Commentary on Massachusetts Special Education Decisions: 1st Quarter, 2026 by Daniel T.S. Heffernan and Alicia M.P. Warren

August 26, 2026

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.

Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2025 by Daniel T.S. Heffernan and Alicia M.P. Warren

June 25, 2026

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.  

Commentary on Massachusetts Special Education Decisions: 3rd Quarter, 2025 by Daniel T.S. Heffernan and Alicia M.P. Warren

June 25, 2026

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, Robert K. Crabtree, 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 active this quarter, although not quite as active as it had been in the preceding one.  The hearing officers issued four decisions, Belmont, Dracut, Franklin and the Department of Developmental Services, and Old Colony Regional Vocational Technical High School, and nineteen rulings.  The Belmont and Dracut decisions, both of which address parents’ challenges to their district’s language-based services and programming, are discussed within and, given their differing results, illustrate the pitfalls of litigation for parents and school districts.  The rulings continued to address routine matters of procedure, with a number of joinder-related matters.  One ruling, Marblehead, is a helpful case for parents challenging a student’s graduation, serving as a reminder that the principle of stay-put applies where they have rejected a student’s IEP, proposed graduation date, and termination of services. DISTRICT TAKEN TO TASK DUE TO ITS FAIILURES TO PROVIDE STUDENT WITH APPROPRIATE LANGUAGE-BASED PROGRAMMING Dracut Public Schools and Desmond, BSEA No. 2508407, 31 MSER 291 (Reichbach, July 1, 2025) considered the appropriateness of a seventh-grade student’s full inclusion program at his local middle school.  By all accounts, the student at the center of the dispute, Desmond, was diligent, enjoyed participating in class, and earned good grades.  Nevertheless, he had significant learning disabilities in reading (dyslexia) and writing, as well as Attention-Deficit/Hyperactivity Disorder (“ADHD”).  Contending that the IEPs proposed by Dracut did not provide Desmond with a free appropriate public education (“FAPE”) during seventh grade, the parents filed a hearing request seeking compensatory education and Desmond’s prospective placement at the Landmark School (“Landmark”), an approved, private special education school, for eighth grade. Hearing officers often grapple with similar fact patterns:  a student with dyslexia struggles to read and learn; they receive some constellation of push-in and pull-out/small group supports over any number of school years; the parents contend that the student is not making educational progress; the school district disagrees; and litigation ensues.  These cases nearly always rise and fall on the strength of the parties’ expert witnesses, and because parents typically bear the burden of proof, there is particularly careful consideration of the credibility and opinions of their experts.  Here, the hearing officer easily credited the findings and recommendations of the student’s neuropsychologist, who conducted two evaluations and a program observation, and private reading tutor, who was properly certified and trained.  The majority of the hearing officer’s analysis, however, detailed the many good reasons why she discredited the testimony of the school district’s witnesses – points from which we hope administrators, educators, and other staff can learn.  They are, among others:

• A student’s solid grades, consistent class participation, and good performance on benchmark assessments such as Fountas and Pinnell and iReady are not necessarily indicative of a student’s receipt of a FAPE;
• A student’s ability to decipher meaning from text does not obviate the need for them to be able to adequately decode words;
• Reading instruction should be delivered with fidelity and by an instructor who is adequately trained in the program that they are administering;
• An evaluator should not decline to provide recommendations in their report because they will not be the one delivering services or in order to give their colleagues flexibility to design a student’s program;
• IEP Team members should not lack understanding of or willingly ignore special education procedures; and
• IEP members should have a foundational understanding of the student’s disabilities and their impact on the student’s learning.

We applaud the hearing officer’s comprehensive assessment of the records and testimony before her and agree with her ultimate holding that Desmond required a fully integrated, cohesive language-based program across all content areas in order to make progress.  The hearing officer’s acknowledgement that it takes years for a district to create and implement a robust language-based program, together with her assessment that the evidence did not appear to support that Dracut had qualified staff to teach a language-based program, all but ensures (although does not absolutely guarantee) that Desmond will be placed at Landmark moving forward – a decisive win for the parents. PARENTS LOSE THEIR CLAIM FOR REIMBURSEMENT FOR THE CARROLL SCHOOL PLACEMENT              Belmont Public Schools and Evan, BSEA No. 2511078, 31 MSER 350 (Reichbach, August 19, 2025) involved the parents seeking reimbursement for the unilateral placement at the Carroll School for their son’s second grade year (2024-2025).  Belmont proposed an initial full-inclusion IEP dated February 27, 2023 to February 26, 2024 (2023-2024 IEP) with one goal in reading and eight related benchmarks. It contained Grid-C instruction in reading with a special education teacher/reading specialist (4 x 30 minutes/5-day cycle) and Grid-A Consultation from that provider to staff (1 x 15 minutes/10 days). The 2023-2024 IEP also contained a number of accommodations.  The parents accepted in full this IEP. Evan’s first progress report in June 2023 indicated that he was making progress.  Evan’s first grade general education teacher was trained in Orton-Gillingham (“OG”), and the parents were impressed with her.  Belmont’s next IEP dated February 12, 2024 to February 11, 2025 (provisional 2024-2025 IEP) continued the services and accommodations from the 2023-2024 IEP within a full inclusion placement.  Parents responded by email on February 12, 2024, expressing questions and concerns. They requested edits to the Parent Concerns to include, among other things, the use of OG “whenever possible and especially when he’s working with the Special Education teacher,” and to Methodology/Delivery of Instruction, to include “[d]ata-driven, evidence-based methodologies such as Orton-Gillingham/Wilson which are proven best practices.” Parents also requested summer services and a monthly consult between them and school personnel; that Evan be grouped with students of commensurate ability/need and receive services out of the classroom to minimize disruption and distraction; and that they be provided the qualifications and certifications of the special education teacher who would work with Evan. The Team reconvened to address parents’ concerns about the IEP and amended it to include ESY reading services but declined Parents’ request to specify that Evan’s reading support would use the OG approach. Parents accepted this revised 2024-2025 IEP. On April 25, 2024, Dr. Nicole Kassissieh conducted a neuropsychological evaluation of Evan. Dr. Kassissieh diagnosed Evan with Orthographic Processing Dyslexia, a SLD with impairment in Reading, and a SLD in Written Expression. She also diagnosed him with Executive Functioning Deficits.  Dr. Kassissieh acknowledged that Evan had made progress in many areas, including reading comprehension, and the scores on the CTOPP-2 test had increased in all areas. The Team reconvened on June 3, 2024 to review Dr. Kassissieh’s evaluation and subsequently proposed an IEP Amendment to the revised 2024-2025 IEP, which added accommodations based on Dr. Kassissieh’s report; increased Grid-C reading instruction with a special education teacher/reading specialist to 5 x 30 minutes per 5-day cycle; and updated the Additional Information section to include access to mental health staff as needed. The Amended 2024-2025 IEP increased ESY with special education/general education staff from 1 x 75 minutes per 5-day cycle to 4 x 75 minutes per 5-day cycle. Dr. Kassissieh emailed the parents the day after the Team meeting, stating “I think that the team is invested and will be setting up [Evan] for a good year next year if you chose (sic) to stay at this school.” She also wrote that the increase in reading instruction from four 30-minute sessions per week to five “is positive, though there are so many services that are being condensed into that time, I would recommend keeping up with the service delivery and having check-ins.” The parents unilaterally placed Evan at Carroll for the 2024-2025 school year. They were unsuccessful in obtaining reimbursement for several reasons.  First, it is extremely difficult to make the case for the necessity of a substantially separate language based program for a second grader.  The gap for a rising second grader is typically, as present here, rarely wide enough to require such a segregated placement.  Second, there was evidence from multiple sources, including the parents’ own expert, that Evan was making progress in Belmont’s inclusion programming.  Third, Belmont did not stand pat on its IEPs, but rather increased services in response to the parents’ concerns and the private evaluation.  Fourth, much of the case rested on the failure of Belmont to provide OG reading services to Evan by a certified provider.  However, beginning in December 2023, following completion of the instructor Ms. Carson’s OG training, the core of Evan’s specialized reading instruction was OG. Evan’s first-grade general education literacy instruction was also infused with OG concepts, though it included a variety of other programs as well. Fifth, there was not critical expert support for the parents’ position.  Notably, Dr. Kassissieh did not assert that Evan was failing to make progress commensurate with his potential, nor had she recommended a placement other than full inclusion. She also did not specify that Evan required OG. At the hearing, Dr. Kassissieh again would not endorse the need for a substantially separate language-based program for Evan to make progress, nor did she indicate at any time that the progress he had made since Belmont’s initial testing in January 2023 was not effective or commensurate with his abilities.  While Evan was responding well to OG tutoring, several witnesses described this as the “gold standard” for reading instruction for students with dyslexia.  As has been well established, districts are obligated to provide appropriate and adequate services, and not the “gold standard.” Dr. Kassissieh and Ms. Gibson both expressed concern that delivery of OG instruction in a small group, as opposed to one-to-one, generally would not permit sufficient tailoring to individual student needs. Yet according to Ms. Colman, a Carroll administrator, OG tutorials at Carroll may be comprised of one teacher and up to four students. Parents also expressed concern about Ms. Carson’s lack of OG certification. However, Evan’s tutorial at Carroll was led by a graduate intern who had obtained neither her OG certification nor her teaching certification at the time she taught him. In addition, his science teacher lacked teaching certification. The hearing officer stated she did not doubt the Evan had been well served at Carroll.  However, given her finding that Belmont’s program was adequate, she did not need opine about the appropriateness of the Carroll placement, and denied the parents’ claim for reimbursement.

Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2025 by Daniel T.S. Heffernan

June 25, 2026

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.

Commentary on Massachusetts Special Education Decisions: 1st Quarter, 2025 by Daniel T.S. Heffernan

June 25, 2026

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 BSEA began the new year with a busy quarter, issuing three decisions and fourteen rulings.  We comment here on two of those decisions.  Pittsfield is further proof that the BSEA can provide a swift and thorough review of school discipline matters, remarkably issuing the ruling on the same day as the hearing.  Franklin Public Schools, Acton-Boxborough Regional School District, and Carly provides another in-depth analysis of what experts a hearing officer will and will not credit.  Unfortunately for the parents, this resulted in the denial of the claim for reimbursement of a unilateral placement. Three of the rulings relate to joinder motions, with the hearing officers following well established precedent on whether to allow joinder of various state agencies, including the Department of Early and Secondary Education (DESE).  Two rulings relate to Independent Education Evaluations.  The remaining decision, Lincoln Public Schools, relates to the efforts of the district to find an alternative program for the student, having sent out twenty-nine referral packets to eighteen different programs and a finding that several of them that accepted the student would provide a FAPE despite the parent’s rejection of them. PARENT OBTAIN SWIFT RELIEF AT THE BSEA IN OVERTURNING A FINDING OF THE DISTRICT’S MANIFESTATION DETERMINATION Pittsfield Public Schools, BSEA No. 2505764, 31 MSER 1 (Nir, January 3, 2025) presents another example of how parents can obtain swift review at the BSEA of a district’s discipline process.  The parent here filed an expedited hearing request seeking to reverse and vacate a manifestation determination reached by the student’s IEP team on December 5, 2024, following a disciplinary incident that occurred on November 19, 2024. The hearing officer issued a decision on the very same day that the hearing was held, January 3, 2025. The student was a tenth-grade student at Pittsfield High School who had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD). The student had an IEP as well as a Behavior Intervention Plan (BIP), and it was acknowledged that the student could be disrespectful.  On November 19, 2024 the student repeatedly stated that a peer in their Spanish class was “cheating because she’s Mexican.”  The district issued a notice that the student may be suspended, and in response, the parent kept the student home for the next two school days.  The dean of students subsequently emailed the parent that he had tried calling her several times the previous week about scheduling a suspension hearing for alleged harassment. Since she had not responded, the school would proceed with a short-term suspension hearing on Monday, December 2, 2024. In the meantime, he wrote, the student should attend school. If, following the hearing, a suspension was determined to be appropriate, then the school would hold a Manifestation Determination Review (“MDR”) meeting before the suspension went into effect. On November 26, 2024, Parent responded, stating, “I do not agree with the BIP. I will not be attending the suspension hearing nor will I be attending the MDR hearing either.”  On December 3, 2024, the principal conducted a short-term suspension hearing without the parent attending and determined that student would serve an out-of-school suspension for a period of four days and a one-day in-school suspension to begin following a manifestation hearing. On December 5, 2024, the MDR hearing was held, and the Team determined that the behavior was not a manifestation of the student’s disability.  After the parent filed for an expedited hearing, the district reversed its decision, deleted the MDR finding and proposed scheduling a Team meeting to consider compensatory services for the days the student missed as well to discuss revising the IEP based upon parent’s concerns.  The parent insisted the BSEA proceedings go forward, and despite the fact that the district had already conceded that the MDR determination was not proper, the hearing officer conducted the hearing. The hearing officer concluded that the MDR determination was improper. She ordered the Team to reconvene, if they had not already done so, to assess the compensatory services to which the student was entitled for the five days the parent kept him home under the mistaken belief that he had been suspended. She further ordered that these compensatory services must be provided to Student before the end of the 2024-2025 school year. PARENTS LOSE THE BATTLE OF THE EXPERTS AND THEIR CLAIM FOR REIMBURSEMENT FOR THEIR UNILATERAL PLACMENT Franklin Public Schools, Acton-Boxborough Regional School District, and Carly, BSEA No. 2412891 (Reichbach, March 24, 2025) involved a claim for reimbursement of the cost of a unilateral placement at The Carroll School for the 2023-2024 school year, the student’s third grade year. The in-depth analysis of the hearing officer of the opinions of multiple experts for both sides provides invaluable insight into what hearing officers find persuasive and what they do not. Procedurally, the parents filed against Franklin, which then successfully moved to join Acton-Boxborough, because the parents bought a home in Acton in November 2023. The dispute turned on the validity of a dyslexia diagnosis first given to the student by parents’ private neuropsychologist, Dr. Nathan Doty, in an evaluation conducted in October 2021, early in the student’s first-grade year and prior to the student being on an IEP. The report of this evaluation, though, was not provided to Franklin until the summer 2022. In his report, Dr. Doty calculated the student’s overall intelligence based solely on nonverbal measures, excluding verbally-based subtests such as vocabulary, similarities, and auditory working memory—a method the hearing officer deemed “unorthodox.” Given what he characterized as the unusual gap between the student’s verbal performance and her intellect, Dr. Doty opined this approach, “should be considered the best representation of her underlying potential.”  He concluded, based on the nonverbal index (NVI) score, that the student had “superior intellect” and hypothesized that her merely average range scores on academic and phonological measures were explained by the student’s “superior nonverbal intelligence” that was masking her underlying dyslexia. While it is not atypical for a neuropsychologist to fail to report a Full Scale Intelligence Quotient (FSIQ) as a result of uneven test scores, Dr. Doty acknowledged when testifying at hearing that he did not explicitly explain in his report that his calculation of the student’s intellectual potential was based only on the NVI, and that his decision to calculate and describe the student’s intellectual potential using her NVI scores rather than a FSIQ was a “subjective judgment,” but one, he testified, supported by the test publisher’s guidelines. At hearing, school psychologists at both Franklin and Acton-Boxborough testified to their opinion that this was not an appropriate way to calculate the student’s cognitive abilities or her disabilities.  Jennifer Curry, Franklin’s school psychologist testified that the only instances where it would be appropriate to use the nonverbal index to determine intellectual ability and/or a learning disability would be for a student who is learning English, hearing impaired, or nonverbal. Moreover, unlike Dr. Doty, Ms. Curry testified that she would have reported the student’s FSIQ, noting any discrepancies within the indices. Based on his October 2021 testing, Dr. Doty diagnosed the student with a Specific Learning Disorder (SLD) with Impairments in Reading, Math, and Spelling, Dyslexia, Dyscalculia, and an Unspecified Communication Disorder. He recommended that she receive various pull-out services, but, notably, he did not recommend a substantially separate language-based program.  When the Team convened to review Dr. Doty’s evaluation in September 2022, Franklin proposed an initial evaluation for the student and subsequently found the student eligible for an IEP. As part of the eligibility determination, the Team acknowledged that Dr. Doty had diagnosed the student with dyslexia, but Franklin did not view it as a disabling condition in the school setting. Specifically, Franklin disagreed with Dr. Doty’s findings that the student had a Specific Learning Disability in Reading and Spelling, as their evaluations did not reveal a discrepancy between the student’s overall intellectual abilities and her academic achievement and her cognitive scores aligned with her reading performance on both standardized tests and within the classroom. The student’s second grade special education teacher, Nicole Kelly, conducted the student’s academic achievement testing over nine separate sessions in fall 2022. Based on the academic achievement testing, as well as her work with the student, Ms. Kelly concluded that neither dyslexia nor any other component of reading was a concern. Asked at hearing to reflect on the difference between these scores and those in Dr. Doty’s evaluations, Ms. Kelly noted that given the COVID-19 pandemic, at the time Dr. Doty evaluated the student, she had only been learning in-person, full-time, for two months, and much growth had occurred in her skills in the intervening time. Given the student’s accurate and fluent word recognition, spelling, decoding, comprehension, and vocabulary, as evidenced by her test scores and classroom performance, she would not have met the criteria for dyslexia outlined in the Massachusetts Dyslexia Guidance. The student’s initial IEP for the period from November 9, 2022 to November 8, 2023 listed a primary communication disability and a secondary specific learning disability in math. It proposed a full inclusion placement with goals in the areas of communication and math. Speech and language and math services were proposed in both the B and C grids. On or about November 22, 2022, the parents partially rejected the initial 2022-2023 IEP “to the extent that it does not recognize [the student’s] primary medically diagnosed [d]yslexia nor does it provide reading intervention at a level of support needed for [her] to make effective progress.” They consented to the proposed placement. In December 2022 the parents obtained an audiology evaluation by Dr. Radosi at Boston Children’s Hospital and a speech language evaluation from Carolyn Brinkert, M.S., CCC-SLP, of the Integrated Center for Child Development (ICCD), in January 2023.  While Dr. Radosi did not diagnose the student with a central auditory processing disorder, he made recommendations for programming consistent with that diagnosis.  Ms. Brinkert agreed with Dr. Doty that the student was not demonstrating language skills commensurate with her intellectual potential and made recommendations consistent with Dr. Doty’s. When the Team reconvened on both reports in March 2023, they noted that the student, who had only been receiving IEP services for four months, was making solid progress in multiple areas, including math, speech/language and reading.  The district had retained an outside audiologist, Dr. Nichols, to review Dr. Radosi’s evaluation.  While disagreeing with aspects of that evaluation, the Team incorporated many of Dr. Radosi’s recommendations, such as more tailoring of the FM system already in place for the student. The parents unilaterally placed the student at Carroll for the 2023-2024 school year, her third-grade year. Dr. Doty then reevaluated her in June 2024. In his 2024 evaluation, he maintained the student’s dyslexia diagnosis but again did not recommend placement in a substantially separate program. He opined that she had demonstrated a pattern of clear and meaningful academic progress in the three years since his prior evaluation and attributed that progress to her programming at Carroll. At the hearing, though, he acknowledged that no testing had occurred to enable him to isolate the progress attributable to the year at Carroll. Additionally, at the hearing and seemingly in conflict with his written evaluation, he testified that she was displaying more significant language-based deficiencies in 2024 than in 2021, and was he unable to reconcile his conflicting testimony regarding whether the student’s language-based deficiencies had been remediated or had become more significant between his two evaluations. The hearing officer found for the district and denied the parents’ claim for reimbursement.  Several factors were key in her decision.  First, establishing that the student is academically years behind is challenging for any matter involving an early elementary student. In addition, as is often the case with young students, it is hard to make a case for lack of effective progress when the student was only receiving IEP services for a short period before the unilateral placement.  Here, there was evidence from multiple creditable sources that the student was making good progress over the short period of time she was on an IEP in Franklin. 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, to establish that one must have a benchmark at the beginning of the unilateral placement and at an appropriate later time to isolate the progress attributable to the unilateral placement.  Here, Dr. Doty evaluated the student in October 2021, almost two years before her unilateral placement began.  It was therefore quite difficult for him to establish what progress was attributable to Carroll and what was attributable to the student’s last two years in Franklin, including the few months the student was on an IEP.  It would have been potentially more helpful to their case if the parents had Dr. Doty evaluate the student close to the beginning of the 2023-2024 school year at Carroll. Although only a small fraction of neuropsychological evaluations make their way into BSEA proceedings, one should be mindful that the audience for such reports is not limited to educators but to hearing officers who are lawyers applying a legal standard.  Here, the hearing officer found Dr. Doty’s methodology for determining the student’s cognitive abilities to be “unorthodox”.  When an expert veers from the norm, they need to detail the well-founded rationale for that in the report.  As Dr. Doty’s opinion that the student had a superior intellect was a crucial underpinning to his dyslexia diagnosis, he needed to lay out the case for that more fully in his written report.  While it is not uncommon for a neuropsychologists to not provide a FSIQ for a student with significantly discrepant scores, the hearing officer here believed it was preferable for that score to have been calculated, accompanied by a detailed explanation of why it was not a valid measure. Other factors also undercut the parents’ claims.  The almost one year delay in between Dr. Doty’s 2021 testing and the submission of his report to the Team rendered much of it stale and possibly delayed by almost a full school year the offering and implementation of IEP services.  An earlier provision of those services would have not only benefitted the student but also provided much more time before the unilateral placement to establish if the in-district program was appropriate.  Dr. Doty also failed or was unable to speak with any of the student’s Franklin teachers or service providers or review classroom assessments or norm-referenced or criterion-referenced measures in reading or math. The hearing officer credited the reports and testimony of the districts’ witnesses and noted that the districts considered the various outside evaluations and did not stand pat on their programming but offered additional services and accommodations.  In the end, the hearing officer agreed with the districts that a substantially separate language based program would be unnecessarily restrictive for the student.

Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2024 by Daniel T.S. Heffernan and Alicia M.P. Warren

June 04, 2025

INTRODUCTION             The BSEA had another busy quarter, closing out the calendar year with the issuance of six decisions and twenty rulings.  In three of those decisions, the parents were represented at hearing by their respective educational advocates – an infrequent but not unusual circumstance.  Four of the decisions this quarter, Arlington, Boston, Norwood, and Northborough and Southborough, are discussed within.  The Norwood decision is a continuation of a case on which we provided commentary last quarter; this time, however, the decision was not favorable for the family.  The Arlington decision, which is also a continuation of a case on which we provided commentary last quarter, arises within the context of parents’ claims relating to their student’s placement at an unapproved school.  Having already had their claims for prospective placement at the Carroll School dismissed last quarter, the parents suffered another blow when they lost their claims for retroactive relief this quarter.  Relatedly, the BSEA issued a ruling in another strikingly similar case this quarter, Arlington Public Schools and P.J., ultimately dismissing the parents’ claims for prospective placement and funding at the Carroll School.  Tune into our third quarter 2024 commentary for our full observations on this apparently trending issue.   The remaining rulings this quarter, true to form, considered a wide array of topics, including motions for expedited and accelerated status, the recusal of hearing officers and attorneys, directed verdicts, and the expected discovery-related disputes.  One ruling, Beverly and Seven Hills – Crotched Mountain, is another in a now long line of cases involving the invocation of a student’s stay-put rights when faced with termination from a private school.  Consistent with prior rulings and decisions, the hearing officer ordered the student’s immediate readmittance to Seven Hills, during the pendency of the action.   FISCAL YEAR 2024 BSEA STATISTICS  Before commenting on this quarter’s decisions, we offer an overview of the BSEA statistics for Fiscal Year 2024.   There was a significant jump in rejected IEPs, far exceeding even pre-Covid-19 levels:   Rejected IEPs:   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 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 request, but still well below pre-pandemic levels.   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 were consistently around 50 per year until they declined significantly after FY 13.  FY 23 yielded the lowest number of full hearings to date (12) since the early days of the BSEA. That number remained consistent for FY 24. 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 42 of the cases that were filed for hearing in FY 24, of which 37 were resolved the day of the settlement conference. Although the number of hearing requests filed in FY 24 was higher than FY 23, the number of matters going to full hearings with written decisions was the same: FY 24 - 12 FY 23 - 12 FY 22 - 14 FY 21 - 24 FY 20 - 19 FY 19 - 19 FY 18 - 13   Of the 12 decisions noted above, Parents fully prevailed in only 1.  Parents had counsel in that one, as did the district. The School Districts fully prevailed in 9. Parents had counsel in none, were represented by an advocate in 2 and were pro se in 7.  The district was represented in all 9.  In the 1 case of mixed relief, parents were pro se and the school district was represented by counsel.  One matter involved and LEA assignment.   The BSEA received 310 requests for facilitated Team meetings, a slight increase from the 298 in FY 23.  Of those 310 requests, the BSEA conducted 138 facilitated IEP Team meetings, a decrease from the 204 conducted during the previous year. Note that 40 requests were declined by parents and 22 were declined by school districts, and 110 requests for facilitated IEP Team meetings had to be declined by the BSEA this year owing to staff unavailability   BSEA mediators conducted 703 mediations in FY 24, a slight decrease from the 715 mediations in FY 23. There were 1,275 requests for mediations, further proof that more resources need to be devoted to the BSEA.  The agreement rate was 81%.    Parents Lose Case for TUITION Reimbursement, Following Prior Dismissal of their Prospective Claims  Arlington Public Schools, BSEA No. 2503543, 30 MSER 453 (Nir, Dec. 16, 2024) concerned a fourth-grade student’s receipt of a free appropriate public education (“FAPE”), under various procedural and substantive theories.  The heart of the matter, however, considered whether the student’s individualized education program (“IEPs”), calling for a full inclusion placement within Arlington, was appropriate, and, if not, whether the parents were therefore entitled to some measure of retroactive relief.   Months prior, and as discussed in our third quarter 2024 commentary, Arlington was successful in obtaining a dismissal (with prejudice) of the parents’ claims for prospective relief, namely, an order for or funding relative to the student’s ongoing placement at the Carroll School, an unapproved private school specializing in educating students with language-based learning disabilities.  Arlington Public Schools, BSEA No. 2503543, 30 MSER 310 (Nir, Sep. 30, 2024).  Thus, this hearing considered only the parents’ claims for retroactive relief—reimbursement for all costs associated with the student’s placement at the Carroll School.   The student, who had diagnoses of Dyslexia and Type One Diabetes (T1D), attended elementary school in Arlington through her third-grade school year.  When the student was in second grade, she was found eligible for special education, on the basis of her reading disability.  She began receiving at least some reading services that spring, following the parents’ rejection of the initial menu of proposed services due to their alleged inadequacy.  The parents also questioned why the student appeared to be receiving services that were either the same or similar to those that she had been receiving pursuant to response to intervention (“RTI”), among the same cohort of students, which still included general education students.  By the end of the school year, however, the student’s IEP Team reported on her significant progress, based on various benchmarks and work samples.  That summer, the student received her T1D diagnosis, and did not participate in extended school year programming, for which she was eligible.   Prior to the start of the student’s third-grade year, Arlington developed a Section 504 Plan, separate from her IEP, in consultation with the family and Boston Children’s Hospital, to accommodate the student’s T1D.  In response to a few instances early in the school year during which the parents had to intervene to address the student’s dangerous blood sugar drops, Arlington provided additional nursing support.  Nevertheless, the parents remained concerned about Arlington’s handling of the student’s T1D, along with the student’s concerns about “dying at school.”   Throughout the student’s third-grade year, her IEP Team reconvened, proposing to increase the student’s services, add a written expression goal, and amend her reading goal.  The parents continued to express concern about the appropriateness of the student’s program, questioning how the proposed inclusion-based services differed from the general education services the student had previously received and opining that the did not believe that her goals were well-matched to third-grade curricula.  While Arlington periodically reported on the student’s significant growth, based on various data-collection measures, the parents did not have any independent expert review of the student’s progress to counter the Team’s reports.  It was not until the tail end of the school year that the parents sought an independent observation of the student’s program and obtained an oral and written language evaluation.  Since these reports were never shared with Arlington at any point, and because neither expert testified at trial, the record lacks detail as to what these reports found and concluded, beyond an apparent recommendation that the student needed a language-based program.  The parents informed Arlington that they would be placing the student at the Carroll School, at which point the Team reconvened, proposed additional evaluations, and, after the next school year had already commenced, again increased the student’s services.   The parents advanced a number of legal theories to support their claims, including, but not limited to, Arlington’s alleged failures to: (1) implement the student’s Section 504 Plan; (2) and to propose IEPs that would enable her to receive a FAPE.  The hearing officer readily disposed of all of them.   First, concerning the parents’ FAPE claim under Section 504, even though the hearing officer credited the parent’s testimony and evidence relative to Arlington’s handling of the student’s T1D, she nevertheless found in favor of Arlington.  Under Section 504, a FAPE denial must be “so significant that it effectively denies the child the benefit of a public education.”  The inconsistent application of a Section 504 Plan, therefore, is not tantamount to a FAPE denial.  Here, despite the mother’s compelling testimony regarding her concerns and certain of the plan’s glitches, the hearing officer determined that the student continued to participate and make progress in her academic and social endeavors.   Second, concerning the parents’ FAPE claim under IDEA, the hearing officer analyzed the IEP in place at the time to determine whether the unilateral Carroll School placement was reasonably calculated to enable her to make progress in light of her circumstances.  The hearing officer was unmoved by the parents’ arguments that the student continued to receive RTI-related instruction with general education students, even after she had been found eligible.  The parents proffered no evidence that the use of such strategies, or the student’s peer grouping, were inconsistent with the student’s IEP.  