Agreeing to Disagree: How to Effectively Resolve Disputes with School Districts

Daniel T.S. Heffernan

Kotin, Crabtree & Strong, LLP

One Bowdoin Square, Boston 02114

(617) 227-7031

dheffernan@kcslegal.com

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Newton SEPAC, November 28, 2023

© 2023 Kotin, Crabtree & Strong, LLP

“You’re married in a church that doesn’t recognize divorce.”

Common Mistakes

BURNING BRIDGES

Long term relationship

Storming out

Refusing to meet

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Unrealistic expectations

Empty Threats

Going Over Their Heads

Failing to Document Things

Failing to recognize your foes and allies

Rejecting in full an IEP, refusing services

Groton-Dunstable Regional School District and Dulcinea, 12 MSER 233 (2007)

Bringing your attorney to team meetings

Refusing to allow evaluations, observations by the school district. See Public School District, 15 MSER 403 (2009) (Claim for reimbursement denied, in part, because parents refused to consent to district’s evaluations);

• Scituate Public Schools, BSEA #09-5506, 15 MSER 124 (4/28/09): hearing officer denies reimbursement for summer reading services, where parents refused district’s request to perform reading evaluation.
• “[A]s a general rule, a parent may not preclude a school district from evaluating their [child], nor may a parent force a school district to rely upon a parent’s own evaluation.”

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Restricting The Sending of Referral Packets

Pembroke and Eleanor, BSEA #1503787, 21 MSER 23, 25 and 47 (Reichbach 2015)

• Student with complex learning and behavioral needs
• Parent wanted to limit the sending of packets to one, acceptable placement

• District sought “substituted consent”
• No such exception under Family Educational Rights and Privacy Act (“FERPA” 20 U.S.C. Section 1232g; 34 CFR Part 99)
• However, the district could send out redacted packets with personally identifiable information blacked out.

PARENT PARTICIPATION

• Myriad provisions for parent participation
• Notifications
• Member of the special education team
• Input into the IEP

THE IEP TEAM

“Team” is defined as:

• A group of persons, meeting participant requirements of federal special education law as provided at 34 C.F.R. § 300.321, who, together, discuss evaluation results, determine eligibility, develop or modify an IEP, or determine placement.” 603 C.M.R. § 28.02(21)

Student participation in the IEP process

• Invited to Team meetings - should s/he participate?
• Approaching age 18, given notice that they:
• Can have the authority to make all decisions themselves
• Cede authority to the parents
• Share the authority with the parents

603 C.M.R. 28.07(5)

Positioning for dealing with the school district

Records

• Obtaining all relevant records
• Organizing them
• What needs to be updated

Educate yourself

• Process
• Expectations
• Time
• Laws and regulations
• expense

EXPERTS ARE KEY�

Evaluations/Evaluators

Often a “battle of the experts”

Schools have experts at their disposal

Districts typically have more “quantity” of expert contact with student

Experts, cont.

Qualities of a good expert

• Recognized in their field
• Proper credentials, licensing
• Treating provider or long history with student if possible
• Work for parents and schools
• Not a shrinking violet
• Experienced witnesses?

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Expert, cont.

• Willing to work with you re reports, such as reviewing drafts.
• Willing to advocate for family in meetings and ultimately a hearing
• Understand the legal landscape and interplay with their opinions/phraseology

Expert Reports - Don’ts

• Delay in reports
• Typos/inaccuracies
• Conclusory statements
• Language – ideal, preferable v. required, necessary
• Identify the disability

Expert Reports – Do’s

• Know program through reviewing IEPs and contact with teachers and other staff
• Be explicit
• Describe the student’s potential in the context of what is and can be expected, i.e. what is “effective” or “meaningful” progress
• Specify how deficits can be addressed

Expert Do’s, cont.

• Home programming – parent training v. direct service
• Address where possible, the qualifications of staff providing services
• Specify hours of services, i.e. 8-10 hours home programming, or programming, i.e. class of 8-10 students with similar cognitive….

Experts, cont.

• Evaluations must have experience with the relevant disability. In Re: Brookline Public Schools and Jacqueline, 21 MSER 138 (2015); In Re: Swansea Public Schools, 13 MSER 113 (2007)
• Must have up to date evaluations. In Re; Blue Hills Regional Technical School District and Riley, 13 MSER 119 (2007)
• Must be familiar with proposed program, IEP,

Experts must make specific recommendations

See Taunton Public Schools, 16 MSER 7 (2010) (DCF involved as well as treating psychiatrist and neuropyschologist, but failed to make specific recommendations for residential placement)

Experts, however, should not in their reports recommend a specific school.

• :  “The assessor may recommend appropriate types of placements, but shall not recommend specific classrooms or schools.” 603 CMR 28.04(2)(c). 
•   It also applies to publicly funded independent evaluations. 
• Best practice – private evaluators should also refrain

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Experts, Cont.

• OBSERVATIONS, Amherst-Pelham, 13 MSER 160 (2007); North Adams and Chloe, 12 MSER 238 (2007) (hearing officer gave “no weight” to parents’ expert because he did not observe the student)

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• Must testify at a hearing

INDEPENDENT EVALUATIONS

“IEE” – Independent Education Evaluation

If parent disagrees with the district’s evaluation, have the right to request an independent evaluation

• Can request an independent evaluation up to 16 months after the date of the school’s evaluation
• If outside the 16 months, must first request an evaluation, wait for the results, and then request an independent evaluation if you disagree with the results

• Request it in writing.
• School must either agree to pay or assert it’s evaluation is appropriate and file for a hearing to contest the parental request.

