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These Frequently Asked Questions (faq) come from various sources, the answers are almost universally from a government or educational agency. Many answers will have a “From Here” link, that will take you to the source of the answer, either a law, regulation, advisory, etc. Others will simply site the law.

Some answers start with a “SPEDfaq Summary” which is our layman’s version of the technical answer, in easier language; this is especially true in the discipline section. That is followed by the answer as found from the identified official source.

Finally, this compendium has much jargon (hence the summaries) and some words will have a dashed line under them (such as compendium and jargon). Hover the mouse or click on the word and a definition will pop up.

   ↓ Choose a topic and start getting answers! ↓

504

Most provisions of Section 504 of the Rehabilitation Act and IDEA related to discipline are the same. A student has the right to a manifest determination when there is a change of placement decision under both Section 504 and IDEA.

In addition, state laws on school discipline apply to all students in Massachusetts.

Section 504 provides that a school district cannot discipline a student with a disability for behavior that is a manifestation of his disability if the disciplinary action is a significant change in placement. However, if the manifestation determination finds no relationship between disability and conduct, the discipline resulting in change of placement may occur. (See Springfield School District #186, 55 IDELR 206 (OCR June 29, 2010))

Section 504 is different from IDEA in several ways. Unlike the IDEA, Section 504:

  • has no list of specific questions to determine if behavior was a manifestation of a disability. (34 CFR 104.36)
  • has no list of who attends the manifestation determination (just persons knowledgeable).(34 CFR 104.35(c))
  • has no provision for interim alternative placements.

Finally, if the incident involves illegal drugs or alcohol, a student on a 504 Plan may be expelled without a manifestation determination. (29 USC 705(20)(c)(iv))

From Here.

Absolutely. Although it may not be seen as “best practice” there are times when it makes sense. For instance, some school districts prefer medical issues to be on a 504 instead of an individualized health plan, particularly around issues such as diabetes or allergies. Additionally, during a student’s last year of school it may make sense to create a 504 in preparation for college since an IEP does not typically follow one to college.

There is nothing in the law preventing a student from having both plans simultaneously.

Section 504 replies to all entities including private sectarian as well as non-sectarian schools that receive, directly or indirectly, federal funds. It does not, however, apply to entities that indirectly receive merely the benefits of federal funding, but not the funding itself.

Private schools may receive Federal funding through may different avenues, including funding for school lunch programs, anti-drug programs, programs designed for at-risk students, educational reform programs, programs designed to enable student to meet national education goals, technology grants, government contracts, government loans, etc. Further, Section 504 applies even if the private school receives the federal funding indirectly. For example, if the federal government provides a grant to a non-profit entity organized to promote education, student health, or a similar purpose, which entity reallocates some of the funding to a private school, the private school is “a recipient of federal funds” under § 504. Dupre v. The Roman Catholic School of the Diocese of Houma-Thibodeaux, 31 IDELR 129 (U.S.D.C. EDLa 9/2/99).

Upon receipt of federal funding, the recipient must comply with Section 504 with respect to all of its services and programs, even though the federal funding received is limited to a single program.

From Here.

“Below is a discussion of what it means to be a student or individual with a disability, and of related terms that help to comprehensively define disability as it is used in Section 504 and its implementing regulations.

“Disability. Under Section 504, an individual with a disability (also referred to as a student with a disability in the elementary and secondary education context) is defined as a person who: (1) has a physical or mental impairment that substantially limits a major life activity; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.7

“The determination of whether a student has a physical or mental impairment that substantially limits a major life activity (and therefore has a disability) must be made on a case by case basis.8 In addition, when determining if someone meets the definition of a disability, the definition must be understood to provide broad coverage of individuals.9

“Physical or mental impairments. Section 504 defines a physical or mental impairment as any

  • physiological disorder or condition,
  • cosmetic disfigurement, or
  • anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine.10

“The Section 504 definition of physical and mental impairment also includes any mental or psychological disorder.11The definition does not include all specific diseases and conditions that may be physical or mental impairments because of the difficulty of ensuring the completeness of such a list.” ~OCR

“To summarize, major life activities include certain acts a person does (such as hearing, speaking, lifting) and a person’s bodily functions (such as lung disease that affects a person’s respiratory system, or a traumatic brain injury that affects the function of the brain).

“The list of major life activities under Section 504 includes, but is not limited to, the activities listed below.12

• caring for oneself • bending
• performing manual tasks • speaking
• seeing • breathing
• hearing • learning
• eating • reading
• sleeping • concentrating
• walking • thinking
• standing • communicating
• lifting • working

“Major bodily functions are also major life activities under the law, and these major bodily functions include functions of the bowel, bladder, and brain; normal cell growth; and the immune, endocrine (for example, thyroid, pituitary, and pancreas), respiratory, reproductive, circulatory, digestive, and neurological systems.13

“These lists, however, do not provide every possible major life activity or bodily function; therefore, if an activity or bodily function is not listed in the Amendments Act, it might still be considered a major life activity under Section 504.14

“For example, if a school provides a form with a list of major life activities to consider during an evaluation process, a student may still have a physical or mental impairment that substantially limits a major life activity even if the activity is not listed on the school’s form.

“School staff should note, in particular, that a student may have a disability and be eligible for Section 504 services even if his or her disability does not limit the major life activity of learning.

“Therefore, rather than considering only how an impairment affects a student’s ability to learn, school staff must also consider how the impairment affects any major life activity of the student and, if necessary, assess what is needed to ensure that students have an equal opportunity to participate in the school’s programs.15

“For example: (1) a student with a visual impairment who cannot read regular print with glasses is substantially limited in the major life activity of seeing; (2) a student with an orthopedic impairment who cannot walk is substantially limited in the major life activity of walking; and

“(3) a student with diabetes who requires insulin injections is substantially limited in the operation of a major bodily function, the endocrine system. These students would have to be evaluated, as described in the Section 504 regulations, to determine whether they need special education and/or related services.16

“School staff should note that a student may have a disability and be eligible for Section 504 services, including modifications, even if the student earns good grades.

“This is because the student’s impairment may substantially limit a major life activity regardless of whether the student performs well academically, and the student may need special education or related aids and services because of this disability.17

“For example, a student who has dyslexia and is substantially limited in reading finds it challenging to read the required class material in a timely manner. Alternatively, a student who has been diagnosed with depression may be substantially limited in her ability to concentrate while completing school assignments. In both of these cases, the student spends far more time preparing for class than other students and earns good grades because of the student’s intelligence and extreme efforts. The student would still be substantially limited in the major life activity of reading despite earning good grades and may require a multi -sensory approach to learning, and additional time to complete in-class tests or quizzes, even if that student earns mostly A’s.” ~OCR

“When determining if a person has a disability, a school cannot consider the ameliorative effects of mitigating measures when determining how the impairment impacts the major life activities under consideration.18

“For example, a student with low vision (unable to read typical size print with ordinary eyeglasses or contacts) who is able to read using a computer program that enlarges the font size of documents is still a person with a disability, even though the computer program permits the student to diminish the impact of his or her low vision and read lessons and other materials for school.

“The Amendments Act provides a non-comprehensive list of mitigating measures: medications; prosthetic devices (for example, an artificial arm); assistive devices (for example, computer modifications that increase accessibility, wheelchairs, scooters, walkers, canes, and crutches); learned behavior; and adaptive neurological modifications that an individual may use to eliminate or reduce the effects of an impairment.

“Note that the use of ordinary eyeglasses or contacts is the one exception to the mitigating measure rule.19In other words, if a person’s vision is corrected with ordinary eyeglasses or contacts,20the school may consider how the eyeglasses or contacts help the student see when making a determination about whether the student has a disability based on seeing.” ~OCR

 

“The determination of substantial limitation must be made on a case-by-case basis with respect to each individual student.21Section 504 requires that, for elementary and secondary school students, a group of knowledgeable persons draw upon information from a variety of sources in making this determination.22

“The group of knowledgeable persons is often called a Section 504 Team.” ~OCR

“If an impairment only occurs periodically (that is, it is episodic) or is in remission, it is a disability if, when in an active phase, it would substantially limit a major life activity.24For example, a student with epilepsy is a student with a disability if, during a seizure, the student is substantially limited in a major life activity such as thinking, breathing, or neurological function. Or, a student with bipolar disorder is a person with a disability if, during manic or depressive episodes, the student is substantially limited in a major life activity such as concentrating or brain function.” ~OCR

Section 504 is a federal law that prohibits any entity that receives federal financial assistance (such as grants or student loans) from discriminating against persons with disabilities.

Title II of the Americans with Disabilities Act is a federal law that prohibits state and local governments (such as public school districts, public colleges and universities, and public libraries) from discriminating against persons with disabilities.

In general, Section 504 and Title II nondiscrimination standards are the same, and in general, actions that violate Section 504 also violate Title II. However, where Title II requirements exceed Section 504 requirements, public school districts, colleges and universities, and libraries must also comply with the Title II requirements.

From Here.

Generally yes. All public school districts are covered by Section 504 and/or Title II – this includes public charter schools and magnet schools. All public colleges and universities are covered by Section 504 and Title II. Virtually all private colleges and universities are also covered by Section 504 because they receive federal financial assistance by participating in federal student aid programs. There are some private schools that do not receive any federal assistance, and Section 504 and Title II do not apply to them.

From Here.

Colleges and universities are required by Section 504 and Title II to provide students with disabilities with appropriate academic adjustments and auxiliary aids and services that are necessary to afford an individual with a disability an equal opportunity to participate in the school’s program. An example of an academic adjustment is extra time to take a test. Examples of auxiliary aids include notetakers, interpreters, readers, and specialized computer equipment.

From Here.

