Legal_ServicesforDSSRevised2.doc

MA Department of Social Services Legal Services for Children with Disabilities RFR

Legal Services for DSS-Involved Children with Disabilities

Section 1. Purpose and Overview of the Procurement

The MA Department of Social Services (DSS), the state’s child welfare agency, seeks attorneys to represent parents, guardians and other special education decision makers (hereafter collectively referred to as “education decision makers”) of DSS-involved children with disabilities in matters pertaining to the provision of educational services under the Individuals with Disabilities Education Act (IDEA), as amended, 20 U.S.C. 1400 et seq., G.L. c. 71B, Section 504 of the Rehabilitation Act of 1973, as amended, (hereafter “Section 504”), and federal and state regulations promulgated under these provisions.

This procurement has two initiatives for which contracts will be awarded. Bidders may respond to both initiatives by indicating a desire to be considered for both.

The State-Wide Initiative seeks attorneys to represent education decision makers for children in placement with DSS who are served by DSS area offices across the state, exclusive of DSS’s Boston Region. DSS is prepared to contract with multiple qualified bidders and is particularly interested in identifying contractors within each of its organizational regions.

The Boston Initiative seeks up to three attorneys to represent education decision makers for children who are served by DSS area offices in DSS’s Boston Region and who are, or should be, the responsibility of the Boston, Chelsea, Winthrop, Revere or Brookline Public Schools. In this Initiative, children may be living at home with their caretakers or may be in placement with DSS. DSS particularly encourages attorneys whose offices are located in the Greater Boston area to respond to the Boston Initiative.

Contract(s) will be entered into with bidders deemed qualified and will be fee-for-service. Referral of clients will be made on a rotating basis from a qualified bidder list, except that the geographical location of attorney and education decision maker shall be considered in the Statewide Initiative. Payment will be made on a negotiated hourly rate basis, with a negotiated maximum total case rate. These are not maximum obligation contracts.

The initial duration of the contract is expected to be for up to 30 months, with 1 option to renew for up to 2 years. The anticipated start date is February 1, 2007. The total anticipated duration of the contracts is through June 30, 2011.

Duration of contracts awarded under this RFR is dependent upon appropriation funding, the provisions of Commonwealth Terms and Conditions for Human and Social Services, performance, licensing and Department need.

DSS reserves the right to make contract changes and/or amendments during the term of the procurement as a result of contract monitoring or evaluation.

Section 2. Agency and Project Background A. Agency Organization and DSS Involved Children with Disabilities

DSS’s Central Office is at 24 Farnsworth Street in Boston. The agency has 6 regional offices located in Boston, Brockton, Lawrence, Arlington, Worcester and Springfield. The agency has 29 area offices, each of which is organized for administrative purposes under a regional office. DSS Area Offices house the bulk of the agency’s approximately 3400 employees, most of whom are social workers working with children, youth and families.

DSS provides services and other supports to children, youth and families, including to families with children whose safety is or may be compromised due to caretaking issues. On some occasions, DSS removes children involuntarily from their home and places the children in foster care to ensure the children’s health and safety. Caretakers may also place children voluntarily with DSS for a range of issues. When a child enters “foster care” or “placement,” depending on their needs, they live in foster homes with different levels of support or congregate care settings such as group homes or (twenty-four hour) residential programs. Some children may experience psychiatric hospitalizations during their placements. Depending on the type of living situation and needs, a child may or may not attend school in the community in which she/he resides.

Once placed with DSS, under state special education regulations, see 603 CMR §28.10, a child’s living situation will determine which school district(s) is responsible for programming and/or funding the child’s special education program and services.

Some children are special education eligible before they became involved with DSS. Others become identified as eligible for special education after their involvement, having been referred for special education evaluation by DSS staff or other professionals. Some children are or should be the subject of a “504 plan” which is intended to provide the child with supports based on a finding that they have a disability.

34 CFR §300.519 prohibits DSS from making special education decisions on behalf of children in DSS care or custody. Hence, depending on the circumstances, their special education decision makers may be their parents, foster parents, educational surrogate parents (ESPs) appointed through the MA Department of Education’s Educational Surrogate Parent Program, or other individuals appointed by the Juvenile Court or Probate and Family Court.

