If you have a child with a disability in the Boston metropolitan area, including Cambridge, Newton, and the surrounding areas in Massachusetts and New Hampshire, figuring out the best way to advocate for your child can be challenging. The entire area of special education law can be complex and difficult for parents to decipher, but it shouldn't be. Federal and state laws exist to ensure that children with disabilities receive a free and appropriate education in our public schools and that they receive the support and education-related services they need. Attorney-Advisor Joseph D. Lento and the Education Law Team at the Lento Law Firm can help. Give them a call at 888-535-3686.
The laws that comprise the foundation of disability education law are the Americans with Disabilities Act (ADA) and the (IDEA). These are federal laws that apply to all public schools. However, these laws do not apply to private schools.
- 1. Americans With Disabilities Act In the context of education, the Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination based on a disability, ensuring that qualified students have equal access and educational opportunities to participate in any programs, services, and activities in school. The ADA offers many protections for adults in college and the workplace. But, as an adult, the student must advocate for themselves for these protections.
- Individuals With Education Disabilities Act The Individuals with Education Disabilities Act (IDEA) ensures that children receive a “free and appropriate public education” (FAPE), including special education and related services to meet the needs of each child. Services under IDEA can be obligatory for a school district because federal law mandates them in conjunction with the U.S. Department of Education. However, IDEA expires when a student graduates from high school.
Boston Metropolitan Area
Nearly five million people live in the Boston metropolitan area. In Massachusetts, the Boston Metropolitan area includes 11 communities stretching along the coast, eight embayments, and the city of Boston itself. The communities include:
- Saugus
- Revere
- Everett
- Chelsea
- Winthrop
- Boston
- Cambridge
- Milton
- Quincy
- Braintree
- Hingham
- Weymouth
- Lowell
- Concord
- Worcester
- Newton
Several communities in New Hampshire are also typically included as part of the Boston metro area, including parts of Strafford and Rockingham Counties.
- Nashua
- Newton
- Manchester
- Concord
- Laconia
Each community in the Boston metro region may have several school divisions, each with its own policies and procedures for special education children. It's important to understand the school district's policies where you reside and your children attend school.
Colleges and Universities in the Boston Area
The Boston area is known for its world-renowned colleges and universities. These schools range from Ivy League institutions like Harvard University to other top-ranked universities like the Massachusetts Institute of Technology, Boston University, Boston College, Northeastern University, Tufts University, and Wellesley University, to vocational schools and community colleges.
Universities must still follow federal and state disability laws. However, some laws, such as IDEA, will no longer apply once a student graduates from high school. Moreover, many colleges will have looser policies regarding student disabilities than area high schools. However, IEPs and 504 plans may still play a role in a young adult's educational plan in college. In some cases, an existing IEP or 504 plan from high school can carry over and provide a college or university with a useful plan to support a student in higher education and delineate accommodations that should carry over into college.
There is, however, a large transition between K-12 education and higher education. Young adults attending college are expected to advocate for themselves. In most cases, once a child is over 18, their parents will no longer have a legal role in advocating for their child. Moreover, because of federal privacy laws, colleges often cannot share educational information with parents without a signed waiver from the student. However, Massachusetts and New Hampshire state programs can assist in transitioning young adults from school into college, the workplace, or vocational programs.
Understanding FAPE, Reasonable Accommodations, and IEPs
Under federal education laws, including the ADA, IDEA, and Section 504 of the Rehabilitation Act of 1973, public schools must provide students with disabilities the support and services they need to obtain a “free and appropriate education.” These laws delineate more legal obligations for public K-12 schools than for colleges and universities. Some key terms from these laws to understand include:
- Free Appropriate Public Education Under IDEA, every child attending a public school, including a child with a disability, is entitled to a “free and appropriate public education” (FAPE). For kids with disabilities who qualify, a FAPE may include additional programs or services provided in or out of school at no cost to their families. Related services might include things like transportation, counseling, or occupational therapy.
- Individualized Education Programs An individualized Education Program or IEP is a plan created with the parents, school, and sometimes the student. An IEP lays out the special education supports, services, and instruction a child needs to succeed in school. Under IDEA, an IEP is also a legal document allowing families to be involved in their child's education and giving students rights related to school discipline.
- Reasonable Accommodations Under Section 504 of the Rehabilitation Act of 1973, public schools must ensure that students with disabilities have an equal opportunity to participate in an academic program or school. Schools provide modifications or adjustments to their curriculum and services to accomplish this for kids who don't qualify for services. The schools often set forth these “reasonable accommodations” in a “504 plan” with the school, meeting the requirements of the ADA and Section 504. However, neither statute defines the term “reasonable accommodations.” The school can consider its resources, cost, and other factors in determining whether an accommodation is reasonable.
- Least Restrictive Environment Under IDEA, students with disabilities should learn alongside their peers in a typical classroom as much as possible, including them as part of the school community. In some cases, kids may receive services in the classroom, have an aide who works with the student, or be pulled out of the classroom from time to time for additional services. Students with disabilities should only be placed in a separate classroom when it's the only option because of their unique needs. The LRE can look different for each student, but the classroom environment should work with the IEP and any reasonable accommodations to ensure a student receives a FAPE.