Instead, the hearing officer credited the student’s service providers, who, through uncontroverted expert testimony, addressed the student’s progress on her IEP goals, as well as objective, district-wide assessment tools and MCAS.  Thus, the hearing officer found in favor of Arlington, denying the parents all retroactive relief.   This case serves to remind parents and their advocates/practitioners that neither Section 504 nor the IDEA require perfection.  Indeed, the hearing officer explained that the parents’ concern for the student’s “development, safety, and progress led her to blur the line between what would be best for student and what was required for FAPE or meaningful educational progress.”  Further, the parents were hard-pressed to meet their evidentiary burden without any expert support for their arguments.  An acrimonious working relationship between the parents and the district does not excuse the parents from sharing relevant information with the Team.  As was the case here, the parents were prohibited from relying on that information in their attempt to later prove their claims.   PARENTS SUCCEED IN OBTAINING STAY-PUT ORDER REQUIRING DISTRICT TO PROVIDE 24/7 SERVICES WITHIN FAMILY HOME   In In Re: Northborough and Southborough Public Schools, BSEA No. 2504230, 30 MSER 431 (Berman, Nov. 29, 2024), an accelerated decision based on the parties’ written submissions, the hearing officer ordered the district to drastically increase its programming to the student, under the doctrine of stay-put.  There, the nineteen-year-old student with significant disabilities, including Autism Spectrum Disorder, Obsessive Compulsive Disorder, and Intellectual Disability, required around-the-clock support in all facets of his life, such as toileting, bathing, safety, social skills, and emotional regulation.  For over six years, the student attended the New England Center for Children (“NECC”) via IEP, providing for his residential placement within the program.  In July 2024, however, NECC terminated his placement, fearing that it was unable to keep him safe.  Neither the parents nor district challenged the termination.  Without another option, the student returned home.   The student’s operative and last agreed-upon IEP, otherwise referred to as his “stay-put IEP,” provided for “24 hours/day (including awake overnight staff) and 7 days/week coverage” and emphasized that “these supports are critical in maintaining [the student’s] safety and ensuring [his] progress.”  Upon the student’s termination from NECC, and pending its search for a new residential placement for the student which spanned more than thirty programs across seventeen states, the district agreed to provide up to fifteen hours per day of home services.  The district also agreed to take over case management, provide certain safety-care training, and increase specialist consultation services.  The parents requested that the district instead rent an apartment for the student and provide twenty-four – not fifteen – hours per day of services, until it could secure him new residential placement.  Litigation ensued.   As a foundational matter, the doctrine of stay-put affords students the right to remain in their “then-current educational placement” during the pendency of a dispute.  Determining what constitutes a student’s “then-current educational placement,” however, is typically far from self-evident.  In cases such as this one, when the stay-put placement becomes unavailable, the BSEA has interpreted the stay-put doctrine “to require school districts to provide a comparable program.”  Determining what constitutes a “comparable program” requires a fact-specific inquiry that considers a range of factors, but generally is one “which matches as closely as possible the setting, the type, and level of service delivery, the degree of mainstream contact, the methodology and teaching approach, the staff-student ratio, the instructional and therapeutic expertise, and the duration of direct and incidental teaching.”   While stay-put analyses are often complicated, we applaud the hearing officer’s ready determination that in this student’s circumstances, comparability required, at a minimum, 24/7 coverage, including awake overnight staffing.  Thus, the district was ordered to increase stay-put programming from fifteen to twenty-four home service hours per day.  The hearing officer declined to order that the district create a program that includes a rental housing arrangement right now but forecasted that it “may not be out of the question at some point in the future.”  Thus, districts should take caution that even their honest, dedicated efforts to secure another placement for a student does not absolve them of the need to provide creative and perhaps expensive stay-put programming in the interim.   THE DISTRICT CONDUCTS AN ADEQUATE MANIFESTATION DETERMINATION REVIEW   Norwood Public Schools, BSEA #2503348, 30 MSER 337 (Nir, Oct. 8, 2024) is a follow up to Norwood Public Schools and Helena, BSEA # 2501731, 30 MSER 256 (Reichbach, August 29, 2024) (commented in full in our 3rd Quarter 2024 Commentary).  That decision demonstrated how extensive the “child find” obligations of a school district are and how they constrain a district’s ability to discipline to a student not yet on an IEP or 504.   On May 29, 2024, Helena was involved in a fight with a peer at school, during which a staff member had her leg broken in two places while trying to break up the fight.  The superintendent reduced Helena’s permanent expulsion for assault to a suspension lasting from May 31, 2024 through the end of Term 1 of the 2024-2025 school year in November 2024. In the earlier ruling, the hearing officer found that the “totality of the circumstances” deemed Norwood to have knowledge that Helena was a child with a disability which obligated Norwood to conduct a manifestation determination before excluding Helena from school for more than ten days. The hearing officer rejected the parent’s request that she conduct the manifestation determination review, instead ordering Norwood to conduct one within five days of the decision. The hearing officer also rejected Norwood’s assertion that it was empowered to remove Helena on an emergency basis pursuant to MGL c. 71 §37H ¾ whereby an assault of a student may result in suspension of up to 90 school days, whereas assault on school staff pursuant to MGL c. 71 §37H may result in long-term suspension or expulsion from school. While the staff member broke her leg in two places while trying to break up the fight, the hearing officer held that while this terrible injury was as a result of the fight, Helena had not “inflicted” it upon the faculty member.  Rather it was incidental to the fight, tantamount to an unintended consequence.  In addition, Helena’s suspension could not have been extended beyond a current school year pursuant to 603 CMR §53.02, “[n]o long term suspension shall extend beyond the end of the school year in which such suspension is imposed.”  There is no exception for matters under MGL c. 71 §37H or MGL c. 71 §37H ¾.  The hearing officer ordered Norwood to return Helena to school immediately and develop a plan to compensate for school days she improperly missed.  In addition, Norwood had to expedite her special education evaluation but would only be obligated to provide services if she were found to be eligible under IDEA or Section 504.   Consistent with the earlier BSEA ruling, on September 6, 2024, Norwood conducted a manifestation determination review meeting (“MDR”) about the May 29, 2024 fight.  Present at the MDR were the parent, school counselor, special education department head, special education teacher, director of special education, attorney for Norwood, assistant director of special education, attorney for the parent, and Helena’s primary care physician. None of Helena’s teachers from the previous year, nor Dr. Weieneth, a private psychologist, Helena or any witnesses to the incident attended the MDR. At the MDR, the Team reviewed the August 2024 Decision, Helena’s disciplinary record, which reflected no prior infractions, “a little” of the student’s academic record, the videos of the incident, as well as a supportive letter and reports by some of Helena’s care providers. The Team discussed the fact that Helena had not taken her medication on the morning of the incident, as well as the manifestations of ADHD Predominately Inattentive Type. The student’s school file contained no information relative to Student having any history of trauma.  The MDR lasted ninety minutes, which according to school staff, was one of the longest MDRs they had ever attended.   Much of the student-side evidence at the MDR centered on the fact that Helena did not take her ADHD medication the morning of the incident and how that, coupled with her past trauma history, was the cause of Helena’s behavior. The MDR Team concluded that the conduct subject to discipline was not a manifestation of Helena’s disability.  The hearing officer concluded that Helena had a full and fair opportunity to make her case at the MDR.   Dr. Weieneth evaluated Helena after the MDR and testified at the BSEA hearing.  In her opinion, Helena’s ADHD, particularly given her trauma history, inhibited Helena’s behavior throughout the entirety of the incident on May 29, 2024 until she was able to calm down. Her conduct on May 29, 2024 was an impulsive reaction resulting from her ADHD. According to Dr. Weieneth, Helena was experiencing significant stress in ninth grade, and responded impulsively due to a “major provocation.” The “provocation” was a peer coming up to Helena’s table and saying something that Helena found provocative. Her rising from the table and following the peer were all part of one impulsive action according to Dr. Weieneth. In other words, Helen’s ADHD “led to an impulsive decision” that then “brought her down this path” where she could not inhibit her response, or to stop and think. That she did not have such behaviors in the past did not negate the relationship between her ADHD and the conduct. Rather, Dr. Weineneth opined that Helena suffered a “total frontal lobe shutdown” and the incident was the result of a “buildup of stressors and a severe provocation.” Even when told to stop by staff, Helena continued to be in fight or flight mode, and she could not calm down until she felt safe. That Helena was un-medicated on the day of the incident made her vulnerabilities even more pronounced.   