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Back to Basic Rights: Due Process

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