In Re: Student and Franklin Public Schools and the Department of Developmental Services BSEA# 25-00429

 COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re:  Student and Franklin Public Schools and the Department of Developmental Services                                            

BSEA# 25-00429

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (IDEA) (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. 

On July 11, 2024, Parent (“Parent” or “Mother”) filed a Hearing Request against Franklin Public Schools (“District” or “FPS”).  On January 22, 2025, the District’s Motion to Join the Department of Developmental Services (“DDS”), was ALLOWED.  For good cause, and at the Parties’ joint request, the matter was postponed to finalize Student’s placement at a new school.  On May 12, 2025, the Hearing commenced virtually, with the consent of all parties, and continued to May 13, 15, 16 and 27, 2025.  Oral closing arguments were presented on May 27, 2025, and the record closed on that date. 

The official record of the Hearing consists of documents submitted by Parent and marked as Exhibits P-1, P-3, P-4A, P-5, P-5A, P-5B, P-5C, P-6, P-7, P-7A, P-7A1, P-7B, P-7C, P-7C1, P-7D, P-8 and P-9[2]; documents submitted by the District marked as Exhibits S-1 through and inclusive of S-27, S-28A through and inclusive of S-28E, S-29, S-30A through and inclusive of S-30G, S-31 through and inclusive of S-49; documents submitted by DDS marked as Exhibits D-1, D-2 and D-3; joint exhibits marked as Exhibits J-1 and J-2; and approximately twenty-nine hours of stenographically recorded oral testimony by twelve witnesses resulting in a five-volume transcript. 

Those present for all or part of the proceedings were:

Mother

Paige Tobin                     Attorney for FPS

James F. Yates               Attorney for DDS

Stacey Shaughnessy       Advocate

Andrew Duquette            Assistant Director of Special Education, FPS

Paula Marano                  Assistant Superintendent of Student Services, FPS

Jillian Ellis                       Orientation and Mobility Specialist, FPS

Jessica Brown                 Education Director, Perkins School for the Blind (Perkins)

Jennifer Potter                 Case Manager, Perkins

Alessia Spiesz                 School Psychologist, Perkins

Kristen Hershey               Transition Coordinator, DDS, South Valley

Nicole Alton-Moore          Director of Operations and Integrated Services, Evergreen Center (Evergreen)

Calista Veroneau             Speech Language Pathologist, contracted through FPS

Randal Fedoruk               Occupational Therapist, contracted through FPS

Rachel Kerls                   Physical Therapist, FPS

Anita Boothroyd               Teacher of the Visually Impaired, Carroll School for the Blind

Megan Ingalls                 Referral & Admission Specialist, Crotched Mountain School

Patrick Tinsley                Attorney for Meagan Ingalls

Joshua Krell                    Attorney for Perkins

Rebecca Baron                Stenographer, Advanced Court Reporting

Seamus Mitchell              Stenographer, Advanced Court Reporting

ISSUES IN DISPUTE:

1. Whether the Individualized Education Program (IEP) proposed by the District in May 2024 calling for Student to attend a residential program at Evergreen was developed appropriately in accordance with special education procedural requirements and was reasonably calculated to provide Student with a free appropriate public education (FAPE)?
2. Whether Student is entitled to any compensatory educational services between the period of his termination from his residential school program at Perkins until he began attending a day program at Bi-County Educational Collaborative (BICO)?

POSITIONS OF THE PARTIES:

Parent’s Position

Parent submits that the IEP developed in May 2024 proposing to place Student in a residential program at Evergreen (Evergreen IEP) was not developed in accordance with the procedural requirements of the Individuals with Disabilities Education Act (IDEA) and failed to provide Student with a FAPE. Specifically, as to the procedural violations, Parent asserts that this IEP failed to include Parent Concerns, replicated, except for the service delivery grid, the last proposed IEP developed for Perkins in February 2024 (Perkins 2024 IEP), and failed to give the statutorily required 30-days to respond[3].  Substantively, Parent submits that the Evergreen IEP was deficient as it removed many services from the Perkins 2024 IEP’s proposed service delivery grid without evaluations or professional recommendations to support the same; eliminated Expanded Core Curriculum (ECC) services that are necessary to support Student’s visual impairments; and proposed a consultative model for speech and language and occupational therapy services rather than direct services in these areas.  Parent also argues that the District failed to provide Student with his required special education and related services since his termination at Perkins until he began attending school at BICO, thus entitling him to compensatory services.  Finally, Parent contends DDS owes Student services.

