Special Education Law

Special Needs Trusts in Connecticut

Leave a reply

A special needs trust is set up for a person with special needs to supplement any benefits the person with special needs may receive from government programs. A properly drafted special needs trust will allow the beneficiary to receive government benefits while still receiving funds from the trust. There are three main types of special needs trusts, but first it is important to understand how a typical trust works.

What is a trust?

A trust is really a relationship between three parties — a donor, who supplies the funds for the trust; a trustee, who agrees to hold and administer the funds according to the donor’s wishes; and a beneficiary or beneficiaries who receive the benefit of the funds. Often, but not always, the donor’s wishes are spelled out in a document that gives the trustee instructions about how she should use the trust assets.

Trusts have been used for estate planning for a long time, and are highly useful tools for ensuring that a donor’s property is administered as he sees fit. One of the reasons trusts are so popular is that they usually survive the death of the donor, providing a low-cost way to manage the donor’s assets for others when the donor is gone.

What is a Special Needs Trust?

A special needs trust is a trust tailored to a person with special needs that is designed to manage assets for that person’s benefit while not compromising access to important government benefits. There are three main types of special needs trusts: the first-party trust, the third-party trust, and the pooled trust. All three name the person with special needs as the beneficiary.

A “first-party” special needs trust holds assets that belong to the person with special needs, such as an inheritance or an accident settlement. A “third-party” special needs trust holds funds belonging to other people who want to help the person with special needs. A pooled trust holds funds from many different beneficiaries with special needs.

What kinds of Special Needs Trusts are there?

The reason there are several different types of trusts has to do with regulations regarding Supplemental Security Income (SSI). SSI is a government program that assists people with low incomes who have special needs. In order to qualify for SSI, an applicant or beneficiary can have only $2,000 in his own name. If the person has more than $2,000 in his own name, (typically because of excess savings, an inheritance or an accident settlement), the government allows him to qualify for SSI so long as he places his assets into a first-party special needs trust.

The trust must be created by the beneficiary’s parent or grandparent, or by a court, but it cannot be created by the beneficiary, even though his assets are going to fund the trust. While the beneficiary is living, the funds in the trust are used for his benefit, and when he dies, any assets remaining in the trust are used to reimburse the government for the cost of his medical care. These trusts are especially useful for beneficiaries who are receiving SSI and come into large amounts of money, because the trust allows the beneficiary to retain his benefits while still being able to use his own funds when necessary.

Third-Party Special Needs Trusts

The third-party special needs trust is most often used by parents and other family members to assist a person with special needs. These trusts can hold any kind of asset imaginable belonging to the family member or other individual, including a house, stocks and bonds, and other types of investments.

The third-party trust functions like a first-party special needs trust in that the assets held in the trust do not affect an SSI beneficiary’s access to benefits and the funds can be used to pay for the beneficiary’s supplemental needs beyond those covered by government benefits. But a third-party special needs trust does not contain the “payback” provision found in first-party trusts. This means that when the beneficiary with special needs dies, any funds remaining in her trust can pass to other family members, or to charity, without having to be used to reimburse the government.

Pooled Special Needs Trust

A pooled trust is an alternative to the first-party special needs trust. Essentially, a charity sets up these trusts that allow beneficiaries to pool their resources for investment purposes, while still maintaining separate accounts for each beneficiary’s needs. When the beneficiary dies, the funds remaining in her account reimburse the government for her care, but a portion also goes towards the non-profit organization responsible for managing the trust.

Anyone can establish a special needs trust and, if the trust is properly drafted to account for tax planning, in certain situations gifts into the trust could very well reduce the size of the donor’s taxable estate. As if these are not enough reasons to create a trust, elderly people who are attempting to qualify for long-term care coverage through Medicaid can transfer their assets into a properly drafted third-party special needs trust for the sole benefit of a person with disabilities without incurring a transfer-of-assets penalty, allowing the elder to qualify for Medicaid and making sure that the person with disabilities is taken care of in the future.

–

Of course, every person with special needs is different, which means that every special needs trust is going to be different as well. The only way to determine which special needs trust is right for your family is to meet with a qualified special needs planner to discuss your needs. If you have any questions regarding this topic, or any special education law matter, please contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at 203-221-3100 or JMaya@Mayalaw.com.