B. Family Networks

During 2005, DSS contracted with several private agencies to act as Area Lead Agencies (Leads) and Regional Resource Centers (RRCs). Agents of DSS, the Leads and RRCs work closely with DSS staff at DSS Area Office and Regional Office levels to design and provide an integrated service system to support children, youth and families. Leads, and RRCs in the Southeast and Boston Regions, employ education coordinators who partner with staff in DSS Area Offices to assure that DSS-involved children are enrolled in school, are receiving appropriate educational, including special educational, services and are in educational placements that meet their needs. The education coordinators and other staff of the Boston RRC will be directly involved in the Boston Initiative. Education coordinators in other regions may also be involved in the State-wide Initiative.

C. Project History For over ten years, DSS has provided funding for attorneys who have represented the education decision makers of children with disabilities in DSS placement in disputes with school districts, typically when such children have been identified as needing day or residential school placements. DSS has referred such education decision makers to the attorneys who have then met with the clients and entered into agreements with them concerning their representation. During negotiation and litigation, such attorneys have worked closely with DSS staff while being clear to all that their client is the education decision maker and not DSS.

D. Projected Usage DSS intends to identify no more than 3 Bidders who will be identified as qualified to provide legal services in support of the Boston Initiative. DSS will not set a limit on the number of Bidders who will be qualified to provide legal services for the State-Wide Initiative. DSS will make referrals to individuals on the qualified bidder list for the Boston Initiative on a rotating basis. Referrals to the qualified bidder list for the State-wide Initiative also shall be made on a rotating basis. However, DSS reserves the right to consider the location of the qualified bidder and education decision maker in making such referrals. For example, DSS will not appoint an attorney from DSS’s Western Region to a client served by the Southeast Region. DSS also reserves the right to condition a referral based on the qualified bidder’s willingness to travel to an education decision maker’s local DSS area office for interviews and other meetings if traveling to the qualified bidder’s location would present a problem for the education decision maker.

For a number of reasons, including the newness of the Family Networks initiative and the presence of education coordinators in every DSS area office, it is difficult to gauge the number of referrals that will be made to qualified bidders on an annual basis under these contracts.

Section 3. Performance and contract specifications

A. The State-Wide Initiative

The qualified bidder, also referred to as the “contracted attorney,” will provide advice, counsel and representation to education decision makers on matters affecting children in DSS care or custody who are or should be eligible for special education or identified as eligible for services under Section 504. The contracted attorney will appear before the Bureau of Special Education Appeals (BSEA) in pursuing the appeal rights available to education decision makers under the IDEA, G.L. c. 71B and Section 504, will negotiate with school officials concerning settlement of disputes and will communicate with DSS staff regarding the progress of such activities as discussed herein.

DSS directly, or through its agent, will refer education decision makers who are engaged in disputes with local school districts, to the contracted attorney. Issues will include such matters as the child’s eligibility for special education, the child’s right to a day or residential placement to meet his/her education needs, termination of programming/services, including disputes about readiness to graduate high school, and threatened or actual exclusion from his/her education programming. The contracted attorney will assess the likelihood of success in pursuing resolution of the dispute through the BSEA. The contracted attorney’s legal services will include as necessary and appropriate activities such as: interviewing the client(s), evaluators and education staff, gathering and review of educational records, legal research, filing of a formal demand with school district(s), filing a request for mediation or hearing before the BSEA, attendance at pre-hearing conferences and negotiation sessions, preparation for hearing and trial, and post-hearing memoranda.

Upon receipt of a referral, the contracted attorney shall meet with the education decision maker, explain verbally and in writing that the education decision maker is the client for purposes of the referral and provide legal services in a manner consistent with this arrangement. The contracted attorney shall make every effort to resolve the matter as expeditiously as possible, consistent with high quality practice.

The contracted attorney shall not request nor receive compensation from the education decision maker for his/her representation. In addition, the contracted attorney will not seek payment for services under this contract if he/she receives attorneys’ fees from the school district as the “prevailing party”. 20 USC 1415(i).

In exceptional cases and in the sole discretion of the DSS General Counsel or Deputy General Counsel, funds may be authorized to reimburse the contracted attorney for expert witnesses required in the preparation and/or presentation of the case, provided such reimbursement is agreed upon by such DSS Counsel and the contracted attorney in advance of securing such services.