District’s Position

The District disputes that the Evergreen IEP was developed in contravention of IDEA procedures or that it failed to provide Student with a FAPE.  To the extent procedures were not followed, the violations were de minimis and necessary so as to secure Student’s spot at Evergreen and did not amount to a violation of FAPE to Student or significantly impede Parent’s opportunity to participate in the IEP development.  The District also disputes that it owes any compensatory services to Student and contends it offered appropriate educational services and supports at and from Perkins upon Student’s termination.  When these were not accepted, it acted reasonably and in good faith to secure multiple interim services providers, while continuing to actively pursue new placements for Student at both day and residential programs, and fully supported Student’s placement offers at Evergreen, Crotched Mountain School (CMS) and BICO, among others.  Parent is wholly responsible for Student’s failure to be provided with a FAPE since his termination at Perkins, due to her numerous and unjustified refusals, delays and interferences.  As compensatory services are an equitable remedy, such an award should be precluded in this matter given the actions and inactions of Parent.  

DDS’s Position

DDS contends that at all times it has offered and continues to offer Student all DDS services and programs available for which he qualified and has provided Student with the services and programs he accepted.  To the extent Student requires additional services or supports these are for educational reasons and thus the responsibility of the District to provide, rather than DDS.

FACTUAL FINDINGS[4]:

1. Student is 19 years old and qualifies for special education under the Disability Categories of Sensory/Vision Impairment or Blind, Intellectual and Neurological.  Mother is Student’s permanent legal guardian.  Student is kind, caring, thoughtful, and “hilarious”.  He loves music and has a strong musical ability.  He is also very social and talkative.  Student has retinopathy of prematurity resulting in no vision in his left eye.  He wears a prosthetic at times, but not always, and has constricted peripheral vision on his left side.  (S-18; Spiesz V2, 203-04; Duquette V2, 18-19; Kerls V3, 52).

2. Beginning in 2009, Student attended Perkins as a day student and subsequently a residential student through February 6, 2024.  While residential, he lived with approximately 15 other students in his cottage.  Student generally went home on weekends and on all school vacations.  The District transported him to and from his home at the beginning and end of school vacations and at the beginning and end of long weekends as determined by Perkins’ calendar.  At other times, Parent transported Student to and from home.  Student was academically successful at Perkins and he passed the MCAS while attending there.  (S-18; Spiesz V2, 196, 209, 211; Duquette V2, 16-18; Mother V2, 251).

3. The Parties jointly stipulated that the evaluations contained in S-19, S-20, S-21, S-22, S-23, S-24, S-25, S-26, and S-27 are accurate and represent Student’s current level of performance as of the dates of completion.  (J-1).

4. Student’s IEP covering the period from 3/7/2023 to 3/6/2024 (Stay Put IEP) calling for residential placement at Perkins, provides for instruction in both Perkins’ general curriculum and the ECC for the blind and the visually impaired.  It includes goals in the areas of Functional English, Applied Money, Self-Regulation, Physical Literacy and Motor, Orientation and Mobility (O&M), Independent Living, Communication, and Vocational.  Services to support these goals consist of consultation in the A-Grid for 25 minutes monthly for technology from a technology specialist; 25 minutes weekly for family contact from a social worker or school psychologist; 50 minutes monthly for transition from a transition coordinator; 50 minutes weekly for case management from a case manager; 25 minutes monthly for physical therapy (PT) from a physical therapist; 25 minutes monthly for O&M from an O&M specialist; 25 minutes monthly for occupational therapy (OT) from an occupational therapist; and 25 minutes monthly for speech and language from a speech and language pathologist (SLP).  There are no services in the B-Grid.  The C-Grid provides for 13 x 50 minutes weekly of Academics/General Program[5]; 25 minutes weekly of individual counseling; 50 minutes weekly of group counseling; 50 minutes weekly of music therapy; 25 minutes weekly of sensory group; 2 x 50 minutes weekly of adaptive physical education (APE); 2 x 25 minutes weekly of PT; 2 x 25 minutes weekly of O&M; 110 minutes weekly of community experience with a special education teacher; 300 minutes daily of residential services; 2 x 50 minutes weekly of Home/Personal Management; 2 X 25 minutes weekly of OT; 2 X 50 minutes weekly of Leisure and Recreation Skills; 25 minutes weekly of individual speech; 50 minutes weekly of group speech; and 4 X 50 minutes weekly of vocational.  (S-18; Duquette V2, 22-24).

