The Bureau of Special Education Appeals (“BSEA”), the state’s administrative body that handles special education cases, has recently issued Standing Orders to address the challenges presented by COVID-19. In order to comply with federal and state mandates requiring that special education timelines be maintained during this global pandemic, the BSEA has ordered that it will continue to hold resolution proceedings (which include Due Process Hearings). In light of the state’s closure and re-opening plans, these resolution proceedings shall be done remotely or virtually and not in-person until further notice. Any requests for a change in date of the resolution proceedings, location of the proceedings, and/or mediums from which to conduct these proceedings must be made to the individual Hearing Officer assigned to the case.
The BSEA’s new Standing Orders also allow for Hearing Officers and Mediators to accept submissions of correspondence or documents through email, in addition to paper (such as fax or mail), so long as all parties are copied on the electronic correspondence. Hearing Requests cannot be submitted via email and must still be submitted via mail, fax, or hand-delivery.
COVID-19 has had an adverse impact on many parts of our lives, and it has also disrupted administrative proceedings for special education cases in Massachusetts, which in the past were exclusively conducted in-person. These new Standing Orders provide a necessary and welcome alternative to in-person resolution proceedings during this time. The BSEA’s Standing Orders can be found here: https://www.mass.gov/orgs/bureau-of-special-education-appeals.
The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), signed into law on March 27, 2020, contains a provision allowing the U.S. Secretary of Education, Betsy DeVos, to recommend that Congress waive certain requirements during the COVID-19 pandemic, including requirements under the Individuals with Disabilities Education Act (“IDEA”). Many attorneys and advocates for students with disabilities feared that the Secretary would seek congressional approval to excuse school districts from complying with all of IDEA’s provisions during the current crisis. Such approval, if granted, could have relaxed IDEA’s substantive obligations, such as the requirement that school districts provide a free appropriate public education (“FAPE”) to students with disabilities, during periods of school closure and/or could have tolled or extended IDEA’s procedural obligations, such as the requirements that district perform evaluations and re-evaluations within specific timeframes. Continue reading →
We are posting a link here to an article written by Bob Crabtree, of counsel with KC&S, regarding some of the critical issues surrounding special education and disability rights that candidates running for legislative and executive offices should address. Though IDEA is a federal law, states can establish increased requirements for special education and these are therefore issues to discuss with candidates for state office as well. The issues discussed in the article include: inadequate special education funding; the weakening of required standards governing IEPs; judicial decisions about recovery of attorneys’ fees and related costs; and the burden of proof in special education proceedings.
Neither federal law nor Massachusetts state law address the question of whether parents and/or legal guardians may be able to record IEP meetings. However, the Office of School Education Programs (“OSEP”) (which is part of the U.S. Department of Education) has issued some guidance on this issue. Continue reading →
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 →
In a recent decision, C.D. v. Natick Pub. Sch. Dist., No. 18-1794 (1st Cir. May 22, 2019), the First Circuit Court of Appeals grappled with the legal standards at the heart of most special education disputes – namely, the entitlement of a student with special needs to a “free appropriate public education” (FAPE) in the “least restrictive environment” (LRE). The First Circuit’s decision followed the Supreme Court’s decision in Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017), which, for the first time since 1982, squarely considered the contours of a FAPE. For an in-depth discussion about Endrew F., please see our previous post here.Continue reading →