Commentary on Massachusetts Special Education Decisions: 4th Quarter 2022, by Daniel T.S. Heffernan and Alicia M.P. Warren:

May 08, 2023


The BSEA had an active quarter, issuing twenty rulings and two decisions. Half of the rulings concerned two Springfield cases, which have been vigorously contested, particularly around discovery-related issues. Parents obtained relief in both decisions this quarter, Scituate and Pembroke and Zeke, which are discussed at greater length below.

Although outside the bounds of the BSEA cases that issued this quarter, we note a significant decision of the U.S. Supreme Court, Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022), which will dramatically curtail the ability of victims of discrimination to obtain damages under federal anti-discrimination statutes.


Before commenting on this quarter’s decisions, we offer an overview of the BSEA statistics for Fiscal Year 2022, relying in part on BSEA Director Reece Erlichman’s always invaluable insights into not only the essential work of the BSEA, but also into some trends regarding the subject matter of special education disputes in the Commonwealth.

The number of rejected IEPs returned to pre-COVID-19 levels:

Rejected IEPs

FY 22 – 11,830

FY 21 – 11,331

FY 20 – 9,442

FY 19 – 11,979

FY 18 – 11,900

FY 17 – 11,400

The number of hearing requests stabilized over the last few pre-COVID-19 years at around 500, but FY 20 saw a precipitous drop in the number of hearing requests with a further decrease in FY 21. While last fiscal year saw an increase in the number of hearing requests, it still remained well below pre-pandemic levels.

FY 22 – 381

FY 21 – 320

FY 20 – 379

FY 19 – 483

FY 18 – 481

FY 17 – 495

Matters going through full hearings resulting in written decisions were consistently around 50 per year until they declined significantly after FY 13. FY 18 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, was the number of matters going to settlement conferences and the effectiveness of BSEA Director 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 48 of the cases that were filed for hearing in FY 22 (as compared to 53 in FY 21 cases), of which 41 were resolved the day of the settlement conference. Although the number of hearing requests filed in FY 22 was significantly higher than FY 21, the number of matters going to full hearings with written decisions was significantly lower:

FY 22 – 14

FY 21 – 24

FY 20 – 19

FY 19 – 19

FY 18 – 13

FY 17 – 22

Of the 14 decisions noted above, Parents fully prevailed in 4. Parents had counsel in 2 and were pro se in the remaining 2. The School Districts fully prevailed in 9. Parents had counsel in 8, and were pro se in 1. In the single case of mixed relief, parents were represented by an advocate and the school district was represented by counsel.

The BSEA conducted 186 facilitated IEP Team meetings, a significant increase from the 127 conducted in FY 20.

BSEA mediators conducted 581 mediations in FY 22, an increase from the 519 conducted in FY 21, yet still significantly below the 714 in pre-COVID-19 FY 19.


In Re: Pembroke Public Schools and Zeke, BSEA No. 2200246, 28 MSER 280 (Reichbach, Oct. 18, 2022), involved the complicated procedural history of a student who had turned twenty-two before the decision was issued. The student had Autism Spectrum Disorder and an Intellectual Disability and had been placed many years earlier by the district as a residential student at the Evergreen Center School (Evergreen), a DESE-approved school.

Evergreen continually analyzed and assessed the student’s behavior and modified his behavior support plans with the knowledge and input of the parent. In November 2019, the parent accepted a proposed three-year reevaluation for the student. That reevaluation consent form listed specific assessments that were to be conducted, including a Functional Behavioral Assessment (FBA). However, Pembroke’s three-year evaluations did not contain an FBA.

The parent accepted the IEP in full in June 2020. The following year, the Team reconvened to develop the 2021-2022 IEP. The parent expressed concerns regarding the student’s behavior and aggression during spring 2021, and the parent formally and specifically requested an FBA in June 2021. Pembroke maintained an FBA was unnecessary and issued an N2 explaining their rationale. Accompanying the N2 was a two-page “Functional Behavior Assessment Summary” which Pembroke maintained was an equivalent assessment, based upon a VB-MAPP assessment summary it had submitted. The parent never challenged this refusal to conduct the FBA.

