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:
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
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
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
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
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
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
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
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
An elegantly written and wisely pragmatic new book – Parents Have the Power to Make Special Education Work (Jessica Kingsley Publishers, 2014) – has been published this month to help parents navigate the special education system on behalf of their children. The book was written by parents, Judith Canty Graves and Carson Graves, who learned the ropes both by advocating successfully for their own child from preschool through high school, and also by engaging extensively with many other parents and professionals along the way to learn the wider and deeper elements of the process. Their book carries the same gently persistent spirit, judicious sense of proportion, and sharp intelligence that marked their advocacy for their child, and the lessons they learned should help all parents of children with learning challenges – both those who are new to the process and those who feel frustrated and powerless after suffering multiple bureaucratic defeats along the way – avoid many common mistakes. Continue reading
Special Education Today 