Dan Heffernan concentrates his practice in the areas of special education, civil rights, personal injury, medical malpractice, and children’s torts. He represents children with special needs and their families, people injured in accidents, and those who have had their civil rights violated.
Mr. Heffernan has extensive trial experience and has litigated numerous complex cases throughout the Commonwealth and across the country. He has served on the faculty of Harvard Law School’s Trial Advocacy Program, instructing law students in trial preparation and trial techniques. From 1995 to the present he has served on the board of directors of the Federation for Children with Special Needs and was board president from 1995 to 2007. In 2014 he received the 2014 President’s Award from the Federation for Children with Special Needs. In 2002, he and his wife, Julie, received the Dr. Allen C. Crocker Award for Excellence from the Massachusetts Down Syndrome Congress. He writes and lectures frequently on special education law and advocacy. Mr. Heffernan has been named a Super Lawyer in special education law every year since 2005 and was named as a Top Rated Lawyer in Education by The Boston Globe in 2012. From 1995 to 2000, he served as the president of the board of directors of Community Legal Services and Counseling Center. He also serves on the MDSC Education Task Force and the Steering Committee for the Boston Bar Service Innovation Project on the cradle/school-to-prison pipeline. He has two daughters, Maggie and Evie, and a twenty-one year old son, Brian, with Down syndrome.
- U.S. District Court for the District of Massachusetts
- U.S. Court of Appeals for the First Circuit
Abuse and Mistreatment of Children
Widespread reform arose from the lawsuit we brought on behalf of six students who attended the Mission Hill School, a K-8 pilot school within the Boston Public School (“BPS”) system. These six early-primary-school-aged students were the victims of sexual and physical assaults by a peer over the course of two years and were educated in a toxic environment. The abuse began in October 2014 and continued until the perpetrator was finally transferred to another school. The amazing parents of our clients had tried unsuccessfully, in every way they could think of, to have their and other children protected, as well as to get the perpetrator the help he needed. The school administration was dismissive of these and other families and hostile to staff who raised concerns. BPS had let the Mission Hill School operate with shockingly little oversight. We filed suit in 2017 on behalf of two students and had four other students join the suit afterwards. After four years of hard-fought litigation and two mediations with a federal magistrate judge, BPS agreed to pay the families a combined $650,000 in August 2021. This settlement, the largest the City of Boston had paid in a decade, drew significant attention. Certain administrators at the Mission Hill School were dismissed and within weeks of the settlement, the BPS superintendent retained a law firm to conduct an extensive investigation into the Mission Hill School. That investigation resulted in a recently released 189-page report, which gave a scathing assessment of the failures of the administration at the school – relating not only to the particulars of our lawsuit, but the culture of pervasive bullying and sexual misconduct, and the systemic failure to meet the needs of the students there. As a result, the Mission Hill School has been closed.
This case arises out of the abuse and mistreatment of fifteen students with special needs in a program within the Holyoke Public Schools. The students, who were in grades four through eight, all had pre-existing emotional disabilities including anxiety and trauma-related disorders. The defendants included the municipal entities and various school employees. The students were subjected to unnecessary, abusive, harmful and otherwise improper restraints and seclusions. Students were struck, thrown to the floor, and pinned against walls and subjected to humiliating and dangerous “prone” restraints, where they were pinned face-down on the floor. There were numerous instances of staff egging students on or provoking physical interactions to create pretexts for the restraints. In contravention of restraint fundamentals, staff repeatedly failed to take adequate steps to deescalate situations and avoid the necessity of restraints. Restraints and seclusions were routinely used as punishments for being disruptive, disobedient or disrespectful. These included instances where students refused to change into a uniform or for throwing things. All of the students suffered psychological harm as a result of the restraints administered to them, from living in fear of additional restraints, and witnessing the restraint of other students and being educated in an environment that had a culture of violence at the school because of multiple instances of improper restraint.
The case was founded upon the disclosures by a courageous and dedicated whistleblower and investigations by the Disability Law Center and the Massachusetts Department of Early and Secondary Education. The multi-party suit included counts for tort and violations of federal and Massachusetts civil rights statutes. The parties participated in a multi-day mediation, followed by several additional months of negotiating before settling the case for $950,000 to be apportioned among the families.
