Category Archives: Due Process

Joining a Third Party to a BSEA Case

When you have been harmed, and you need to take legal action against another party, you probably think of a lawsuit between a plaintiff and defendant. But what if you, as the plaintiff, cannot get complete relief from taking action against just one party? Or what if the relief sought by the plaintiff would result in an unfair burden placed on the defendant? In those types of cases, it might be necessary to “Join” a third party, thereby making that third party part of the lawsuit.

For matters dealing with special education, a due process hearing is the equivalent of a lawsuit in court. Each state has its own administrative body which adjudicates due process hearings. In Massachusetts, the administrative body is called the Bureau of Special Education Appeals (“BSEA”).  The BSEA Hearing Rules for Special Education Appeals list factors that a Hearing Officer should consider when a request is made to join a third party (See BSEA Hearing Rule 1(J) in the above link).

The factors defined in Rule 1(J) are:

  • The risk of prejudice to the present parties in the absence of the proposed party;
  • The range of alternatives for fashioning relief;
  • The inadequacy of a judgment entered in the proposed party’s absence; and
  • The existence of an alternative forum to resolve the issues.

Two recent rulings from the BSEA provide excellent examples of how a Hearing Officer applies the above factors to a real-life situation.  In the case of Student v. North Middlesex Regional School District & Department of Children and Families (22 MSER 156 (2016)), the parents filed a BSEA due process hearing request against both the school district (“NMR”) and the Department of Children and Families (“DCF”) seeking a six month residential placement to address the student’s chronic stress.  DCF believed that it should not be joined as a party, and filed a Motion to Dismiss.  The school district, on the other hand, was opposed to removing DCF as a joined party.

Hearing Officer Rosa Figueroa ruled in favor of the parents and the school district in denying DCF’s Motion to Dismiss. Although DCF did not have care or custody of the student, it did provide a Treatment Plan and also arranged for a neuropsychological evaluation of the student, so there was a pre-existing relationship between the student and DCF. The hearing decision documents the school district’s argument:

NMR argued that the scope of the Hearing therefore involves not only Student’s need for residential placement but also: a) whether her current private day placement offers her a FAPE; b) whether Student requires additional in-home or residential services; (3) whether those in-home or residential services would be educational in nature; and d) if not educational in nature, whether DCF is responsible to provide them. Moreover, according to NMR, given that Student and her family are currently receiving services under a Treatment Plan Document (June 1, 2016 Treatment Plan Document) it would appear that any difficulty experienced by Student in the home is attributable to the home environment rather than unmet educational needs, therefore, a private day placement for Student would suffice to offer her a FAPE in the least restrictive environment. Since a determination of the need for residential placement and/or home wrap-around services, as well as whether such services would be for educational reasons may involve orders against NMR and DCF, the BSEA would be unable to fashion the necessary remedies in the absence of DCF. Lastly, NMR argued that administrative efficiency could only be assured by maintaining DCF as a party.

22 MSER 156 (2016).  Hearing Officer Figueroa agreed that “the existence of an active and comprehensive Treatment Plan establishes enough of a relationship to allow the BSEA to order non-residential services (such as additional home-based or therapeutic services) consistent with DCF’s rules and regulations, that are necessary to enable Student to receive a FAPE.” Id.  In other words, since there was at least a possibility that DCF’s services might be needed in order for the student to be able to receive her Free and Appropriate Public Education (“FAPE”), DCF needed to stay involved as a joined party in the case.

It is important to realize that the ruling against DCF’s Motion to Dismiss does not mean that the parents won their residential placement.  This Motion was just one aspect of the larger overall litigation.  The decision simply kept DCF involved as part of the case.

In the second case, Student & Natick Public Schools (22 MSER 159 (2016)), the result was the exact opposite (DCF was not joined), but for reasons that are very much in line with the North Middlesex case.  In Natick, it was the parent who tried to join DCF “because she asserts that DCF was ‘complicit’ with alleged actions by Natick that Parent believes deprived Student of a free, appropriate public education (FAPE) and created a ‘hostile environment’ within the Natick Public Schools. Parent’s position is that… DCF (among others) collaborated with Natick to deprive Student of her rights.”  22 MSER 159 (2016).

The facts in Natick show that Natick did apply for a Child Requiring Assistance (CRA) petition with the Juvenile Court. Natick also filed a 51A report with DCF because of concerns about the students school attendance.  However, the student was never under DCF care or custody, DCF did not have an open case on the student or her family, and DCF was not providing any services to student or the family.

