C.M.R. 28.06 3 (f)(4). 75 603 C.M.R. 28.09, 12(b). 76 603 C.M.R. 1(e)(1). 77 603 C.M.R. 1(e) (2). 78 603 C.M.R. 1(e) (4).

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Transition Planning What are the new transition planning requirements of IDEA 2004? The federal Individuals with Disabilities Education Improvement Act (IDEA-2004) requires that transition planning for special education students take place when a student turns 16 years of age or younger. However, a Massachusetts law passed in 2008 mandates that transition planning begin at age 14; therefore, all Massachusetts special education students must now begin this process at age 14.79 School districts must annually document discussions of the student’s transition planning meetings.80 In addition, the student must be invited to all IEP meetings and other meetings discussing transition planning. The IEP that a student will have upon turning 14 years of age should, if necessary, include goals related to postsecondary training, education, employment, and independent living skills.81

A Transition Form serves as official documentation of transition planning, and should cover the following topics:

• A “post-secondary vision” for the student’s life after high school. All the services, goals and actions in the plan should support this vision.

• An explanation of the student’s needs that require IEP goals and services. • An outline of how the student can develop independent living skills. • How the school will help the student develop academic and functional skills

needed for activities like college, work, budgeting, using public transportation and a lot more.

• The role and actions of school personnel, family members, adult service providers, and other community members.82

79 G.L. c. 71B, § 3 (as amended by Chapter 363 of the Acts of 2008). 80 DESE, Administrative Advisory SEPD 2006-1: Reauthorization of the Individuals with Disabilities Education Act—Initial Implications for School District Practices, http://www.doe.mass.edu/sped/advisories/06_1.html#; DESE, Technical Assistance Advisory SPED 2009-1: Transition Planning to Begin at Age 14, http://www.massadvocates.org/uploads/2-/mP/2-mPCuu5DaxVOTu7YT76Zw/Special-Ed-Transition-Law.pdf. 81 DESE, Administrative Advisory SPED 2006-1: Reauthorization of the Individuals with Disabilities Education Act --Initial Implications for School District Practices (Aug. 1, 2005), http://www.doe.mass.edu/sped/advisories/06_1.html# 82 Leslie Lockhart and Claire Bolton, Transition Planning (Mar. 23, 2010) (unpublished video script, on file with MHLAC).

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The information in the Transition Form must be written into the IEP as goals and services. Once the parent or guardian signs the IEP with transition services, the school district is mandated to provide them.83

However, a good IEP Team should do much more than simply filling out the official form. Transition planning should also include assessments, planning and services to help the student transition to adult life and be as independent as possible when he/she graduates from high school or turns 22.84 Transition planning should lay out a coordinated set of activities that will help the student successfully move to life after school. It should help the student access opportunities such as college, vocational education, employment, continuing and adult education, adult services, independent living or community participation. The student’s goals and vision for his/her future should shape what the services will be, and should also fit his/her individual strengths, interests and needs.85

The transition plan is meant to be inclusive and may go beyond what the school’s special education department provides. The student, parent or guardian, school district, general and special education services, community partners, and other agencies should all play a role in making sure the student has a smooth transition to adult life. However, the school district does need to provide or arrange for services that are written in the IEP. The student and parent or guardian are entitled to play active roles in this process.86 Resources: The Federation for Children with Special Needs has a number of good resources on transition planning, including the following two. The Federation for Children with Special Needs, Transition Tips, http://www.fcsn.org/pti/topics/transition/tools/tips.pdf The Federation for Children with Special Needs, Transition, http://www.fcsn.org/pti/topics/transition/index.html DESE, Transition Planning Form, http://www.doe.mass.edu/sped/28MR/28m9.pdf DESE, Transition Planning Form (completed sample), http://www.doe.mass.edu/sped/links/waltertpf.pdf Are special education youth entitled to services after graduation from secondary school?

83 Id. 84 Id. 85 Id. 86 Id.

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Special education students have a right to services until age 22 or until their IEP goals are met.87 Even if a student has received a diploma, if they had not been provided with appropriate transition services, then the student may still be entitled to special education services.88 Are special education youth entitled to transition services even if they have graduated from secondary school? A 2008 Board of Special Education Appeals decision in Dracut, Mass. ruled that the school district had failed to provide appropriate transition assessments under IDEA to a student with Asperger’s syndrome and ADHD prior to graduating.89 As a result, the court ruled that the student was entitled to two years of compensatory transition planning services under Massachusetts regulations.90 This ruling indicates that if a school district has failed to provide appropriate transitional planning, then a student may be entitled to transition services even after the student has graduated. Transition planning must include transition assessments related to training, education, employment, and where appropriate, independent living skills, so that the appropriate services are put in place.91

87 See 603 CMR 28.02(9). 88 See In Re Dracut Public Schools, 15 MSER 78 (2009). The decision was substantially affirmed by Dracut Public Schools v. BSEA, DESE, P.A. & C.A., No. 09-10966-PBS (D. Mass. 2010). 89 In Re Dracut Public Schools, 15 MSER 78 (2009). The decision was substantially affirmed by Dracut Public Schools v. BSEA, DESE, P.A. & C.A., No. 09-10966-PBS (D. Mass. 2010). 90 Id. 91 20 USC § 1414 (d)(1)(A)(i)(VIII)(aa); see also 34 CFR § 300.320(b).

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Chapter 688 Referral What is Chapter 688? Chapter 688 of the Acts of 1983 provides, in Massachusetts, a two-year planning process to young adults with severe disabilities once they have either graduated from high school or turned 22 and are no longer able to receive special education services. Chapter 688 differs from the transition planning requirements of students with IEPs in that it applies only to young adults who are too disabled to begin competitive employment, continue on to college and lead independent lives as adults.92 Instead, the Chapter 688 transition planning process aims to determine the day, vocational, residential and support services that the young adult needs to continue to learn, develop and grow.93 An adult human service state agency will work with a 688-eligible young adult to identify these services and create an Individual Transition Plan (ITP).94 An ITP should be completed before the young adult graduates or turns 22, depending on which comes first.95

All young adults with disabilities must be receiving special education services in Massachusetts paid for by their school district in order to be eligible for Chapter 688 services. In addition, individuals receiving SSI or SSDI based on their disability and individuals listed in the registry of the Massachusetts Commission for the Blind are eligible. These individuals must be in need of continuing services due to the severity of their disability and unable to work 20 or more hours per week in competitive employment.96

Referrals to Chapter 688 are made by school districts through a young adult’s IEP Team. The school district must obtain consent of the young adult, parent or guardian to forward the young adult’s records to the appropriate human services agency.97 The human services agency working with the young adult must develop the ITP in conjunction with the young adult, his family, and school system personnel.98 Chapter 688 can be beneficial to young adults with severe disabilities and their families because it allows them to plan and advocate for the young adult’s needs upon graduating

92 Bureau of Transitional Planning & DESE, A Guide to Chapter 688: Massachusetts’ Transitional Planning Program (rev. 2007), http://www.doe.mass.edu/sped/688/brochure.pdf. 93 Id. 94 Id. 95 Id. 96 Id. 97 Id. 98 Id.

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or turning 22 before it occurs. This also prepares human service agencies to provide the appropriate services. However, an ITP is not an entitlement to services and supports from a human service agency; such services and supports remain contingent on the funding and capacity of the agency.99 Resources: DESE, Special Education: Chapter 688, http://www.doe.mass.edu/sped/688/ DESE, A Guide to Chapter 688: Massachusetts’ Transitional Planning Program, http://www.doe.mass.edu/sped/688/brochure.pdf

99 Id.

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After School Programming How can I access out of school time programming for my child? School districts are required to provide whatever services are necessary for special education students to access the general curriculum.100 These services include providing instruction or services outside of regular school hours.101 Special education students also have a right to participate in extracurriculars; such extracurriculars should be included in a student’s IEP.102

In order to access these services, this topic must be discussed at a TEAM meeting, and the necessary service must then be written into your child’s IEP.103

What is my right to access afterschool programming without facing discrimination? Under the protections of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA), children with disabilities should be able to access afterschool or out-of-school-time programming without facing discrimination. Program directors should become familiar with a child’s situation and, if applicable, read the child’s IEP to better understand his needs. Programs should then make reasonable accommodations to allow the child to participate effectively. The definition of the term “reasonable” depends on the capacity of the program to accommodate a child, including its budget, size, and potential disruption to the program that the accommodation may cause. Parents and advocates should document all efforts to request reasonable accommodations in writing and cite a child’s legal protections under Section 504 and the ADA, particularly if facing difficulty obtaining such modifications for a child.104 How do I find afterschool programming? There are many resources for afterschool programming. For example, the Afterschool Alliance has a guide on finding afterschool programs. Additionally, the Youth Advocacy Department’s “Out of School Time” Community Notebook has a list of Boston area programs. Mass Resources is another good source of after school and summer programs.

100 603 CMR 28.05(4)(d). 101 603 CMR 28.05(4)(b). 102 20 U.S.C. 1412(a)(5); 34 CFR 300.117. 103 603 CMR 28.05(4). 104 Robert K. Crabtree, Esq., Kotin, Crabtree & Strong, LLP, Section 504: Accommodations & After-School Programs, http://www.wrightslaw.com/info/sec504.afterschool.crabtree.htm.

