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 remained busy as ever this quarter, somehow outperforming its remarkable end to the previous calendar year. Opening 2026, the BSEA issued thirty rulings – the vast majority of which were authored by Hearing Officer Alina Kantor Nir – and eight decisions.

In addition to the impressive work by the BSEA, we note an important development in a local federal court matter, stemming from a discipline-related case that had been hotly litigated at the Bureau in 2024: Norwood Public Schools, BSEA #2503348, 30 MSER 337 (Kantor Nir, Oct. 8, 2024) (commented in full in our 4th Quarter 2024 Commentary) and Norwood Public Schools and Helena, BSEA # 2501731, 30 MSER 256 (Reichbach, August 29, 2024) (commented in full in our 3rd Quarter 2024 Commentary). In Student v. Norwood Pub Sch., No. 1:25-cv-10009-PBS (D. Mass. 2026), on the parties’ cross-motions for summary judgment, Judge Saris ruled that the BSEA Hearing Officer committed an error of law and abused her discretion in concluding that she was not allowed to consider information made available to a Team conducting a manifestation determination until after its review. The case was remanded to the BSEA for a different Hearing Officer to resolve the dispute. Stay tuned for a potential round three in Norwood.

Finally, we would be remiss to not acknowledge the important work that Hearing Officer Sara Berman has contributed to Massachusetts special education law through her many years of dedication to the BSEA.

READING: NARROWER CASE STUDIES

Many BSEA cases involving students with reading disabilities center on disputes over private special education school placements. This quarter, the BSEA rendered two decisions analyzing narrower, more nuanced issues surrounding specific learning disabilities (“SLD”) in reading, including the particulars of eligibility, Stoughton, and teacher credentials and program fidelity, Winthrop.

Stoughton Public Schools, BSEA No. 2601130, 32 MSER 77 (Putney-Yaceshyn, Jan. 26, 2026) concerned a middle school student whose IEP addressed his emotional and health-related impairments, but not his SLD in reading. The student presented with a complicated educational profile, marked by his longstanding issues with fatigue, peer conflict, and school absences, in the context of his persistent learning challenges, such as his weak working memory and processing speed, as well as his inattention and impulsiveness. While his IEP Team recognized some of the student’s reading challenges, it consistently ascribed them to his attentional and emotional issues.

Over time, the student underwent two outside evaluations, each of which demonstrated that he had an SLD in reading. After the IEP Team’s review of the first report, which resulted from a court-ordered process initiated by Stoughton (i.e., Child Requiring Assistance) that the district, in turn, effectively ignored, the IEP Team deferred adding an SLD in reading to the student’s IEP pending further achievement testing, which it then failed to conduct. The student’s second evaluation diagnosed the student with an SLD in reading, namely, rapid automatized naming dyslexia, due to the student’s struggles retrieving information, which impacted his reading fluency and automaticity. Again, the IEP Team found the student ineligible for special education on the basis of an SLD in reading. They based this on their informal, benchmark data, which purportedly showed that the student was able to decode words at his grade level, and their impression that the student’s attentional and emotional issues explained away his reading struggles.

Crediting the findings and recommendations of the student’s two outside evaluations, the hearing officer found in favor of the parent, determining that the record supported that the student had an SLD in reading and required related services to address them. The hearing officer repeatedly contrasted the depth and rigor of the outside evaluations with the district’s comparatively limited assessments, which relied heavily on classroom observations and screening measures. In addition, the hearing officer rightfully appeared troubled by the district’s failure to complete the very assessments that it claimed it supposedly needed before determining whether the student had an SLD in reading and then its subsequent failure to use the state-mandated form 28M/10 in rendering its determination that the student did not have an SLD in reading.

For parents and their practitioners, this case is yet another reminder that independent expert support is critical. Hearing officers frequently give substantial weight to school-based evaluations, particularly where a student presents with overlapping emotional, behavioral, attentional, and attendance-related concerns that can obscure an underlying SLD. Simply pointing to poor academic performance or generalized struggles with reading is rarely enough to overcome a district’s eligibility determination. Here, the parent succeeded because her experts did far more than identify weak reading skills: they conducted comprehensive evaluations, connected the student’s learning profile to well-recognized markers of dyslexia, explained why the district’s assessments were insufficient, and persuasively articulated the student’s need for specialized reading instruction.

