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

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

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

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

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

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

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

Recovery High Schools – Legislation to Add Transportation Now in the Works

Readers may recall our posting in June 2014 regarding the need to fix a serious omission in legislation that supports the establishment of “recovery high schools” for students recovering from alcohol or other kinds of substance dependence or addiction. The four high schools that have so far been developed with the help of that legislation – in Boston, Beverly, Brockton, and Springfield – provide a powerful resource for students who, after achieving some hard-won success in recovery programs, would otherwise return to the very environments where they fell into trouble in the first place. Because the legislation has not included transportation, however, students who cannot find a way to get to and from those schools cannot access the great services they offer. Continue reading

The DESE is Seeking Comments on Proposed Restraint Regulations

In 2001, the Massachusetts Department of Elementary and Secondary Education (then known as the Massachusetts Department of Education) promulgated regulations concerning the use of physical restraints on students.  603 CMR 46.01.  The stated purpose of the regulations was to “ensure that every student participating in a Massachusetts public education program is free from the unreasonable use of physical restraint.”  The introductory language to the regulations continued: “Physical restraint shall be used only in emergency situations after other less intrusive alternatives have failed or been deemed inappropriate, and with extreme caution.” The regulations addressed the use of physical and mechanical restraints, the prohibition of “seclusion restraints,” the training of school staff in the use of restraints, and the requisite reporting of the administration of restraints to school administration and families. Continue reading