Developing Your Special Education Child’s Individualized Education Program

Leave a reply

A recent series of articles on this website provides an overview of the special education process so you, as a parent, know what to expect. You have the right to make sure your child receives a free appropriate public education (FAPE), and oftentimes that means a standard classroom environment does not meet your child’s special needs due to a disability.

If your child is between 3 and 21 years of age, suffers from an enumerated disability under the Individuals with Disabilities Education Act (IDEA), and the disability interferes with his or her classroom performance, you have the opportunity to seek special education and related services. More importantly, you can play a critical role on the planning and placement team (PPT) to evaluate your child’s special education referral to determine eligibility.

Individualized Education Programs

So, you’ve made it this far: your child is deemed eligible for special education and related services, but… what happens now? The PPT will hold meetings to establish an individualized education program (IEP), which is “a written plan detailing your child’s special education program,”[1] including the following key elements:

  • Present levels of educational and functional performance;
  • Measurable educational goals linked to present levels of academic and functional performance for the coming year and short-term instructional objectives derived from those goals;
  • Evaluation procedures and performance criteria;
  • An explanation of the extent, if any, to which your child will not participate in the regular education class, the general education curriculum or extracurricular activities;
  • Modifications and accommodations your child needs to participate in the general education curriculum including nonacademic and extracurricular activities;
  • Special education and related services required by your child including transportation and physical and vocational education programs;
  • Recommended instructional settings and a list of people who will work with your child to implement the IEP;
  • The date services will begin and end, and the frequency of the identified services;
  • The length of the school day and year;
  • Statement of accommodations and modifications needed to facilitate CMT/CAPT, or district-wide testing;
  • Recommendations for participation in alternate assessments (if needed); and
  • Transition service needs.[2]
PPT Meetings

Within five days after the PPT meets and develops your child’s IEP, you must receive a copy of the plan. The same goes for any future revisions.

Keep in mind that you have the right to participate in the PPT meetings, and your school district must work with you to select a time and place that works for both sides. You must receive five days written notice of any meeting to make sure you will be able to attend. This notice includes:

  • A list of who will be attending the meeting;
  • Affirmation of your right to bring with you other individuals who are able to provide support or who have knowledge and/or expertise with respect to your child’s needs.
  • An invitation to your child to attend if he or she is 16 years of age or older (or even if the child is younger, if participation is deemed appropriate), and “the purpose of the meeting will be the consideration of the postsecondary goals and transition services for the child”[3]

If the school schedules the meeting at a time or location you cannot make, alternative methods of participation, such as a telephonic or video conference call, must be explored. However, if the school district repeatedly attempts to schedule a meeting and each time you are unable to attend, they may hold the PPT meeting without you; the school must maintain a results log documenting these attempts.

Written by Lindsay E. Raber, Esq.

–

If you are the parent of a child that has a disability, it is imperative that you participate in this process so as to help maximize your child’s educational opportunities. Should you have any questions about special education or education law in general, it may prove beneficial to seek the counsel of an experienced school law practitioner. Please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., in Westport, Connecticut by telephone at (203) 221-3100, or by email at JMaya@Mayalaw.com.

 

[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., pp.20.

[2] “A Parent’s Guide to Special Education in Connecticut,” by the Connecticut State Department of Education, pp.4. Accessed October 9, 2012: http://www.sde.ct.gov/sde/lib/sde/PDF/DEPS/Special/Parents_Guide_SE.pdf

[3] Id. at 5.

The Misrepresentation of Minorities in Special Education Classes

Leave a reply

A law went into effect here in Connecticut that requires the State Department of Education to identify school districts that “disproportionately and inappropriately identif[y] minority students as requiring special education because such students have a reading deficiency.”[1] Under this statute, the term “minority student” takes on the public’s common understanding: any student that is non-white or of Hispanic/Latino ethnicity.

In 1954, the Supreme Court issued its landmark ruling in Brown v. Board of Education that struck down de jure racial segregation, noting that “separate educational facilities are inherently unequal.”[2] Since then, many great strides have been made to offer free, appropriate public education to all children, regardless of race, ethnicity, gender, socio-economic status, and disability.