The hearing officer failed to overturn the MDR Team’s decision.  Concerning the composition of the MDR Team, the hearing officer cited 34 CFR 300.530(e), which provides that the MDR must be conducted by the district, the parent, and relevant members of the IEP team, as determined by the parent and the district. In determining who the “relevant members of the IEP team” are, at least two BSEA Hearing Officers have found that the MDR Team should comprise individuals who possess “personal knowledge” or “first-hand information” of the student.  Here, only one member of the MDR Team here had personal knowledge of Helena  However, the parent, who along with her attorney had significant input into the MDR and exercised her right to have other people present at the MDR, did not seek to invite additional people, such as Helena’s teachers from her previous year, to the MDR.  Also, while attendance of a general education teacher at an IEP Team meeting is mandatory, there is no specific attendance mandates beyond “relevant members of the IEP Team” for an MDR.  In addition, since the conduct did not occur in the classroom, any insufficiency in the composition of the MDR Team would be harmless error since there was no evidence that others would have provided information that would have changed the decision of the MDR Team.   Concerning the basis of their decision, the hearing officer found that the MDR Team considered the parent’s expert opinions, Helena’s disability and past history.  The opinion of Dr. Weieneth could not have been considered since it was rendered after the MDR.  The hearing officer was convinced that the MDR Team complied with its obligation to review all available relevant information that was available at the time.  In reviewing the determination, the hearing officer placed no weight on the opinion of Dr. Weieneth, since it was not available to the Team.  Based on the information available to the MDR Team, the hearing officer found that it properly concluded that Helena’s disability of ADHD Predominantly Inattentive Type, even as it was compounded by past trauma, did not “cause or ha[ve] a direct and substantial relationship” to her disability.  The “global” view that ADHD Inattentive Type may impact impulse control and inhibition is inadequate as there must have been established a specific link to this specific student and the specific May 29. 2024 incident.  There was no evidence that Helena’s past conduct showed similar manifestations and indeed when she was angry and dysregulated in the past she would bite her own arm, not aggress against others. Regarding the fact that Helena did not take Concerta the morning of the incident, her dose was sub-therapeutic and her behavior when taking it would not have been significantly different.  The ten second or so delay between the provocation and Helena’s aggression also undercut the notion of an impulsive action. The conclusion of the MDR Team that Helena’s conduct was not a manifestation of her disability was proper. However, as was held in the earlier hearing, the suspension imposed during the 2023-2024 school year could not extend into the 2024-2025 school year and Helena was still ordered to be returned to school immediately.     THE DISTRICT’S TRANSITION SERVICES PROVIDED A FAPE BUT THE DISTRICT VIOLATED THE STUDENT’S STAY-PUT RIGHTS INVOKED BY REFUSING HIS DIPLOMA  Boston Public Schools, BSEA #2403492, 30 MSER 314 (Figueroa, October 5, 2024) involved the claim that Boston (BPS) did not provide a FAPE and appropriate transition services for the student and therefore he could not be graduated, and, further, that BPS violated the student’s stay-put rights after challenging the graduation date.   The student was twenty-one years old and carried diagnoses of ASD and ADHD which significantly impacted his social interactions and verbal and non-verbal communication. In seventh and ninth grades, he tested into Boston’s exam schools.  By June 2021, the student had passed all the requisite MCAS exams. He participated in various transition service opportunities during the 2021-2022 school year. The Team determined that the student was ready to graduate in June 2022. The parent rejected that proposed graduation date alleging that he was not provided a FAPE during the 2022-2023 school year.   The hearing officer determined that there was no dispute that the student had met local graduation requirements by June 2021 by completing all required coursework and passing the MCAS.   Regarding whether the student had received a FAPE, the hearing officer detailed the extensive array of transition services provided to the student and, therefore, held that BPS had provided a FAPE. During the period between January of 2021 and April of 2023, Boston convened numerous Team meetings to address newly acquired information regarding the student’s progress and interests. The transition evaluations considered during the Team meetings in November of 2022 and April of 2023 resulted in the proposal of IEPs that were aligned with the recommendations of the evaluators and with the student’s vision statement that he wanted to graduate from high school, attend college, and have a career in animation/IT. Boston also made timely 688 referrals to the Massachusetts Rehabilitation Transition Pathway and sought the participation of a DDS caseworker (Student’s agency for adult services) during Team meetings. The student was found eligible to receive DDS services in 2022 and funds had been allocated for him to receive such services when he graduated from high school.  BPS coordinated and offered the student participation in multiple activities involving career exploration, college campus navigation, job readiness, job coaching, task completion, appropriate workplace communication, work stamina, development of soft skills, behavior management, self-advocacy, hygiene, and finances.   The IEP and Transition Plan offered Student a dual enrollment program through which he would attend Boston Community Leadership Academy; take two classes per semester at Bunker Hill Community College; and participate in a range of transition services and experiences. The hearing officer found the evidence convincing that as of June 2023, in addition to having passed all of his MCAS assessments and high school graduation courses two years prior, the student was ready to transition into adult living, including pursuing his goal of attending college. None of this would have been achievable had the program, placements, internships, and opportunities offered by Boston not been appropriate.   Concerning the issue of procedural violations and compensatory services, those relating to the purported failure of BPS to conduct evaluations and consider assessments were not found actionable since by the time BPS actually attempted to graduate Student in 2023, it had offered him extensive services to address his areas of deficits, taking into account the student’s vision. In addition, it had conducted an in-district transition assessment, and funded an independent transition assessment. While the parent was correct that Boston should have conducted the student’s transition assessments in December of 2021 as opposed to the late summer of 2022, this delay did not deprive the student of a FAPE as he continued to receive appropriate services uniquely designed to help him transition into adult life.  It was simply a case of “no harm, no foul.”  As always, in assessing the viability of a claim based upon a district’s delays or procedural violations, it is essential to take the measure of what damage, if any, has been visited upon the student as a result.   Regarding stay-put, it is well-established that graduation constitutes a change in placement for IDEA eligible students. As a result, this change of placement is subject to procedural protections and written notice. 34 CFR §300.102(a)(3)(iii) and (iv). The proposed graduation date must be reflected in the IEP to satisfy the prior notice requirement of the regulations. 34 CFR §300.102(a)(3)(iii). Here, the IEPs covering the periods from January 20, 2022 to January 20, 2023 and the IEP for the period from April 24, 2023 to June 23, 2023 listed the student’s graduation as January 2023 and later June 2023. The parent rejected the IEP in May of 2023, after receiving the IEP proposing to graduate Student in June of 2023, alleging that Boston had failed to offer the student a FAPE. The parent also requested that Boston fund the North Shore Educational Consortium program at Salem State University (“SOAR”) program for the student. While stay-put was properly invoked, when the student went to BPS on the first day of school for the 2023- 2024 school year, he was turned away. Pursuant to settled law as well as DESE’s Administrative Advisory SPED 2018-2, Secondary Transition Services and Graduation with a High School Diploma, BPS was obligated to offer Student dual enrollment services consistent with the student’s prior IEP and Transition Plan. Unlike the other procedural violation, this one was substantial and had to be addressed. BPS was ordered to refund the parent for her out-of-pocket expenses associated with the student’s courses at Bunker Hill Community College during the 2023-2024 school year and transportation.  However, there was no basis for funding SOAR.   A NOTE OF GRATITUDE ABOUT STEVE LILLY-WEBER   On behalf of our community, we express our deep gratitude for the work of Steve Lilly-Weber, who retired at the end of 2024.  For two decades, Steve served as a mediator with the BSEA. Over that time period, he was invaluable in assisting thousands of families resolve disputes with their school districts.  Steve’s manner was always gentle but forceful and highly effective.  He was dedicated to his craft, and without exception demonstrated his integrity and neutrality.  His colleagues have noted how supportive of, and generous toward them that he always was.  Thank you, Steve.  We are all sad to see you retire but are so very grateful for all you have done.

