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Thursday, March 5, 2015

Discovery of Information about Proposed Peers at the BSEA: A Practice Note

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


By Robert K. Crabtree, Esq.
with Eileen Hagerty, Dan Heffernan and Joe Green

March 5, 2015

Why proposed peer group information is essential in BSEA proceedings:

The capacity of a school district’s program to meet the needs of a student with a disability often depends heavily on the learning, behavioral, and social communication needs of the peers with whom the district proposes to group the student.

An inappropriate classroom cohort can significantly undermine a student’s ability to make effective progress.

For example, suppose that a child of average intelligence who has severe dyslexia requires placement in small classes where all core subjects are taught with a specialized language-based methodology. Placing that student in a classroom with students who have different disabilities (such as emotional or intellectual impairments) that require different methodologies would not be appropriate.

Parents have the burden of proof in most cases before the BSEA. In order to meet that burden, any argument that a program is inappropriate due to a poor mix of peers must be based on detailed information about those peers. Broad descriptions of the student population or program provided by the school district, or impressions of the make-up of the proposed peer group through observation by parents or their experts, are not sufficient.

Parents’ counsel must be able to review – and to have an expert review – IEPs and related information concerning the peers with whom their client is or would be grouped under a district’s proposed IEP. Fortunately, the BSEA Hearing Rules provide for prehearing discovery, allowing either party to request that the other produce relevant documents and other information. See BSEA Rule VI.B.

As part of the discovery process, the BSEA has consistently required districts to provide parents’ counsel with IEPs and other information about actual or proposed peers. To safeguard the other students’ privacy, the BSEA has ordered that names and other personally identifiable information be redacted (blacked out) before production to parents’ counsel, that parents’ counsel’s use of the documents be limited to review with experts and submission as exhibits, and that the documents be returned to the district’s counsel after the case is closed. See, e.g., Mattapoisett Public Schools, BSEA #06-6153, 13 MSER 22 (2007).

School districts are pitting parents against parents in response.

We have recently become aware of a new tactic that some school districts are using in response to parents’ discovery requests for redacted peer IEPs and similar information. These districts are apparently sending written notices to parents of those peers, informing them of the proposed disclosure and asking whether the parents consent to the release of redacted documents.

Understandably, some parents react with concern or anger, thinking that sensitive information about their child is about to be revealed. If they can figure out which family is involved in the proceeding that generated the request, they will sometimes complain to or even harass those parents.

This tactic turns special education parent against special education parent and undermines the ability of all parents in dispute with the district to obtain the information they need to carry their burden of proof in BSEA proceedings. Ironically, in smaller communities but even in larger ones where special education parents enjoy active networks, the tactic also risks exposing confidential information about the families who are litigating against the district, and risks subjecting them to the resentment of the peers’ parents. These are considerably higher risks, we expect, than that the delivery of peer IEPs to parents’ counsel and experts will lead to public exposure of the information in those IEPs.

School districts characterize their request for consent to release redacted IEPs as necessary to protect the confidentiality of the peers. It is not.

Here is how it works: First of all, BSEA proceedings are not open to the public. Children’s names, even those of students on whose behalf litigation is brought, are never revealed. More specifically, the BSEA has acknowledged the relevance of, and need for production of peer IEPs, and has established a protocol that strictly limits the substance of the information to be produced and the scope of its circulation. That protocol is outlined and reaffirmed in a recent ruling by Hearing Officer Raymond Oliver, as follows:

“To reduce any risks of compromise to student privacy, production is subject to the following conditions:

The documents requested shall be cleansed of all identifying information, including, at minimum, the name of the child, name(s) of parent(s) or other family members, address, date and place of birth, gender, race/ethnicity, any language(s) other than English that are spoken by student and/or parents; and any student number(s) assigned to such student(s).

The redacted documents shall be provided solely to counsel for the Parents, and not to the Parents, Student, or any other person or entity. Counsel for the Parents may disclose the redacted documents to experts who are assisting Parents regarding appropriate peer groupings for Student and related issues and/or who may testify at the hearing.

Counsel for the Parents may submit copies of some or all of the redacted documents as exhibits at hearing.

Except as described in (2) and (3) above, counsel shall not disclose the documents or information therein to any other person or entity.

Upon the close of the record in this matter, counsel for the Parents shall ensure that any copies of documents that may have been provided to experts per Paragraph 2 are returned to counsel.”

In re: Vic, BSEA #1503712, Ruling on Discovery (February 26, 2015). The hearing officer concluded that neither the Family Educational Rights and Privacy Act (“FERPA”) nor the Massachusetts Student Record Regulations prohibit disclosure of records that do not contain personally identifiable information. Thus, a district can have no legitimate need to seek the consent of peers’ parents to production of redacted records.

Districts may argue that, even with the protections outlined by the BSEA, a determined citizen of a district could read a BSEA decision that includes discussion of peer appropriateness and somehow figure out which student or students are being written about. While no system is perfect, parents can take comfort in the fact that BSEA hearing officers are highly sensitive to any such risk and take extra precautions to avoid giving information that could lead to inadvertent disclosure.

School districts know this is so, and yet some insist that they must advise and obtain consent from all parents whose children’s redacted IEPs may be produced, despite the safeguards outlined above. Why, except to stir trouble among special education parents, would they suddenly decide that they must take this step? By doing so they cause anxiety and anger for no good purpose and they risk breaching the confidentiality of the parents and child involved in the litigation in which the request for production of IEPs was made.

Information about this tactic and about the reasons for parents’ counsel’s requests for information should be spread widely. Peers’ parents should be forewarned and understand that their own ability to effectively pursue their children’s rights under IDEA may someday may depend in no small part on their counsel’s ability to obtain information about proposed peers, not only through program observations but also by limited examination of redacted IEPs and similar information.

The very small risk that someone may somehow be able to figure out a peer’s identity despite all the precautions to ensure anonymity is a small price to pay for the integrity of a due process system that offers all parents a chance to advocate for their child’s right to an appropriate education.

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Robert Crabtree is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, MA.

He thanks his partners, Eileen Hagerty, Dan Heffernan, and Joe Green, for their contributions to this note.

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