Status of the Commonwealth Dispute Resolution Offices During the Covid-19 Shutdown

The dedication of our public servants in meeting the educational needs of our community is manifest in their reaction to the Covid-19 shutdown.

The Bureau of Special Education Appeals (“BSEA”), including the mediators and hearing officers, and the Problem Resolution System (“PRS”), are still open and functioning.

Concerning the BSEA:

  • Hearing requests and other pleadings should be filed via fax or mail so they can be docketed at the BSEA.
  • Instead of processing the hearing requests and sending out the initial hearing notice in one day, it may take two to three days.
  • Hearing officers can be contacted through email for general correspondence, scheduling issues and the like.
  • A party can request a continuance but they will not be automatically granted and will be addressed on a case by case basis.
  • The one thing the BSEA cannot do during the shutdown is to have face to face proceedings.
  • The BSEA is working with Catuogno Court Reporters to address technology issues so they can conduct hearings, pre-hearings and settlement conferences via video conferencing.
  • Reece Erlichman is still conducting settlement conferences remotely.
  • Lyndsay Byrne has postponed her retirement through June to help out.
  • If you have trouble communicating with a hearing officer, reach out to Reece Erlichman.

Mediations are going forward remotely. They are working out issues relating to sign-in sheets so the mediations comply with legal requirements and the associated commitment to keep the mediations confidential.

PRS is open and fully functioning in all respects:

  • Staff remain available daily to respond to inquiries and concerns. Everyone is working remotely, but regularly checking their email and voice mail. There should be little delay in response.
  • They are responding to inquiries submitted through the Compliance inbox and answering voice mails left on their main line.
  • PRS is accepting complaints filed with their office.
  • Due to the uncertainties of school closures, PRS is presently continuing to issue Requests for Local Reports and Letters of Finding which require the development of Corrective Action Plans (i.e., items that require a response on the part of the school district).
  • However, given the uncertainty of when schools will reopen, PRS is sending those letters with open response dates, i.e. asking that when school resumes, the administrator contact PRS to work together to set a response date.
  • Other correspondence that does not require a district response are being issued as per usual – letters finding the district in compliance, extensions, etc.
  • PRS’s ability to fully investigate concerns may be limited or delayed by the ability of the districts to access the materials and resources necessary to do their local investigation – such as accessing student records or other documents – which are only available to them onsite.
  • PRS remains committed to issuance of findings within 60 days, but if there is a change in the currently anticipated dates for school to resume, they may have to seek additional guidance as to the feasibility of meeting that goal on an ongoing basis.

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

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

BSEA Applies Work Product Protection to Non-lawyer Advocate Materials and Communications; The Ruling also Stands as a Caution on Therapeutic/Medical Records

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

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. Continue reading

Parents are awarded an out of district placement after proving that the district’s program for a child with Autism and Intellectual Disability does not provide FAPE

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