A Check-up on Observation Access

Observation of a student’s program or proposed program by parents or by their expert evaluators or consultants is a critical step in many cases for parents to make informed decisions about their child’s special educational services. In addition, an observation is a necessary ingredient of almost any case at the Bureau of Special Education Appeals (“BSEA”), as hearing officers will often discount a witness’s opinion about a district’s program when that witness has not observed the program about which s/he is testifying.

In light of these considerations, it is disheartening that school districts so frequently throw unreasonable (and illegal) conditions and delays into the paths of parents and their experts who seek to observe a program. Examples include requiring criminal record checks, despite the fact that an observer will be accompanied by a school employee and not alone with students at any point; attempts to require that an observer provide a copy of her notes following the observation; long delays (often with phone calls and emails unreturned) in communications about scheduling; arbitrary limits on the amount of time that can be spent observing and/or the classes and activities that may be observed; last minute cancellations or postponements; scheduling unusual and unrepresentative activities (e.g., showing a movie or administering an exam) for the time an observer is at the program; and so on. All of these sorts of tactics play havoc with the experts, whose availability is typically quite limited, and with parents who must negotiate time away from work to observe a program.

In 2008, special education advocates succeeded in procuring an amendment to Massachusetts’ special education law that clearly establishes a right for parents to observe and/or to have their expert evaluators and consultants observe a student’s current and/or proposed program. The amendment added the following language to the special education statute at M.G.L. c. 71B, §3:

To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child, a school committee shall, upon request by a parent, provide timely access to parents and parent-designated independent evaluators and educational consultants for observations of a child’s current program and of any program proposed for the child, including both academic and non-academic components of any such program. Parents and their designees shall be afforded access of sufficient duration and extent to enable them to evaluate a child’s performance in a current program and the ability of a proposed program to enable such child to make effective progress. School committees shall impose no conditions or restrictions on such observations except those necessary to ensure the safety of children in a program or the integrity of the program while under observation or to protect children in the program from disclosure by an observer of confidential and personally identifiable information in the event such information is obtained in the course of an observation by a parent or a designee.

The MA Department of Elementary and Secondary Education quickly issued an excellent advisory memorandum, which explains the districts’ responsibility to cooperate with parents and their experts in providing access for observations.

Nearly five years following the enactment of the observation access law, school-imposed barriers continue to plague parents and their experts. We are glad to be able to report, however, that when the BSEA is asked to help remove barriers and conditions that do not comply with the statute, the chances are good that orders will issue. A ruling by Hearing Officer William Crane in early May (In Re: Mansfield Public Schools, BSEA #1307030) supported a parental request to have their expert observe a full, continuous day of the program for a child whose disabilities affected social communication skills, caused anxiety, and likely caused fluctuation over the course of the school day.

The hearing officer rejected the district’s arguments based on its alleged need to have a particular school employee, whose other obligations would preclude a full day commitment to the task, accompany the observer. The district had offered to have the observation broken up over two or more days, but the hearing officer was persuaded that the observation should occur in a single day so that the observer could place any behavior s/he might observe in the context of the full day’s events. He found that none of the district’s proposed bases for denying a full day’s observation were contemplated in the statute, which allows only three types of limitation on observations (to protect the safety of students, the integrity of the program, or the confidentiality of information).

The bureaucratic resistance to access for observations is not likely to disappear any time soon and the strategies to delay or block those observations are many. Be aware of the legal requirements and with some persistence parents and their experts should be able to break through those barriers.

Readers should also check Dan Heffernan’s earlier post on this site, Take a Look For Yourself, urging parents to take advantage of the right to observe with several excellent suggestions for navigating the process.

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

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