In a Ruling in the matter of In Re: Dorian issued on July 20, 2017, BSEA Hearing Officer Amy Reichbach held that the communications and materials of non-lawyer special education advocates are subject to the protections of the work product doctrine. The hearing officer reasoned that such protection is necessary in order to minimize the potential chilling effect that discovery of such information would have on parents’ and their consultants’ ability to communicate freely when special education litigation is anticipated. The hearing officer’s analysis vindicates arguments that parent attorneys and advocates have advanced for some time now (see, e.g., our posting on the subject in June 2015). We hope and trust that her reasoning will be adopted by her colleagues at the BSEA.
Relying largely on the provisions of a Massachusetts Rule of Civil Procedure that protects documents “prepared in anticipation of litigation … by or for [a] party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent)” from wholesale disclosure in discovery, the hearing officer noted:
This interpretation of work product protection in the context of BSEA proceedings serves the important policy goals underlying the provision; to exclude advocates could have a chilling effect on communication among parents, their experts, and advocates; and hamper advocates’ ability to communicate in writing with their clients and maintain records of their work.
The Ruling is careful to note that work product protection is by no means absolute. The hearing officer stated that the doctrine does not protect communications that were not prepared in anticipation of litigation, such as, for example, communications around “exploring and securing an alternate placement” for the student. Moreover, the hearing officer (tracking the language of the rule) explained, the protection may be set aside if the school district can prove that it has “substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Importantly, she noted that even if a district can demonstrate a substantial need and undue hardship, such that discovery must go forward, disclosure will exclude the “mental impressions, conclusions, opinions, or legal theories of [the advocate] concerning the litigation.”
When, one might ask, is litigation “anticipated” in the context of an advocate’s work with parents in the special education process, thereby triggering the protection of the work product doctrine? We would argue for a liberal interpretation of the concept. In most cases, when parents seek the assistance of an advocate, they do so because a serious disagreement has arisen with their district over their child’s needs and the services and programs that are in place or being proposed. In the interests of meeting students’ needs as quickly as possible, IDEA provides for an exceptionally short process if disagreements cannot be resolved informally. In that context, one could reasonably conclude that nearly every instance in which an advocate is engaged involves, at least to some degree, anticipation of litigation. To carry out their tasks effectively and provide intelligent guidance, advocates must consider and advise parents about the various available dispute resolution procedures, including the due process hearing, and about the potential impact of every step the parents take on their eventual ability to carry the burden of proof at hearing. Consideration of the legal standards that apply under IDEA, the critical importance of up-to-date credible and well-founded expert testimony, the timelines and other procedural pitfalls that apply to the actions of parents and their districts – these and other considerations are all inextricably tied to the workings of due process under IDEA. It is difficult to imagine an advocate-parent relationship that does not, at least to some degree, involve discussion of these subjects. Thus, many if not most advocate-parent communications will be carried out “in anticipation of litigation.”
In a second area, this Ruling discusses the scope of a student’s protection against disclosure of records pertaining to his/her emotional health. We and other attorneys and advocates have frequently agonized with our clients over the potential impact on a student of having his/her communications with a therapist disclosed to others – and to an adverse party at that. This Ruling indicates that once the student’s emotional health becomes an issue in a BSEA proceeding, the psychotherapist-patient privilege is waived. The hearing officer surrounded her order to produce psychiatric records with conditions strictly limiting who can see the records (only those whose review of the student’s medical history or mental health is necessary to the district’s defense) and requiring that any copies of the records be destroyed at the conclusion of a hearing.
This is an unfortunate “Catch-22” for parents and students who must raise issues about the student’s emotional and/or other medical needs as part of their claim at the BSEA. For now, we can only advise that therapists, when generating and maintaining records, be constantly aware of the potential for disclosure notwithstanding the patient’s privilege; that they advise parents and students of the possibility of disclosure if/when the student’s health should become an issue in litigation of any kind; and, most critically, that they be well-prepared to work with the student around the emotional consequences the student may experience if and when the records must be disclosed to an adverse party.
We have posted this note quickly today in light of the importance of both key aspects of the Ruling for the practices of advocates and of therapists in IDEA due process. Each part of the Ruling holds the potential for more questions and arguments as parties wrestle with its ramifications. We are gratified to see the essential work of non-lawyer advocates and other non-lawyer consultants recognized as falling within the scope of the work product doctrine. While we acknowledge the hearing officer’s rationale in her ruling on patient-therapist communications, we caution all concerned to pay sensitive attention to what is frequently a vulnerable therapeutic relationship and to limit any disclosures to the barest minimum that is consistent with the needs of the process.
Robert Crabtree serves of counsel in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.
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