When a child is in the Department’s care or custody, to enable the Department to appropriately plan for the child, the contracted attorney will communicate with designated DSS staff and/or agent(s) at appropriate junctures throughout the course of the representation to keep such individuals apprised of the status of the case.

No legal services provided under this RFR shall be subcontracted to a third party. The contracted attorney shall comply with the Required Specifications that are posted in the Specifications tab of comm-pass except as such specifications are amended by this RFR.

In cases in which the issue is a disputed program/placement or access to such program, an outcome will be successful if the services provided result in an appropriate program and placement for the child.

B. The Boston Initiative The contracted attorney will provide advice, counsel and representation to educational decision makers on matters affecting children involved with DSS, meaning children at home with an open DSS case or in DSS placement, who are or should be eligible for special education or identified as eligible for services under Section 504. The contracted attorney will appear before the BSEA in pursuing the appeal rights available to education decision makers under the IDEA, G.L. c. 71B and Section 504, will negotiate with school officials concerning settlement of disputes and will communicate with DSS staff and its designated agents regarding the progress of such activities as discussed herein.

DSS’ Boston Region and/or its agent RRC will refer education decision makers who are engaged in disputes with local school districts, to the contracted attorney. Issues will include such matters as the child’s eligibility for special education, the child’s right to a day or residential placement to assess his/her education needs, termination of programming/services, including disputes about readiness to graduate high school, and threatened or actual exclusion from his/her education program. The contracted attorney will assess the likelihood of success in pursuing resolution of the dispute through the BSEA. The contracted attorney’s legal services will include as necessary and appropriate activities such as: interviewing the client(s), evaluators and school staff, gathering and review of educational records, legal research, filing of a formal demand with school district(s), filing a request for mediation or hearing before the BSEA, attendance at pre-hearing conferences and negotiation sessions, preparation for hearing, trial and post-hearing memoranda.

Upon receipt of a referral, the contracted attorney shall meet with the education decision maker, explain verbally and in writing that the education decision maker is the client for purposes of the referral and provide legal services in a manner consistent with this arrangement. The contracted attorney shall make every effort to resolve the matter as expeditiously as possible, consistent with high quality practice.

The contracted attorney shall not request nor receive compensation from the education decision maker for his/her representation. In addition, the contracted attorney will not seek payment for services under this contract if he/she receives attorneys’ fees from the school district as the “prevailing party”. 20 USC 1415(i).

In exceptional cases and in the sole discretion of the DSS General Counsel or Deputy General Counsel, funds may be authorized to reimburse the contracted attorney for expert witnesses required in the preparation and/or presentation of the case, provided such reimbursement is agreed upon by DSS Counsel and the contracted attorney in advance of securing such services.

When a child is in the Department’s care or custody, to enable the Department to appropriately plan for the child, the contracted attorney will communicate with designated DSS staff and/or agent(s) at appropriate junctures throughout the course of the representation to keep such individuals apprised of the status of the case.

The contracted attorney will meet periodically with DSS and/or its agent to discuss his/her insights into the systemic problems affecting access by DSS involved- children to a free appropriate public education under the IDEA and Section 504 and recommendations for resolution.

No legal services provided under this RFR shall be subcontracted to a third party. The contracted attorney shall comply with the Required Specifications that are posted in the Specifications tab of comm-pass except as such specifications are amended by this RFR.

In cases in which the issue is a disputed program/placement or access to such program, an outcome will be successful if the services provided result in an appropriate program and placement for the child.

Section 4. Bidder’s Response A.

Bidder’s Response - Document Submission Requirements

The Bidder’s Response must consist of a Project Narrative that meets the requirements contained in Paragraph B of this section. The Project Narrative must not exceed 5 pages, one-sided, double-spaced with 12 point font and standard one-inch margins. Attachments, including resume, are not included in the page limit. Faxed submissions and electronic submissions will not be accepted.

The Bidder must propose an hourly rate and a maximum total case rate that meet the requirements set forth in paragraph C below. The proposed hourly and maximum case rates shall be set forth on a separate page. It is not included in the page limit.

In addition, Bidders must submit the forms listed in Section 1 of the RFR Cover Sheet. Forms listed in Section 2 of the Cover Sheet must be submitted upon contract award.

The Bidder(s) must submit four (4) unbound originals, with original signatures on each set of required documents.

