In Re: Old Colony Regional Vocational Technical High School v. Student BSEA# 25-08424              

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Old Colony Regional Vocational Technical High School v. Student                 

BSEA# 25-08424

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC § 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC § 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes. 

A hearing was held on May 30, 2025 and June 24, 2025[1] before Hearing Officer Alina Kantor Nir on the Hearing Request filed by Old Colony Regional Vocational Technical High School (Old Colony or the District).

Those present for all or part of the proceeding agreed to participate via a remote videoconferencing platform. 

Those present for all or part of the proceedings were:

Mother

Father

Mary Ellen Sowyrda                        Attorney for Old Colony

Kelly Taveira                                     Special Services Coordinator, Old Colony

Melissa Lupo                                    Court Reporter

Becky Baron                                     Court Reporter

The official record of the hearing consists of documents submitted by the District and marked as Exhibits S-1 through S-11; and a 2-volume stenographic transcript. Parents did not submit any documents initially. However, five exhibits were offered by Parents as rebuttal documents and were admitted as Exhibits P-1 through P-5. The District made its oral closing arguments on June 24, 2025, and the record closed on that date.[2]

ISSUE IN DISPUTE:

Whether Parents’ refusal to consent to the re-evaluation proposed by the District, will result in the denial of a free appropriate public education (FAPE) to Student, and, thus, substitute consent should be awarded.

FINDINGS OF FACT[3]:

1. Student is a ninth-grade vocational student at Old Colony, participating in the metal fabrication program. He lives in Carver, Massachusetts, and is eligible for special education services under the disability category of Emotional Impairment. He is diagnosed with Post-Traumatic Stress Disorder (PTSD) and Reactive Depressive Disorder. Student struggles with executive functioning, affecting his ability to process information and use skills in class. His most recent (December 2021) three-year re-evaluation showed average cognitive and academic skills, strong visual-spatial and working memory, average reading and math, but weak writing skills[4]. Behavior ratings highlighted significant externalizing behaviors and depression at home, although there were no social-emotional issues at school. At-risk concerns were noted regarding Student’s attitude toward school and interpersonal relationships. His teachers described him as hard-working, regularly attending school, turning in homework, participating in class and after-school activities, and earning good grades. (Taveira, S-3)  

2. Kelly Taveira, Old Colony’s Special Services Director, is in her first year in that role, having been as a special education teacher in the District for 13 years. She holds a Bachelor’s degree in Psychology and a Master’s degree in Special Education. As Director, Ms. Taveira oversees all students with IEPs, frequently observes Student, and talks with his teachers. [5] (Taveira)

3. On August 28, 2024, the District proposed, and on October 29, 2024, Parents accepted, an IEP with a full inclusion placement (August 2024 IEP). Parents raised concerns about Student’s mental health and its impact on academics and wanted him to develop executive function skills to help ease his anxiety and advocate for himself. The IEP included goals in Executive Functioning  and Counseling, with services comprising consultation, academic support, and direct services from the school adjustment counselor. On September 28, 2024, the District issued a revised IEP to add counseling outside of school hours and Applied Studies for Executive Functioning support.[6] (Taveira, S-2, S-3, S-4)

4. Student’s three-year re-evaluation was due in February 2025. On October 25, 2024, the District proposed a re-evaluation in the areas of Educational, Psychological, and Academic Achievement. (Taveira, S-5)

5. Carolyn Pires is a licensed school psychologist contracted by Old Colony to conduct psycho-educational evaluations. She has completed over 30 evaluations this year and is skilled at explaining complex results and helping draft accommodations and goals suitable for a vocational setting. Ms. Taveira explained that the District proposed to have Ms. Pires conduct Student’s evaluations as she has experience evaluating students with a range of disabilities, including PTSD. However, Ms. Pires has not yet even reviewed Student’s file because Parents have not, to date, signed the evaluation consent form. (Taveira)

6. In an email dated October 29, 2024, Mother requested to have Student’s psychoeducational testing postponed until the following year or later in the spring as he was getting acclimated to a new school.[7] Ms. Taveira agreed to delay the academic and psychological testing but requested that Parents agree to have the Educational Assessments A and B completed to provide updated academic functioning levels.[8] Ms. Taveira testified that a teacher need not have specialized training to complete the Educational Assessments nor the other rating scale components of the re-evaluation. (Taveira, S-7).