Racial Discrepancies in Special Education

In the realm of special education, Congress has enacted various statutory schemes that provide comprehensive protections for children with mental or physical disabilities. This occurred most notably in the form of the Individuals with Disabilities Education Act (IDEA) and its predecessor, the Education for All Handicapped Children Act (EAHCA), which “ushered in an era in which the federal government became active in financing and regulating special education services provided by local districts.”[3]

The goal was noble: ensuring that students with disabilities would receive a free and appropriate public education (FAPE) on par with students in regular classrooms. Unfortunately in practice, African American and Hispanic students are being disproportionately identified as having emotional behavioral disorders and intellectual disabilities, and are thus “more likely to be served in special education classes and residential placements more than their peers.”[4] 

One study in Massachusetts, for example, revealed that while African Americans represented approximately 12.4% of the total U.S. population, they were “approximately 1.3 times (approximately 30%) more likely than non-African American students to be found eligible for special education.”[5] Hispanic students received similar results.

Misinterpretation of Culture and Behavior in Connecticut

What is the source of this improper labeling? As a New York Times columnist mused, “the students are being placed in special education because educators are misinterpreting behavior problems and misunderstanding cultural differences.”[6] Connecticut was not innocent in this respect, as one civil rights lawyer dubbed “Connecticut’s dirty little secrets in education.”[7] As further highlighted in the same Times article:

  • Hartford: Hispanic students were “more than four times as likely as whites to be identified as having a learning disability.”
  • Norwalk: African American students constituted 36% of the special education population, but was only 25% of the total student population.
  • West Hartford: African American students were “more than five times as likely as whites to be diagnosed as having an emotional disturbance.”
  • Windham: Hispanic students constituted 58% of the total student population, but represented 64% of the special education population and “nearly 70 percent of students classified as having a speech or language impairment.”

Other reasons cited include subjectivity in decision-making that allows for bias and misinterpretation of cultural cues – such as “bad” as a slang for “cool” being misread by an evaluator as exposure to “negative influences.”[8] In this example, the social worker involved stated, “It really started to speak loudly to the fact that people involved didn’t understand our community.”

Nonetheless, Connecticut’s Public Act 12-116 § 90 is certainly a step in the right direction to ensure that minority students are not inappropriately and disproportionately placed into special education programs when it is not warranted. Only time will tell whether meaningful progress will be made, or whether litigation will be necessary because such progress is “uneven” or “moving too slowly in the desired direction.”[9]

Written by Lindsay E. Raber, Esq.

–

If you are a parent who believes that your child has been improperly placed as a special education student, it is imperative that you are aware of your rights and consult an experienced school law attorney. Should you have any questions about special education or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C. in Westport, Connecticut by telephone at (203) 221-3100, or by email at JMaya@Mayalaw.com.

[1] Public Act 12-116 § 90(a).

[2] Brown v. Board of Education, 347 U.S. 483, 495, 74 S. Ct. 686, 692 (1954).

[3] “Special but Unequal: Race and Special Education,” by Matthew Ladner and Christopher Hammons. 2001: http://www.dlc.org/documents/SpecialEd_ch05.pdf

[4] “The overrepresentation of African American students in special education,” by Latanya Fanion. July 22, 2010: http://www.examiner.com/article/the-overrepresentation-of-african-american-students-special-education

[5] “Disproportionality: A Look at Special Education and Race in the Commonwealth,” by Matthew Deninger. Pp. 1, 4. September 2008: http://www.doe.mass.edu/research/reports/Edbrief_final.pdf

[6] “Special Education and Minorities,” by Avi Salzman. November 20, 2005: http://www.nytimes.com/2005/11/20/nyregion/nyregionspecial2/20ctspecial.html

[7] Id.

[8] Id.

[9] Id.

Growing Awareness Surrounding Bullying of Students with Disabilities in Fairfield County

Leave a reply

Bullying has gained the attention of the media over recent years, but despite the focused spotlight, bullying is rampant in our society.  Among the easiest targets are children with special needs.  They are, on average, at a greater risk to be bullied than their non-disabled counterparts.  This is in part because special education children make easy targets. It is often harder for children with disabilities to recognize which behaviors are socially appropriate and those that are not.

Many organizations are stepping up to the challenge of educating the community and parents on the complex issues surrounding bullying of students with disabilities. The Stratford Special Education Teacher and Parent Association held a presentation on “Bullying of Students with Disabilities.” The presentation focused on how to help schools avoid litigation stemming from the targeting of children with special education needs. The hope is to set up systems in schools that address bullying before it becomes a problem.

Interestingly, the presentation also focused on teaching parents how to work with the school system to effectively develop plans to prevent harassment of their children.  It is important that parents work with school administrators to develop Individualized Education Programs (IEPs) that encourages students to learn and develop self-advocacy, and social and life skills necessary to reduce disability related harassment.

