In July of 2010, the Massachusetts Legislature and the Governor enacted Massachusetts House Bill 4800 into law.  

The newly enacted section states “SECTION 53. Chapter 71B of the General Laws is hereby amended by inserting after section 2 the following section: -Section 2A.”  G.L. c. 71B, § 2A; Bureau of special education appeals (BSEA); duties; director; supervision; standards for dispute resolution; confidentiality; hearing officers; memorandum of understanding; bureau of special education appeals advisory council.  

Section 2A(e) creates an advisory council, and 2A(d) requires a memorandum of understanding and interagency service agreement between the department (Department of Elementary and Secondary Education (DESE)) and the division (Division of Administrative Law Appeals (DALA)).  

OpenCommonwealth has sought public records from DESE, DALA, and from each organization who has a seat on the bureau of special education appeals advisory council asking for public records related to the council, its members and the organizational documents.  

OpenCommonwealth has also sought the current and prior 3 years of memorandums of understanding and interagency service agreements between DESE and DALA.  

No public records have been found to this point regarding either, and there is no indication or evidence that the bureau of special education appeals advisory council has ever met or that any members have ever been named in nearly twelve years.  

OpenCommonwealth is keenly interested in these records. They directly relate to the day-to-day operations of the BSEA which is described by many parents as anything but independent and strongly favors school districts and their outside law firms.  

This advisory board is a sorely needed and long overdue step in fulfilling the legislative intent of the BSEA and its mission.  OpenCommonwealth calls on all entities empowered with a seat on this advisory board to assemble, meet, and provide long overdue oversight of the BSEA as called for in this law.   T

he law, in its current state can be found here: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXII/Chapter71B/Section2A   

The public records requests, the law, the history and all documents will be maintained and can be found on OpenCommonwealth.org’s online repositories.  https://www.dropbox.com/sh/sqjsi8xqt05qgyg/AAB0D2Qc14VyPvdwgCI4-k9Wa?dl=0 

Murphy, Hesse, Toomey & Lehane, LLP (MHTL) is a prolific practitioner in front of the Massachusetts BSEA (Bureau of Special Education Appeals).

The jurisdiction of the Bureau of Special Education Appeals is set out in G.L. c. 71B, § 2A.  It conducts mediations and provides advisory opinions and hearings to resolve disputes among parents, school districts, private schools and state agencies concerning eligibility, evaluation, placement, individualized education programs (IEPs), special education services and procedural protections for students with disabilities.

Parents who have problems with their special needs child’s education and are unable to resolve their problems with the school are required to use the BSEA system to resolve their issue(s) before they are allowed to use the Courts.  In short, the BSEA is an administrative remedy that must be exhausted before utilizing the court system.

In legislative intent, the idea of an administrative process, where ideally parents can forgo hiring an attorney (parents can also hire an attorney for BSEA cases and proceedings) and self-represent themselves in a process to address their problems with their school is worthy of attempt.  Unfortunately, more often than not parents who represent themselves face attorneys, and often these attorneys are from MHTL representing the school in these BSEA cases.  MHTL reports representing “approximately 160 school districts and educational collaboratives in the field of Special Education Law” on their website.

OpenMalden has received information from multiple sources indicating scorched-earth tactics employed by MHTL in BSEA cases, apparently to win at all costs, and often at the expense of the most vulnerable children in our society.  In one case, the cost of addressing the issues brought by the parents were expended multiple times over in legal fees paid by the School District paid to MHTL alone.  In other words, the district spent significantly more money defending the BSEA case with their law firm (MHTL) than the actual cost of providing the services requested by the parents.

In an effort to understand the following questions:

·  which schools and districts MHTL currently represents;

·  how much money has been expended by various schools on MHTL representation; 

·  the difference between the cost of BSEA litigation in attorney fees versus the costs to solve the problems raised by parents;

·  and exactly where the money to pay the attorney fees charged by MHTL are coming from; 

OpenMalden has sent public records requests seeking MHTL billing records and payment records to schools across the Commonwealth.

These requests were sent on September 26, 2021.  To Date at least 13 schools/districts have utilized MHTL to attempt to prevent the disclosure of these public records. 

MHTL has written responses and the schools’ re-format the MHTL response to make it appear that the response was from the school itself, and not MHTL.  Why does MHTL not reply itself under its own letterhead and as official counsel to the school?  

We intend to find out, those responses have been and will continue to be appealed to the Massachusetts Secretary of Public Records for a determination and Order to provide the Public Records sought.

If you are interested in the public records sought, and/or the responses of the schools, the appeals and the unfolding records themselves, they are all publicly available and published  here:

https://www.dropbox.com/sh/dpbjbkhvf579pux/AACBGu2AkM2D2M7Vt0geOYtya?dl=0

This story will be updated as additional responses and determinations are issued.

Murphy, Hesse, Toomey & Lehane, LLP (MHTL) is a prolific practitioner in front of the Massachusetts BSEA (Bureau of Special Education Appeals).

The jurisdiction of the Bureau of Special Education Appeals is set out in G.L. c. 71B, § 2A.  It conducts mediations and provides advisory opinions and hearings to resolve disputes among parents, school districts, private schools and state agencies concerning eligibility, evaluation, placement, individualized education programs (IEPs), special education services and procedural protections for students with disabilities.

Parents who have problems with their special needs child’s education and are unable to resolve their problems with the school are required to use the BSEA system to resolve their issue(s) before they are allowed to use the Courts.  In short, the BSEA is an administrative remedy that must be exhausted before utilizing the court system.

In legislative intent, the idea of an administrative process, where ideally parents can forgo hiring an attorney (parents can also hire an attorney for BSEA cases and proceedings) and self-represent themselves in a process to address their problems with their school is worthy of attempt.  Unfortunately, more often than not parents who represent themselves face attorneys, and often these attorneys are from MHTL representing the school in these BSEA cases.  MHTL reports representing “approximately 160 school districts and educational collaboratives in the field of Special Education Law” on their website.

OpenMalden has received information from multiple sources indicating scorched-earth tactics employed by MHTL in BSEA cases, apparently to win at all costs, and often at the expense of the most vulnerable children in our society.  In one case, the cost of addressing the issues brought by the parents were expended multiple times over in legal fees paid by the School District paid to MHTL alone.  In other words, the district spent significantly more money defending the BSEA case with their law firm (MHTL) than the actual cost of providing the services requested by the parents.

In an effort to understand the following questions:

·  which schools and districts MHTL currently represents;

·  how much money has been expended by various schools on MHTL representation; 

·  the difference between the cost of BSEA litigation in attorney fees versus the costs to solve the problems raised by parents;

·  and exactly where the money to pay the attorney fees charged by MHTL are coming from; 

OpenMalden has sent public records requests seeking MHTL billing records and payment records to schools across the Commonwealth.

These requests were sent on September 26, 2021.  To Date at least 13 schools/districts have utilized MHTL to attempt to prevent the disclosure of these public records. 

MHTL has written responses and the schools’ re-format the MHTL response to make it appear that the response was from the school itself, and not MHTL.  Why does MHTL not reply itself under its own letterhead and as official counsel to the school?  

We intend to find out, those responses have been and will continue to be appealed to the Massachusetts Secretary of Public Records for a determination and Order to provide the Public Records sought.

If you are interested in the public records sought, and/or the responses of the schools, the appeals and the unfolding records themselves, they are all publicly available and published  here:

https://www.dropbox.com/sh/dpbjbkhvf579pux/AACBGu2AkM2D2M7Vt0geOYtya?dl=0

This story will be updated as additional responses and determinations are issued.