Hearing Officer Sara Berman provided an excellent summary of the factors that a Hearing Officer considers in determining joinder:

In general, factors that hearing officers consider in determining whether the criteria of 603 CMR 28.08(3) and Rule I.J have been met include the following:

  • The student’s eligibility for services from the agency;
  • status (or lack thereof) as a current client of the agency;
  • length and degree of involvement that the agency already has with the student, if any;
  • likelihood that the evidence at hearing will show that the student needs services that only are available from the agency to benefit from special education, that the agency has refused or failed to provide such services, and that no appropriate forum exists to contest the agency’s decision;
  • likelihood that an order to the school district alone will provide the student with FAPE;
  • administrative efficiency of joining a potentially responsible state agency early in the proceeding.

On the other hand, the BSEA has declined to join human services agencies in situations where the agency has found the student ineligible or has not determined eligibility under its own regulations, where the student is eligible only for minimal services from the agency, or where agency involvement in the future is theoretically possible but speculative.

22 MSER 159 (2016).  The Hearing Officer concluded:

DCF should not be joined as a party in the instant case because none of the criteria for joinder listed in the “Legal Frameworks” section of this Ruling have been met. Student is not a current client of DCF. She is not in DCF care or custody, voluntary or otherwise, and receives no DCF services. Moreover, Parents seek no DCF services for Student and/or their family now, and there is no evidence in the parties submissions that they intend to do so in the future… [C]omplete relief, i.e. all relief sought by Parent from the BSEA, can be granted without DCF as a party. There is no risk of prejudice to any existing party if DCF is not joined because there is no remedy that the BSEA can order against DCF.

Id. Through these two cases, we can see how a very similar approach and analysis resulted in polar opposite decisions because the facts of the cases were so different.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

 

Stay Put is a Powerful Tool

Stay put is the mechanism intended to ensure stability for students while parents and school districts work out their disputes.  Under 20 U.S.C. §1415(j), “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child…”  Similarly, in Massachusetts, under 28 CMR 28.08 (7), “during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise.”  New Hampshire’s stay put regulation is Ed. 1123.23.

So, what happens if a student is in an out-of-district placement, which the parent approves of, but the school district wins at due process for a different placement, and the parent appeals to federal court?  This was the scenario in a recent decision handed down by the Massachusetts Bureau of Special Education Appeals.  In the case of In Re: Boston Public Schools v. Student – BSEA # 15-03083 & BSEA # 14-01653, a Boston student was attending the READS Collaborative, pursuant to a prior stay put decision of the BSEA. Boston then filed for a hearing, asking the BSEA to rule that its proposed placement at a different school – the Horace Mann School – was appropriate for the student. Boston won that due process hearing. Ordinarily, this would mean that the student would need to start attending the Horace Mann School instead of READS. However, the Parent in this case appealed to the U.S. District Court.

The dispute then became the issue of what the stay put placement should be. The Parent claimed that stay put should be READS, since that was the then-current placement of the student. Boston argued that stay put should be the Horace Mann School, since that was the decision of the BSEA hearing officer.

Hearing Officer Rosa Figueroa ruled in favor of the Parent. The reasoning for this decision was that the students then-current placement was indeed the READS Collaborative. Even though Boston won the case at the BSEA in favor of the Horace Mann School, the the fact that the Parent appealed the case to U.S. District Court meant that they were still legal proceedings that were pending. To ensure stability for the student, the hearing officer maintained READS as stay put while the dispute worked its way through the system.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

NH Statute of Limitations for Unilateral Placements – A Trap for the Unwary

A statute of limitations defines how long you have to bring a legal action.  With special education matters, if you are going to file for a due process hearing, the general rule is that you have 2 years to file for a hearing regarding any alleged violation. 20 U.S.C. § 1415(b)(6)(B).  If you make a unilateral placement (i.e. make a “unilateral” decision to enroll your child in a private school without school district approval), NH has significantly limited the time period that is allowed for filing for a hearing related to that placement.  In particular, New Hampshire allows just 90 days for filing for a hearing regarding the unilateral placement.  RSA 186-C:16-b.  The 90 days runs from the date the unilateral placement is made.  Further complicating this is that the date of the unilateral placement is not always clearcut.  For example, is it:

  1. The date that the parents applied to the private school?
  2. The date that the private school accepted the student?
  3. The date that the parents returned the acceptance letter to the private school?
  4. The date that the parents sent in their first deposit to the private school?
  5. The date that payment was made in full?
  6. The date that the parents notified the public school district that they were withdrawing their child from the public school, and enrolling him or her at the private school?