School districts are required to provide each student with a disability any special education and/or related aids and services necessary to ensure the student is receiving a free appropriate public education (FAPE). Examples of aids and services a school district may be required to provide include physical therapy or speech language therapy.

In addition, a school district may need to modify the regular education program in order to provide FAPE. Examples of such modifications include additional time to take tests or a modification to a policy regarding the permitted number of absences in a school year when a student’s absences are due to a disability.

More information is available on OCR’s webpage addressing Frequently Asked Questions about FAPE.

From Here.

No. Section 504 and Title II protect all persons with disabilities from discrimination, including parents and guardians, students, and employees.

From Here.

Yes, but only if the student is otherwise qualified to participate in the program, without or without minor adjustments. 34 C.F.R. § 104.39. Section 504 does not require a private school to modify its essential enrollment criteria. If, however, the student could meet the program criteria with minor adjustments, the private school must make such adjustments. For example, if a student, because of his or her disability, needs additional time to complete a school entrance exam, this accommodation should be provided. As another example, a private school generally would be required to adjust a “no animals on campus” policy to accommodate a blind student or certain seizure disorder students who need service dogs.

The language of Section 504 applicable to private schools differs from that used in the Americans With Disabilities Act. Section 504 provides that private schools must merely provide “minor adjustments” to assist students with disabilities 34 C.F.R. § 104.39(a). The ADA, by comparison, requires the provision of “reasonable accommodations.” 34 C.F.R. § 104.12 (requiring reasonable accommodation for employees with disabilities). There is very little case law construing the distinction between a “minor adjustment” and “reasonable accommodation”, however it seems logical that “minor adjustment” is a lesser standard. Hunt v. St. Peter’s School, 963 F.Supp. 843 (W.D. Mo. 1997); but see Ireland v. Kansas Dist. of Wesleyan Church, 21 IDELR 712 (D. Kan 1994).

What constitutes a minor adjustment sufficient to satisfy Section 504 is a fact intensive inquiry. The factors to be considered include nature of the program for which the accommodation is sought (for example, it is doubtful that a court would require a private school to lower its academic criteria), the administrative burden of the requested adjustment (i.e. minimal extra time to complete school work, class seating preferences, use of a tape recorder, larger print, lines paper, oral exams, an additional set of textbooks for students with physical strength related disabilities, and the like typically should be provided, whereas tutoring, a complete excusal from required work, likely are not); the expense of the requested adjustment, and related factors.

From Here.

School districts, colleges, and universities are required to ensure that students and others with disabilities, including parents, are not denied access to programs or activities because of inaccessible facilities, including academic buildings, walkways, restrooms, athletic facilities, and parking spaces.

The precise requirements schools, colleges, and universities must meet to ensure physical accessibility depends on the date a building (or facility) was initially built (constructed) or altered. For more information about accessibility requirements, please visit www.ada.gov.

Even if a building does not have to be made fully physically accessible because of its age, Section 504 and Title II require that every program or activity of the school district, college, or university be made accessible. A common way this is done is to relocate the program to an accessible portion of the building or to another building that is accessible.

From Here.

OCR handles cases of disability discrimination involving a range of issues, such as inaccessible facilities; unequal access to advanced academic programs, extracurricular athletics, and accessible technology; the failure to provide elementary and secondary students a free appropriate public education (FAPE), discriminatory discipline, the denial to college students of appropriate academic adjustments and auxiliary aids and services, disability harassment.

From Here.

Yes. All programs in a school or college are covered by Section 504 if the school district, college, or university receives federal financial assistance. Section 504 covers all the operations of a school or college that receives financial assistance including academics, extracurricular activities, athletics, and other programs. Section 504 applies to actions of a school or college regardless of where they occur, including those that take place in the facilities of the school, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere off campus.

From Here.

Generally, yes. All school districts, colleges, and universities receiving federal financial assistance and employing 15 or more persons must designate at least one employee to coordinate their efforts to comply with and carry out their responsibilities under Section 504. This person is often, though not always, referred to as a Section 504 coordinator.

Your school is required to publish your Section 504 coordinator’s contact information in your school’s notice of nondiscrimination, typically found in any bulletins, announcements, publications, catalogs, application forms, or other recruitment materials. The Section 504 coordinator’s contact information should also be prominently posted on your school’s website. Section 504 coordinators for public school districts can also be found on OCR’s coordinators website at http://www.ed.gov/civ-rts-coordinators.

From Here.

Autism Spectrum Disorder (ASD)

A medical diagnosis of autism is not required for a school team consisting of professionals such as school psychologists, who are qualified to make this determination, to identify a child as demonstrating the symptoms of autism and requiring appropriate services.

From MA DESE Eligibility and Assessment Guidelines (Draft)

Autism spectrum disorder is a new DSM-5 name that reflects a scientific consensus that four previously separate disorders are actually a single disorder. This single condition has different levels of symptom severity in several domains. Deficits in social communication and social interaction PLUS restricted repetitive behaviors, interests, and activities are required for the diagnosis when using DSM criteria. If the student does not exhibit restrictive repetitive behaviors interests, and activities, a professional using DSM-5 would diagnose social communication disorder.

From MA DESE Eligibility and Assessment Guidelines (Draft)

IDEA provides an educational definition of autism. Schools cannot require a family to obtain a medical diagnosis of autism for their child. Given this, a child can qualify for IDEA’s autism definition without a medical diagnosis of ASD and receive appropriate services to meet needs. IDEA’s definition of Autism does not exactly match with either the DSM-IV or DSM-5 criteria for ASD. Legal precedent and regulation supports including Asperger’s within IDEA’s autism category in a school-determined eligibility determination for services.

From MA DESE Eligibility and Assessment Guidelines (Draft)

According to the Technology-Related Assistance for Individuals with Disabilities Act of 1988 (Public Law 100-407), an assistive technology means any item, piece of equipment, or product system, whether acquired commercially, off-the-shelf, modified or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities. Technology supports can be used for alternative and augmentative communication, or as a motivating teaching tool or strategy designed to increase both skills and to increase independence. Smart technologies such as the iPad and iPod are helpful for students with higher functioning autism.

Assistive Technology http://www.autismspeaks.org/family-services/resource-library/assistivetechnology

A resource explaining how various types of assistive technology might be used for students exhibiting symptoms of ASD can be found at:
http://www.specialed.us/autism/assist/asst10.htm

The Wisconsin Assistive Technology Institute (2009) provides a manual to help professionals in gathering information to choose useful assistive technology for a particular student; and provides an environmental observation guide, a decision making guide with directions, and a tools and strategies section. This resource can be located at
http://www.wati.org/content/supports/free/pdf/ASDManual-1.pdf

From MA DESE Eligibility and Assessment Guidelines (Draft)

Bullying and Harassment

Disability Based Harassment

Disability harassment is unwelcome conduct based on a student’s actual or perceived disability. Harassers can be students, school staff, or even someone visiting the school, such as a student or employee from another school. Disability harassment can take many forms, including slurs, taunts, stereotypes, or name-calling, as well as disability-motivated physical threats, attacks, or other hateful conduct.

In addition, at the elementary and secondary school level, bullying or harassment of a student with a disability on any basis can result in the denial of FAPE that must be remedied under Section 504.

From Here.

OCR investigates and resolves allegations that educational institutions that are recipients of federal funds or that are public entities have failed to protect students from harassment based on disability. Where OCR identifies concerns or violations, educational institutions often resolve them with agreements requiring educational institutions to adopt effective anti-harassment policies and procedures, train staff and students, address the incidents in question, and take other steps to restore a nondiscriminatory environment.

In addition to resolving investigations, OCR takes steps to inform schools of their obligation to provide a nondiscriminatory environment. To see relevant policy guidance relating to disability-based harassment or harassment of students with disabilities, please click here.

OCR’s field offices also engage in a variety of technical assistance activities in collaboration with state and local education and law enforcement agencies to encourage educational institutions to improve their anti-harassment policies and procedures and to assist students and their parents to work with schools to enhance the schools’ anti-harassment capability.

From Here.

OCR has consistently reaffirmed that the Federal civil rights laws it enforces protect students from prohibited discrimination, and are not intended to restrict expressive activities or speech protected under the U.S. Constitution’s First Amendment.

The fact that discriminatory harassment involves speech, however, does not relieve the school of its obligation to respond if the speech contributes to a hostile environment. Schools can protect students from such harassment without running afoul of students’ and staff First Amendment rights. For instance, in a situation where the First Amendment prohibits a public university from restricting the right of students to express persistent and pervasive derogatory opinions about students with a particular type of disability, the university can instead meet its obligation by, among other steps, communicating a rejection of stereotypical, derogatory opinions and ensuring that competing views are heard. Similarly, educational institutions can establish a campus culture that is welcoming and respectful of the diversity all students and institute campus climate checks to assess the effectiveness of the school’s efforts to ensure that it is free from harassment. Schools can also encourage students on all sides of an issue to express disagreement over ideas or beliefs in a respectful manner. Schools should be alert to take more targeted responsive action when speech crosses over into direct threats or actionable speech or conduct.

From Here.

Section 504 and Title II require an educational institution to respond to disability-based harassment that is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the recipient’s education programs and activities (i.e., creates a hostile environment).

When an educational institution knows or reasonably should know of possible disability harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred. If an investigation reveals that the harassment created a hostile environment, the educational institution must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.

Note that school districts must also assess the effect of bullying and harassment on a student with a disability even if it was not disability-based harassment and even if it did not create a hostile environment. More information about the intersection of bullying and FAPE is available here.

From Here.

