The BSEA statistics for Fiscal Year 2019 and the overview given of the year by BSEA Director Reece Erlichman provide interesting insights into not only the invaluable work of the BSEA, but also into some trends in the subject matter of special education disputes in the Commonwealth.

As sure a thing as any, the number of rejected IEPs has again increased.

• FY19 – 11,979
• FY18 – 11,900
• FY17 – 11,400
• FY16 – 10,800

The number of hearing requests has remained relatively stable over the last few years, with the exception of a significant spike in FY16.

• FY19 – 483
• 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.  FY18 yielded the lowest number of full hearings (13) since the early days of the BSEA.  The consensus is this was 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.  Settlement conferences were held in 76 of the cases that were filed for hearing in FY 2019 (as compared to 78 in FY 2018 cases), of which 67 were settled. The other factor was the use of pre-trial motions to resolve matters completely or position them for resolution.  FY19 saw 19 matters going to full hearings, which is consistent with recent trends.

• FY19 – 19
• FY18 – 13
• FY17 – 22
• FY16 – 23
• FY15 – 18
• FY14 – 25
• FY13 – 52

Of the 19 decisions noted above, parents fully prevailed in 3. The parents were represented by counsel in 2 of those cases and appeared pro se in 1; the school district was represented by counsel in all 3 matters. School districts fully prevailed in 13 of the 19 hearings.  The parents were represented by counsel in 6 matters, and appeared pro se in 7; the school district was represented by counsel in all 13 matters. Mixed relief was granted in 1 matter, with the parent pro se and the district represented by counsel.  In the 2 LEA assignment matters, both districts involved were represented by counsel.

The BSEA conducted 114 facilitated IEP Team meetings, a decrease from the 142 conducted during the previous year. (Note that the BSEA had to decline 29 requests for facilitated IEP Team meetings this year owing to staff unavailability.)

There were 714 mediations conducted in FY 2019 (representing an increase from the 699 conducted during the prior year), with an agreement rate of 83%. The number of mediations and the agreement rate has been consistent for several years.

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 has provided insight into some of the trends reflective in the bulk of the filings.  There was an increase in filings relating to program schools (METCO, vocational schools, school choice, and charter schools) with respect to the procedural and substantive responsibilities of district of residence.  There were also filings involving divorced parents who disagreed about the acceptance of the IEP.  DESE’s stricter rules regarding the use of public funds for non-approved schools also yielded the filing of some hearing requests.

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

The BSEA issued three standing orders in 2019.  These accord private schools and agencies which receive public funding to provide special education services standing to file hearing requests with the BSEA; detail the requirements for filing a request to join a state agency or other party to a BSEA proceeding; and detail rules for communicating with BSEA.  The full standing orders can be viewed here.

We take this opportunity to thank Marc Sevigny for his many years of service as the coordinator of mediations.  He has done a remarkable job and served the school districts and families throughout the state exceptionally well.  The selection of Myrto Flessas as Marc’s successor is widely hailed as a superb choice, and we welcome her to the position.

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