Daniel T.S. Heffernan, Esq.

Alicia M.P. Warren, Esq.

Kotin, Crabtree & Strong, LLP

Daniel T.S. Heffernan and Alicia M.P. Warren are lawyers at the Newton law firm of Kotin, Crabtree and Strong, LLP, a general practice firm.  They and their colleagues, Eileen M. Hagerty, Marie F. Mercier, and Eliza L.M. Presson concentrate their practices in special education law, among other areas.

INTRODUCTION

             The BSEA closed out the calendar year with a flurry of activity, issuing a staggering twenty-eight rulings and seven decisions.  The parents were unsuccessful in all seven hearings, whether they were unrepresented, represented by an advocate, or represented by an attorney.  One decision, Ashland, Department of Children and Families, and Department of Mental Health tackled issues stemming from a settlement agreement between the parents and the school district, matters into which the BSEA only very carefully wades.  Most of the remaining decisions, particularly Bedford and Pembroke, illustrate the importance of expert support—and just how damaging the lack of it can be to the parents’ claims.  One ruling, Frontier Regional & Union 38 School District, clarified the contours of a school district’s obligations to eligible, homeschooled students, noting that the operative “comparability” standard did not compel a school district to recreate a student’s proposed inclusion services outside of the school environment in order to satisfy that student’s right to a free appropriate public education (“FAPE”).

FISCAL YEAR 2025 BSEA STATISTICS

Before commenting on this quarter’s decisions, we offer an overview of the BSEA statistics for Fiscal Year 2025.

There was a slight increase in rejected IEPs, maintaining the significant increase last year to well above pre-Covid-19 levels:

Rejected IEPs:

FY 25  — 14,345

FY 24  –  14,326

FY 23 –  12,560

FY 22 –  11,830

FY 21 –  11,331

FY 20 –  9,442

FY 19 – 11,979

FY 18 – 11,900

The number of hearing requests had 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. Since then, there has been a steady increase in the number of hearing requests, but still below pre-pandemic levels.

FY 25 – 426

FY 24 –  417

FY 23 – 391

FY22 –  381

FY 21 – 320

FY 20 – 379

FY 19 – 483

FY 18 – 481

Matters going through full hearings resulting in written decisions rose significantly to 29.  The number of full hearings were consistently around 50 per year until they declined significantly after FY 13.  FY 23 and FY24 yielded the lowest number of full hearings to date (12) since the early days of the BSEA. That number remained consistent through FY 24, which was attributable the number of matters going to settlement conferences and the effectiveness of BSEA Director Reece Erlichman in getting those matters resolved, and the use of pre-trial motions to resolve matters completely or position them for resolution. Settlement conferences were held in 39 of the cases that were filed for hearing in FY 25 (down from 42 in FY24) of which 31 were resolved the day of the settlement conference. The number of matters going to full hearings with written decisions:

FY 25 – 29

FY 24 – 12

FY 23 – 12

FY 22 – 14

FY 21 – 24

FY 20 – 19

FY 19 – 19

FY 18 – 13

Of the 29 decisions noted above, the parents fully prevailed in only 5.  Parents had counsel in 4 and appeared pro se in 1 and the school districts were represented in all. The school districts fully prevailed in 17 and were represented by counsel in all. Parents had counsel in 4, were represented by an advocate for a portion of 1 matter, and appeared pro se in 12 full matters and a portion of 1 matter.  Of the 7 cases which involved mixed relief, the parents had counsel in 2, were represented by an advocate in 3, and appeared pro se in 2. The school districts were represented by counsel in all.

The BSEA received 272 requests for facilitated Team meetings, a decrease from the 310 in FY 24.  Of those requests, 47 were declined by the parents, 25 were declined by the school districts, and 41 were declined by the BSEA because of staff unavailability.  The BSEA conducted 151 facilitated IEP Team meetings, an increase from the 138 conducted during the previous year. 8 requests received in FY 25 were conducted in FY 26.

