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Sunday, August 10, 2014

An Observation on Observations: Do You Think Time’s on Your Side?

From Special Education Today
A Special Ed Law Blog from Kotin, Crabtree & Strong


By Robert K. Crabtree, Esq.
August 6, 2014

On the brink of a new school year, parents and advocates may think that with 180 school days about to open up, there will be lots of time to complete the steps they need to accomplish to understand a child’s needs, to gather the evidence necessary to advocate for improved services, and to use that evidence successfully to bring about a better IEP and placement.

Maybe, but for a more realistic idea of how much time may actually be available to accomplish those steps, let’s take an example and see how it may work out.

Suppose that, as a result of advocacy through the previous year, a district has agreed to make a substantially separate, language-based program available for a student that it has previously insisted could learn well in an inclusion program. The parents are skeptical about the newly-proposed program – perhaps they doubt that the peer grouping is sensible for their child, or that the teaching approach is appropriate, or that the child can regroup after a difficult year and re-engage in her education – but they understand that they need to try the school’s more intensive program in order to truly assess whether it can work and, if not, to have the necessary evidence to show that it is insufficient.

As the new year is about to begin, they make plans to monitor the new placement closely and to take all available steps to gather hard evidence about its design and implementation.

One of the single most important steps the parents will take is to arrange for an observation – or multiple observations – of the new program. (Among other reasons, an expert’s testimony is often given little or no weight at a BSEA hearing if they have not observed the school’s program.) They know that parents have a right to observe a program or proposed program, themselves and/or by sending a chosen expert. (See M.G.L. c. 71B, §3; the DESE’s advisory, and our previous posts, A Check-up on Observation Access and Take a Look for Yourself, for information about this right.)

With 180 school days stretching ahead there should be no problem, right?

To begin with, the ordinary difficulties of scheduling busy experts and coordinating their small number of available days with the equally limited schedules of school administrators who claim that they must accompany the observer makes setting a date and time a daunting task in many cases. Add to that the “soft” strategies of resistance that parents and experts often run into around observation requests, such as delayed returns of phone calls and e-mails, delays in producing daily/weekly schedules so that the observer can see the parts of the school day that are most relevant to the parent’s concerns about the program, and last-minute cancellations when a teacher or administrator is suddenly going to be absent on the day of a scheduled observation, and those 180 days you thought were available start shrinking to a precious few.

Note that delaying tactics and requirements that do not comply with the broad expectations of the observation statute may be challenged at the BSEA, but the cost-benefit of doing so rarely warrants the filing of such a claim, and in most cases experts and parents end up having to do the best they can despite the obstacles.

Consider under what conditions the parents need a program to be observed in order to obtain reliable information, and let’s count off the days that are lost to those considerations. For any program, and especially a new one that is just getting off the blocks, an observation during the first month is likely to be met with protests that the teachers are still getting to know the students, the materials and approaches are still being unpacked and organized, the kids aren’t in the routines yet, and so forth – all of which arguments contain enough truth to justify writing off effectively the first 20 days of the school year.

Down to 160.

Observations that occur on Fridays or Mondays may be less informative than those during the middle days of a school week, because of the pre-weekend and post-weekend weariness or agitation of students. Since about 72 days of the 180 school days are Fridays or Mondays, we’re down to 88 days.

Of the 36 school weeks in a school year, at least 4 weeks are typically devoted to MCAS testing and intensive MCAS preparation; those weeks, which occur in the spring, are generally not well-suited for a program observation. Twenty more days gone; down to 68.

Most observers like to avoid the full week just prior to a long vacation – obviously the time before a summer break, but also the weeks prior to a winter or spring vacation. Like the days just before and after weekends, only more so, the time leading up to an extended break tends to be a time of distraction and departure from a classroom’s normal routines. Four more weeks (20 more days) gone, and we’re down to 48 days to arrange a solid observation.

Finally, consider that the parents are looking for information as early as validly possible within the school year so that they can assess and, if need be, advocate for change before the year is over. Also, the later in the school year an observation occurs, the greater the likelihood that what will be seen will differ significantly from what comes to be the program in the fall of the next school year.

Ideally, therefore, an observation ought to be scheduled in the months of October through mid-December, allowing for the limitations already mentioned around the first month, weekends, lead-ups to vacations and, through the fall, several long weekends.

The bottom line? Parents and advocates should start early and be persistent in arranging for experts to observe – getting available dates from them, contacting the district to obtain daily/weekly schedules, asking for whatever schedule best suits the expert’s availability and the types of classes and other activities s/he needs to see, climbing over whatever bureaucratic hurdles may be placed in the way and persisting when those hurdles multiply, to the point, if need be, of raising a complaint with PQA or even, if the situation is of sufficient importance, filing a hearing request to seek an order opening the door for the needed observation.

See Mansfield Public Schools, BSEA # 1307030, 19 MSER 100 (2013), for one example of a hearing officer’s determination to enforce the requirements of the observation statute.

When time is not on your side, push the clock.

About Robert Crabtree, Esq.

Robert K. Crabtree was a founding partner, with Lawrence Kotin, of the Boston law firm Kotin, Crabtree & Strong, LLP, where they established the firm's special education practice.

He graduated from Bowdoin College cum laude in 1967, from Andover Newton Theological School cum laude in 1971 and from the Northeastern University School of Law in 1976. Crabtree was admitted to the Massachusetts Bar in 1977 and to the bar of the United States Supreme Court in 1980.

As Research Director for the Legislature's Joint Committee on Education, he drafted much of the Massachusetts special education law (Chapter 766, Acts of 1972) with Mr. Kotin, and was instrumental in its passage and implementation.

Mr. Crabtree concentrates his practice in the areas of education law and special education law.

In May, 2005, Mr. Crabtree was a co-recipient, with Mr. Kotin, of the Martha Ziegler Founder's Award given by the Federation for Children with Special Needs, recognizing their part in the origins of Chapter 766 and their “decades of dedication to students with disabilities and their families.”

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