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

Services from State Agencies for Students with Special Needs

In the quest for comprehensive services for students with special needs, parents and advocates should not overlook state agencies such as the Department of Mental Health (“DMH”), the Department of Developmental Disabilities (“DDS”), the Department of Elementary and Secondary Education (“DESE”), and the Department of Children and Families (“DCF”).  While some, like DMH and DDS, devote the vast majority of their resources to adults who are no longer eligible for services from school districts, all state agencies do provide services to school-age individuals.  Their services range from minimal to extensive and can include afterschool, respite, and even residential services. Each agency’s website and governing regulations (see below) describe their programs and services, as well as eligibility criteria and application procedures.          Continue reading

A Check-up on Observation Access

Observation of a student’s program or proposed program by parents or by their expert evaluators or consultants is a critical step in many cases for parents to make informed decisions about their child’s special educational services. In addition, an observation is a necessary ingredient of almost any case at the Bureau of Special Education Appeals (“BSEA”), as hearing officers will often discount a witness’s opinion about a district’s program when that witness has not observed the program about which s/he is testifying.

In light of these considerations, it is disheartening that school districts so frequently throw unreasonable (and illegal) conditions and delays into the paths of parents and their experts who seek to observe a program. Examples include requiring criminal record checks, despite the fact that an observer will be accompanied by a school employee and not alone with students at any point; attempts to require that an observer provide a copy of her notes following the observation; long delays (often with phone calls and emails unreturned) in communications about scheduling; arbitrary limits on the amount of time that can be spent observing and/or the classes and activities that may be observed; last minute cancellations or postponements; scheduling unusual and unrepresentative activities (e.g., showing a movie or administering an exam) for the time an observer is at the program; and so on. All of these sorts of tactics play havoc with the experts, whose availability is typically quite limited, and with parents who must negotiate time away from work to observe a program. Continue reading