The Bureau of Special Education Appeals’ (“BSEA”) statistics for Fiscal Year 2018 and the overview given of the year by BSEA Director Reece Erlichman provide interesting insights not only into the invaluable work of the BSEA, but also into some trends regarding special education disputes in the Commonwealth.

As has been consistent since such statistics have been compiled, the number of rejected IEPs again increased.

• FY18 – 11,900
• FY17 – 11,400
• FY16 – 10,800
• FY15 – 10,280

While the number of hearing requests declined for the second year in a row, that number is close to prior years with the exception of a significant spike in FY16.

• FY18 – 481
• FY17 – 495
• FY16 – 568
• FY15 – 492

Matters going through full hearings resulting in written decisions were consistently around 50 per year until they declined significantly after FY13.  Last year yielded the lowest number of full hearings (13) since the early days of the BSEA.  The consensus is this is attributable to two factors. First, and most significantly, is the number of matters going to settlement conferences and the effectiveness of Reece Erlichman in getting those matters resolved.  In FY18, there were 78 settlement conferences with 72 of those matters settling that day and several of the others settling thereafter.  The other factor was the use of pre-trial motions to resolve matters completely or position them for resolution.

• FY18 – 13
• FY17 – 22
• FY16 – 23
• FY15 – 18
• FY14 – 25
• FY13 – 52

Of the 13 full hearings, the parents prevailed in only 1.  The parents were represented by counsel in that matter.  The school district fully prevailed in 11 of the cases.  In those, parents were represented by counsel in 2, an advocate in 1, pro se in 7, and did not participate in 1. The remaining full decision involved a private school.

Since BSEA filings are confidential, the only publicly accessible information about those is what can be gleaned from the written decisions about a relatively small number of them.  Reece Erlichman provided insight into some of the trends reflective in the bulk of the filings.  There was an increase in the number of challenges to the adequacy of manifestation determinations in discipline cases.  There were increases in cases involving only 504 issues and cases involving students who are transgender.  There are also matters involving METCO terminating students and what the obligation of the host school district is in those circumstances.

A full review of the BSEA statistics from the past 10 years can be found here.

Some significant changes are coming to the BSEA in 2019.  As will be detailed later, after a review by the Federal Office of Special Education Programs (“OSEP”), the BSEA has proposed new hearing rules, many of which are expected to be implemented in 2019.  These will include the elimination of Advisory Opinions and the elimination of “off calendar” status.   In addition, on January 14, 2019, the BSEA will relocate from Congress Street in Boston to 14 Summer Street, 4^th Floor, Malden.

Daniel T.S. Heffernan, Esq. is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.