7. In December 2024, Parents reported to the District that Student was struggling in the school setting and that his PTSD was “retriggered.”  In both meetings and via email communications, Parents expressed concerns with Student’s mental health, and Mother provided a doctor’s note to document same. (Taveira, P-5)

8. On January 2, 2025, Parents rejected the proposed evaluation in full and asked to “defer” the assessment to allow Student to “settle in his new school environment” as Parents worried that moving to a new school and testing together would be too stressful for Student and would “trigger” his PTSD. They requested that Ms. Taveira “set up a call” with them. (Taveira, S-6)

9. On January 8, 2025, the District reached out to Parents, reminding them that an Evaluation consent was sent to them through Docusign on October 25, 2024 and a copy was also mailed home[9]. Mother responded that she had reached out to Ms. Taveira on January 2, 2025, to discuss her concerns, and “[a]s noted on the form, [Mother was] requesting a scheduled call to provide Parent Input as the form encourages.” (P-2) Ms. Taveira did not set up the requested call.  Instead, on January 9, 2025, she sent Parents another consent form with an N1 explaining that, in light of Parents’ recent concerns regarding Student’s mental health, the District was proposing a full evaluation, including Educational, Psychological, and Academic Achievement Assessments. (Taveira, S-7)

10. Ms. Taveira testified that the District had no reservations about testing Student because Student was engaged in school; he was an independent learner, who could self-advocate. Ms. Taveira reported Parents’ concerns regarding testing to Ms. Pires who also had no concerns about Student’s ability to undergo an evaluation. Ms. Taveira did not receive any physician documentation indicating that Student is unable to undergo an evaluation at this time. (Taveira)

11. The Team reconvened on January 22, 2025. Parents expressed several concerns including that Student’s PTSD and anxiety had been triggered at school, and he now required medication. Student was also suffering from school refusal. The District continued to propose direct instruction in academic support, executive functioning, and social-emotional support, with goals proposed in the areas of Executive Functioning, Social-Emotional Support, and Self-Advocacy. (S-8, S-9) The Team agreed that Social Emotional Support services would be delivered during Health & Wellness class. (S-8)

12. On February 13, 2025, the District filed a Hearing Request with the Bureau of Special Education Appeals (BSEA) seeking substitute consent to re-evaluate Student.[10] (P-1) Thereafter, the District refused to hold further Team meetings to discuss the re-evaluation with Parents or to communicate with Parents via email. Based on prior interactions, the contentious nature of team meetings, and Parents’ disrespectful emails, Ms. Taveira did not feel it would be productive to call them to discuss the reevaluation.[11] (Taveira)

13. The Team reconvened on February 24, 2025, to discuss changes to Student’s IEP (although as noted above no discussion occurred about Student being re-evaluated).  The Team agreed to add accommodations, including “unlimited access to the Nurse[‘s] bathroom,” coordinate with Mother regarding after-school activities, and allow Student to communicate with Parents before speaking substantively with him. The Team also updated, revised, and added benchmarks to Student’s Executive Functioning, Social Emotional Support, and Self-Advocacy Goals. (S-9)

14. On March 13, 2025[12], the District again proposed a re-evaluation in the following areas: Educational Assessment, Psychological Assessment, and Academic Achievement. The following battery of tests  was proposed to be used in the evaluation   by the district’s contracted school psychologist: Wechsler Intelligence Scale for Children – Fifth Edition (WISC-V); Wechsler Individual Achievement Test – Fourth Edition (WIAT-4); Behavior Assessment System for Children – Third Edition (BASC-3); Behavior Rating Inventory of Executive Function – Second Edition (BRIEF- 2). These tests are the  battery of assessments that had previously been completed during Student’s 2021 testing. Typically, evaluators select testing tools after reviewing the student’s file, meeting with the student, and observing him during testing, but here, the District identified the tools ahead of time  so that Parents could better understand its evaluation proposal. (Taveira, S-11) Ms. Taveira provided Parents with Ms. Pires’s contact information so they could speak to her and alleviate their concerns and Ms. Pires subsequently reported to Ms. Taveira that she spoke with Mother. (Taveira, P-3)