In addition to parents and school administrators working together to reduce and bring awareness to bullying and its drastic effects, it is also important to be familiar with the laws that protect children with disabilities.  At Maya Murphy, P.C., we have experience dealing with Education Law, harassment or bullying, Special Education Law, and discrimination.

By Leigh H. Ryan, Esq.

–

If you have any questions regarding bullying of students with disabilities, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@Mayalaw.com.

Evaluating Your Child’s Special Education Needs and Services

Leave a reply

The process by which a child is determined eligible for special education and related services may seem intimidating or overwhelming, as there is a wealth of information that any parent of a child with disabilities needs to understand. In this latest series of school law articles, we are presenting an overview of just what happens once a child is identified as potentially eligible, and this post specifically focuses on the evaluation process.

The Initial Evaluation 

An initial evaluation occurs right after a child’s referral for special education, which the planning and placement team (PPT) uses to determine “your child’s specific learning strengths and weaknesses and needs, and to determine whether or not your child is eligible for special education services.”[1] You have the right to participate in the PPT, and thus have the valuable opportunity to provide all relevant information related to your child’s abilities, needs, and skills.

Other information that the PPT considers is that collected by the school district and its employees: “informal and formal observations, a review of homework, standardized tests and other school records and information.”[2] However, the process must be conducted in a nondiscriminatory manner, and you have the right to refuse consent or revoke it at any point.

The PPT Meeting

When the evaluation is complete, you will meet with the rest of the PPT to interpret the data collected during the study. The purpose of this meeting is to determine:

  1. Whether your child has a disability (as enumerated in the Individuals with Disabilities Education Act, or IDEA)
  2. Whether that disability has an adverse impact on your child’s education
  3. Whether your child needs special education and related services to fulfill free appropriate public education (FAPE) requirements.
The Independent Educational Evaluation

However, what happens if you don’t agree with the results of this evaluation? You may consult with a qualified examiner now employed by the school district to conduct an independent educational evaluation (IEE). Determining who pays for this boils down to two situations:

  1. The school district simply agrees to pay for the IEE. The evaluation criteria of the IEE must be the same as that used by the school in its own evaluation.
  2. The school district asserts that its evaluation was proper or the IEE criterion is insufficient. It may elect to pay for the IEE or hold a due process hearing, at which the hearing officer determines the appropriateness of the school’s evaluation. If the officer finds in their favor, you may still obtain an IEE, but you are responsible for paying for it.

The results of an IEE must be considered by the school district. “However, the school district is not required to agree with or implement any or all of the results or recommendations of the independent educational evaluation.”[3]

The Reevaluation Process

Placement in special education and your child’s IEP are not concrete. Indeed, reevaluations are made to determine several things:

  1. Whether or not your child still has a qualifying disability
  2. Your child’s present level of academic achievement as well as related developmental needs
  3. Whether or not your child still needs special education and related services
  4. Whether or not your child’s IEP requires modification

In essence, the PPT looks at the information regarding your child, and you may ask the school district to conduct additional assessments if you believe more information is necessary for making these determinations. The reevaluation process must occur at least once every three years, though the PPT may perform it more frequently. However, your written consent is required, though special circumstances permit the reevaluation without it.

Written by Lindsay E. Raber, Esq.

–

If you are the parent of a child that has a disability, it is imperative that you participate in this process so as to help maximize your child’s educational opportunities. Should you have any questions about special education or education law in general, it may prove beneficial to seek the counsel of an experienced school law practitioner.

Please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C. in Westport, Connecticut by telephone at (203) 221-3100, or by email at JMaya@Mayalaw.com.

[1] “A Parent’s Guide to Special Education in Connecticut,” by the Connecticut State Department of Education, pp.6. Accessed October 9, 2012: http://www.sde.ct.gov/sde/lib/sde/PDF/DEPS/Special/Parents_Guide_SE.pdf

[2] Id.

[3] Id. at 7.

Special Education Referrals, and the Planning and Placement Team

Leave a reply

If you’re a parent and determined that your child meets the requirements for SPED (special education), what happens next? Rather than immediate referrals and placement, your school district will first attempt to keep the child in a regular classroom and incorporate an alternative general education program. It is within your authority to approach the school district on implementing an alternative program for your child, but should he or she continues having problems in a non-SPED classroom, a referral is the next course of action.

What is a Referral?

