Attorney Wong Obtains Favorable Discovery Ruling

Attorney Wong recently prevailed in a discovery dispute at the Bureau of Special Education Appeals ("BSEA").  The BSEA does not always publish its rulings, so this Order provides some insight into prehearing motion practice at the BSEA.  The Ruling, In Re: Flavio & Beverly Public Schools BSEA #18-10763 (Byrne, 2018) can be read here.

The Ruling was issued in response to the District's request for a protective order.  The Parents believe the school's program for their child is not appropriate, and requested, among other things the redacted IEPs of the other students in their child's school program.  The District argued that the Parents' request was intrusive, irrelevant and overly burdensome.   The District further contended that the production of sensitive information about other students would violate the privacy rights of those students without a countervailing benefit to the student (given the pseudonym "Flavio" by the hearing officer." 

Attorney Wong successfully argued that information about the student's cognitive, educational and behavioral characteristics were critical to their assessment of the appropriateness of the District's program.  In addition, Attorney Wong, relaying on a "long line of consistent decision" at the BSEA, established that the documents sought, appropriately cleansed of all potentially identifying student information, are not immune from disclosure in special education administrative hearings.  As the Hearing Officer explained,

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Furthermore, as the information requested by the Parents goes to the heart of their assertion that the peer group in which Beverly proposes to educate the Student is inappropriate for him, the Parents’ discovery requests are directly relevant to one of their primary claims. The Parents’ discovery request is carefully limited in time, nature and scope and is thus not overbroad to accomplish its stated purpose in this administrative hearing. Arguing educational incompatibility is a common, and important, element of many FAPE claims. The accepted peer IEPs sought by the Parents provide critical information known to the School, and not otherwise readily ascertainable by the Parents before hearing, about the level, materials and strategies of instruction, as well as student/adult presence, movement, behaviors and expectations. Anyone reasonably familiar with the development and implementation of individualized education programs in Massachusetts can glean the necessary relevant information from those documents without reference to, or knowledge of, any individual student.

This Ruling is important because it provides Parents' with  an additional published ruling explaining the redacted IEPs provide "critical information" for their BSEA case.

If you are considering hiring an attorney to represent your child's rights at the BSEA, contact Lillian E. Wong today.