INTRODUCTION

The BSEA issued two decisions and three rulings in the first quarter of 2017. This represents quite a drop in numbers compared to recent years: In the first quarter of 2016 the Bureau issued four decisions and eight rulings; in 2015, three decisions and eight rulings; and in 2014, seven decisions and five rulings. Wondering if the low numbers for this quarter are part of a longer trend, we took a look at the BSEA statistics from 2011 through 2016[1]; this is what turned up:

Year    Total IEPS  Rejected IEPs              Hearing Requests            Decisions                             Rulings

(with percentages of         (with percentages of

total rejected IEPs)         total hearing requests)

2011:     164,711                8,348                     544 (6.5%)                           35 (6.4%)                             51

2012:     163,679                 8,460                     582 (6.9%)                           52 (8.9%)                             23

2013:     163,921                8,860                     552 (6.2%)                           30 (5.4%)                             37

2014:     164,366                9,830                     590 (6.0%)                           25 (4.2%)                             53

2015:     165,060                10,280                   492 (4.7%)                           18 (3.6%)                             48

2016:     167,530                10,800                   568 (5.2%)                           23 (4.0%)                             48

Of course, the numbers of decisions and rulings will ebb and flow through any year and over a series of years, and the list here does not reliably signal a trend without a lot more analysis, but what does seem true is that as the overall total number of rejected IEPs has grown over the last six years (2,450 more in 2016 than in 2011), the percentage of those rejected IEPs that have been filed with a hearing request seems to have been declining (from, e.g., 6.5% in 2011 to 4.7% in 2015 and 5.2% in 2016). This bears watching: have the percentages of rejected IEPs that have been filed with hearing requests fallen because disputes have been resolved more quickly in general or have the costs, complexity and district-favoring standards and defaults discouraged parents with reasonable claims from seeking due process?

During the six-year period we are looking at here, the percentages of cases filed for hearing that lead ultimately to a final decision—that is, that were not resolved by settlement or withdrawn—seems to have dropped somewhat from a high of nearly 9% in 2012 to a three-year period through 2016 hovering around 4%. This may, in part at least, be due to the BSEA’s active assistance to parties, via mediation, settlement conferences and/or pre-hearing conference discussions, to help them assess their cases and arrive at a negotiated resolution by agreement. To the extent that these efforts are helping parties resolve their differences without the cost and uncertainties of a full hearing, that is, of course, excellent. To the extent, on the other hand, that matters are delayed and costs driven up by battles over issues that have little or nothing to do with the merits of a claim—e.g., discovery arguments where repeated BSEA rulings have made it clear that such arguments will be rejected—the reduction in the numbers of decisions is troubling.

A Note on Endrew

Before we look more closely at the first quarter’s BSEA decisions and rulings, here are a few thoughts on the much-anticipated Supreme Court case that was issued in March concerning the IDEA’s required standard of quality for IEPs, Endrew F. and Douglas County School District, 137 S. Ct. 988 (2017). In a unanimous decision the Supreme Court rejected the view of the 10th Circuit Court of Appeals (authored by the new Supreme Court Justice Neil Gorsuch before he was appointed) that a school district need only offer an educational program that provides a student with something more than de minimis progress from year to year. The Court stated that to set a standard so low “can hardly be said to [offer] an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly ¼ awaiting the time when they were old enough to ‘drop out.’” (quoting Rowley). The Court described the correct standard as follows: “the IDEA ¼ requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

At the same time, the Court reaffirmed, as set out in Rowley, that IDEA does not require districts to maximize a child’s progress to his/her full potential. For a child who can reasonably be expected to participate in the regular classroom, the Court suggested that advancement from grade to grade “is appropriately ambitious for most children.” (It should be noted that the Court added an important caveat to this idea, saying, “We declined to hold in Rowley, and do not hold today, that ‘every handicapped child who is advancing from grade to grade … is automatically receiving a [FAPE]’ [quoting Rowley].”) “If that is not a reasonable prospect for a child, his IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.”

In the wake of Endrew what “circumstances” are relevant to the sufficiency of a student’s IEP will undoubtedly be contested in most special education litigation, as will the question of whether the goals set out for a student are appropriately “ambitious” and “challenging”—words that did not appear in Rowley and that seem to invite advocates to argue for more intense services and higher expectations for students than the bare-bones Rowley formula seemed to suggest. The burden of proof remains on the parents and their experts to prove that the student is not making effective progress in light of his or her “circumstances.” The Court reiterated the position set out in Rowley to the effect that school districts’ expertise should be given deference in cases under IDEA. (“[The] absence of a bright-line rule [¼] should not be mistaken for ‘an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.’”) We do not believe that the standard enunciated in Endrew is materially different from the standard that the Massachusetts BSEA has applied. Overall, setting the legal standard below what is required for a disabled student to achieve the best possible progress remains thin gruel.

