The Wisdom of, and Right to, Observe Your Child’s Current or Proposed Special Education Program

We have all had experiences in our lives where things look different on paper than they do in reality or purported eyewitness accounts of some event turn out to be less than accurate or complete.  As many of us well know, the same can be true of IEPs and progress reports in their description of a student’s special education program.  In 2009, Massachusetts enacted a law to strengthen the right of parents and their evaluators to observe any current or proposed program for their child.  Massachusetts law (M.G.L. ch. 71B, §3; 603 CMR 28.07(1)(a)(3) accords parents, and by extension, their evaluators or consultants, a reasonable opportunity to observe their child’s program or proposed program. The rationale for the law, as delineated in the first sentence of the statute is: “To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child…” 

There are no rules delineating the specifics of a “reasonable” observation.  Access must be timely and sufficient to allow parents or their designee a meaningful opportunity to assess the program. Both academic and non-academic portions of a child’s program must be made available for observation. The law makes clear that schools may not restrict or place conditions on observations unless those are necessary to address specific concerns about the impact of the observations on the program itself or the children in it.  Observers must be accorded the opportunity to speak with teachers and other staff about the program.  See Northbridge Public Schools, BSEA # 09-2533 (2009) (in a hearing before the Bureau of Special Education Appeals, the body with original jurisdiction over disputes arising out of the provision of special education services in Massachusetts, the hearing officer castigated the school district for instructing staff not to speak about the student or his program with the parents’ expert).

A first-hand look is invaluable in determining how a student is actually doing in a program, and for providing suggestions for changes to the student’s program. To offer well founded challenges to the school’s program, it is essential that your expert has seen the actual program.  Parents’ legal challenges to a school district program will falter without such an observation. See Amherst-Pelham, BSEA # 07-2259 and # 07-3796, 13 MSER 160 (2007); North Adams and Chloe, BSEA # 06-4948, 12 MSER 238 (2007) (hearing officer gave “no weight” to parents’ expert because he did not observe the student).

The Massachusetts Department of Early and Secondary Education (“DESE”) has issued guidelines to districts and parents that can help you advocate for a meaningful observation of your child’s program.  Technical Advisory Sped 2009-2, “Observation of Education Programs by Parents and Their Designees for Evaluation Purposes,” can be found at http://www.doe.mass.edu/sped/advisories/09_2.html.

Some helpful tips about requesting an observation:

• Request a written schedule of the program or proposed program to help zero in on what portion(s) of the program you should have observed;

• Determine what portions of the program you need to have observed.  Make sure your request is thorough, but is tailored to what you need.

• Request in writing (which includes email) the observation, proposing specific dates for the observation and portions of the program you want observed.  Confirm the specifics of the scheduled observation in writing also.  If a dispute arises about the observation, you will have established your efforts in getting it scheduled and the parameters of the observation.

• If the district imposes unreasonable restrictions or conditions on the observation, ask for written policies about those and whether they apply to observations initiated by the school district.

As with any dispute over the provision of special education services, you have a right to resolve an observation-related dispute through mediation or hearing with the BSEA.

Dan Heffernan is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.