15. On April 4, 2025, the Team reconvened to revise Student’s IEP. The District added accommodations, including a communication log, permission for late submission of assignments, and allowing Student to text his Mother when staying after school. The District also offered services from a second adjustment counselor after Parents rejected the first, and proposed an outside (male) provider, which Parents declined based on the gender of the counselor. According to the District, there is no documentation that Student cannot be supported by a male counselor. (Taveira, S-10)

16. Ms. Taveira testified that reevaluations are necessary to determine appropriate services and their duration, as student needs can change over time. She explained that Parents were reporting mental health struggles not observed at school, and a reevaluation would help resolve this inconsistency. Ms. Taveira added that even if the reevaluation occurs at the start of the 2025–2026 school year, the Team will gather input from Student’s current teachers, who know him best. (Taveira)

LEGAL STANDARDS:

1. Free Appropriate Public Education in the Least Restrictive Environment

The Individuals with Disabilities Education Act (IDEA) was enacted “to ensure that all children with disabilities have available to them a free appropriate public education” (FAPE).[13]  To provide a student with a FAPE, a school district must follow identification, evaluation, program design, and implementation practices that ensure that each student with a disability receives an Individualized Education Program (IEP) that is: custom tailored to the student’s unique learning needs; “reasonably calculated to confer a meaningful educational benefit”; and ensures access to and participation in the general education setting and curriculum as appropriate for that student so as “to enable the student to progress effectively in the content areas of the general curriculum.”[14]  FAPE is delivered through an educational program, including secondary transition services, that offers the student the chance to meet challenging objectives and, in light of the student’s circumstances, [and] is appropriately ambitious and reasonably calculated to enable a student to make progress.[15] A student’s IEP must be individually tailored.[16]  Moreover, under state and federal special education law, a school district has an obligation to provide the services that comprise FAPE in the “least restrictive environment.”[17]   

2. Re-Evaluation

Subject to the limitation that they do not occur more frequently than once a year or less frequently than once every three years unless the parent and the local educational agency agree otherwise, re- evaluations must be conducted “if the local educational agency determines that the educational or related service’s needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or . . . if the child’s parents or teacher requests a reevaluation.”[18] The district must examine whether the student continues to have a disability, whether he continues to need special education and related services and whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP and to participate, as appropriate, in the general education curriculum.[19] “When determining whether a proposed evaluation, service, or action under the IDEA is ‘warranted’ the inquiry focuses primarily on whether there will be an abridgement of a free, appropriate public education without the suggested intervention.”[20]

3. Parental Consent

With respect to three-year re-evaluations, the Massachusetts special education regulations provide, in relevant part,

Annual reviews and three-year reevaluations. The school district shall review the IEPs and the progress of each eligible student at least annually. Additionally, every three years, or sooner if necessary, the school district shall, with parental consent, conduct a full three-year reevaluation consistent with the requirements of federal law.[21]

Federal special education regulations further provide:

Parental consent for reevaluations. (1) Subject to paragraph (c)(2) of this section, each public agency– 

–(i) Must obtain informed parental consent, in accordance with §300.300(a)(1), prior to conducting any reevaluation of a child with a disability. 

–(ii) If the parent refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures described in paragraph (a)(3) of this section [referring to the due process procedures].[22]

Although parental consent is generally required for an evaluation to occur, limited exceptions exist, such as the override procedure  set out above.[23] The availability of the override procedure (“substitute consent” mechanism) is subsumed in the broad grant of jurisdiction to the BSEA to hear “any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law.[24] A school district may secure substitute consent through the hearing process in order to re-evaluate a student without parental consent when the evaluation is “warranted.”[25] Massachusetts law limits the availability of evaluations over parents’ objections to situations in which school district personnel believe an evaluation, other than an initial evaluation, is necessary for the district to provide FAPE.[26] In these circumstances, the district is obligated to proceed to the BSEA for a hearing as follows:

