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

A Superb Article on Endrew F. Closes Bill Crane’s Career as an Advocate for Children with Disabilities

Bill Crane has just posted an excellent article on the website for Mass Advocates for Children (“MAC”), analyzing and commenting on the ramifications of the U.S. Supreme Court’s Endrew F. decision on the required standard for services and placements under IDEA.    Continue reading

KCS Third Quarter 2016 BSEA Commentary Now Available!

Our commentary on the Bureau of Special Education Appeals (“BSEA”) decisions and rulings for the third quarter of 2016, written by KCS attorneys Eileen Hagerty and Alicia Parmentier for the Massachusetts Special Education Reporter, is now available on our website.  The commentary offers summaries of recent cases, along with useful tips for parents and practitioners. Continue reading

First Quarter 2015 BSEA Commentaries

Each quarter, attorneys from KC&S Special Education & Disability Law practice group write commentary on rulings and decisions from the Bureau of Special Education Appeals (“BSEA”).  The commentaries are published in the Massachusetts Special Education Reporter (“MSER”) and on our website.  Bob Crabtree’s commentary on decisions and rulings from the first quarter of 2015 is up on the KC&S website.   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

Fourth Quarter 2014 BSEA Commentaries

Each quarter, attorneys from KC&S Special Education & Disability Law practice group provide commentary on rulings and decisions from the Bureau of Special Education Appeals (“BSEA”).  The commentaries are published in the Massachusetts Special Education Reporter (“MSER”) and on our website.  Eileen Hagerty and Melanie Jarboe’s commentary on decisions and rulings from the fourth quarter of 2014 is up on the KC&S website. Please take a look!