FISCAL YEAR 2020 BSEA STATISTICS AND TRENDS

The BSEA statistics for Fiscal Year 2020 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 into the subject matter of special education disputes in the Commonwealth.

Providing yet another example of the never-seen before Covid-19 effects, for the first time in the BSEA’s existence, the number of rejected IEPs actually declined.

Rejected IEPs
FY20 – 9,442
FY19 – 11,979
FY18 – 11,900
FY17 – 11,400
FY16 – 10,800

While the number of hearing requests had basically stabilized over the last few years at around 500, FY20 saw a precipitous drop in the number of hearing requests.
FY 20 – 379
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. Second, was the use of pre-trial motions to resolve matters completely or position them for resolution. Settlement conferences were held in 68 of the cases that were filed for hearing in FY20 (as compared to 67 in FY19 cases), of which 62 were resolved the day of the settlement conference. Although the number of hearing requests filed in FY20 was over 100 fewer that FY19, the number of matters going to full hearings with written decisions was identical.

FY20 – 19
FY19 – 19
FY18 – 13
FY17 – 22
FY16 – 23
FY15 – 18
FY14 – 25
FY13 – 52

Of the 19 decisions noted above, Parents fully prevailed in 4. Parents had counsel in 3. The School Districts fully prevailed in 10 and of those, Parents had counsel in 3, an advocate in 1, and were pro se in 6. 4 cases yielded mixed relief, with Parents having counsel in 2, and pro se in 2. 1 decision involved an LEA assignment.

The BSEA conducted 77 facilitated IEP Team meetings in FY20 (with 8 un-met requests), a decrease from the 114 conducted during the previous year.

There were 573 mediations conducted in FY 20 (another significant decrease – down from 714 in FY19), with an agreement rate of 83%.

Since BSEA filings are confidential, the only publicly accessible information about those is what can be gleaned from the relatively small number of written decisions about some of the cases. However, Reece Erlichman has provided insight into some of the trends reflective in the bulk of the filings. There was an increase in filings regarding providing services in the Least Restrictive Environment (“LRE”), typically involving Parents resisting efforts to move the student into a less inclusive setting. There was a bump in the number of requests involving students with hearing impairments and a continued significant number of filings involving the responsibilities of state agencies, such as DMH and DDS.

A full review of the BSEA statistics from the past 10 years can be found at https://www.mass.gov/bsea-statistics.

A NOTE OF GRATITUDE
We take this opportunity to express immense gratitude to the BSEA. When we consider how various entities and individual responded to the Covid-19 crisis, the BSEA stands out as one of the most remarkable ones. The BSEA, certainly not blessed with the resources of other governmental agencies, didn’t miss a beat. Due to the commitment, vision, and hard work of the BSEA director and hearing officers, the BSEA’s assistance in resolving disputes about the provision of special education services continued without pause. For this, our community is eternally grateful.

We would like to highlight the significant contribution of one hearing officer, Ray Oliver, who retired near the close of FY20 after forty-one years at the BSEA. Ray demonstrated a deep passion for moving adversaries beyond their proud inflexibility as they prepared to do battle in hearings before him. He was truly masterful, most often in pre-hearing conferences but even the day hearings were to begin, in guiding parents, school administrators, and attorneys out of their steadfast certainty to a recognition of various shortcomings. More importantly, Ray was able to so often to get the varied people involved to recognize the long-term costs for both sides of fighting to the bitter end, especially when young children were involved and the parties had many years of dealing with each other ahead of them. His pragmatism and genuine concern for the human costs of litigation spoke volumes to the parties and counsel, and much more often than not, led even the most adversarial and zealous advocates to fair and practical compromise. We are grateful for having the great fortune of practicing before such a fine man and wish him all the best.

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

COVID-19 Compensatory Services: What Are They and Will Your Child Receive Them?

Compensatory education is a well-established remedy for deprivations of special education services, recognized in Massachusetts at least since Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184 (1st Cir. 1993).  The purpose behind compensatory relief is to make the student whole by providing services that place the student in the position that he or she would have occupied if the services been delivered in a timely manner.  The remedy is an equitable one that has been characterized as broad and flexible.  In some cases, school districts (or, when disputes occur, courts, administrative hearing officers, and state complaint agencies) have used a “one-for-one” approach, calculating the hours or days of services that the student missed and ensuring that the student receives compensatory services of the same type and in the same amount.  At other times, compensatory services may differ in type or amount from those the student missed, with the goal of redressing the deprivation by meeting the student’s current needs. Continue reading

A Concerning Trend: Massachusetts Districts Asking Parents to Waive Special Education Rights

In a recently published article, the Boston Globe reports that during this past spring, many school districts across the state asked parents to forgo their children’s special education rights by signing waivers releasing the districts from important special education obligations. These waivers have included releasing districts from providing IEP-related services and programming, conducting special education assessments, and issuing IEPs within state and federal timelines. That districts would request such waivers is concerning enough, in light of clear federal and state guidance that districts must adhere to these obligations despite the COVID-19 crisis. Further concerning is how districts have presented these waivers. Attorneys, parents, and advocates have stated that districts have portrayed the signing of these waivers as a necessary condition for parents to get IEP Team meetings scheduled or for certain services to continue. As a result, many less informed or less assertive parents consented to the waivers, misled by the districts to believe that they had no choice but to do so if they wanted their children to receive assessments, services, or meetings to which the families were in fact already entitled. Continue reading

Uncharted Territory: What Will School Look Like for Special Education Students in the Summer and Fall of 2020?