If, subsequent to initial evaluation and initial placement and after following the procedures required by 603 CMR 28.00, the school district is unable to obtain parental consent to a reevaluation or to placement in a special education program subsequent to the initial placement, or the parent revokes consent to such reevaluation or placement, the school district shall consider with the parent whether such action will result in the denial of a free appropriate public education to the student. If, after consideration, the school district determines that the parent’s failure or refusal to consent will result in a denial of a free appropriate public education to the student, it shall seek resolution of the dispute through the procedures provided in 603 CMR 28.08.[27]

Because parental participation is paramount with respect to determinations involving the special education of eligible students, “in order to be successful in any claim regarding substitute consent for re-evaluation, the school district must show that it has informed parent as to which evaluations and instruments it seeks to employ and must also show that it has made reasonable efforts to obtain said informed consent from the parent prior to proceeding to the BSEA.”[28]

In accordance with the legal standard set forth above, to prevail, Old Colony must prove by a preponderance of the evidence that: 1) the District provided Parents with prior written notice of its intent to conduct an evaluation; 2) Parents refused to provide consent for the evaluation; and 3) failure to conduct the evaluation would result in a denial of a FAPE to Student.[29]

In a due process proceeding, the burden of proof is on the party seeking to change the status quo.[30] Here, the District bear this burden. With this legal authority in mind, I turn to the issues before me.

DISCUSSION[31]:

It is undisputed that Student is a student with a disability who is entitled to special education services under state and federal law. The fundamental issue in dispute in the instant matter is set out under ISSUE IN DISPUTE, supra. Upon consideration of the documentary evidence and testimony, I find that the District has met its burden as to its claim.  My reasoning follows.

There is no dispute that Old Colony provided Parents with prior written notice of its evaluation proposal and that Parents refused to grant their consent. Old Colony made reasonable efforts to obtain such consent by sending Parents several Consent to Evaluate forms, as well as reminders to execute the forms.[32] Parents did not provide consent.[33]  

Parents contend they could not grant informed consent because Ms. Taveira did not schedule a call with them and refused to discuss the re-evaluation at Team meetings or via email following the filing of the instant complaint.  However, this argument is unpersuasive. Pursuant to 34 CFR 300.9, consent means that:

“The parent has been fully informed of all information relevant to the activity for which consent is sought, in his native language, or through another mode of communication;

The parent understands and agrees in writing to the carrying out of the activity for which her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and

The parent understands that …[t]he granting of consent is voluntary on the part of the parent and may be revoked at any time.”

According to the Office of Special Education Programs (OSEP), parents need not have “an in-depth understanding” of every aspect of a proposed evaluation. Rather, for consent to be “informed,” parents must merely have a general understanding of the activity for which they are providing consent.[34] Here, the N1s issued and reissued by the District were in Parents’ native language and explained the purpose for the re-evaluation, the areas of testing, and even the specific battery to be administered. Although Ms. Taveira did not contact Parents herself, she provided them with the contact information for the evaluating school psychologist, and Parents had an opportunity to speak with her, share their concerns, and ask any clarifying questions. I find therefore that Parents were provided with  all necessary information relevant to the re-evaluation, and the District was not required to provide any additional information.[35]

It is also undisputed that, as Student’s LEA, Old Colony, has an obligation to re-evaluate Student at least every three years to determine whether his needs have changed[36], and to ensure that his IEP is reasonably calculated to enable him to make progress that is appropriate in light of his circumstances.[37]  Here, Student was last assessed in 2021, when he was in the sixth grade. He is currently concluding his ninth-grade year.[38] Psychological, educational and academic testing are appropriate, as Parents have expressed concerns regarding Student’s social-emotional functioning, including “masking,” anxiety, and retriggering of PTSD, which impact his academic presentation.  Ms. Taveira also persuasively testified that the inconsistency between Parents’ reporting and Student’s presentation at school is worthy of assessment.  As Student’s needs have presumptively changed during the past three years, Old Colony cannot be reasonably expected to develop an individually tailored IEP in the absence of updated testing.[39] Indeed, without assessment, it is impossible for the Team to determine what Student’s current needs are and how to appropriately address them.