5. Mother consented to the placement at Perkins but partially rejected the Stay Put IEP on July 20, 2023[6], advising that Student is “not a full time residential student.  [Student] needs to be on a van that transfers medical /behavioral students ….  [If Student] were to go … via van-pool with a regular driver & monitor it would be dangerous for all”.  Mother also noted that Student’s “‘full time’ program is not year-round.  There are 283 school days, leaving 82 days/11.7 weeks with no program” and that a “nurse needs to be present on the bus per Franklin’s policy.  [Student] is epileptic.  Please refer back to [Student’s] IEPs”.  According to the District, however, at that time a doctor’s note indicated that Student did not require a nurse on his transportation vehicle.  (S-18; Duquette V2, 21).

6. According to Jennifer Potter, Student’s Case Manager at Perkins, the Stay Put IEP provided Student with a FAPE.  She clarified that while she felt all the services on the Stay Put IEP were appropriate, the Stay Put IEP’s service delivery grid was not the only set of services that would offer Student a FAPE. Although Student should receive therapeutic services as a way to express and gain support for his social emotional functioning, emotional regulation, and skill development, it is not necessary for Student to have music therapy with a music therapist.  Rather, since music is meaningful to Student he should have access to music opportunities, however alternative social/emotional therapeutic supports can still provide Student with a FAPE.  (Potter V2, 243-47).

7. On July 28, 2023, the District proposed an IEP Amendment to change Student’s residential services from 300 minutes daily (35 hours per week) to 4,380 minutes weekly (73 hours per week) to reflect the full-time residential program that the District had proposed.  Parent waived the Team meeting for this Amendment proposal.  Parent never accepted the Amendment, as at all times she considered Student a “part-time” residential Student at Perkins.  (S-17; Duquette V2, 28-30; Mother V4, 8-9).

8. Alessia Spiesz was Student’s School Psychologist at Perkins[7].  She first began to work with Student in 2022 as his Counselor and Family Contact.  She also performed a Psychological Evaluation in November 2023 for Student’s three-year reevaluation.  In her sessions with Student, she utilized the Zones of Regulation curriculum.  She also developed behavior support guidelines for his Team to provide consistency and a reinforcement system to navigate Student’s challenging behaviors including verbal and physical aggression, property destruction and agitation.  Ms. Spiesz developed these guidelines in conjunction with Perkins’ BCBA and maintained antecedent, behavior, consequence (ABC) data for Student with regard to them, an applied behavioral analysis (ABA) methodology strategy.  Student’s challenging behaviors were generally precipitated by peers around him having difficulties, being asked to participate in an unpreferred activity, being denied a preferred activity, or if something Student liked broke.  He was also emotional and upset at challenging times of the year including Christmas and his dad’s birthday, when thinking about his father, or during changes in family routine, such as when Mother had flight issues returning from a trip abroad to Turkey.  (S-19; Spiesz V2, 204-05, 210, 211).

9. Ms. Spiesz testified that for social-based learning situations Student could handle a class size of 5:1, however for more challenging educational topics, such as math, he would benefit from a 3:1 group size, with opportunities for 1:1 instruction when emotionally dysregulated.  Her evaluation recommended that “… the ideal learning environment for [Student] would include small group instruction, with 1:1 opportunity for teaching”.  Ms. Spiesz often observed Student with his peers as she pushed into his lunch.  Student had many friends who still ask about him to this day.  He usually sat at a lunch table with four peers and one staff member and independently chose and obtained his lunch.  At after school activities, where most of the 74 residential students participated, Student was sometimes disengaged, focusing on his iPad, but he also successfully engaged in this setting, particularly if the activity was music-based.  Ms. Spiesz provided group counseling to Student with five other carefully selected students.  Consistent with Perkins’ model, Student was typically educated with 4-5 other students, a teacher, and an assistant.  When an assistant was not available, the group size was reduced to three students.  (S-19; Duquette V1, 173; Spiesz V2, 206-09, 217-20, 224-25).

