Daniel T.S. Heffernan, Esq.

Kotin, Crabtree & Strong, LLP

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

INTRODUCTION

             The second quarter of 2025 was the busiest in at least recent history of the BSEA considering the number of full hearings.  While the BSEA has been averaging twelve full hearing a year, it conducted ten full hearings this quarter alone. We comment on four of those decisions.  Melmark reiterates the right of publicly funded students in private schools to assert stay put rights and prevent a private school from terminating the student when no other placement is available.   The hearing officer in District M. provided a detailed order to resolve multiple intractable disagreements between parents and the district over various health plans, evaluations and the IEP.  While the parents in Lexington rejected the district’s attempts to outplace their child, the hearing officer found that the district had provided all it could to the student in its in-district specialized program, and a FAPE could only be provided in an out-of-district special education school.  The parents lost their claim for reimbursement and prospective placement in Sudbury where the district won the battle of the experts.  Of the eighteen rulings, we comment on two relating to the BSEA’s authority to enforce or interpret written agreements: a mediation agreement in Acton-Boxborough Regional School District, and a settlement agreement in Ashland.

ANOTHER PRIVATE 766 SCHOOL IS PREVENTED FROM TERMINATING A STUDENT WHEN NO ALTERNATIVE PLACEMENT IS AVAILABLE

Melmark New England and Bourne Public Schools, BSEA No. 2508471, 31 MSER 75 (Putney-Yaceschyn, April 1, 2025) involves yet another unsuccessful effort by an approved private special education school – in this case Melmark New England (“Melmark”) – to terminate a student when no alternative placement is available.  There was a spate of similar cases brought in 2018 including: Framingham Public Schools and Student v. Guild for Human Services, Inc and the Department of Developmental Services, BSEA No. 1808824, 24 MSER 68 (Putney-Yaceshyn, 2018); In Re: Steve and Worcester Public Schools and Cent. Mass. Collab., BSEA No. 1808823, 24 MSER 162 (Reichbach, 2018); and reiterated again in 2023: Student v. North Middlesex Regional School District and Dr. Franklin Perkins School, BSEA No. 2400589, 29 MSER 221 (Kantor Nir, 2023). In each case, hearing officers held that publicly funded students attending approved private special education schools retain stay put rights to those placements, preventing termination if no comparable program is available.

In this case, the nineteen-year-old student had been placed by Bourne Public Schools in Melmark’s residential program around April 1, 2024. At the time of the hearing, the student was hospitalized, and Melmark refused to allow her to return. Her complex profile included diagnoses of autism spectrum disorder (level 2), mild intellectual disability, attention deficit hyperactivity disorder, combined type, reactive detachment disorder, fetal alcohol syndrome; and specific learning disabilities in reading, writing, and mathematics.

Prior to attending Melmark, the student was placed at Easter Seals. When she was terminated from Easter Seals, Bourne sent twenty-three referral packets to potential placements, and Melmark was the only program that accepted her. Prior her enrollment, Bourne and Melmark signed a “Monitoring & Placement Agreement for [Student],” which contained a clause which allowed Melmark to discharge the student immediately in an emergency, provided the district received notice and had an opportunity to convene an emergency IEP meeting. The clause further allowed a fourteen-day delay in termination at the district’s request, extendable by mutual agreement for an additional fourteen days, but capped at a total of twenty-eight days.

While the student had periods of success at Melmark, she also inflicted serious harm to herself and staff.  Bourne, with parental consent, renewed its search for another placement and sent packets to fourteen programs.  At the time of the hearing, no other program had accepted her.

The hearing officer found that the contract clause between the district and Melmark did not enable Melmark to escape its obligations under the Commonwealth’s special education regulations. She rejected Melmark’s argument that stay put does not apply to private schools for two reasons.  First, 603 CMR 18.00, the regulations governing private special education schools, relate back to the general special education regulations found at 603 CMR 28.00, which include the stay put provision. There is no exemption for publicly placed private school students. As the hearing officer observed in In Re: Northampton Public Schools & Lolani, BSEA No. 04-0359, 9 MSER 397 (Byrne, 2003), “[t]here is no legislative language exempting publicly funded students placed in private special education facilities from application of the ‘stay put’ doctrine, and had the drafters of the regulations intended to strip private school students of a right accorded to public school students they would have said so.