Finally, although I am sympathetic to Parents’ concerns, they have offered no expert or professional evidence that retriggering of Student’s PTSD or any other potential harm would result from the re-evaluation.[40] Further, while no Massachusetts or First Circuit Court has yet addressed this issue, the Fifth Circuit has concluded that “[n]othing in the statutes, regulations or caselaw supports [] an exception” to the District’s “right to test a student itself in order to evaluate or reevaluate the student’s eligibility under IDEA.”[41] If such additional information does exist, Parents are encouraged to share it with the evaluating psychologist and, if needed, to coordinate communication between Student’s treating medical professionals and the evaluator to ensure that any risk is minimized during Student’s re-evaluation.

Based upon the foregoing, I find that substitute consent is appropriate and is granted in this matter. It must be noted, however, that a hearing officer has no authority to force any action on the part of Parents, as the pertinent statutes and regulations do notauthorize her to order or direct Parents to take any action with respect to the reevaluation.[42]  “School districts are not required to force parents to participate in the process, only to seek their participation.”[43]

ORDER:

Substitute consent is appropriate in this matter. Old Colony shall make the re-evaluation “available” to Student during the first semester of the 2025-2026 school year, and Parents shall make Student “available”  for this re-evaluation. If Parents choose not to submit Student for testing, the District shall be deemed to have satisfied its obligation relative to the three-year re-evaluation and its implications with respect to proposing an IEP that provides FAPE to Student.

So Ordered by the Hearing Officer,

/s/ Alina Kantor Nir

Alina Kantor Nir, Hearing Officer

Dated:  July 1, 2025

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF FINAL BSEA ACTIONS AND RIGHTS OF APPEAL

Effect of BSEA Decision, Dismissal with Prejudice and Allowance of Motion for Summary Judgment

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Similarly, a Ruling Dismissing a Matter with Prejudice and a Ruling Allowing a Motion for Summary Judgment are final agency actions. If a ruling orders Dismissal with Prejudice of some, but not all claims in the hearing request, or if a ruling orders Summary Judgment with respect to some but not all claims, the ruling of Dismissal with Prejudice or Summary Judgment is final with respect to those claims only. 

Accordingly, the Bureau cannot permit motions to reconsider or to re-open either a Bureau decision or the Rulings set forth above once they have issued. They are final subject only to judicial (court) review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay.  This means that the decision must be implemented immediately even if the other party files an appeal in court, and implementation cannot be delayed while the appeal is being decided.  Rather, a party seeking to stay—that is, delay implementation of– the decision of the Bureau must  request and obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” while a judicial appeal of the Bureau decision is pending, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.” 

Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau.  School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985).  Otherwise, a party seeking to change the child’s placement while judicial proceedings are pending must ask the court having jurisdiction over the appeal to grant a preliminary injunction ordering such a change in placement. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1^st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a final agency action by the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

ConfidentialityIn order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove_School District v. Pulitzer Publishing

Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.

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[1] On May 30, 2025, at the conclusion of the District’s case, Parents asked to postpone the Hearing to June 24, 2025 to allow Mother to testify. The request was allowed for good cause, with the understanding that it would delay the Decision, and a second day of Hearing was scheduled for June 24, 2025, commencing at 9:30 AM.  On June 2, 2025, I allowed Parents the opportunity to submit a motion, by June 5, 2025, to allow for the late submission of (1) doctors’ notes stating Student should not be re-evaluated, provided they were previously given to the District, and (2) witnesses to attest to this. Parents did not file a motion by this deadline.

On June 23, 2025, at 5:39 PM, Parents contacted the District via email in an attempt to resolve the matter informally. The following morning, on June 24, 2025, at 9:15 AM, Counsel for the District responded, indicating the District’s intent to proceed with the scheduled Hearing. Shortly thereafter, I informed the parties that it was my expectation that all participants be present and prepared to begin the Hearing promptly that day at 9:30 AM.

When Parents did not appear at the scheduled time, I sent an email at 9:34 AM to remind them to join the Hearing. Parents then joined by telephone. At that time, Mother stated that she was en route to a medical appointment and was unable to participate in the Hearing and that Father could not participate in her place as he was Student’s step-father and not his legal guardian. In response, I ordered a recess until 12:00 PM to allow Mother to attend her appointment, with the expectation that the Hearing would proceed at noon.

