A Special Education Law Blog from the Attorneys at Kotin, Crabtree & Strong, LLP.The Special Education & Disability Rights practice group at KC&S advises and represents families of students with disabilities in communities across Massachusetts.
You won’t want to miss our commentary on the Bureau of Special Education Appeals (“BSEA”) decisions and rulings for the third quarter of 2018, written by KCS attorneys Eileen Hagerty and Alicia Warren for the Massachusetts Special Education Reporter. The commentary is available on our website. It offers summaries of recent cases, discussion of trends, and practical pointers for parents and practitioners.
As usual, the BSEA dealt with a wide range of subjects during the third quarter (and in two earlier decisions, not previously released, that are included in this commentary). Among the significant topics discussed in the cases and commentary:
Bay Path Regional Vocational Technical High School: A school district’s rigid attendance policy, as applied to a student with chronic migraines, discriminated against him on the basis of disability and therefore violated Section 504.
Worcester Public Schools and Westborough Public Schools: Emergency terminations by separate day schools are becoming more common in our current climate. These decisions help to illuminate when and how a public or private day school can invoke an emergency to terminate a student’s enrollment.
Taunton Public Schools: This case provides a primer as to what districts ought not to do in disciplining students with disabilities, particularly with regard to manifestation determination review requirements.
Silver Lake Regional School District: This decision helps to explain when residential placement will and will not be ordered, distinguishing between educational reasons and those related to the student’s and family’s safety.
September 2019 will be the 45th anniversary of the effective date of the special education reform act known as “Chapter 766.” (Although Chapter 766 was adopted in 1972, its full implementation was delayed for two years to allow educators and agencies time to prepare.)
Five years ago we checked in with readers to invite their comments on whether the stated purposes of Chapter 766 were being met. Comments from some of the advocates and political leaders who were behind the legislation in 1972 were eloquent, insightful and heartfelt. They included, for example, the following from Martha Ziegler, a great civil rights leader whose work in 1972 organizing the widely disparate interest groups of the world of disability advocacy into a cohesive lobbying force was a key factor in the success of the movement, as was her later work founding and presiding over the Federation for Children With Special Needs.
Celebrating the enormous changes she had witnessed in the general culture’s attitudes toward those with disabilities, Ms. Ziegler described her then 50-year old daughter’s experience having to undergo breast surgery and the beautifully accepting hospital staff’s interactions with Martha and her daughter, saying, “All have been totally accepting, understanding, and sympathetic with her. Some even were eager to learn more about autism! As I have thought about this situation, I realize how much our world has changed in the last 40 years. Before 766 (and other changes in state and federal law) most of the people serving Mary Ann in this challenge would have kept social distance from her. Further, they would have had no idea how to communicate with her or me and it would not have occurred to them that Mary Ann should participate in the crucial decisions about her treatment.”
Another comment was offered by David Bartley who had been the Speaker of the House in 1972. Mr. Bartley had joined Mike Daly, the House Chairman of the Committee on Education at the Mass. Legislature to co-sponsor what became Chapter 766. Looking back 40 years, Mr. Bartley noted that he, like Representative Daly, regarded their work in bringing Chapter 766 into being as one of their “proudest achievements.” He said: “Mike and I were both teachers before we entered politics. We were each intimately aware of some of the shortcomings within our public education system – especially as that system neglected children with disabilities – and it was in the special education reform act that we each felt we’d best realized the goals we shared to use the power of our offices to improve that system.” Mr. Bartley went on to note: “As for how well the purposes of 766 have been achieved, I believe that in large part they have done so beautifully, with great numbers of students who, before Chapter 766, would likely have fallen through the cracks now served with fine-tuned teaching and supports. At the same time, for many reasons – fiscal, political and otherwise – all too many children are still under-served across the state, and some of the basic systems we put in place to hold school systems accountable have proven effective primarily for families with means and not so much for those without.”
Now, five more years into the life of Chapter 766, we again invite parents, school professionals – both private and public -, advocates and experts to contribute their thoughts as they review the purposes that were outlined in the legislation that became Chapter 766. We look forward to seeing comments from all quarters. Succinct and thoughtful contributions are greatly welcomed; lengthy diatribes, not so much!
What follows was written as a purpose preamble for Chapter 766. To what extent have the purposes described here been achieved and where have we fallen short … so far?What say you?