Parents might have a bit of a reprieve from the 90 day burden if the school district did not provide the parents with notice of their special education rights, which they usually do at least annually.  If notice was not given, then the 90 days would not start running until proper notice is given to the parents.

The exact wording of the NH law is:

 186-C:16-b Due Process Hearing; Appeal. –
    I. Any action against a local school district seeking to enforce special education rights under state or federal law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered.
II. Notwithstanding the provisions of paragraph I, any action against a local school district to recover the costs of a unilateral special education placement shall be commenced by requesting an administrative due process hearing from the department of education within 90 days of the unilateral placement.
III. Where the parent, legal guardian or surrogate parent has not been given proper written notice of special education rights pursuant to 20 U.S.C. section 1415(d), including notice of the time limitations established in this section, such limitations shall run from the time notice of those rights is properly given. The department of education shall make available a model notice of rights which school districts may use as one means of complying with this paragraph.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

2012 BSEA Statistics

The following table summarizes some of the key statistics for Fiscal Year 2012 that were recently published by the Massachusetts Bureau of Special Education Appeals (BSEA). There are a couple of points worth highlighting:

  • Out of 8,460 rejected IEP’s, there were only 52 due process hearings with decisions. Why?  Most cases reach resolution prior to a hearing.  In other words, based on the statistics, there is only a 0.6% likelihood that any rejected IEP will actually go all the way through to a complete Hearing.
  • Of the 52 decisions that were rendered, parents prevailed in just 13 cases.  That represents just 25% of the BSEA decisions.

What is the lesson here for parents?  Proceed with caution when it comes to litigation.  As an attorney, I judge my success not by the number of cases litigated, but by the number of positive outcomes achieved (preferably without litigation).

2009 2010 2011 2012
Rejected IEP’s 7,252 7,875 8,348 8,460
Mediations 846 854 809 917
Hearing Requests 609 545 544 582
Actual Hearings with Formal Decisions 48 50 35 52
Parents prevailed 6 9 7 13
Districts prevailed 36 29 22 26
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

Procedures Lite = Rights Lite

Have you ever heard of “Procedures Lite?”  If not, don’t feel bad.  Very few people have, though you will probably be seeing reference to this more and more.

Federal and state special education laws grant numerous rights to parents, and create numerous requirements for public school systems, to ensure that disabled children are provided with a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). Anyone who has been involved with creating or implementing an IEP, or dealing with disputes that may crop up regarding a child’s education, can attest to the large overhead that is involved with special education.

Procedures Lite is an attempt by school districts to avoid the time, paperwork, cost and accountability that are required by federal and state special education laws.  Here’s how you will “ benefit:”

  1. You will “agree to suspend state and federal special education procedural requirements…”
  2. You will “understand that an Individualized Education Program (IEP) will be replaced by a one-page Student Learning Plan (SLP)…”
  3. You will agree not to:
    1. _____convene the Team meeting to develop an IEP.

    2. _____develop an IEP.

    3. _____ send/receive periodic parent notices.

    4. _____conduct procedurally required evaluations

  1. You will agree to “forever WAIVE [your] rights to appeal all issues under all state and federal laws… including all rights related to compensatory services or damages.”

Is Procedures Lite sanctioned by the Massachusetts Department of Elementary and Secondary Education (DESE) or the Bureau of Special Education Appeals (BSEA)?   I can find no reference to it in any state or federal website or communication, yet its advocates will have you believe that it is sanctioned by the DESE.  The Town of Weston – the only district of which I am aware that openly makes reference to this procedure – states, “DESE identifies the purposes of Procedures Lite as follows… DESE suggests that Procedures Lite agreements be limited….”  http://bit.ly/owsn9r.

I can’t think of any good reason for parents to agree to the use of Procedures Lite.  I see lots of benefits for the school districts, but none for the parents.  Is a district asks you to utilize Procedures Lite, would you mind notifying my office?  I would like to keep a running list of districts attempting to utilize Procedures Lite.  Thank you.

For further information about the Law Office of James M.  Baron, please visit http://www.lawbaron.com,or call 781-209-1166.