BSEA mediators conducted 670 mediations in FY 25, a slight decrease from 703 conducted in FY 24. There were 1,099 requests for mediations – a decrease from the previous year’s 1,275.  419 were withdrawn or not held due to one party declining to mediate and 132 cases were pending as of 7/1/25.  The agreement rate was 83%.

The biggest “trend” at the BSEA was the substantial increase in matters going to hearing.  There was also an increase in requests for public hearings, as well as for expedited hearings. The number of private school termination cases rose, as did actions for stay-put.

 BEWARE: A LESSON IN “CHANGED CONDITIONS”

In Ashland, Department of Children and Families, and Department of Mental Health, 31 MSER 514 (Mitchell, Nov. 21, 2025), the parent sought to invoke the “changed conditions” provision of a settlement agreement (the “agreement”) that she had previously entered into with the Ashland Public Schools (“Ashland”).  The parent maintained that the student’s condition had changed since the parties had executed the agreement in May 2024, given the student’s intense behavioral deterioration which had resulted in almost monthly hospitalizations.  Based on this turn of events, the parent argued that the student now required a residential placement – not the day placement compelled by the parties’ agreement – in order to receive a FAPE.

While there is no one standard settlement agreement in special education cases, prudent parties often seek to include language accounting for the “what ifs” that may alter the nature of the parties’ arrangement: what if the student is to become separated from an agreed-upon placement for any particular reason, or, as relevant in this case, what if the student experiences a change in their condition.  Specifically, the parties’ agreement required Ashland to fund the student’s attendance as a day student at a mutually agreeable special education day school through the summer of 2026 unless the student suffered “an unanticipated or catastrophic illness or injury prior to August 15, 2026,” at which point the parties would be exempt from their rights and obligations under the agreement.

Relying on S. Kingstown Sch. Comm. v. Joanna, 773 F.3d 344 (1st Cir. 2014), the hearing officer reasoned that “[w]hat constitutes a ‘change in conditions’ involves an analysis of what existed at the time of execution of a settlement agreement as compared to what exists after such execution.”  The hearing officer emphasized that the “existence of ‘new’ information is not necessarily enough evidence to prove a ‘change in conditions’ either.”  While it appears from a footnoted remark within the decision – and, based on our experience in negotiating many similar agreements, we rightfully assume – that the agreement itself precisely defined the very circumstances that would trigger a change in conditions, the hearing officer did not adopt and apply that definition as a “test.”  In fact, the hearing officer questioned whether the parties could permissibly waive South Kingstown’s standard, even if the waiver was explicit within the agreement (which, here, it was not), in consideration of D.R. by M.R. v. E. Brunswick Bd. of Educ., 109 F.3d 896 (3d Cir. 1997).

Ultimately, the hearing officer determined that no changed conditions occurred, and, therefore, the terms of the agreement calling for Ashland to fund the student’s day placement must be enforced.  The facts of the case are detailed and quite sad, showing a thirteen-year-old student with a complex trauma history who had engaged in highly dysregulated and unsafe behaviors, predominantly in his home setting, from a very young age.  Although the student had been experiencing a period of success and stability during the school year preceding the agreement’s execution, the hearing officer placed great weight on the fact that at the time that the agreement was executed, the student was in the midst of a month-long hospitalization, in addition to other considerations about his long history of repeated hospitalizations.  While we believe that the parent made good faith arguments backed by record evidence as to the severity of the student’s need for round-the-clock programming, the takeaway is clear:  analysis of a purported change in a student’s condition will consider the totality of the student’s history; exacerbation of any behaviors or conditions that existed before or during the period in which the agreement was executed will present a steep hurdle for a parent trying to invoke a changed conditions provision, even if the parent subsequently receives expert support that the student now needs something more.  Particularly in cases where a student’s mental health is at issue, we urge parents to tread carefully and to understand that they may be bound by the terms of their agreement, despite a student’s overwhelming need for a new type of placement after an agreement’s execution.