Category Archives: Dispute Resolution

COVID-19 Compensatory Services: What Are They and Will Your Child Receive Them?

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Compensatory education is a well-established remedy for deprivations of special education services, recognized in Massachusetts at least since Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184 (1st Cir. 1993).  The purpose behind compensatory relief is to make the student whole by providing services that place the student in the position that he or she would have occupied if the services been delivered in a timely manner.  The remedy is an equitable one that has been characterized as broad and flexible.  In some cases, school districts (or, when disputes occur, courts, administrative hearing officers, and state complaint agencies) have used a “one-for-one” approach, calculating the hours or days of services that the student missed and ensuring that the student receives compensatory services of the same type and in the same amount.  At other times, compensatory services may differ in type or amount from those the student missed, with the goal of redressing the deprivation by meeting the student’s current needs. Continue reading →

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

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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 →

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

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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 →

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

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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 →

Work Product Protection: Fishing For Parent Consultants’ Files at the BSEA Should Be Off Limits

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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 →

Thirty Days, Ninety Days, or Three Years: What is the Statute of Limitations for Parents to File for Attorneys’ Fees Under IDEA?

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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 →

Due Process Hearings at the BSEA

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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 →

Mediation at the BSEA

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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).  The BSEA provides five avenues for dispute resolution in case of a disagreement between a parent and a school district.   

This is the second in a series of five posts that will discuss the dispute resolution options at the BSEA.

You have just rejected your child’s IEP in whole or in part. Now what?

The school district must notify the BSEA within five calendar days that you have rejected your child’s proposed IEP, placement, or finding of ineligibility for special education. Shortly thereafter, you will receive a notice from the BSEA informing you of your options, which include mediation. Continue reading →

Take a Look for Yourself

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The Wisdom of, and Right to, Observe Your Child’s Current or Proposed Special Education Program

We have all had experiences in our lives where things look different on paper than they do in reality or purported eyewitness accounts of some event turn out to be less than accurate or complete.  As many of us well know, the same can be true of IEPs and progress reports in their description of a student’s special education program.  In 2009, Massachusetts enacted a law to strengthen the right of parents and their evaluators to observe any current or proposed program for their child.  Massachusetts law (M.G.L. ch. 71B, §3; 603 CMR 28.07(1)(a)(3) accords parents, and by extension, their evaluators or consultants, a reasonable opportunity to observe their child’s program or proposed program. The rationale for the law, as delineated in the first sentence of the statute is: “To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child…”  Continue reading →

Facilitated IEP Meetings at the BSEA

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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).  The BSEA provides five avenues for dispute resolution in case of a disagreement between a parent and a school district. 

This is the first in a series of five posts that will discuss the dispute resolution options at the BSEA.

Your child’s annual IEP meeting is coming up and you believe your voice will not be heard or it may get contentious due to past conflict, current controversy, or your future wishes for your child. You question your own ability to keep the meeting on track and feel as though a neutral third party’s presence may be beneficial. What options do you have?

One option, which can be requested by either a parent or a school district, is to ask a facilitator from the BSEA to help with a difficult IEP meeting. Both parties must agree to the facilitator’s presence and the service is free of charge. Continue reading →