The parent filed her hearing request in July 2021. In September 2021, as a response to the continued requests by the parent and advocate for an evaluation of the student, Pembroke provided an N1 form that proposed transitional and behavioral testing for the student. Given the parent’s concerns that Evergreen would not conduct an FBA that was focused on sexualized behavior, Kelly McLeod, a BCBA with the Plymouth Area Collaborative (“PAC”) conducted the evaluation. Ms. McLeod observed the student on two occasions but did not observe the student in community settings. Evergreen staff reported that the student’s most prominent socially-significant behavior was his aggressions while the parent reported it was his sexualized behavior as well as his aggressions. Ms. McLeod and Pembroke minimized the importance of the community observation and maintained the FBA would be the same even with that observation. In January 2022, the student’s Team convened for their annual meeting and to review the FBA by Ms. McLeod. After a review of her findings, Ms. McLeod concluded that the student’s current behavior plan was appropriate and recommended the team implement the student’s current plan without changes for student’s new IEP. The parent rejected the proposed IEP, but consented to the placement.

The parent contended that Pembroke violated the student’s right to a FAPE in connection with FBAs in three instances: (1) Pembroke’s failure to conduct an FBA as part of the student’s three-year reevaluation at the end of 2019; (2) Pembroke’s refusal to conduct an FBA when the parent requested one in the spring of 2021; and (3) the exclusion of community observations in the FBA Pembroke ultimately did fund in December 2021. Significantly, the parent did not provide any appreciable challenge to the appropriateness of the IEPs or really advance any claim that proper and timely FBAs would have resulted in substantive differences in the IEPs.

As to procedural protections under IDEA, they are so important that the IDEA recognizes that even if no substantive irregularities have occurred, procedural errors may amount to a deprivation of a FAPE if “the procedural inadequacies—(I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits.” Procedural violations generally do not amount to a per se denial of a FAPE without some showing that they have impacted a student negatively. Recently, however, the United States District Court for the District of Massachusetts upheld a hearing officer’s determination that “although plaintiffs did not make any showing that [Student] suffered any educational harm as a result of” the district’s failure to propose an IEP for a particular school year, the “failure to produce an IEP is so significant and fundamental a procedural misstep that some remedy was justified.” C.D. v. Natick Pub. Sch. Dist., No. CV 19-12427, 2020 WL 7632260 (D. Mass., Dec. 22, 2020) at *12, *16.

In contrast, the district’s refusal to conduct an FBA the parent requested in spring 2021 was contained within the N2 to the parent. Since the parent did not challenge that clear refusal to conduct an FBA, the claim surrounding the failure to conduct that FBA would not lie. Concerning the failure to conduct a community observation as part of the December 2021 FBA, there was no evidence that such a community observation was necessary or denied the student a FAPE.

Pembroke appropriately determined that an FBA was necessary to reevaluate the student in all areas of suspected disability, as communicated in the evaluation consent form sent to the parent in 2019. There was no question that Pembroke’s failure to administer this FBA, which the parent had consented to in connection with the 2019 three-year reevaluation, rendered meaningless her ability to provide informed consent for this FBA, and thus she was unable to participate meaningfully in the decision-making process regarding the administration of an FBA to the student. As such, Pembroke’s procedural error significantly impeded her opportunity to participate in decision-making regarding the student’s access to a FAPE, which, in the context of a procedural violation, establishes a violation of the student’s right to a FAPE. This error was even more significant because it impacted the hearing officer’s ability to determine whether Pembroke’s failure to conduct an FBA in 2019 impeded the student’s right to a FAPE or caused a deprivation of educational benefits. Given the significance of Pembroke’s violation, the parent’s subsequent acceptance of IEPs did not cure the violation. The parent was deprived of both the information an FBA may have provided in 2019 and the opportunity to ensure that one be administered at that time in accordance with her informed consent (and the district’s determination, communicated by its proposal of an FBA in the first place, that such assessment was a necessary).

The hearing officer then turned to the challenging question of what remedy was appropriate for a twenty-two year old student who had already transitioned to adult services. Because an FBA with an observation of the student in the community might yield information that could be useful in future planning for the student, Pembroke was ordered to fund a BCBA (ideally, Ms. McLeod, through a contract with PAC) to observe the student at a doctor’s appointment within the following ninety days and update the December 2021 FBA to incorporate the findings of said observation. If such incorporation would impact the validity of the FBA, the BCBA must conduct an entirely new one.


In Re: Academy of Pacific Rim Charter School and Boston Public Schools, BSEA No. 2303241, 28 MSER 326 (Putney-Yaceshyn, Nov. 7, 2022) involved a fourteen-year-old, ninth-grade Boston Public School student. The student attended the Academy of Pacific Rim Charter School (“APR”). From July 2022 to September 2022, the student underwent an extended evaluation at the Victor School (“Victor”) that was funded by APR.