I also advised the parties that, should Parents fail to appear at 12:00 PM, the Hearing would proceed in their absence. Parents had been given ample notice of the June 24, 2025 Hearing date and failed to notify either the District or the Hearing Officer of the scheduling conflict in advance.  Their actions also demonstrated a lack of intent to participate in the morning session of the June 24 2025 Hearing, as well as a disrespect for Hearing process.

At 11:00 AM, Mother emailed the District and the Hearing Officer stating, “Effective immediately, I’m withdrawing [Student] from The Old Colony Regional Vocational Technical High School.” Parents then filed Parents’ Motion To Dismiss Due To The District’s Lack Of Standing, asserting that as Student “is no longer enrolled in the District[,] the District lacks standing to bring this matter in accordance with BSEA RULE 1 (A)(4) [stating that a hearing request may be filed by the programmatically and /or fiscally responsible school district, state educational agency or other public agency]). Parents were instructed at 11:27 AM that their “motion [would] need to be addressed on the record so the District has an opportunity to respond. Kindly make yourselves available at noon.” Parents were not present when the Hearing convened at 12:00 PM, and  Mother emailed at 12:04 PM to advise that she was still at her medical appointment.

At that time, the Hearing Officer proceeded with the matter, allowing the District to respond to the Motion on the record, and then denying the Motion on the record, for the reasons reiterated here.

Specifically, the District asserted that while Parents have begun the withdrawal process via their June 24, 2025 email, they have yet to complete it; they must still complete a form (to be sent by Old Colony to Parents, having now received their email) confirming Parents’ withdrawal of Student from the District and allowing for his “space” to be made available to another student. In addition, Parents must indicate on this form the public school or private school where his records must be sent. Furthermore, according to the District, this matter satisfies the “capable of repetition, but evading review” exception to the mootness doctrine, as Parents have yet to complete the withdrawal process and may change their mind or choose to reenroll Student.

Parents are correct that neither courts nor the BSEA may render decisions where there is no live controversy between the parties such that the case becomes moot.  See Thomas R.W. ex rel. Pamela R. v. Mass. Dept. of Education, 130 F.3d 477, 479 (1st Cir. 1997), and cases cited therein.  Nevertheless, this is not such a case. Here, as of the Hearing date, Parents have begun the process of withdrawing Student from Old Colony, but Student has not been fully withdrawn. As such, the District maintains an obligation to provide Student with a FAPE, rendering the issue in this Hearing “live.” See Jackson v. Franklin Cnty. Sch. Bd., 806 F.2d 623, 630 (5th Cir. 1986) (where Parent withdrew a student from school but the Team had not had a chance to reconvene, the court found that the “formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision-making. Moreover, it must be remembered that the right to an education is not simply the parent’s right to give up. Although under most circumstances parents should be granted wide latitude in determining their child’s appropriate educational placement, this deference does not extend to changes in placement that amount to no placement at all”) (internal citations omitted). In addition, this case falls within the wrongs “capable of repetition, yet evading review” exception to the mootness doctrine. See Honig v. Doe, 484 U.S. 304, 317–23 (1988) (finding that even though student was “no longer enrolled in the public schools, “ the matter was “justiciable under the capable of repetition exception to mootness. The Court found that if [the student] returned to school he was likely to engage in the same conduct—conduct that arose from his disabling condition—and the school was likely to react by expelling him; therefore, there was a reasonable likelihood that [the student] would suffer a similar harm in the future”). Here, Parents may change their mind and refuse to complete the withdrawal process.  This would place the District in the same situation.  As such, Parent’s Motion to Dismiss is DENIED.

[2] As Parents did not participate in the Hearing on June 24, 2025, they did not make a closing argument.

[3] I have thoroughly reviewed all the evidence and testimony in this matter and make findings of fact only as necessary to address the issue at hand. Therefore, while all evidence and witness testimony have been considered, not all details are included if they were not required to resolve the issue.

[4] On the seventh grade MCAS, Student’s scores did not meet expectations in ELA and partially met expectations in Math. Student was medically excused from his sixth grade MCAS. (S-3)

[5] Ms. Taveira testified that her degree is not in clinical psychology, and she has no experience administering any of the assessments at issue.  (Taveira)

[6] Parents requested the counseling take place during the academic support period, but the district did not agree to provide one C-Grid service in lieu of another as Student required both. (S-4) It is unclear whether Parents accepted this revised version of the August 2024 IEP.