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Resources: Afterschool Alliance, Find an Afterschool Program, http://www.afterschoolalliance.org/myCommunityFind.cfm Mass Resources, Resources for Youth, http://www.massresources.org/area_assistance.cfm?pageID=26&MainPage='yes'Youth Advocacy Department, “Out of School Time” Community Notebook, http://www.youthadvocacyproject.org/notebooks.htm When can I and how do I get home tutoring for my child? DESE provides a list of supplemental educational services that are available free of charge to students from low-income families who attend underperforming schools. Parents should consult their school district to find out if a child is eligible for these services. Resources: DESE, Supplemental Educational Services, http://www.doe.mass.edu/ses/ DESE, Moving Ahead – Pathways to Success on the MCAS, http://www.doe.mass.edu/as/pathways/ (list of programs and services that provide free assistance with MCAS preparation) International Dyslexia Association, IDA Provider Directory by state, http://www.interdys.org/FindAProviderUnderConstruction.htm (providers, including tutors, for children who have learning disabilities and reading problems) What are my rights regarding transportation to and from school? School districts that provide transportation to students without disabilities must make the same transportation services available to disabled students.105 If the school does not provide transportation to students without disabilities, then IEP teams can include “special transportation” as a related service on an IEP if the Team determines such services to be necessary.106 In making the decision about whether to provide transportation or special transportation, the IEP team must analyze “whether the student requires transportation because of his or her disability in order to benefit from special education.” 107 Moreover, when “special transportation” is being considered, a team must conduct this analysis, and may not

105 603 CMR 28.05(5)(a). 106 603 CMR 28.05(5)(b). 107 603 CMR 28.05(5).

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simply argue that regular transportation is warranted as it is less restrictive than special transportation.108

Special transportation may include accommodations such as special or adapted buses, lifts, and ramps.109 As with all IEP related services, transportation accommodations should be provided at no cost to the child’s family.110

108 See Chicopee Public Schools & Oakley, BSEA # 11-2568 (2010). 109 603 CMR 28.05(5)(b)1. 110 National Information Center for Children and Youth with Disabilities, Related Services - A Closer Look, http://www.wrightslaw.com/info/relsvcs.indepth.htm .

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School Disciplinary Actions What do I do if my child is acting out in school? If your child is acting out in school, try to find out why. Is your child having interpersonal problems with another student that can be resolved by a guidance counselor, school social worker or teacher? If you think your child may be acting out because of an untreated physical, mental or emotional disability, think about asking the school district for a special education evaluation (see section on IEPs). Whatever the issue, it is best to intervene early and to be familiar with the school district’s policies on school discipline. What are school resource officers/police officers doing in schools? School Resource Officers are trained law enforcement officials stationed in public schools for the ostensible purpose of improving school safety. They are able to make school-based arrests. Although their presence can make schools safer, there have been documented incidences of inappropriate, rights-violating interventions by School Resource Officers.111 If schools are going to have School Resource Officers, ways exist to make their presence more helpful to students.112 Resources: For further information on student rights regarding School Resource Officers, parents should ask if the school district has a policy detailing the intended role of SROs. How do I protect my children from school discipline, including suspension and expulsion? Superintendents must publish a school district’s policies regarding the expected conduct of students and teachers. These policies must include, among other topics, a discussion of disciplinary proceedings, standards and procedures for suspension and expulsion of students, and procedures pertaining to discipline of students with special needs. The

111 ACLU, Hard Lessons: School Resource Officer Programs and School-Based Arrests in Three Connecticut Towns (2008), http://www.aclu.org/files/pdfs/racialjustice/hardlessons_november2008.pdf 112 Johanna Wald and Lisa Thurau, First, Do No Harm, How Educators and Police Can Work Together More Effectively to Preserve School Safety and Protect Vulnerable Students: A CHHIRJ Policy Brief (March. 2010), http://charleshamiltonhouston.org/assets/documents/news/FINAL%20Do%20No%20Harm.pdf (recommendations on how School Resource Officers may be more effectively deployed so as to better protect students’ rights).

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district must provide copies of these policies free of charge to anyone who requests them.113

In addition, school districts must publish and distribute a student handbook outlining these policies as they relate to the conduct of students. The district should revise this handbook annually.114 Generally, any student found in possession of a dangerous weapon or controlled substance on school premises is subject to expulsion, as is any student who assaults a school staff member on school premises or at a school-sponsored or school-related event. Students charged with such a violation have the right to a hearing with representation and the opportunity to provide evidence and witnesses to the school principal. At a hearing, the principal may decide to suspend or expel the student.115 An student for one of these reasons has the right to appeal his expulsion to the superintendent within ten days from the date of the expulsion. 116 The student has a right to counsel at a hearing before the superintendent.117 Furthermore, other school districts in Massachusetts have no obligation to admit or provide educational services to an expelled student.118

In addition, a public school principal may move to permanently expel a student if, while enrolled, the student is adjudicated a delinquent for a felony offense and if the principal believes that the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school.119 The school must provide the student with written notice of the charges and the reasons for such expulsion prior to such expulsion taking effect.120 A student may appeal an expulsion under this provision to the superintendent.121 Moreover, if a student has been properly expelled under this

113 G.L. c.71, § 37H. 114 G.L. c.71, § 37H. 115 G.L. c. 71, § 37H. 116 G.L. c. 71, § 37H(d). 117 G.L. c. 71, § 37H. 118 G.L. c. 71, § 37H. 119 G.L. c. 71, § 37H1/2(2). 120 G.L. c. 71, § 37H1/2(2). 121 G.L. c. 71, § 37H1/2(2). The suspension remains in effect prior to any appeal hearing. The student must notify the superintendent, in writing, of his request for an appeal no later than five calendar days following the effective date of the expulsion. The superintendent must hold a hearing with the student and the student’s parent or guardian within three calendar days of the expulsion. At the hearing, the student shall have the right to present oral and written testimony on his behalf, and has the right to have a lawyer present. The superintendent may overturn or alter the decision, including recommending an alternate educational program for the student. The superintendent must issue a decision within five calendar days of the hearing. Such decision shall be the final decision of the school district. G. L. c. 71, § 37H1/2(2).

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section, no other school district in Massachusetts has to enroll or provide educational services to that student.122

Resources: MHLAC, Just for Youth, Chapter 20 – Education in the Community, http://www.mhlac.org/justforyouth.html.

Children’s Law Center of Massachusetts, School Suspension and Expulsion, http://www.clcm.org/student_suspension.htm DESE, Discipline of Special Education Students Under IDEA 2004, http://www.doe.mass.edu/sped/IDEA2004/spr_meetings/disc_chart.pdf DESE, Advisory Opinion on School Discipline (2005), https://www.doemass.org/lawsregs/advisory/discipline/ATT124.html?subsite= OSERS, Questions and Answers On Discipline Procedures (Rev. June 2009), http://idea.ed.gov/explore/view/p/,root,dynamic,QaCorner,7, American Civil Liberties Union of Massachusetts, “Know Your Rights”, http://www.aclum.org/students/StudentRights.pdf (discussing the civil rights of students in school) What should I do if my child chronically won’t go to school or can’t get up to go to school? If a child has attendance issues, it may be possible to successfully address them with a school guidance counselor, social worker, teacher or outside behavioral health specialist. New in-home services through Community Service Agencies (CSAs) may enable you to have a clinician or other professional come to your home to address the problem (for more information about CSAs, see Schools and Rosie D. Implementation). If the child has an IEP, emphasize that it include specific services that address his attendance problems. A student who is frequently missing school is likely not making expected progress, which means the IEP Team has a responsibility to address this issue. Furthermore, an IEP should include positive behavioral interventions and supports, which should extend to students whose behavioral problems prevent them from attending school.123 If a child does not have an IEP, a parent, teacher or other school staff member could refer the child for evaluation, discussed above.

122 G.L. c. 71, § 37H1/2(2). 123 The Wrightslaw Way to Special Education Law and Advocacy, Sleep Disorders, Truancy and Student Needs: A Complicated Mix (2009), http://www.wrightslaw.com/blog/?p=386.

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If your child must remain at home or in a hospital for medical reasons, for a period of longer than 14 days in a given school year, the school is required to provide educational services in the home or hospital.124 A doctor’s note must verify the medical condition. These services must be provided with enough frequency to allow your child to continue his or her educational program, so long as they do not interfere with the medical needs of your child.125

Resources: DESE, Question and Answer Guide on the Implementation of Educational Services in the Home or Hospital, 603 CMR 28.03(3)(c) and 28.04(4) (Rev. Feb. 2005), http://www.doe.mass.edu/pqa/ta/hhep_qa.html DESE, Physician’s Statement for Temporary Home or Hospital Education, http://www.doe.mass.edu/pqa/ta/hhep_qa.html What protections against discipline do special education students enjoy? Under IDEA, certain additional protections exist for children who are eligible for special education services and who are disciplined by the school by removal. These protections generally depend on the number of days a student is removed from school. These provisions are as follows:

• If a student is removed from school for less than ten consecutive days, and the total number of days they have been removed in that school year is less than ten days total, the district may “exclude” the student without an obligation to provide Free and Appropriate Public Education (FAPE) as usual.126 This means the school district has no obligation to provide services that the student regularly receives during this period of exclusion. Exclusion can mean suspension, removal or assignment to an interim alternative educational setting.127

• If a student is removed from school for less than ten consecutive days, but the total

number of days they have been removed in that school year is more than ten days total, there are two possible outcomes.128 It depends on whether the current removal one in a series that is a pattern of removal constituting a change of placement.129

124 603 CMR 28.03(3)(c). 125 Id. 126 34 CFR 300.530(d)(3). 127 DESE, Discipline of Special Education Students under IDEA 2004, http://www.doe.mass.edu/sped/IDEA2004/spr_meetings/disc_chart.pdf. 128 Id. 129 34 CFR 300.536; DESE, Discipline of Special Education Students under IDEA 2004, http://www.doe.mass.edu/sped/IDEA2004/spr_meetings/disc_chart.pdf.

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• If no, by the 10th cumulative school day of removal in the same school year, the district must consult with at least one of the student’s teachers to determine the extent to which FAPE services are needed to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting IEP goals.130

• If yes, a change of placement for disciplinary reasons may be considered. The

student is still entitled to FAPE services, as determined by the IEP team.131 The school and parents and IEP team will conduct a manifestation determination hearing within 10 school days of decision to remove student for disciplinary reasons.132

What is a manifestation determination hearing?

A manifestation determination hearing must be held when school personnel recommend a long-term suspension (more than 10 school days), when a student is approaching ten cumulative days of suspension, or when the schools is considering a change of placement for disciplinary reasons.133 The purpose of the hearing is to determine if the student's inappropriate behavior is substantially related to the student's disability.