On September 15, 2022 the Team, including the parent, an advocate, an outside clinician, and representatives from APR, Boston, and Victor convened to review the results of the student’s extended evaluation at Victor and determine what services the student required. Boston staff discussed two different potential in-district placements. At the end of the meeting, the parties agreed that the Parent and APR staff would visit the in-district programs proposed by Boston, that the Team would reconvene to discuss placement, and that APR would draft an IEP to incorporate the recommendations from the Victor report. The Team reconvened on September 26, 2022. The Director of Student Support at APR noted that APR believed that Boston’s English High School program could meet the student’s needs, while taking into consideration the need for a strong transition plan. APR recommended a two-to-three-week placement at Victor with strong collaboration between the schools to accomplish the transition from Victor to Boston. APR issued a proposed IEP with an attached N1 form. The N1 form stated that the services the Team agreed the student required were not available within APR, but were available within the Boston Public Schools, specifically, the substantially separate therapeutic program at English High School. The N1 noted that long-term placement at Victor was rejected, as the services and accommodations the Team determined the student required at the September 15, 2022 meeting were available at English High School. The parent informed the Team that she did not agree with the placement at English High School. APR issued a placement page reflecting a short term placement at Victor from September 28, 2022 to October 12, 2022, as a means to assist the student’s transition to English High School.

In response, the parent checked the “consented to” box and wrote: “I consent to the placement at Victor School only.” She also checked the “refuse the placement” box and wrote: “I refuse the placement at English High School.” The parent then filed a hearing request and moved for a finding of stay put at Victor.

APR followed the procedure outlined in 603 CMR 28.10(6) for “program schools” (which includes charter schools such as APR), which provides that when a program school determines the student may need an out-of-district placement, the program school should convene a Team meeting that includes the home school district. If that Team determines the home district has an appropriate program, they develop an IEP for that program. After the parents and APR had an opportunity to visit the program at English High School, the Boston and APR members of the Team agreed English High School was an appropriate placement. The Team therefore should have written an IEP for placement at English. Instead, APR exceeded its authority and included the short-term, transition period at Victor. Boston was also not yet fiscally or programmatically responsible for the student because the parent had not accepted the English High School placement. Since the initial placement at Victor was pursuant to an extended evaluation and was extended improperly by Victor, the parent had no right to assert stay put rights there. Therefore, the motion for stay put at Victor was denied.

It should be noted, however, that had APR determined that BPS did not have an appropriate placement for the student, it could have offered an IEP providing for placement at Victor and, upon acceptance of the IEP, BPS would have assumed programmatic and fiscal responsibility for the student’s placement at Victor. See 603 CMR 28.10(6)(3). We recognize that program schools are highly unlikely to challenge the home district and typically lob the student back to the home district. However, it is within the program school’s power to do so, as witnessed by this commentator.


In Re: Scituate Public Schools, BSEA No. 2212421, 28 MSER 269 (Berman, Oct. 7, 2022) illustrates the importance of parental participation in the special education process—one of the hallmark underpinnings of the federal Individuals with Disabilities Education Act (“IDEA”) and its Massachusetts counterpart, MGL c. 71B—even when parents disagree. This case concerned a high-performing tenth-grade student, who, by nearly all accounts, was a very successful learner and peer. The student’s parents were divorced, although both parents shared educational decision-making authority. Her mother requested that Scituate conduct a special education evaluation, based on her belief that the student might have a reading disability. When Scituate sought the parents’ consent to evaluate, the mother accepted the evaluation, but the father rejected it, based on his belief that testing was unnecessary and disruptive, and, further, that the student expressed her unwillingness to participate in any such testing. Adopting the father’s and the student’s positions, which were bolstered by teachers’ reports of the student’s progress within her advanced classes, Scituate declined to evaluate her. The mother filed for hearing, seeking a determination that Scituate’s failure to conduct the evaluation deprived the student of a free appropriate public education (“FAPE”), among other claims.

While the circumstances at issue may have given Scituate some pause, the law in Massachusetts should not have. Indeed, state law “unequivocally requires school districts to conduct initial evaluations within 30 days of receipt of consent of a parent” (emphasis original). See 603 CMR 28.04(b). Therefore, Scituate did not have the discretion that it may have had under federal law to elevate the response of one legal parent over the other. Upon receipt of the mother’s consent to evaluate the student, Scituate should have immediately arranged the evaluation, regardless of the father’s rejection and irrespective of the fact that the student may have ultimately refused to participate in testing.


In Re: Westfield Public Schools. BSEA No. 2212235, 28 MSER 257 (Nir, Sep. 29, 2022) grappled with the parents’ discrimination-based claims, grounded in Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and related to the student’s numerous disciplinary exclusions from his public middle school program. The student, who struggled with emotional and behavioral regulation, had served seven short-term suspensions, two long-term suspensions, and one bus suspension. The parents alleged that these suspensions were excessive and disproportionate, thereby denying the student a FAPE. They moved for partial summary judgment. After a thorough analysis, the Hearing Officer denied the parents’ motion, reserving a determination on the merits until after an evidentiary hearing.