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COSTS

• Sliding scale based on family income
• District will use the “rate setting rate” that is lower than private rates

Extended EVALUATIONS

IDEA does not provide for Extended Evaluations

603 CMR 28.05(b) – the team with parental consent can agree to an extended evaluation period

Location of the extended evaluation is not and IEP “placement”

Cannot exceed 8 school weeks

OBSERVATIONS

• 2009 - MGL ch. 71B, §3; 603 CMR 28.07(1)(a)(3)) accords parents, and by extension, their evaluators or consultants, a reasonable opportunity to observe their child’s program or proposed program.

• The rationale for the law, as delineated in the first sentence of the statute is: “To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child…”

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• Restrict or place conditions on observations unless those are necessary to: (1) ensure the safety of students in the program; (2) ensure the integrity of the program while under observation; and, (3) protect the students in the program from disclosure of confidential and personally identifiable information. MGL. c. 71B, §3

Crucial in any special education case

Amherst-Pelham, 13 MSER 160 (2007); North Adams and Chloe, 12 MSER 238 (2007) (hearing officer gave “no weight” to parents’ expert because he did not observe the student)

Observers must have the opportunity to speak with teachers and other staff about the program. Northbridge Public Schools, BSEA # 09-2533 (2009)

Mansfield Public Schools, BSEA #1307030, 19 MSER 100 (2013) (Crane)

• Parents moved to compel a full continuous day observation of the student

• No objection to an observation of that length but objected to the entire observation occurring in one day
• The district wanted to have one particular staff person, the school psychologist, accompany the parents’ observer and having that staff person carve out an entire day for such an observation was too burdensome.

• Rejected because the district did not show why others could not have accompanied the parents’ observer and, and most significantly, the district’s objection did not fall under the three recognized bases for restricting access of the parents’ observer which are cited above

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DISPUTE RESOLUTION

IEP Response

• Not “All or Nothing”
• Reject in part
• “Stay Put” rights
• Request a meeting

Facilitated Team Meetings

• Request to head mediator – Myrto
• Contentious team meeting
• Attend the team meeting as an impartial neutral
• Mutually agreed upon

Facilitated Team Meetings�

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• 186 in FY22
• 127 in FY 21 (29 unmet requests)
• 77 in FY 20 (8 unmet requests)
• 114 FY19 (29 unmet requests)
• 142 in FY18 (44 unmet requests)
• 118 in FY17 (7 unmet requests)
• 135 in FY16 (66 unmet requests)

Mediation

Mediation

• 7 mediators assigned geographically
• Stats – 85% success rate
• Know the mediator
• Is it a delay tactic, worthwhile

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Mediation

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• FY22 – 581
• FY21 - 519
• FY20 - 573
• FY19 – 714
• FY18 – 699
• FY17 - 742

“Agreement Rate” consistently around 80 - 85% (FY 20 83%)

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BUREAU OF SPECIAL EDUCATION APPEALS (“BSEA”)

• Special Education Court
• Jurisdiction over all disputes regarding special education – IEPs, 504 plans
• Hearing officers – 7 (6 full time equivalent)
• Leeway in decisions
• Mandated/actual time frames

BSEA Statistics

• 165,000 Students on IEPs in Massachusetts

Rejected IEPs

• FY 22 – 11,830
• FY21 - 11,331
• FY20 - 9,442
• FY19 – 11,979
• FY18 – 11,900
• FY17 – 11,400

Hearing Requests

• FY 22 – 381
• FY21 - 320
• FY20 - 379
• FY19 – 483
• FY18 – 481
• FY17 – 495
• FY16 – 568

Hearings

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• FY 22 - 14 full hearings resulting in a written decision
• FY21 - 24
• FY20 – 19
• FY19 – 19
• FY18 – 13
• FY17 – 22
• FY16 – 23
• FY15 – 18
• FY14 – 25
• FY13 – 52

Parents fully prevailed in 4

• Had counsel in 2

School districts fully prevailed in 9

• Parents had counsel in 8, pro se in 1

Mixed relief in 1

• Parents had an advocate

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• Resolution Sessions

Pre-hearings

• Stated purpose
• Not always required
• Different approaches
• Conduct of them

Settlement Conferences�

Must be represented by an attorney

• 48 settlement conferences in FY22 – 41 settled that day
• 53 FY21 – 49 settled 68 FY20 – 62 settled
• 76 FY19 – 67 settled
• 78 FY18, 72 settledli
• 69 FY17, 61 settled
• 89 in FY 16 – 82 settled
• 63 in FY 15 – 54 settled

Hearings

• Settles it once and for all?

Statute of Limitations

• 2 year rule

Failing to reach out to other agencies, such as DMH, DDS, DCF

Joining State Agencies

The BSEA is empowered to assert jurisdiction over a state agency, i.e. DMH or DCF, in certain circumstances MGL c. 71B, §3 and 603 CMR 28.08(3).

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Can join the state agency if:

• Necessary to provide complete relief to the student
• If the student will only be able to access the school district’s special education program if services over and above those that are the responsibility of the school district need be provided by the human services agency

• HOWEVER, the BSEA may only act in accordance with that human services agency’s own rules, regulations and policies.

When To Involve An Attorney

Consult with them first to see if it’s appropriate and ready

Before filing hearing request

Materials assembled

Before reports finalized

If looking for an outside placement, locate, apply…

• Chronology and overview are very helpful
• Team meeting summaries

Collaborating with Attorneys

• Define who is doing what, i.e. mediations, team meetings, etc.
• Don’t encumber the communication among client, advocate, attorney
• Respect each other’s role
• Support each other
• Economic sense for you and clients

Misc.

• Letters to district from advocate or family
• Detail reasons for IEP rejection