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In Re: Lexington Public Schools v. Student BSEA No. 25-12905

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Lexington Public Schools v. Student

BSEA No. 2512905

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act or IDEA (20 USC Sec. 1400 et seq.); Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766” (MGL c. 71B), the Massachusetts Administrative Procedures Act (MGL c. 30A) and the regulations promulgated under these statutes. 

On May 14, 2025, the Lexington Public Schools (LPS, Lexington, or District) filed a request for a hearing with the Bureau of Special Education Appeals (BSEA) in which it alleged that the District is unable to provide Student with a free, appropriate public education (FAPE), and that Student requires placement in a private, out of district day school. Lexington seeks an order allowing it to place Student, who currently is enrolled in a substantially separate program in a Lexington public elementary school, in an as-yet unidentified private day school.  Parents oppose the District’s position, contending that any lack of progress experienced b Student in his current setting is the result of the District’s failure to provide Student with appropriate accommodations and/or services, and failure to work collaboratively with Parents.  Parents state that they are willing to explore out-of-district programming but oppose being rushed or pressured into doing so.

Lexington requested that the hearing be placed on an “expedited” track, alleging that “maintaining the current placement of the student during the pendency of due process proceedings is substantially likely to result in injury to the student or others.”

Upon receipt of the hearing request, the BSEA assigned the matter to an “expedited” track and scheduled a hearing date of May 29, 2025.  A pre-hearing conference[1] took place on May 27, 2025, during which the parties agreed that additional dates of June 2 and 3, 2025, would be needed for presentation of evidence. 

The hearing was held in person at the office of the BSEA in Malden, MA, on May 29 and June 2, 2025.  By agreement, the third day of hearing was held remotely on June 3, 2025.  Lexington was represented by counsel and Parents proceeded pro se on behalf of themselves and Student.  Both parties had an opportunity to examine and cross-examine witnesses, as well as to submit documentary evidence for consideration by the Hearing Officer.  The hearing concluded on June 3, 2025.

The record in this case consists of School’s Exhibits S-1 through S-25, Parents’ Exhibits P-1 through P-21, as well as stenographically-recorded witness testimony and argument.  Those present for all or part of the proceeding were:

Student’s Mother

Student’s Father

Student’s Grandfather

V.S.                                                    Family Friend

A.L.                                                    Family Friend

Johanna Hoxie                                 Evaluation Team Supervisor (ETS), LPS

Lisa Sullivan                                     Special Education Teacher, LPS

Katherine Smith                              BCBA, LPS

Emily Sheridan                                Middle School ETS, BCBA Supervisor, LPS

Elise Phair                                        Private Speech-Language Therapist

Dr. Rafael Castro                            Neuropsychologist

Laura Spear                                     Director of Special Education, LPS

Justin Gomes                                   Attorney for Lexington

Ellen Muir                                         Court Reporter

Daniel Kramer                                 Court Reporter

Neelu                                                Interpreter

Sara Berman                                   BSEA Hearing Officer

ISSUES PRESENTED

The issues to be decided are:

  1. Whether IEPs and placements proposed by Lexington for June 2024-June 2025, as amended in December 2024, and the IEP proposed on March 25, 2025 covering March 24, 2025 to March 25, 2026, are reasonably calculated to provide Student with a FAPE;
  2. Whether Student’s current placement in Lexington’s Intensive Learning Program (ILP) at the Fiske Elementary School and the corresponding ILP placement for 2025-2026 in the ILP at the Diamond Middle School are reasonably calculated to provide Student with FAPE;
  3. If not, whether these programs could be modified to provide Student with FAPE;
  4. If not, whether Student requires an out-of-district day program in order to receive FAPE.

POSITION OF LEXINGTON PUBLIC SCHOOLS

Prior to and during the 2024-2025 school year, Student has displayed significant and escalating interfering behaviors related to his disabilities, including flopping, eloping, toileting issues, exposing himself, self-injurious behavior (SIB), and aggression to staff.  Student’s behavior risks his safety and compromises his dignity, has caused injuries to several staff and to Student, and poses an ongoing risk to the safety of Student and others.  This behavior has persisted despite the best efforts of staff to provide appropriate intervention. 

As a result, Student spends very little time engaged in learning and has been unable to make effective progress towards his IEP goals. Lexington has exhausted every available strategy to support Student without success and has concluded that Student cannot receive a FAPE in his current placement, the District’s most intensive, specialized and restrictive setting for students who, like Student, present with Autism Spectrum Disorder. 

Further, Student will be transitioning to middle school for the 2025-2026 school year, and the substantially separate middle school program, which is structured similarly to Student’s current placement, will not be able to provide Student with the level of support, the year-round programming, or the peer cohort that Student needs to receive a FAPE.  In fact, the larger student population and increased number of transitions at the middle school are likely to exacerbate Student’s behavioral struggles.  To make effective progress, Student needs more intensive programming than LPS is able to provide, including a full-year program that uses ABA methodologies and is specifically tailored for children with similar profiles.

POSITION OF PARENTS

Parents agree that Student has been struggling in his current placement and will require a more specialized and intensive educational program in the near future.  They assert, however, that Student’s difficulties are attributable to Lexington’s failure to provide accommodations that would enable him to reduce his problematic behaviors and focus on learning.  For example, Lexington has insisted on assigning a BCBA to Student who does not work with him effectively, has allowed staff to simply take data on maladaptive behavior rather than intervening or correcting same, has failed to provide appropriate education for Student to address behaviors that may be related to puberty, has scheduled Student to spend most of his day in a confined, windowless “cubby” which makes him frustrated, has failed to work collaboratively with Parents to address issues such as the cubby and BCBA assignment, and has retaliated against Parents for their advocacy on behalf of Student and a sibling.  Parents further assert that Student does not display unmanageable behavior at home or in the community, and that he has made progress in many domains.  Lastly, Parents believe that Student deserves an opportunity for a fresh start in Lexington’s middle school. 

Despite the above, Parents are willing to consider an out-of-district placement but believe that such a move must be made carefully and deliberately and not be rushed.  They believe that the District is attempting to coerce them into placing Student in the first available placement, regardless of whether it would meet Student’s needs. They seek a process whereby a “neutral” Team, comprising participants who have not previously worked with Student, meets to consider Parents’ private evaluation, and a collaborative process by which referrals are sent to potential out-of-district placements, and, Parents are given the opportunity to tour and investigate such placements.  They want to ensure that Student is placed only in a program that will meet his needs.

SUMMARY OF THE EVIDENCE

Overview of Student Profile

  1. Student is an eleven-year-old child who lives with Parents and a sibling in Lexington, MA.  Student’s eligibility for special education and related services from the Lexington Public Schools pursuant to the IDEA and MGL c. 71B is not in dispute.  Student has attended Lexington Public Schools since 2018.  He currently is a fifth-grader in the Intensive Learning Program (ILP) located at the Fiske Elementary School in Lexington.  The ILP is a substantially separate, specialized program for students with autism.  The classroom serves a total of six students (including Student) and is staffed with a special education teacher and one Student Support Instructor (SSI) per student.