We represented seventeen plaintiffs in this matter who had varying significant disabilities, including mental illness, cognitive impairments, autism, and social emotional impairments with associated behavioral manifestations. Several had trauma backgrounds. These men attended a 24/7 residential program for varying lengths of time from a few months to several years. Their claims arose from their mistreatment there, relating mainly to the improper and excessive use of restraints. Pursuant to various regulations as well as the accepted standard of care, restraints were only to be administered when there was an imminent risk of injury to the resident or others. Proper restraint training and protocols focus on avoiding restraints and deescalating situations before a restraint becomes necessary. In addition, restraints are to be administered in certain ways, avoiding things such as prone restraints. In this residential program, restraints were used as punishments and intimidations and to exert control over the residents. Sometimes residents were goaded into being aggressive, to justify the application of a restraints. Residents were, on occasion, enlisted to assist in restraining other residents. Some of the restraints resulted in physical injuries that ranged from broken bones and cuts requiring stitching, to scrapes and bruises.
The most significant damages from experiencing as well as witnessing these restraints were emotional. Some residents continue to suffer the effects of the abuse, including post traumatic stress disorder, long after leaving the program. Liability in the case was supported by investigations by several government agencies, testimony from the plaintiffs, statements from employees as well as some surveillance videotape.
After a multi-day mediation, the matter settled for ($4 million) that was apportioned among the plaintiffs by the mediator.
Group Home/Residential School Abuse and Neglect
A seventeen year old young man when he was assaulted by staff at his special education residential school. In addition to physical injuries including a punctured eardrum, he experienced significant trauma as a result of the assault that significantly impacted his adaptive skills. During the weekend, the plaintiff was alone with a particular staff in his residence on several occasions. On one occasion the staff was alone with the plaintiff getting him ready for bed when other staff members heard the plaintiff make vocalizations indicating he was agitated. The staff person said the plaintiff had become aggressive while getting into his pajamas and the staff put him in a basket hold restraint. That restraint was neither an authorized part of the plaintiff’s Behavior Support Plan nor was it, or the alleged precursor aggression, documented by the staff. The plaintiff suffered PTSD and after an extended period at home and in a hospital setting, he enrolled in a different residential school. The particular staff member was dismissed. Liability in the matter was established through the plaintiff’s injuries as well as an outside investigation. The plaintiff’s forensic psychologist opined that the plaintiff had lost many of his adaptive skills as a result of the abuse and neglect. The matter settled pre-suit for $350,000.
A young man with Angelman Syndrome seizure disorder, corresponding speech and learning issues, had been residing in a group home for several years. The parents became concerned when their son began to aggressively protest returning to the residence after weekend visits home and after the emergence of unexplained bruises and other marks. The family installed a “nanny-cam” in their son’s bedroom. To their horror, the video showed their son being hit, slapped and man-handled by various staff, including the house manager. The Department of Developmental Services investigated and criminal charges were brought against the house manager and another staff. It turned out that these two individual had criminal records, one for assault. The victim experienced significant PTSD and emotional damages, in addition to his physical injuries. The matter settled pre-suit for $300,000.
Delayed Diagnosis of Breast Cancer
Two recent cases involved two instances of delayed diagnosis of breast cancer from which the women ultimately died. Both cases settled for significant amounts after the women’s deaths. In one case, the delay occurred because the defendant negligently failed to compare the plaintiff’s prior year’s mammogram with her current mammogram, thereby missing a significant change. In the second case, the women’s primary care physician failed to have the patient undergo annual mammograms, despite the fact that the woman had strong history of breast cancer in her family.
Delayed Diagnosis of Lung Cancer
The plaintiff, a 70 year-old former smoker, saw her primary care physician for a persistent cough. The doctor diagnosed pneumonia, prescribed an antibiotic and sent the plaintiff home. At the insistence of the plaintiff’s niece, who is a pediatrician, the plaintiff returned and requested a chest x-ray. The radiologist’s report of that x-ray revealed a suspicious mass and recommended a repeat chest x-ray and CT scan. The plaintiff was never informed of the results of the chest x-ray. When the plaintiff returned several months later with the same symptoms as earlier, a repeat chest x-ray and subsequent CT scan revealed advanced lung cancer. After establishing that the doctor had altered her records, the case settled prior to trial.
The plaintiff suffered severe emotional and physical damages as a result of the unnecessary and unwanted Cesarean section delivery of her fourth child. After a lengthy trial, the jury awarded a substantial verdict to the plaintiff and her family.
