How to Request a HearingA due process hearing may only be requested by filing a written request with the opposing party(ies) and simultaneously with the BSEA, at 1 Congress Street, 11th Floor, Boston, MA 02114, or by fax to the BSEA at (617) 626-7270. A BSEA Hearing Form may (but is not required to) be used for this purpose.
Who May Request a Hearing
A hearing request may be filed with the BSEA by any of the following people:
- The student (if age 18 or over);
- The parent(s), or foster parent(s);
- Legal guardian;
- An individual with court-appointed educational decision-making authority;
- An individual acting in the place of the parent (including a grandparent, stepparent or other relative) with whom the student lives, or an individual who is legally responsible for the student’s welfare;
- A surrogate parent appointed by the Educational Surrogate Parent Program;
- Special education director of the responsible school district or state education agency; or
- An attorney or advocate representing any of these people.
Information to be Included in the Hearing Request
A hearing request must include the following information:
- Name and address of the student;
- Name of the school the student attends;
- Name, address and telephone number of both parents or legal guardian, if known;
- Name of responsible school district or state agency;
- Name, address, telephone number and fax number of the attorney or advocate (if any) representing the party filing the hearing request;
- Statement of the issue(s) to be resolved through the BSEA appeals process, including the facts relating to the issue(s);
- Statement explaining the resolution sought through this process.
What Issues May be Addressed Through a Hearing
A due process hearing may address a dispute concerning the eligibility, evaluation, placement, individualized education program (IEP), provision of special education, or procedural protections of state and federal law for students with disabilities. In addition, a parent may request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973.
A school district may not request a hearing on a parent's failure or refusal to consent to initial evaluation or initial placement of a child in a special education program or on a parent's written revocation of consent for further receipt of all special education and related services.
A due process hearing may be used to resolve a dispute between parents, school districts1, private schools and state agencies. The extent of BSEA's jurisdiction over state agencies is limited by statute and regulation. See MGL c. 71B, s. 3; 603 CMR 28.08(3).
The party requesting the hearing shall not be allowed to raise issues at the hearing that were not raised in the hearing request, unless the other party agrees or the hearing request is amended in accordance with state and federal law.
1 Note: Refer to Regulation 28.10 (9), effective July 1, 2005, which prescribes with specificity the discrete procedure applicable when a school district appeals a DESE assignment of responsibility to the BSEA.
Scheduling a Hearing Date
Upon receipt of a written hearing request, the BSEA will notify the parties in writing of the name of the assigned hearing officer, a date for the hearing, and timelines for federally required procedures.
An expedited hearing may be requested pursuant to BSEA Hearing Rule II, which sets forth the criteria for expedited hearing status. Any party may request that the hearing date be advanced or postponed by sending a written request to the BSEA. A copy must be sent to the opposing party. This request must contain the reasons for the postponement or advancement and proposed alternate dates. A BSEA postponement request may (but is not required to) be used for this purpose. A party may also request that a pre-hearing conference occur prior to the hearing.
In most cases, the hearing officer will hold a pre-hearing conference prior to the due process hearing. The principal purposes of the pre-hearing conference are to (1) clarify the issues in dispute, (2) discuss scheduling and hearing preparation and (3) explore the possibility of informal resolution.
Upon the request of a party or on its own motion, the BSEA may issue a subpoena to require a person to appear and testify and to produce documents at the hearing. Please see the BSEA Hearing Rules #7.
Rules and Regulations Governing BSEA Hearings
Due process hearings are conducted in accordance with the Massachusetts Administrative Procedure Act, the Formal Standard Adjudicatory Rules of Practice and Procedure. BSEA due process hearings are also governed by the BSEA Hearing Rules , which set forth the rights and responsibilities of the parties. Department of Elementary and Secondary Education regulations further describe the due process hearings and the authority of the BSEA hearing officers.
What Happens at a Hearing
A due process hearing is conducted by a hearing officer. At the hearing, each party has the opportunity to present evidence (through documents and the testimony of witnesses) to support its position. The parties also have the right to cross-examine witnesses and to submit rebuttal evidence.
In addition, the parties are afforded the opportunity to present oral and/or written argument to the hearing officer.
The hearing officer's decision is based upon the evidence submitted by the parties, and any relevant legal principles.
Representation by an Attorney or Advocate
Each party has the right to be represented at a due process hearing by an attorney or advocate. It is not necessary to have an attorney or advocate to proceed to a due process hearing, although many parties find representation helpful. The BSEA maintains a Directory of Legal/Advocacy Services reflecting agencies/individuals that may be able to provide free or low-cost consultation, technical assistance, referral, advocacy or legal representation.
Due process hearings are conducted by impartial hearing officers employed by the BSEA. The hearing officers do not have personal or professional interests that would conflict with their objectivity in the hearing.
BSEA hearing officers have the power and the duty to conduct a fair hearing; to ensure that the rights of all parties are protected; to define issues; to receive and consider all relevant and reliable evidence; to ensure an orderly presentation of the evidence and issues; to order additional evaluations by the school district or independent educational evaluations at public expense when necessary in order to determine the appropriate special education for the student; to reconvene the hearing at any time prior to the issuance of a decision; to take such other steps as are appropriate to assure the orderly presentation of evidence and protection of the parties' rights at the hearing; to ensure a record is made of the proceedings; and to reach a fair, independent, and impartial decision based on the issues and evidence presented at the hearing and in accordance with applicable law.
Anyone may, upon request, obtain from the BSEA a list of the hearing officers with their qualifications.
The decision of the BSEA hearing officer is a final agency decision and is not subject to reconsideration by the BSEA or the Department of Elementary and Secondary Education. The decision may, within 90 days from the date of issuance, be appealed to the Massachusetts Superior Court or the United States District Court.
A party contending that a BSEA decision is not being implemented may file a motion with the BSEA stating that the decision is not being implemented and describing the areas of non-compliance. The hearing officer may convene a hearing at which the scope of the inquiry is limited to facts bearing on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the hearing officer may fashion appropriate relief.
Upon written request the BSEA will provide an electronic verbatim record of the proceedings or a certified written transcription of the proceedings free of charge. See BSEA Hearing Rules 10 and 15.