In Winthrop Public Schools, BSEA No. 2604122, 32 MSER 49 (Berman, Jan. 21, 2026), the Hearing Officer considered an even narrower issue, specifically, whether the student’s reading instruction was delivered with appropriate fidelity by a properly qualified and credentialed teacher. The student, an eight-year-old child with diagnoses including specific learning disabilities in reading and writing, among others, had experienced difficulties with decoding, fluency, language processing, and written expression. The parents, both who are public school educators and certified in Orton-Gillingham, contended that the student required more intensive structured literacy instruction delivered by a highly trained reading specialist in order to receive a FAPE. The hearing officer disagreed.

The parents relied on their outside evaluations, which identified the student’s impairments in reading fluency and comprehension and recommended direct, specialized reading instruction. They also presented unusually sophisticated testimony through the student’s mother, herself an experienced special educator and literacy practitioner trained in Wilson Reading and Orton-Gillingham methodologies, who also works as a practicum supervisor for Orton-Gillignham, through the Institute of Multisensory Education (“IMSE”), coaching and supervising teachers to improve the quality of their instruction. The mother provided impressive testimony regarding the hallmarks of effective structured literacy programming and argued that the district’s reading specialist lacked the depth of training necessary to appropriately implement evidence-based instruction for the student.

A key focus at the hearing was the district’s reading specialist and his qualifications. While his credentials were not as extensive as the parents’, the hearing officer credited evidence of his significant experience with structured literacy approaches and rejected the notion that he must hold credentials from professional bodies, such as IMSE, in order to be deemed qualified for his position. While the district acknowledged that both the duration of the student’s lesson and peer matching for instruction were not ideal, the student was nevertheless making progress toward his reading goals. Both the parents’ and their expert conducted an observation of the student’s reading services, concluding that the Orton-Gillingham lesson was not conducted with fidelity, as it contained some, but not all, of the features of the program. Despite finding that the student’s reading instruction was lacking in a variety of ways, the parents’ expert also testified that the student did not require “a full-blown OG lesson” in order to make progress, given his particular deficits. Thus, the parents’ expert’s testimony ultimately undercut the parents’ fidelity argument, reinforcing the district’s position that the IDEA requires appropriate, individualized instruction, not strict adherence to a specific methodology.

We imagine that this loss was particularly tough for the parents, not only because of their unique expertise, but also because the hearing officer seemed to find much of their testimony credible. Nevertheless, the burden for parents is steep, and while the parents identified many departures from best reading practices for the student, they were not sufficient to show that the student was consequently deprived a FAPE.

THE DISTRICT ORDERED TO PROVIDE A RESIDENTIAL PLACEMENT TO AN EMANCIPATED STUDENT AND DDS ORDERED TO PROVIDE SERVICES AND PURSUE GUARDIANSHIP

Attleboro Public Schools and Department of Developmental Services, BSEA No. 2601402, 32 MSER 97 (Figueroa; February 4, 2026) involved a complex nineteen-year-old student in a successful hearing request for a residential placement. It was clear that this student required a residential placement, but the dispute was a lamentable and all too frequent battle about which government entity was responsible for providing that. The student presented with exceptionally low intellectual abilities and adaptive behavior deficits, and carried diagnoses of post-traumatic stress disorder, reactive attachment disorder, and schizophrenia. He experienced homicidal and suicidal ideation at different times and had attempted suicide by hanging and had engaged in serious self-injurious behaviors. Simple activities of daily living, such as bathing, were a struggle. The parents had emancipated the student as a result of safety concerns in the home and rejected his most recent IEP, noting that the student’s inability to generalize skills across settings required residential placement. Since the student could not return home, he would be homeless when discharged from the hospital, unable to plan for himself, administer his medications or ensure his safety. Previous short-term stays in homeless shelters had proved dangerous and inappropriate to meet his needs. As such, the parents argued that the student required residential placement in order to receive a FAPE.