The First Quarter’s Decisions and Rulings

Each of the first quarter’s two decisions (Newton and Shrewsbury) concerns an adolescent student with primarily emotional issues; each student had been hospitalized at one or more points in their recent history, and each decision reflects numerous steps in the process between parents and district in efforts to identify and secure services and placements that would stabilize the student’s school experience and enable him or her to progress. The district prevailed in each case.

The three rulings include one (Chicopee and DESE) denying a student’s request that the matter proceed as a class action on behalf of institutionalized students deprived of FAPE in DMH adult units due to DESE guidelines limiting full SEIS (Special Education in Institutional Settings) services to institutionalized students in child and adolescent units. In the same ruling, the hearing officer also dismissed those of the student’s claims that were not based on federal or state special education law or Section 504. In a second ruling (Danvers) the hearing officer denied a motion that he recuse himself because the parent had felt that his friendliness toward the school attorney and his caution to the parent not to interrupt another’s remarks at a prehearing conference indicated bias. In the third ruling of the quarter (Manchester-Essex) the hearing officer denied the district’s motion for a protective order against having to produce documents about students attending private schools where the hearing request claimed that the petitioner, a private school student, was discriminated against by being prevented from participating in field hockey because of a disability.

Two Decisions

Shrewsbury: Student leaves her troubled school history behind with an outside placement; the BSEA denies the parent’s request for remedies based on events before that transition.

In Re: Shrewsbury P.S. and Leah, BSEA #1610565, 23 MSER 21 (Oliver, H.O.) looks back at a period of turmoil in an adolescent student’s school experience to consider her parent’s quest for compensatory remedies based on events occurring before she was finally placed at a private therapeutic day school. The student had suffered bullying and emotional vulnerability in 5th and 6th grades and was moved to a different middle school for 7th grade. Her IEP offered ESY services over the summer before she began 7th grade at the new school. She was hospitalized at the start of 7th grade, then attended school for two to three months with behavioral interventions and counseling, then was withdrawn from school by her parent until the spring when she entered a day therapeutic school with the district’s support.

The parent’s claims did not fare well. As the history is described, the parent appears to have reacted to challenging events with fury and by keeping the student at home or withdrawing the student from school services, without at the same time preserving or actively pursuing her rights to contest the school’s services and proposals in a timely way.

At the BSEA the parent first sought compensation based on her claim that the district’s proposed summer program was inappropriate. The hearing officer rejected that claim because the IEP including that summer program had been fully accepted; the parent never raised any issue about the summer program while it was in operation; and the student never attended that summer program. The hearing officer cited several decisions to the effect that “once an accepted IEP has expired (absent rescission of the acceptance during the life of the IEP), a parent cannot reach back and seek compensatory relief on the theory that the IEP was inappropriate.” (Citing, inter alia, Chris A. v. Stow Public Schools, 16 EHLR 1304 (MA 1990), aff’d on appeal, Amann v. Stow School System, 982 F. 2d 644, 651.)

The parent also sought compensation for a period during which she had pulled the student out of school, from early December 2014 until early May when the student entered the private therapeutic school where she finally began to engage and succeed. The trigger for the parent withdrawing her child was the mother’s (and the student’s sister’s) experience while sitting in their car in the parking lot of the student’s school. Some rowdy students jostled each other and threw a football that hit the car, frightening the mother and the student’s sister. The student herself was not in the vehicle, but in the principal’s office. The mother entered the office and expressed her rage at the event in the parking lot, shouting that the school was not a safe place, and vowing to remove the student and not return—a vow that she henceforth fulfilled. The decision describes efforts by the principal over the following weeks to persuade the parent to return her child to school, until the parent secured a psychiatrist’s certification, about a month and a half after the parking lot event, that the student needed home tutoring due to her emotional condition.

For the period between the parking lot event and the psychiatrist’s certification, the hearing officer held that no compensatory remedy was appropriate. He observed that the district’s program was available during that time and the mother’s choice to keep the student out was due only to the mother’s reaction to the parking lot event, an event in which the student was not involved until she witnessed the mother’s reaction in the principal’s office. The hearing officer found no educational reason why the student could not attend her program, and there was no expert to say otherwise.

