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
Category Archives: BSEA
Work Product Protection: Fishing For Parent Consultants’ Files at the BSEA Should Be Off Limits
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
Fourth Quarter 2014 BSEA Commentaries
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!
Discovery of Information about Proposed Peers at the BSEA: A Practice Note
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
Thirty Days, Ninety Days, or Three Years: What is the Statute of Limitations for Parents to File for Attorneys’ Fees Under IDEA?
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
New DESE Advisory: Charting a Course for Charter School Students Who May Need an Out-of-District Program
The Department of Elementary and Secondary Education (“DESE”) recently released an advisory concerning the responsibilities of charter schools to special education students. Although charter schools have been a feature of the Massachusetts school landscape for over twenty years, there are still misunderstandings about charter schools’ obligations to their students who require special education. The DESE advisory addresses some of these issues. It focuses on a Massachusetts special education regulation found at 603 CMR 28.10(6)(a), which covers the responsibilities of the charter school and the student’s public school district (“district of residence”) in the event that a student with special needs may need to leave the charter school in order to obtain an appropriate education. (This regulation also covers special education students who attend vocational schools, Commonwealth of Massachusetts virtual schools, and schools attended through the METCO program. However, the advisory targets charter schools specifically.) Continue reading
A Transition Plan at the BSEA
We recently learned that one of the BSEA’s most experienced hearing officers, William Crane, will be retiring within a short few months (June 26, 2014). The BSEA is soliciting applications for the position. We can only hope that applicants will bring a combination of experience, knowledge of the field, intellect and compassion comparable to those qualities that have characterized Bill’s work at the position. Continue reading
Update on DSM-5: IEP Eligibility for Students with Autism or Social Communication Disorders
We posted a comment at the end of May noting that the new DSM-5 definitions substituting “Autism Spectrum Disorder” for a number of autism-related disorders such as Asperger Syndrome do not affect the broader definitions of disabilities under IDEA or Massachusetts special education law. We urged parents and advocates to challenge any school districts that attempt to use the DSM-5 as a basis on which to deny an IEP to a child with a disability falling under this type of impairment. Continue reading
Seeking Services: Tips for Preparing for IEP Team Meetings and Beyond
Special education law explicitly requires school districts to meet the unique learning needs of students with disabilities to prepare them to succeed as adults in further education, employment and independent living. This is particularly important as students reach transition planning age, beginning at age 14 in MA. Parents and advocates often face challenges when trying to ensure that school districts address students’ individual academic, social, emotional, and behavioral needs. Continue reading
Due Process Hearings at the BSEA
The Bureau of Special Education Appeals, or the BSEA, is part of the Division of Administrative Law Appeals and has original jurisdiction over all disputes regarding special education in Massachusetts (including claims based on Section 504 of the Rehabilitation Act, i.e., those that allege discrimination based on a child’s disability). The BSEA provides five avenues for dispute resolution in case of a disagreement between a parent and a school district.
This is the third in a series of five posts that will discuss the dispute resolution options at the BSEA.
If you cannot resolve your differences with the school district in an informal way, such as through the team process, through direct discussion with special education administrators or between attorneys, or in mediation, you can initiate litigation about the dispute by filing a hearing request with the BSEA. In Massachusetts, the BSEA is the forum where one must first litigate a special education dispute. The hearing process is commenced by filing a hearing request. Continue reading