Like his peers in the ILP, Student has a dedicated 1:1 SSI with him at all times in the classroom. For safety reasons, Student is often accompanied by two or more staff when outside of the classroom. Each student has a “cubby” for instruction, which is an area partially closed off with partitions.  The partitions on Student’s cubby are bolted to the wall, because in the past he has attempted to climb on them.   Student’s cubby is not next to a window. There is a common area within the classroom, but due to behavior during transitions, Student spends most of his time in the cubby, including for lunch, specials, and services such as speech therapy.  (Parents, Hoxie, Sullivan, Smith, S-1)

  1. Student is described as a sweet, delightful, joyful, and active child, who is a “great kid.” He is a treasured member of his immediate and extended family, with whom he has warm, affectionate relationships.  He also enjoys close relationships with family friends and their children, who have known him since birth or early childhood.  (Parents, Grandfather, V.S., A.L., Sullivan, Castro, P-18.5) Student enjoys playing with toys and sensory items, and his interests include letters, numbers, sight words, colors, shapes, songs, taking walks and bike rides with family, water play, swimming, and watching videos on his iPad. (Student takes swimming lessons).  (S-5)
  1. Student is considered a “total communicator.” As such, he expresses himself with many modalities, including some spoken words and phrases, vocalizations, gestures, and movement.  In addition, Student uses an Augmentative and Alternative Communication (AAC) device, with which he is able to make some requests and answer questions.  Student also has an iPad, which he uses for communication as well as watching videos. (Parents, Phair, S-12)
  1. The parties do not dispute Student’s disability profile.  Student has been diagnosed with Autism Spectrum Disorder (ASD), Level 3, as well as with Intellectual Disability, (ID)-Moderate.  (Castro, Ex. P-18) 
  1. Further, the parties do not dispute that to make educational progress, Student requires highly individualized programming, in which all skills are taught using principles of Applied Behavioral Analysis (ABA), as well as a multi-sensory approach, an individualized behavior plan, and opportunities to generalize skills across environments.  (Castro, Hoxie, Sullivan, Smith, P-18, S-5)
  1. Student’s disabilities affect virtually all aspects of his functioning.  Student requires intensive support for school-related activities, including academics, communication, behavior, activities of daily living (including toileting), and transitions.  His ability to participate in learning is compromised by disability-related behaviors such as flopping, aggression, throwing objects, and motor and vocal stereotypy, which interfere with his attention to learning. In the school setting, he has engaged in unsafe behavior including self-injurious behavior (SIB) such as hitting his head against objects, aggression towards adults, and eloping.  Student also has engaged in exposure of his private parts in school and has been observed “grinding” his groin area against the floor.  His interactions with peers are minimal.  (Hoxie, Sullivan, Smith)

At home and in the community, Student demonstrates little or none of the problematic behavior referred to above and is easily redirected when necessary.  He participates in family routines and is able to perform many activities of daily living, such as toileting, hygiene, and picking up after himself, with increasing independence.  (Parents, Grandfather, V.S., A.L.) 

Chronology

  1. Student entered LPS in January 2018, shortly after his family’s move to Lexington.[2] At that time, he was enrolled in the substantially-separate ILP program housed in the Fiske Elementary School, where he has remained from that date through the date of the hearing.[3]  Because Student currently is a fifth-grader, he will transition to Lexington’s Diamond Middle School for the 2025-2026 school year if he remains in the District. (P-1, Parents, Hoxie)
  1. Between 2018 and 2021, Parents and LPS staff exchanged emails regarding Parents’ concerns about aspects of Student’s placement, including the number of hours of home based services and satisfaction/dissatisfaction with the assigned BCBA and Team leader.[4]  (P-1)
  1. In the spring of 2021, LPS conducted a three-year re-evaluation of Student.  Team meeting notes reflect that the Team’s “major goal areas” for Student were social/play, adaptive physical education, speech/language, occupational therapy (OT), academics, behavior, and self-help.  Recommended accommodations included “environmental arrangements for safety (e.g., padded mat for floor), repeated modeling of target language, and “direct home service…for 3-4 months, 2/260  minutes/week,” to be reviewed by the Team in 3-4 months.  Placement would be in the sub-separate ILP classroom, and Student would receive OT, speech/language, and APE.  Student’s behavioral programming would be overseen by a BCBA, Katherine (Kate) Smith.  (P-3.2) 
  1. On September 27, 2022 (early third grade), LPS reconvened the Team because “[the District] continue[d] to have significant concerns regarding [Student’s] behavior in the school setting, and what this means for educational progress, as well as safety of everyone involved.”  (P-4.2) According to Lexington’s Summary of Team Meeting, BCBA Katherine Smith reported that the following behavioral issues occurred on a daily basis: aggressions, ED,[5] SIB (slamming body/head), and tantrums.  Sometimes it was clear why the behavior was occurring (e.g., a preferred activity ending), and other times there were “no clear reasons” for the behavior.  Other behavioral issues included, bathroom behaviors such as, dropping to floor, reaching into toilet and getting toilet water on Student and teacher, trying to drink soap, and “physical engagement with staff in slippery, hard environments.”  (P-4.2) Ms. Smith further reported that “most of the time, he is not available for meaningful instruction due to behavioral engagement,” such as, e.g., 20 minutes of “behavior” during a speech/language session.  (P-4.2) 

Student’s classroom teacher at the time reported that Student’s “safety needs have intensified over the past year, although there is ebb and flow,” that Student was “getting bigger and stronger,” and that the Team “may need to discuss placement due to concerns.”  (P-4.2)

The Team proposed a functional behavioral assessment (FBA).  Parents wanted two FBAs, one with an unfamiliar observer. The District agreed to consider Parent’s request for a BCBA unfamiliar with Student to do the assessment.  The record does not indicate whether an FBA was done at this time.  (P-4.2)

  1. During October 2022, the parties discussed an extended evaluation for Student but were unable to locate and/or agree upon an evaluation site.  Parents proposed the Bierman Center for Autism in Needham, MA.  Between December 2022 and February 2023, Parents and LPS exchanged emails regarding LPS funding Bierman for an extended evaluation.  Ultimately, the District declined to do so absent various conditions to which Parents did not agree.  Beginning in January or February 2023 and until the end of the 2022-2023 school year, Parents homeschooled Student and sent him to Bierman, at private expense, for ABA services.  Parents felt that Student made progress at Bierman.  (Parents, P-4).  The record contains no information from Bierman.
  1.  Student returned to LPS at the beginning of the 2023-2024 school year (fourth grade),  and re-enrolled in the ILP program at the Fiske Elementary School.  At Parents’ request, the District agreed to change Student’s BCBA from Katherine Smith to Eric Bodwell.[6]  (Smith, P-5) Parents felt that Student made progress when Mr. Bodwell was serving as his primary BCBA.  (Parents)  Mr. Bodwell did not testify at the hearing.
  1. During January and February of 2023 and 2024, Parents made several requests of Lexington, including that changes be made in the instructional approach and that Student’s workspace be moved. (Student, like his classmates, was assigned to a partitioned “cubby” containing a worktable, chair, and beanbag chair, placed within a classroom that also contained common area space). Parents asked to have Student moved to a cubby next to a window, or to periodically rotate cubby assignments within the classroom, asserting that the confinement and lack of natural light frustrated Student, causing him to resist doing work and exacerbating behavioral challenges.  (Parents) 
  1. The District again proposed an extended evaluation and declined to make Parents’ requested changes pending the outcome of the evaluation.  (P-5) Dissatisfied with the District’s response, during the spring of 2024, Parents raised their concerns, along with general concerns about Lexington’s special education resources, with the Office for Civil Rights (OCR) of the US Department of Education, the Lexington Special Education Advisory Council and the Lexington School Committee.  (Mother, S-7)
  1. From March to May of 2024, Lexington conducted a three-year re-evaluation of Student consisting of assessments in the following areas: psychological, core skills, structural behavioral, home behavioral, speech/language, occupational therapy, educational, Augmentative and Alternative Communication (AAC), adapted physical education (APE), and developmental history.  (S-6 – S-16)
  1. The psychological evaluation was conducted on May 14, 2024, by Julie Jeffrey, M.A.  and consisted of assessments of Student’s cognitive skills, using subtests of the Differential Ability Scales (DAS) and adaptive behavior, using the ABAS and Autism Spectrum Rating Scales.  Test results indicated that Student’s cognitive skills and adaptive behaviors measured “well below the average range” for his age, but that he had relative strengths in the areas of matching, sorting, and categorizing pictures.  The evaluator recommended continuation of “specialized and intensive support services to develop or maintain skills for behavior regulation, functional communication and academics, and daily living skills” in the context of “a highly structured, predictable classroom setting …”  (S-7)
  1. The Core Skills Assessment (CSA) was conducted over several days in March, April and May 2024, and consisted of “52 items designed to evaluate…areas of strength and areas of need…” with respect to skills that “serve as essential foundations for independent living and development of more complex skills.”  The examiner found that although Student showed relative strengths in multiple areas (particularly in pre-academics), he showed interfering behavior which interrupted testing, including “minor environmental destruction, flopping on the floor and self injury in the form of hand biting,” and “near constant vocal or motor stereotypy.”  The evaluator recommended continued instruction with a high level of adult support from a Student Support Instructor (SSI), services and instruction informed by ABA, use of a token economy, and instruction to expand skills while reducing interfering behavior.  (S-8)
  1. Eric Bodwell, who had been serving as Student’s primary BCBA during 2023-2024, conducted a Structural Behavioral Assessment, which comprised a structured interview with Student’s special education teacher and direct observation of Student.   The teacher reported that Student had “emerging” vocal language skills, and also used his AAC to communicate.  He used a variety of toys and activities at school, including his iPad (for videos), sensory toys, a beanbag chair, trampoline, and playground equipment.  He demonstrated a range of problem behaviors throughout the year, the most concerning of which were SIB (hitting his head on objects, slapping and biting himself), elopement during transitions into or out of the transportation van or to/from the playground during recess, and aggression, consisting of pushing or pushing past staff when they try to block an elopement.  These behaviors mostly occurred when Student was dysregulated, denied access to something he wanted, sought to avoid demands, or when a routine was broken.   At times, the trigger for behaviors could not be identified. 