[7] Parents wrote: “I am inclined to suggest we defer to next year or at least later in the Spring [sic] once he settles from transitioning to Old Colony. I think this would give his teachers, his provider and I a better chance to evaluate what his current needs are in this new environment. (It would also give us a chance to see how he does through winter, which is typically more challenging for his emotional needs) [sic] I also do not want to add any additional stressors to the mix right now as he is still very much adjusting to the school transition and rapidly changing shop experiences in addition to personal life stressors.” (P-1)

[8] Ms. Taveira wrote: “I am ok with this if you think it is what is best for [Student]. However, we will still need to hold a three year reevaluation meeting as scheduled to stay in compliance with our timelines and to determine continued eligibility. We can do this with [Student’s] last testing as well as his Current Performance Levels from his teachers. I would ask that you reject the Psychoeducational portion on the consent [form] but accept the Educational assessment. That way we can have the most updated information from [Student’s] teachers. If you can do this as soon as possible so that we can meet our deadlines, that would be great.” (P-1)

[9] Evaluation Consent Forms are sent out through DocuSign which has an automatic reminder feature. Parents complained about the reminders and asked that the feature be disabled, which it was. (Taveira, P-2)

[10] The matter was originally assigned to Hearing Officer Sara Berman (P-1) and reassigned to the undersigned Hearing Officer on May 28, 2025 for administrative reasons. 

[11] No supportive documentation was submitted by the District.

[12] The N1 is dated August 27, 2024 but it indicates that the Notice of Proposed District Action and Evaluation Consent was sent through email on March 13, 2025 and mailed to the Parents’ address on March 14, 2025.

[13] Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 (d)(1)(A).

[14] See 20 USC §1401 (9), (26), (29); 603 CMR § 28.05(4)(b); see also C.D. by and through M.D. v. Natick Public School District, 924 F.3d 621, 629 (1st  Cir. 2019).

[15]  Lessard v. Wilton Lyndeborough Cooperative Sch. Dist, 518 F.3d 18, 29 (1st Cir. 2008).

[16] Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 402 (2017).

[17] 20 U.S.C § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i); M.G.L. c. 71B, §§ 2, 3; 603 CMR 28.06(2)(c).

[18] 20 U.S.C. at § 1414(a)(2)(A).

[19] See 34 C.F.R. § 300.305(a)(2)(i)(B)

[20] In Re: Duxbury Public Schools and Ishamel, BSEA # 07-2419 (Byrne, 2007).

[21] 603 CMR 28.04(3).

[22]  See 34 C.F.R. § 300.300(c).

[23] 20 U.S.C. § 1414(a)(D); 34 C.F.R . § 300.300(c)(1)(i).

[24] 603 CMR 28.03(3)(a); see also In Re: Bridgewater-Raynham Public Schools v. Student, BSEA # 11-6444 (Figueroa, 2011) (“There is no question that school districts have a right to conduct school-based testing or that this is a pre-requirement to a parent’s right to independent evaluation. Furthermore, the BSEA has jurisdiction to order evaluations where these are warranted”).

[25] 20 U.S.C § 1414 (I)(D)(II); 20 U.S.C § 1414 (2)(i); 34 C.F.R. § 300.303.

[26] See 603 CMR 28.07(1)(b); see also In Re: Lowell Public Schools, BSEA # 110039 (Crane, 2010) (substituting parental consent after concluding that an updated three year re-evaluation is necessary for the school district to determine what educational services and placement are appropriate for the student and that “[w]ithout new evaluations, it simply is not possible to do what state and federal special education law require – that is, to determine whether special education or related services are needed, and to tailor any needed special education and related services to Student’s current strengths and weaknesses”); In Re: Maynard Public Schools, BSEA # 106645 (Scannell, 2010) (finding that “many of the assessments requested by Maynard in the three year re-evaluation proposal [were] necessary to determine [the student’s] current functioning so that the proper special education services [could] be provided to him”); In Re: Duxbury Public Schools & Ishmael, BSEA # 072419 (Byrne, 2007) (where the District expressed concern about conflicting and missing information regarding a student’s mental health and status, the Hearing Officer allowed the district to conduct a comprehensive psychiatric evaluation absent parental consent).