Second, as part of the DESE approval process, and expressly within the “Monitoring & Placement Agreement” Melmark signed, it agreed to comply with the applicable provisions of Chapter 71B and 603 CMR 18.00 and 28.00, which include the stay put provision at 603 CMR 28.02(7).

The hearing officer ordered that when the student is deemed stable and ready for discharge, and if no successor placement has been identified, Bourne must convene a meeting between the parents, Bourne, Melmark, and relevant hospital staff to plan for the student’s return to Melmark. The meeting participants must determine the additional services or staffing necessary to ensure the student’s safe return to Melmark for the pendency of her stay put placement. Bourne will be responsible for providing any such services or staff.

THE HEARING OFFICER WEIGHS IN TO ORDER EVALUATIONS OF THE STUDENT AND REVISIONS TO HER IEP AND HEALTH PLANS

             District M., BSEA No. 2504241, 31 MSER 158 (Mitchell, May 23, 2025) involved a protracted dispute between “District M” and parents over the appropriate programming for a student with extraordinarily complex medical conditions. To protect the student’s confidentiality, the school district and all witnesses were given pseudonyms.  The decision is a testament to both the invaluable role of the BSEA and the dedication of its hearing officers in breaking impasses that prevent students from receiving an appropriate education.

The student is a highly intelligent fifteen-year-old ninth grader with notable abilities, determination, and willpower. She qualified for special education and related services due to significant health and neurological conditions, which have affected her throughout her life. At the time of the hearing, she was diagnosed with cyclical vomiting syndrome (“CVS”), selective antibody deficiency with normal immunoglobulins, orthostatic intolerance, ophthalmoplegic migraines, gastroesophageal reflux disease, migraines, asthma, allergies, multiple intolerances and hypersensitivities, multi-septate gallbladder, convergency insufficiency, history of superior mesenteric artery syndrome, history of gastrointestinal bleeds from CVS, and, as of September 4, 2024, epilepsy with generalized tonic clonic seizures.

At the time of the hearing, the student was receiving services under several partially rejected IEPs. In addition, there were disputes about the timing and scope of evaluations the district sought to conduct, as well as the student’s four medical plans: a Health Care Plan (“HCP”); a Seizure Action Plan (“SAP”); an Infection Prevention Protocol (“IPP); and an Emergency Action Plan (“EAP”).  The district filed for hearing seeking to terminate the stay-put IEPs and obtain orders allowing them to conduct evaluations.  As such, the district had the burden of proof.

The hearing officer painstakingly addressed all the outstanding issues and provided a detailed order designed to ensure the student’s safe participation in school. Key provisions included: (1) revising the IEP to provide a 1:1 health professional throughout the school day and during school-sponsored activities; (2) providing staff training and consultations among providers and parents; and (3) incorporating portions of the medical plans and accommodations into the student’s IEP.

On the evaluation issue, the hearing officer, while sympathetic to the parents’ concerns about safety conditions and evaluator expertise, found that the evaluations could be conducted safely and appropriately and that parents were impeding the district’s attempts to complete them.  She ordered the parents to produce the student for all the evaluations, warning that failure to do so would relieve the district of any obligation to provide the student with special education and related services beyond what was ordered in her decision.

Lastly, the hearing officer directed the district to immediately obtain a legal opinion as to whether it could delegate the administration of any of the student’s medications to a non-medical staff member and whether the student’s 1:1 paraprofessional could carry the student’s medications at all times.

PARENTS LOSE THE BATTLE OF THE EXPERTS AND THEIR CLAIM FOR REIMBURSEMENT FOR THEIR UNILATERAL PLACEMENT

Sudbury Public Schools and Chuck, BSEA No. 2503347, 31 MSER 186 (Figueroa, June 1, 2025), concerned parents’ claim for reimbursement for their unilateral placement of their child at The Wolf School (“Wolf”) for the 2023-2024 and 2024-2025 school years, plus prospective placement at Wolf for 2025-2026.  The hearing officer found for the Sudbury Public Schools (“Sudbury”), offering invaluable insight into what hearing officers find persuasive and what they do not.