As for the period following the psychiatrist’s certification, the hearing officer rejected the parent’s argument that the tutoring then provided by the district was inadequate and failed to cover all the subjects and services that were specified in the student’s IEP. He referred to the psychiatrist’s description of the student’s condition as likely to cause a decrease in her ability to concentrate “due to her mental illness.” The hearing officer also commented that it is unrealistic “to expect that a full school program can be replicated in the context of home/hospital services.” It would have been difficult for the hearing officer to accept the parent’s claim on this point without an expert having evaluated more precisely how fully the student was actually capable of participating in the coursework to be covered with her tutor and by how much the tutoring offered by the district fell short of that potential.

Finally, the parent sought compensatory services following the student’s placement at her therapeutic program because of the time lost to learning while she was riding in a van to and from that program—typically taking more than an hour each way. The hearing officer pointed out that the student herself chose the placement in preference to an alternative therapeutic program that was available closer to her home. He asked at the hearing whether the parent or student would prefer a closer program and they said no. He concluded that the parent and student had “constructively consented” to the extra commuting time. With no expert testimony to support a claim that she needed to have teaching during her commuting time, the parent’s request for this service was rejected.

This case was filed and prosecuted by the parent without an advocate or an attorney. The facts as they are described in the decision would likely have been met with advice from a knowledgeable attorney or advocate against investing in litigation. Nonetheless, the hearing officer clearly handled the matter with courtesy and an even hand; the parent had her “day in court;” and, above all, after what was clearly a tumultuous and troubling time in her life, the student appears to have found a solid and helpful therapeutic/educational home and is progressing well. That is good news. So is the fact that the BSEA process enabled a distraught parent to make her arguments and have them heard and decided fairly and with respect. Sometimes that is all one can ask of the system.

Newton: District Changes Student’s Placement Without Convening Team; the Hearing Officer Finds No Harm, But Is That Really So?

In Re: Newton P.S., BSEA #1607199, 1608074 and 1609518, 23 MSER 11 (Berman, H.O.) concerned a 10th grade student with a history of emotional difficulties attending Newton’s South High School as a general education student since his parents withdrew him from special education programming in June 2015. Parents claimed that Newton had violated the student’s procedural rights by making placements without prior written notice and without their participation in the decision-making process that led to the placements.

The student resided in the South High School’s zone, and had, through his 7th grade year, attended Oak Hill, a feeder middle school for South High School. (Newton’s system maintains two zones, north and south, within which students generally are assigned from elementary through high school grades.) Problems with bullying and emotional deterioration in the spring of 7th grade had led the student’s Team and parents to agree that he have an extended evaluation for 45 days to evaluate his needs and see if his behavior could be stabilized. The Team considered the preliminary results of that evaluation at the end of the school year and proposed that he transfer for 8th grade in September to the Day Middle School, a middle school within Newton’s North High School zone. Under that IEP, which was accepted by the parents, the service grid outlined a full-inclusion program. At the Team meeting, Newton staff had mentioned that there was a substantially separate therapeutic program within the Day Middle School—the so-called “Bridge Program”—that might be available as a fall back option for the student if things did not work out in the inclusion setting, but that was not the intent of the Team and it was not proposed within the IEP.

However, just prior to the opening of school in the fall staff of the Day Middle School decided instead to place the student in the therapeutic Bridge Program rather than the inclusion program. His parents did not learn of this change in placement until they saw an email alluding to the Bridge Program a few days into the school year. The parents responded to that email with a phone call to the Newton staff. Newton continued the student’s enrollment in the Bridge Program without convening the Team, or making any change in the IEP, and at the BSEA hearing the district argued that the parents had agreed to the change in placement in their phone call after the start of the school year. At a later point in the year, because of some difficulties between the student and some peers, Newton altered the student’s schedule again so that, among other less-substantive changes, his academic support classes were taught one-on-one in the library instead of with peers, again without convening the Team or making any change in the IEP.

Although the hearing officer agreed with the parents that Newton had violated the student’s procedural rights by changing his placement without benefit of Team discussion or formal documentation, she found that the parents had agreed to let things stand in the course of the phone call they had with the school staff after school had opened and that the parents’ verbal consent was sufficient to render the violation harmless. When the district moved the student into individual tutoring away from his class in mid-year without benefit of a Team meeting or documentation, the hearing officer determined that also to be a harmless violation of the student’s and parents’ procedural rights because she found that the parents “were aware” of the change and did not formally object to it.