Attleboro argued that the student did not need a residential placement for “educational reasons” distinguishing between his need for a stable place to live and his educational needs. They asserted that his unfortunate situation was a result of parental and systems failures by DDS, psychiatric hospitals and homeless shelters. DDS, who was joined in the action and conceded that it would eventually take responsibility for the student, asserted that by statute it could not be ordered to provide residential placement for a still school-eligible student.

The student had a significant history of abuse and was placed in eleven different foster homes until age seven when he joined his parents who eventually adopted him. The parents dedicated themselves to his well-being and education. This included numerous modifications to their home over the years by installing motion detectors and alarms, removing knives and sharp objects that could be used as weapons, placing a lock on the refrigerator to prevent overeating or access to restricted foods, use of visuals and checklists to assist with hygiene and to complete chores, and implementing a point system with rewards and reinforcements to promote compliance. The parents also arranged for the student’s individual therapy and psychiatric care with fidelity, engaged in family therapy to address the student’s needs, and secured numerous evaluations to better understand and address the student’s disabilities. It is hard to imagine what else the parents could have done for their son.

The student attended Bradley’s day program in Rhode Island beginning in elementary school and at the time of the hearing was in their eighteen- to twenty-two-year-old transition program. While the student did well in both the academic and vocational portions of his day program at Bradley, he struggled with dysregulation in school, with at least one significant event while being transported in the van in November of 2024. Over time, the student settled better into the structure and demands of his program at Bradley until the months preceding his hospitalization in April 2025. Subsequently he had not received any significant educational programming and has had zero access to the vocational portions of his program up through the late October 2025 hearing.

The hearing officer concluded that the day program at Bradley was insufficient to afford the student a FAPE as manifest by his inability to generalize the skills learned there or access the program for many months preceding the hearing. Therefore, Attleboro must provide a residential placement. Perhaps to avoid the insinuation that the hearing officer based her decision on sympathy for the unfortunate plight of the student and his family, the hearing officer noted that the fact that the student was homeless was “completely irrelevant” to her evaluation of the matter. The hearing officer stated his homeless status neither affords him greater nor lesser legal entitlements and protections pursuant to the IDEA and Massachusetts special education law, and her decision would be the same regardless of this “extraneous information.” As to the student’s “educational needs”, the record was replete with recommendations for residential placement to enable the student to generalize behavioral, social, emotional and ADL skills. These were the very skills targeted in his IEP, and their inclusion in the IEP as goals spoke to the fact that they were educational in nature. As the hearing officer concluded:

The confluence of Student’s deficits, and the nature and severity of his current presentation mandate that he be placed residentially in order to make meaningful educational progress in the areas identified in his IEP, which includes generalization of skills and his ability to access the day portion of his educational program. Such needs are not “separable from [the student’s] educational problems.” Gonzalez v. Puerto Rico Dept. of Education, 254 F.3d 350, 352-353 (1st Cir. 2001). FAPE for Student cannot occur in a less restrictive setting. School Committee of Town of Burlington v. Dept. of Education of Mass., 471 U.S. 359 (1985).

Concerning DDS, because of the student’s extremely low cognitive abilities
and psychiatric presentation, the student also required a competency evaluation to determine DDS’ responsibility regarding guardianship of this student who was beyond the age of majority. DDS was ordered to proceed with a referral to the appropriate authorities within the agency to address the student’s competency and the need for appointment of a guardian immediately, including the need to proceed with a competency evaluation of Student. Once the competency evaluation is completed, if student is deemed incompetent and a recommendation for guardianship is made, DDS shall proceed with the necessary court process to have a guardian
appointed for him.

A NOTE OF APPRECIATION FOR SARA BERMAN

On the occasion of her retirement, we express our deep appreciation for the work of Hearing Officer Sara Berman. For twenty-five years with the BSEA, Sara was consistent with her dedication to the fairness in disputes about the provision of special education services to students with disabilities. She was thoroughly professional in dealing with simple to complex matters. In perhaps the highest praise for any judge, she was fair and impartial. Her decisions were thoughtful and pithy and she carried a heavy caseload with grace. Sara treated all who came before her with respect, and there never was a doubt about what a kind and caring person she has been. We wish you all the best in your well-deserved retirement.