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

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

Providing Notice of a Unilateral Placement

Pursuant to both state and federal law, students with special needs are entitled to a free appropriate public education (“FAPE”).  If parents are dissatisfied with the appropriateness of the school district’s programming, parents have the right to place a student in a private school program at their own expense and seek reimbursement from the district.  This is called making a “unilateral placement.”  Whether or not a lawsuit seeking reimbursement will ultimately be successful depends on a number of complex factors that are beyond the scope of this post, but it is important to provide adequate notice to the school district of a student’s new placement. Continue reading

BSEA Applies Work Product Protection to Non-lawyer Advocate Materials and Communications; The Ruling also Stands as a Caution on Therapeutic/Medical Records

In a Ruling in the matter of In Re: Dorian issued on July 20, 2017, BSEA Hearing Officer Amy Reichbach held that the communications and materials of non-lawyer special education advocates are subject to the protections of the work product doctrine.  The hearing officer reasoned that such protection is necessary in order to minimize the potential chilling effect that discovery of such information would have on parents’ and their consultants’ ability to communicate freely when special education litigation is anticipated. The hearing officer’s analysis vindicates arguments that parent attorneys and advocates have advanced for some time now (see, e.g., our posting on the subject in June 2015).  We hope and trust that her reasoning will be adopted by her colleagues at the BSEA. Continue reading

KCS First and Second Quarter 2016 BSEA Commentaries are Posted!

Our Massachusetts Special Education Reporter commentaries on Bureau of Special Education Appeals (“BSEA”) decisions from the first and second quarters of 2016 are now posted on our website.  It’s always instructive (and often sobering) to see how hearing officers read and apply the law.  They work hard to get it right, and while we don’t always agree with their analyses and rulings, we admire their integrity and diligence as they wrestle with the complex issues, standards, and procedures, seeking the appropriate results amidst the adversarial presentations of parents and districts. Continue reading

Parents are awarded an out of district placement after proving that the district’s program for a child with Autism and Intellectual Disability does not provide FAPE

A Brookline family has just prevailed in a decision issued by the BSEA’s newest hearing officer, Amy Reichbach, finding that the district’s program did not provide a FAPE and ordering Brookline to place the student at the RCS Learning Center in Natick.  In Re: Jacqueline, BSEA #1408578.  Attorney Dan Heffernan of our firm represented the family in this close, complex, and hard-fought case.  The decision highlights many of the types of issues that frequently arise where districts struggle to address the severe and multifaceted needs of children who require intense, systematic, consistent, and comprehensive services and need to be with peers who will provide for mutual learning and progress.  Districts do their best to meet such needs in most cases, but the lack of a sufficient cohort of students with comparable needs and the incompatibility of the normal structure of a regular school setting – generally open and flexible, expecting growing independence from all students – often make it difficult for a severely involved child to make meaningful progress.  Continue reading