Medical Expense Deductions for Special Education

October 15, 2018

Confused About Medical Expense Deductions for Special Education Costs? Not Surprising!

For the tax lawyer in a firm best known for representing parents of special needs students, there have been many opportunities to respond to the question whether the costs of providing special education services for a dependent child are deductible as medical expenses, and there have been a surprising number of opportunities to debate the question with recalcitrant tax return preparers. The problem may stem from a paucity of guidance on the subject, or more likely on the lack of clarity introduced by the applicable Treasury Regulations. The basic rule, of course, appears in Section 213 of the Internal Revenue Code of 1986 (“Code”), which provides for a deduction for unreimbursed expenses paid (over a floor of 10% of Adjusted Gross Income for 2019 and years thereafter) for the “medical care” of the taxpayer or his/her spouse or dependent.¹ Medical care is defined, in pertinent part, as “amounts paid (A) for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body, [and] (B) for transportation primarily for and essential to [such] medical care…”² This does little to answer the ultimate question, so the next step is to look at the Regulations, and specifically at Reg. §1.213-1(e)(1)(v)(a), which purports to define “medical care” in the context of care in a non-hospital institution, as follows: “Where an individual is in an institution because his condition is such that the availability of medical care (as defined in subdivisions (i) and (ii) of this subparagraph) in such institution is a principal reason for his presence there, and meals and lodging are furnished as a necessary incident to such care, the entire cost of medical care and meals and lodging at the institution, which are furnished while the individual requires continual medical care, shall constitute an expense for medical care. For example, medical care includes the entire cost of institutional care for a person who is mentally ill and unsafe when left alone. While ordinary education is not medical care, the cost of medical care includes the cost of attending a special school for a mentally or physically handicapped individual, if his condition is such that the resources of the institution for alleviating such mental or physical handicap are a principal reason for his presence there. In such a case, the cost of attending such a special school will include the cost of meals and lodging, if supplied, and the cost of ordinary education furnished which is incidental to the special services furnished by the school. Thus, the cost of medical care includes the cost of attending a special school designed to compensate for or overcome a physical handicap, in order to qualify the individual for future normal education or for normal living, such as a school for the teaching of braille or lip reading. Similarly, the cost of care and supervision, or of treatment and training, of a mentally retarded or physically handicapped individual at an institution is within the meaning of the term medical care.” (emphasis added) On the one hand, the highlighted sentences appear to provide support for the proposition that the cost of tuition, fees, room and board and transportation for attendance at a “special education” school qualify as expenses for medical care. On the other hand, the caveat that “ordinary education is not medical care” and the examples that are provided to illustrate the type of institution that qualifies as a “special school”, i.e., “a school for the teaching of braille or lip reading” have given some taxpayers and their tax return preparers pause. The Regulation goes on to make reference to Code Section 262 and the Regulations thereunder “for disallowance of deduction for personal, living, and family expenses not falling within the definition of medical care”.³ At this point a position of doubt and insecurity may well seem justified. However, as early as 1978 the Internal Revenue Service (“Service”) cast considerable gloss on the matter in the form of Revenue Ruling 78-340.⁴ This Ruling considered the case of a child with “severe learning disabilities”, including “congenital impairment in the areas of visual memory and visual matching”, whose disabilities had been determined by “competent medical authorities” to be caused by “a neurological disorder”. The Service determined that amounts paid for tuition at a “special school” having a “program designed to educate children with severe learning disabilities so that they can return to a regular school within a few years” qualified as expenses for medical care under Code Section 213. These facts constitute a fairly typical scenario involving attendance at a “special education” school. The Service has been consistent in its application of the rules developed in Revenue Ruling 78-340. In a series of Private Letter Rulings spanning the years 1978 to 2007⁵ , the Service has determined that expenses of special education constitute deductible expenses in instances in which the fact pattern is similar to that in the Revenue Ruling, i.e., there is a diagnosis of a neurologically based learning disability or other handicap, leading to a recommendation of and attendance at an institution specially equipped to help the student overcome the handicap. In the few instances in which the Service has ruled against the taxpayer, the basis for the adverse ruling was factual. In each case the school program was found to be insufficiently “special” or insufficiently geared to enable the student to cope with a “medical” issue.⁶ Of course, Private Letter Rulings are not precedential, but they do provide an indication of the policies and predilections of the Service. The Tax Court, on the other hand, has somewhat muddied the waters with a series of decisions in favor of the government in the 1970’s and 1980’s⁷. Review of these decisions reveals that the adverse rulings resulted from reasoning similar to that in the adverse Private Letter Rulings cited above, i.e. a determination that the educational program, even if recommended by a physician or psychotherapist, was not “special” enough, as exemplified in the following selections: “We have recognized that because of the difficulty of distinguishing personal educational expenses of an emotionally disturbed child from payments for medical care a careful analysis should be made of the evidence not only to determine if the school the child attended is a “special school” but also to determine to what extent the services rendered to the child are educational and to what extent the services are medical care.”⁸ “This Court has rarely allowed a medical expense deduction for the full cost of a private school education. Although the individual attention, small class size, and strict discipline characteristic of good private schools often are beneficial to students suffering from mental or physical defects or illnesses, the cost of a basic education is still primarily a personal expense, and it does not become a medical expense merely because it is prescribed by a physician. If a private school provides no special services beyond the ordinary educations program offered as a part of its regular curriculum, then the cost of attending the school is not deductible, notwithstanding that attendance may help alleviate a student’s mental or physical defect or disease.”⁹ “We have construed the regulation to mean that a school is a special school only if the ordinary education it provides is incidental to medical care.”¹⁰ The facts are preeminent in the analysis, and in an early decision, on more favorable facts, the Tax Court did in fact rule in favor of the taxpayer, in a case involving a learning disability stemming not from neurological causes, but rather from an emotional disturbance.¹¹ The clear conclusion is that if the fact pattern is appropriate, taxpayers and their advisors should not be reluctant to claim a medical deduction for expenses of providing special education to a dependant, including tuition, fees, room and board, transportation and related medical and counseling services. A more challenging and perhaps more interesting question is whether legal fees expended by parents in their quest to obtain special education services from a city or town can be included in the foregoing compilation of deductible medical expenses. For many years there was no specific answer from the courts or the Service, but an analogy could be made to the Gerstacker decision¹², accepted by the Service in Revenue Ruling 71-281¹³. In that case the 6th Circuit Court of Appeals ruled that legal fees incurred in a guardianship proceeding were deductible as a medical expense as they were required in order to obtain necessary medical care for the ward, specifically commitment to a hospital for treatment of mental illness. By analogy, parents might argue that their legal battle with the municipality is a necessary avenue to obtain special education services, which in turn constitute medical care. This argument was finally rejected by the Tax Court in 1998 in Lenn v. Commissioner,¹⁴ in which the underlying legal dispute was over reimbursement for special education expenses paid by the parent. The Court distinguished the Gerstacker reasoning because the case against the town was not brought to “legitimate or authorize medical treatment” but was instead brought to determine who would pay for such services. This is a logical and cogent response to the attempt to extend the Gerstacker rationale, but it leaves open the question whether the same argument can be made in the case of destitute parents whose child cannot and will not receive needed services unless the city or town pays for them. This question will have to be left to another day.