A referral is “a written request for an evaluation of a child who is suspected of having a disability and who may be in need of special education and related services.”[1] Various parties may submit the referral:

  • The student, if 18 years of age or older.
  • The parent, guardian, or surrogate parent of the student.
  • A member of the school’s personnel.
  • Other qualified individuals, such as the student’s physician or social worker, provided parental permission to make the referral was previously granted.

The student need not actually be attending school yet to qualify for a referral: remember, one of the qualifications for SPED under the Individuals with Disabilities Education Act (IDEA) covers an age range of 3 to 21 years. Your school district is obligated to “identify children in need of special education from birth on, [a duty called] ‘child find.’”[2]

What is a PPT?

If you are not the individual who made the referral, you will receive a written notification (or notice) of it. In addition, you will have the right to participate on your child’s PPT, which is tasked with “review[ing] existing evaluation information that the school district has about your child to determine whether there is a need for any additional data or information.”[3] In other words, this is the group of individuals that determines whether the information they have on hand supports SPED placement, and you have the ability to directly impact that decision through your own participation.

The following is a list of those who typically comprise the PPT:

  • The child’s parents
  • One or more of the child’s regular education teachers (if any)
  • One or more of the child’s special education teachers/providers
  • A school district representative “who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities and is knowledgeable about the general curriculum and about the availability of resources of the school district”
  • A member of student services, such as a guidance counselor or school psychologist
  • An individual “who can interpret the instructional implications of evaluation results” (possible dual-role with previously listed individuals, except for the parent)
  • The student him- or herself, when warranted
  • “[O]ther individuals who have knowledge or special expertise regarding children.”[4]
Consent in the Placement Process 

As a parent, you have the right to refuse consent of an evaluation. Informed consent means “you must be given full and complete disclosure of all relevant facts and information pertaining to your child regarding certain proposed activities by your local educational agency.”[5] It is required in the referral process when:

(a) [Y]our child undergoes an initial evaluation to determine his or her eligibility for special education and related services, (b) before your child is placed in special education services, (c) before your child is placed in private placement, and (d) before your child is reevaulated.

Consent to an initial evaluation does not automatically extend to the additional steps listed above: rather, new consent is required before the school district may take action. However, “a parent’s failure to give consent to a reevaulation may be overridden if the school district can show that a good-faith effort was made to obtain consent and the child’s parent failed to respond.”[6] Regardless, if you reject a proposed course of action, the school district must still provide your child with a free appropriate public education, or FAPE.

Written by Lindsay E. Raber, Esq.

–

Should you have any questions about special education or education law in general, it may prove beneficial to seek the counsel of an experienced school law practitioner. Please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C. in Westport, Connecticut by telephone at (203) 221-3100, or by email at JMaya@Mayalaw.com.

[1] “A Parent’s Guide to Special Education in Connecticut,” by the Connecticut State Department of Education, pp.2. Accessed October 8, 2012: http://www.sde.ct.gov/sde/lib/sde/PDF/DEPS/Special/Parents_Guide_SE.pdf

[2] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., pp.10-11.

[3] See Footnote 1.

[4] See Footnote 1.

[5] See Footnote 2 at 11.

[6] Id at 11-12, citing 34 C.F.R. § 300.300.

What Parents Need to Know About Special Education Law

Leave a reply

The state and federal governments enacted various regulations to protect a student with disabilities and to ensure that he or she obtains a Free Appropriate Public Education (FAPE).  Parents play a key role in the success of any special education program implemented for their children. Given the complexity of special education law, it is important to understand the significant responsibility a parent has in the special education system.

Referral to Special Education and Related Services

This is the first step in the process to determine a child’s eligibility for special education and related services. Parents should be aware that you have the right to request such a referral.  The referral must be in writing. School officials also have the ability to make a referral.  However, a parent is often in a better position to suspect any disabilities, and can make an early referral to special education services through Connecticut’s Birth to Three program, prior to enrollment in school.

Planning and Placement Team (PPT)

The PPT reviews all referrals to special education. As a parent of a child, you have the right to be actively involved in the PPT, and are, in fact, a valued asset of the PPT.   A PPT generally consists of the parent(s), one of the child’s educators, a special education teacher, a representative of the school district, a pupil services personnel, and the child (depending on age).

As a parent, you have the right to include other individuals who have knowledge or special expertise regarding your child.  As a valued member of the PPT, the school district must try to schedule meetings at a mutually agreeable time and place for you and must notify you, in writing, at least five (5) school days prior to holding the meeting.