The General Court [note: this term means the legislature of Massachusetts] finds that past development of special education programs has resulted in a great variation of services to children with special needs with some children having a greater educational opportunity than others in less favored categories or environments. The General Court further finds that past methods of labeling and defining the needs of children have had a stigmatizing effect and have caused special education programs to be overly narrow and rigid, both in their content and their inclusion and exclusion policies.
In the light of the policy of the commonwealth to provide an adequate, publicly supported education to every child resident therein, it is the purpose of this act to provide for a flexible and uniform system of special education program opportunities for all children requiring special education; to provide a flexible and non-discriminatory system for identifying and evaluating the individual needs of children requiring special education; requiring evaluation of the needs of the child and adequacy of the special education program before placement and periodic evaluation of the benefit of the program to the child and the nature of the child’s needs thereafter; and to prevent denials of equal educational opportunity on the basis of national origin, sex, economic status, race, religion, and physical or mental handicap in the provision of differential education services.
This act is designed to remedy past inadequacies and inequities by defining the needs of children requiring special education in a broad and flexible manner, leaving it to state agencies to provide more detailed definitions which recognize that such children have a variety of characteristics and needs, all of which must be considered if the educational potential of each child is to be realized; by providing the opportunity for a full range of special education programs for children requiring special education; by requiring that a program which holds out the promise of being special actually benefits children assigned thereto; and by replacing the present inadequate and anti-equalizing formula for distribution of state aid for special education programs with an equalizing one which encourages cities, towns and regional school districts to develop adequate special education programs within a reasonable period of time.
Recognizing that professional services and resources must be made available to cities, towns and regional school districts on a regional basis if this act is to be implement successfully, and within a reasonable period of time, this act strengthens and regionalizes the division of special education in the department of education and provides for and urges meaningful cooperation among agencies concerned with children with special needs.
Recognizing, finally, that present inadequacies and inequities in the provision of special education services to children with special needs have resulted largely from a lack of significant parent and lay involvement in overseeing, evaluating and operating special education programs, this act is designed to build such involvement through the creation of regional and state advisory committees with significant powers and by specifying an accountable procedure for evaluating each child’s special needs thoroughly before placement in a program and periodically thereafter.
We add here that one of Chapter 766’s most important and, indeed, revolutionary features was its creation of a due process system under which disputes between parents and school districts could be decided by impartial hearing officers. (Federal special education law followed that model a short time later in the Education of All the Handicapped Children Act (now “IDEA”).) That provision was meant to create an evidence-based system by which an objective and impartial adjudicator could be educated about a child’s needs and the options for meeting those needs under the standards of the law, decide what services and placement s/he is entitled to under that law, and issue orders to ensure that s/he is provided with those services and placement.
Please feel free to comment on the due process features of Chapter 766 along with any of the other purposes described in the Purpose Preamble as we consider together the evolution and, by implication, the future of this nearly 45-year-old revolution.
The Bureau of Special Education Appeals’ (“BSEA”) statistics for Fiscal Year 2018 and the overview given of the year by BSEA Director Reece Erlichman provide interesting insights not only into the invaluable work of the BSEA, but also into some trends regarding special education disputes in the Commonwealth.
As has been consistent since such statistics have been compiled, the number of rejected IEPs again increased.
FY18 – 11,900
FY17 – 11,400
FY16 – 10,800
FY15 – 10,280
While the number of hearing requests declined for the second year in a row, that number is close to prior years with the exception of a significant spike in FY16.
FY18 – 481
FY17 – 495
FY16 – 568
FY15 – 492
Matters going through full hearings resulting in written decisions were consistently around 50 per year until they declined significantly after FY13. Last year yielded the lowest number of full hearings (13) since the early days of the BSEA. The consensus is this is attributable to two factors. First, and most significantly, is the number of matters going to settlement conferences and the effectiveness of Reece Erlichman in getting those matters resolved. In FY18, there were 78 settlement conferences with 72 of those matters settling that day and several of the others settling thereafter. The other factor was the use of pre-trial motions to resolve matters completely or position them for resolution.
FY18 – 13
FY17 – 22
FY16 – 23
FY15 – 18
FY14 – 25
FY13 – 52
Of the 13 full hearings, the parents prevailed in only 1. The parents were represented by counsel in that matter. The school district fully prevailed in 11 of the cases. In those, parents were represented by counsel in 2, an advocate in 1, pro se in 7, and did not participate in 1. The remaining full decision involved a private school.
Since BSEA filings are confidential, the only publicly accessible information about those is what can be gleaned from the written decisions about a relatively small number of them. Reece Erlichman provided insight into some of the trends reflective in the bulk of the filings. There was an increase in the number of challenges to the adequacy of manifestation determinations in discipline cases. There were increases in cases involving only 504 issues and cases involving students who are transgender. There are also matters involving METCO terminating students and what the obligation of the host school district is in those circumstances.