Chuck, aged thirteen and completing seventh grade at the time of the hearing, was diagnosed with cerebral palsy, borderline intellectual functioning, unspecified neurodevelopmental disorder, developmental coordination disorder, social pragmatic disorder, attention deficit hyperactivity disorder (“ADHD”), speech and language disorder, hearing and vision impairments, and migraines. He had undergone numerous orthopedic surgeries.  After attending Sudbury schools through the 2022-2023 school year, parents unilaterally placed him at Wolf in summer 2023, and then for the 2023-2024 and 2024-2025 school years.

The hearing officer took exception with the opinions of three of the parents’ experts.  Rachel Baldwin, Ph.D. performed her first neuropsychological evaluation of Chuck in October and November 2021. As part of it, she performed the WISC-V within ten months of it having been given by a school psychologist, contrary to the test creators’ recommendation that at least twelve months pass between administrations. Dr. Baldwin also used incorrect descriptors when discussing Chuck’s cognitive results, describing Chuck’s abilities as “borderline,” despite his score falling within the low to low average range.

The parents also retained Cathy Mason, an experienced and well-qualified educational specialist and program evaluator who is a certified teacher of children with moderate special needs. While the hearing officer credited Ms. Mason’s overall program recommendations, she rejected her opinion regarding the two Sudbury placements becaue she relied on incorrect data from Dr. Baldwin’s 2021 testing and had no information regarding Chuck’s academic abilities in May of 2023. Her critique of one of the programs at Sudbury’s Curtis School, was undercut by her own description of it as being well-taught, with explicit, slow-paced instruction, check-ins for understanding, and other appropriate language-based interventions, and because the cohort she observed was not Chuck’s actual cohort. Ms. Mason’s opinion was undercut further by the fact that she did not observe Chuck at Wolf and last saw Chuck more than two years prior to the hearing. The hearing officer was dismissive of the testimony of Angela Gowans, since Ms. Gowans was the parents’ advocate with no explicit education or work experience in teaching or special education.

Typically, parents gain a tactical advantage when they unilaterally place because if the student makes significant strides in the unilateral placement, that track record helps demonstrate that the unilateral programming is what the student needed.  However, in this case, Dr. Baldwin reevaluated Chuck in late 2024 and found that some of Chuck’s scores had declined since his placement at Wolf.  Dr. Baldwin was unable to form an opinion as to whether the student made academic gains since enrolling at Wolf. There were other challenges with the 2024 evaluation, including that  Dr. Baldwin’s 2024 diagnoses included those previously given in 2021 and added ADHD, a diagnosis given by Children’s Hospital in 2019 but which Dr. Baldwin had previously rejected.  In addition, she did not observe Sudbury’s programs and could not opine about the appropriateness of them.

By contrast, Sudbury offered numerous witnesses who were highly qualified and knowledgeable about the progress Chuck made in Sudbury and about the intensity and appropriateness of Sudbury’s programs.  Sudbury also consulted with numerous outside and expert sources.  In sum, the hearing officer found Sudbury commitment to Chuck’s education to be “impressive.”  She credited the testimony of Sudbury’s teachers, service providers and administrators, all of whom offered candid and detailed descriptions of Chuck’s performance in Sudbury, the Sudbury programs, the ongoing training, and the consultation and oversight by Landmark, Case Collaborative, teachers for the visually impaired, audiologists, and Children’s Hospital.

As is somewhat unusual for BSEA hearings, Chuck was a witness. He testified that there were a handful of incidents at Sudbury that made him sad, and he thought one of his Sudbury teachers did not understand him. He also did not like receiving assistance from the teacher assistant, noting that his friends thought it was weird. He testified that at present he only sees his private therapist when he needs to do so, and he does not see the social worker at Wolf frequently. Chuck also spoke about his strengths in socializing, noting that he still has friends from Sudbury, and that he also is friendly with some students at Wolf, but they are not in his class.

Chuck stated that after high school he wanted to attend a particular vocational school which has over one thousand three hundred students. While the parents contended that their concern over Chuck’s connection with his peers and social emotional development was a driving force behind their unilateral placement, they conceded in cross-examination that if Chuck’s goal was to attend a large school after high school, it would be important for him to be exposed to a larger school environment than Wolf.

