Disagreements between the parent(s) or legal guardian(s) (collectively referred to as “Parents” in this article) of a child and the school team are very common. These disagreements may concern relatively discrete areas such as Individual Education Plan goals and objectives, or the frequency of a particular service such as speech therapy, occupational or physical therapy, to name a few. Sometimes disagreements involve larger issues such as what school or classroom a child should be placed in, how much the child should be included with regular education students or whether the child can be suspended from school.
There are a number of options available to parents when these disagreements occur. Choosing which option to pursue will depend on a number of factors, including the nature of the dispute. This article will briefly outline some of the options, starting with the more informal ones and progressing to more formal, legal processes. In most instances, it is best to resolve disagreements in as informal and friendly a manner as possible. It is helpful whenever possible, for the parents and the school team to maintain positive working relationships as all parties should be working together for the best interests of the child.
In many instances, disagreements can be resolved by reconvening the school team to discuss the areas of disagreement. It may be helpful to these discussions if the parents bring an advocate and/or an outside professional to explain why a child needs a certain service or school placement. Parents who are not comfortable having another meeting with the full school team can request a meeting with the School’s Director of Special Education or the School Superintendent.
The Massachusetts Bureau of Special Education Appeals (BSEA) offers a number of options to help parents and school districts resolve a disagreement. One option is to obtain a mediator, employed by the BSEA. Both parties must agree to this mediation process. The BSEA mediator remains neutral throughout the process. The mediator will facilitate and attempt to get the parties to reach a voluntary mutually agreed upon outcome. The mediator cannot order or force either party to take any action. Statistics maintained by the BSEA document that approximately 80% of these mediations result in a full or partial resolution of the dispute.
If the parties cannot resolve their disagreements through mediation, or if both or one of the parties does not want to participate in mediation, another option offered by the BSEA is for the parties to request a BSEA hearing officer to issue an Advisory Opinion following a relatively short (two hour) discussion with the parties about the issue(s) in dispute. In this situation, the parents should be prepared to bring an independent expert to talk about the child’s special education needs. Once the BSEA hearing officer issues the Advisory Opinion, the parties can decide whether or not they want to accept or reject the Advisory Opinion.
If either or both parties reject the Advisory Opinion or by-pass that option, a third option is for a full hearing in front of a BSEA hearing officer which typically involves two or three days of testimony by witnesses, including experts, for each side. It is not a process to be taken lightly. School districts are always represented by an attorney. Statistics show that parents who are not represented by an attorney rarely get a favorable outcome. The Federation for Children with Special Needs (fcsn.org) and the Bureau of Special Education Appeals (mass.gov) keep lists of low-cost attorneys and advocates who may be of assistance. In addition, the BSEA has a helpful guide for parents who do not have an attorney and are going through the appeals process. Parents who have an attorney and do win, are reimbursed by the school district for the cost of the attorney’s legal services. In most instances, whether or not parents have an attorney, the case settles before the hearing.
Parents should understand that the less formal options are the most successful. Both parties should strive to resolve disagreements in a cooperative, respectful manner. While this is not always possible, the stress and frustration involved in going through the hearing process means that it should be considered as an option of last resort.
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Editor: Matthew Engel
Matthew Engel has twenty-six years of experience as an disability law attorney in Massachusetts. He recently started his own private practice. In addition to representing parents and students, Mr. Engel provides trainings and consultations to advocates and parents throughout Massachusetts. He can be contacted by e-mail at email@example.com or by telephone at (413) 527-3157. [/call_to_action]