Attorney Wong recently prevailed in an important discovery dispute at the Bureau of Special Education Appeals ("BSEA"). While the BSEA does not always publish its Rulings, this Ruling was published and can be read here - In Re: Student v. Arlington Public Schools BSEA # 16-11465 (Figueroa, 2016). This is the first published Ruling in Massachusetts regarding the relevance of text messages in special education disputes.
The Ruling was issued in response to the District's request for a protective order (the District did not want to provide Parents with all the documents requested via discovery). The District, citing another BSEA Ruling (In Re: Grafton Public Schools and Logan, BSEA #1506275, 21 MSER 131, 132-133 (2015), claimed they only had to provide Parents with documents placed in the student record, but did not need to provide teacher meeting notes or text messages. Attorney Wong successfully argued that documents not located in the student's educational file, including text messages, are in fact discoverable. As the Hearing Officer explained,
At times, information shared informally between teachers/service providers and parents/ students or between school personnel may not be maintained in the ordinary course because the communication occurs via a private telephone, or computer, and is discarded or may be kept in a private device. This is particularly so with information shared via emails or text messages. While much of this information may be inconsequential, some may be relevant as to the student’s academic and/or emotional functioning, and or a staff’s impressions or concerns regarding the student. These snapshots may bear direct relevance to the appropriateness of a student’s program and placement as they may provide insightful information as to what works or not with a student, and therefore, should be part of the student’s record. However, because of the private nature of the device used for communicating, there may be a false sense of privacy regarding those communications; while the device may be private, the communications are not. As such, the communications are discoverable whether or not they are contained in the student record.
This Ruling is important, not only because it was a case of first impression regarding text messages, but also because it stands in opposition to the previously cited Grafton ruling. Grafton greatly restricted Parents' access to information about their child's program. This Ruling counters Grafton with a broader discovery standard that will help Parents meet their burden of persuasion.
If you are considering hiring an attorney to represent your child's rights at the BSEA, contact Lillian E. Wong today.
Case Name: In re: Rick (BSEA #11-6535) Foxborough Public Schools
Decision Date: September 2, 2011
Hearing Officer: Raymond Oliver
Representation: Thomas Nuttall, School Attorney
Parents, Pro Se
Does school's proposed IEP provide a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
Yes, the IEP provides FAPE. To quote the Hearing Officer, "I find that in all school areas, Rick is truly a success story." In response to Mother's previous multi-page IEP rejections the Hearing Officer writes, "An IEP is designed to be a functional blueprint for addressing a student's special education needs, not an encyclopedia."
This decision highlights a common situation when school districts will request a BSEA hearing. In this case, there were five years of partially rejected IEPS and various assertions of stay-put during appeal. The school was confused about what portions of the IEP they were supposed to be implementing. The Hearing Officer agreed that this situation was "unworkable." With this decision, the school has a "clean IEP" and a clear understanding of what program to implement.
Remember, the best special education attorneys in Massachusetts consistently review and analyze hearing decisions by the Massachusetts Board of Special Education Appeals (BSEA). Hearing decisions provide insight into the litigation interests of school districts, their attorneys, and the legal reasoning of hearing officers. If you have a question about your child's special education rights, including the right to stay-put, contact Massachusetts special education Lawyer Lillian E. Wong today.
On December 10, 2010 Mitchell D. Chester, Ed.D., Commissioner of Elementary and Secondary Education, proposed the following changes to Massachusetts' Special Education Regulations.
This proposed change would clarify parents' right to revoke consent to all special education and related services, and will eliminate the suggestion that a school may file a due process hearing or court action to challenge a parent's decision to revoke consent to all special education and related services.
Bureau of Special Education Appeals
The proposed change indicates that the BSEA is a subdivision of the Division of Administrative Law Appeals and no longer within the Department of Education.
The proposed change would require sign language interpreters to be registered with the Massachusetts Commission for the Deaf and Hard of Hearing.
Independent Education Evaluations
The proposed change would clarify the five school day timeline for responding for a parents requesting an IEE under federal law.
Read the text of the proposed changes here.
If you have questions about your child's rights, contact Massachusetts special education lawyer Lillian E. Wong today.
The Massachusetts Bureau of Special Education Appeals has released its statistics for 2010. The statistics reveal that most disputes with school districts result in a resolution long before a hearing decision is issued, and if the dispute reaches the hearing stage the school district is likely to prevail. 854 cases voluntarily participated in mediation and 84.5% ended in a legally binding agreement. 545 parities requested hearings, but the vast majority of disputes were resolved before a decision was issued. Only 50 hearing decisions were issued and the school district prevailed outright in 58% of the time, the parents only prevailed 18%, and 8% of the time mixed relief was granted.
School districts were represented by counsel 100% of the time. Of the 29 cases where the school districts fully prevailed, parents were represented by counsel in 8 cases (27% of the time). Of the 9 cases where parents fully prevailed, parents were represented by counsel in 5 cases (56% of the time). In cases where mixed relief was granted, parents were represented by counsel in 5 cases (63% of the time). These statistics highlight the importance working with a special education lawyer when pursuing a due process claim.
Read the entire report here.