10. According to Ms. Spiesz, Student’s cognitive scores in his November 2023 evaluation fluctuated from his earlier 2020 psychological evaluation.  This was not unusual given Student’s intellectual disability and the use of different test instruments.  In light of his multiple disabilities, Ms. Spiesz found Student’s rate of progress to be slower as compared to same-aged peers. This was consistent with the progress noted on the Achievement Towards Goals section of the Stay Put IEP reflecting “[p]rogress reports across the past IEP year indicate that [he] has made the expected progress and is on track to meet [certain goals].  Progress Reports across the past IEP year [also] indicate that [he] has made progress toward all other goal areas but is not likely to meet all of the objectives in those areas as written”.  (S-18; S-19; Spiesz V2, 205).

11. In the fall of 2023, Student began experiencing a slight increase in behaviors.  He was restrained once in November 2023, and Parent was contacted once in December 2023 about his being agitated.  When Parent questioned if Student was given his prescribed “as needed” medication to address anxiety and agitation she was informed it had not been given.  Parent (who is a registered nurse) then requested a copy of Student’s medication administration records to review over the holiday break.  Upon review, she discovered what she considered to be multiple errors of administration and notified Perkins via multiple emails[8].  Parent chose not to have Student return to Perkins until January 16, 2024 and returned home on January 17, 2024, both for personal reasons and due to another medication question.  He returned to Perkins on January 18, 2024, but he had a grand mal seizure that day and remained out of school for the remainder of the week to ensure he was seizure free for 48 hours before returning to school.  (Mother V2, 251-54).

12. On January 17, 2024, Perkins requested a meeting with Parent and the District to discuss a planned termination of Student as it could no longer meet Student’s medical needs due to the amount of time needed to manage his required medications.  According to Perkins, Student’s medications had increased from 12 to 21.  Parent disputes this, explaining that some of the alleged increased medications consisted of dermatologically prescribed shampoos, lotions and soaps.  Perkins also objected to Parent’s request that it assist Student’s medical providers’ assessments by monitoring Student’s bowel movements, sleep and behaviors.  Via a letter dated January 24, 2024, the District indicated that it wanted to discuss having Student remain at Perkins as he was making good progress, and that the only issue, medication administration, should be solvable.  A Team meeting was scheduled for February 1, 2024.  (S-16; S-45; Duquette V2, 39-40, 42-43; V4, 99; Mother V2, 260; V4, 21-22). 

13. Student returned to Perkins on January 22, 2024, with an order to taper off an old epilepsy medication and an increased dosage of a new medication.  Both medications had very similar names (clonazepam and clobazam), and Parent suggested strategies to avoid confusing the two, but Perkins declined to adopt them.  (S-27; Mother V2, 254-55).

14. On the night of January 24, 2024, Parent was informed that Student had received double the dosage of the medication that was being titrated down, as well as a dose of the new medication.  Although Parent was told Student went to bed and was fine, she chose to go to Perkins to see Student herself arriving at his cottage at 11:00 p.m. and finding Student sitting on the couch with his head down to the left and his feet on the floor.  Parent left with Student, taking his belongings.  Student required two adults to assist him into the car.  He was taken to the emergency room at Children’s Hospital and did not return to Perkins after this date.  (Duquette V2, 154; Mother V2, 255-60, 263; V4, 15).

15. Student’s January 26, 2024, Progress Report notes that Student is “making adequate progress toward this objective” for most objectives for all goals; had “mastered” the objective in his communication goal of using a cancellation stuttering modification strategy in 4 out of 5 opportunities; and had “emerging skills” in 3 objectives.  (S-28E).

16. On or about January 28, 2024, Perkins provided Parent with a notice of emergency termination based upon Student being a danger to himself or others, although Parent had not received any incident reports, documentation or communication to support this claim.  Although as of that time Student had not returned to Perkins, after receiving the notice of emergency termination, Parent believed Student was unable to return after this date, even if she changed her mind[9].  (Mother V2, 260-61; V4, 17-18).