Mr. Bodwell observed Student on three occasions.  During the first observation, Student engaged in learning activities in his cubby, with his SSI, and also used the bathroom, accompanied by his SSI, without incident.  During the second observation, Student arrived at school in the transportation van and transitioned to his classroom.  He attempted to elope in the parking lot and inside the building, and pushed into/bumped staff as they blocked him.  He also flopped on the floor for about 20 minutes.  Three Staff were able to block Student and redirect him to the bathroom, which he used safely with support, and his classroom, where he engaged in a learning activity.  During the third observation, Student used his AAC to communicate with his teacher, engaged in learning activities, used the bathroom appropriately, and transitioned to and from the playground where he requested and received pushes on the swing. At one point he leaned back on the stairs but responded to verbal instructions to walk safely.  During all observations, Student was accompanied by one or more staff, who used verbal prompts and his AAC to communicate with him and rewarded him at intervals for positive behavior. 

In his Summary and Recommendations, Mr. Bodwell reported that Student’s maladaptive behavior, described as SIB, aggression to staff, elopement and attempted elopement, flopping, tantrums, crying, spitting, climbing, charging, environmental destruction, unsafe water play (trying to play with water from the toilet), and “perseverative fixations/touching” were “socially significant, as they impact [Student’s] ability to effectively access learning environments and social interaction opportunities.” Mr. Bodwell noted that Student was staffed 1:1 throughout the school day, 2:1 during transitions, and up to 3:1 during times of dysregulation, and that, at times, “portions of the school environment are closed off and made inaccessible to others as staff attempt to help [Student] de-escalate.”

Mr. Bodwell recommended continuation of Student’s current staffing levels, access to a bathroom next to his work area, continuation of his structured routine and environment, access to calming materials and a calming area, visual schedules modeling of functional communication as an alternative to interfering behaviors, use of a comprehensive behavior support plan with antecedent and reinforcement strategies, and consistent home-school communication.  (S-9)

  1.  The Home Behavioral Assessment also was conducted by Mr. Bodwell, who interviewed Parents and observed Student in his home.  Parents reported that they did not see problem behaviors at home, that Student had no difficulties with eating or sleeping, and was independent with toileting and hygiene with some minor help from Parents.  Student had a regular, structured routine at home, and communicated with Parents using vocal language and his AAC.  Parents recommended sitting close to Student during activities, minimizing distractions, using a “compassionate” tone when speaking with him and not being “pushy,” allowing breaks, sticking to an agenda, and continuously reminding Student what to expect using “first, then” language and checking for understanding. 

Mr. Bodwell observed Student at home on two occasions, once with his SSI who was present to provide the home component of Student’s IEP, and once with Parents. who also did learning activities (reading a story, counting, and imitation of facial expressions) with Student. During both visits, Student worked with the SSI and Parents on the activities presented.  At times Student deviated from the task at hand but could be redirected. 

Mr. Bodwell recommended continued consultation to Parents by a BCBA and continued planning meetings with the BCBA and special education teacher, for the purpose of developing Student’s skills in the areas of ADLs, following directions, safety, and leisure, as well as promoting generalization across settings and personnel (staff and family members).  (S-10)

  1. A speech-language assessment was conducted by Tara Mayoralgo over eight days in March, April and May 2024.  At the time of the evaluation, Student was receiving direct speech-language intervention with a speech-language pathologist (SLP) for 3×30 minutes per week and had multiple accommodations to support language.  After observing Student and administering test instruments, the evaluator recommended continued use of a total communication approach with Student, including use of assistive technology such as the AAC and iPad.  (S-11)   An AAC assessment similarly supported the continued use of assistive technology and provided suggestions for expanding Student’s communication repertoire via technology.  (S-12).
  1. An OT evaluation indicated that Student had many emerging fine motor, visual motor and self-help skills, with delays in some skills.  The evaluator concluded that while Student “demonstrates significant potential for learning, challenges with regulation and attention currently limit his ability to engage in learning activities and access school environments and routines.”  The evaluator recommended numerous supports and accommodations, including sensory-motor breaks, a structured typing curriculum, computer activities, visual supports for schedules, activities such as arts and crafts, and visual supports for self-care tasks.  (S-13)
  1. On April 10, 2024, Parents’ educational advocate, Julie Swersey, conducted a two-hour observation of Student in his classroom and issued a report on April 23, 2024.  Ms. Swersey did not testify at the hearing, and the record contains no information about her qualifications.  It is unclear whether the Team reviewed her report. Ms. Swersey’s report described Student’s workspace as being in the corner of the classroom, “near a white board,” but “not a space conducive to learning.”  The report states that the workstations for the other five students “have a window or access to sunlight. [Student’s] space is decidedly darker and lacking in natural light.”

Ms. Swersey and Parents observed Student eating lunch in his classroom with his teacher.  There were no other students in the classroom.  Student did not have opportunities to interact with peers or allowed to go outside during lunch.  Ms. Swersey also observed Student use the bathroom after a timer went off and several prompts, and choices.  She observed speech session, sensory play, and transitions.  Ms. Swersey concluded that Student could follow simple instructions and did well in a 1:1 setting.  She recommended encouraging Student to interact with peers, allowing outdoor recess, fresh air, movement breaks, and a chance to play, as well as moving his work station to an area with natural light and providing bright decorations.  (P-21)

  1. In March 2024, Dr. Rafael Castro, Ph.D., and Michelle Lagana, M.Ed., conducted a Parent-funded neuropsychological and educational assessment of Student.  The report from this assessment was not provided to the District until it was submitted as Parents’ Exhibit P-18.5 immediately prior to this hearing. 

The evaluation consisted of a review of records, teacher and Parent reports and formal testing. Student required support to begin to engage in testing, as he attempted to leave the testing room, and needed frequent redirection to stay on task.

Test results indicated that Student’s overall cognitive functioning measured at an approximate age equivalence of 2.5 years to less than 3 years.  Communication skills ranged from approximately 1.5 years to under 3 years.  Academically, Student’s reading abilities fell at the early Kindergarten level, and math skills fell below the Pre-K level.  Daily living skills measured at age equivalencies ranging from 2.2 year to the early 3 year range. (Castro, S-18.5)

Based on evaluation results, Dr. Castro diagnosed Student with Autism Spectrum Disorder—Level 3 and Intellectual Disability—Moderate, and recommended a “highly specialized, year-round ABA program explicitly designed to support students with [ASD] and cognitive challenges…[including] a multidisciplinary wrap-around approach with on-site professional expertise and environmental accommodations…In addition to a highly specialized program, [Student] requires access to like peers in a cohesive environment…”  The report further recommended “direct instruction from a teacher certified in severe special needs,” and 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. 

