Special Education

If you are the parent of a special needs child as I am, you know there are times you don’t agree with the services the school district offers.

Lay advocates or non-attorney advocates can be helpful in most situations.  An advocate can serve as a bridge between parents and school personnel.  Good advocates can guide you through the arcane language and procedures of special education.  They understand the elements of the IEP and what each section means for your child.  An advocate can serve as an extra pair of ears and eyes for you during team meetings.

Fortunately for many parents, a lay advocate is all they need to help the IEP team members solve problems and work through the rough spots in their relationships with one another.  Unfortunately there’s no universal standard of practice for educational advocates – the best ones are excellent and the worst do far more harm than good.

And there are those times when, like it or not, you will want an attorney.  Here are some examples:

BSEA Hearings

The BSEA is an administrative hearing board in Massachusetts which decides special-education disputes between families and school districts.  If your school district requests a hearing, you can be sure an attorney will represent the school.  The BSEA decision is binding upon you, and to appeal a decision you must do so in Federal court.  To protect your child’s rights, you want a knowledgeable attorney on your side.

When your special needs child reaches age 17 and 6 months:

Depending on the level of disabilities, you will need to set up a guardianship and conservatorship for him.  These take the form of a petition to Family and Probate Court to allow you (or some other trusted person) to continue to make decisions for your disabled child beyond age 18.

Without such arrangements, your child can spend money, make contracts, leave home, refuse medical care, or fall victim to a swindler; all without knowledge and consent of anyone who cares for his welfare or understands his limitations.  With such arrangements in place, you can continue to protect your child’s rights, even making provisions for after you die.

If your child is on certain classes of anti-psychotic drugs, he also needs what is called a “Rogers guardian”.  This is a special type of guardianship in Massachusetts for oversight of anti-psychotic medicines and treatment plans.  If you’re curious, the name comes from the plaintiff in the court case which established this guardianship in the first place.

The paperwork needed to obtain a guardianship is long and time sensitive.  As with other legal matters, you are well-served to hire an attorney to help you.

Juvenile Court

Disabled children sometimes enter the judicial system as a result of their disabilities.  An emotional breakdown becomes “disrupting a school assembly”.  An outburst toward a teacher turns into “assault and battery against a public official”.  Kicking back at a bully becomes “assault with a dangerous weapon (shod foot).”

I’ve seen special-education students arrested for all of these.  Judges are hard-pressed to deal with special-education issues, but when a child arrives in court, judges must act.  A skilled attorney can make a big difference.

Transition Services

Disabled young adults often will also need MassHealth, SSI, and Section 8 housing and other transition services.  You don’t need an attorney to apply for these services, but an attorney can be a useful resource as you coordinate support services for a disabled member of your family.  If you are denied services and wish to appeal, of course, an attorney is of great value.

Other Issues

Some special needs children exhibit aggressive, stubborn or other oppositional behaviors.  These behaviors often make it difficult to cope with them at home and school.  A parent or guardian could request a child-in-need-of-services (CHINS) petition from the courts.  This gets the Department of Children and Families and the court system involved with the family.  DCF provides the family with services and a social worker to coordinate them.  The court oversees the progress the family and child are making in resolving their issues.

A similar petition is called FACES: Families and Children Engaged in Services.  This is a new program started in November 2012.  The idea is to get kids help from the Department of Children and Families without involving the police or courts.

As with any court proceeding, the child is entitled to an attorney.  Either the court will appoint one or the parents can hire one.

Bear in mind . . . .

The material here is written from a Massachusetts perspective with references to Massachusetts procedures.  Because of Federal special-education laws, there are similar procedures and processes in other states.  This is not legal advice; no attorney can give you that without knowledge of your specific circumstances and your agreement to representation.

Contact us if we may be of service.


Good general resources for information on special education law are:



Information about the Massachusetts BSEA:  http://www.mass.gov/anf/hearings-and-appeals/bureau-of-special-education-appeals-bsea/

Guardianship and Conservatorship:  http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upc.html

FACES: http://www.mass.gov/eopss/docs/mptc/juvenile-law-chins.pdf