17. On February 1, 2024, the Team convened to review Student’s three-year re-evaluation.  Andrew Duquette[10] was present from the District.  A Notice of Proposed School District Action (N1) form was prepared reflecting this meeting on February 27, 2024.  The Team found that Student continued to be eligible for special education, based upon the findings of his three-year re-evaluations in the areas of sensory, intellectual, and neurological impairments.  Although Ms. Spiesz had found evidence to support an Autism diagnosis, Parent requested that an Autism disability not be included in Student’s IEP.  The District proposed the Perkins 2024 IEP with goals in the areas of self-regulation, daily living, motor and travel, access (pertaining to expanding his emailing skills and ordering and paying for a meal at a restaurant), communication, and vocational.  The service delivery grid maintained the A-Grid consultations of the Stay Put IEP, except the O&M consultation was eliminated and a 50 minute monthly psychological consultation with the school psychologist was added.  C-Grid services were also generally maintained except Student’s individual counseling was increased to twice a week and the residential services time was proposed consistent with the July 2023 IEP Amendment.  Mother never responded to this IEP believing it unnecessary given that Student had been terminated from Perkins.  (P-3; P-6; S-15; S-16; Duquette V1, 129; V2, 35, 44, 172; V4, 99; Spiesz V2, 213; Mother V2, 261; V4, 34).

18. During the February 1, 2024 Team meeting, the Team also discussed Student’s termination.  The District objected to Perkins’ planned termination.  According to Mother, Perkins never engaged in any meetings with Student’s medication providers to resolve the issues, as Student’s psychiatrist at Perkins (who was at that time and currently is Student’s private psychiatrist) was unaware of the planned termination.  However, Mother had withdrawn her consent for Perkins to communicate with Student’s doctors upon discovering the medication administration error over the winter holiday break.  In response to the District’s objections, Perkins indicated it would pursue an emergency termination if needed, given Parent’s concerning threatening communication to its staff that had created a hostile environment, requiring employees to take leaves of absence or request not to work with Student.  Nevertheless, despite its intention to terminate Student, Perkins offered that Student could continue as a day student until a new placement could be found, with the following conditions:  a nurse would administer all medications; Mother would approve the PRN protocol for Student’s as needed medications; Mother would provide consent for Perkins to communicate with Student’s doctors; and Mother would follow a communication plan.  The District recommended this proposal on an interim basis (while maintaining its overall objection to Student’s termination as a residential student).  Mother declined this proposal.  (S-16; S-48; Duquette V1, 133-34; V2, 40-42, 172; V4, 100; Mother V4, 12, 81-82). 

19. On February 1, 2024, following the Team meeting, Mr. Duquette sent Mother a Release of Information form for “Out of District Schools”, and explained that while she may not be interested in looking for a new school, he wanted her to consider signing the Release so he could begin sending referral packets.  Parent objected to signing a “blanket release”.  On February 6, 2024, Mr. Duquette sent a new Release for seven named schools noted to be a “combination of day and residential placements that have services for visually impaired students”.  He suggested starting the referral process because “even if Perkins will provide some remote or home services, I don’t think that is a long-term solution”.  On February 2, 2024, Parent signed consent to release information to two of the proposed placements and added her own third placement.  One of the placements she consented to was Evergreen, as that program, close to her home, was also recommended by Student’s psychiatrist who was familiar with it and knew it had students with visual impairments[11].  (S-48; Duquette, V1, 127; V2, 44-49; Mother V4, 29-30; Alton-Moore V4, 118).

20. On February 26, 2024, Parent and Mr. Duquette communicated via several emails about potential and outstanding referrals.  Parent declined one proposed referral because after researching it, she found that it only addressed disabilities relating to mental issues, which Student did not have.  She also advised that she had located a school in Florida that would be “lifetime placement” and was considering a move, possibly in July.  On February 27, 2024, Parent agreed to participate in a mediation with the District, but no resolution was reached at this mediation.  (S-44; S-48; Duquette V2, 49-51; Mother V3, 28-29; V4, 36, 62).

21. On March 4, 2024, Perkins offered to provide all necessary equipment and fund two (2) hours of remote tutoring “per weekday … during periods Perkins is in session for the purpose of working on IEP academic goals” as an interim measure, “until [Student] begin[s] enrollment in another school setting”.  This offer was conditioned upon the District hiring an additional third-party tutor from an outside agency to be in attendance in the home.  It also imposed other conditions including prohibiting “direct contact or communications between any Perkins staff and [Parent] at any time”.  Parent was thus only able to communicate with the third-party tutor (identified as being from Learn Well) who would then speak with Perkins staff.  Mother declined this offer given the communication restrictions and her belief that virtual tutoring was not an effective way for Student to learn.  She testified that although she had withdrawn consent for Perkins to speak with Student’s medical providers, Perkins had not typically communicated directly with Student’s medical providers previously, instead choosing to notify Mother about medical or medication refill needs and having Mother communicate with providers.  (S-43; Duquette V1, 179; V2, 106-10; 175-76; Mother V4, 19-22, 24-25).

