Under the IDEA and Massachusetts special education law, students who qualify for special education are entitled to receive services until they graduate from high school or until they turn 22. To graduate and receive a diploma, a student must meet the local education agency’s (LEA) graduation requirements, earn the “competency determination” based on MCAS scores, and receive a free appropriate public education (“FAPE”) meeting each of their IEP and transition goals.

Beginning when the student turns 14 years old, the Team should discuss and identify transition goals at every IEP Team meeting, including input directly from the student. If the student has NOT met each of his or her IEP or transition goals prior to the anticipated graduation date specified on the IEP, the student or parent may reject the graduation date. Because graduation is considered to be a change in placement, by rejecting the graduation date, the student is evoking his or her right to “stay put.” Stay put provides that while there is a pending dispute, a student has the right to remain in his or her last-accepted placement [read our recent blog post on the subject to learn more].

In a recent BSEA decision, the Hearing Officer wrote, “Numerous BSEA decisions and rulings have established that once a fully accepted and implemented IEP has expired, hearing officers are precluded from re-visiting those IEPs, as long as the parent had an opportunity to participate in the development of the IEP in question and received the notice of parental rights regarding IEP acceptance/rejection and dispute resolution options.  The BSEA may only review the appropriateness of IEPs rejected during their term prior to expiration.See In re: Student v. Blue Hills Regional Technical Schools, BSEA #20-08213, Figueroa, July 6, 2020, citing In Re: Westport Community Schools, BSEA #13-02922 (Oliver, 2013).

For students nearing graduation, this means that in order to protect and utilize due process rights, an IEP must be rejected prior to the graduation date and expiration of the student’s IEP. An IEP rejection should always be submitted to the Team in writing. A formally rejected IEP triggers due process rights to dispute resolution systems, including access to BSEA mediation and/or a hearing at the BSEA.

In summary, if a student has not met each of his or her IEP and transition goals and should continue to receive special education services beyond the anticipated graduation date, it is crucial that the final IEP is rejected in a timely manner prior to graduation.

As we all adjust to life during the COVID-19 pandemic, which has drastically changed the landscape of education, it is necessary to maintain timely access to due process through the Bureau of Special Education Appeals (“BSEA”).

When a dispute regarding special education services arises between a family and their Local Education Agency (school district), either party may exercise their due process right by filing for a hearing at the BSEA. Under typical circumstances, hearings are generally held in person. However, in an effort to adhere to social distancing guidelines, hearings can and should be held via videoconference to allow for timely due process.

BSEA Hearing Officers have an obligation to ensure that fair and orderly hearings occur within the context of federally mandated timelines. 34 C.F.R. § 300.515(c) requires that no more than 45 days after the expiration of the 30-day resolution period, a final hearing decision is reached and mailed to the parties. BSEA Hearing Rule III provides that, at their discretion, Hearing Officers may grant requests for postponement for good cause, but “must give serious consideration to opposition to a request.”

Recently, a school district filed a motion at the BSEA to postpose a hearing, scheduled to begin May 11, 2020. The district argued that a fair hearing could not be conducted virtually. On April 22, 2020, Hearing Officer Reichbach denied the district’s motion to postpone the hearing. While acknowledging that an in-person hearing is preferable, the Hearing Officer ruled that the success of previous telephonic communications, along with a practice videoconference prior to the hearing date to work out any technological glitches, was sufficient to ensure that a fair hearing take place regardless of whether a matter is complicated in nature. After considering the risk of prejudice to each party, the Hearing Officer wrote, “Although not ideal, I believe it will be possible, in the circumstances of this case, for me to ensure that in a virtual hearing, ‘appropriate standards of conduct are observed and that the hearing is conducted in a fair and orderly manner.’”

On the other hand, in what we believe was an exception to the general understanding that video conferences are conducive to fair hearings, in an April 10, 2020 decision, Hearing Officer Reichbach did allow a district’s motion to postpone a hearing. In this extraordinary case, the parties’ relationship had deteriorated so significantly that the Hearing Officer had been unable to maintain order during a prehearing and other conference calls. In this case, the parties were not both represented by attorneys.

Outliers aside, in a time when we all need to be flexible and creative, the BSEA has found that videoconferencing can be used to hold virtual hearings and will meet the criteria for fair, due process hearings. We are thankful for the technology that allows us to move forward with these important matters, and applaud the BSEA for learning and adopting new technologies during this challenging and stressful time.

As a parent or legal guardian of a child with special needs in Massachusetts, you have the right to due process if you disagree with the services (or lack thereof) that a school district proposes for your child.

Special education disputes in Massachusetts are heard at the Bureau of Special Education Appeals (“BSEA”). The BSEA’s authority comes from both federal and state law[1]. Decisions at the BSEA are made by impartial Hearing Officers. Decisions made by Hearing Officers may not be reconsidered within the BSEA but may be appealed to the Massachusetts Superior Court or the US District Court.

The BSEA can hear and decide disputes including those about a child’s eligibility for special education services, the provision of services through an Individual Education Program (IEP), the placement of a student with an IEP, and procedural violations as provided for by state and federal law.

Federal law requires that students receive a free appropriate public education (“FAPE”). Students are not entitled to the best education possible; the legal standard is that a district’s program must allow a student to make “effective progress.” Additionally, students must receive FAPE in the least restrictive environment (“LRE”), meaning a district’s proposal must allow students with disabilities to learn alongside typically developing peers when appropriate. Most cases revolve around whether a district is providing sufficient services to achieve FAPE in the LRE.

After a hearing is filed at the BSEA, the parties may and often do choose to try to resolve the dispute through settlement negotiation. Understanding the type of evidence that will be persuasive to a Hearing Officer is critical. Even where the goal is to settle a dispute prior to a hearing, persuasive evidence can help resolve a dispute short of a hearing (i.e., at the Team level, or during a settlement negotiation).

If a case is not resolved through settlement negotiation, the parents and the district each present their argument using evidence through testimony of witnesses at a hearing, and through written exhibits. Districts, for example, present the information gained through their triennial evaluations of the student. Districts may also present report cards, progress reports, incident reports, behavior charts, and other data they have collected on the student, as well as testimony by teachers and other staff who work with the student.

Parents may present evidence by their own expert, obtained through an Independent Educational Evaluation (“IEE”). Often, a neuropsychological evaluation is the most comprehensive way to determine a student’s unique learning profile, and in turn is a critical part of a family’s case at hearing. Check back for part two where we will discuss how to develop evidence of your child’s needs through credible evaluators.

[1] The Individuals with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Massachusetts General Law ch. 71B

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