KCS First and Second Quarter 2016 BSEA Commentaries are Posted!

Our Massachusetts Special Education Reporter commentaries on Bureau of Special Education Appeals (“BSEA”) decisions from the first and second quarters of 2016 are now posted on our website.  It’s always instructive (and often sobering) to see how hearing officers read and apply the law.  They work hard to get it right, and while we don’t always agree with their analyses and rulings, we admire their integrity and diligence as they wrestle with the complex issues, standards, and procedures, seeking the appropriate results amidst the adversarial presentations of parents and districts.

Headings from our first quarter’s commentary (by Attorney Bob Crabtree) included these:

  • Newburyport: One sad stopping place in a long journey through the system’s cracks;
  • Nauset: Send ‘em out and back off – An LEA ignores transitional needs;
  • Agawam and Melmark: When does a request for an “accommodation” in a residential provider’s family involvement protocols become “unreasonable”?;
  • Sutton: Who pays for a residential placement when the custodial parent leaves town and the other parent stays behind?;
  • Framingham: “Stay put” is a return to the classroom, NOT a continuation of the temporary home tutoring a child was receiving when parties agreed to find an alternative placement;
  • Chelmsford: “Stay put” for a child who may be homeless is subject to McKinney-Vento;
  • Brockton/Weymouth: Who pays for an IEE when parents move away from the district with whose evaluation they disagreed?;
  • Medfield The district of residence is a necessary party when a collaborative excludes a student;
  • Plymouth: Parent’s complaint is outside of BSEA jurisdiction, but how about improving relations and building trust?;
  • Boston: Pre-hearing conferences can be tricky if a party is prone to see bias, but a compassionate inquiry about a family’s supports does not indicate prejudice;
  • Pentucket: Letting the string play out – a young adult’s claim allowed to remain alive as long as a court decision that would extinguish her claim can still be appealed – a small, but empowering ruling;
  • Boston: The ripples from Frazier [a federal court decision requiring that certain school-based personal injury claims must first be heard by the BSEA] continue to muddy the process.

Attorneys Joe Green and Melanie Jarboe commented on the second quarter’s cases, which included four decisions and ten rulings covering a wide variety of issues.  The Lincoln-Sudbury and Littleton decisions touched upon eligibility for special education and Lincoln-Sudbury also involved a claim for reimbursement at a non-special-education private prep school.  One decision involved transportation issues and their impact on a student’s right to a free appropriate public education (Ipswich) and another (Barnstable) concerned the appropriateness of an IEP for an in-district program and included a ruling regarding the sequestration of witnesses.

Two rulings (Berkshire Hills and Westford) covered joinder of state agencies such as the Department of Mental Health, the Department of Children and Families, and the Department of Developmental Services.  Three rulings (one in Framingham and two in Taunton, BSEA # 1600002) concerned the rights of non-custodial parents to file and maintain claims at the BSEA.  Other rulings discussed the requirement that a district provide transportation for students who lived part-time with a parent in another town (Salem), stay-put in the context of a partially rejected IEP (Taunton, BSEA # 1606007), a strong ruling for parents regarding the right to a publicly funded independent educational evaluation (Shrewsbury), and compensatory services in the context of an eligibility dispute (Marlborough).

By the commentators’ count, parents secured favorable rulings in five instances (Salem, Shrewsbury, Marlborough, Framingham, and Taunton, #1600002 – though this favorable ruling was quickly followed by a dismissal).  Districts won all four hearings (Lincoln-Sudbury, Ipswich, Barnstable, Littleton) and secured two favorable rulings (Barnstable and Taunton, #1600002).  Agencies were joined in two cases (Berkshire Hills and Westford), and one case involved a simple stay put order (Taunton, BSEA # 1606007).  As always, the hearing officers carefully considered parties’ claims and issued decisions that provide a wealth of information for districts and parents going forward.

We often advise parents and attorneys to cast their minds ahead before they act at any key decision point in the special education process and consider how their action might be viewed, and with what consequences, months later by an impartial adjudicator if things come to that pass.  One great way to learn about those eventual perspectives and consequences is to read BSEA decisions.  The commentaries that we post each quarter can help with that appraisal and might even help a reader avoid some mistakes as they make their way through the special education process.  Read at your leisure and enjoy!

Robert Crabtree and Joe Green are partners and Melanie Jarboe is an associate in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

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