Well, lets start the year off right. Prior to my vacation, a Parent and I filed for yet another hearing. This time the issue went all the way up to Malden, the BSEA for a Pre-Hearing. We thought that we had an agreement, however, it appears that even more parental rights were to be attempted to be violated.
The Parent requested an Out of District Diagnostic residential placement to address the growing physical behaviors of her child. The Parent agreed to a day diagnostic and the school district relented and provided, in a binding agreement the day diagnostic placement.
However, the school district chose the school, the date to start the child in the program and when the Parent could meet with the new school personnel after the student started school in the diagnostic placement. Additionally, two other schools were mentioned and apparently he was denied those programs and the Parent was never notified in writing why the student could not attend two schools that were closer.
The state and federal regulations provided, that a “diagnostic“, is not a placement, therefore, the parent cannot use “Stay-Put”. However, in the event the diagnostic states that the student needs the placement, does not mean the parent must use that program, which wrote the diagnostic evaluation. For the same reason, it is not a “Stay-Put”.
Also, a school district cannot determine a date and time for a “team meeting” and because you can’t make the meeting on that date or time, it is somehow the parent’s fault, again that is a violation of “mutually convenient“. This means that the date and time must be convenient for all parties, not just the school district scheduling issues.
Then there is the issue that if your child is going to have an assessment completed, the Parent has the right to meet with the evaluator to discuss the evaluations that will be completed and any other concerns the Parent may have as it relates to the evaluation.
The last issue is that the Parent has the right to tour/observe the school district’s proposed placement, prior to the student being admitted to the school district. Why would that be important, you say, because how do you know if the new school placement is designed to meet your child’s unique needs, because the school district says so? Be careful, this is the same school district that you had to take to hearing just to obtain a day diagnostic.
Additionally, the diagnostic is suppose to answer key questions as it relates to the purpose of the diagnostic placement. One is to determine if the student needs a more restrictive environment or if the school district can add more services and/or supports.
I suggest that anytime a school or parent’s are getting evaluations completed that prior to conducting the evaluations, meet with the evaluator. Ask the evaluator about the testing, and the purpose of the tests he/she will be administering to your child. Inform the evaluator of the issues you hope to identify or rule out and to make sure that the evaluator understands that the recommendations are to be included in their evaluation prior to the “team meeting”. A lot of school district’s evaluations say things like “recommendations will be discussed at the team meeting” or the “team will determine the recommendations”, NO, that’s against state and federal regulations, not to mention unethical and unprofessional.
In this instance the school district is trying to say that they want to “hurry up” and place the student to obtain the information, yet, it wasn’t until the Pre-Hearing that the school district thought this was even necessary.
Needless to say, the Parent and I are having a meeting with the new school staff, the meeting date has been changed to a mutually convenient date, and the student is not starting until the Parent visits the school. Enuff said….
Dear Tami, Is it true that the Department of Education is in violation of Federal Law because the hearing officers are still the same hearing officers that have been hearing cases against the school districts while both are employees of the Department of Education? I heard that they recently seperated to Division of Law and Appeals however they are still the same old employees of the STATE.. Isn’t this a huge breach of trust and a conflict of interest. Do you think this is why the parents lose 95% of the time?
Well, its like this, yes they separated, but apparently that definition is in who is interpreting “separation”. Yes, allegedly the Division of Administrative Law Appeals is suppose to be overseeing the hearing officers. I guess to keep them honest. Unfortunately, the rule is that the hearing officer makes all of the calls as it relates to how she/he decides the case, the laws and regulations they will use in determining the prevailing party, as well as the scope of the hearing. Apparently, the hearing officer’s can change your request which has historically only benefited the school districts and state agencies. And Yes, it is still a breach and violation of 34 CFR 300.511. It is difficult to understand how an individual can be a member of the Massachusetts BAR and knowingly violate federal regulations that violate a very simple process, a Fair and Impartial Hearing.
The only benefactors of these actions are the opposing parties, not the parents. As I stated earlier many of the BSEA decisions go unappealed. Parents do not have the funds to appeal to the court level. So many decisions are left on the record unchallenged and setting a precedent that detrimentally tips the scale adversely against the students with a the disability, which is ultimately the sole reason for the hearing in the first place. Yes, it is why 95% of the time for the last 10-20 years the parents lose. Lawyers cost a lot of money and sometimes its just better to suck it up, but there are times when you can’t suck it up. There are many ways to get what you need without going through a hearing try all of them first, then if all else fails use the BSEA as a last resort. At the very least go into the hearing knowing that you only have approximately a 5% chance of winning. That being said, your only other thought is that you must go through with the BSEA hearing to get to court. The state administrative hearing process must be exhausted before you can file a lawsuit against any state agency and that includes a school district. Keep the faith, keep moving forward and you will make changes. You won’t get the recognition, there won’t be any parades or grand gestures bestowed upon you, but you do it anyway because it is the right thing.
Dear Tami, Do you think DYS can beat your child and get away with it. Do you know Sam Sutter’s Office won’t prosecute. Did you know I have a supported 51A and B for abuse and neglect and noone is held accountable. Has your child been abused at DYS please contact.
Dear Michelle,
No, I don’t think DYS should beat a child in there custody. However, the unfortunate fact is that the most of these kids are wards of the state and the state turns a blind eye. These kids don’t usually have a voice they are defenseless against DYS and their staff. How many times did you request the Dept. of Children and Families to investigate before they actually did. Many times state agency that are caregivers usually do not receive supported 51A’s, so I have to think that the only way it was supported was the evidence was extremely difficult to ignore. Many, not all of these kids come from dysfunctional families and have other issues to deal with and won’t stand up to DYS. More people need to make noise like you did. The squeaky wheel theory really works the more you let people know about your story and how you challenged their authority more people will have the courage to do the same. Good for you and keep it up.