Bullying

Bullying, pursuant to M.G.L. c. 71, §370, means the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a target that:
(a) causes physical or emotional harm to the target or damage to the target’s property;
(b) places the target in reasonable fear of harm to himself or herself or damage to his or her property;
(c) creates a hostile environment at school for the target;
(d) infringes on the rights of the target at school; or
(e) materially and substantially disrupts the education process or the orderly operation of a school. Bullying shall include cyberbullying.
~MA DESE 603 CMR 49.03

“Repeated”

  • If it happens just once, it is NOT bullying. Twice, maybe. More than that, yes, it is bullying.

“written, verbal or electronic expression or a physical act or gesture …”

  • If is is a note, and email, a letter, written on a locker, a desk, in writing of any form
  • If it is said, screamed, whispered, sang, verbally taunted …
  • If it is texted, iMessaged, Tweeted, im’d, commented on a blog, posted on Facebook, …
  • If there is a punch, kick, push, unwanted touching, inappropriate touching, …
  • If it is a gesture such as showing the middle finger, or other offensive actions …

Causes one or more of the following …

(a) causes physical or emotional harm to the target or damage to the target’s property;

  • If it causes physical pain, bruises, tripping, falling, …
  • If it causes torn clothing, missing items, broken items, …
  • If it causes anxiety, depression, confusion, lack of focus ..

(b) places the target in reasonable fear of harm to himself or herself or damage to his or her property;

  • If it causes fear of physical pain, bruises, tripping, falling, …
  • If it causes fear of torn clothing, missing items, broken items, …

(c) creates a hostile environment at school for the target;

  • “Hostile environment”, a situation in which bullying causes the school environment to be permeated with intimidation, ridicule or insult that is sufficiently severe or pervasive to alter the conditions of the student’s education. (MA General Law Part I/TITLE XII/CHAPTER 71/Section 370)

(d) infringes on the rights of the target at school;

  • Civil Rights, human rights, right to an education … (more below)

(e) materially and substantially disrupts the education process or the orderly operation of a school.

  • If it causes classes, lunch room, recess, etc. to operate differently

Bullying shall include cyberbullying.

  • Cyberbullying is bullying that takes place using electronic technology. Electronic technology includes devices and equipment such as cell phones, computers, and tablets as well as communication tools including social media sites, text messages, chat, and websites.
  • Examples of cyberbullying include mean text messages or emails, rumors sent by email or posted on social networking sites, and embarrassing pictures, videos, websites, or fake profiles.

From the Public Schools of Brookline Bullying Prevention and Intervention Plan, December 30, 2013 (emphasis mine):

Bullying and retaliation are prohibited:

  • On school grounds and property immediately adjacent to school grounds; at a school sponsored or school-related activity, function, or program whether on or off school grounds; at a school bus stop, on a school bus or other vehicle owned, leased, or used by the Public Schools of Brookline; or through the use of technology or an electronic device owned, leased, or used by the Public Schools of Brookline; and
  • At a location, activity, function, or program that is not school-related, or through the use of technology or an electronic device that is not owned, leased, or used by the Public Schools of Brookline, if the bullying creates a hostile environment at school for the target, infringes on the target’s rights at school, or materially and substantially disrupts the education process or the orderly operation of a school.

Retaliation against a person who reports bullying, provides information during an investigation of bullying, or witnesses or has reliable information about bullying is also prohibited.

If your child has a 504 plan or an IEP then it has been determined that your child has a disability. Depending on the type of bullying, the civil rights of your child may be being violated. THIS IS A BIG DEAL. Taunting someone as being a “retard” is disability based bullying. Imitating someone’s physical disability is disability based bullying.

The next section describes civil rights violations and talks about the Office of Civil Rights (OCR). All of the information there applies. The OCR has documents about your rights, here is an excerpt:

When investigating disability-based harassment, OCR considers several factors, including, but not limited to:

  • Was a student with a disability bullied by one or more students based on the student’s disability?
  • Was the bullying conduct sufficiently serious to create a hostile environment?
  • Did the school know or should it have known of the conduct?
  • Did the school fail to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects?

If the answer to each of these questions is “yes,” then OCR would find a disability-based harassment violation under Section 504 and, if the student was receiving IDEA FAPE [IEP]or Section 504 FAPE [504 plan] services, OCR would have a basis for investigating whether there was also a denial of FAPE under Section 504.

Even if the answers to one or more of these questions is “no,” for a student who was receiving IDEA FAPE or Section 504 FAPE services, OCR may still consider whether the bullying resulted in a denial of FAPE under Section 504 that must be remedied.

~OCR “Dear Colleague” letter of 10/21/2014

Types of Bullying effecting Civil Rights and the added issues.

If the bullying involves areas of civil rights, and the school does not act quickly and decisively, a civil rights complaint can be filed. The US Department of Education, Office of Civil Rights (OCR) has a simple method of filing a complaint. There is no cost, the complaint must surround events of the last 180 days (although there are exceptions), and if accepted, the OCR will do the investigation. The OCR’s authority to resolve complaints extends to allegations of discrimination based on race, color, national origin, sex, age or disability. Note that Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.

The state’s and school district’s bullying policies do not change if a civil right is violated, the actions by the school are expected to be the same. This comes into account if the school does not promptly and properly handle the issue. It can then be escalated to the OCR, again at no cost, without a lawyer.

How to file a complaint with the OCR.

(Click here for the short answer, or keep reading …)

From Massachusetts General Law  c. 71, §370 (emphasis mine):

(d)(1) Each school district, charter school, non-public school, approved private day or residential school and collaborative school shall develop, adhere to and update a plan to address bullying prevention and intervention in consultation with teachers, school staff, professional support personnel, school volunteers, administrators, community representatives, local law enforcement agencies, students, parents and guardians. …

(2) Each plan shall include, but not be limited to: (i) descriptions of and statements prohibiting bullying, cyber-bullying and retaliation, including procedures for collecting, maintaining and reporting bullying incident data required under subsection (k); (ii) clear procedures for students, staff, parents, guardians and others to report bullying or retaliation; (iii) a provision that reports of bullying or retaliation may be made anonymously; provided, however, that no disciplinary action shall be taken against a student solely on the basis of an anonymous report;

From the Public Schools of Brookline Bullying Prevention and Intervention Plan, December 30, 2013 (emphasis mine):

Reports of bullying or retaliation may be made by staff, students, parents/guardians, or others, and may be oral or written. Oral reports made by or to a staff member shall be recorded in writing. Staff members report immediately to the Headmaster/Principal/Superintendent/School Committee or designee any bullying or retaliation the staff member becomes aware of or witnesses. PSB [Public Schools of Brookline] has incident report forms available on its website for reporting, and encourages families to report incidents of bullying or retaliation.

Use of a Bullying Incident Report Form is not required as a condition of making a report. …

The Bullying Incident Report Form is available in the most prevalent language(s) of students and parents/guardians.

So what does that mean?

  • You can anonymously report bullying or harassment or retaliation BUT there will be no repercussions for the aggressor, no discipline action taken, based on an anonymous report.
  • You can report bullying or retaliation orally or in written form. That means, just telling the staff or administration about a bullying incident IS an official report. Mentioning it in an email IS an official report. Filling out the school district’s Bullying Incident Report Form IS an official report (whether or not you put your name on it).

The BEST way to report bullying …

  1. download and fill in the Bullying Incident Report Form
  2. hand deliver to the main office of the school, addressed to the Principal
  3. ask for a signed, date stamped copy of the report
  4. WAIT FOR THE signed, date stamped copy of the report
  5. if they will not sign and date stamp the report while you wait, take it back and bring it to Town Hall, 5th Floor and go to either the Deputy Superintendent for Student Service or to the Superintendent and request the same. They will absolutely do it.

No. Bully reports are not made public. Much of the information is protected under FERPA. Even if you filled the report and your child is the target, and the investigation does conclude that bullying occurred, you will NOT be informed of any disciplinary actions taken against the aggressor. No information will be publicly available that could identify either the aggressor or the target.

Retaliation is handled and reported the same was as bullying. When done correctly, the initial bullying report is handled quickly and retaliation does not occur as the penalties are discussed early on. If in fact there is any form of retaliation, it must be reported immediately. But again, typically it does not happen.

From Massachusetts General Law  c. 71, §370 (emphasis mine):

(g) A member of a school staff, including, but not limited to, an educator, administrator, school nurse, cafeteria worker, custodian, bus driver, athletic coach, advisor to an extracurricular activity or paraprofessional, shall immediately report any instance of bullying or retaliation the staff member has witnessed or become aware of to the principal or to the school official identified in the plan as responsible for receiving such reports or both. Upon receipt of such a report, the school principal or a designee shall promptly conduct an investigation. If the school principal or a designee determines that bullying or retaliation has occurred, the school principal or designee shall (i) notify the local law enforcement agency if the school principal or designee believes that criminal charges may be pursued against a perpetrator; (ii) take appropriate disciplinary action; (iii) notify the parents or guardians of a perpetrator; (iv) notify the parents or guardians of the victim, and to the extent consistent with state and federal law, notify them of the action taken to prevent any further acts of bullying or retaliation; and (v) inform the parents or guardians of the victim about the department’s problem resolution system and the process for seeking assistance or filing a claim through the problem resolution system.

From the Public Schools of Brookline Bullying Prevention and Intervention Plan, December 30, 2013 (some emphasis mine). There is more in the plan, I am highlighting parts here:

C. Responding to a Report of Bullying or Retaliation
1. Safety
Upon receiving a report of bullying or retaliation, the Headmaster/Principal/Superintendent/School Committee or designee, with the assistance of appropriate support staff, takes prompt steps to assess the need to restore a sense of safety to the alleged target(s), along with those who report, witness, provide information in an investigation of, or have reliable information about, bullying or retaliation. The Headmaster/Principal/Superintendent/School Committee or designee also takes steps to protect these individuals from possible further bullying or retaliation. Responses to promote safety may include, but not be limited to, creating a personal safety plan; pre-determining seating arrangements for the target and/or the aggressor in the classroom, at lunch, or on a transportation vehicle; identifying a staff member who will act as a “safe person” for the target; and altering the aggressor’s schedule and access to the target. The Headmaster/Principal/Superintendent/School Committee or designee takes additional steps to promote safety during the course of and after the bullying or retaliation investigation, as necessary.