A full review of the BSEA statistics from the past 10 years can be found here.
Some significant changes are coming to the BSEA in 2019. As will be detailed later, after a review by the Federal Office of Special Education Programs (“OSEP”), the BSEA has proposed new hearing rules, many of which are expected to be implemented in 2019. These will include the elimination of Advisory Opinions and the elimination of “off calendar” status. In addition, on January 14, 2019, the BSEA will relocate from Congress Street in Boston to 14 Summer Street, 4th Floor, Malden.
We have represented numerous children and adults with disabilities who have been abused by caregivers in their residential schools and group homes.On occasion, the perpetrators of that abuse have been found to have previous allegations of abuse substantiated by the Disabled Person Protection Commission (DPPC). While there has been an accessible registry of individuals with criminal charges maintained by the Commonwealth’s Department of Criminal Justice Information Services, known as CORI, there has been no corresponding registry for DPPC findings.
Dana’s Law/Nicky’s Law (H4026 and S2606) are currently under consideration by the Massachusetts Legislature. If enacted, the legislation would establish a mandatory registry for those individuals working in DDS-funded programs who are the subject of substantiated reports of abuse and would prevent DDS and DDS providers from hiring individuals whose names appear in the registry.
The law requires that the state’s early literacy expert panel, which was created in 2012 to help ensure all students in the Commonwealth read proficiently by the end of third grade, include a member or representative of a “dyslexia advocacy organization.” This panel not only gives the dyslexia community a seat at the table, but also now has an additional mandate to make recommendations regarding action steps to implement researched-based recommendations for student screening and teacher preparation methods regarding dyslexia and other reading disabilities. Estimates of the number of students with dyslexia range between five and twenty percent and early identification and remediation greatly benefits those students.
While this legislation caps a successful and long effort on the part of many parties, diligence is still required to ensure that comprehensive screening and remediation are put into practice.
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. … We hope and trust that her reasoning will be adopted by her colleagues at the BSEA.
Unfortunately, our hopes for the Dorian analysis to be adopted in other BSEA decisions have not been realized, as readers of our commentary on the BSEA’s first quarter decisions and rulings for 2018 will see. Hearing Officer Figueroa’s ruling in Duxbury Public Schools, BSEA #1803977, 24 MSER 23 (March 2018), denying work product status to an advocate’s records, now stands as the unfortunate rule by default, constricting the ability of parents and their consultants to speak freely without worrying about the likelihood of school districts later fishing for the content of those communications with subpoenas and discovery requests at the BSEA. Since one hearing officer’s analysis is not legally binding on another, and since assignments of hearing officers to cases filed at the BSEA are made at random, parents and parent consultants must proceed on the assumption that their communications will be open to the searches of school attorneys, even though a hearing request could be assigned to a hearing officer who would apply a more protective approach.
The work product doctrine was noted and affirmed in the U. S. Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495, 511 (1947). While that case concerned certain attorneys’ records that were not subject to attorney-client privilege, the doctrine has since been codified and applied to other persons in the role of expert consultants, a category that certainly includes those who guide parents through the special education process as parent consultants. The reasoning of the Supreme Court in support of work product protections clearly applies with the same force to the communications of such non-lawyer advocates as it does to lawyers. Here is what the Hickman court said:
Proper preparation of a client’s case demands that a lawyer assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories, and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.
The IDEA’s many ambiguities afford opportunities for adjudicators to interpret and apply its dictates in accordance with their understanding of the governing purposes of the statute. We always hope that judges’ and hearing officers’ interpretations of ambiguous standards and procedural elements will advance the cause of students whose mental and/or physical challenges place them chronically behind their less challenged peers – that is, after all, the founding mission of IDEA and, here in Massachusetts, of Chapter 766. That is not, however, what has happened in the Duxbury ruling.
Our first quarter commentary outlines several other decisions and rulings that clearly demonstrate the need for parents to have strong expert guidance as they navigate the process, a need to which Duxbury pays little heed.
We can only hope now that later developments at the BSEA will provide opportunities for the tide to shift – be it through BSEA or DESE rule-making or by individual decisions – on this critical point of practice and procedure. Congress and our legislature intended informed parent participation to be a key element in special education process; a ruling that allows school districts to fish among the communications between parents and their advisors and thereby chill those communications undermines that aim.