All responses must be RECEIVED by 2:00 pm on December 20, 2006.

The RFR response must be sealed, labeled with the bidder’s name, and delivered or mailed to DSS at the following address. Submissions must be sent to:

Robert Scherer, Procurement Director Department of Social Services

24 Farnsworth Street, 2nd Floor

Boston, MA 02210 This request for response does not commit DSS to award a contract, to pay any costs incurred in the preparation of a bidder’s response to this RFR, or to procure or contract for services. DSS reserves the right to accept or reject any and all proposals received as a result of this RFR, to negotiate with any or all qualified bidders, and to cancel in part or in its entirety this RFR if it is in the best interest of DSS to do so.

B.

Bidder’s Response – Narrative Requirements

The bidder must specify whether the bidder wishes to be considered for the State-wide Initiative, the Boston Initiative or both. Bidders responding to the Statewide Initiative must specify whether they are responding to receive referrals from any region of DSS or only from a particular DSS region or regions. In the event the bidder fails to specify an Initiative, the bidder shall be considered only for the State-wide Initiative.

In addition, the Bidder’s response must address the following :

1. Qualifications to provide advice, counsel and representation.

If the Bidder is a law firm or other corporate entity, the Bidder must name the attorney who will provide services under the contract. For purposes of the RFR and response, this attorney is referred to as the « contracted attorney » and is the individual who will provide the services under the contract should the Bidder be deemed qualified.

The response must demonstrate that the contracted attorney has at least 5 years experience representing students with disabilities at the elementary and secondary level in securing their educational rights under the IDEA, c. 71B and Section 504. The response must provide in narrative form sufficient detail to understand the nature and extent of the contracted attorney’s experience. A resume or a list of cases alone will not meet this requirement. DSS is particularly interested in the contracted attorney’s experience representing students identified as having emotional impairments and representation of students who have been excluded from school, whether or not the student was identified as a student with disabilities. If the contracted attorney has experience representing children involved with DSS, the Bidder should discuss this experience.

The Bidder must submit a copy of at least one decision by a hearing officer of the Massachusetts Bureau of Special Education Appeals (BSEA) in which the contracted attorney representated the child’s education decision maker in the hearing. In addition, the Bidder must attach a list of citations, not to exceed 5, to BSEA hearing decisions and/or other reported/published decisions of special education or Section 504 cases litigated by the contracted attorney and their outcomes. If a BSEA decision is listed, the BSEA docket number and issue date of decision must be provided.

For the 2005 and 2006 calendar year to date, the Bidder must discuss the approximate number of special education disputes handled by the contracted attorney, the number of BSEA hearings initiated by the contracted attorney, and the number of cases settled favorably by the contracted attorney after hearing.

The Bidder must submit current evidence from the Board of Bar Overseers that the attorney(s) designated to provide services under this contract is an active member in good standing of the Massachusetts Bar.

2. Writing Sample

The Bidder must attach a persuasive legal memorandum (as opposed to a research memorandum) of at least 5 pages in length, written solely by the contracted attorney, concerning the IDEA, c. 71B and/or Section 504. An appropriately redacted closing memorandum submitted for a BSEA hearing will meet this requirement.

3. Understanding of Special Education Decision Maker The Bidder’s response must also discuss the Bidder’s understanding of who has authority to exercise the rights of children with disabilities under the IDEA with particular attention to special education decision making for children in state custody.

C. Bidder’s Response – Hourly and Maximum Case Rate Requirements The Bidder must propose an hourly rate for the legal services requested under this RFR. The Bidder must also propose a maximum total case rate and discuss the rationale for the rate.

Although the bidder will not represent the Commonwealth under this RFR, the bidder will be expected to adhere to The Commonwealth of Massachusetts Billing Guidelines, which are included in this RFR as Attachment A, except as modified by this RFR. There is no reimbursement for travel expenses or travel time under this RFR.

D. Bidder’s Response – Affirmative Market Plan Requirement

Massachusetts Executive Order 390 established a policy to promote the award of state contracts in a manner that develops and strengthens Minority and Women Business Enterprises. A Minority Business Enterprise (MBE) or a Woman Business Enterprises (WBE) is defined as a business that has been certified as such by the State Office of Minority and Women Business Assistance (SOMWBA).