Regarding Student’s behavioral challenges, Dr. Castro recommended a comprehensive behavior support plan that includes proactive strategies for all settings, instruction in emotional regulation strategies, and a modified health and sex education curriculum. 

Additionall recommendations included speech/language therapy, OT, APE, and 15 hours/week of home-based ABA therapy.  (Castro, S-18.5)

  1. On June 11, 2024, after a Team meeting held on May 22 and June 5, 2024, the District issued a proposed IEP covering June 5, 2024, to June 4, 2025.[7] (S-5) This IEP contained goals in Social and Leisure Skills, APE, Speech and Language, OT,  Academics, Behavior, and Self Help.  The service delivery grid included, in Grid A, weekly consultation among all staff working with Student, monthly planning meetings with Parents, special education teacher and BCBA, monthly consultations between Parents and BCBA, and twice-weekly consultation between BCBA and Parents.  Grid B services consisted of teacher/SSI support on the playground. Grid C services consisted of daily academic/behavioral/social instruction by the special education teacher and SSI, as well as APE, speech/language therapy, and OT. (S-5)
  1. The IEP also provided for extensive accommodations, and Extended School Year (ESY) services consisting of planning meetings, Parent training, Parent consultation, and behavioral consultation among the BCBA, special education teacher, and SSI, as well as direct academic, OT, and speech-language services for Student.  (S-5)
  1. Under the section entitled “Additional Information,” the proposed IEP noted that Student’s participation in the inclusion setting would vary depending on his ability to access the activity in question, and that Student would have the opportunity to trial such activities.  (S-5)
  1. Student’s annual behavior goal was to “increase his functional communication and tolerance, while decreasing instances of maladaptive and unsafe school behaviors…”  Corresponding objectives and benchmarks included (1) building safe transitions, with an adult next to him from a vehicle to classroom, between his classroom and the bathroom, and to/from the playground; (2) “safe body,” i.e., decreasing aggression, self-injury, elopement, tantrums, and flopping; (3) transitioning between activities without problematic behaviors; (4) responding to verbal instruction to “stop;” (5) “Tolerance of Denied Requests” i.e., complying with a demand or taking a break without problematic behavior; (6) when using the bathroom, keeping hands out of toilet and not engaging in unplanned water play. (S-5)
  1. The N-1 Form accompanying the proposed IEP stated that the District proposed removing home services because Parents had few concerns in the home setting.  The form further indicated that the District proposed an out of district (OOD) placement because Student was “extremely dysregulated in the school setting,” often requiring two staff during transitions.  Further, Student had “extensive” educational needs, and his “complex” behavioral profile “impacts his ability to access instruction across environments, thereby limiting progress.”  Student had not achieved many of his objectives from the prior IEP, and the “District is unable to meet [Student’s] needs at this time, as evidenced by lack of progress across many domains.”  LPS recommended “a private day school for learners with autism, where he can be effectively instructed in the areas of behavior, social skills, academics and life skills, and make meaningful progress.”  (S-5)
  1. On August 9, 2024, Parents rejected the proposal for out-of-district placement, and asserted stay-put rights, stating “[w]ith the correct accommodations and modifications, along with the partnership of the District, we are confident that [Student] will be able to achieve the goals and objectives set forth in his IEP and make meaningful progress.”[8] (S-5)
  1. During the summer of 2024, Student attended Lexington’s ESY program and Parents reached out to some private special education schools (including NECC) to explore as potential future placements for Student.  (P-9)
  1. In the fall of 2024, Student began fifth grade in the ILP program at the Fiske Elementary School. His classroom teacher was Lisa Sullivan.  Katherine Smith resumed her position as Student’s BCBA.  Parents reiterated their request for a different BCBA, but Lexington declined this request.  (P-10, Parents, Sullivan, Smith). 
  1. On December 17, 2024, the Team reconvened to discuss the rejected portions of the June 2024 IEP.  (S-4).  On December 20, 2024, Lexington re-issued the IEP from June 2024. The re-issued IEP contained some updates, corrections, and changes in terminology requested by Parents, but did not change the recommendation for an out-of-district placement. 
  1. On January 20, 2025, Parents partially rejected the proposed updated IEP in that they continued to reject the removal of home-based services, reduced time in the general education setting, and the proposed out of district placement. (S-3)
  1. A Team meeting was held on March 25, 2025, resulting in the proposal on March 28, 2025, of an IEP covering March 20, 2025 to March 19, 2026, the remaining months of fifth grade and the first six months of sixth grade. (S-2) This IEP contained goals and corresponding benchmarks in Social and Leisure Skills, APE, Speech/Language, OT, Academics, “Student Skills,” and Self Help. Like its predecessor IEPs, the March 2025 IEP contains extensive modifications and accommodations and describes current and targeted skills in detail.  The N-1 Form accompanying the proposed IEP indicates that the District continues to proposed an out of district placement.  (S-1)

The IEP mentions many of Student’s strengths, for example: “matching, sight word reading, number identification, rote counting, and answering personal information questions using  his device…, an interest in letters, colors, songs, and shapes…”, “many emerging skills in areas related to fine motor, visual motor, and self help skills,” ability to “use the toilet on a schedule,” to “throw and shoot a basketball into a modified hoop…catch a ball when thrown to him…,  and “throw a ball towards a target with force… (S-1)

The IEP also makes numerous references to Student’s behavioral struggles.  More specifically, PLEP A states that Student’s “access to academic instruction is greatly limited by his challenging behaviors, limited work stamina, hyperactivity, and self-stimulatory behavior.” Additionally, Student “currently requires support from at least two adults during hallway transitions and at least one adult during other times of day…” Interfering behaviors include “aggression, self-injury, flopping and tantrums.” (S-1) 

  1.  During the 2024-2025 school year, up to the date of the hearing, Student has continued to attend fifth grade in the ILP program, receiving accepted services.  He also had been receiving “stay put” home services, but Parents “paused” these after a disagreement with LPS about the manner of delivery.[9] 
  1. Several LPS witnesses testified regarding the District’s historical and current concerns.  Johanna Hoxie is the Evaluation Team Supervisor (ETS) assigned to the ILP program at the Fiske Elementary School and served as Student’s ETS beginning with his enrollment in LPS in 2018.  Ms. Hoxie testified that Student is a “sweet little guy,” with emerging communication and foundational academic skills. Because of Student’s frequent dysregulation and behavioral issues, staff must prioritize safety.  As a result, the time available for instruction is limited.  For example, if Student asks to “relax” rather than engage in a learning task, he is allowed to do so for safety reasons.  During the twelve-weeks prior to the hearing, Student engaged in skill acquisition programming for approximately 6 minutes per day.  Further, Student is unable to have much peer interaction (Hoxie)

Ms. Hoxie testified that behaviors that impede Student’s learning include flopping (falling to the floor an refusing to move), tantrums, aggression, and exposure and sometimes stimulation of his private parts.  Additionally, during the 2023-2024 school year, several Student Support Instructors (SSIs) were injured while working with Student, and had to go on restricted or light duty. One of these SSI’s sustained a shoulder injury after Student pulled her down, and ultimately required surgery.  During the 2024-2025 school year, Student’s classroom teacher and two SSI’s were injured.  (Hoxie)

After reviewing the three-year re-evaluation data from the spring of 2024, Ms. Hoxie was concerned that Student had made little or no progress on many of his objectives, and that he was not receiving a FAPE.  She testified that other District members of the Team were in agreement.  Her concerns about Student’s behavior, safety, and lack of progress persisted through the subsequent Team meetings referenced above. Other Team members shared these as well. (Hoxie) 

Ms. Hoxie believes that Student would not receive a FAPE in the ILP program at the Diamond Middle School because of the larger size of the Middle School population (Fiske has a student population in the 300’s as opposed to Diamond, which serves over 900 students). Additionally, Student would lack a peer cohort in middle school because his classmates will be able to spend considerable time outside of the ILP classroom, whereas Student is unable to safely do so.