Evaluations, Independent Educational Evaluations (IEE), and Reevaluations

The evaluation is the study used to determine a child’s specific learning strengths and needs, and ultimately determine whether your child is eligible for special education services. As an active participant, a parent can assist the PPT in designing the evaluation.  That is why sharing with the PPT all important information concerning your child’s skills, abilities, observations, and needs can be extremely beneficial to the process.

If you disagree with the evaluation conducted by the school district, you have a right to obtain an independent educational evaluation (IEE).  Such an IEE can be obtained at the school district’s expense, unless the school district can prove its evaluation is appropriate or that the IEE does not meet the school district’s criteria. If the school district believes that its evaluation was appropriate, it must initiate a due process hearing (or pay for the IEE).  In either event, you have a right to an IEE.

However, if the school district’s evaluation is found appropriate, the parent will have to bear the cost of the IEE.  Reevaluation must be performed at least once every three (3) years, or sooner if conditions warrant. At the reevaluation, the educational needs of your child will be assessed, along with present levels of academic and related development needs of your child to determine whether your child continues to need special education and related services and whether your child’s IEP needs to be modified.

Individualized Education Program (IEP)

The IEP is a written plan that describes in detail your child’s special education program created by the PPT. Given the IEP is designed specifically for your child, it is vital that as a parent you exercise your right to be actively involved in the PPT meetings.  The IEP is designed to identify your child’s current levels of education and functional performance and any modifications or accommodations your child needs to participate in the general education curriculum.

A child with a disability must, to the maximum extent possible, be educated with his/her non-disabled peers.  This is called the Least Restrictive Environment (LRE). By law, you are entitled to receive a copy of your child’s IEP within five (5) school days after the PPT meeting was held to develop or revise the same.

Informed Consent

Prior to evaluating a child for the first time, a school district must obtain the parent’s written informed consent.  Informed consent means that a parent has been given all the information needed to make a knowledgeable decision. Written informed consent must also be obtained prior to the initial placement into special education, before a child is placed into private placement, and before a child is reevaluated.

As a parent, you can refuse to give your consent and you can withdraw consent once it has been given.  Giving consent for an initial evaluation does not mean that consent was given to place a child into special education or for any other purposes.  A school district must obtain separate written informed consent for each.

Placement

To the maximum extent possible, your child must be educated with his/her non-disabled peers in a general education classroom.  Removal from the school that your child would attend had he/she not had a disability, should only occur when the nature or the severity of the disability is such that educating your child in that setting cannot be achieved satisfactorily.

If this is the case with your child, the PPT must find an appropriate educational placement as close as possible to your home, at the cost of the school district.  While you can place your child in private placement on your own, there is no guarantee of full or partial reimbursement from the school district and that will ultimately depend on the findings by a hearing officer.

Disciplinary Procedures

The school district’s code of conduct applies to all children, with or without a disability. Prior to any suspension or removal, your child has the right to an informal hearing conducted by a school administrator. If it is determined by the PPT that the behavior was caused or related to your child’s disability, then your child may not be removed from the current education placement (except in the case of weapons, drugs, or infliction of serious bodily harm).  It is the PPT’s obligation to conduct a functional behavioral assessment and implement a behavioral intervention plan.

Access to Records

If your child has not reached the age of majority, as a parent you have a right to inspect and review his/her school records. The request must be in writing. The school district must allow you to review the records within ten (10) school days from your request or within three (3) school days if you need the information for a PPT meeting.  Connecticut law provides that you are entitled one free copy of your child’s records, and the school district has up to five (5) school days to provide you with that copy.

Due Process

A parent has the right to ask for a due process hearing as a result of the school district’s refusal to consider or find that your child has a disability, to evaluate your child, to place your child in a school program that meets his/her needs, or to provide your child with a FAPE.   A parent may bring an advocate or attorney with them to aid throughout the hearing.  A hearing officer will make a final decision within 45 days from the start of the timeline.  Generally, while a due process hearing is pending, a child’s classification, program or placement cannot be changed.

Alternative Dispute Resolution

There are three ways, other than a full due process hearing, to settle disputes between parents and the school district. The first is the Complaint Resolution Process, wherein a parent files a written complaint with the Bureau of Special Education, alleging the local school district has violated a state or federal requirement.  Within sixty (60) days, a written report which includes the Bureau’s findings, conclusions, corrective actions and recommendations, will be mailed to the Complainant.