The 17-year-old plaintiff severely injured his leg in a moped accident while on a school trip. His subsequent treatment for these injuries and resulting infection led to a below-the-knee amputation. During jury deliberations, the defendant’s insurance company agreed to pay a substantial settlement to the plaintiff.
Rehabilitation Facility Malpractice
The elderly plaintiff, a distinguished writer, was transferred to a rehabilitation facility within a hospital to recuperate after surgery. When “sitters” assigned to her were either relieved or inattentive, the plaintiff got up from bed, wandered and suffered two falls. After the second fall, her health deteriorated swiftly and she subsequently died. The facility settled for a confidential amount after discovery.
The elderly plaintiff, who had resided at a nursing home facility for several years, suffered a broken leg when when a nurse’s aide failed to use prescribed equipment to transfer the plaintiff from her bed. The elderly plaintiff broke her leg. The aide then put the patient back in bed and the patient did not receive any treatment until the next morning, when she was sent to a hospital. The case settled before suit was filed and resulted in a substantial financial settlement and the termination of the nurse’s aide.
Psychiatric and Social Worker Malpractice
When John and Jane Doe were four and two years old, their father died suddenly and their mother, Mary Doe, began to experience serious mental health issues. Over the course of the next several years, Mary Doe was hospitalized numerous times and treated with an outpatient psychiatrist, social worker and family social worker. Over that same time period, she was horrifically physically, emotionally and sexually abusing John and Jane. The health care professionals involved never took steps to protect the children, or have them removed from her care. The case resulted in significant settlements prior to trial against the family social worker and psychiatrist and a $7.5 million judgment after trial in state court against the mother’s social worker.
Civil Rights-Child Abuse
- Three children with significant disabilities were abused by their teacher over the course of several years. A new classroom aide produced a written diary of this abuse, leading to the firing and ultimate criminal prosecution of the teacher. Civil suit was brought against various school administrators and entities for failing to properly respond to earlier reports of abuse by the teacher. After two weeks of trial, the case settled for $1.5 million.
- Two children with autism were repeatedly restrained as part of a purported “behavior modification” plan. The plan including “floor restraints” where the students were pinned face down on the floor for uncooperative behavior. Both matters settled after suit was filed in federal district court.
- Children with autism spectrum disorders were placed with an inexperienced and unqualified teacher who reluctantly took over the children’s classroom. The teacher pushed, dragged and otherwise manhandled one student, resulting in physical injuries to him as well as emotional trauma to him and his classmates. The case settled during administrative proceedings prior to filing suit in state or federal court.
- A young child was severely burned in a house fire that was caused when a heating appliance ignited a couch. The case settled for a confidential amount after extensive discovery revealed that the appliance was not equipped with adequate safety devices and had not been properly inspected during a service call shortly before the fire.
- A toddler was badly scalded when he climbed into the bathroom sink and turned on the hot water. The family’s heating company had shortly beforehand raised the temperature of the hot water above the level proscribed by the state sanitary code. The toddler has undergone extensive medical treatments, including skin grafts, that will continue until adulthood. The heating company settled the matter at mediation.
- During the remodeling of a condominium building, an elderly resident tripped and fell on a tarp used by painters near the basement parking facility. The painter and management company settled the matter as trial was scheduled to begin.
- A resident of an elderly apartment complex fell after being struck by a closing elevator door. She broke her hip and was thereafter unable to live independently. The investigation revealed that the electric eye in the elevator had malfunctioned, causing the door to close immediately after opened, thereby not according sufficient time to safely exit the elevator. The management company and elevator service company settled after suit was filed.
- The plaintiffs, a mother and her five children, lost their husband and father, who was the belted front seat passenger in a minivan. The minivan went out of control during a lane change and left the road, rolling over four or five times. The suit alleged that the minivan was unstable and was not crashworthy, in that its roof structure failed to provide adequate protection to its passengers in the event of a rollover. The case settled for a confidential amount on the eve of trial.
- The plaintiff, a 20-year-old college student, suffered severe head injuries when the vehicle he was riding in was hit by another car. The suit alleged that the vehicle was not crashworthy in that its interior surfaces and rollbar were not protected with appropriate energy-absorbing padding. The case against the driver and the manufacturer of the vehicle were settled for a confidential amount after extensive discovery.