1. Code Section 213(a).
2. Code Section 213(d)(1).
3. Reg. §1.213-1(e)(1)(vi).
4. 1978-2 CB 124.
5. See, e.g., PLR 7827020, PLR 7843032, PLR 8033096, PLR 8401024, PLR 8445032, PLR 8447014, PLR 200521003, PLR 200704001, and PLR 200729019.
6. See, e.g., PLR 8303037, and PLR 8616069.
7. See, e.g., Jack W. Reiff, TC Memo 1974-20, John A. Dreifus, TC Memo 1977-83, Alvin J. Sims, TC Memo 1979-499, Harry J. Vankirk, TC Memo 1980-572, Fay v. Commissioner, 76
8. TC 408 (1981), Bruce S. Walton, TC Memo 1982-648, Devora R. Shidler, TC Memo 1971-126, and Donald R. Pfeifer, TC Memo 1978-189.
9. Reiff, supra.
10. Sims, supra.
11. Vankirk, supra.
12. Greisdorf, Lawrence D. 54 TC 1684 (1970).
13. Gerstacker v. Commissioner, 414 F.2d 448 (6th Cir. 1969).
14. 1971-2CB 165.
15. TC Memo 1998-85.

College Bound

January 17, 2013

Jayme Finstein and Daniel T.S. Heffernan Perhaps there has been no greater sense of being “left behind” or “left out” for high school students with Down syndrome than when their peers become seemingly all consumed with college in junior year. For our children, college was something that few dared to dream about. However, the improvement in the education of children with disabilities has led to an expectation of a more meaningful and fulfilling post-high school life. More and more opportunities for students with Down syndrome to attend college have sprung up and offer myriad models for college careers. Several laws have helped develop some of these opportunities. When the cornerstone federal statute, the Individuals With Disabilities Education Act, was reauthorized in 2004, it and resulting regulations emphasized successful transition to post-school life as an important goal of the education of children with special needs. A crucial component of the transition planning that school districts must begin when the student turns fourteen years old is the post-school vision. Transition services are to be coordinated, results oriented, and based on the individual student’s strengths, preferences and interests. Where appropriate, therefore, there is no barrier to have college as the post-high school vision for a student with Down syndrome. Because students with disabilities are entitled to special education services until they graduate from high school or turn twenty-two, one model provides for the student with Down syndrome to attend college while still eligible for special education services from his or her town. Services such as education coaches, travel training, tutoring and other supports can be incorporated into IEPs to allow students to attend college. One superb example of partnership between school districts and Massachusetts community colleges has been the Inclusive Concurrent Enrollment Program (“ICE”). The state-funded ICE discretionary grant pilot program began developing new partnerships between high schools and public institutions of higher education in 2007. This program offers students with intellectual disabilities, ages 18-22, who have not passed MCAS, or 20-21 year olds who have passed MCAS but are still receiving special education services, the opportunity to participate in inclusive college courses. MassBay Community College, along with five other community college partnerships across Massachusetts, has been offering students with intellectual disabilities this unique opportunity to participate in an inclusive college experience with the necessary supports and services as determined by the college and school district. Through this program, students learn to function independently on the college campus, use self-determination skills in adult settings, learn content area skills, and request accommodations and other services at the college. Students are also developing career-planning and employment skills, self-advocacy skills, and new life skills that will assist them in their post-secondary interests and activities. Although the five-year grant pilot program for ICE is ending, many of the partnerships plan to sustain these programs on their campuses so that college is still a viable option for students with intellectual disabilities. MassBay will begin its own Transitional Scholars Pilot Program for the Fall 2011 semester. The vision is for the program to grow to include even more comprehensive services such as a program certificate, scholarships, job development, and an internships. Another model is for students with Down syndrome to attend college independent of their local school districts. Section 504 of the Rehabilitation Act of 1973, as well as the Americans with Disabilities Act (“ADA”), were both enacted to level the playing field by eliminating barriers to full participation by people with disabilities in our society. Section 504 calls for colleges to make reasonable accommodations to allow students with disabilities to meaningfully participate. Such reasonable accommodations include extra time for tests, scribes, textbooks online, and permission to tape classes. Technological advances, such as speech recognition and other software, also have helped students with Down Syndrome successfully attend college. Many colleges now have offices and programs supporting students with disabilities. Colleges offer services to all students with a documented disability through their campus Disability Resources Office. Students do not have the framework of the IEP process in college. Instead, students need to seek out services, show proof of a disability with the proper paperwork, and register with the Disability Office to receive the appropriate accommodations. This “self-advocating” is often a new concept for students entering college. Various colleges in Massachusetts have specially designed programs that serve students with specific needs with services that go beyond those offered by the Disability Office on campus. The Threshold Program at Lesley University, The Transition Program at Middlesex Community College, and Project Forward at Cape Cod Community College are three of the programs offered at colleges in the state to students who have graduated from high school or who have aged out of services from the district. Massachusetts is leading the charge in creating post-secondary options for students with intellectual disabilities across the country. College is now, more than ever before, a real option for students with Down syndrome, and why shouldn’t it be? Daniel T.S. Heffernan, Esq. is a partner at Kotin Crabtree and Strong, LLP in Boston, Massachusetts. He concentrates his practice in representing families in special education and civil rights matters. From 1995 to 2007, Dan served as president of the board of directors of The Federation For Children with Special Needs. His son, Brian, who is twenty years old and has Down syndrome, currently attends Massachusetts Bay Community College through the Inclusive Concurrent Enrollment Program (ICE). In 2002 Dan and his wife, Julie, received the Dr. Allen C. Crocker Award of Excellence by the Massachusetts Down Syndrome Congress. He writes and lectures frequently on special education law and advocacy. Dan can be reached at dheffernan@kcslegal.com. Jayme Finstein is the Coordinator of the Inclusive Concurrent Enrollment Program (soon to be, Transitional Scholars Pilot Program) at MassBay Community College in Wellesley, MA. She focuses her work on developing ways to give students with intellectual disabilities every opportunity at the college level to be fully included, to achieve their goals and to be successful members of society. She hopes for the day that students with intellectual disabilities will be included in all institutions of high education across the country. Jayme can be reached at jfinstein@massbay.edu.