While Section 504 requires proof on a number of elements, this case concerned only the fourth and final element: whether the student was “denied the benefits of” or “subjected to discrimination” through the excessive or disproportionate use of discipline. To do so, parents must demonstrate that the school district acted with “bad faith” or “gross misjudgment,” which has been interpreted to mean that the school district “departed substantially from accepted professional judgment, practice, or standards” or has a “particular animus” toward the disabled student. Unfortunately for parents, this standard is very difficult to meet.

As the Hearing Officer reasoned, “[d]iscipline is an essential part of a school’s curriculum.” And while courts can and have found a school to have discriminated against a student where it had treated a student with a disability more harshly than their non-disabled peers, schools have fairly wide discretion in how they mete out punishment, so long as there is a reasonable basis for it. (We note that while the parents appear to have made allegations in connection with manifestation determination reviews (“MDRs”), which introduce another set of rights and obligations, those MDRs were not directly relevant to the Hearing Officer’s analysis).

The Hearing Officer did not reach the merits of the parents’ claims. In denying their motion for partial summary judgment, however, she cited the lack of evidence as to how the students’ nondisabled peers may have been disciplined under similar circumstances, as well as the many actions that the school district took in attempting to address the student’s behaviors and needs, including convening meetings with the parents, proposing and conducting evaluations (such as two functional behavior assessments), proposing an extended evaluation, and offering the student a different mode of transportation to and from school. Although the parents did not succeed on the instant motion, they lived to fight another day, with the benefit of a considered discussion as to what particular pieces of evidence might help the parents overcome the steep burden that they face in pursuing their Section 504 claims moving forward.


The Supreme Court dealt a serious blow to the enforceability of a broad swath of civil rights statutes in Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.Ct. 1562 (2022). Plaintiff Jane Cummings, who is deaf and legally blind, requested that Premier Rehab provide an American Sign Language interpreter for her physical therapy sessions. When Premier Rehab refused, Cummings sought damages under the Rehabilitation Act of 1973 (Section 504) and the Affordable Care Act (ACA). The District Court determined that the only compensable injuries allegedly caused by Premier Rehab were emotional in nature and those were not recoverable in private actions brought to enforce either statute. The Fifth Circuit affirmed.

The Supreme Court, in a six to three decision, affirmed the lower court decisions. It reasoned that Congress, through the Spending Clause of the Constitution, can “fix the terms on which it shall disburse federal money.” Pursuant to that authority, Congress has enacted statutes prohibiting recipients of federal money from discriminating on the basis of certain protected characteristics. This is why only recipients of federal funds can be found liable under these anti-discrimination statutes, which include not only the two statutes forming the basis of Cummings’s claim, but Title IX and the Americans with Disabilities Act as well. The Spending Clause statutes operate by conditioning the offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the federal government and the recipients of federal funds. The Court then went on to note that “hornbook” law states that emotional distress damages are generally not compensable in contract and recipients of federal funds could not expect that they would be liable for emotional distress damages. Therefore, while private causes of action are permissible under Spending Clause antidiscrimination statutes, emotional distress damages are not recoverable. The dissent pointed out that typically the damages under these statutes are only or primarily for emotional distress, and it is preposterous to maintain that recipients of federal funds, contracting not to discriminate, sexually harass, etc. under these statutes are unaware that emotional distress may result from their discrimination and harassment.

In the wake of the Cummings decision, myriad lawsuits across countless jurisdictions under these statutes, where the only damages asserted were for emotional distress, were dismissed.


The Massachusetts Inclusive Concurrent Enrollment Initiative (“MAICEI”), a partnership between high schools and colleges, provides opportunity for disabled students to enroll in college while remaining eligible for special education services through their local school district. Despite the important role that MAICEI serves in educating eligible transition-aged students, the BSEA maintains no jurisdictional authority over the colleges that participate in the program. In In Re: Pembroke Public Schools, BSEA No. 2201226, 28 MSER 344 (Figueroa, Nov. 23, 2022), the parent raised procedural due process violations against Massasoit Community College (“MCC”), due to its failure to include the parent (who was the student’s legal guardian) in meetings, particularly ones addressing the student’s course selection. Finding that procedural and substantive allegations implicating FAPE lie with the school district, in the absence of another responsible entity over which the BSEA does maintain jurisdiction, such as a state agency or program school, the Hearing Officer dismissed the parent’s claims against MCC.

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