An Affirmative Market Program (AMP) Plan Form is required to be submitted for all Bidders. This form is listed on the Forms and Terms tab of the RFR. In addition, a narrative statement can be included to provide further details of the AMP commitments. Bidders must submit one AMP Plan Form for each M/WBE AMP Relationship, accompanied by the SOMBWA Certificate, or application for certification.

The AMP plan must include some or all of the following components:

· Growth and Development activities to increase M/WBE capacity

· Ancillary Use of certified M/WBE firms.

Please note that “Section 1. Subcontract” of the AMP Plan Form is not applicable to this procurement, as no subcontracting is permitted under this RFR. If applicable, Bidders are encouraged to include additional information in the following components of the AMP Plan Form:

· Past performance or information of past expenditures with certified M/WBEs

· Other Creative Initiatives with SOMWBA certified companies.

Under this RFR, possible business relationships may take the form, for example, of ancillary vendor relationships such as purchase of office supplies, clerical, maintenance, temporary help, or telecommunications or other business services.

Guidance on creating an AMP plan is available at the Operational Services Division web site, which can be accessed at www.mass.gov/osd, or at the Comm-PASS website. Additional resources available to assist Bidders in finding potential M/WBE firms can be found at http://www.mass.gov/Aosd/docs/mwbe/AMP Resources and Guidance.doc. A directory of SOMWBA certified firms is available via the Internet at www.state.ma.us/somwba.

Minority and women-owned firms that are not currently SOMWBA-certified but would like to be considered as an M/WBE for this RFR, either as a bidder, or to be included in the AMP Plan Form, should apply for certification. A fast track application is available, and will be considered for the purposes of this RFR. For further information on SOMWBA certification contact the State Office of Minority and Women Business Assistance at (617) 727-8692 or via the Internet at www.magnet.state.ma.us/somwba.

Once an AMP Plan is submitted, negotiated and approved, DSS will then monitor the contractor’s performance compared to the commitments made in the AMP Plan.

Section 5. Review and Evaluation Process

A.

Evaluation by Committee

All responses shall be initially reviewed to determine compliance with the response submission instructions in Section 4. Responses that meet those requirements shall be reviewed and evaluated by an Evaluation Committee of 3-5 people appointed by DSS, except that the AMP plan portion of each response shall be evaluated by DSS’s Director of Procurement.

The Evaluation Committee shall review the responses using the criteria and process set forth below. The Director of Procurement shall utilize the same rating system and criteria in evaluating the AMP Plan.

Points will be awarded using a rating system and criteria outlined below.

For criteria worth 5 points, points will be assigned as follows:

Inadequate or unacceptable response.

The Bidder is not responsive to the requirement or the response reflects no understanding of the requirement.

Minimal.

The Bidder demonstrates a minimum understanding of the requirements, but does not provide adequate detail or reflects more deficits than strengths.

Fair

The Bidder meets minimal requirements and demonstrates some strengths but also demonstrates some weaknesses.

Good

The Bidder satisfies all the requirements.

Very Good

The Bidder satisfies all requirements and exceeds some.

5.

Excellent

The Bidder exceeds all requirements.

All sections will be rated on a 1-5 scale and each section will be scored as a whole, not be individual elements. For section 1, which has a 20 point capacity, the assigned points will be multiplied by 4. (For example if the score is 3 for “good”, it will be multiplied by 4, for 12 points.)

As part of the evaluation process, the Bidder, including the contracted attorney, must appear before the Evaluation Committee for an oral presentation of a special education or Section 504 case that the contracted attorney has litigated. During the oral presentation, the Evaluation Committee shall ask questions of the contracted attorney about the case presented. The oral presentation shall not exceed one hour. The oral presentation shall be considered part of the response for purposes of scoring the response.

B.

Evaluation Criteria

1. Qualifications and Successful Outcomes – 20 points

· The contracted attorney has at least 5 years practice in special education law and Section 504 representing the rights of children with disabilities on a regular basis.

· The contracted attorney has achieved successful outcomes in his or her special education/Section 504 practice.

· The contracted attorney has experience representing students with emotional impairments; the contract attorney has experience representing students who have been or were threatened with exclusion from school.

2. Written and Oral Skills – 10 points

· The contracted attorney’s writing reflects both knowledge of the IDEA, c. 71B and/or Section 504 and persuasive ability.