A manifestation determination hearing asks the following questions: Is the conduct a direct result of the district’s failure to implement the IEP? Does the conduct have a direct and substantial relationship to the disability?134

What if the answer to both questions is no?

If the answer to both of these questions is no, it is determined that the student’s conduct is not a result of his disability. The student will return to his original placement once back in school. As long as the student is removed from school, he should receive FAPE services as necessary. The student may also receive a functional behavioral assessment and behavioral intervention services and modifications

What if the answer to either question is yes?

However, if the answer to either question is yes, it is determined that the student’s conduct is a result of his disability. In this situation, the school district should review the IEP if they believe the misconduct is because of a failure to implement the IEP. They should also conduct a functional behavioral assessment and develop a behavioral implementation plan, or review and modify an existing plan as needed.135 The student

130 34 CFR 300.5 30(d)(4). 131 34 CFR 300.530(d)(5). 132 34 CFR 300.530(e). 133 34 CFR 300.530(e). 134 34 CFR 300.530(e)(1). 135 34 CFR 300 530(f)(1).

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should return to his original placement unless the parents and school district agree to a different placement, a hearing officer orders a different placement, or if the removal fits under “special circumstances” as described in federal regulations.136

Who attends the manifestation determination hearing?

The manifestation hearing team will include the student's IEP team and other qualified personnel. The director of special education, or designee, will preside at the hearing. The manifestation designee may be any staff member trained by the special education director in conducting manifestation hearings. Currently all principals, assistant principals, and school psychologists are trained.

What is the procedure for a manifestation determination hearing?137

• The principal or designee will send prior written notice, a meeting notice, and procedural safeguards to the parents and will notify the special education director and appropriate district administrators.

• The principal or designee will notify the IEP team. • At the hearing, the principal or designee will describe student's alleged

misconduct. • The principal or designee will complete a manifestation determination report

(Form SP130) • The special education director or designee will make a manifestation

determination. • The special education director or designee will give a copy of the manifestation

determination report to the parents. • A manifestation hearing must take place no later than 10 calendar days after the

date on which the decision is made to conduct a hearing.138

Resources: The federal regulation on manifestation determination is found at 34 CFR 300.530(e), http://idea.ed.gov/explore/view/p/%2Croot%2Cregs%2C300%2CE%2C300%252E530%2C OSERS, Questions and Answers On Discipline Procedures (Rev. June 2009), http://idea.ed.gov/explore/view/p/,root,dynamic,QaCorner,7, DESE, Discipline of Special Education Students Under IDEA 2004, 20 U.S.C. § 1415(k) and 34 CFR §§ 300.530-300.536 (Dec. 2007), http://www.doe.mass.edu/sped/IDEA2004/spr_meetings/disc_chart.pdf

136 34 CFR 300 530(f)(2). For information on special circumstances, see 34 CFR 300 530(g). 137 Drawn from http://www.specialeducationlawyers.info/iep_manifestation.htm. 138 34 CFR 300 530(e)(1).

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How do I protect my child from school prosecutions? It is important for students involved in criminal prosecutions involving school to have counsel. Families who can afford to hire a lawyer should hire one as soon as possible, even before the arraignment. If a family is found to be indigent and unable to afford counsel, the court should appoint a lawyer. Courts will most likely assess a fee of $150 for a court-appointed lawyer, which can be paid off by the time the case ends.139 Regardless of whether the family or court pays for the child’s lawyer, the lawyer represents the child and not the family. Ultimately, the child and his lawyer make the final legal decisions. However, parents can bring up pertinent issues to the child’s lawyer. Encourage the lawyer to gather information on all aspects of the incident for which the child is facing prosecution. The lawyer might request school records, school reports, incident reports, video surveillance, statements, notes, memos of understandings, contracts, 911 calls, broadcasts, computer sheets, and a list of student and staff present at the incident for which the child is facing prosecution. The expulsion hearing can be a good place to gather this evidence. If there has not been an expulsion hearing, make sure to request one. In some school prosecution cases where School Resource Officers are employees of both the school and the police, information about students is often shared between the two parties. This can compromise a student’s privacy rights. If it seems that a violation of this kind may have occurred, it may help to mention this to the child’s lawyer. Furthermore, it may be possible to prove that a child is not responsible for criminal conduct because of mental illness. It must be shown that the child’s mental state prevented him from making lawful choices or from understanding the wrongfulness of his actions.140 It may also be possible to show that a child’s status as a minor diminishes his capacity to make lawful decisions.141

139 Mental Health Legal Advisors Committee, Just for Youth: Advocating for Youths in the Massachusetts Department of Youth Services (3rd ed., 2010) at 5.9, http://www.mhlac.org/Docs/DYSProject/Justforyouthfinal.pdf140 Erica Cushna, Esq., So You Find Yourself Involved in a School Prosecution? The Basics You Must Know, in Juvenile Delinquency and Child Welfare Law Conference 2007, 219 (MCLE 2007). 141 Erica Cushna, Esq., So You Find Yourself Involved in a School Prosecution? The Basics You Must Know, in Juvenile Delinquency and Child Welfare Law Conference 2007, 220-21 (MCLE 2007).

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Due Process Rights How can parents and schools resolve disputes regarding anything other than IEP and special education services? Several avenues exist for parents to resolve disputes with school districts regarding disabled students, such as bringing the dispute to the attention of the local public school officials, using the DESE Problem Resolution System, or asking that a neutral mediator be appointed. Resources: DESE, “How Can Parents and Schools Resolve Disputes?” in Parent’s Notice of Procedural Safeguards, http://www.doe.mass.edu/sped/prb/ What if my child is not found eligible for special education? If an IEP Team makes a finding of no eligibility for special education services, school districts and parents may resolve disputes and determine the best course of action for a child through the school district’s own procedures. A parent can also request an independent evaluation if they disagree with the findings of the school’s evaluation.142 Additionally, a 504 Accommodation Plan can be useful for a child who is found ineligible for an IEP yet still needs services.143

However, parents have a number of due process rights if they disagree with a finding of no eligibility and are unsatisfied with proposed alternatives to an IEP. The Problem Resolution System of the Office of Program Quality Assurance is a way to informally or formally resolve disputes, including disputes such as these ones, through filing a complaint or holding a Problem Resolution Meeting. Parents may also request to go through an official mediation process with the Bureau of Special Education Appeals (BSEA). Furthermore, parents may appeal any eligibility determination to BSEA by requesting a due process hearing.144

What if the school district won’t approve extended year services for my child? Schools are not required to provide extended year services (ESY) unless it can be shown that there is a need for these services in order for the child to be provided with a free and

142 603 CMR 28.04(5). 143 DESE, IEP Process Guide (2001), http://www.doe.mass.edu/sped/iep/proguide.pdf. 144 DESE, Parent’s Notice of Procedural Safeguards 7 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf.

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appropriate education.145 The IEP TEAM must review the need for ESY at least once each year, and record its decision in the IEP.146 The primary factors that will be considered are whether or not a student will experience regression or a loss of skills over the summer, and whether or not the student will have substantial difficulty regaining these skills if summer programming is not provided.147 In addition, courts have set out other criteria for a team to consider when deciding about ESY.148 And, even if the student does not have a history of substantial regression over prior summer breaks, a student may still qualify for EYS if other conditions exist.149 The nature and length of the program will be determined by the student’s needs, as some students will not require full-day programs to maintain their progress.150 It is helpful to have an evaluation stating the need for summer programming, or at least recommendations by teachers, doctors, or other professionals with whom your child works.151

If TEAM refuses to write ESY into the IEP, then you can submit an appeal to the Board of Special Education Appeals (BSEA). The state and federal regulations use slightly different language when discussing ESY, and so it will be helpful to look at both and choose the language that is most helpful to your situation. Also note that the school is required to follow the proper procedures for determining whether ESY services are necessary, and determining the proper placement.152 It is the responsibility of the school district to ensure that these issues are discussed in an official TEAM meeting.153 The school district should also make their determination to allow for enough time prior to the summer for an administrative appeal if the parents disagree with the finding.154

Resources:

145 34 CFR 300.106(a)(2); 603 CMR 28.05(4)(d). 146 DESE, Question and Answer Guide on Special Education Extended School Year Programs, http://www.doe.mass.edu/pqa/ta/esyp_qa.html. 147 603 CMR 28.05(4)(d)(1). 148 See DESE, Question and Answer Guide on Special Education Extended School Year Programs, # 10, http://www.doe.mass.edu/pqa/ta/esyp_qa.html. 149 See DESE, Question and Answer Guide on Special Education Extended School Year Programs, # 11, http://www.doe.mass.edu/pqa/ta/esyp_qa.html. 150 See David B. v. Berkshire, 3 MSER 68 (1997). 151 See Northampton Public Schools, 7 MSER 256 (2001). 152 See Southampton Public Schools, 4 MSER 119 (1998) 153 See id. 154 See Reinholdson ex. rel. Simon v. School Bd. of Independent School Dist. No. 11, 2005 WL 1819976, 11 (D.Minn., 2005); Reusch v. Fountain, 872 F.Supp. 1421, 1433 (D.Md., 1994).

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The federal regulation regarding EYS, 34 CFR 300.106, can be found at: http://idea.ed.gov/explore/view/p/,root,regs,300,B,300%252E106 The state regulation regarding EYS, 603 CMR 28.05(4)(d), can be found at: http://www.doe.mass.edu/lawsregs/603cmr28.html?section=05#start DESE, Question and Answer Guide on Special Education Extended School Year Programs, 603 CMR 28.05(4)(d) (Dec. 5, 2002), http://www.doe.mass.edu/pqa/ta/esyp_qa.html What does the process of appeal of an IEP at BSEA look like? Parents may request a due process hearing by filing a written request with the school district or other opposing party and the Bureau of Special Education Appeals (BSEA). A BSEA Due Process Hearing Request Form may be used.155 The opposing party may challenge whether a complaint provides sufficient information within 15 days, after which BSEA has 5 days to decide if the complaint is sufficient. Parents filing the request may add more information if agreed upon by the opposing party or if given permission by the hearing officer.156 If there are no issues regarding sufficiency, BSEA must respond to the hearing request within 10 calendar days, and must work to resolve the disagreement within 30 days of the due process hearing itself. BSEA must set a hearing date, assign a hearing officer, and send detailed information about the hearing process and a list of attorneys and advocates who may provide help at little or no cost.157 What is a resolution meeting? In addition, the school district must set up a resolution meeting within 15 calendar days of receiving the complaint.158 The resolution meeting may be waived if both parents and the school district both agree to either use the mediation process instead or use neither and proceed directly to the hearing.159 However, if the mediation process is not used parents must participate in the resolution meeting, in addition to agreed upon members of the IEP Team and someone from the school district who can make decisions about the student’s program.160 What is a settlement agreement?