  1. Lisa Sullivan has been Student’s special education teacher in the ILP program for the 2024-2025 school year.  She holds DESE license as a teacher of moderate special needs, and a Master’s degree in Applied Behavioral Analysis.  Ms. Sullivan testified that Student is currently unable to access inclusion opportunities (such as leaving the classroom for specials or recess) because his behaviors are intense and unpredictable.   For example, approximately three times per week, when exiting the transportation van upon arrival at school, Student flops onto the asphalt driveway and must be accompanied into the building by two staff, sometimes on a wagon.  Approximately four to five times per week, Student refuses to mount the stairs to reach his classroom, either remaining in the wagon or flopping on the floor, for up to 40 minutes.  Staff place partitions around him to shield him from others’ view.  Although he is able to use the bathroom appropriately, at times he has engaged in unsafe behavior such as climbing on shelves or aggression towards staff while he is in the bathroom. 

Additional behaviors include self-injury (banging his head or body against walls, biting his hands) which may occur 10 to 20 times per day; eloping to different parts of the school, exposure of his private parts, sometimes as often as 5 times per day, aggression (throwing objects at people, charging, grabbing, pulling hair, charging at the pad used to block him). 

Ms. Sullivan testified that the frequency of aggression varies. Student may strike a staff person without injuring them a few times per week, and engages in aggressive behavior approximately three to five times per day.  Ms. Sullivan was injured during the 2024-2025 school year when Student, during a period of escalated behavior, threw his body into a mat that was being used to block him and knocked Ms. Sullivan backwards, hitting and injuring her hand on a desk.  Two other staff also were injured.  Student himself suffered an eye injury when his eye inadvertently struck the edge of a snack chip that Ms. Sullivan was extending in his direction as a behavioral incentive.  He also received an accidental scratch on his arm, probably from an SSI’s fingernail.  (Sullivan) 

According to Ms. Sullivan, staff employ a variety of interventions to help Student de-escalate, including environmental adjustments, verbal prompts, alternative activities (e.g., providing an object to hold when Student is handling his private area), breaks, incentives, and the like, with mixed success.  To protect themselves and others from aggression, they use a “blocking pad,” referenced above.  However, since the triggers for Student’s behaviors are frequently unpredictable, these interventions are often not successful. (Sullivan)

Ms. Sullivan testified that she reviewed Dr. Castro’s report the day before the hearing and agrees with his recommendations regarding the type of programming that Student requires.  She further testified that she does not believe that the ILP meets the criteria set forth by Dr. Castro because it does not provide Student with an appropriate peer cohort, year-round programming, or adequately trained staff.  (Sullivan)

  1. Katherine Smith was Student’s BCBA during the 2022-2023 school year, was his “backup” BCBA during the 2023-2024, school year, when Student’s primary BCBA was Eric Bodwell, and has served as his BCBA during the 2024-2025 school year.  Ms. Smith holds a Master’s degree in special education for students with severe disabilities and a graduate certificate in behavioral intervention in autism.  She is a licensed behavior analyst, and holds DESE licenses as a special education teacher for students with severe disabilities, “all levels,” for moderate special needs for grades Pre-K through 8, as a supervisor, and also has a DESE autism endorsement(Smith)

Ms. Smith has a caseload of ILP students at Fiske, including Student.  In that capacity, she is responsible for providing certain services dictated by his IEP, including consultation with his classroom teacher, SSIs, and AAC professional, a monthly planning meeting with Parents and Ms. Sullivan, and supervision of Student’s home-based services.  Ms. Smith testified that within the school setting, she sees and/or interacts with Student multiple times per day, usually via a brief check-in with his SSIs.  She also attends a weekly half-hour meeting with Student and Ms. Sullivan, during which they work on strategies to increase Student’s time on learning.  (Smith)

Ms. Smith is also available by walkie-talkie to intervene when staff need additional help with Student’s behavior.  For example, Ms. Smith testified that a few days prior to the hearing, she was summoned to the baseball field because Student had bolted from the playground during recess, and had run towards a busy road.  His two SSIs had intercepted him, and Ms. Smith worked with them to prompt Student back to the school.  Ms. Smith stated that according to data collected by staff, Student elopes or attempts to elope approximately three times per day.  The intervention used depends on whether he is eloping to a safe or more dangerous area such as a street.  Staff generally start with a verbal prompt, and if that is not effective, they accompany him.  Generally, Student stops of his own accord and flops on the ground.  (Smith)