The hearing officer found that the Sudbury staff understood Chuck’s needs and responded thoughtfully to issues as they arose, through effective consultation, coordination and constant, proactive communication with parents and among teachers and service providers.

One troubling aspect of the decision was multiple critical references by the hearing officer to something that should be irrelevant to the determination: the fact that the parents considered and ultimately applied to Wolf well before they unilaterally placed Chuck there.  A parent of a child with significant disabilities concerned about their child’s education has every right to explore alternative schools.  That is often a long process and as a practical matter, families must often apply well before the student could enroll there.  The multiple references to it suggest that it had some negative impact, when it should have not played any role in the decision.

THE DISTRICT IS ABLE TO OVERRIDE THE PARENTS’ ASSERTION OF STAY PUT AND MOVE THE STUDENT INTO AN OUTSIDE PLACEMENT

Lexington Public Schools, BSEA No. 2512905, 31 MSER 247 (Berman, June 12, 2025), involved Lexington Public Schools (“Lexington” filing for an order to allow it to move the student from a substantially separate program within the district into an as-yet unidentified private day school. The parents opposed the change and asserted their stay put right, contending that any lack of progress experienced by the student was the result of Lexington’s failure to provide the student with appropriate accommodations and services, as well as its failure to work collaboratively with the parents. While open to exploring out-of-district options, they refused to be rushed or pressured into agreeing to an out-of-district placement.  The case was granted expedited status.

At the time of the hearing, the student was eleven years old and a fifth grader in Lexington’s Intensive Learning Program (“ILP”). He was diagnosed with ASD Level 3, as well as a moderate Intellectual Disability, affecting virtually all aspects of his functioning. He required intensive support for school-related activities, including academics, communication, behavior, activities of daily living (including toileting), and transitions. In school, he displayed unsafe behaviors, such as flopping, aggression, throwing objects, eloping, and self-injurious behavior (SIB), including hitting his head against objects, and aggression towards adults. His interactions with peers were minimal.  By contrast, at home and in the community, these behaviors were rare, and he demonstrated growing independence in self-care and household routines.

In March 2024, the parents obtained a private neuropsychological and educational assessment by Rafael Castro, Ph.D., and Michelle Lagana, M.Ed. However, they did not share the results with Lexington until immediately before hearing, when it was submitted as a parent exhibit. The evaluation recommended a “highly specialized, year-round ABA program explicitly designed to support students with [ASD] and cognitive challenges…[including] a multidisciplinary wraparound approach with on-site professional expertise and environmental accommodations” and access to a cohort of similar peers. The report further recommended “direct instruction from a teacher certified in severe special needs,”  based on ABA principles, slower pace of learning, multisensory approach to instruction, BCBA oversight of programming and support of an ABA therapist throughout the day.

The parents rejected the June 2024 IEP which called for an out-of-district placement, asserting stay put rights. Lexington again proposed an out-of-district placement in March 2025.  Two Student Support Instructors (“SSIs”) and the classroom teacher were injured by the student that school year as had other staff, one who required shoulder surgery, previously.

Lexington maintained at the hearing that the ILP could not meet the criteria put forth by Dr. Castro in his report produced just prior to hearing, and Dr. Castro all but explicitly agreed. He testified at the hearing and stated that even a strong public school district like Lexington would struggle to provide an appropriate middle school program for this student.  He identified some private placements that might be able to meet the student’s needs.

The hearing officer was satisfied that Lexington had provided as much as they could for the student but it was still not enough to provide the student with a FAPE. The hearing officer found there was no evidence, expert or otherwise, to establish the student was and would be able to make effective progress even in the specialized ILP program.  As such, the hearing officer found Lexington’s proposed IEP to be appropriate and that an approved private day placement for students with ASD and intellectual disabilities was necessary to provide the student with a FAPE.  To allay parents’ concerns that they would be coerced into placing student in an inappropriate program, the hearing officer reassured them that they had a right to be involved in the placement process, including suggesting possible placements to the district, conducting their own research, and visiting and touring prospective placements.

THE BSEA’S AUTHORITY TO ENRORCE OR INTERPRET WRITTEN AGREEMENTS

The two rulings discussed here address the BSEA’s “enforcement” or interpretation of written agreements – one a settlement agreement and the other a mediated agreement.

