BSEA Issues New Standing Orders Addressing COVID-19-Related Issues

The Bureau of Special Education Appeals (“BSEA”), the state’s administrative body that handles special education cases, has recently issued Standing Orders to address the challenges presented by COVID-19. In order to comply with federal and state mandates requiring that special education timelines be maintained during this global pandemic, the BSEA has ordered that it will continue to hold resolution proceedings (which include Due Process Hearings). In light of the state’s closure and re-opening plans, these resolution proceedings shall be done remotely or virtually and not in-person until further notice. Any requests for a change in date of the resolution proceedings, location of the proceedings, and/or mediums from which to conduct these proceedings must be made to the individual Hearing Officer assigned to the case.

The BSEA’s new Standing Orders also allow for Hearing Officers and Mediators to accept submissions of correspondence or documents through email, in addition to paper (such as fax or mail), so long as all parties are copied on the electronic correspondence. Hearing Requests cannot be submitted via email and must still be submitted via mail, fax, or hand-delivery.

COVID-19 has had an adverse impact on many parts of our lives, and it has also disrupted administrative proceedings for special education cases in Massachusetts, which in the past were exclusively conducted in-person. These new Standing Orders provide a necessary and welcome alternative to in-person resolution proceedings during this time. The BSEA’s Standing Orders can be found here: https://www.mass.gov/orgs/bureau-of-special-education-appeals.

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

Reversing a FAPE Freefall? U.S. DOE Upholds Students’ Rights to Special Education During Coronavirus Crisis

On March 21, 2020, the United States Department of Education (“USDOE”), through its Office of Civil Rights (“OCR”) and Office for Special Education and Rehabilitative Services (“OSERS”), issued a Supplemental Fact Sheet, “Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities.”  This guidance provides a necessary corrective to earlier guidance issued by USDOE on March 12, 2020 and by the Massachusetts Department of Elementary and Secondary Education (“DESE”) on March 17, 2020. Continue reading

Issues in Special Education that Candidates Should Address

We are posting a link here to an article written by Bob Crabtree, of counsel with KC&S, regarding some of the critical issues surrounding special education and disability rights that candidates running for legislative and executive offices should address.  Though IDEA is a federal law, states can establish increased requirements for special education and these are therefore issues to discuss with candidates for state office as well.  The issues discussed in the article include: inadequate special education funding; the weakening of required standards governing IEPs; judicial decisions about recovery of attorneys’ fees and related costs; and the burden of proof in special education proceedings. 

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

New First Circuit Opinion Elucidates Exhaustion Requirement for School-Related Claims Under Sections 504 and 1983

The First Circuit has recently clarified the exhaustion requirements for school-related Section 504 and Section 1983 claims in light of Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743 (2017).  In Doucette v. Georgetown Public Schools, #18-1160 (1st Cir. Aug. 26, 2019), a divided panel reversed a District Court decision that dismissed parents’ Section 504 and Section 1983 claims for failure to exhaust IDEA’s administrative process. Continue reading

Providing Notice of a Unilateral Placement

Pursuant to both state and federal law, students with special needs are entitled to a free appropriate public education (“FAPE”).  If parents are dissatisfied with the appropriateness of the school district’s programming, parents have the right to place a student in a private school program at their own expense and seek reimbursement from the district.  This is called making a “unilateral placement.”  Whether or not a lawsuit seeking reimbursement will ultimately be successful depends on a number of complex factors that are beyond the scope of this post, but it is important to provide adequate notice to the school district of a student’s new placement. Continue reading

House 518 Would Require Transportation and Increased Funding for Recovery High Schools – a Proven Resource in a Troubled Time

Readers may recall a number of posts we have entered over the past few years regarding Recovery High Schools. Massachusetts currently has five such high schools – in Boston, Brockton, Beverly, Worcester and Springfield – and they have each proven to be an excellent support for high school age students who are struggling to disengage from drug and/or alcohol dependence/abuse. A Recovery High School’s ability to provide a solid high school education along with appropriate services and supports to such students, in the company of peers who are struggling with the same issues, is critical to the success of this resource. The alternative – returning to the student’s home high school – is all too often disastrous, as a student’s fragile beginning toward recovery can so easily be crushed by a school district’s lack of supports while a user subculture of peers eagerly draws the student back into its mix. Continue reading

A New First Circuit Case: C.D. v. Natick Public School District

In a recent decision, C.D. v. Natick Pub. Sch. Dist., No. 18-1794 (1st Cir. May 22, 2019), the First Circuit Court of Appeals grappled with the legal standards at the heart of most special education disputes – namely, the entitlement of a student with special needs to a “free appropriate public education” (FAPE) in the “least restrictive environment” (LRE).  The First Circuit’s decision followed the Supreme Court’s decision in Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017), which, for the first time since 1982, squarely considered the contours of a FAPE.  For an in-depth discussion about Endrew F., please see our previous post here. Continue reading