2. Obligations to Notify Others
a. Notice to Parents or Guardians
Upon receipt of a report of bullying or retaliation, the Headmaster/Principal/Superintendent/School Committee or designee shall promptly notify the parents/guardians of the alleged target(s) and aggressor(s) of the report. The Headmaster/Principal/Superintendent/School Committee or designee shall also periodically update the parents/guardians of the alleged target(s) and aggressor(s) during the investigation. Notice to parents/guardians under this section shall be in the primary language of the home and consistent with the confidentiality requirements of the Plan. …

D. Investigation
The Headmaster/Principal/Superintendent/School Committee or designee investigates all reports of bullying or retaliation and, in doing so, will consider all available information known, including the nature of the allegation(s) and the ages of the students involved. Specifically, the Headmaster/Principal/Superintendent/School Committee or designee shall complete the investigation within a reasonable amount of time, not to exceed 15 school days following the date of the report. …

  • E. Determination
    The Headmaster/Principal/Superintendent/School Committee or designee makes determinations based upon all of the facts and circumstances. If, after an investigation, the Headmaster/Principal determines that bullying or retaliation has occurred, the Headmaster/Principal/Superintendent/School Committee or designee will take steps reasonably calculated to stop the prohibited conduct, prevent its reoccurrence, and ensure that the target(s) is/are not restricted in participating in school or in benefiting from school activities.
    Specifically, the Headmaster/Principal shall:
    • Determine what remedial action is required, if any;
    • Determine what responsive actions and/or disciplinary action is necessary, including, when appropriate, consultation with support staff to identify any underlying social or emotional issue(s) that may have contributed to the bullying or retaliation, and assess the level of need for additional social skills development or referral to one or more of the resources identified in the Plan; and
    • In the event of a staff member, the administrator will consult with the Assistant Superintendent of Human Resources to determine the appropriate course of action.
    • Notify the parents/guardians of the target(s) and the aggressor(s) of the determination and of the procedures for responding to the bullying or retaliation; and
    • Notify the parents/guardians of the target(s) of the action to be taken to prevent further bullying or retaliation.

NOTE: This is just an abbreviated version from the bullying plan. See the Public Schools of Brookline Bullying Prevention and Intervention Plan for a full list of actions.

When bullying is reported (and, actually, anytime) the school can create a safety plan. The purpose of this plan must be to ensure the student it is written for is both safe and feels safe (although one principal insists it is only to make the target feel safe, which is like saying that the NATO alliance is written to make Turkey and Greece only feel safe as opposed to being safe).

The safety plan does not have to be signed by the parents, but should be designed in consultation with the parents, and at times must be.

First, two definitions from the Commonwealth:

“Home Base”: This is a location in the school selected by student and school staff where the student can go when not feeling safe. (“Safe” and “unsafe” feelings would need to be defined and taught.) This location should be a place where the student can be supervised and monitored by school staff. Some examples could include the School Adjustment Counselor’s office, the main office, the resource room, or the nurse’s office.

“Safe Person”: This is a designated person in the school who the student can talk to and process social situations that are troubling, confusing, or agitating, including bullying, that may not be readily understood by the student. This person should be familiar to the student and have a trusting relationship already established. This needs to be a person chosen with the student and parents who understands the student and can help him or her de-escalate a situation or calm down and resume the normal school day routine. This does not need to be a specialist or a teacher but can be a staff member who knows and understands this student and can help him or her interpret confusing situations. The Safe Person must be familiar with practices known to be helpful when working with students with disabilities that affect communication and social awareness.

Note that I have been involved with safety plans where the safe person was a custodian for instance. In that case it was a younger student with emotional issues and he happened to have bonded with the custodian. Hence, the custodian was brought in when the student was involved with an incident, not to make determinations, but to be there for support. More typical might be the school nurse, a guidance counselor, a favorite teacher or lunch aide. Also note, the safe person is not determined by the school.

The plan will typically define how the aggressor and the target will be kept apart. It will address what actions to take if the target feels unsafe. Often it will give the target permission to leave any situation (lunch, recess, etc.) and go to their safe “home base” or “safe person.” This means they can leave the cafeteria, for instance, when others may not. The plan will define who the safe person is (or are). It will typically state what transgressions or violations of the plan will be reported to the parents, how, and when. For instance, “Any time the student reports feeling unsafe, his/her parents will be notified by (phone/email) immediately.”

The plan may involve “check ins,” especially with younger students. Possibly a signal such as a “thumbs up” from the teacher after lunch to be responded to by the student with either a thumbs up (feeling safe) or a thumbs down (not feeling safe).

The plan must be shared with any adults who will be in contact with the student. All teachers, guidance counselors, administrators, lunch aides, recess monitors, etc. must know about the plan. The plan should stay in place whether or not a bully investigation finds in fact there was bullying. If the student does not feel safe, especially if, in fact, the student is not safe, the plan must stay.

You will only be informed if, in fact, the investigation concluded that bullying occurred. You will not be privy to any action taken other than actions to protect your child if that is the situation.

If you do not hear anything in a couple of days (I would say 3 school days), contact the Principal of the school directly by phone and follow up with an via email (stating time and date of the follow-up). If another day goes by, contact your Superintendent by phone or in person. If you still do not get a response (but you will), contact your favorite advocate.

The school district will keep you informed as the investigation goes on. If your child is on a 504 plan or an IEP there are some protections. The primary protection comes into play if your child is suspended for 10 days or more consecutively, or 10 days or more non-consecutively but for similar reasons. A special meeting will be held called a “manifestation determination.” The purpose is to determine if the actions causing the suspensions are due to the child’s disability. If they are there will not be an expulsion and there must be a continuation of educational services.

Discipline

Discipline - Manifestation Determinations

A manifestation determination is a meeting that must be held after a decision to change the placement of a student with a disability because of a violation of a student code of conduct. (20 USC 1415(k)(1)(E)(i);34 CFR 300.530(e)(1))

At the meeting, participants review the incident that led to the most recent exclusion to determine

  • if the conduct in question was caused by, or had a direct and substantial relationship to,
    the student’s disability; or
  • if the conduct in question was the direct result of the district’s failure to implement the
    student’s IEP. (20 USC 1415(k)(1)(E)(i);34 CFR 300.530(e)(1))

If the answer to either question is yes, then the conduct is a manifestation of the student’s disability. In such a case, there may be no change in placement unless otherwise agreed by all parties, and no disciplinary measures may be taken against the student. ( 34 CFR 300.530(e)(2))

From Here.

In these cases, the district must:

  • on the day of the district’s determination, notify the student’s parents/guardian/SESP of the decision to change placement and of the parent/guardian/SESP’s procedural rights to have that decision reviewed; and (20 USC 1415(k)(1)(H); 34 CFR 300.530(h). These are rights under 34 CFR 300.504.)
  • schedule a meeting, called a “manifestation determination” to review the decision to change placement. (20 USC 1415(k)(1)( E); 34 CFR 300.530(e))

From Here.

A student not yet determined eligible for special education also has these protections if the district had knowledge that the student was a “child with a disability” before the behavior that led to the discipline occurred.   20 USC 1415(k)(5)(A); 34 CFR 300.534(a).

From Here.

A manifestation determination must be held within 10 school days of the decision to change the placement. (20 USC 1415(k)(1)(E)(i); 34 CFR 300.530(e)(1))

Parents/guardian/SESP must receive notice of the manifestation determination at the same time the decision to change the placement is made. (20 USC 1415(k)(1)(H); 34 CFR 300.530(h))

From Here.

The following parties must attend the manifestation determination:

  • the school district;
  • the parent/guardian/SESP; and
  • all relevant members of the IEP Team (as determined by the parent and school). ( 20 USC 1415(k)(1)(E)(i); 34 CFR 300.530(e)(1))

The director of special education, or designee, will preside. The designee may be any staff trained by the director in conducting such hearings, such as a principal, assistant principal or school psychologist.

From Here.

The principal or designee will describe student’s alleged misconduct.

  • The principal or designee will complete a manifestation determination report.
  • After input from the participants, 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.

From Here.

Participants should review all relevant information in the student’s file including:

  • the student’s IEP;
  • teacher observations;
  • relevant information provided by the parent/guardian/SESP.

20 USC 1415(k)(1)(E)(i); 34 CFR 300.530(e)(1)

From Here.

Hearing decisions suggest that parents should try to articulate a fairly close connection.

If the conduct is due to failure to implement an IEP, the district must remedy those deficiencies.23 To do so, the district must conduct/update a functional behavioral assessment (FBA) and implement or modify a behavior intervention plan (BIP). ( 20 USC1415(k)(1)(F); 34 CFR 300.530(f))

The student has the right to return to the original educational setting, unless the parent/guardian/SESP and the school agree to change the placement or special circumstances exist. (20 USC 1415(k)(1)(F); 34 CFR 300.530(f)(2))

There may be no exclusion or other discipline.

From Here.

Special circumstances exist when an incident at school or a school function involves:

  • the possession of weapon;
  • the possession or use of illegal drugs; or
  • infliction of serious bodily injury1 upon another person. (20 USC 1415(k)(1)(G); 34 CFR 300.530(g))
  1. Serious bodily injury is defined as substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily part or mental faculty. (18 U.S.C. 1365(h)(3))

From Here.