In our view these results allow a district to treat critical procedural protections all too casually, effectively encouraging school districts to sideline parents when they decide that their immediate professional judgement about a student’s needs or the district’s bureaucratic convenience warrant acting without convening the student’s Team and making their way through the required process to validate their actions. While procedural requirements may feel inconvenient and unnecessary to school staff dealing with pressing and difficult circumstances when they believe that they are acting in an intelligent, problem-solving manner, such practices leave parents out of their critical role as members of the decision-making Team, exclude them from participating in what should be a full discussion of options and a chance to ask any and all questions and offer any relevant information they may have (that they may not think to offer in a short phone call or discussion in the hallway), and undermines the parents’ ability to think through a proposed change over time, perhaps with the advice of knowledgeable experts, and to make an informed response to a delivered IEP or amendment. We do not feel that shortcutting the preferred procedures should be blessed by the BSEA with a “no harm, no foul” approach.

Three Rulings

Denying Recusal.

In Re: Danvers P.S., BSEA #1701031, 23 MSER 5 (Oliver, H.O.) denies a parent’s motion for the hearing officer to recuse himself. While the parent’s advocate fairly articulated the parent’s wishes and the reasons for them, she gently distanced herself from the motion. The parent was concerned about this hearing officer’s impartiality because in a pre-hearing conference he indicated that he had known and worked with the school’s attorney for many years. (In his decision the hearing officer noted that he had also known and worked with the parent’s advocate for a number of years.) The parent was also upset that the hearing officer told her not to interrupt the district’s attorney while s/he was summarizing the district’s position, making her feel chastised and belittled.

The hearing officer found no grounds to recuse himself on the basis either of a lack of objectivity/impartiality or of any appearance of such a lack. He cited his 36 years of work as a hearing officer and noted the difference between maintaining friendly and courteous relations with the attorneys and advocates that appear repeatedly in proceedings and any bias that might arise out of such cordial relations. He was sympathetic to the feeling that any parent might have in such a high-stakes and sometimes confusing and overwhelming process, and he understood how a parent might be overly-poised to suspect bias at a critical step in her mission to secure services for her child, but those feelings are not enough to support a motion to have a hearing officer take himself off a case.

The decision is thoughtful and clear in its analysis of the parent’s request, as well as sympathetic and understanding of the reasons for the parent’s concern. We note, too, that the advocate in this matter handled the issue with integrity and in a manner that helped to preserve relations going forward: she articulated and explained the parent’s concern without condescension, but also in a way that made it clear that she did not share the parent’s concern herself but sought a ruling so that the parent could be fully heard and have a thoughtful response to the issue. As an advocacy matter, dealing well with this kind of situation can sometimes help to create a more productive atmosphere in the more substantive phases of a case. We know that hearing officers take great pains to make sure that the hearings and interactions between the parties and the hearing officers proceed without a hint of any leanings.

Dismissal of Non-IDEA-based Claims Made By A School-Age Adult At A DMH facility, As Well As Denial of His Motion to Proceed as Class Action.

The ruling in In Re: Chicopee P.S., and Mass. DESE, BSEA No. 1608986, 23 MSER 1 (Berman, H.O.) disposes of motions arising in a case involving an 18-year-old student who had moved to Chicopee from New Jersey shortly after the school year began. He had an accepted IEP from the district he had left behind. Less than two months after arriving in Chicopee, the student was hospitalized at a DMH facility in Worcester where he was assigned to an adult unit. Although DESE’s division that is responsible for maintaining and operating school services within state institutions, SEIS provided educational services within the DMH facility’s adolescent unit, educational services within the adult unit were limited to individual tutoring and, according to the student in this case, could not implement the student’s IEP.

At the BSEA the student sought remedies under IDEA and Section 504—clearly within the jurisdiction of the BSEA—and he also sought remedies pursuant to the Americans with Disabilities Act (the “ADA”), the Fourteenth Amendment of the U.S. Constitution, and the Massachusetts Declaration of Rights under the Commonwealth’s Constitution. In addition, he asked the BSEA to allow the matter to proceed as a class action, alleging that the conditions that render SEIS unable to meet his educational needs similarly deny the educational rights of all school-age students assigned to DMH’s adult unit with, or eligible for, IEPs.