22. Between February and March of 2024, the District worked to secure the services of a Board-Certified Behavior Analyst (BCBA) and a Registered Behavior Technician (RBT) from Amego.  While the District’s priority remained to locate a new placement, it sought to provide interim educational services in the home until then.  Amego sent a contract on March 4, 2024, and scheduled a call with Mother for March 18, 2024.  Mother did not answer.  Parent subsequently requested to meet with Amego and Mr. Duquette, and a virtual meeting was scheduled for March 22, 2024. Mother did not attend as she had a car issue, and Amego withdrew its offered supports.  (S-30G; Duquette V1, 133-36, 198-99, 235-36; V2 110-11).

23. On March 5, 2024, Evergreen indicated that Student was an appropriate candidate.  Mr. Duquette and Parent scheduled a tour for Friday, March 22, 2024.  However, on that day, Parent got a flat tire, and Mr. Duquette toured Evergreen on his own.  Evergreen followed up the following Tuesday to reschedule the tour with Parent, but Parent informed Mr. Duquette there was a death in the family, and she was not available to reschedule until the following week. Mr. Duquette explained to Evergreen that a personal situation had arisen that made Parent unavailable for the rest of the week.  The tour ultimately occurred the following week on April 4, 2024.  (S-48; Duquette V2, 52-57; Alton-Moore V4, 125-26).

24. According to Nicole Alton Moore[12], Director of Operations and Integrated Services at Evergreen, at the time they received Student’s referral, Evergreen had approximately 80 students between two programs – a center for basic skills and a center for behavior development.  As most of their students have a co-existing intellectual disability, both programs focus on basic academic skill development, communication skill development, reducing challenging behaviors, and accessing the community.  Programming emphasizes functional communication training, accessing the community and vocational skill development and uses the principles of ABA (but not necessarily discrete trial trainings) adapted to meet individual needs of students, especially students with vision impairments.  Additionally, Evergreen receives consultative support from a TVI, who is also an O&M Specialist, as approximately ten percent of their population had a Cortical Visual Impairment (CVI) diagnosis, and including one student who was legally blind. 

Each classroom at Evergreen has 8 students with a minimum of 4 adults (a certified special education teacher, a lead teacher, and 2 paraprofessionals) for a maximum of 2:1 staffing ratio.  This is a fixed class size that cannot be changed.  Evergreen uses a consultative model for Speech, OT, and vision services to support students’ generalization.  The consultative model enables these services to be embedded throughout the day.  When a new student arrives, licensed professionals assess that student’s needs, recommend and develop programming, and provide staff training to meet the goals and objectives within their service areas across environments and with different staff members throughout the student’s day.  These licensed professionals also review data collected by the other staff and adjust programming as needed.  Consultation is provided in the A-Grid of the IEP initially for thirty minutes but is adjusted as needed.  If Evergreen’s own staff resources do not meet a student’s needs, Evergreen seeks additional support from the local district, either through a district-staff member providing the services or the district contracting with additional outside providers.  (Duquette V2, 186-87; V4, 109; Alton-Moore V4, 119-24, 138, 140-41, 149, 152, 155).

25. On March 20, 2024, Mr. Duquette requested the services of a TVI, O&M, SLP, OT, PT, Counselor, and Special Educator from Nexus Therapy to provide in-home services to Student.  Mr. Duquette was informed on March 23 and 25, 2024 that a counselor, Marci Beitner, and a special educator, Leah Bozzuto, respectively, were interested in providing services.  In May of 2024, Nexus located a PT, Rachel Kerls.  (S-30G; Duquette V1, 132; Kerls V3, 48).