The district may move a student to an Interim Alternative Education Setting (IAES) for up to 45 days without regard to whether the behavior is determined to be a manifestation of the student’s disability. (20 USC 1415(k)(1)(G); 34 CFR 300.530(g))

The team determines the IAES. ( 34 CFR 300.531)

The student has the same right to educational services and assessments as if the student’s conduct was found not to be a manifestation of disability. (34 CFR 300.530(d)(1))

The student may be disciplined in same manner and for same duration as a non-disabled student. (20 USC 1415(k)(1)(C); 34 CFR 300.530(c)) The student may return to the previous placement after the discipline.

When removed from his/her current placement, a student has a right to FAPE to enable participation in general education curriculum and progress toward meeting the goals set out in the student’s IEP. (20 USC 1415(k)(1)(D); 34 CFR 300.530(d)(5)) This right exists even if the student is placed in a different setting. (34 CFR 300.530(d))

When removed, the district must provide, as appropriate, a functional behavior assessment and behavioral intervention services and modifications, designed to address the behavior so it does not recur. (20 USC 1415(k)(1)(D(ii)); 34 CFR 300.530(d)(ii))

In addition to these requirements of the IDEA, the district must also comply with state law regarding school discipline. Under state law, a student serving a suspension for over 10 consecutive school days or an expulsion, whether in school or out of school, shall have an opportunity to receive education services and to make academic progress toward meeting state and local requirements, through a school-wide education service plan. Education services shall be based on, and be provided in a manner consistent with, the academic standards and curriculum frameworks established for all students. (M.G.L. c. 76, § 21; 603 CMR 53.13(2))

A student or a district may appeal the result of a manifestation determination. (20 USC 1415(k)(3)(A); 34 CFR 300.532(a))

The district may only appeal if it believes that maintaining the current placement is substantially likely to result in injury to the child or others. (20 USC 1415(k)(3)(A); 34 CFR 300.532(a))

Appeal is to the Massachusetts Bureau of Special Education Appeals (BSEA). The BSEA has both mediation and hearing processes.

A parent challenging a finding that conduct is not a manifestation of a disability has the “burden of persuasion” (i.e., the parent has the obligation to produce evidence and witnesses that persuade the hearing officer that conduct was due to disability).

A BSEA hearing officer may

  • order an interim alternative education setting for up to 45 school days if it is determined that maintaining the current placement is likely to result in injury to the student or to others; or
  • return the student to his/her original placement if it is determined that the behavior was a manifestation of the student’s disability.

20 USC 1415(3)(B)(ii); 34 CMR 300.532(b)(2).

From Here.

Discipline - Safeguards

No, if the parent(s) of a child and the school district agree to a specific change in the current educational placement of the child.

From here.

Yes. When a parent consents to the initial provision of some, but not all, of the proposed special education and related services listed in a child’s initial individualized education program (IEP), the child has been determined eligible for services and is entitled to all the protections of the IDEA.

From here.

No. Under §§ 300.9 and 300.300, parents are permitted to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent for the continued provision of special education and related services to their children.  When a parent revokes consent for special education and related services under §300.300(b), the parent has refused services as described in §300.534(c)(1)(ii); therefore, the public agency is not deemed to have knowledge that the child is a child with a disability and the child will be subject to the same disciplinary procedures and timelines applicable to general education students and not entitled to IDEA’s discipline protections.  It is expected that parents will take into account the possible consequences under the discipline procedures before revoking consent for the provision of special education and related services.  73 Federal Register 73012-73013.

From here.

Neither the IDEA nor the regulations specifically address this issue.  However, in its child find policies and procedures, a State may choose to include ways to provide information to the public regarding IDEA’s protections for disciplinary purposes when a parent has expressed in writing to school personnel concerns regarding the child’s need for special education and related services.  Examples of ways to provide such information include making the information available on the State’s Web site, the LEA’s Web site, or in the State’s Procedural Safeguards Notice or the school’s student handbook.

From here.

The requirement that a parent express his or her concern in writing is taken directly from the IDEA. However, there is nothing in the IDEA or the regulations that would prevent a parent from requesting assistance to communicate his or her concerns in writing. The Department funds Parent Training and Information Centers (PTIs) and Community Parent Resource Centers (CPRCs) to assist parents of students with disabilities. Information about the PTIs and CPRCs is found at http://www.taalliance.org/.

No. Under Part B, a public agency’s determination that a short-term removal does not constitute a change of placement is not a proposal or refusal to initiate a change of placement for purposes of determining services under 34 CFR §300.530(d)(4). Therefore, the agency is not required to provide written notice to the parent.

From here.

No. Under 34 CFR §300.534(b)(3), teachers or other local educational agency (LEA) personnel are not required to submit a written statement expressing specific concerns about a pattern of behavior demonstrated by the child in order for the public agency to be deemed to have knowledge that the child is a child with a disability. Although a written statement is not necessary, the teacher of the child or other LEA personnel must express their specific concerns directly to the special education director or other supervisory personnel within the agency.  In addition, State child find policies and procedures may provide guidelines regarding how teachers and other LEA personnel should communicate their specific concerns regarding a child’s pattern of behavior. If the State’s or LEA’s child find or referral procedures do not specify how such communication should occur, the State or LEA is encouraged to change its guidelines to provide a method for communicating direct expressions of specific concerns regarding a child’s pattern of behavior.  71 Federal Register 46727.

From here.

Discipline - Special Education

The district may discipline a student with a disability. Discipline may include certain allowable removals from school.

An allowable removal is:

  • in-school suspension
  • out of school suspension;4
  • placement in another setting; or
  • assignment to an interim alternative educational setting (IAES) [ 20 USC 1415(k)(1)(B); 34 CFR 300.530(b)]

Note:

An “in-house” suspension may be considered a removal. DESE, Discipline of Special Ed Students Under IDEA 2004, Dec. 2007, “In-house suspension may be considered a change of placement.”

From Here.

A change of placementcan exist if there is:

  • a removal for more than 10 consecutive school days;or
  • a series of removals that constitutes a pattern, as identified by
    • more than 10 cumulative removal days in the school year,
    • the student’s behavior is substantially similar to his/her behavior in previous
      incidents that resulted in removals, and
    • additional factors like length of each removal, total time of removals and
      proximity of removals to one another.3

The school district determines whether a pattern of removals exists and is therefore a change of placement.4

Notes:

  1. Some allowable removals constitute a change of placement and some do not. Districts may pursue either type of removal, but there are special protections when a district seeks a change of placement. School personnel must consider any unique circumstances on a case-by-case basis when deciding if a change of placement is appropriate. 20 USC 1415(k)(1)(A); 34 CFR 300.530(a).
  2. 34 CFR 300.536(a)(1)
  3. 34 CFR 300.536(a)
  4. 34 CFR 300.536(b)(1)

From Here.

A district may do multiple removals in one school year if each removal is for no more than 10 consecutive school days, if the total is 10 or fewer days and if those removals don’t otherwise constitute a change of placement.

Note: 34 CFR 300.530(b). If the removal is for more than 10 consecutive or cumulative school days or a removal is a change of placement, the district may still pursue the discipline, but the student has additional protections.

From Here.

In addition to the requirements of the IDEA, the district must comply with state law regarding school discipline. Under state law, any student serving an in-school or out of school suspension (of any length), or expulsion must be provided an opportunity to earn credits, make up assignments, tests, papers, and other school work as needed to make academic progress during the removal.  M.G.L. c. 76, § 21; 603 CMR 53.13(1). 

From Here.

School personnel 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 participate in the general education curriculum, although in another setting, and to continue to progress toward meeting the goals set out in the student’s IEP. 34 CFR 300.530(d)(4)

From Here.

In these cases, the district must:

  • on the day of the district’s determination, notify the student’s parents/guardian/SESP of the decision to change placement and of the parent/guardian/SESP’s procedural rights to have that decision reviewed; and (20 USC 1415(k)(1)(H); 34 CFR 300.530(h). These are rights under 34 CFR 300.504.)
  • schedule a meeting, called a “manifestation determination” to review the decision to change placement. (20 USC 1415(k)(1)( E); 34 CFR 300.530(e))

From Here.

A district is considered to have knowledge if:

  • Parent has expressed concern in writing to a teacher or supervisory or administrative personnel of the district that student needs special education and/or related services;
  • Parent has requested an evaluation of student for special education needs; or
  • Teacher or other school personnel has expressed specific concern about a pattern of behavior demonstrated by student directly to director of special education or to other supervisory personnel in district.

20 USC 1415(k)(5)(B); 34 CFR 300.354(b)

From Here.

A manifestation determination is a meeting that must be held after a decision to change the placement of a student with a disability because of a violation of a student code of conduct. (20 USC 1415(k)(1)(E)(i);34 CFR 300.530(e)(1))

At the meeting, participants review the incident that led to the most recent exclusion to determine

  • if the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability; or
  • if the conduct in question was the direct result of the district’s failure to implement the student’s IEP. (20 USC 1415(k)(1)(E)(i);34 CFR 300.530(e)(1))

If the answer to either question is yes, then the conduct is a manifestation of the student’s disability. In such a case, there may be no change in placement unless otherwise agreed by all parties, and no disciplinary measures may be taken against the student. ( 34 CFR 300.530(e)(2))

From Here.

A student is not protected if:

  • The parent doesn’t allow evaluation;
  • The parent refuses special education services; or
  • The student was evaluated and found not eligible.

20 USC 1415(k)(5)(C); 34 CFR 300.354(c)

From Here.