· The contracted attorney has verbal skills that will assist in achieving successful outcomes under the RFR.

3. Knowledge of Education Decision Maker Issues - 5 points

· The contracted attorney understands the federal special education requirements governing who makes special education decisions on behalf makers of children with disabilities, including children in state custody.

4. Submission of an AMP Plan – 5 points

· The bidder has submitted an AMP plan that responds clearly and effectively to the requirement.

After assigning points to each section, the Evaluation Committee will total the points and score the responses. The AMP Plan rating, provided by the Director of Procurement, will be added to the score. Bidders that have responded to both the Statewide Initiative and the Boston Initiative will receive the same score for both responses.

C.

Qualifying Bidders

1. State-wide Initiative

State-wide Initiative Bidders that receive a total score of 23 points or more will be deemed qualified bidders and will be invited to negotiate a contract with DSS. Bidders receiving less than 23 points shall be deemed not qualified.

2. Boston Initiative

Boston Initiative bidders that receive a total score of 23 points or more will be rank-ordered by their scores. Bidders receiving less than 23 points shall be deemed not qualified. The three bidders having the highest scores will be deemed qualified bidders for the Boston Initiative. They will be invited to negotiate a contract with DSS.

Section 6. Reasonable Accommodation

Bidders with disabilities or hardships that seek reasonable accommodation, which may include the receipt of RFR information in an alternative format, must communicate such requests in writing to the contact person. Requests for accommodation will be addressed on a case by case basis. A bidder requesting accommodation must submit a written statement which describes the bidder’s disability and the requested accommodation to the contact person for the RFR. The State reserves the right to reject unreasonable requests.

Section 7. Insubstantial Non-compliance

The Committee, in its sole discretion, may determine that non-compliance with any RFR requirement is insubstantial. In such cases, the Committee may:

A. Seek clarification;

B. Allow the Bidder to make minor corrections;

C. Apply appropriate penalties in the evaluation; or

D. Apply a combination of all three remedies.

Section 8. Written Questions

Bidders may make written inquiries concerning this RFR. The inquiries must be RECEIVED no later than December 1, 2006 at 2 p.m.. Written questions should be directed to:

Dianne Curran, Procurement Team Leader

Department of Social Services Office of the General Counsel 24 Farnsworth Street

Boston, MA 02210 Questions may also be submitted by e-mail to Dianne.Curran@state.ma.us.

Inquiries received after the deadline may be disregarded. DSS will review inquiries received before the deadline and, at its discretion, prepare written responses to questions which DSS determines to be of general interest. Any written response will be posted on Comm-PASS. Only written responses will be binding on DSS.

Responses to written questions will be posted on www.comm-pass.com by December 11, 2006.

Section 9. Bidder Communications

Bidders are prohibited from communicating directly with any employee of the State regarding this RFR, except as specified in this RFR, and no other individual Commonwealth employee or representative is authorized to provide any information or respond to any question or inquiry concerning this RFR. Bidders may contact Robert Scherer at 617-748-2093 in the event this RFR is incomplete or the Bidder is having trouble obtaining any required attachments electronically through Comm-PASS.

Section 10. Negotiation

The contract award shall be contingent upon successful negotiation of contract terms.

Section 11. Other Contract Requirements

No attorney shall provide services under this contract unless the attorney is a member of the Massachusetts Bar in good standing and has no apparent conflict of interests. Prior to contracting, the qualified bidder may be required to submit updated evidence that the contracted attorney providing services under this RFR is a member in good standing of the Massachusetts Bar.

Section 12. Open Enrollment

After the initial selection, the Department may invite new bidders to submit responses as it deems necessary during the life of the RFR.

Section 13. Public Records Law

All responses and information submitted in response to this RFR are subject to the Massachusetts Public Records Law, M.G.L., c. 66, s. 10, and to c. 4, s. 7, ss. 26. Any statements in submitted responses that are inconsistent with these statutes shall be disregarded.

Section 14. Procurement Timetable

RFR Issued

November 17, 2006

Bidder’s Written Questions Due

December 1, 2006

Answers to Questions Posted

December 11, 2006

Bidders’ Responses Due

December 20, 2006

Expected Date of Selection

January 19, 2007

Expected Date of Contract Execution

January 26, 2007

Contract Start Date

February 1, 2007