[27] 603 CMR 28.07(1)(b). 

[28] In Re: Norwell Public Schools, BSEA # 1901470 (Figueroa, 2018).

[29] See In Re: Lowell Pub. Sch., BSEA #110039 (Crane, 2010) (summarizing the standard for substitute consent).

[30] Schaffer v. Weast, 546 U.S. 49, 62 (2005).

[31] In making my determinations, I rely on the facts I have found as set forth in the FINDINGS OF FACTS, above, and incorporate them by reference to avoid restating them except where necessary.

[32] See 34 CFR 300.300 (c)(2)(i).

[33] See 20 USC 1414 (c)(3); 34 CFR 300.300 (c)(2).

[34] See Letter to Johnson, 56 IDELR 51 (OSEP 2010); see also Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, Final Rule, 71 Fed. Reg. 46540, 46635 (Aug. 14, 2006) (“In obtaining parental consent under the IDEA, public agencies are required to provide the parent all information relevant to the activity, so that the parent can signify in writing that he or she understands that the public agency is asking their permission to conduct an initial evaluation of their child, to initially provide special education and related services to their child, or to conduct any reevaluation of their child”).

[35] See G.J. v. Muscogee Cnty. Sch. Dist., 668 F.3d 1258, 1264 (11th Cir. 2012) (“Because the parameters of reevaluation had been discussed at the April 23, 2008, [Team] meeting and examples of testing were provided in the consent form, we conclude that the parents were provided with sufficient information on which to consent”). I make no findings as to the prudence of Ms. Taveira’s declining  to schedule a call with Parents or discuss the re-evaluation following the filing of the instant complaint, as neither is relevant to my analysis and determination of the issue before me.

[36] See 34 CFR 300.536 (b).

[37] See Endrew F., 137 S. Ct. at 992; see also 34 CFR 300.305 (a)(2)(i)(B), 34 CFR 300.305 (a)(2)(iii)(B), and 34 CFR 300.305 (a)(2)(iii)(iv).

[38] I note that at almost 16 years old, Student is well beyond the Massachusetts transition age. See 34 CFR 300.320 (b) (beginning not later than the first IEP to be in effect when the child turns 16, or, in Massachusetts,14, and updated annually thereafter, the IEP must include appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills; and the transition services (including courses of study) needed to assist the child in reaching those goals).

[39] See Johnson v. Duneland Sch. Corp., 92 F.3d 554, 557-8 (7th Cir. 1996) (affirming Hearing Officer’s order, under previous version of IDEA, that a three-year evaluation take place absent parental consent where a student’s “condition had changed since he last attended school”).

[40]I note that the Hearing Officer invited Parents to submit additional exhibits or present witness testimony in support of this claim, but they did not do so. See P.S. v. Brookfield Bd. of Educ., 353 F. Supp. 2d 306, 315 (D. Conn.), adhered to on reconsideration, 364 F. Supp. 2d 237 (D. Conn. 2005), and aff’d sub nom. P.S. ex rel. J.S. v. Brookfield Bd. of Educ., 186 F. App’x 79 (2d Cir. 2006) (finding that although “[t]here was some testimony at the hearing indicating that an improper examination might have harmed someone in P.S.’s condition; there was no evidence that the proposed evaluator, was not a qualified psychologist or that an examination by her would have been the kind that would have caused harm”).

[41] Andress v. Cleveland Indep. Sch. Dist., 64 F.3d 176, 178–79 (5th Cir. 1995).

[42] See In Re: Greater Commonwealth Virtual School (Ruling On Greater Commonwealth Virtual School’s Motion For Order Compelling Parent To Cooperate In The Evaluation Process), BSEA # 2411692C (Kantor Nir, 2024).

[43] Conrad Weiser Area School District, 440/99-00, 102 LRP 8852 (SEA PA, 2000); see also  In re: Student with a Disability, 00236/09-10AS, 111 LRP 16554 (SEA PA, 2010) (“systemic process and legal determinations do not serve to force a parent to avail themselves of programs deemed appropriate”)