The request for evaluation must be expedited. (20 USC 1415(k)(5)(D)(ii); 34 CFR 300.534(d)(2)(i)) Student remains in the placement determined by school. (20 USC 1415(k)(5)(D)(ii); 34 CFR 300.534(d)(2)(ii)) This placement may include a student being suspended or expelled without educational services. (34 CFR 300.534(d)(2)(ii))

Discipline - Suspensions and Expulsions

In Massachusetts:

One or more of the following alleged or determined disciplinary infractions:

(a) possession of a dangerous weapon;

(b) possession of a controlled substance;

(c) assault on a member of the educational staff; and

(d) a felony charge or felony delinquency complaint or conviction, or adjudication or admission of guilt with respect to such felony, if a principal determines that the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school, as provided in M.G.L. c. 71, § 37H or 37H½.

From here.

In Massachusetts:

Expulsion means the removal of a student from the school premises, regular classroom activities, and school activities for more than 90 school days, indefinitely, or permanently, as permitted under M.G.L. c. 71, § 37H or 37H½ for:

(a) possession of a dangerous weapon;

(b) possession of a controlled substance;

(c) assault on a member of the educational staff; or

(d) a felony charge or felony delinquency complaint or conviction, or adjudication or admission of guilt with respect to such felony, if a principal determines that the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school, as provided in M.G.L. c. 71, § 37H or 37H½.

From here.

In Massachusetts:

In-school Suspension means removal of a student from regular classroom activities, but not from the school premises, for no more than ten consecutive school days, or no more than ten school days cumulatively for multiple infractions during the school year. Removal solely from participation in extracurricular activities or school-sponsored events, or both, shall not count as removal in calculating school days. In-school suspension for ten days or less, consecutively or cumulatively during a school year, shall not be considered a short-term suspension under these regulations. If a student is placed in in-school suspension for more than ten days, consecutively or cumulatively during a school year, such suspension shall be deemed a long-term suspension for due process, appeal, and reporting purposes.

From here.

In Massachusetts:

Long-term Suspension means the removal of a student from the school premises and regular classroom activities for more than ten consecutive school days, or for more than ten school days cumulatively for multiple disciplinary offenses in any school year. A principal may, in his or her discretion, allow a student to serve a long-term suspension in school. Removal solely from participation in extracurricular activities or school-sponsored events, or both, shall not count as removal in calculating school days. Except for students who are charged with a disciplinary offense set forth in M.G.L. c. 71, § 37H(a) or (b), or M.G.L. c. 71, § 37H ½ no student may be placed on long-term suspension for one or more disciplinary offenses for more than 90 school days in a school year beginning with the first day that the student is removed from school. No long-term suspension shall extend beyond the end of the school year in which such suspension is imposed.

From here.

In Massachusetts:

Short-term Suspension means the removal of a student from the school premises and regular classroom activities for ten consecutive school days or less. A principal may, in his or her discretion, allow a student to serve a short-term suspension in school. Removal solely from participation in extracurricular activities or school-sponsored events, or both, shall not count as removal in calculating school days.

From here.

Yes. The definition of in-school suspension (ISS) is “removal of a student from regular classroom activities, but not from the school premises, for no more than ten consecutive school days, or no more than ten school days cumulatively for multiple infractions during the school year.” In this example, the student has been suspended in-school, even though the student is receiving instruction consistent with suspension protocols.

From here.

The notice and hearing requirements differ, depending on whether the suspension is in-school or out-of-school. For an in-school suspension of ten days or less, the principal5 is not required to give prior notice to the student’s parent (although prior notice is strongly recommended), and is not required to invite the parent to participate in the hearing. An ISS for ten days or less, consecutively or cumulatively, is not considered a short-term suspension.

Short-term suspension (STS) means removal of a student from the school premises and regular classroom activities for ten days or less, cumulatively or consecutively. Before the student may be suspended, the principal must notify the student and student’s parent orally and in writing about the charge resulting from the misconduct, the right to have a hearing to dispute the charge, the parent’s right to participate in the hearing, and such other information as specified in 603 CMR 53.06(2).

In contrast, the principal may place a student in ISS for ten days or less as long as the student is provided the minimum notice and opportunity to be heard that is constitutionally required under the U.S. Supreme Court’s decision in Goss v. Lopez, 419 U.S. 565 (1975), i.e., the same notice and due process procedures6 that were required before enactment of Chapter 222. The regulations do not require oral and written notice to the parent before the ISS takes effect, although the Department recommends prior notice where practicable. The regulations do, however, require the principal to make reasonable efforts to notify the parent orally on the day of the decision to place the student in ISS and to arrange a meeting with the parent on the same day, if possible, to discuss the student, the student’s academic performance, and strategies for student engagement. The principal must also provide the student and parent written notice of the ISS that complies with §53.10(5).

From here.

No. The regulations do not require schools to provide students or parents the right to appeal the principal’s decision to impose either an ISS or STS to the superintendent. The district may choose to provide the right of appeal in its policies and procedures.

From here.

… A student has been placed in ISS for a total of ten days since the beginning of the school year. If the student commits another offense and the principal wants to place the student in ISS for two more days, does the principal have to give the student and parent prior oral and written notice of the charges and the opportunity for a hearing?

ANSWER: Yes, oral and written notice to the student and the parent is required before placing the student in ISS for more than ten days.

The definition of in-school suspension states, in relevant part:

If a student is placed in in-school suspension for more than ten days, consecutively or cumulatively during a school year, such suspension shall be deemed a long-term suspension for due process, appeal, and reporting purposes.

Since the student will be placed in ISS for more than ten days, it is considered a long-term suspension for purposes of the notice and hearing requirements, as well as appeal and data reporting purposes.

Sections 53.06 and 53.08 of the regulations set out the notice and hearing requirements. Specifically, before placing the student in ISS for two more days, the principal must provide oral and written notice to the student of the charges and an opportunity for a hearing as set forth in §§53.06(2) and 53.08(3) relating to long-term suspension. The principal must also make reasonable efforts to notify the parent orally and in writing of the opportunity to participate in the hearing.

From here.

Yes; since the result could be that the student is suspended for more than ten cumulative days, the procedures required for long-term suspension (described above) apply.

From here.

For purposes of ISS, the time does not count if it is less than half of the time that the school is in session that day, provided the student is not removed from class in this manner on a recurring basis.

The Department encourages schools to maintain a record of such referrals to track the extent to which “referral to the office” is used as a classroom management tool, by whom, and with which students. Periodic review of the data may reveal overuse of the response by some educators or impact on particular students or subgroups of students that should be further examined and addressed as appropriate.

From here.

No; an involuntarily removal from school is a suspension and must be counted as such. It is not permissible for a principal to remove a student from school involuntarily for misconduct at any point in the school day without complying with 603 CMR 53.00.

From here.

The school is providing an additional level of review, which is not required by statute or regulations, but is permissible. The school still must follow the applicable notice and hearing requirements and appeal procedures (see discussion in the following question and answer).

Note that the definition of principal at 603 CMR 53.00 includes “the instructional administrative leader or headmaster of a public school or his or her designee for purposes of school discipline matters….” As an alternative to the process used in this school, the policy could clarify that the assistant principal acts as the principal’s designee, conducts the hearing, and renders a decision, and provide the student and parent a right of appeal directly to the superintendent.

From here.

With two exceptions, (The two exceptions are emergency removal of a student from school, which is addressed at 603 CMR 53.07, and ISS, removal of a student from classroom activities) before removal for a 37H ¾ offense may occur, the principal must make reasonable efforts to orally notify the student’s parent, and must provide to the parent and the student written notice of: the charge, the basis of the charge, hearing rights, and the parent’s opportunity to participate in the hearing. The notice for the student and parent must comply with §53.06(2), which reads:

The principal shall provide oral and written notice to the student and the parent in English and in the primary language of the home if other than English, or other means of communication where appropriate. The notice shall set forth in plain language:

  1. the disciplinary offense;
  2. the basis for the charge;
  3. the potential consequences, including the potential length of the student’s suspension;
  4. the opportunity for the student to have a hearing with the principal concerning the proposed suspension, including the opportunity to dispute the charges and to present the student’s explanation of the alleged incident, and for the parent to attend the hearing;
  5. the date, time, and location of the hearing;
  6. the right of the student and the student’s parent to interpreter services at the hearing if needed to participate;

To conduct a hearing without the parent present, the principal must document reasonable efforts to include the parent. Section 53.06(3), which is applicable to STS and LTS, sets forth the standard for determining whether the principal has made reasonable efforts to include the parent:

The principal is presumed to have made reasonable efforts if the principal has sent written notice and has documented at least two attempts to contact the parent in the manner specified by the parent for emergency notification.

The Department strongly recommends that schools update the emergency contact information for each student at least annually. This information, which has always been critical for health and other emergency purposes, is now essential for complying expeditiously with notice and hearing procedures in the discipline context.

From here.

… For example, what if the parent is unable to participate in the hearing on the day and time scheduled but would be willing to attend the next day?

Answer: In order to provide the parent an opportunity to participate in the hearing, the principal must be willing to consider a reasonable request for a short extension or a different time on the date the principal has proposed. For example, if the parent’s work schedule would not allow her to be at the school until 10 a.m., but she could be there at 3 p.m., the principal should consider rescheduling the hearing at that time unless it poses witness availability issues for the school that cannot be resolved. A request for an extension of a day or two would be reasonable in most cases. Depending on the circumstances, the principal could place the student in ISS while awaiting the hearing with the parent and count the time towards the time that the student might be suspended out of school following the hearing.

Nothing in the regulations prohibits a principal and the student and parent from making arrangements or agreements with respect to the hearing or any other aspect of the process that serves their mutual interests.

From here.

A student 18 years of age or older is considered an adult and entitled to participate in decision making in all aspects of the discipline process, unless the student has been determined by a court to be legally incompetent. The student’s parent continues to have the right to receive notice and the opportunity to participate in the disciplinary hearing and appeals.