Massachusetts Special Education Law
Chapter 766 is a Massachusetts state law intended to supplement federal special education law, ensuring that children in the state from age three to 22 receive an educational program suited to their individual needs. The State Department of Education is responsible for ensuring that school districts meet each portion of the law and implementing regulations to implement the law in Massachusetts. The Massachusetts DOE also ensures that school districts comply with federal education laws. The special education office under the DOE assigns educational advocates to students with special needs in the state. It also assigns responsibility for educating children with no parent or legal guardian in the community.
- Anti-bullying Statute Massachusetts law also provides legal protections from bullying in schools. Because children with disabilities are more likely to be the victims of bullying, it's important to understand these laws. The Massachusetts Anti-Bullying Law applies to all students in the state, including public, private, and charter schools. See Mass. Gen. Laws ch. 71 § 370 (2012). It is one of the country's most expansive anti-bullying statutes, requiring schools to develop bullying prevention and intervention plans. Schools must also provide age-appropriate education on bullying for students. Unfortunately, the definitions in the statute are quite broad, making it challenging for parents to ensure schools implement protections for their students consistently. A second Massachusetts law requires schools to consider how they may help a student with a disability or autism who may be more vulnerable to bullying. See Mass. Gen. Laws ch. 71B § 3A. State regulations also require that schools notify parents of bullying incidents. See 603 Comm. Mass. Reg. § 49.00 (2022).
- Resolving Disputes Massachusetts also has a Bureau of Special Education Appeals responsible for conducting mediation, due process hearings, and advisory opinions to resolve disputes between parents, public schools, private schools, and state agencies. The state created the Bureau under the authority of IDEA and Massachusetts State Law. See Mass. Gen. Law Ch. 71B. Any parent can request mediation, a hearing, or an advisory opinion concerning an IEP, eligibility, placement, or evaluation under federal and state special education laws. An experienced education Attorney-Advisor like Joseph D. Lento and the Education Team at the Lento Law Firm can help.
New Hampshire Special Education Law
In addition to the protections offered by federal education laws, New Hampshire has some laws that offer additional protections to special education students, including a new law that limits restraining and secluding students in schools and residential facilities. In many cases, restraining or secluding a child doesn't improve problem behavior and can harm students physically and emotionally. The new law requires schools to notify parents promptly with specific details of what led to the incident, how the school handled it, and any injuries to a student or employee. See N.H. Rev. Stat. § 126-U:7 (2014).
- Resolving Disputes While your first step should typically be to reach out to your student's special education team at their school, in some cases, this can't resolve a dispute. However, New Hampshire recently passed a new law creating an Office of the Advocate for Special Education (OASE). Before the passage of this law, your options to resolve a continuing dispute were to file a complaint with the New Hampshire Department of Education (NHDOE) or to pursue a due process hearing with the NHDOE. The new law makes the OASE an independent agency not controlled by the DOE. Under the statute, the agency “shall serve as an advocate, coordinator, and point of contact for those parents, guardians, and caretakers of students with disabilities or students with disabilities when dealing with school districts and the districts' compliance [with 504 plans or IEPs]….” N.H. Rev. Stat. § 186-C:38 (2022). Typically, when you reach the level of a serious dispute over your student's education or discipline, you need an education attorney-advisor like Joseph D. Lento and the Education Law Team at the Lento Law Firm. Attorney Lento and his Team can work with the OASE and the NHDOE to resolve disputes and ensure your student receives the FAPE they deserve.
- Legal Protections From Bullying Unfortunately, kids with disabilities are more likely to become victims of bullying. New Hampshire law includes specific legal protections for your student from bullying. See N.H. Rev. Stat. § 193-F:3 (2010). The Pupil Safety and Violence Protection law requires New Hampshire public schools, including charter schools, to adopt written policies prohibiting cyberbullying and bullying. The policies must have procedures for reporting, notifying parents, investigating, and responding to bullying. Schools must investigate allegations of bullying and develop a response to reduce future bullying, including punishment. The school must offer help to students who are victims as needed.
Manifestation Determinations
A manifestation determination happens when your school district considers excluding your student with a disability because of a disciplinary change, suspension, or expulsion. IDEA requires this determination whenever a school changes your student's placement because of a student code of conduct violation. During the review, the school must determine:
- Whether the conduct in question is related to the student's disability, and
- If the behavior directly resulted from the school's failure to implement an IEP.
While federal and state regulations generally require a manifestation review if a student's removal adds up to ten days or if there's a pattern of removal that equals ten days over time, you can request a review in writing after each suspension or removal from school. This will ensure that the school supports your student and modifies an IEP where necessary. If the school pushes back, it may be time to involve Attorney-Advisor Joseph D. Lento and the Education Law Team at the Lento Law Firm.
Protect Your Student's Right to an Education
Federal and state laws give your student the right to a free and appropriate public education. If you live in the Boston metro area, whether in Massachusetts or New Hampshire, it's important to ensure that your school district supports and educates your child. To do so, you need to understand the state and federal protections offered for your child, but you don't have to do this alone. Attorney-Advisor Joseph D. Lento and the Education Law Team at the Lento Law Firm have advocated for students like yours nationwide for years. Find out how they can help you too. Call the Lento Law Firm at 888-535-3686 or contact them online to schedule your consultation.