- A pedestrian, who was six months pregnant, was struck in the crosswalk by an airport shuttle van. Although her baby was unharmed, the pedestrian suffered a significant leg injury which left her with some permanent impairment. The matter settled prior to trial.
- An elderly driver made a left turn into the path of an oncoming bicyclist. Although the bicyclist’s injuries did not initially seem significant, she later developed hip and neck problems that appeared related to the accident. Suit was filed and the matter settled for a significant amount in excess of the automobile insurance policy limits.
- Presenter at Special Needs Advocacy Network’s Annual BSEA Updates, to be held on Friday, January 15, 2021, from 9:30 a.m. – 12:30 p.m. (live webinar only). Dan Heffernan will review the 2020 BSEA case rulings from across Massachusetts. Dan’s selection of cases will reflect those which he feels may represent trends in the interpretation of special education laws. Registration is open for for Members and Non-Members of SPAN by clicking the appropriate link.
- Faculty member at MCLE’s seminar School Law: MCLE BasicsPlus!® held on Tuesday, May 7, 2019 from 9:30 a.m.- 4:30 p.m. at MCLE, 10 Winter Place, Boston, and also available by webcast (either simultaneously or at a later date). The seminar addresses school law and provides a broad, yet detailed overview of school law and its related topics for attorneys to get the tools and information necessary for their practice.
- Presenter at “Basic Rights in Special Education” at Newton PAC meeting on November 7, 2018 from 7:30-9:00, Room 210, Newton Education Center, 100 Walnut Street, Newton, MA. The presentation will cover parent and student rights in special education, including an overview of special education law, a discussion of IEPs, the responsibilities of the school district, approaches to resolving disagreements or disputes, etc. There will also be time for questions and answers.
- Presenter (with Colby C. Brunt and Rosa I. Figueroa) at “How to Try Your 1st (or Next) Case Before the BSEA” which takes place on Tuesday, June 13, 2017 from 9:00 a.m. – 12:00 noon, at MCLE Conference Center, Ten Winter Place, Boston, MA and is also available by live webcast (either simultaneously or at a later date). This program provides a comprehensive overview of getting a case in shape for filing, preliminary proceedings before the BSEA, and preparing for, and going through a hearing in this unique forum.
- Presenter (with Dr. Joseph Moldover) at a live webinar entitled Navigating CONFLICT in the Special Education Process on Tuesday, November 15, 2016 from 7-9:00 p.m. This free webinar will be a discussion of the different types of conflicts that can derail the special education process, address key issues of conflict avoidance and resolution, and answer live, online questions. All registrants will receive an on-demand recording of the webinar.
- Presenter (with Drs. Joseph Moldover and D. Scott McLeon) at a live webinar entitled Educating the Whole Child – Advocating and Caring for Students with Social/Emotional Disabilities on Tuesday, October 27, 2015 from 7-9:00 p.m. This free webinar will be a presentation and interactive discussion focusing on the special education needs of students with social and emotional disabilities. It will also cover assessment issues and strategies; legal and advocacy issues; and concrete methods of supporting students in school. All registrants will receive an on-demand recording of the webinar the day after the live event.
- Presenter of Special Education Year in Review: Significant Cases, Regulations and Legislation at the Federation for Children with Special Needs’ Visions of Community 2015 Conference Workshop (Session 2) on March 7, 2015 from 1:30 pm – 3:00 pm at the Seaport World Trade Center, Boston. Registration is available at FCSN website, along with the schedule of events. Registration deadline is February 27, 2015.
- Presenter of Special Education Law from A to Z, which will be held on May 5-6, 2015 from 9:00 am – 4:30 pm at Crowne Plaza Boston-Woburn, 15 Middlesex Canal Park, Woburn, MA. Presenter on Day 1 of the program.
- Presenter of Overview of Special Education Law at the School Law: MCLE BasicsPlus! program at the MCLE Conference Center, Ten Winter Place, Boston, MA. This program is also available via live webcast (February 9, 2015).
- Presenter of “Agreeing to Disagree: How to Effectively Resolve Special Education Disputes with your School District” at the Bedford SEPAC Special Education Parent Advisory Council meeting at the Lane School Multipurpose Room, 66 Sweetwater Avenue, Bedford, Massachusetts (January 26, 2015).