The hearing officer denied the Student’s request to have the appeal proceed as a class action. She pointed out that the BSEA has consistently refused such requests on the ground that nothing in the statutes that define its jurisdiction authorizes the agency to go beyond resolving the dispute between individual parties in an appeal. If and to the extent that she might find that DESE or the school district had violated applicable statutes or regulations, the hearing officer would craft appropriate relief addressing any educational deprivations those violations might have caused this student, but, she stated: “I may not [¼] make findings, or order relief, as to a broader class which includes persons who do not have disputes before the BSEA and, therefore, have not presented evidence as to whether and how these policies and procedures have affected their rights to a FAPE.”

Turning to the non-IDEA or 504 claims made by the student (ADA, 14th Amendment and Mass. Declaration of Rights), the hearing officer dismissed those claims for lack of jurisdiction and also noted that the BSEA could not genuinely assist the federal court, should those claims be filed in that forum, by creating a record to contribute to the court’s deliberations concerning those non-IDEA or 504 claims. The BSEA, said the hearing officer, “lacks both expertise and experience in these areas of the law to evaluate and adjudicate such claims.”

The hearing officer’s reference to whether the BSEA could helpfully take evidence relating to non-IDEA or 504 claims harks back to the federal district court’s decision in Frazier v. Fairhaven School Committee, 276 F. 3d 52 (1st Cir. 2002). In Frazier, the judge ordered a case seeking tort damages on behalf of a student remanded to the BSEA, even though the BSEA had no jurisdiction over such a claim, to exhaust procedures there to the extent that the BSEA could provide some meaningful relief or produce a superior record on which the court could then make a determination. The same district court in a later case had determined that exhaustion at the BSEA would not provide the benefits of “meaningful relief” or a “superior record” relating to claims of bodily injury and tort. Bowden v. Dever, 8 MSER 90 (D. Mass. 2002). The hearing officer in Chicopee ruling concluded that, just as the BSEA has no particular expertise with claims in tort, neither does the BSEA have any particular expertise with the ADA, despite its substantive similarity to Section 504.

We note that the attention the hearing officer felt she must pay to the Frazier exhaustion requirement may no longer be necessary after a recent Supreme Court decision in which the Court determined that a party need not exhaust state-level administrative remedies codified in the IDEA when the root of the plaintiff’s lawsuit is not related to the denial of FAPE. Fry v. Napoleon County, 137 S. Ct. 743 (2017). Presumably, that holding would apply even in a case where a court might wish to have the benefit of BSEA findings that could contribute to the court’s deliberations over non-IDEA claims. It remains to be seen how Fry will be applied in future BSEA filings that include claims based on non-IDEA or Section 504 causes of action, but it should, at least, greatly reduce the number of non-IDEA-based matters cautious counsel feel must first be filed at the BSEA to ensure that claims they will ultimately pursue in federal court will not be dismissed for lack of exhaustion under Frazier.

As for the inability to bring a claim against DESE as a class action because of the limits on the BSEA’s jurisdiction, perhaps advocates should consider seeking legislation to extend such jurisdiction to the BSEA in appropriate cases. The BSEA could surely handle what would likely be a very small number of such actions, especially if the numbers of full hearings and decisions continue to decline. The benefit in addressing policies and protocols that affect large numbers of students could be substantial.

This Chicopee case describes troubling circumstances that likely affect numerous students who are patients situated at DMH, and possibly at other state-run facilities, who are assigned to adult units due to their age and who, thereby, are deprived of access to services they would otherwise receive under an IEP. It is likely that many or most of such adults or their families do not have the means to pursue a claim against DESE to redress the failure to provide the services to which they are entitled under IDEA, and other issues are too overwhelming for families to pursue these educational rights. A class action based on what should be easily discoverable uniformity of DESE practices affecting most or all of the school-age adults so situated, limiting their educational service to a minimum of tutoring, could provide a means to right a wrong that otherwise may well go unaddressed. Alternatively, again with legislative help, funding ought to be made available to DESE, along with specific confirmation of a school-age adult’s right to full IEP implementation, to ensure that school-age adult residents of DMH or other facilities are afforded the full expanse of services for which they are eligible under state and federal special education law.

Parents Are Entitled to Production of Redacted Student Information in Connection with Claim of Private School Student’s Discriminatory Exclusion from School-based Athletic Activity

The ruling in the matter of In Re: Manchester-Essex Regional S.D., BSEA #1702730, 23 MSER 8 (Berman, H.O.) concerns a private school student’s claim that she has been excluded from the district’s field hockey activities because of her disability. The student was enrolled at her parents’ expense at a private school. The district excluded her from the field hockey team on the grounds that she was not enrolled in the public school.