  1. According to Ms. Smith, data collected by staff indicates that Student “flops,” i.e., lies belly-down on the floor, outside of his cubby, multiple times per day, for a total of about 30 minutes per day. Flopping on the floor inside of his cubby is not included in the data; however, “the majority of that time [in his cubby] is a combination of alternating between flopping and using his iPad and engaging with sensory seeking materials and kind of some visual hand movements.” (Smith)
  1. Student also engages in “exposure,” defined as any instance in which Student exposes his private parts outside of the cubby.  During the twelve weeks prior to the hearing, Student exposed his private area an average of three times per day, which constitutes an increase in this behavior.  Student has engaged in exposure in common areas.  (Smith)
  1. Ms. Smith testified that for Student, “aggression” is defined as any instance of Student striking, pushing, hitting, kicking, biting or attempting to bite, or throwing an object at an adult.  Over the twelve weeks prior to hearing, Student was engaging in aggression approximately 11 times per day.  As referenced above, staff use a protective mat across Student’s cubby in order to block aggressions, both for safety and to avoid having to restrain him.  Ms. Smith has advised staff to tie back long hair and not to wear necklaces or dangling earrings to avoid injury if Student grabs for them.  At times, staff have been injured from Student’s aggressions, usually from being pulled down or hit when Student crashes through the protective mat. (Smith)  Ms. Smith testified that to her knowledge, three SSIs had been injured to the point of needing medical attention and returning on “light duty,” i.e., not able to work with students, during the 2023-2024 school year (Smith)
  1. Ms. Smith, along with other familiar staff, accompanied Student on two visits to the Diamond Middle School during the spring of 2025.  Staff brought items with them to support Student during the visits, such as his AAC and recreational iPad, snacks, and the like.  During the visits, Student engaged in “flopping” behavior in hallways, requiring staff to block him from others’ view with gym mats in order to preserve his safety and privacy.  (Smith)
  1. Ms. Smith testified that she does not believe Student has been making effective progress in the ILP program.  For example, she testified that he has not progressed towards his goal of eating at a table with peers and an adult; rather, he eats meals in his cubby, sitting on the floor, and will sometimes throw a bowl of food at his teacher.  Ms. Smith opined that Student needs a full-year, ABA-based program such as the program described by Dr. Castro, designed for students with autism and intellectual disability, with all staff having expertise with ABA, and close collaboration among all providers.  Ms. Smith believes that LPS is not capable of providing such programming to the extent required by Student. Rather, staff spends most of their time managing and containing his behavior rather than instructing him.  (Smith)
  1. In this regard, Ms. Smith stated: “I firmly believe that in order to make effective behavioral progress, [Student] needs an…environment where there can be more done.  The skill set I think [Student] really needs to solidify to help serve as replacements for some of these behaviors are things like developing his functional communication skills…his tolerance when he is told…that something is delayed or denied….[R]ight now, given the constraints of a public school program, given [Student’s] size, strength, concern over staff injuries, concern over his safety and dignity, we are not able to do all the work that needs to be done to help hm make effective behavioral progress.”  (Smith)
  1. Emily Sheridan is the ETS and ABA coordinator for Lexington’s two middle schools.  Ms. Sheridan holds a Master’s degree, is a certified and is licensed by DESE as a behavior analyst and special education administrator.  Earlier in her career, Ms. Sheridan was employed by the May Institute as a float staff, classroom teacher, lead teacher, and behavior specialist.  (Sheridan)
  1. Ms. Sheridan attended the March 2025 Team meeting to address Student’s potential transition to Diamond Middle School.  Ms. Sheridan testified that she agreed with Team recommendations for an out-of-district placement for Student in light of his lack of progress as well as safety concerns in the context of a middle school setting with over 900 students.  Ms. Sheridan agreed with recommendations of Dr. Castro for a specialized, year-round program that has fewer breaks than LPS during the year, and in which all staff who work with Student have 40 hours of ABA training, stating that “that actually describes an RBT[10].  It’s actually a certification that you can get.”  (Sheridan)
  1. Ms. Sheridan elaborated that SSIs within the District “are not RBTs…[T]hey do not attend that 40 hour training.  They are trained in ABA methodology and ABA practices as it relates to teaching, but not identifying antecedents, behavior and consequences, not managing those behavioral episodes in the moment, being able to identify functional behaviors in the moment when a student is escalated.”  (Sheridan).  Ms. Sheridan stated that NECC, the May Institute, and Melmark would have staff with the requisite training. (Sheridan)
  1. In addition to themselves, Parents called the following witnesses to testify in support of their position:  Dr. Rafeal Castro, Grandfather, family friends V.S. and A.L., and private speech therapist, Elise Phair.
  1.  As stated above, Dr. Castro conducted a neuropsychological and educational evaluation of Student in March 2024.  In his testimony, Dr. Castro described Student as a “delightful little guy” with a complex profile due to the combination of his autism diagnosis and cognitive impairments, which make him a “challenging child to educate and manage.”  Dr. Castro stated that Student, because of the level of his autism, his cognitive challenges, and “some of the very pronounced nature of his behaviors,” is a child who “need[s] to be served in a very, very specialized environment.”  It would be difficult to meet Student’s needs even in a district such as LPS with a “very good public environment,” particularly as Student transitions to a middle school environment.[11]  (Castro)
  1. Dr. Castro further testified that while he could not recommend a particular placement for Student, NECC, Nashoba Melmark, Crossroads, and possibly May Institute might be able to meet Student’s needs.  (Castro)  
  1. Elise Phair holds a Master’s degree in speech therapy, and is a licensed and certified- speech language therapist, with a specialization in Floortime programming.  Parents retained Ms. Phair to provide services to Student in 2019.  He resumed services with a colleague in her clinic in October 2025, and with Ms. Phair in February 2025.  Ms. Phair testified that she meets with Student weekly for 30 minutes, and they have been working on following one step directions, producing thee-word sentences, and articulation, and self-advocating for sensory breaks.  Student participates effectively in sessions for about 80% of each session.  Immediate sensory breaks (such as deep pressure, swinging) are given if he becomes dysregulated during a session.  He has made tremendous progress in speech/language therapy since 2019, when he was basically non-verbal.  Ms. Phair is not concerned about her safety when working with Student.  (Phair)
  1. Grandfather has known Student since birth, and has spent weeks or months with him in Lexington and during lengthy family visits to Grandfather’s home country.  When Grandfather is out of the country, Student visits with him nightly via WhatsApp.  Student and Grandfather have a close relationship.  When Grandfather came to Lexington on May 9 2025, he noticed that Student had made much progress, in that he was able to use the bathroom independently and could do small tasks when asked.  Formerly, Grandfather needed to hold Student’s hand when walking outside to prevent him from running off, but now, Student will walk next to Grandfather without his hand being held.  Grandfather feels that the testimony of school personnel was overly negative, and believes that if Student needs more intensive services, Parents should be given time to secure an appropriate placement. (Grandfather)
  1. V.S. is a family friend who has known Student and his family since late 2019.  V.S. and his spouse and children visit with Student and family approximately weekly or biweekly.  V.S. has noticed that Student has progressed over recent years, in that he is now toileting independently, is able to sit with more than one person at a time during visits and is attempting to interact with peers and adults.  V.S. has no safety concerns regarding Student (V.S.)
  1. A.L., a second family friend, testified that she has known Parents for 20 years, and Student since birth.  She has observed Student making tremendous progress, from being non-verbal to being able to have simple verbal communication with her.  Student interacts well with A.L.’s two sons, aged 8 and 11. She does not feel that Student poses any safety risk to her or her children, and she believes that Parents are caring and skilled advocates for Student.  (A.L.)
  1. Mother testified that the family, which includes two children with disabilities, moved to Lexington in 2018 because of the District’s reputation for high quality and inclusive special education services.  Beginning in approximately the 2022-2023 school year, Kate Smith became Student’s BCBA, the approach to Student’s behavioral issues changed.  Conflicts arose between Parents and either Ms. Smith or other District personnel over various issues, including LPS’ declining to fund the Bierman Center for a 40 day extended evaluation, the District’s refusal to change Student’s BCBA assignment to another provider for the 2024-2025 school year, and Ms. Smith’s insistence on bringing several staff to the family’s home for home-based services.  It was Parents’ perception that staff would observe and record data on Student’s behavioral incidents, but would not intervene.[12]  As such, Mother testified that Parents felt Student was being behaviorally “profiled” to make a case for out-of-district placement.  Mother stated that despite ongoing conflicts with Ms. Smith in particular, Parents always attempted to work collaboratively with the District, but feel that their contributions were ignored or not implemented.  (Mother) 
  1. Mother further testified that much of Student’s dysregulation was attributable to Student’s being instructed in a small, confined cubby, without exposure to natural light; however, Parents’ repeated requests to move Student’s cubby, or rotate cubby assignments within the ILP classroom were denied. (Mother)
  1. Father testified that Parents’ initial trust in the District was met with a “pattern of denial, misrepresentation and exclusion that continues to this day” along with “[b]eing made to feel that we simply didn’t belong…”  (Father).  Father testified that despite Parents’ good faith efforts to collaborate, they were met with “silence, deflection, or outright rejection.”  Father cited to difficulties with home based services, LPS’ refusal to fund Bierman for an extended evaluation, refusal to change Student’s cubby situation, lack of peer contact and lack of access to recess, coupled with the District’s refusal to consider and address these concerns.  (Father)
  1. Father testified that things reached a “breaking point” in 2024, when Student suffered an eye injury and injury to his hand or arm, and when LPS breached Student’s privacy by sending an email to another child’s parents.  Father stated that the District came to view Student’s struggles “not as a response to unmet needs, but as deficits within him, justifying the isolation, denying the services, and proposing restrictive placements with no further exploration of alternatives.”  (Father)
  1. Lastly, Father stated that Parents seek continuation of Student’s “stay put” services, a review of the Parent-funded Castro evaluation by a “neutral team with no prior involvement in Student’s case,” with the power to explore all in-district and out-of-district options, and that site visits to out of district placements be “non-binding” until neutral review is completed.  Parents continue to agree to send “non-binding” referrals to Nashoba, NECC, Crossroads, and Melmark.  (Father)

Program Proposed by Lexington

  1. Lexington seeks an order permitting it to send complete referrals to approved, private special education day schools capable of serving students with Student’s profile.  Lexington’s special education director,[13] Laura Spear, testified that she had met with Student a few times and had met with staff who reported staff injuries, but were more concerned that Student was not accessing educational opportunities.  Based on her education and experience, Ms. Spear opined that Student requires more than what LPS can provide him, and that a private day school could provide year-long schooling for continuous services, as opposed to LPS’ standard school year supplemented with ESY to prevent regression.  (Spear)
  1. She further testified that while the SSIs employed by the District have received an overview of ABA and are trained in CPI[14], they do not have extensive ABA training.  By way of contrast, in a private day school, all staff, including paraprofessionals and related service providers, have ABA training.  Lastly, Ms. Spear testified that Student would have an appropriate peer cohort in a private school whereas he currently is very isolated.  (Spear) 