- Presenter at the November 4, 2013 Massachusetts Continuing Legal Education program on “Key Issues in Special Education Law” (mcle.org).
- Faculty Member (“Grading the Teacher: What You Need to Know About Educator Evaluation Systems”), 13th Annual School Law Conference, Massachusetts Continuing Legal Education (“MCLE”) (May 3, 2013)
- Federation for Children with Special Needs – Annual Conference (2005 to present), seminars on special education, civil rights and personal injury law
- Federation for Children with Special Needs Advocate Training Seminars
- Special Needs Advocate Network Seminars on “Making the Case for Effective Progress” and “Advocates Setting the Stage for Due Process”
- Children’s Hospital Cardiac Neurodevelopmental Symposium, May 2012 – “Special Education Law for the Medically Involved Child”
- Chair, Massachusetts Continuing Legal Education Seminar on Special Education Law
- Harvard Law School Trial Advocacy Seminar faculty
- Massachusetts Bar Association Seminar on Personal Injury Settlements for Minors
- Presentations on Special Education Law to PACs (Parent Advisory Council)
- Massachusetts Down Syndrome Congress Annual Meetings – Seminars on Special Education Issues
- The School to Prison Pipeline, Fed’n for Child. with Special Needs Newsline, Winter 2019.
- Endrew F. v. Douglas County and its Impact on Special Education Law, Boston Bar Journal, Fall 2017, Volume 61, Number 4
- Removing One Hurdle to Civil Rights Claims of Children with Special Needs, 35 Fed’n for Child. with Special Needs Newsline, no. 2 (2015).
- An Overview of Special Education for Family Law Practitioners, Boston Bar Association Family Law Section Newsletter, Spring 2014
- Contributor to Massachusetts Special Education Reporter
- Federation for Children with Special Needs Quarterly Newsline
- Civil Discipline Law-Part 2, 34 Fed’n for Child. with Special Needs Newsline, no. 1 (2013) (with Sherry L. Rajaniemi-Gregg).
- Civil Discipline Law, 33 Fed’n for Child. with Special Needs Newsline, no. 4 (2013) (with Sherry L. Rajaniemi-Gregg).
- Of Rights and Children, 33 Fed’n for Child. with Special Needs Newsline, no. 3 (2013) (with Sherry L. Rajaniemi-Gregg).
- Appeals Court Strikes Down DDS’s Bright Line Floor of an IQ of 70 For Eligibility for Services, 33 Fed’n for Child. with Special Needs Newsline, no. 1 at 2 (2012).
- Back to School – Some Things to Have in Your Knapsack, 32 Fed’n for Child. with Special Needs Newsline, no. 1 at 2 (2011).
- Tough Stance Against Bullying in Massachusetts, 31 , No. 2 Fed’n for Child with Special Needs Newsline, no. 2 at 1 (2010).
Massachusetts Down Syndrome Congress Quarterly Newsletter
- Reap What You Sow At IEP Meetings, Mass. Down Syndrome Cong. Newsl,, Dec. 2012
- College Bound, Mass. Down Syndrome Cong. Newsl., Nov. 2010 (with Jayme Finstein).
- Inclusion, Mass. Down Syndrome Cong. Newsl., Nov. 2010.
- Transition Planning and Services, Mass. Down Syndrome Cong. Newsl., Nov. 2009.
- Steering Committee Member for the Boston Bar Service Innovation Project on the cradle/school-to-prison pipeline (2018).
- Massachusetts Bar Association
- Boston Bar Association, Co-Chair, Delivery of Legal Services Section (2007-2008)
- New England and Massachusetts Super Lawyer® (2005 to present)
- 2014 President’s Award from the Federation for Children with Special Needs.
- Boston Globe’s Top Rated Lawyers (2012)
- Phi Beta Kappa
- 2002 Dr. Allen C. Crocker Award of Excellence from the Massachusetts Down Syndrome Congress
- Board of Directors (1995 to present), Board President (1995 to 2007), Federation for Children with Special Needs
- Board of Directors (1991 to 2004), Board President (1995 to 2000), Community Legal Services and Counseling Center
- Advisory Board (1995 to present), Greater Boston Legal Services
- Hearing Officer, Massachusetts Board of Bar Overseers
- Coach (2000-present), Newton Tigers Special Athletes Program