From here.

Section 53.07 addresses the standard for emergency removal:

Nothing …shall prevent a principal from removing a student from school temporarily when a student is charged with a disciplinary offense and the continued presence of the student poses a danger to persons or property, or materially and substantially disrupts the order of the school, and, in the principal’s judgment, there is no alternative available to alleviate the danger or disruption. The principal shall immediately notify the superintendent in writing of the removal and the reason for it, and describe the danger presented by the student… .

Thus, if the student’s continued presence is a danger or causes material and substantial disruption, and there is no alternative to address the danger or disruption, the principal has the discretion to remove the student on an emergency basis. In such an emergency, the school is not required to provide advance oral and written notice to the student and parent prior to the student’s removal from school.

Under §53.07 of the regulations, there are other steps that the principal must take in connection with the emergency removal: 1) notify the superintendent in writing of the removal and the reason for it before the student is sent home; 2) tell the student that he or she is being sent home and the reasons for the removal; 3) confirm that provisions are in place for the student’s safety and transportation; 3) immediately make reasonable efforts to reach the parent to notify her or him of the removal and the reasons for it; 4) give written notice to the student and parent that complies with §53.06(2), and offer the opportunity for a hearing within two full school days following the removal, unless the parties agree to an extension; 5) on the day of the hearing, orally inform the student and parent of the decision on the misconduct and future consequences, if any; and 6) issue a written decision on the next day as provided in §53.07(1)(d).

From here.

Yes, the days that a student is removed from school on an emergency basis count as suspension days. The days also count toward determining cumulative days of suspension in the school year. If the student is suspended for additional days following the discipline hearing, the days of out-of-school suspension or, if determined appropriate, in-school suspension, must be documented and counted as days of suspension as well.

From here.

If the removal is to secure medical or clinical treatment and is not a disciplinary response, the student’s absence from school is not considered a suspension or a removal for disciplinary purposes requiring due process.

From here.

A student who has been expelled or suspended for more than ten consecutive days must be provided an opportunity to receive education services identified in a school-wide education service plan. The education services must allow the student “the opportunity… to make academic progress toward meeting state and local requirements.” If non-core academic subjects are included in local requirements, they must be included in the education service plan so the student has the opportunity to make academic progress.

From here.

The school should meet with the student and parent to encourage the student to continue his or her education by accepting the services. Depending on the student’s circumstances, resources available on the Department’s website that discuss risks of leaving school may be helpful in that discussion: Student Discipline Resources and Information webpage.

Ultimately, if the student fails or refuses to engage, the school should document its efforts. The school has met its legal obligations because it has provided the student an opportunity to make academic progress during the period of exclusion from school. If the student subsequently changes his or her mind and requests education services, the school should provide the opportunity to make academic progress.

From here.

Students who are suspended short-term, whether in or out-of-school, must be provided an opportunity to make academic progress during their suspension. As a general rule, a school will fulfill its responsibility if school personnel provide make-up assignments, tests, papers, homework, and other school work to a student who is suspended short-term. If the ISS is more than ten consecutive days, the school would be required to provide education service options, such as tutoring and instructional materials. The interests of the student and the school are served by keeping the student engaged in learning.

From here.

For those students who receive services under the school-wide education service plan, the school must provide transportation services if the student received transportation services before the suspension or expulsion and the student would be unable to access the selected education service(s) without transportation.

From here.

Yes; the charter school is responsible for having a school-wide education service plan, and for providing education services to any student it expels or suspends for more than ten consecutive days. Similarly, students who are suspended short-term (for ten days or less, cumulatively or consecutively) must have an opportunity to make academic progress during the period of suspension. This means the charter school, as any other public school, must provide an opportunity for the students to make up assignments, tests, papers, and other school work.

A student who attends an educational collaborative program must be provided an opportunity to make academic progress during any period of suspension or expulsion. Students who are expelled or suspended for more than ten consecutive days must be provided an opportunity to receive education services through the school-wide education service plan. The responsibility for education services ultimately rests with the student’s school district, not the educational collaborative, since the student continues to be enrolled in the district while attending the collaborative program. However, an educational collaborative and the student’s sending district may agree to other arrangements as long as the student has an opportunity to make academic progress as provided under 603 CMR 53.00 and other applicable laws and regulations.

From here.

Yes, the plan could be a district-wide education service plan as long as it includes a list of education services that will provide the student an opportunity to make academic progress toward meeting state and local requirements, and is based on the academic standards and curriculum frameworks established for all students in the district.

From here.

…  For example, can a principal inform the student and parent that the student can choose between only two of three education service options?

Answer: G.L. c. 76, §21, which requires school-wide education service plans, states in relevant part:

Any school or school district that expels or suspended a student for more than 10 consecutive days shall provide the student and the parent or guardian of the student with a list of alternative education services. Upon selection of an alternative educational service by the student and the parent or guardian of the student, the school or district shall facilitate and verify enrollment in the service.

Since the statute refers to a “list of alternative educational services” from which the student/parent may choose, as long as the school or district offers at least two education service options that are available on an equitable basis to all students, that will provide them an opportunity to make academic progress and meet other requirements set out in §53.13, it would be permissible to limit the options for educational reasons.

Yes. A student with disabilities has all the rights that a typical student has under state law and regulations, in addition to the procedural and other rights afforded to students with disabilities under the federal Individuals with Disabilities Education Act (IDEA). This means that if a student with disabilities is suspended for ten days or less,8in school or out-of-school, the notice and hearing process outlined in the regulations is applicable. Additionally, the student has the right to make up tests and other assignments, and do such other work as necessary to make academic progress during that period.

If a student with disabilities is suspended for more than ten days, the parties may want to review the following federal and state-issued guidance, respectively, Questions and Answers on Discipline Procedures and Guidance for Implementing IDEA 2004: Discipline before determining next steps. School administrators are also encouraged to consult with legal counsel.

From here.

… Are these schools required to provide services so that students can make progress in their vocational training as well as academic courses?

Answer: No. G.L. c. 76, §21 requires only that schools provide an opportunity to make academic progress during suspension or expulsion. It does not address providing services so that a student can continue progress in a vocational program.

The Department encourages vocational schools and programs to provide vocational support to the extent possible, particularly to those students who are suspended for relatively short periods of time.

Some suspended or expelled students in regional vocational technical schools may opt to withdraw from the school and return to their home district. In such cases, the home district has the obligation to provide the student the opportunity to make academic progress during the period of suspension or expulsion.

From here.

… For example, if the student has 7 unexcused absences in a 5-credit course, the student might still earn an A in the class but would only be awarded 4.5 credits. Out-of-school suspensions are considered unexcused absences. A suspended student can make up work/tests, but may still lose partial credit in the course. Does this policy violate the student’s “opportunity to earn credits, as applicable” and “make academic progress during the period of his or her removal” under 603 CMR 53.13?

Answer: The policy would violate 603 CMR 53.13 if it would prohibit a suspended student who did the required work and earned a passing grade from getting full credit.

From here.

… In other words, if a student who already was suspended for ten days moves to a new district during the school year and receives a one-day suspension in the new school, would that be considered a long-term suspension?

Answer: No. There is no statutory or regulatory basis for including days of suspension from the student’s previous school in the count of suspension days in the student’s new school in a new district.

From here.

… for a §37H ¾ violation, do the ten days count toward the 90-day limit on suspensions in a school year under §37H ¾, or for purposes of determining whether a long-term suspension hearing must be held under §37H ¾?

A. No. The number of days a student is suspended under §37H (offenses include possession of a dangerous weapon or a controlled substance, or assault on educational staff, on school grounds, or at school-sponsored or school-related events or activities.) or §37H ½ (offenses concern felony charges or felony delinquency complaints filed against a student and a principal’s determination that the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school) does not count toward the 90-day limit on suspensions in a school year. Section 37H ¾ (a) addresses only offenses not addressed in §37H or §37H ½. The 90-day time limit under sub-section (f) applies only to days of school lost due to a 37H ¾ offense.

From here.

Discipline - Timeouts

The Massachusetts Department of Elementary and Secondary Education (DESE) regulates Massachusetts public schools in their use of time-out. ( Mass. Gen. L. ch. 71, § 37G and 603 Code of Massachusetts Regulation (CMR) 46.00)

These regulations apply to all Massachusetts public school districts, charter schools, virtual schools, collaborative education programs, and to the school day of special education schools approved by DESE under 603 CMR 28.09 (Public or Private Day and Residential Special Education School Programs).

603 CMR 46.01(2)

A time-out is a behavioral support strategy in which a student temporarily separates from the learning activity or classroom, either by choice or by staff direction, for the purpose of calming. ( 603 CMR 46.02)

There are two kinds of time-out:

  • Inclusionary – when a student is removed from positive reinforcement or full participation in the class while remaining in the class.
  • Exclusionary – when a student is separated from the rest of the class through complete
    visual separation or actual physical separation.

DESE, Technical Assistance Advisory SPED 2016-1, Time-out and Seclusion (July 31, 2015),

Staff must:

  • continuously observe the student;
  • be with the student or immediately available to the student at all times;
  • ensure that the time-out space is clean, safe, sanitary, and appropriate for calming;
  • end time-out as soon as the student is calm.

603 CMR 46.02

DESE has provided further guidance on exclusionary time-out. (DESE, Technical Assistance Advisory SPED 2016-1, Time-out and Seclusion (July 31, 2015))

When time-out can be used:

  • Time-out is only for calming an agitated student.
  • Time-out is not for punishment.

Doors and time-out:

If it is not safe for the staff to be present with the student, the student may be left in time-out with the door closed.