Plan Proposed by Parents

  1. Parents testified that they agree that Student needs more intensive services than he currently is receiving and have cooperated with past efforts to send blind referrals to private programs.  They are willing to explore such programs through “non-binding referrals,” although they believe that such might be unnecessary if LPS would work with them more collaboratively, substitute a different BCBA for Ms. Smith, and provide Student with more access to space other than his cubby, as well as more opportunities for peer contact.  (Parents)
  1. Parents are very concerned that they will be rushed to place Student in any facility that has an opening, regardless of whether it is appropriate for Student, and seek the opportunity to thoroughly explore possible placements.  Further, they seek review of Dr. Castro’s report by a “neutral” Team prior to any change in placement.  (Parents) 
  2. Lastly, to corroborate testimony and documents indicating that Student does not have problematic behaviors at home, Parents submitted several videos (P-19) showing Student engaged in various activities, such as using the bathroom appropriately, walking through a parking lot appropriately, and engaging in learning activities with Father.[15]

DISCUSSION

Legal Framework

The FAPE Standard: Meaningful Benefit

There is no dispute that Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1401, et seq., and the Massachusetts special education statute, M.G.L. c. 71B (“Chapter 766”).  As such, Student is entitled to a free, appropriate public education (FAPE) from the District.  FAPE “comprises ‘special education and related services’–both ‘instruction’ tailored to meet a child’s ‘unique needs’ and sufficient ‘supportive services’ to permit the child to benefit from that instruction.”[16]  C.D. v. Natick Public School District, et al., 924 F.3d 621 (1st Cir. 2019),  quoting Fry v. Napoleon Community Schools, 137 S. Ct. 743, 748-749 (2017); and 20 USC§1401 (9), (26), (29).[17] 

Student’s IEP, which is “the primary vehicle for delivery of FAPE, must be “reasonably calculated to enable [him] to make progress appropriate in light of [his] circumstances.”  C.D. v. Natick, supra, at 625, quoting D. B. v. Esposito, 675 F. 3d 26, 34 (1st Cir. 2012), and at 629, quoting Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988, 1001 (2017).

While Student is not entitled to an educational program that maximizes his potential, he is entitled to one which is capable of providing not merely trivial benefit, but “meaningful” educational benefit.  C.D. v. Natick, supra, at 629; D.B. v. Esposito, supra, at 34-35; Johnson v. Boston Public Schools, 906 F.3d 182 (1st Cir. 2018).  See also, Bd.of Education of the Hendrick Hudson Central School District v. Rowley, 458 US 176, 201 (1982); Town of Burlington v. Dept. of Education (“Burlington II”), 736 F.2d 773, 789 (1st Cir. 1984).  Whether educational benefit is “meaningful” may be different for different children and must be determined in the context of a student’s potential to learn.  Endrew F. 137 S. Ct. at 1000, Rowley, 458 US at 202; Lessard v. Wilton Lyndeborough Cooperative School District, 518 F3d 18, 29 (1st Cir. 2008); D.B. v. Esposito, 675 F.3d at 34-35.  Within the context of each child’s unique profile, a disabled child’s goals should be “appropriately ambitious in light of [the child’s] circumstances, Endrew F. 137 S. Ct. at 1001; C.D. v. Natick, 18- 1794 at 14. 

Least Restrictive Environment

Under both federal and state law, eligible children must be educated in the least restrictive environment (LRE) consistent with an appropriate program; that is, students should be placed in more restrictive environments, such as private day or residential schools, only when the nature or severity of the child’s disability is such that the child cannot receive FAPE in a less restrictive setting, with supportive aids and services.  See, for example, 20 USC §1412(a)(2)(5)(A); 34 CFR §300.114(a)(2)(i); MGL c. 71B, §§2, 3; 603 CMR 28.06(2)(c).  See also Burlington v. Mass. Department of Education, 471 US 359, at 369, holding that the federal statute “contemplates that such education shall be provided where possible in regular schools, with the child participating as much as possible in the same activities as nonhandicapped children.” 

On the other hand, “the IDEA’s preference for mainstreaming ‘is not absolute.’ C.D. v. Natick at 625 (internal citations omitted), and “the desirability of mainstreaming must be weighed in concert with the Act’s mandate for educational improvement.”  Id., quoting Roland M. v. Concord School Committee, 910 F.2d 983, at 991. (1st Cir. 1990).  For schools, such “weighing” involves “evaluating potential placements’ ‘marginal benefits’ and costs and choosing a placement that strikes an appropriate balance between the restrictiveness of the placement and educational progress.”  C.D., supra, at 631, citing Roland M., supra.  “Mainstreaming may not be ignored even to fulfill substantive educational criteria,” Roland M., supra, at 993; however, “…the least restrictive environment guarantee cannot be applied to cure an otherwise inappropriate placement.”  Burlington II, supra, 736 F.2d at 789, n. 19.   

Burden of Proof

In a due process proceeding to determine whether a school district has offered or provided FAPE to an eligible child, the burden of proof is on the party seeking to challenge the status quo.  In the instant case, as the moving party challenging Student’s current placement, Lexington bears that burden.  That is, in order to prevail on its request for a determination that Student must be placed in a private, special education day school the District must prove, by a preponderance of the evidence, that Student is not receiving a FAPE in his current placement, and that he requires an out-of-district placement in order to do so.  Schaffer v. Weast, 546 U.S. 49 (2005)

Analysis

After a careful review of the testimony and documentary evidence presented by the parties, as well as the thoughtful arguments of the pro se Parents and counsel for Lexington, I conclude that the District has met its burden of proof in this matter.  My reasoning follows.

The parties agree, and the record establishes, that Student is a happy, friendly, “delightful” child with a complex profile including ASD, and an intellectual disability.  The parties also agree that Student’s disabilities impact most of his day-to-day functioning, and that to make progress that is meaningful in light of his unique circumstances, Student requires individualized programming that addresses his needs in the areas of communication, socialization, leisure, functional academics, daily living skills, and behavioral regulation. 

There ample evidence in the record, that during the 2023-2024 and current school years, Student’s in-school behavior has significantly impeded his educational progress. Witness testimony and documentation clearly establish that Student has much potential to learn.  He has progressed from being a child who was largely non-verbal to one who is beginning to formulate sentences, and identify letters and numbers.  At home, he is now able to use the bathroom independently, follow a home routine, and engage in activities with family members and friends.  

The record also establishes, however, that this potential is not being realized and developed because Student’s behavioral dysregulation prevents him from accessing instruction.  I found the testimony of Ms. Hoxie, Ms. Smith, and Ms. Sullivan to be credible I this regard.  Each of these professionals clearly cares for Student and is invested in his success, and each testified forthrightly about the small amount of time that Student is able to spend on learning activities, as opposed to interfering behaviors, and that Student has made little progress towards IEP goals and objectives.  I credit the testimony of Ms. Smith that staff are basically spending their time managing Student, rather than instructing him.

The parties differ is on whether, in light of Student’s in-school behavioral dysregulation and the School’s struggle to manage it, he can receive FAPE within a public school setting, namely, in his current placement or, for the 2025-2026 school year, whether he must be educated in a more specialized, but also more restrictive out-of-district placement. Lexington contends, and bears the burden of proving, that lacks the resources to address Student’s behavioral needs in a manner that will allow him to progress.  I find that Lexington has met its burden.  The ILP is Lexington’s most intensive program for students with autism and related disabilities. Student is currently placed in a classroom with only 5 peers.  The classroom is staffed by an experienced special education teacher and each student has a 1:1 ISS at all times. When leaving the classroom, Student is staffed with at least two adults.  Student receives related services in his areas of need including speech/language, OT, APE, and use of his AAC. The IEPs at issue are extensive, detailed, and keyed to Student’s evaluations, and provide for extensive consultation between and among the BCBA, teachers, ISS staff, and Parents. 

Parents assert that Student’s behavioral difficulties could be alleviated with a different BCBA, a different classroom setup, and better collaboration. Additionally, they assert that they are being “rushed” or coerced into placing Student in a setting that may not be appropriate.  While Parents’ concerns are understandable, and their dedication to their child and nuanced understanding of his personality and needs are admirable, their contentions are not supported by the record.  It is notable that even Parents’ own witness, Dr. Castro, testified that Student’s needs would likely outstrip the capacity of Lexington, despite the District’s impressive resources. 