155 BSEA, Due Process Hearings, http://www.doe.mass.edu/bsea/process.html. 156 DESE, Parent’s Notice of Procedural Safeguards 8 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf. 157 Id. 158 34 CFR 300.510. 159 34 CFR 300.510. 160 34 CFR 300.510; DESE, Parent’s Notice of Procedural Safeguards 8 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf.

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Parents and the school district may sign a written settlement agreement, enforceable by state or federal court, resolving the dispute.161 This agreement is voidable within three business days of the time that the parties signed the agreement.162 The resolution process also may end when the 30 day resolution period is over or when the parties complete mediation.163 If the school district has not resolved the complaint to the satisfaction of the parent within 30 days, the due process hearing may go forward.164 However, if the parent does not participate in the resolution meeting (or participate in mediation in lieu of the meeting), then the hearing may not go forward until the meeting is held.165

What happens at a due process hearing? At a due process hearing, a neutral and impartial hearing officer will listen to both sides of the dispute, hear testimony, examine evidence, and make a decision.166 Both parties have the right to do the following:

• Present evidence (through documents and the testimony of witnesses) to support its position

• Cross-examine witnesses and submit rebuttal evidence • Present oral and written arguments167 • See any evidence that will be used at least five business days before the hearing • Request that evidence that has not been seen to be left out of the hearing • Obtain a free record of the hearing findings of facts and decision by submitting a

written request; • Request that the hearing be open to the public; • Bring the student in question to the hearing; • Be represented by a lawyer and/or advocate.168

What happens after the due process hearing? 161 34 CFR 300.510(d); DESE, Parent’s Notice of Procedural Safeguards 8 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf. 162 34 CFR 300.510(e); DESE, Parent’s Notice of Procedural Safeguards 8 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf. 163 DESE, Parent’s Notice of Procedural Safeguards 8 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf. 164 DESE, Parent’s Notice of Procedural Safeguards 8 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf. 165 BSEA , Hearing Rules for Special Education Appeals, Rule 1F, http://www.doe.mass.edu/bsea/forms/hearing_rules.pdf. 166 DESE, Parent’s Notice of Procedural Safeguards 7 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf. 167 BSEA, Special Education Appeals: Due Process Hearings, http://www.doe.mass.edu/bsea/process.html?section=9. 168 DESE, Parent’s Notice of Procedural Safeguards 8 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf.

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The hearing officer must issue the decision within 45 days of the end of the resolution period, unless an extension has been granted. A hearing officer’s decision is final; however, if either party disagrees with the decision they may appeal it to a state or federal court within 90 days.169 Resources: BSEA Forms including Pro Se Guide and Reference Manual, http://www.doe.mass.edu/bsea/forms.html BSEA, Due Process Hearings, http://www.doe.mass.edu/bsea/process.html How does BSEA mediation work? Parents may also request to go through the BSEA mediation process when there is a disagreement over eligibility or any other special education matter. Mediation employs a neutral third party individual to help both parties resolve disputes and come to an agreement over a child’s special education needs. The mediator does not decide how to resolve a dispute.170 Mediation is not the same as a pre-due process hearing resolution meeting. Parents may choose mediation in place of, or in addition to the resolution meeting. They may also choose to undergo the mediation process even if a due process hearing is not requested or scheduled.171

Resources: BSEA, Mediation, http://www.doe.mass.edu/bsea/mediation.html BSEA, Special Education Mediation: Is it the Right Process for Resolving Your Dispute?, http://www.doe.mass.edu/bsea/forms/m_brochure.doc What are the main differences between mediation and a resolution meeting? There are several notable differences between mediation and a resolution meeting. Parents who have filed for a due process hearing should consider the benefits of each process and make a decision to pursue one or both of the processes.

• Mediation is conducted by a neutral, third party individual, whereas a school staff person convenes a resolution meeting.

• Attorneys may participate in the mediation process, whereas school attorneys may only participate in a resolution meeting if the other party’s attorney is present.

169 DESE, Parent’s Notice of Procedural Safeguards 9 (2009), http://www.doe.mass.edu/sped/prb/pnps.pdf. 170 BSEA, Mediation, http://www.doe.mass.edu/bsea/mediation.html. 171 BSEA, Mediation FAQs, #4, http://www.doe.mass.edu/bsea/mediation.html?section=faq&faq=4.

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• An agreement signed as a result of the mediation process is immediately binding, whereas parties may rescind a signed agreement resulting from a resolution meeting within three business days.

• Mediation discussions may include a broad range of educational issues, whereas parties in a resolution meeting may only discuss educational issues filed in the hearing request.

• Discussions in a mediation meeting are confidential, whereas confidentiality is not required in a resolution meeting.172

What is a facilitated IEP team meeting? The parties involved in an IEP Team may agree to a facilitated IEP team meeting, in which a neutral third party attends to help the two sides communicate better, resolve disputes and remain focused on drafting an effective IEP.173 If this is the case, school districts parents may request a facilitator from BSEA. This voluntary process is not the same as mediation with BSEA, which is more extensive.174 Furthermore, an IEP Team facilitator will not be the same person who serves as mediator in the mediation process.175 What is a settlement conference? A settlement conference is another opportunity, provided by the BSEA, for parties to reach a settlement before going to hearing. All Settlement Conferences have the following four requirements:

• A Hearing Request has been filed. • The Hearing Officer assigned agrees that a Settlement Conference would be

useful. • Both parties voluntarily agree to participate in the Settlement Conference. • Each party must be represented by a licensed attorney.176

The BSEA Assistant Director (or, occasionally, a BSEA Hearing Officer) sits down with both parties, separately and together, to facilitate negotiation of a comprehensive settlement of the dispute in lieu of going to hearing. Settlement conferences are only

172 Compare BSEA, Mediation, http://www.doe.mass.edu/bsea/mediation.html with 34 CFR 300.510; 173 BSEA, Facilitated IEP Team Meetings (March 1, 2010), http://www.doe.mass.edu/bsea/fiep.html. 174 BSEA, Facilitated IEP Team Meetings (March 1, 2010), http://www.doe.mass.edu/bsea/fiep.html. 175 BSEA, Facilitated IEP Team Meetings (March 1, 2010), http://www.doe.mass.edu/bsea/fiep.html. 176 BSEA, Reference Manual (Nov. 2009) at 30, http://www.doe.mass.edu/bsea/forms/proselitigant_manual.pdf.

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available in cases where a Hearing Request has been filed and both parties are represented by attorneys.177 What is Sped Ex? SpedEx is a dispute resolution pilot project that will be available from the BSEA in certain cases after an IEP has been rejected or a hearing request has been filed. It is voluntary and expedient. It provides a jointly agreed-upon independent SpedEx consultant to review evidence and advise the parties on FAPE and LRE so they may resolve their dispute. Resources: BSEA, Sped Ex, http://www.doe.mass.edu/sped/spedx/ What does DESE’s Program Quality Assurance Services do? Program Quality Assurance Services (PQA) accepts complaints about school issues into its Problem Resolution System (PRS). Any person may file an oral or written complaint using PRS, whereas only parents or school districts may file BSEA due process complaints. However, complaints through PRS cannot be investigated at the same time as a BSEA proceeding; as a result, it is best to pursue one avenue of complaint at a time. An individual who contacts PRS has the opportunity to informally resolve an issue with a school district’s Educational Specialist, or proceed to formally filing a complaint (officially known as an Intake Information Form) with DESE. Once DESE receives a complaint, they usually contact the concerned individual within five business days. PRS can only assist concerns that are related to an education law, regulation or policy. If it is determined that a complaint fits within this guideline, the Educational Specialist will contact the school and investigate the complaint. Usually, a report should be released within 15 calendar days of DESE’s first contact with the school in question. The Educational Specialist will review the report and decide if further action is necessary to resolve the complaint. DESE should make a decision regarding any complaint within 60 calendar days of its receipt. Resources: DESE, Program Quality Assurance Services: Problem Resolution System, http://www.doe.mass.edu/pqa/prs/ DESE, Parent’s Notice of Procedural Safeguards, http://www.doe.mass.edu/sped/prb/ DESE, Complaint Chart, http://www.doe.mass.edu/sped/complaintchart.doc

177 Id. at 9.

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SPEDWatch, How to File a Complaint, http://www.spedwatch.org/files/Complaints.pdf What does the Office for Civil Rights of the federal Department of Education do? The U.S. Department of Education’s Office for Civil Rights (OCR) receives complaints of disability discrimination against any education institution that receives federal financial assistance.178 OCR acts as a neutral fact-finder in the complaint process, and will not act as an advocate for individuals who file complaints. Complaints filed through OCR may be resolved by facilitated resolutions, investigations, or other methods.179 Resources: OCR, Questions and Answers on OCR’s Complaint Process, http://www.ed.gov/about/offices/list/ocr/qa-complaints.html OCR, OCR Electronic Complaint Form, http://www.ed.gov/about/offices/list/ocr/complaintintro.html Is the Bureau of Special Education Appeals part of DESE? No, while the Bureau of Special Education Appeals (BSEA) used to be part of the Massachusetts Department of Elementary and Secondary Education (DESE), they are now separate entities.180

178 U.S. Department of Education Office of Civil Rights, Overview of the Agency, http://www.ed.gov/about/offices/list/ocr/aboutocr.html. 179 U.S. Department of Education Office of Civil Rights, Questions and Answers on OCR's Complaint Process, http://www.ed.gov/about/offices/list/ocr/qa-complaints.html. 180 G.L. c. 71B, § 2A; BSEA, Special Education Appeals: Overview of the BSEA and its dispute resolution processes, http://www.doe.mass.edu/bsea/about.html.