26. During Parent’s April 4, 2024, tour of Evergreen with Mr. Duquette, Evergreen explained their service delivery model to Parent, specifically their consultative model with regard to Speech and OT services.  Parent disputes that this was explained to her.  Following the tour, Evergreen sought to move forward in the referral process by having Student come to the school for a screening and tour.  Based on her experiences during Student’s tour, Parent came to believe that Evergreen did not have substantial familiarity with students with vision issues.  Specifically, when Student reached out to a staff member touring with them to use him as arm as his sighted guide, the staff member advised “that is going to be a problem” as students at Evergreen cannot make physical contact with staff.  (S-48; Duquette V1, 145; V2, 173-74; V4 101, 111-12; Mother V2, 269-70; V4, 67; Alton-Moore V4, 131).

27. On April 5, 2024, Mr. Duquette requested the services of a specific TVI and O&M specialist from the Carroll Center for the Blind (Carroll).  On May 8, 2024, Carroll confirmed that Anita Boothroyd[13] was able to provide consultative services for Student.  Ms. Boothroyd started working with Student in April 2024 at approximately the same time as Ms. Bozzuto.  According to Ms. Boothroyd, because Ms. Bozzuto did not have any experience working with students with visual impairments or an understanding of CVI her consulting services were critical.  On June 20, 2024, Ms. Boothroyd requested that the District purchase a CCTV for Student, and it arrived on July 8, 2024.  Ms. Boothroyd consulted with Student’s special education teachers about the use of the CCTV with Student, provided materials and also explained the signs of fatigue and strain that accompany CVI.  On July 11, 2024, Ms. Boothroyd recommended increasing the TVI hours to which Mr. Duquette agreed on July 12, 2024.  (S-30G; Duquette V2, 113-15; Boothroyd V3, 145-48, 164-66).

28. On April 29, 204, Mr. Duquette introduced Parent to Ms. Beitner by email, and Parent replied that she was away the following day.  On May 8, 2024, Ms. Beitner began to provide Student with counseling services.  On May 20, 2024, Ms. Beitner noted that Student only accessed them fifty percent of the time.  According to Mother, the counseling services were not very useful to Student as there was no curriculum used, such as the Zones of Regulations curriculum he had been used to working on with Ms. Spiesz at Perkins.  Student often got frustrated and would engage in behaviors during the sessions.  Additionally, Ms. Beitner was not a licensed school psychologist or school social worker, having only guidance counselor licensure.  In October 2024, Mother informed the District she wanted to end these counseling services.  (S-30G; S-47; Duquette V2, 116-17; Mother V2, 289-91, V3, 9-11).

29. On May 3, 2024, Student was accepted for placement at Evergreen’s educational basic skills residential program.  Evergreen also agreed to let the District fund additional services beyond what it could provide. Prior to Student’s attendance, a TVI could tour Evergreen to make recommendations around environmental modifications and other supports for Student and to provide an initial staff training.  (S-42; Duquette V4, 102-03; Alton-Moore V4, 133-35, 151).

30. On May 10, 2024, Parent met with Mr. Duquette and Paula Marano, the District’s Assistant Superintendent, to discuss the progress made to secure interim special education services for Student, Parent’s guardianship dispute[14], the next steps for Student’s acceptance at Evergreen, compensatory services, and Parent’s request for the District to fund Student’s participation in a two week trial at the Conklin Davis Center (CDC) in Florida[15].  An N1 was prepared on the same day reflecting this meeting.  At that time, Student was only receiving remote counseling services from Ms. Beitner, and the District was still onboarding Ms. Bozzuto, the special educator, and Ms. Boothroyd, the TVI.  Although Student was accepted at Evergreen at this time, the Parties agreed Parent still needed to review the service delivery grid and understand how Student’s vision needs would be met before deciding on whether to accept the placement.  Thus, the District agreed to continue to provide and pursue interim services in Parent’s home until Student began attending Evergreen.  (S-14; Duquette V2, 69-71; V5, 34-35).

31. On May 16, 2024, Mr. Duquette interviewed PT Rachel Kerls[16], and introduced her to Parent on May 22, 2024, via email.  When Ms. Kerls first began to work with Student that month, she found that his goals and objectives were outdated as he had already primarily met most of them.  She soon learned that the IEP was a “stay put” IEP, so she focused on advancing the skills the goals were centered on.  Overall, she found Student had varied endurance, stamina, tolerance and motivation, however he was generally talkative, outgoing, easy to work with, and willing to do whatever is asked.  She described Student to be a “workhorse of the nth degree”.  While he has not regressed in skills, he has not made significant gains either but has maintained his skills while working with her.  Ms. Kerls confirmed that Student’s gait and balance issues require him to have someone travel with him at all times.  (P-7; S-30G; Kerls V3, 51-53, 59-62, 81).

