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.

Finally, some good news. As we wrote about earlier this month, many states, including Massachusetts, advised school districts that they did not need to provide students with special needs any direct IEP services during the COVID-19 closures, if districts are not providing educational instruction to general education students.

On March 21, 2020, the Office of Civil Rights within the U.S. Department of Education (DOE), issued a supplemental fact sheet to clarify the “serious misunderstanding” that school districts were not required to provide students with special needs any services during the shutdown, explaining:

School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible. However, school districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.

DOE encouraged the use of “distance instruction, teletherapy, and tele-intervention” when delivering IEP services. DOE also provided examples of how districts may continue to offer students a FAPE virtually, such as encouraging districts to use video conferencing for direct instruction, providing students with accessible materials, having teachers call students to explain lesson materials, and offering related services such as speech-language services through video conferencing.

DOE also explained that IEP Teams will need to make “an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.” This means that each student’s IEP Team will need to consider how to offer services to students that were not provided as a result of the COVID-19 closure.

Bottom line: DOE is advising that school districts and parents be creative to determine ways in which IEP services can be delivered virtually during the school closure period. We encourage parents to reach out to districts to inquire about beginning virtual IEP services when feasible and appropriate.

Stay safe. We are with you,

Michelle, Dan & Sherry

Many of the families we work with have reached out with questions about their children’s education and rights as they relate to COVID-19. While the situation is rapidly evolving, we have summarized our understanding of the current landscape below, and will continue to update as new information becomes available.

Given the risks associated with COVID-19, the Commonwealth of Massachusetts is taking unprecedented steps to reduce the spread of the virus. On March 15, 2020, Governor Baker signed an Order temporarily closing all public and private elementary and secondary schools in Massachusetts. Schools are not to re-open before Monday, April 6, 2020.  While the Order explicitly excluded approved special education residential and day schools from having to close their doors, on March 15, 2020, the Department of Elementary and Secondary Education (“DESE”) tweeted that they will be working with private and residential schools this week “on next steps.”  At this time, several private special education schools have chosen to close in conjunction with public school districts and in keeping with the advice received from public health agencies. We anticipate these closures will expand within the coming days.

There are many questions about what rights students with disabilities have during this unique time.  Neither the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act of 1973, nor Title II of the Americans with Disabilities Act (“ADA”) addresses the situation in which elementary and secondary schools are closed for extended periods of time due to the outbreak of a disease. However, the US Department of Education has released a Q & A fact sheet to address some common questions.

Specifically, where a school district, also referred to as a Local Education Agency (“LEA”), closes a school and is not providing educational services to the general population, they are not required to provide services to students with disabilities during that same period. Once school resumes, the LEA should attempt to deliver students with disabilities the services provided in the student’s IEP or 504 Plan. In the event that an LEA is not able to provide IEP services when school resumes, compensatory services may be appropriate. However, if the LEA does continue to provide “educational opportunities” to the general student population during the COVID-19 related closure, they must ensure that students with disabilities have equal access to the same opportunities, including the provision of FAPE. (The Q & A is available here: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf)

Some Massachusetts school districts are encouraging students to make use of online “educational activities” while the schools are closed. Without further guidance from DESE, it is unclear what services LEAs will need to provide, if any, to ensure that students with disabilities can access these programs equally. Districts may determine whether they are able to hold previously scheduled TEAM meetings via tele-conference on an individual basis, but as of yet, have been provided no explicit guidance that they have to do so.

The Bureau of Special Education Appeals (“BSEA”) has announced that beginning on March 15, 2020, there will not be any in-person proceedings until further notice. If you have a previously scheduled upcoming proceeding, the BSEA staff will contact you, or your attorney, to make arrangements for remote meetings where possible.

It is anticipated that DESE and Governor Baker will continue to provide updated information about education and special education as we learn more about COVID-19. Please stay healthy and safe. We know these are stressful times for our families, and we will be with you every step of the way.

Moor, Perlman & Gregg, LLC | Attorneys at Law | 42 Davis Road, Suite 1-1, Acton, MA 01720
35 Village Road, Suite 100, Middleton, MA 01949 | Phone: (978) 274-7101
Fax: (978) 451-4434 | info@mpgfirm.com