  • However, a school counselor or other behavioral support professional must be immediately available outside the time-out setting to continuously observe and communicate with the student to determine when the student has calmed.
  • Students must never be locked in a room.
  • For students displaying self-injurious behavior, staff must be in the same setting with the student.

Time-outs over 30 minutes:

  • Time-outs lasting more than 30 minutes require principal review and approval. (DESE, Technical Assistance Advisory SPED 2016-1, Time-out and Seclusion (July 31, 2015), http://www.doe.mass.edu/sped/advisories/2016-1ta.html.)
  • The principal may not routinely approve such requests, but must consider the individual circumstances (whether the student continues to be agitated) to determine whether timeout beyond 30 minutes is allowed. (DESE, Technical Assistance Advisory SPED 2016-1, Time-out and Seclusion (July 31, 2015),
    http://www.doe.mass.edu/sped/advisories/2016-1ta.html.)
  • If it appears that time-out exacerbates the student’s behavior, or the continuation of timeout beyond 30 minutes has not helped the student to calm, staff should use other behavioral support strategies. (DESE, Technical Assistance Advisory SPED 2016-1, Time-out and Seclusion (July 31, 2015),
    http://www.doe.mass.edu/sped/advisories/2016-1ta.html.)

After time-out:

  • Staff must return the student to class as soon as he/she is able to remain calm.

When time-out becomes seclusion:

From here.

Discipline - Other

The federal Individuals with Disabilities Education Act (IDEA) gives a student found eligible for special education services a right to a free appropriate public education (FAPE) in the least
restrictive environment.

The IDEA provides protections when these students are excluded from school.

In addition to IDEA requirements, school districts also must comply with state law regarding school discipline. These rights are discussed in another MHLAC flier available at http://www.mhlac.org/Library.htm.

From Here.

Due Process (MA) - Mediation, Hearings, Complaints

Procedural Complaints (PQA/PRS)

Through its Problem Resolution System (PRS), the Department handles complaints that allege a school or a district is not meeting legal requirements for education. Program Quality Assurance Services (PQA) is the unit that manages the PRS. Anyone, including parents, students, educators, community members, and agency representatives, may contact PQA for assistance.

Contact Program Quality Assurance Services at:

Program Quality Assurance Services
Massachusetts Department of Elementary and Secondary Education
75 Pleasant Street, Malden, MA 02148-4906
Telephone: 781-338-3700
TTY: N.E.T. Relay: 1-800-439-2370
FAX: 781-338-3710
Email: compliance@doe.mass.edu
Web: Program Quality Assurance Services

For people who do not write or speak English, or are not comfortable communicating in English, the Department will make appropriate arrangements.

This information is from here and you can download an intake form from here.

The Problem Resolution System (PRS) is the Department’s process for addressing complaints from the public about students’ educational rights and the legal requirements for education. Some of the types of complaints that the PRS handles include allegations that a student is not receiving educational services, or allegations that a student is not receiving the procedural protections that the law requires. Other complaints may allege that there are problems with a school district’s educational programs that affect more than one student. Complaints can be made against a school, school district, collaborative school, charter school, or a Department-approved private special education school or placement. (Throughout this document, these types of schools will be called “districts” or “school districts.” The person filing a complaint is called a “complainant.”)

The PRS is staffed by intake coordinators and educational specialists (called “PRS specialists” here). PRS specialists respond directly to questions and complaints. PRS staff members also consult with others in the Department and in other agencies, if necessary, to resolve problems. When you contact PRS staff, you may ask questions about your situation, take steps to begin the process of filing a complaint with the Department, or both.

From here.

There are several ways for you to contact the Department with a question or concern about a district. You may write an email to the PQA compliance mailbox, send a fax, mail a letter, or telephone PQA for assistance.

When you write an email to the PQA compliance mailbox, send a fax or mail a letter to PQA, it will be read by PRS staff and forwarded to a PRS specialist who will contact you about your concern, answer your questions and discuss your options with you.

When you telephone PQA, the first person you might speak with is an intake coordinator. He or she is able to answer your questions about how the PRS process works. If you wish to speak with someone about questions you have about your situation, the intake coordinator will refer you to a PRS specialist. If you are certain you wish to file a complaint, the intake coordinator will help you take the initial steps to file a complaint.

If you wish to speak with someone about the problem, the intake coordinator will refer you to a PRS specialist. A PRS specialist provides information about state and federal legal requirements for education, and helps resolve problems. PRS specialists are assigned to work with specific school districts, and you may call the PRS specialist directly who works with your school district. Check the list of PRS specialist assignments, or use the Department’s staff phone directory to find this contact information.

The PRS specialist will talk with you about your problem, answer your questions, and discuss steps that you might take on your own to resolve the problem. Also, he or she may offer – if it is appropriate and if you give consent – to contact school personnel or others on your behalf to resolve the problem informally. It is the Department’s practice, when possible, to contact the appropriate school district administrator and let him or her know that someone has contacted the Department with a concern. We take that opportunity to encourage the school district to take steps to resolve the problem with you. However, the PRS specialist will not contact the school district if you do not want him or her to do so.

The Department encourages you to continue to work with the school district to resolve problems even after you have contacted the Department for help. If you can resolve your problem with the school district, you may not need to file a complaint with PQA, or you may want to withdraw the complaint if you have already filed it.

Please note: Your email, fax, letter, or phone call to the Department is not considered to be your request to file a complaint. The Department is required by federal law to gather specific written information before it is able to begin to investigate a complaint. It is only under extraordinary circumstances, such as an allegation that a student is not receiving any instruction or educational services, that the Department may decide to take action to resolve a complaint even if the complainant has not yet sent the Department a written complaint.

How to File a Complaint

A complaint is someone’s written claim that the school district has violated legal requirements for education. The Department reviews complaints, investigates the claims, and determines whether the district has violated legal requirements for education. If a violation has occurred, the Department directs the school to correct the violation or to take other steps to make sure that it does not happen again.

Federal law requires all complaints to be in writing and to be signed by the complainant. Federal special education law and Department procedures also require you to send a copy of the signed, written complaint (the letter or the completed Problem Resolution Intake form) to the appropriate school district administrator at the same time you send it to the Department. If you want to file a complaint, you have three options. Whether you use the Intake form or send a complaint letter to the Department, you need to put the following information in your complaint:

  1. You may telephone PQA and speak with the intake coordinator, who will record a very brief statement of your concern in our database for tracking purposes, and send you a letter confirming that you have contacted the Department for assistance. Along with this letter, you will receive information about the Department’s Problem Resolution System (PRS), and a copy of a Problem Resolution Intake form. To file a complaint, when you receive the packet of information from PQA, in the mail, complete the Problem Resolution Intake form and return it via mail or fax to the Department.

    Please note: If you do not complete and return the signed Problem Resolution Intake formwithin 30 calendar days after the Department sends the form to you, the Department will assume that you do not want the Department to investigate your concern. Your issue will be considered “inactive” and will not be addressed at this time. However, you may contact the Department in the future if you would like the Department to activate this complaint or you have a different concern.

  2. You may choose to file a complaint by downloading the form found at the top of this page under the heading The Problem Resolution System Intake Form. After you complete this form, you may mail, fax or emailit to the Department. Upon receipt of the form, your complaint is assigned an intake number by the Department for tracking purposes. Please be certain to have signed the form where indicated or used an electronic signature where indicated before providing the completed form to the Department. Remember to share the completed form with the school district.
  3. The Department has designed the Problem Resolution Intake form to guide you to include all information the Department requires to begin to investigate your concern. You have the option, however, to file a complaint by writing a letter that you put in the mail, fax, or email to the Department. If you choose to send a written letter of complaint to the Department, your letter must include the following information:
    1. A statement saying that the school district has violated a requirement of federal or state education law;
    2. The facts on which this statement is based (the reasons why you think a violation has occurred);
    3. Your signature and contact information (that is, address, phone number, and/or email address);
    4. If the alleged violation involves a specific child, the complaint needs to include:
      1. The child’s name and address;
      2. The name of the school the child attends; and
      3. If the child is homeless, the child’s contact information and school he or she is attending; and
    5. Your proposed resolution of the problem (what you think can be done to fix the problem); and
    6. The name of the district administrator to whom you sent a copy of the signed written complaint that you sent to the Department.

When Someone Who Is Not the Student or the Student’s Parent Files a Complaint

Sometimes a complainant is not a student or a student’s parent, (Here, “parent” means someone who can make educational decisions for the child, and includes the child’s biological or adoptive parent, guardian, or Special Education Surrogate Parent (SESP)) but is an educator, community member, or someone else. In those cases, the Department cannot continue to talk with the complainant about a specific student unless the student’s parent has given his or her written permission to do so. Federal and state laws require the Department and school districts to keep education records about students confidential unless the student’s parent has given permission (also known as “consent”) to let someone else have access to them. (These requirements are described fully in the State Student Records Regulations, 603 CMR 23.00, and the federal Family Educational Rights and Privacy Act (FERPA) regulations, 34 CFR Part 99.) The parent’s consent must be in writing, and needs to include:

  1. The records or information that may be disclosed by the Department and the school district;
  2. The purpose for which the records or student information can be disclosed; and
  3. The people to whom disclosure can be made.  (34 CFR § 99.30(b))

Parents have an important role in making educational decisions for their children. Therefore, the Department strongly encourages the non-parent complainant to contact the student’s parent to ask for consent, or to make sure the parent or the person who makes educational decisions for the student is aware of the issues that are being brought to the Department’s attention. In some cases, the PRS specialist may be able to continue to work on resolving the complaint without written consent from the student’s parent, but, in these circumstances, he or she cannot communicate directly with the non-parent complainant. If a parent requests that a complaint filed by a non-parent not go forward, the PRS specialist will likely honor that request.

From Here.