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Records May parents access their child’s school records? Parents have a right to view any academic, scholastic or other records that a school keeps, regardless of the age of their child. In addition, schools must allow students aged 18 or older to access their own records.181

Are school records confidential? School records are required to be kept confidential. Any third party who wishes to access a student’s records must have written consent from the student or parent, and within that consent the student or parent can specify which part of the records the third party may access.182 The school principal is responsible for maintaining all school records under his control, and the superintendent is responsible for maintaining the privacy of school records that are not within the principal’s control.183 How can keeping good records help children? Parents should keep good records when advocating for special education services. While it is the responsibility of the school district to evaluate students and provide services if necessary, the process does not always go smoothly. Keeping written documentation of meetings, conversations, telephone calls and other events can be a very effective way to advocate. Being able to write effective letters is also a valuable skill.184

181 G.L. C. 71, § 34E. 182 603 CMR 23.07(4). 183 603 CMR 23.05. 184 Leslie Said Margolis, Parent Advocacy: What You Should Do . . . And Not Do, http://www.wrightslaw.com/info/advo.do.dont.margolis.htm.

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Educational Services in Institutional Settings What rights to special education services do youth in institutional settings have? Minors in institutional settings operated by the Departments of Mental Health, Public Health, Youth Services, and the County Houses of Correction must receive special education services if eligible.185 Special education services in facilities run by these agencies are provided by Special Education in Institutionalized Settings (SEIS), a division of DESE. However, the school district in which the student’s parents or guardian reside still has programmatic responsibility for the student. In accordance with state and federal law, students in institutional settings have the same rights for referral, evaluation, and the provision of special education as students in public schools.186 The district must coordinate with the department with which the student is institutionalized to ensure that the student receives an evaluation, annual review, and special education services as identified by his IEP Team. Furthermore, the department should participate in the student’s IEP Team meetings.187 The department should make every effort to provide services that the student needs according to his IEP, but if this is not possible, the school district must arrange and pay for the provision of such services.188

Resources: DESE, Special Education in Institutional Settings, http://www.doe.mass.edu/seis/

185 G.L. C.71B, § 11A. 186 603 C.M.R. 28.06(a). 187 603 C.M.R. 28.06(d). 188 603 C.M.R. 28.06(d), (c).

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Rights Regarding a GED How do I pursue a GED? Any former student who is not enrolled in and has not graduated from high school may take the General Educational Development (GED) test for a high school equivalency diploma. Students who wish to take the GED at age 16 or 17 must provide an “official letter of withdrawal” from their school to the GED test center.189 Resources: American Council on Education, Services for Candidates with Disabilities, http://www.acenet.edu/Content/NavigationMenu/ged/test/Take/Accommodations_Disab.htm (including information on possible accommodations and request forms for accommodations) Students may also contact the GED Testing Service to discuss which accommodations might be appropriate for their individual needs by calling (202) 939-9300.190

Does my IEP continue while I pursue a GED? IEPs should continue for students who pursue a GED in place of a high school diploma. Until a student’s 22nd birthday, any student who qualifies for special education services is eligible to receive them until he obtains a diploma (including a GED).191 Students with documented disabilities may request special accommodations for GED testing at no extra charge. DESE considers these requests on an individual basis.192 However, the most common accommodations include the following:

• Audiocassette edition (with large-print reference copy) • Large print edition • Use of a scribe • Extended time • Use of a calculator • Supervised frequent breaks • Use of a private room for testing193

189 DESE, General Educational Development (GED): GED Requirements 2c http://www.doe.mass.edu/ged/req.html. 190 General Educational Development Testing Service, Tips for Candidates with Disabilities (2006), http://www.acenet.edu/Content/NavigationMenu/ged/test/Take/DisBrochfinal2.pdf. 191 603 CMR 28.02(9). 192 DESE, General Educational Development (GED): Accommodations for Disabilities, http://www.doe.mass.edu/ged/afd.html. 193 Id.

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When applying for GED accommodations, students with disabilities should provide as much educational, medical and developmental history as possible.194 Is pursuing a GED in lieu of graduating a good idea? Some students may believe that the GED is an easy alternative to completing high school and earning a regular diploma. In fact, the GED has become increasingly difficult in recent years. The standard test lasts for seven and one quarter hours, and tests writing skills, reading, social studies, science, and mathematics. The GED requires test-takers to answer questions using general knowledge and thinking skills.195

It is important to know that recent studies have shown that students who obtain their GED do not always have the same opportunities as those with a high school diploma.196 Recent research has shown that it is not the equivalent as a high school diploma in the labor market, as those with a high school diploma are likely to earn higher wages.197 Therefore, it is important to speak with someone (a career counselor, guidance counselor, or other qualified professional) before making the decision to take the GED, to learn about how it may impact your future. How much does it cost to take the GED? As of June 1010, it costs $65 to take the GED test.198

194 General Educational Development Testing Service, Tips for Candidates with Disabilities (2006), http://www.acenet.edu/Content/NavigationMenu/ged/test/Take/DisBrochfinal2.pdf. 195 DESE, GED General Information, http://www.doe.mass.edu/ged/geninfo.html 196 James J. Heckman, John Eric Humphries, & Nicholas S. Mader, The GED, Nat’l Bureau of Econ. Research, (June, 2010). 197 James J. Heckman, John Eric Humphries, & Nicholas S. Mader, The GED, Nat’l Bureau of Econ. Research, (June, 2010). 198 DESE, GED Requirements, http://www.doe.mass.edu/ged/req.html.

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Special Education and Autism What is autism? Autism is a developmental disability rooted in a neurological disorder.199 Autism affects development in the areas of social interaction and communication skills.200 Autism is one of three recognized disorders in the autism spectrum; the others are Asperger’s Disorder (diagnosed when the individual lacks delays in cognitive development and language), and Pervasive Developmental Disorder-Not Otherwise Specified (PDD-NOS) (diagnosed when the full set of criteria for autism or Asperger’s are not met).201

Federal regulation has defined autism:

i. Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (b)(4) of this section.

ii. A child who manifests the characteristics of "autism" after age 3 could be diagnosed as having "autism" if the criteria in paragraph (c)(1)(i) of this section are satisfied.202

What rights to special education do children with autism have? Children with autism have the same rights to special education and related services as other children with disabilities. Students on the autism spectrum can often benefit greatly from intensive services, despite common assumptions that they have limited educational abilities and potential. However, it is very important that children with autism are able to access the services they need from an early age.203 Research has shown that early

199 Definition of Autism, http://www.definitionofautism.com/. 200 Id. 201 Johnson CP, Myers SM, Council on Children with Disabilities, Identification and evaluation of children with autism spectrum disorders. PEDIATRICS 2007;120(5):1183–215. 202 34 CFR 300.7. 203 Massachusetts Advocates for Children, Special Education Law: Children With Autism Spectrum Disorder (2004), http://www.masslegalservices.org/node/14703.

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identification, diagnosis and intervention is essential for children with autism to develop to their fullest potential.204

How can special education services help students with autism? Students with autism often need a wide range of educational services to help them access the general curriculum. IEPs should aim to meet the academic, social, emotional, communication, behavioral, vocational and daily living skill needs of these students.205 Because of the extensive, often all-encompassing needs of many children with autism, parents should ensure that the school district thoroughly assesses the student during the evaluation process and when considering revisions to the student’s IEP. Are there special requirements on IEP Teams for students with autism? Yes. Massachusetts law requires the IEP Team to consider and specifically address the full range of a child’s complex communication, social, behavioral, and academic needs resulting from autism spectrum disorders.206

What assessments might a student with autism benefit from? Assessments that a student with autism might need include the following:

• Psychological assessment • Neuropsychological assessment • Occupational therapy/sensory integration • Speech and language assessment • Functional behavior assessment • Assistive technology/augmentative communication • Physical therapy assessment • Medical assessment • Educational • Home Assessment • Vocational assessment • Independent living assessment

204 Amanda J. V. Clark City School Dist., 26 F.3d 877, 883 9th Cir. 2001 via Special Education Law: Children With Autism Spectrum Disorder, http://www.masslegalservices.org/node/14703 205 Massachusetts Advocates for Children, Special Education Law: Children With Autism Spectrum Disorder (2004), http://www.masslegalservices.org/node/14703. 206 Chapter 57 of the Acts of 2006, An Act to Address Special Education Needs of Children with Autism Spectrum Disorder (amending c. 71B, § 3); see also DESE Technical Assistance Advisory SPED 2007-1: Autism Spectrum Disorders, http://www.massadvocates.org/documents/DOEs-Technical-Assistance-Advisory-2007-1-Autism-Spectrum-Disorder.pdf.

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• Audiological/Central auditory processing.207 Resources: Massachusetts Advocates for Children, Autism Special Education Legal Support Center, http://www.massadvocates.org/autism-center.php or (617) 357-8431, ext. 224 (free advocacy services to parents of children with autism) Northeast Arc, Life-Long Supports for People with Disabilities, Massachusetts Autism Links, http://www.ne-arcautismsupportcenter.org/ (list of local autism centers) Additional information can be found at: http://www.massadvocates.org/publications.php (see the autism publication section)

207 Massachusetts Advocates for Children, Special Education Law: Children With Autism

pectrum Disorder (2004), S http://www.masslegalservices.org/node/14703.

