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Special-ed advocates sue schools over placement

Even as it prepares to open five new classrooms for special education students this week, the Boston public school system is facing a class-action lawsuit in federal court asserting that the district routinely violates state and federal law by delaying evaluations and classroom placements for preschoolers with special needs.

The lawsuit, brought by the nonprofit Massachusetts Advocates for Children on behalf of two families, says the delays have left some children without any services for months at a time, causing regression in the developmental progress they had been making.

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The School Department “has subjected more than 200 preschoolers - some of its most vulnerable youth - to illegal wait-listing,’’ the suit states.

The lawsuit, which was recently transferred from state to federal court, cites a memo written in May by the Boston schools’ Office of Special Education and Student Services that acknowledged a backlog of some 65 students on waiting lists at the time.

“This backlog resulted from a shortage of seats in [Boston public schools] early childhood special education settings,’’ the memo said. It also said that department administrators called a meeting to brainstorm about immediate actions, including better coordination between its special education office and its enrollment office to identify available seats.

‘We believed that taking this issue to court was the best way to . . . represent these very vulnerable children with significant disabilities.’

Jerry Mogul Mass Advocates
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The lawsuit calls on the school system to develop policies to evaluate and place students on a timely basis. It also seeks reimbursement for what parents have spent on children’s evaluation.

Superintendent Carol R. Johnson said that the lawsuit is unnecessary and that the district has been working to address the type of complaints it raises. Five special-education classrooms are being opened when classes resume this week, and others opened in the fall.

“Last spring, I think all of us were concerned about the number of students who had not been placed as rapidly as they needed to be,’’ she said. “We tried to pull together and plan for that so that their needs were met. I think we’ve been very intentional this fall and in January of moving forward.’’

But those pressing the suit said they have grown impatient.

“We believed that taking this issue to court was the best way to advocate for and represent these very vulnerable children with significant disabilities and their families,’’ said Jerry Mogul, executive director of Massachusetts Advocates, who said that solving the persistent problem will require better coordination between multiple school departments.

“We didn’t doubt the superintendent’s intention to fix the problem, but we did not want this issue to get lost amidst all the demands placed upon her office and on the system as a whole,’’ Mogul added.

Under state and federal law, school districts are responsible for educating students with disabilities as soon as they turn 3. For students already in early intervention programs, the federal law requires a seamless transition to public school as soon as they reach that age, meaning evaluations for special-education services should occur earlier.

That is a complicated task, especially in a large district like Boston, which draws some 400 new preschoolers with special needs each year, by Johnson’s estimate. Some of the children’s conditions are as mild as speech disorders, while others have a complicated range of disabilities.

Each new student will have needs that may or may not be met in an existing classroom, even if there is space available.

To complicate matters, the federal law calls for action by the child’s third birthday - regardless of when it falls. State regulations encourage districts to begin evaluating children who are already identified for services at as young as 2½ to ensure a smooth transition into school by the time they turn 3. That means the children who are evaluated for special-education services throughout the year could be enrolled at any time in the school term, not just in September.

The School Department has set up a special-education computer system capable of tracking incoming 3-year-olds and alerting administrators to upcoming deadlines for evaluations and development of individualized education plans. But the suit alleges that the department’s enrollment office has not used that technology to create and staff classrooms throughout the year, and instead relies on projections that become outdated midyear as more children turn 3.

Johnson would not discuss the suit’s assertions about enrollment problems, but acknowledged “the need to better align’’ the special-education office with the overall enrollment and said the district has been working toward better coordination.

The suit, filed in Suffolk Superior Court in September, has been transferred to federal court at the request of the district. An amended filing by the plaintiffs is due by Friday.

Lawyers for the district have sought to get the case dismissed, saying that the families should have sought appeals before filing suit. Federal law requires plaintiffs to exhaust all other options first and the state has an administrative agency, the Bureau of Special Education Appeals, to address disputes between districts and students, the suit says.

Complaints about special education are not new to the district. Two years ago, the superintendent commissioned the Council of Great City Schools to review the district’s program, and the audit raised concerns that students were being placed on waiting lists and recommended immediate action by Johnson.

Johnson expressed dismay that the suit was filed, saying the district has been working aggressively to address the delays and has been making progress.

“We’ve been very honest and forthcoming with the special-ed community about addressing these issues, not expecting they would turn around and use all of that data we’ve shared in a legal case,’’ she added.

Carolyn Kain, chair of the School Department’s Special Education Parent Advisory Council, said that the district’s new director of special education has been working with the parent group and took immediate action to address the backlog.

“To our knowledge, a lot of progress has been made in that area,’’ she said, adding: “We don’t feel that a lawsuit against the district was necessary or helpful in an area where progress was being made. . . . Any lawsuit requires an allocation of personnel and financial resources that we feel would be better focused on actually developing and improving special ed programs.’’

In addition to trying to more quickly identify spaces where seats might be available for special-needs preschoolers, the district has been attempting to maximize resources by creating integrated classrooms for 3- and 4-year-olds, she said. In addition, the district has been ordering materials and hiring staff for the new classrooms, she said.

Matthew Wilder, School Department spokesman, said the classrooms being added this week are not in response to the suit, but in coordination with the broader efforts to reorganize special-education services.

The new classes will serve 25 3-year-olds with varying diagnoses at Harvard/Kent Elementary School in Charlestown, Lee Academy in Dorchester, Philbrick Elementary School in Roslindale, Taylor Elementary School in Mattapan, and the P.J. Kennedy Elementary School in East Boston.

Stephanie Ebbert can be reached at ebbert@globe.com. Follow her on Twitter @stephanieebbert.

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