If you are considering filing a due process request with the Massachusetts Board of Special Education Appeals, contact the North Shore law office of Lillian E. Wong today.
Parents have 30 days to review and to make a decision about the IEP. Parents can accept the IEP, reject the IEP or accept in part/reject in part.
When parents reject an IEP in whole or in part, the school must notify the Board of Special Education Appeals (BSEA). After receiving the rejection, the school must notify the BSEA within 5 DAYS. 603 CMR 28.08(3)(b). The BSEA then notifies parents and the school of their right to request a hearing and/or mediation. To read more on rejecting an IEP click here, and feel free to leave any comments.
Case Name: Student v. Salem Public Schools (BSEA #10-6335)
Decision Date: May 14, 2010
Hearing Officer: Rose I. Figueroa
Representation: Colby Brunt, School Attorney
Parent, Pro Se
(1) Is Student Safe in school?
(2) Is Student's paraprofessional appropriate?
(1) Student is safe in school. The Hearing Officer concluded that Student's disabilities (a thirteen-year-old seventh grader with autism spectrum disorder) impact her ability to accurately relate back events that occurred at school. Parent's assertion that Student was not safe in school were based entirely on Student's reports. The Hearing Officer found the testimony of School personnel and the Student's Guardian at Litem persuasive on this point. The Hearing Officer seemed satisfied that students Behavioral Intervention Plan and paraprofessional support provided Student with a Free Appropriate Education.
(2) Student's paraprofessional is appropriate, and highly qualified. The Hearing Officer concluded that Student's paraprofessional was not abusing Student and was highly qualified. This decision was based on Student's inability to accurately report events and observations and testimony from School personnel and the Student's Guardian at Litem.
This decision highlights a broken relationship between Parents and the School. Mediation between the parties was not successful. The School involved the juvenile justice system, further alienating the mother. Student's mother worried the school was not keeping her daughter safe and did trust the School's assertion that it was keeping Student safe. Ultimately, the Hearing Officer sided with the School. Hopefully the testimony during this due process hearing helped assure the mother that her daughter was indeed safe at school.
Read the entire decision here:
Parent Response Required
Once the IEP team proposes an IEP, parents have the right to accept or reject the program, in whole or in part. Parents must indicate their response on the IEP, sign the document, and return it within 30 days of receipt. If the document is not returned within 30 days, the school may assume that the IEP has been rejected. Even if you strongly disagree with the proposed IEP or placement, it is always better to continue to communicate with the school and express your concerns in writing.
Reject in Whole or in Part?
Usually, it is better to reject only the portions of the IEP you disagree with and to accept the others. This is especially true if this is your child's first IEP. If you reject the entire first IEP, your child will not receive any special education services. Whatever services of the IEP the parents accept should be immediately implemented.
When parents reject the IEP, "stay-put" applies if the child has already been found eligible for special education services . This means that the school must continue to implement the last agreed upon IEP until parties agree otherwise or a hearing officer rules on the child's special education rights.
Referral to BSEA
When parents reject an IEP the school should refer the case to the Bureau of Special Education Appeals (BSEA). Parties can voluntarily participate in mediation. If mediation is forgone or unsuccessful, the dispute is resolved by an impartial hearing officer in a due process hearing.
While the school is required by law to refer rejected IEPs to the BSEA, this referral often does not occur. Instead, schools will convene numerous IEP meetings in the hope of resolving the disagreement. If you believe your position is strong, you also have the right to initiate a BSEA hearing. Learn more about due process hearings in Massachusetts here.
Case summary: School district indefinitely suspended Student with a disability, alleging Student had inappropriately touched others, attempting to give them "wedgies." School proposed a substantially separate placement. Attorney Wong, on behalf of Parents, argued for Student's return to the general education setting with a comprehensive behavior plan in place. Hearing Officer agreed with Parents that the general education classroom was the least restrictive environment and ordered that Student be allowed to return to his regular education classroom.
To read the entire decision, click here.
Federal law provides for expedited hearings in certain situations. In Massachusetts, The Bureau of Special Education Appeals determines whether expedited status should be granted to all or some of the issues. If there are any remaining issues, those will be processed on a non-expedited track. Whenever possible, both cases will be heard by the same Hearing Officer
Situations Warranting Expedited Status:
Special Education Law is all about acronyms. Here are the most important ones:
BSEA: Bureau of Special Education Appeals
C.F.R.: Code of Federal Regulations
E.I.: Early Intervention
ESY: Extended School Year
FAPE: Free Appropriate Public Education
FERPA: Family Educational Rights and Privacy Act
IDEA: Individuals with Disabilities Education Act of 2004
IEE: Independent Evaluation
IFSP: Individualized Family Service Plan
IEP: Individualized Educational Plan
LEA: Local education agency or school district
LRE: Least Restrictive Environment
LEP: Limited English Proficient
M.G.L: Massachusetts General Laws
OCR: Office of Civil Rights
RTI: Response to Intervention
SEA: State Department of Education
SLD: Specific Learning Disability
U.S.C.: United States Code
It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.
Brown v. Board of Education, 347 U.S. 483 (1954)
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15 Morningside Drive
Topsfield, MA 01983