As most Massachusetts residents know, on March 15, 2020 Governor Charlie Baker ordered all public and private schools in the Commonwealth to cease in-person instruction through April 6, 2020.  That restriction was later extended through the end of the 2019-2020 school year.  The Massachusetts Department of Elementary and Secondary Education (“DESE”) directed school districts to provide students (including special education students) with remote instruction during that time.  With the 2019-2020 school year drawing to a close, DESE been considering summer school programs and looking toward the reopening of school in the fall.  DESE has issued the following guidance on those subjects:

All four documents may be found at http://www.doe.mass.edu/covid19/on-desktop.html. Continue reading

BSEA Issues New Standing Orders Addressing COVID-19-Related Issues

The Bureau of Special Education Appeals (“BSEA”), the state’s administrative body that handles special education cases, has recently issued Standing Orders to address the challenges presented by COVID-19. In order to comply with federal and state mandates requiring that special education timelines be maintained during this global pandemic, the BSEA has ordered that it will continue to hold resolution proceedings (which include Due Process Hearings). In light of the state’s closure and re-opening plans, these resolution proceedings shall be done remotely or virtually and not in-person until further notice. Any requests for a change in date of the resolution proceedings, location of the proceedings, and/or mediums from which to conduct these proceedings must be made to the individual Hearing Officer assigned to the case. Continue reading

Public Toxins and the IDEA: In Quest of an Accountable Economy and a Fully Funded IDEA

In a recently published article for Newsline, a publication of the Federation for Children with Special Needs, Bob Crabtree reflects on the slow process between the time that a substance is recognized as toxic to children and the time that legislatures act (if they act at all) to regulate its use, and the resulting harm to children.

In the article, Public Toxins and the IDEA: In Quest of an Accountable Economy and a Fully Funded IDEA, Mr. Crabtree discusses the implications of this regulatory failure for disability advocacy, with emphasis on the need for a robust independent regulatory system to determine the possible neurodevelopmental effect of materials before those materials are allowed in the marketplace. In addition, Mr. Crabtree argues that Congress must fully fund IDEA to provide adequate support to all children with disabilities, including those children whose disabilities are caused or amplified by harmful products in the marketplace.

(Readers are encouraged to return to this site with comments if they are so moved, as the Federation’s site does not include that option.)

U.S. DOE and DESE Make Clear: Districts Must Provide FAPE During School Closure and Timelines Remain in Effect

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), signed into law on March 27, 2020, contains a provision allowing the U.S. Secretary of Education, Betsy DeVos, to recommend that Congress waive certain requirements during the COVID-19 pandemic, including requirements under the Individuals with Disabilities Education Act (“IDEA”).  Many attorneys and advocates for students with disabilities feared that the Secretary would seek congressional approval to excuse school districts from complying with all of IDEA’s provisions during the current crisis.  Such approval, if granted, could have relaxed IDEA’s substantive obligations, such as the requirement that school districts provide a free appropriate public education (“FAPE”) to students with disabilities, during periods of school closure and/or could have tolled or extended IDEA’s procedural obligations, such as the requirements that district perform evaluations and re-evaluations within specific timeframes. Continue reading

Encouraging Changes: DESE Provides Updated Guidance to School Districts Regarding the Provision of FAPE During School Closures

On March 26, 2020, the Massachusetts Department of Elementary and Secondary Education (“DESE”) provided an important update to school districts on their legal responsibility to provide a free appropriate public education (“FAPE”) to their students with disabilities during the COVID-19-related school closures. This guidance, entitled “Coronavirus/Covid-19 Frequently Asked Questions For Schools and Districts Regarding Special Education,” replaces the previous one that DESE published on March 17, 2020. Also on March 26, 2020, DESE Commissioner Jeffrey Riley issued specific recommendations to school districts about implementing remote learning models, entitled “Remote Learning Recommendations During COVID-19 School Closures.” Continue reading

Reversing a FAPE Freefall? U.S. DOE Upholds Students’ Rights to Special Education During Coronavirus Crisis

On March 21, 2020, the United States Department of Education (“USDOE”), through its Office of Civil Rights (“OCR”) and Office for Special Education and Rehabilitative Services (“OSERS”), issued a Supplemental Fact Sheet, “Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities.”  This guidance provides a necessary corrective to earlier guidance issued by USDOE on March 12, 2020 and by the Massachusetts Department of Elementary and Secondary Education (“DESE”) on March 17, 2020. Continue reading