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MCAS and Students with Disabilities What are the rights of students with IEPs with respect to the MCAS? IEP Teams must ensure that students with disabilities have the resources necessary to pass the Massachusetts Comprehensive Assessment System (MCAS). A student’s IEP should annually determine how the student will participate in the MCAS.208 Students with disabilities might take the standard MCAS, the standard MCAS with accommodations, or the MCAS-Alt. All students must meet MCAS passing requirements in order to receive a high school diploma, so it is crucial that the IEP Team determine how the student will best prepare for and pass the MCAS.209

Can students receive accommodations when taking the MCAS? Some students take the MCAS with accommodations. Standard accommodations are changes in the test administration that do not change what the test measures. Non-standard accommodations, intended for a smaller group of students, may change the way the test measures student responses or alters a portion of what the test should measure.210 IEP Teams must decide if a student needs accommodations on the MCAS for each subject the student will be tested on.211 For example, a student may require accommodations on the writing component of the MCAS but not for the multiple choice section. If an IEP Team determines that a student needs an accommodation on the MCAS, the school district must provide it.212 An accommodation should be one that the student uses routinely, and that he or she requires to participate in the MCAS.213

What if accommodations are not enough? If accommodations to the regular MCAS are not enough, a small number of students with significant disabilities may also take the MCAS Alternate Assessment (MCAS-Alt) in

208 DESE, Massachusetts Comprehensive Assessment System: Overview, http://www.doe.mass.edu/mcas/overview.html?faq=8. 209 DESE, Massachusetts Comprehensive Assessment System: High School Graduation Requirements, Scholarships, and Academic Support Opportunities, http://www.doe.mass.edu/mcas/graduation.html. 210 DESE, Massachusetts Comprehensive Assessment System: Requirements for the Participation of Students with Disabilities in MCAS, Spring 2010 Update 10, http://www.doe.mass.edu/mcas/participation/sped.pdf. 211 Id. 212 DESE, Massachusetts Comprehensive Assessment System: Requirements for the Participation of Students with Disabilities in MCAS, Spring 2010 Update 7, http://www.doe.mass.edu/mcas/participation/sped.pdf. 213 DESE, Massachusetts Comprehensive Assessment System: Requirements for the Participation of Students with Disabilities in MCAS, Spring 2010 Update 8, http://www.doe.mass.edu/mcas/participation/sped.pdf.

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one or more subjects.214 This alternative to the MCAS is not an administrated test, but a portfolio compiled over the course of the year that shows data, samples of student work and other evidence that the student’s performance is being assessed.215 The MCAS-Alt assesses students in this way according to learning standards of the Massachusetts Curriculum Frameworks. Although the MCAS-Alt is usually reserved for students with severe cognitive disabilities, in certain cases students with emotional, behavioral, health-related, motor, communication or other disabilities may be eligible.216 What should happen if a student scores badly on the MCAS? Poor MCAS results should trigger revisions to the IEP stating how the student will improve his score in the future. These revisions might include more intensive MCAS preparation, accommodations on the regular MCAS, or application to take the MCAS-Alt. An unsatisfactory score on the MCAS should persuade school districts to pay closer attention to the special education needs of the student in question. If your child fails the MCAS, it is possible to submit an appeal to show that your child meets the state’s Competency Determination Standard. DESE has a guide for parents about this process (see resources below), Resources: DESE, Massachusetts Comprehensive Assessment System, http://www.doe.mass.edu/mcas DESE, A Guide to the MCAS Performance Appeals Process (Jan. 2011), http://www.doe.mass.edu/mcasappeals/filing/guide.pdf

214 DESE, Massachusetts Comprehensive Assessment System: Requirements for the Participation of Students with Disabilities in MCAS, Spring 2010 Update 3, http://www.doe.mass.edu/mcas/participation/sped.pdf. 215 DESE, Massachusetts Comprehensive Assessment System: Requirements for the Participation of Students with Disabilities in MCAS, Spring 2010 Update 22, http://www.doe.mass.edu/mcas/participation/sped.pdf. 216 DESE, Massachusetts Comprehensive Assessment System: Requirements for the Participation of Students with Disabilities in MCAS, Spring 2010 Update 5,http://www.doe.mass.edu/mcas/participation/sped.pdf.

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Children and Trauma How should one educate children with trauma? Children with trauma histories can face more difficulties learning, forming relationships and succeeding in school. However, teachers cannot always easily identify traumatized children, which can make it difficult to provide extra attention if needed. Schools should strive to create a trauma-sensitive environment to benefit all children – those with trauma histories and those who learn alongside them.217 A strategy for trauma-sensitive schools should include these guiding principles:

• Helping educators become aware of trauma symptoms and their effect on classroom learning and behavior;

• Spending less time on disciplining students and focusing more on teaching and learning;

• Using therapeutic and positive behavioral supports.218 Resources: Massachusetts Advocates for Children, Helping Traumatized Children Learn, http://www.massadvocates.org (extensively discusses how schools can create a trauma sensitive learning environment) To find out which schools have a trauma sensitive grant, visit: http://www.doe.mass.edu/tss/grants.html and http://www.doe.mass.edu/tss/schools.html

217 Massachusetts Advocates for Children: Trauma and Learning Policy Initiative, Helping Traumatized Children Learn: A Report and Policy Agenda 1 (2005), http://www.massadvocates.org/uploads/gg/hS/gghS4PIVtMYt7uBhJ2Embg/Help_Tram_Child-Med.pdf. 218 Massachusetts Advocates for Children: Trauma and Learning Policy Initiative, Helping Traumatized Children Learn: A Report and Policy Agenda 6 (2005), http://www.massadvocates.org/uploads/gg/hS/gghS4PIVtMYt7uBhJ2Embg/Help_Tram_Child-Med.pdf.

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Positive Behavioral Interventions and Supports (PBIS) and Socio-Emotional Learning (SEL) What are tools schools can use to develop self-regulation? Positive Behavioral Interventions and Supports (PBIS) and Socio-Emotional Learning (SEL) are two approaches to improving student behavior and academic achievement in schools. Schools use these tools to help students self-regulate their emotions and behaviors. PBIS is sometimes known simply as Positive Behavioral Supports (PBS), or even SWPBS (School-Wide Positive Behavioral Interventions and Supports).219 PBIS is a comprehensive, long-term approach that aims to promote positive student behavior and students’ quality of life. The aim of PBIS is to address issues in the student’s environment and overall situation that might lead to problem behavior, rather than reactively disciplining problem behavior as it occurs.220 Schools using PBIS set expectations for behavior and employ positive strategies to teach and reinforce positive behaviors.221

Educators accomplish this objective by creating a support system that implements PBIS at school-wide, classroom and individual levels.222 This support system should include all individuals who have an interest in a student’s success, including family members, friends, employers, community members, teachers, school administrators, and various professionals.223 Based on their personal knowledge of the student, members of the support system should work together to create the interventions and supports that will benefit the student. Social and emotional learning, or SEL, is a different approach to healthy personal and academic development. Some educators view PBIS and SEL as incompatible, while others believe they can be implemented together.224 SEL differs from PBIS in that it focuses on full development of the student over behavioral management alone. SEL 219 OSCP Center on Positive Behavioral Interventions & Supports, What is School-Wide Positive Behavioral Interventions & Supports?, http://www.pbismaryland.org/WhatIsSWPBS.pdf. 220 See E.G. Carr, Rehabilitation Research & Training Center on Positive Behavior and Support, Positive Behavior Support: Evolution of an Applied Science (2004). 221 http://www.casel.org/basics/other.php#pbs 222 See E.G. Carr, Rehabilitation Research & Training Center on Positive Behavior and Support, Positive Behavior Support: Evolution of an Applied Science (2004). 223 Id. 224 David Osher et al., A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools, in Best Practices in School Psychology V 9 (2007).

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teaches skills around emotional management, compassion and caring for others, building healthy interpersonal relationships. Students learn how to understand and handle their emotions in challenging situations and make decisions constructively. SEL programming can take place in the classroom, in extracurricular activities, and even at home. Resources: OSEP, Technical Assistance Center on Positive Behavioral Interventions & Supports, Effective Schoolwide Interventions website, http://www.pbis.org/ Collaborative for Academic, Social, and Emotional Learning website, http://www.casel.org/ What is the current vision of how to promote social/emotional academic growth in school? A 2007 paper, “A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools” recognizes the physical, socio-emotional and cultural factors that affect students and teachers’ abilities to function at their best in the classroom.225 The authors suggest four conditions that, when implemented together, create healthy and successful schools that promote social, emotional and academic growth.226 The four conditions are:

1. Safety. This includes physical and emotional safety, both of which are vital to a student’s active engagement in learning in the school environment. Students must feel that risks, both real and perceived, are not too great to attend school regularly and engage intellectually.227

2. Support. This means that students feel accepted by peers and adults, and feel that they belong in their school environment. This can also describe a sense of mutual support between students and teachers that enables both to thrive in their respective roles.228 Educators can foster this sense of belonging in a number of ways,

225 David Osher et al., A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools, in Best Practices in School Psychology V 2 (2007). 226 David Osher et al., A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools, in Best Practices in School Psychology V 1-2 (2007). 227 David Osher et al., A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools, in Best Practices in School Psychology V 2-3 (2007). 228 David Osher et al., A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools, in Best Practices in School Psychology V 3 (2007).

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including instrumental, informational, appraisal and emotional support.229

3. Social and emotional capacities, or SEL skills, of students. The ways that students respond to challenging situations affects their capacity to learn. If students are able to recognize how such situations affect them emotionally, persevere through challenges, work in groups, and avoid risky behaviors, they are likely to be more able to learn effectively.230

4. Challenge. This means that the school environment fosters high expectations for students that are shared and understood by students, peers, teachers and families.231

The paper also argues that a three-tiered intervention approach is necessary to address the strengths and needs of individual students while focusing on the four conditions for learning.232 The three types of interventions can be classified as 1) universal; 2) early and 2) intensive. Furthermore, the paper promotes the idea that PBS and SEL can successfully integrate to form a stronger model for promoting social, emotional and academic growth in schools.233

229 David Osher et al., A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools, in Best Practices in School Psychology V 3 (2007). 230 David Osher et al., A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools, in Best Practices in School Psychology V 3 (2007). 231 David Osher et al., A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools, in Best Practices in School Psychology V 3 (2007). 232 David Osher et al., A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools, in Best Practices in School Psychology V 5 (2007). 233 David Osher et al., A Comprehensive Approach to Promoting Social, Emotional and Academic Growth in Contemporary Schools, in Best Practices in School Psychology V 9 (2007).