Ashland Public Schools, Department of Mental Health and Department of Children and Families, BSEA No. 2508203, 31 MSER 92 (Mitchell, April 11, 2025) involved motions to dismiss filed in response to a hearing request from the parents seeking a residential placement. The grounds for the district’s motion was that the settlement agreement between the parents and district barred the parents’ claims.

At the time of the hearing, the student was a seventh grader attending the Doctor Franklin Perkins School, (Perkins) as a day student since January 6, 2024. He had been diagnosed with post-traumatic stress disorder, reactive attachment disorder, mood disorder (unspecified), ADHD, and specific learning disabilities in writing, reading comprehension, and mathematics, with additional challenges with emotional and behavior regulation. In May 2024, the parent and district executed a settlement agreement (“Settlement Agreement”), covering ESY 2024, the 2024-2025 school year, the 2025-2026 school year and ESY 2026. Pursuant to the Settlement Agreement, the student began attending Clearway School (“Clearway”) during summer 2024.

The Settlement Agreement contained two standard clauses: (1) that the agreement fulfilled the district’s substantive and procedural obligations to provide a FAPE to the student through ESY 2026; and (2) an “unanticipated and catastrophic illness or injury” clause (the so-called “oh my god” clause) which required the district to reconvene and propose an IEP only if such an event occurred prior to August 15, 2026. From September 2024 through the end of the year, the student experienced significant instances of behavioral dysregulation both at school and at home, leading to multiple hospitalizations. All parties agreed Clearway was no longer appropriate, and the student transferred to Perkins as a day student, where his behavioral dysregulations required multiple restraints a week.

In response to the parent’s hearing request filed against all the parties seeking to have one or more of the parties fund a residential placement, the district moved to dismiss, asserting that the terms of the Settlement Agreement established the totality of its educational responsibilities towards the student through August of 2026. The district maintained that the student’s status did not constitute an “unanticipated or catastrophic illness or injury” given his well-documented and long-standing diagnoses, history of repeated frequent hospitalizations, and ongoing challenges in the home. The applicability of the “unanticipated or catastrophic illness or injury” provision, the district argued, is a dispute over a contract term that under the IDEA must be brought to the appropriate state or federal court, not the BSEA. The BSEA has historically declined to take jurisdiction over issues of interpretation or enforcement of settlement agreement, as noted in Milford Public Schools, BSEA No. 16-01412, 21 MSER 219 (Berman, 2015) (the BSEA lacks “subject matter jurisdiction over contract law disputes, cannot grant relief under contract law claims, and has no particular expertise in interpreting and applying contract law”).

Here, however, the hearing officer refused to dismiss at this early stage.  The hearing request sought a determination of what currently constitutes a FAPE for the student and that question is wholly within the jurisdiction of the BSEA. Claims of a “change in conditions” after May 2024, if taken as true and with all inferences drawn in parent’s favor, as is required for a motion to dismiss, were sufficient to survive.  The release language in the Settlement Agreement addressed all claims, known and unknown, through the date of its execution. While the parent would not have been able to challenge the student’s placement based upon circumstances pre-dating the May 2024 execution of the Settlement Agreement, her allegations concerned post-agreement developments beginning in or around the fall 2024. A hearing would be needed to determine both the extent, if any, of the student’s change in circumstances and also the special education and related services and placement required for the student to receive a FAPE.

Acton-Boxborough Regional School District, BSEA No. 2509385, 31 MSER 120 (Nir, April 30, 2025) involved the district’s motion to limit the issues for hearing based on the parties’ mediation agreement.  As stated previously, while the BSEA generally does not exercise jurisdiction over disputes arising from contract law, hearing officers often “consider” mediation agreements and “their legal implications” in resolving disputes before the BSEA. In “considering” this mediation agreement, the hearing officer found that that the plain language of the mediation agreement stated that the parents “fully accept[] the Student’s 9/8/2023 through 9/7/2024 IEP,” and the “District [agrees to] fully implement the Student’s IEP, program, and placement until the Student graduates from public education, anticipated to be July 22, 2025.” As such, the parents could not argue that the fully accepted IEP failed to offer the student a FAPE. They could still, however, challenge the implementation of the IEP.