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.
Special Education Today is a publication of the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.
Each quarter, KC&S attorneys provide commentary on BSEA decisions and rulings. Available now are the commentaries for the first quarter of 2019 (January – March), written by Melanie Jarboe, and the second quarter of 2019 (April – June), written by Alicia Warren. 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
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
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
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
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
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!
The Bureau of Special Education Appeals, or the BSEA, is part of the Division of Administrative Law Appeals and has original jurisdiction over all disputes regarding special education in Massachusetts (including claims based on Section 504 of the Rehabilitation Act, i.e., those that allege discrimination based on a child’s disability). The BSEA provides five avenues for dispute resolution in case of a disagreement between a parent and a school district.
This is the third in a series of five posts that will discuss the dispute resolution options at the BSEA.
If you cannot resolve your differences with the school district in an informal way, such as through the team process, through direct discussion with special education administrators or between attorneys, or in mediation, you can initiate litigation about the dispute by filing a hearing request with the BSEA. In Massachusetts, the BSEA is the forum where one must first litigate a special education dispute. The hearing process is commenced by filing a hearing request. Continue reading