Transition Planning and Services

January 03, 2013

By Daniel T.S. Heffernan

If there is one area in which the law has gotten stronger on the side of students with disabilities in the last ten years, it is in the area of transition. When the cornerstone federal statute, the Individuals With Disabilities Education Act, was reauthorized in 2004, it and resulting regulations emphasized successful transition to post school life as an important goal of the education of children with special needs. School districts are now required to begin transition planning when the student turns fourteen years old and IEPs thereafter must include a post-school vision and incorporate “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills.” 20 U.S.C section 1414(d)(1)(A)(i)(VIII)(aa)). Transition services are to be coordinated, results oriented, and based on the individual student’s strengths, preferences and interests. The litigation that resulted over the provision of appropriate transition has clarified the required components of transition services. In a case recently decided by the Massachusetts Bureau of Special Education Appeals and currently under appeal in federal court, Dracut Public Schools, BSEA #08-5330, 15 MSER 78 (2009), the hearing officer strongly reiterated the responsibilities of a school district to focus meaningful attention on non-academic goals and prepare a student for independent living, employment and/or post secondary education. The district was taken to task for not conducting adequate assessments of the student in the area of transition, relying instead on the pro forma completion of transition planning forms. In Dracut, the school district was ordered to provide compensation in the form of two additional years of meaningful transition services despite the fact the student had passed MCAS and was eligible for his high school diploma. Other factors have combined with the law to make transition services and planning an extremely “hot” area. First, the improvement in the education of children with disabilities has led to an expectation of a more meaningful and fulfilling post school life. Second, special education law accords children with special needs a strong entitlement to services from school districts until that child graduates from high school or turns twenty-two years old. The reality in times of extreme budget crises and the ever present vagaries of the availability of adult services is that the best source of transition services, through either the direct provision of those services or funding of those services, is the school district. Whereas the Department of Developmental Services may develop a fabulous post secondary program for your child, there is, in reality, no real entitlement to that program and little recourse if it was suddenly eliminated for budgetary or other reasons. A school district’s ability to restrict or eliminate programs and services is constrained by federal and state law. In my practice, I often advise parents to hold onto the eligibility of special education services as long as possible, even in some situations by refusing a high school diploma. Some school districts have attempted to trivialize or eliminate non-academic goals in IEPs to lessen their obligation to provide services to meet those goals. Others have made a strong effort to “push” children off the school rolls by offering diplomas when further services are necessary. Fortunately, these factors have spawned a boom in transition programs. Private programs have sprung up or expanded, and parents have been successful in getting school districts to partially or fully fund these programs when the school district’s transition programs have been inadequate. Many school districts, even those strapped for cash, have hired transition specialists, vocational experts, and the like to focus resources on developing or improving their home grown transition services motivated, in part, by the desire to avoid having to fund outside placements. It is crucial that good transition planning begin early - at the latest when the student turns fourteen. The Federation for Children with Special Needs (www.fcsn.org) is one organization that offers excellent workshops throughout the year on transitions. Having good evaluations in the areas of transition, vocational and neuropsychological is key in crafting an effective and appropriate transition plan for the student. The school district is obligated to provide evaluations in these areas and you have a right to obtain an independent evaluation if dissatisfied with those evaluations or in areas the school district has failed to evaluate and, in some circumstances, have the school district fund those independent evaluations. To prevail in a dispute with a school district over transition, or any other services, independent experts retained by the family is essential. You always have the right to have your child evaluated at your own expense (or possibly covered by your health insurance) by whoever you wish, including a reasonable opportunity to have any current or proposed program observed by those experts. Know your rights about transition services. My firm’s website (www.kcslegal.com) has articles on special education including summaries of key decisions in special education law that include transition cases. The Massachusetts Department of Elementary and Secondary Education (www.doe.mass.edu) has links to advisories and special education law and decisions in the area of transition. First and foremost, be aware that you have strong rights to have meaningful and comprehensive transition planning and services for your child and there are many great ideas and programs emerging in the areas of transition. Daniel T.S. Heffernan, Esq. is a partner at Kotin Crabtree and Strong, LLP in Boston, Massachusetts. He concentrates his practice in representing families in special education and civil rights matters. From 1995 to 2007, Dan served as president of the board of directors of The Federation For Children with Special Needs. His son, Brian, who is eighteen years old and has Down syndrome, currently attends Massachusetts Bay Community College through the Inclusive Concurrent Enrollment Program (ICE). In 2002 Dan and his wife, Julie, received the Dr. Allen C. Crocker Award of Excellence by the Massachusetts Down Syndrome Congress. He writes and lectures frequently on special education law and advocacy. Dan can be reached at dheffernan@kcslegal.com.

The Paper Case: Managing Your Documents Under IDEA, Part Two

January 03, 2013

What Documents Should You Create?

Why create any documents? One simple reason is that you may have to tell your child's story to another person - perhaps to an evaluator, an advocate or lawyer, or a hearing officer – in order to get help, and documenting events as they occur will help you tell the story accurately and in good order. Another reason is that documents can help clarify understandings you reach with people – particularly with service providers or school administrators. Yet another reason is that a note written at the time something significant has happened may help to support you when you need to prove to another person that the event happened the way you claim it happened. It sometimes takes years before parents realize that they should have kept better notes of meetings, telephone calls and significant events in their child's educational career. If you are the parents of a very young child with a disability in need of special education, you can get ahead of the game by developing this habit now. The notes you take may be important later when you need an accurate description of what key people said at a TEAM meeting, in the hall after a parent-teacher meeting, in an evaluator's office when you were given a report, and so on. Some parents keep a journal or simply a running chronology with dates, short descriptions of events or conversations and names of people concerned. This does not need to include every tiny detail of your child's life, but a well-kept journal or chronology can help you explain to others (or to yourself) how you got to the current situation if you have recorded key events and communications along the way. Among other events, you should record dates of meetings with school personnel, dates you received key documents (notices of TEAM meetings, etc.), dates you sent or delivered key documents (e.g., “December 1, 2005 - hand-delivered our consent to the proposed school evaluations”), dates on which you gave school personnel important information (e.g., “January 6, 2006 – told Mary's teacher that Mary had been spending 3 hours every night trying to do 15 minute math homework assignments”), dates on which your child was suspended or otherwise disciplined, and so forth. Some documents are created in order to record understandings reached with others. The most formal example of this type of document is a contract signed by the parties who agree to its terms. (An IEP should be treated as a contract. It records an agreement reached between parents and school systems to govern the types of services to be delivered to a child for a specific period of time, the location of those services, the identity of service providers and so on, and is signed by each party.) Even without such an official agreement, however, you can create a document yourself that can help prove that an understanding was reached. Suppose, for example, that you have a conversation with your special education director in which s/he says that the school system will hire an expert on inclusion techniques to consult to your child's classroom and that you will be given the opportunity to meet with that consultant about your child. You should follow up this conversation with a friendly letter to the director thanking her for taking the time to discuss your concerns about the classroom and describing your understanding of what steps s/he promised to take. You should conclude such a letter by requesting the director to respond immediately if your understanding is incorrect in any way. Such a letter may not actually “prove” that the director said the things you claim, but if s/he doesn't respond with a correction, there is at least an implication that s/he did say those things. There may be other documents you could create that will help your child. Have there been years of repeated testing in which scores have declined steadily? You might want to create a chart of test results to focus the TEAM on that history. Have people working with your behaviorally involved child wondered what precipitates his/her aggressive outbursts? Keep a record of things said or done immediately before such explosions for a while – whether seen by you personally or reported to you. Perhaps you can help solve the mystery and focus service providers on developing a plan to work with those behaviors. (Note: There is a kind of evaluation called a “functional behavioral assessment” which is a more formal version of this kind of analysis. You should request that such an evaluation be performed if you become concerned that your child may fall into the disciplinary system because of behaviors that you believe are caused by a disability.)

Documents In The Hearing Process: Preparing To Meet Your Lawyer.

When parents ask an attorney or lay advocate to advise them about their child's rights under IDEA, the first thing the adviser must do is review all the relevant documents. How should you organize them? We ask parents to send copies of all their documents in strict chronological order before we meet so we can read them and get as full a picture as possible about who the child is and what has been done for him or her in the special education system. Unless the attorney or advocate asks you to do so, don't try to organize your documents by category (e.g., placing all the IEPs in one file, all the evaluations in another, all the correspondence in another, etc.). The most efficient way for the advocate or attorney to get the picture and the history is to see the development step by step. Note that in the sequence of those documents, an IEP should be placed according to the date of the Team meeting that developed the IEP. Because any document might eventually have to be introduced as an exhibit at a hearing or in court, we ask that parents not write any comments on them. (You can point out particular items or ask questions by using sticky notes.) You should also give the attorney or advocate a chronology of the events that have led you to consult with him/her – not an extremely detailed description of every thing that happened, but an outline that will give the advisor a perspective on what led to your child's current situation. Finally, you should give your attorney or advocate a list of all the key people that have been involved with you or your child, with full names, addresses and phone numbers if you can find out that information.

Documents In The Hearing Process: Formal Discovery.

If your quest for services leads to a formal due process proceeding, you will have whatever “discovery” rights are available to parties under the rules in your state's due process system. (Some states' hearing procedures do not provide for any such formal discovery process at all.) Typically, those rules allow parties to have the opposing parties produce documents that are either relevant in their own right to the issues the hearing officer must decide or could lead to relevant evidence. Here are some of the kinds of documents we would typically ask school systems to produce in formal discovery:

• descriptions of proposed programs;
• copies of the child's proposed daily/weekly schedule under the proposed IEP;
• copies of the daily/weekly schedules of proposed service providers;
• copies of curricula, materials, behavioral plans, etc. that are used the classroom(s) where the child would be placed;
• resumes and information about certification, training and experience of proposed service providers;
• profiles of other students with whom the school system has proposed to place the student;
• IEPs, with names blacked out, of those other students;
• reports of any program or fiscal audits of the school system and of the particular program in which the school system proposes to place the child;
• annual or other periodic reports the school system files with the state education agency concerning special education programs;
• minutes taken by school system personnel at any key meetings about the child (particularly TEAM meetings).

Conclusion

It is a long road from the beginning to the end of your child's school life. If your child has a disability, you will be hauling a wagon that grows heavier with documents every year along that road. I hope the guidelines I've given you here will help you keep, organize and use those documents in a way that will help you make the most of your child's entitlements under IDEA. Copyright © 1998, 2006 Robert K. Crabtree Kotin, Crabtree and Strong, LLP