The parents had requested production of documents relating to the district’s treatment of other students who are privately funded at private schools when they ask to participate in public school-sponsored athletics. The district raised a number of objections to the discovery request, including the privacy rights of the students whose information the parents sought.

The BSEA routinely denies the frequent attempts by school districts to prevent discovery of redacted information about other students on the basis of privacy, FERPA or relevance. The BSEA has consistently applied a test, drawn from state and federal civil procedure practice, to determine whether a request for discovery of other students’ information should be provided: that it be relevant or reasonably calculated to lead to the discovery of admissible evidence. In this case the hearing officer followed a well-established path for BSEA treatment of arguments based on the other students’ rights to privacy, carving out conditions under which production of the requested documents should be made: i.e., that personally identifiable information be removed from the documents, that the documents be provided to the parents’ counsel without being made available to parents, that the documents be provided to experts only on the condition that the experts also protect the privacy of the documents, and that the documents be either destroyed or returned to the other party once the proceeding is completed (including the lapse of any applicable appeal period or the conclusion of any appeal).

Counsel for both schools and parents have seen the BSEA reach the same outcome time and again in these frequent discovery disputes and practitioners at the BSEA should be amply familiar with the conditions on which student records will be ordered to be produced. Perhaps the BSEA could reduce costs both for itself and for the parties (as well as reduce the temptation to file objections to production of the documents) by codifying a presumptive set of conditions for the production of peer records in its rules. There are few cases in which production of such records would not be reasonably calculated to lead to admissible evidence, and nothing in a presumptive rule that sets conditions for such production would prevent a party from arguing either that in a particular case such documents would be irrelevant and/or that production would be genuinely be unlikely to lead to admissible evidence, or that exceptional circumstances would support a different set of conditions for their production. At the very least, when ordering production of the documents after a district tries to prevent disclosure, hearing officers could comment that the procedures have been firmly established and that there was no valid ground to protest production of the information about peers.

CONCLUSION

In this commentary we have reflected on the first quarter’s low number of BSEA decisions and rulings with some attention to the wider context of the issues that were addressed, including a look at the Supreme Court’s recent Endrew decision concerning the standard that an IEP must meet under IDEA.

Looking at several years of BSEA statistics, we don’t think there is enough data to conclude that there is a real trend at this point, but we do think that there are a number of factors—court decisions and school district strategies—arising in recent decades that discourage parents with legitimate claims from pursuing those claims. We hope that the BSEA will consider those factors to help guard against district actions in litigation—especially in pre-hearing phases—that have the effect of delaying the process and driving up parents’ mostly unrecoverable costs and that do not help to resolve genuine legal questions.

The decisions and rulings of the quarter reflect, as always, the mindful professionalism of the BSEA’s hearing officers. While in some cases we may argue for different results or push for more attention to issues that we think may have been overlooked, none of that diminishes our respect for the quality of attention and analysis the hearing officers bring to their cases.

Some years ago now the BSEA faced the possibility of a reorganization that threatened to radically alter the make-up and structure of our due process agency and, in so doing, greatly diminish the quality of process and decision-making afforded to parties appearing before it. Each quarter’s review of the BSEA’s decisions and rulings, before and since that day, amply vindicates the outcome of that reorganization process: the BSEA was preserved as an agency largely because the hearing officers had done their jobs well, a body of thoughtful case analysis had accrued, and parties on both sides of their proceedings could enter litigation with confidence that the adjudicators knew what they were about and would treat claims with the seriousness they deserved.

The problem for parents is not with the quality of adjudication they receive when they ask for the BSEA’s help; it is with the relatively meager standards that apply under IDEA, the Buckhannon and Arlington decisions that prevent parents from recovering expenses for experts and attorney fees in most cases, and the requirement that parents carry the burden of proof under Schaffer, when it is the school districts that hold the bulk of evidence that matters, that control the schedule and limit the circumstances under which parents and their experts can develop their understanding of and evidence about a proposed program, and whose actions and decisions are given deference under the mandate that has now been reiterated in Endrew.[2] n

[1] The BSEA publishes annual statistics at http://www.mass.gov/anf/hearings-and-appeals/bureau-of-special-education-appeals-bsea/bsea-statistics.html.
[2] See Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598 (2001);Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 304 (2006); Schaffer v. Weast, 546 U.S. 49 (2005).