The second alternative is mediation. Both parties (the parents and the school district) must agree to mediate the dispute.  At mediation, if an agreement is reached, it is placed in writing and is legally binding.  All discussions during mediation are confidential.  The last alternative is an advisory opinion. This is a non-binding opinion, issued by a hearing officer, after a brief presentation of information by both parties.  After receiving the advisory opinion, the parties can decide to settle the dispute or proceed to a full due process hearing.

By: Leigh H. Ryan, Esq.

–

If you have any questions regarding special education law, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

What are Special Education Related Services?

Leave a reply

Your child’s need for special education related services will be determined by your child’s Planning and Placement Team (PPT) or Individualized Education Plan (IEP). Services shall be implemented as part of his or her IEP. Your child’s school district is responsible for the costs of implementing related services pertaining to your child’s needs. This is part of the school’s requirement to provide a free appropriate public education (FAPE). FAPE, by definition, includes related services.

The following are examples of related services:

  • speech-language pathology and audiology services
  • interpreting services
  • psychological services
  • physical and occupational therapy
  • recreation, including therapeutic recreation
  • social work services
  • counseling services, including rehabilitation counseling
  • orientation, mobility and medical services (except that such medical services shall be for diagnostic and evaluation purposes only)
–

If you have any questions regarding this topic, or any special education law matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@Mayalaw.com.

Are Special Education Students Held to the Same Disciplinary Rules as Other Students?

Leave a reply
Is My Child Obligated to Adhere to the Same Disciplinary Rules as Any Other Student?

The code of student conduct that your child’s school district has in place applies to all students, including students who receive special education and related services. A more detailed look at disciplinary procedures can be found in the Discipline section of this publication. The following will provide you with an overview of certain obligations that both you as a parent and the school district must fulfill when your child has been disciplined due to behavior that may or may not have been disability-related.

The Role of a PPT

Your child’s PPT, of which you are a part, will meet to review the relationship between your child’s behavior and his or her disability. This is known as the “manifestation determination.” The PPT determines if your child’s behavior was caused by or had a direct and substantial relationship to his or her disability. The PPT will also determine whether your child’s behavior was caused by the school district’s failure to implement his or her IEP.

If the PPT determines that your child’s disability did not cause the subject behavior, then your child will be disciplined as would any other child who behaved in that particular manner. The manifestation determination must be conducted within ten (10) days of any decision to change the placement of your child due to a violation of the code of student conduct.

If the PPT finds that your child’s behavior was a manifestation of his or her disability or was due to a failure to implement his or her IEP, then your child may not be removed from their current educational setting. Thereafter, the PPT must conduct a functional behavioral assessment and implement a behavioral intervention plan.

A functional behavioral assessment looks at why your child behaved the way he or she did by collecting data to determine the possible causes of the problem and identify strategies to address your child’s behavior. The behavioral intervention plan, which is also developed by your child’s PPT, must be designed to teach your child appropriate behaviors and eliminate behaviors that impede on his or her ability to learn, as well as that of other students in your child’s class.

Interim Educational Settings

School personnel may remove your child from his or her current educational placement and into another appropriate interim educational setting for a maximum of ten (10) consecutive school days. Your child’s IEP determines what an appropriate interim educational plan setting will be. Although your child may be removed from his or her current educational setting and into an interim educational setting if it is found that his or her behavior was not a result of their disability, the child still must continue to receive educational services, so as to continue participation in the general education curriculum and to progress toward meeting the goals set out in his or her IEP.

There are three circumstances permitting your child’s school district to place your child in an interim educational setting for up to forty-five (45) days, irrespective of whether your child’s behavior was found to be a manifestation of his or her disability:

  • He or she carries a weapon to school or a school function, or is in possession of a weapon in school or at a school function;
  • He or she knowingly possesses or uses illegal drugs, or sells or solicits the sale of controlled substances while at school or a school function; or
  • Inflicts serious bodily injury upon another person while at school, or at a school function.

Moreover, a hearing officer may place your child in an interim educational setting if he determines that keeping your child in his or her current placement is substantially likely to result in an injury to your child or to others.

What if I disagree with my child’s placement?

If you disagree with any decision regarding the placement of your child following a disciplinary finding or manifestation determination, you have the right to initiate a due process hearing. Pending a decision by the hearing officer, unless you and the school district agree otherwise, your child will remain in the disciplinary placement until the earlier of the issuance of a decision or expiration of the placement.