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Schools and Rosie D. Implementation What is the Rosie D. lawsuit? Rosie D. v. Patrick is a class-action lawsuit that challenged the lack of home-based mental health services for children under the age of 21. Rosie D.’s successful outcome has led to systemic reform of mental health services for children under 21 in Massachusetts. Any child with a serious emotional disturbance (SED) is now eligible for home-based services or “wraparound treatment.” How is Serious Emotional Disturbance defined? There are two federal SED definitions and a youth may meet either one, as determined by a mental health evaluation. The federal Substance Abuse & Mental Health Services Administration (SAMHSA) and the Individuals with Disabilities Act (IDEA) offer slightly different definitions of serious emotional disturbance. Together, these federal definitions cover children whose lives are impacted at home, in school and in community activities. The Court in Rosie D. held that: “Any child satisfying the SED criteria used in the IDEA or by SAMHSA, or both, will be eligible for services.” What is the SAMHSA definition of SED? The SAMHSA definition of SED applies to a child or youth who currently or within the last 12 months has had a diagnosable mental, behavioral or emotional disorder that resulted in functional impairment which substantially interferes with or limits his/her role or functioning in family, school or community activities.234

What is the IDEA definition of SED?

234 Center for Substance Abuse Treatment. (1998). Contracting for managed substance abuse and mental health services: A guide for public purchasers. Technical Assistance Publication Series No. 22. DHHS Publication No. (SMA) 98-3173. Rockville, MD: Substance Abuse and Mental Health Services Administration. p. 266, cited in SAMHSAs Co-Occurring Center for Excellence, Definitions and Terms Relating to Co-Occurring Disorders, http://coce.samhsa.gov/cod_resources/PDF/DefinitionsandTerms-OP1.pdf, at 2.

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The IDEA defines SED as a condition exhibiting one or more of the following characteristics over a long period of time and adversely affects a child’s educational performance:

• an inability to learn that cannot be explained by intellectual, sensory or health factors;

• an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

• inappropriate behaviors or feelings under normal circumstances; • general pervasive mood of unhappiness or depression; or • a tendency to develop physical symptoms associated with personal or school

problems.235 Children with SED who also are diagnosed with another disabling condition, such as autism spectrum disorders, developmental disabilities or substance abuse also are eligible for home-based services under the Rosie D. Remedial Plan. What Rosie D. services are available? Services that a child may receive include:

• intensive care coordination (ICC) • mobile crisis intervention • crisis stabilization • in-home behavioral therapy • behavior management supports • in-home therapy services • mentoring, • parent or caregiver supports.236

How do I access Rosie D. services? One may access Rosie D. services in a number of ways.

1. A youth can have a behavioral health screening. Primary care doctors and nurses must offer voluntary screening for behavioral health concerns at well child visits or upon request, using one of several standardized screening instruments.237

2. A youth can have a mental health evaluation by a mental health professional – this is for children with known conditions.238 Part of that evaluation will be the

235 34 CFR 300.8 (c)(4). 236 Center for Public Representation, Reforming The Medicaid Children’s Mental Health System: What Schools Should Know about Rosie D. 2, http://www.rosied.org/Content/Documents/Document.ashx?DocId=7101. 237 Center for Public Representation, How to Access Home-Based Services, http://www.rosied.org/Default.aspx?pageId=84544.

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CANS survey, an assessment tool.239 The CANS uses a structured interview of assess the child and family’s strengths and identify needs.

3. Children diagnosed with SED and who needs services from one than one provider or governmental agency are entitled to ICC. This means that a child with SED will be assigned a single care manager who is responsible for overseeing and coordinating all aspects of the child’s care and treatment. The care manager will convene and oversee the child’s care planning team that works with the family to plan the home-based services. 240 The care manager will conduct and coordinate the comprehensive home-based assessment, which focuses on the strengths of the child and family.241

What is the role of schools in implementing Rosie D.? Schools can play a vital role in helping children access Rosie D. services. Teachers, school health care professionals, and other school professionals may directly refer children who already have a diagnosis of SED to a local Community Service Agency (CSA), which will provide a comprehensive home-based assessment and intensive care coordination. Schools may also refer children who do not have an SED diagnosis for a behavioral health screening or evaluation by a mental health specialist.242

Rosie D. also presents an opportunity for schools to play an integrated role with a student’s treatment plan. Schools and home-based service providers share common goals of helping students to thrive in and out of school. Forming collaborative networks can help teachers, aides, therapists and other community providers develop supportive strategies for students. The care manager of a student with an IEP could participate on the IEP Team, gaining a greater understanding of the student’s educational goals and the importance of integrating them into the student’s out of school environment. Members of a student’s IEP Team could also participate in his/her treatment planning process, allowing the school to learn how they might integrate treatment goals and objectives into the student’s IEP and school environment.243 For example, a student acting up in crisis

238 Center for Public Representation, How to Access Home-Based Services, http://www.rosied.org/Default.aspx?pageId=84544. 239 Information about the CANS tool is available at http://www.masspartnership.com/provider/index.aspx?lnkid=CANS.ascx. 240 Center for Public Representation, How to Access Home-Based Services, http://www.rosied.org/Default.aspx?pageId=84544. 241 Center for Public Representation, How to Access Home-Based Services, http://www.rosied.org/Default.aspx?pageId=84544. 242 Center for Public Representation, Reforming The Medicaid Children’s Mental Health System: What Schools Should Know about Rosie D. 3, http://www.rosied.org/Content/Documents/Document.ashx?DocId=7101. 243 Center for Public Representation, Reforming The Medicaid Children’s Mental Health System: What Schools Should Know about Rosie D. 3,

ttp://www.rosied.org/Content/Documents/Document.ashx?DocId=7101h .

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could avoid punitive measures if the school agrees to call a mobile crisis team instead of suspending or expelling the child. Resources: Center for Public Representation website on Rosie D., http://www.rosied.org/ Executive Office of Health and Human Services website on implementing the Rosie D. decision through the Children’s Behavioral Health Initiative, http://www.mass.gov/eohhs/gov/commissions-and-initiatives/cbhi/

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Homeless Children and Education What is the McKinney Vento Act? The McKinney Vento Act is a federal law that guarantees homeless children or youth (age 3-22) equal rights to education. How does McKinney Vento define homelessness? Children who do not have a fixed, regular and adequate nighttime residence are defined as homeless under the Act, and are thus eligible for services. This term includes children who are staying in motels, hotels, trailer parks, campgrounds, or who are sharing the housing of other persons due to economic hardship or loss of housing. It also includes children living in emergency or transitional shelters, cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or any place that is meant to be a place to sleep. Finally, homeless children and youths are also those who are abandoned in hospitals or are awaiting foster care placement.244 Children who have been displaced by natural disasters are considered for eligibility for services through this Act on a case by case basis.245 What does the McKinney Vento Act require of schools? The Act states that homeless children and youths should not be separated from the mainstream school environment.246 They should receive services comparable to those that other students in the school receive. This includes the following:

• Transportation services.247 If the youth’s liaison, parent or guardian requests transportation, it should be provided. If the student lives in an area served by a different local educational agency from the school the student attends, the two

244 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 725(2)(B), 42 U.S.C. § 11431 et seq. 245 United States Department of Education, Education for Homeless Children and Youth Program, Title VII-B of the McKinney-Vento Homeless Assistance Act, as Amended by the No Child Left Behind Act of 2001: Non-Regulatory Guidance 18 (2004), http://www2.ed.gov/programs/homeless/guidance.pdf. 246 United States Department of Education, Education for Homeless Children and Youth Program, Title VII-B of the McKinney-Vento Homeless Assistance Act, as Amended by the No Child Left Behind Act of 2001: Non-Regulatory Guidance 2 (2004), http://www2.ed.gov/programs/homeless/guidance.pdf. 247 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(3)(B)(iii), amending 42 U.S.C. § 11431 et seq.

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local educational agencies must agree upon a method for providing and paying for transportation services.248

• Educational services for which the child or youth is eligible, including special education and limited English proficiency programs.249 This means that homeless children and youths have the same entitlement as other student to 504 plans, IEPs, and evaluations to determine eligibility for such services.

• Programs in vocational and technical education, programs for gifted and talented students, and school nutrition programs.250

• A dispute resolution process.

It is important that schools do not segregate or separate homeless children or youths from other students. Some schools may find it appropriate to run a supplemental program for homeless children or youths, but it should not be stigmatizing to the children (for example, the program’s name should not clearly indicate that it is for homeless children and youths). School districts should ensure that homeless children or youths do not face stigmatization in school.251

Unless the child’s parent or guardian wants the child to move schools, homeless children or youths should stay in their original school to the extent feasible, and according to the child’s best interest.252 Once designated as the school the child will attend, schools must immediately enroll the homeless child or youth, even if he does not have records normally required for enrollment, including academic and medical records, proof of residency, or other documentation.253 If a child needs immunizations or lacks medical records, the local educational liaison must help the child obtain them.254

248 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(1)(J)(iii)(II), 42 U.S.C. § 11431 et seq. 249 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(4)(b), amending 42 U.S.C. § 11431 et seq. 250 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(4)(c), (d), (e), amending 42 U.S.C. § 11431 et seq. 251 United States Department of Education, Education for Homeless Children and Youth Program, Title VII-B of the McKinney-Vento Homeless Assistance Act, as Amended by the No Child Left Behind Act of 2001: Non-Regulatory Guidance 15 (2004), http://www2.ed.gov/programs/homeless/guidance.pdf. 252 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(3)(B)(i), amending 42 U.S.C. § 11431 et seq. 253 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(3)(C)(i), amending 42 U.S.C. § 11431 et seq. 254 United States Department of Education, Education for Homeless Children and Youth Program, Title VII-B of the McKinney-Vento Homeless Assistance Act, as Amended by the No Child Left Behind Act of 2001: Non-Regulatory Guidance 16 (2004), http://www2.ed.gov/programs/homeless/guidance.pdf.

