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.

Issues in Special Education that Candidates Should Address

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. 

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

A New First Circuit Case: C.D. v. Natick Public School District

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

KCS First Quarter 2018 BSEA Commentary Is Now Posted. We Highlight A Strike Against Work Product Protection for Lay Advocates.

In a posting in July 2017, we celebrated a BSEA ruling that we hoped signaled the BSEA’s recognition of the importance of non-lawyer parent consultants as a resource to help parents – especially those without the means to engage attorneys – understand and make informed decisions in their advocacy for their children.  As we said in that post:

Continue reading

When Must Massachusetts School Districts Provide Copies of Reports? – An Interpretation and a Call for Revision

We often hear from parents who have asked their school districts to give them copies of evaluation reports as soon as the reports are completed, only to be told that they cannot have those reports until two days before the Team meeting at which the reports will be considered. Many districts will take this position even though the reports in question may have been completed weeks before that meeting. In our opinion, the districts’ position in those cases is flat wrong. Continue reading