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Wednesday, November 18, 2015

When Must Massachusetts School Districts Provide Copies of Reports? – An Interpretation and a Call for Revision

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








By Robert Crabtree and Eileen Hagerty
November 17, 2015

"Central to... parents’ effective participation... is their ability to fully digest, understand, and appraise all the relevant information that school participants bring to the table."

We often hear from parents who have asked their school districts to give them copies of evaluation reports as soon as the reports are completed, only to be told that they cannot have those reports until two days before the Team meeting at which the reports will be considered. Many districts will take this position even though the reports in question may have been completed weeks before that meeting.

In our opinion, the districts’ position in those cases is flat wrong.

The districts that take that position cite a regulation (603 CMR 28.04(2)(c)) which provides that, if parents request to see a report that will be considered at a Team meeting, the district must provide a copy “at least” two days before the meeting. (“Days” means calendar, rather than school days, in this regulation.)

If the words “at least” are given any meaning, the regulation is only meant to provide a deadline and is not intended to encourage withholding reports to the last minute.

Moreover, in many cases a different regulation requires delivery far sooner than two days before a Team meeting. The Massachusetts Student Records Regulations require districts to deliver student records to parents “as soon as practicable” after receiving a request, and in any event within ten days (under this regulation too, “days” means calendar days, not school days) following a request. 603 CMR 23.07(2).

The same regulations define a “student record” as including “all information [and materials]… regardless of physical form or characteristics concerning a student that is organized on the basis of the student’s name or in a way that such student may be individually identified, and that is kept by the public schools of the Commonwealth … regardless of where they are located, except for [personal notes, memoranda, etc. kept by a school employee and not made available to others].” 603 CMR 23.02.

Because school evaluation reports identify students by name, they clearly constitute student records. Thus, under the Student Records Regulations, the reports must be provided to parents “as soon as practicable” following a request.

It is obviously “practicable” to copy and deliver an evaluation report, or even a few such reports, within a day or two of receiving a request. Districts often claim, however, that the regulation providing for delivery of evaluation reports two days before a Team meeting (their communications usually omit reference to the words “at least”) somehow trumps the student records requirement and allows them to withhold reports until that two-day deadline is reached. It does not.

Reading the two requirements together, both aim to ensure that parents receive records reasonably quickly after their request. If parents request a student record (evaluation report) less than ten days before a Team meeting, the “practicable” response will always be to deliver that record immediately; in no event, though, should it be delivered less than two days before the Team meeting. The Team-meeting-specific regulation acts, in that case, as a fail-safe provision to ensure that the parents will always have at least two days to review that report.

But, if the parents request a report more than ten days before the Team meeting, and especially if they make the request many days before, they should be given that report immediately (or, if it has not yet been written, as soon as it is available) under the Student Records regulations.

Districts that claim otherwise are pointlessly withholding critical information from parents and undermining what should be a trusting and cooperative relationship, based on a misreading of the applicable legal requirements.

With all that, we think that even if the applicable regulations are accurately interpreted and applied, those regulations beg for revision in keeping with the purposes of IDEA. Team meeting determinations should always be based on informed deliberation and meaningful participation by all parties, including the parents.

Central to the parents’ effective participation in that process is their ability to fully digest, understand, and appraise all the relevant information that school participants bring to the table.

In light of this principle, the regulation providing for delivery to parents of evaluation reports at least two days before their Team meeting, upon request, is deeply flawed in at least two ways.

First, two days prior to a Team meeting is too little time, especially if the parents need to consult with an independent expert to understand and assess the district evaluators’ findings and recommendations. This puts the parents at an unfair disadvantage, particularly in light of the fact that the district has in-house expertise that enables it to interpret its evaluators’ reports and the district has already had plenty of time to review and digest those reports.

When the tables are turned, and it is the district looking for time to review an independent evaluation, the governing regulation (603 CMR 28.04(f)) presents a starkly unjust contrast, giving districts not two, but up to ten school days (not calendar days in this case) to convene the Team after receiving the report.

Districts typically interpret that regulation as license to take a full ten school days to review the report before they convene the Team to discuss it with the parents.

(One unfortunate consequence of that practice, by the way, is that many districts, if they receive a report less than ten school days before the end of the school year, will take the excuse to put off a Team meeting until the fall.)

Second, the current version of the evaluation-specific regulation (603 CMR 28.04(2)(c)) places the burden on parents to make an affirmative request for copies of evaluation reports in order to receive them before the Team meeting. Parents should not have to ask. The regulation should be replaced with a provision requiring districts to deliver copies of any evaluations completed by their evaluators immediately upon completion, without regard to whether the parents request copies. We commend those districts that already make a practice of doing this.

Because evaluations are key to the special education process, timely access to evaluation reports is an important right. Unless and until the Department of Elementary and Secondary Education revises 603 CMR 28.04(2)(c), parents will need to be vigilant and proactive to obtain the information they need.

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Robert Crabtree and Eileen Hagerty are partners in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

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