Due Process Hearings at the BSEA

The Bureau of Special Education Appeals, or the BSEA, is part of the Division of Administrative Law Appeals and has original jurisdiction over all disputes regarding special education in Massachusetts (including claims based on Section 504 of the Rehabilitation Act, i.e., those that allege discrimination based on a child’s disability).  The BSEA provides five avenues for dispute resolution in case of a disagreement between a parent and a school district. 

This is the third in a series of five posts that will discuss the dispute resolution options at the BSEA.

If you cannot resolve your differences with the school district in an informal way, such as through the team process, through direct discussion with special education administrators or between attorneys, or in mediation, you can initiate litigation about the dispute by filing a hearing request with the BSEA.  In Massachusetts, the BSEA is the forum where one must first litigate a special education dispute. The hearing process is commenced by filing a hearing request.

No hearing request should be filed until/unless parents and, if they are represented, their counsel, have ensured that all critical steps have been completed – including, for example, the completion and delivery of any key evaluation reports to the school district, the consideration of and response to those reports by the student’s Team, the completion of any necessary observations, and so forth.  Hearings can be quite costly.  Parents carry the burden of proof in most cases and the legal standards that apply tend to favor the school districts.  Thus, one should be sure that all steps to make the strongest case possible have been completed before entering the arena at the BSEA.

A statute of limitations applies that requires claims to be filed at the BSEA within two years following any school district action or failure to act as to which you seek relief.

A hearing request must include basic information about the student, the parent(s) or guardian(s), and the school district, as well as a statement of the issues to be resolved, the facts relating to the issues, and an explanation of the resolution sought.  A hearing request provides an opportunity not only to state the bare facts of the claim, but also to organize the allegations and marshal the statement(s) of law in a persuasive way.  If you have an attorney, he or she will likely draft and file the hearing request and then may pursue negotiations with the school district and/or its attorney.

Once a hearing request is filed, your case will be assigned to one of the BSEA’s hearing officers, who almost always remains with the case all the way through the BSEA proceedings.  You will receive a scheduling order that includes an “automatic” date for the hearing as well as for other federally required procedures leading up to the hearing, including a “resolution session.”  The resolution session, which may occur at any time up to thirty days after parents file a hearing request, provides another chance for the parties to attempt a resolution.  The school district attorney may not attend the resolution session unless the parents’ attorney attends, but the school district is required to bring someone who can enter into an agreement with the parents.  The hearing may not go forward until the resolution session occurs or unless the parties mutually agree to waive the resolution session, as often occurs when both parties are represented by counsel.

Hearings almost never proceed on the automatically-generated date due to scheduling conflicts or requests for extensions.  Even with delays, however, most cases that do not settle proceed to hearing within a few months of the time that the hearing request is filed.

After filing the hearing request, parties may exchange discovery requests.  The hearing officer may hold a prehearing conference prior to the full hearing.  In addition to addressing issues such as scheduling, the disclosure of certain documents, or other hearing preparation matters, the prehearing conference may present an opportunity for a negotiated resolution.  A “settlement conference” is another potential avenue for negotiated resolution after a hearing request has been filed, and will be the subject of the next post in this series.

If the case does not settle, the parties will proceed to a hearing.  A hearing is like a trial at which each party presents its case through documents and the testimony of witnesses.  One significant difference between BSEA proceedings and many court trials is that there are no jury trials in the BSEA.  The hearing officer decides the entire case.  The record closes either on the last day of the hearing, upon the parties’ submission of written closing arguments, or as the parties and the hearing officer may arrange.  Within twenty-five calendar days of the close of the record, the hearing officer is required to issue his or her decision in writing.  The decision is appealable to state or federal court within ninety calendar days.

You do not need an attorney to file for a due process hearing, but as the school district will almost always have legal counsel, parents who proceed “pro se” (i.e., without an attorney) can be at a distinct disadvantage.

The BSEA website provides further information about hearings, including the hearing rules, statistics, and a searchable index of every written decision and advisory opinion from the last several years.  The attorneys at Kotin, Crabtree & Strong, LLP also provide commentary on the BSEA’s decisions each quarter.  Look for more information about due process hearings, hearing requests, and hearing preparation in upcoming posts here on Special Education Today.

Melanie R. Jarboe is an associate in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

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