In addition, the hearing officer may return your child to the placement from which he or she was removed if the hearing officer determines that removal was not valid or your child’s behavior was a manifestation of his or her disability.

The LEA is responsible for arranging the expedited due process hearing and must do so within twenty (20) school days of the date the complaint requesting the hearing was filed. The hearing officer must make a determination within ten (10) school days after the hearing is held. Decisions as to an expedited due process hearing pertaining to any of the matters in dispute are appealable.

–

Our education law firm in Westport Connecticut serves clients with expulsion, discrimination, and general education law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best education law attorneys in CT on staff that can help with your Connecticut or New York education issues today.

If you have any questions or would like to speak to an education law attorney about a pressing matter, please don’t hesitate to contact Joseph Maya and the other experienced attorneys at our Westport, CT office at (203) 221-3100 or JMaya@Mayalaw.com. We offer free consultations to all new clients.

Special Education Discipline and Interim Educational Settings

Leave a reply

Children that require special education and related services must comply with a school district’s student code of conduct. That being said, the disciplinary procedures that apply are somewhat distinct from those used with non-special education students. In an article posted previously, I described the expulsion process for special education students in more general terms – today, let’s narrow that focus.

Special Education Discipline Process

If your special education child faces disciplinary action, his or her planning and placement team (PPT), of which you may be a member, will schedule a meeting to conduct a “manifestation determination.” In other words, the PPT will figure out whether “your child’s behavior was caused by or had a direct and substantial relationship to his or her disability.”[1] The PPT will also figure out whether the school district failed to implement your child’s individualized education program (IEP), thus prompting the misbehavior. The manifest determination must be conducted no later than ten (10) days after a decision to change your child’s placement.[2]

If the PPT concludes that your child’s behavior did not result from his or her disability, he or she will be disciplined consistent with that received by any other student who behaved in the same way. However, if the PPT establishes either that the behavior “was a manifestation of his or her disability or was due to a failure to implement his or her IEP,”[3] the PPT must perform a functional behavioral assessment (assessment) as well as create and implement a behavioral intervention plan (plan).[4]

The assessment is used to gather information that may shed light on why your child acted the way he or she did, as well as “identify strategies to address your child’s behavior.”[5] In turn, the plan should be designed in a way so as to teach your child how to properly behave, as well as deter and eliminate negative behaviors.

Long-Term Placement in an IES

It is important to keep in mind, however, that your child could be removed from his or her current placement and into an interim educational setting (IES). In most instances, this alternative placement must not exceed ten (10) days and is determined by your child’s IEP. In limited situations, however, your school district may decide to place your child in an IES for upwards of forty-five (45) days. This is without regard to the results of the PPT’s manifestation determination. The three circumstances where this may occur are as follows:

  • Your child carried or possessed a weapon to school or to a school-sponsored activity.
  • Your child knowingly possessed or used an illegal drug, or sold or solicited the sale of a controlled substance on school grounds or at a school-sponsored activity.
  • Your child inflicted serious bodily injury upon a fellow student, staff member, or any other person while on school grounds or at a school-sponsored activity.
What if I disagree with my child’s placement?

If you, as a parent, disagree with any decision relating to the above, you have the right to file for a due process hearing.[6] Unless you and the school district agree to otherwise, your child will remain in the IES until either the placement expires or a post-hearing decision is rendered.[7] Your local education agency must hold the hearing within twenty (20) days of the filing, and the hearing officer must render a decision within ten (10) days after the hearing.[8] Furthermore, the hearing officer has authority to your child’s regular placement if he or she “determines that removal was not valid or your child’s behavior was a manifestation of his or her disability.”[9]

Written by Lindsay E. Raber, Esq.

–

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport.

Should you have any questions regarding school discipline, special education, or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C. in Westport, Connecticut by telephone at (203) 221-3100, or by email at JMaya@Mayalaw.com.

 

[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq.,, pp.31.

[2] 34 C.F.R. § 300.530(e).

[3] See Footnote 1.

[4] 34 C.F.R. § 300.530(f)(1)(i)-(ii).

[5] See Footnote 1.

[6] 34 C.F.R. § 300.532(a).

[7] 34 C.F.R. § 300.533.

[8] 34 C.F.R. § 300.532(c)(2).

[9] See Footnote 1.