Student is Not Currently Receiving a FAPE in LPS

It is clear from the record that Student is not receiving a FAPE in his current setting. Moreover, there is no evidence to support a conclusion that he could receive FAPE in the Diamond Middle School during the 2025-2026 school year.  Ms. Sheridan and Ms. Spear testified credibly that the larger size and increased number of student transitions within the middle school would be even more problematic for Student than his current setting. Parents have presented no evidence to the contrary.   

Additionally, while Parents have argued that substituting a different BCBA for Ms. Smith or providing Student with more natural light would alleviate his behavioral difficulties, they have presented no evaluations or other evidence to support this claim.  Indeed, Dr. Castro testified that Student requires a more intensive, year-round program, with more staff expertise, and that the cubby situation, while not ideal, is not the major issue with which the parties should be concerned.   

Lastly, while Student’s skills at home have developed, Parents have presented no evidence to contradict the District’s findings that Student’s school-based skills have plateaued.  I find that Student is not receiving the “meaningful benefit” from his educational program to which he is entitled.  Endrew F. and C.D. v. Natick, supra. I further find that in light of the inherent features of the public school setting, including the size of the student body (especially in the middle school) and the fact that not all staff have extensive ABA training, the ILP program cannot, at this time, be “tweaked” to meet Student’s needs.  As such, I find that Student needs an out-of-district placement to receive a FAPE

 An Out-of-District Placement is an Appropriate Remedy

Having made the foregoing determination, I turn now to the remedy requested by the District, that is, a determination that the IEPs at issue are appropriate and that Student requires placement in an approved private day school in order to receive FAPE. 

Based on the record, I find, first, that the IEP covering March 2024 to March 2025,  as amended and reissued in December 2025, is appropriate, with the exception that the District has not provided evidence to demonstrate that Student does not require home-based services.  I also find that the IEP issued in March 2025 is appropriate, with the same exception regarding the absence of home-based services.

I further find that an approved, private day school for students with autism and intellectual disabilities is necessary and appropriate at this time to provide Student with FAPE. This is a case where “education of [Student] in a less restrictive environment with the use of supplementary aids and services [cannot] be achieved satisfactorily.”  603 CMR 28.06(2)(f), This is also a matter in which the general preference for mainstreaming “cannot be applied to cure an otherwise inappropriate placement.”  Burlington II, supra, 736 F.2d at 789, n. 19.   

Lastly, Parents are understandably concerned that they will be coerced into placing Student in a setting that is not appropriate for him. Parents should be reassured that they have 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.  

CONCLUSION AND ORDER

Based on the foregoing, I conclude that the School has met its burden of proving that Student’s current services and placement do not provide Student with a FAPE and  cannot feasibly be modified to do so.  I further conclude that Student requires placement in an approved private out of district setting, consistent with the recommendations of LPS staff and Dr. Castro, that is designed for students with autism and intellectual disabilities, that provides year-round instruction, provides ABA programming across all settings, that possesses expertise with the communication needs of students who use total communication and assistive communication technology, that offers an appropriate peer grouping, with opportunities for parental involvement and participation.

       Therefore, I order the following:

  1. The District shall send referral packets to approved private day schools meeting the above criteria, in addition to any such schools suggested by Parents;
  1. Parents shall be kept fully informed regarding the schools being considered.
  1. If and when a program meeting the above criteria becomes available, the District shall issue a placement page designating that program as Student’s placement.
  1. Within thirty calendar days after issuance of this Decision, the Team shall convene to develop updated goals and benchmarks for home-based services, and shall commence services consistent with said updated goals and benchmarks.

Lastly, both parties and counsel are commended for their patient, courteous, and thorough presentation in this challenging case and their clear concern for Student’s educational interests.  I particularly commend the pro se Parents, who did an admirable job in litigating this matter.  The outcome of this case is in no way intended to diminish their obvious dedication and commitment to their son, or the skill that they demonstrated in the course of this hearing.   

By the Hearing Officer,

/s/Sara Berman

Sara Berman

Dated: June 12, 2025

[1] In addition to the pre-hearing conference, a conference call was held to discuss procedural matters. 

[2] Parents testified that a major reason for their move to Lexington was the reputation of LPS for high-quality, inclusive educational programming for students with autism.  (Parents)

[3] There was a period beginning in January or February 2023 until the end of the 2022-2023 school year during which Parents homeschooled Student, and provided him with private ABA services.

[4] During the period approximately between 2018-2021, Parents and LPS had disagreements over services and placement for Student’s older sibling, who also has been receiving special education services from LPS. While information regarding the older sibling is not directly relevant to the instant hearing, Parent introduced email correspondence regarding the sibling in support of their theory that LPS retaliated against Student for Parents’ advocacy on behalf of the sibling. (Parents, P-1)

[5] ED is not defined in the Summary of Team Meeting.”

[6] Ms. Smith served as a “backup” BCBA to provide coverage when Mr. Bodwell had other responsibilities within the District. 

[7] As stated above, the Team had not viewed or considered Dr. Castro’s report, and it is unclear whether they had reviewed the report of Parents’ advocate.

[8] In addition to refusing the proposed placement, Parents rejected other items in the IEP, including termination of home-based services, reduction of inclusion time, reduction of behavioral consultation time during the summer, erroneous inclusion of outdated behavioral information, omission of Student’s academic strengths in PLEP A, erroneous statement that Student does not require assistive technology, and omission of statement that Student needs natural light in his cubby. (S-4)

[9] Parents objected to Ms. Smith’s decision to be accompanied by one or two additional staff during provision of home services.  Ms. Smith felt that the extra staff was necessary as a safety precaution and/or to provide training or for data collection purposes.  Parents found the number of attendees to be intrusive and potentially overwhelming for Student. (Smith, Mother) 

[10] Registered Behavior Technician.

[11] When asked by Parent whether the use of a cubby lacking in natural light would contribute to Student’s behavioral issues, Dr. Castro testified that while such seating might not be optimal, use of a cubby would not be inappropriate, the more critical issue is whether or not the total educational setting is sufficiently intensive and specialized for Student.  (Castro)

[12] Additional concerns included Student’s accidental eye injury, which required medical treatment, about which Parents were not timely or accurately informed; the scratch to Student’s arm by a staff member, and a staff member’s inadvertent release of personally identifying information about Student to another Parent in the community.  The staff member apologized and instructed the recipient to disregard the email, but the incident further eroded Parents’ trust.  (Mother) 

[13] Ms. Spear began serving as LPS’ special education director in July 2024. Previously, she had been the director of special education for the Framingham Public Schools for 13 years, following previous employment in Framingham as a special education paraprofessional, teacher of students with intellectual disabilities, evaluation team supervisor, and assistant director of special education.  Ms. Spear has a Master’s degree in severe special education needs. (Spear)

[14] CPI stands for Crisis Prevention Intervention, which is a methodology for de-escalation and safe physical restraint. (Spear)

[15] The parties have stipulated that there was no testimony about the circumstances under which the videos were produced, and that the situations they portray indicate a very high level of parental presence and support. 

[16] FAPE comprises both the substantive adequacy of an IEP and compliance with the procedural requirements of the IDEA.  Because the School’s compliance with such procedural requirements are not at issue in this case, they need not be discussed in this decision. 

[17] In C.D., the First Circuit reiterated its definition of FAPE set forth in earlier cases as educational programming that is tailored to a child’s unique needs and potential, and designed to provide “‘effective results’ and ‘demonstrable improvement’ in the educational and personal skills identified as special needs.” 34 C.F.R. 300.300(3)(ii); Burlington II, supra; Lenn v. Portland School Committee, 998 F.2d 1083 (1st Cir. 1993);  D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012)

Updated on June 16, 2025

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