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When does a child get a local educational liaison? Homeless children who do not have a present parent or guardian (known as an unaccompanied youths) should be assigned a local educational liaison.255 School districts should pay special attention to unaccompanied youths, because without a parent or guardian they are less likely to be aware of their educational rights and be able to advocate for themselves. As a result, unaccompanied youths are more likely to be out of school for longer periods of time.256 Each school district should have a local educational liaison responsible for identifying homeless children, ensuring that they enroll in school, and that they have a full and equal opportunity to succeed.257

Local educational liaisons should also ensure that homeless families, children and youths receive educational services for which they are eligible and referrals to health care, dental, mental health and other appropriate services.258 Parents and guardians should be made aware of the educational opportunities and transportation services available to their children, and should have meaningful opportunities to participate in the education of their children.259 Furthermore, local educational liaisons are responsible for publicizing the educational rights of homeless children in places such as schools, family shelters, and soup kitchens.260 Liaisons must also ensure that any enrollment disputes are properly mediated.261 Resources: Masslegalservices.org, Information for Homeless Children, http://www.masslegalservices.org/education?tid=731 The McKinney Vento Act can be found at http://www2.ed.gov/policy/elsec/leg/esea02/pg116.html

255 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(1)(J)(ii), amending 42 U.S.C. § 11431 et seq. 256 U.S. Department of Education, Education for Homeless Children and Youth Program, Title VII-B of the McKinney-Vento Homeless Assistance Act, as Amended by the No Child Left Behind Act of 2001: Non-Regulatory Guidance 23 (2004), http://www2.ed.gov/programs/homeless/guidance.pdf. 257 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(6)(A)(i), (ii), amending 42 U.S.C. § 11431 et seq. 258 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(6)(A)(iii), amending 42 U.S.C. § 11431 et seq. 259 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(6)(A)(iv), (vii), amending 42 U.S.C. § 11431 et seq. 260 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(6)(A)(v), amending 42 U.S.C. § 11431 et seq. 261 McKinney-Vento Homeless Education Assistance Improvements Act of 2001 § 722(g)(6)(A)(vi), amending 42 U.S.C. § 11431 et seq.

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Massachusetts Advocates for Children, Educational Rights of Children Affected by Homelessness and/or Domestic Violence, http://www.massadvocates.org/uploads/14/u7/14u7KnvHU1r3VKqrGHuSsQ/HomelessDVhandbook.pdf

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Foster Children and Education What must the state do for foster children with respect to education? The Fostering Connections to Success and Increasing Adoptions Act of 2008 features provisions that aim to improve education stability for children in foster care. Child welfare agencies must now provide a plan to ensure the educational stability of children while they are in foster care. Specifically, the child’s foster care placement must consider the geographical proximity of the placement to the child’s school. State child welfare agencies should coordinate with local educational agencies to ensure the child stays in his current school. The state child welfare agency must also consider the appropriateness of the child’s current educational setting. If they determine that staying in the current school is not in the child’s best interest, they should make plans to immediately enroll the child in a more appropriate setting and to transfer his records promptly.262 Furthermore, the Act requires all states to provide assurance in their Title IV-E state plans that all school-age children in foster care are either enrolled full-time in elementary or secondary school or have completed secondary school. The same standard applies to children who are not in foster care but who receive adoption assistances or subsidized guardianship payments.263

The Act also improves school transportation for children in foster care. It increases the amount of funding that may be used to provide reasonable education-related transportation to and from school.264

Fostering Connections also provides more funding and services enabling children, teenagers and young adults in foster care to pursue educational and employment goals. For example, youth aged 16 or older who have transitioned from foster care to kinship guardianship or adoption may receive Education Training Vouchers (ETVs) and Independent Living Services.265 States have the option to provide payments to foster youth up to the ages of 19, 20 or 21 if they are engaging in the following activities:

• Completing high school or a program leading to an equivalent credential; • Participating in post-secondary or vocational education; • Participating in a program or activity designed to promote or remove barriers to

employment; • Working at least 80 hours a month;

262 “Questions and Answers: Fostering Connections to Success and Increasing Adoptions Act of 2008 – Education Provisions,” Legal Center for Foster Care and Education, undated. 263 Id. 264 Id. 265 Id.

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• Or are incapable of doing any of the above activities due to a documented medical condition.266

See also discussion of the McKinney Vento Act.

266 Id.

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College Age Students with Disabilities What rights to postsecondary students with disabilities have? Students with disabilities have rights to accommodations in postsecondary schools under Section 504 and Title II of the Americans with Disabilities Act (ADA). However, the requirements of colleges to serve students with disabilities differ from those of elementary and secondary school districts. Knowing these distinctions is essential for any student with a disability entering a postsecondary school.267 Primarily, post-secondary schools must provide appropriate academic adjustments free of charge to students with disabilities. This is different from Free and Appropriate Public Education, or FAPE that school districts must provide. Under FAPE requirements, school districts must strive to meet the needs of students with disabilities as well as those of students without disabilities, providing related aids and services that are necessary to accomplish this goal. Postsecondary schools, however, are required to provide adjustments with the goal of ensuring that they do not discriminate against students on the basis of disability.268 Practically, this means that postsecondary schools are not required to be as active and involved with students who have disabilities. Furthermore, postsecondary schools are not required to identify students with disabilities or assess their needs. Students must actively inform their school of their disability and need for academic adjustments. Students are responsible for requesting academic adjustments in due time and following the school’s stated procedures. If students cannot find information on how to request academic adjustments, they should ask an admissions officer or counselor who may be able to help. Students will likely need to show documented proof of their disability to obtain academic adjustments.269 How do schools determine appropriate academic adjustments? Postsecondary schools must determine appropriate academic adjustments based on each individual student’s needs. However, schools do not have to lower or substantially modify essential academic requirements. They do not have to make modifications that would fundamentally alter the nature of a service, program or activity or that would result in undue financial or administrative burdens.270 Postsecondary schools also do not have to develop a plan similar to the IEP for students with disabilities.271 However, schools

267 U.S. Department of Education, Office for Civil Rights, Students with Disabilities Preparing for Postsecondary Education: Know Your Rights and Responsibilities 1 (2007), http://www2.ed.gov/about/offices/list/ocr/transition.html. 268 Id. at 2. 269 Id. 270 Id. 271 Id. at 3.

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should make efforts to work collaboratively with the student to find an adjustment that will benefit the student. What are potential academic adjustments? Academic adjustments may include, but are not limited to the following:272

• Reduction of course load; • Priority registration; • Substitution of courses; • Provision of in-class assistance, such as note-takers or recording devices; • Extension of testing time.

What grievance procedures must schools have? Schools that receive federal funds, or enroll students who receive federal funds, must have due process grievance procedures for disability-based complaints. They must also employ a disability compliance officer or disability services coordinator to handle complaints.273 Students whose schools are not accommodating their disability even after the grievance process could contact the following agencies:

• Office of Civil Rights at the U.S. Department of Education, http://www2.ed.gov/about/offices/list/ocr/index.html

• Massachusetts Office of Disability, http://www.mass.gov/mod • Disability Law Center of Massachusetts, http://www.dlc-ma.org/

What access to mental health treatment should students have? Students with mental health-related disabilities, or non-disabling mental health needs should be sure to seek proper treatment on campus. Counseling services can often be accessed through the school’s health center, though some schools have separate counseling centers. Students who are on their parents’ health insurance should be aware that their parents may find out from the insurer that they are receiving mental health services.274 Furthermore, students with mental health disabilities can request academic adjustments using the same process as other students with disabilities. They, too, will likely need to prove their disability status with documentation such as an evaluation by a mental health professional.

272 U.S. Department of Education, Students with Disabilities Preparing for Postsecondary Education: Know Your Rights and Responsibilities, http://www2.ed.gov/about/offices/list/ocr/transition.html. 273 Bazelon Center for Mental Health Law, Campus Mental Health: Know Your Rights! 10, http://www.bazelon.org/l21/YourMind-YourRights.pdf. 274 Id. at 2.

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Throughout treatment in college, students should be aware that their school may face liability for the actions of students.275 Generally, conversations between students and counselors should be confidential, but the counselor may send a student to hospital or notify parents, school administrators and insurers if he or she thinks the student is a danger to himself or others.276 What rights do students have when taking leaves of absence? Some schools respond to students facing mental health crises (including being hospitalized or threatening to hurt themselves) by requiring them to take a leave of absence or to evict them from student housing.277 However, according to legal standards schools may only require a student to take a leave of absence if, even with accommodations and supports, the student is unsafe at school and is unable to meet academic standards.278 Furthermore, schools must conduct an individualized assessment of the risk the student poses to himself and the viability of reducing such a risk with accommodations or other supports. In determining this risk, schools can access the student’s mental health records to the extent necessary. However, they do not have unlimited access; students can limit the specific dates of records released to the school. Students also have the right to review and approve records and information that the school requests.279 Schools must conduct this assessment before imposing a leave of absence or removal from student housing.280 If schools do decide to take either of these actions, the student is entitled to due process rights.281

What if a student believes his or her privacy rights have been violated? A student who believes his or her privacy rights have been violated may file a grievance with the school or a complaint with the Department of Education’s Family Policy Compliance Office at http://www.ed.gov/policy/gen/guid/fpco/index.html.282

Resources: Office for Civil Rights, Students with Disabilities Preparing for Postsecondary Education: Know Your Rights and Responsibilities, http://www.ed.gov/about/offices/list/ocr/transition.html

275 See Shin v. Massachusetts Inst. of Technology, 2005 WL 1869101, *9 (Mass. Super., 2005). 276 Bazelon Center for Mental Health Law, Campus Mental Health: Know Your Rights! 7, http://www.bazelon.org/l21/YourMind-YourRights.pdf. 277 Id. at 12. 278 Id. at 13. 279 Id. 280 Id. 281 Id. 282 Id. at 8.

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Bazelon Center for Mental Health Law, Campus Mental Health: Know Your Rights (2008), http://www.bazelon.org/l21/rightsguide.htm

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