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. Continue reading
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. Continue reading
A Brookline family has just prevailed in a decision issued by the BSEA’s newest hearing officer, Amy Reichbach, finding that the district’s program did not provide a FAPE and ordering Brookline to place the student at the RCS Learning Center in Natick. In Re: Jacqueline, BSEA #1408578. Attorney Dan Heffernan of our firm represented the family in this close, complex, and hard-fought case. The decision highlights many of the types of issues that frequently arise where districts struggle to address the severe and multifaceted needs of children who require intense, systematic, consistent, and comprehensive services and need to be with peers who will provide for mutual learning and progress. Districts do their best to meet such needs in most cases, but the lack of a sufficient cohort of students with comparable needs and the incompatibility of the normal structure of a regular school setting – generally open and flexible, expecting growing independence from all students – often make it difficult for a severely involved child to make meaningful progress. Continue reading
Some school districts have increasingly been seeking production of parent consultants’ (non-lawyer advocates’) files in the discovery process at the BSEA. We believe that most documents generated by parent consultants should be shielded from disclosure as irrelevant and/or as subject to the doctrine of “work product.” We are posting here an excerpt from a comment that we recently published in the Massachusetts Special Education Reporter (“MSER”) in which we took the occasion to highlight the need to protect consultants’ work product. Parents’ access to consultants who can help them navigate the complexities of special education process is essential, we think, to the integrity and effectiveness of the system; that access should not be chilled by concerns over the possibility of school districts and their attorneys picking through their consultants’ files if litigation ensues. (Our full commentary on BSEA decisions and rulings in the first quarter of 2015 is published at 21 MSER C-1 and may be read on our firm’s website. Continue reading
Each quarter, attorneys from KC&S Special Education & Disability Law practice group provide commentary on rulings and decisions from the Bureau of Special Education Appeals (“BSEA”). The commentaries are published in the Massachusetts Special Education Reporter (“MSER”) and on our website. Eileen Hagerty and Melanie Jarboe’s commentary on decisions and rulings from the fourth quarter of 2014 is up on the KC&S website. Please take a look!
Why proposed peer group information is essential in BSEA proceedings:
The capacity of a school district’s program to meet the needs of a student with a disability often depends heavily on the learning, behavioral, and social communication needs of the peers with whom the district proposes to group the student. An inappropriate classroom cohort can significantly undermine a student’s ability to make effective progress. For example, suppose that a child of average intelligence who has severe dyslexia requires placement in small classes where all core subjects are taught with a specialized language-based methodology. Placing that student in a classroom with students who have different disabilities (such as emotional or intellectual impairments) that require different methodologies would not be appropriate. Continue reading
If parents prevail at the Bureau of Special Education Appeals, they may file in federal court to recover their “reasonable attorneys’ fees.” 20 U.S.C. §1415(i)(3)(B). While it is clear under IDEA that parents must bring the claim at the BSEA for denial of FAPE within two years of the district’s alleged violation, the federal statute does not say when a claim for attorneys’ fees must be filed. Three federal district court judges in Massachusetts have considered this issue with different results. Continue reading