32. On May 16, 2024, Mr. Duquette sent Parent an email, copying Kaylee Millett, Director of Family Services and Admission at Evergreen, containing a draft Service Delivery Grid for Evergreen that he had prepared based on the information previously provided by Ms. Millett.  Mr. Duquette reiterated in his email that OT and SLT services are provided using a consultative model, not as direct services; that community practitioners would provide counseling services for students who require such services; and that the District would provide direct vision and O&M services, but that Evergreen would use its contracted TVI and O&M Specialist for consultation services 30 minutes monthly, or more, if needed.  Ms. Millett responded that Evergreen had an immediate spot available for Student and indicated that if Parent was comfortable with the Service Delivery Grid, she would start scheduling meetings.  Ms. Millett asked Parent to provide an answer by Monday (i.e., May 20, 2024).  (S-49; Alton-Moore V4, 135, 143-44, 162-63; Duquette V5, 46-47). 

33. On May 20, 2024, Mr. Duquette emailed Parent to advise that after speaking further with Ms. Millett, she will follow up with Evergreen staff that Wednesday to further discuss Parent’s requests pertaining to another student, and had agreed Parent could wait to make her decision about Student’s placement until after that date.  He encouraged Parent to schedule a meeting with Evergreen ASAP if she had more questions.  Parent replied, acknowledging receipt of that service delivery grid but indicating she was not prepared to make a decision on Evergreen as she felt information was incomplete and constantly changing.  She did not share any specific concerns with the service delivery grid but instead inquired about the status of her request for the District to fund “$3,000.00” for Student’s evaluation at CDC.  (S-49; Alton-Moore V4, 144; Duquette V5, 38-39). 

34. On May 21, 2024, Mr. Duquette emailed Parent indicating the initial spot offered to Student was no longer available and a new start date for the end of June or early July was now being offered.  Mr. Duquette also scheduled a virtual meeting with himself, Parent and Evergreen for the following day.  Parent replied that evening, also including Ms. Millett, indicating her disagreement with Evergreen’s actions and her concerns that they violated Student’s legal rights.  (S-48). 

35. On May 22, 2024, “select members of [Student’s] Team” convened virtually to discuss Student’s offered placement at Evergreen.  An N1 was prepared reflecting this meeting on May 23, 2024.  Present at the meeting were Parent, Mr. Duquette, Jen Albis Neal, Director of Therapy at Evergreen, Ms. Millett and Ms. Alton Moore.  The group initially discussed Parent’s concerns, particularly how Student’s vision needs will be met.  They also discussed in more detail how services at Evergreen would be different from those at Perkins, particularly with regard to the consultative model for SLT and OT.  Evergreen specifically explained that while they employ SLPs and OTs, they provide integrated related services allowing students to practice skills in the natural environment more often than they would if they received a direct service, and they create instructional plans for all staff to follow with a student.  The Team also discussed the specific revisions to the service delivery grid that would be made to the Perkins 2024 IEP, to reflect the Evergreen program model.  All goal areas were to remain the same, and would still be fully addressed by Evergreen, although implemented differently from the Perkins program. 

According to the N1, the service delivery grid at Evergreen included the following consultation services in the A-Grid:  60 minutes monthly of communication to address Goal 5; 30 minutes monthly of O&M to address Goal 3; 30 minutes monthly of OT to address Goal 2; 30 minutes monthly of PT to address Goal 3; and 30 minutes monthly of vision from a TVI to address “access for [Student] in all necessary goal areas”.  The following services were in the C-Grid:  27.5 hours per week of educational services to address Goals 1, 2, 4, 5, and 6; 3 x 30 minutes weekly of APE to address Goal 3; 140.5 hours weekly of residential to address Goals 1, 2 and 3; 2 x 25 minutes weekly of O& M to address Goal 3; and 30 minutes weekly of PT to address Goal 3.  With regard to the eliminated A-Grid consultations from the Perkins 2024 IEP, the N1 noted that Parent was informed at the May 22, 2024 Team meeting that family contact, technology, transition and case management are part of the Evergreen program and can be addressed by staff at Evergreen.  With regard to the eliminated C-Grid services from the Perkins 2024 IEP, Parent was informed that vocational, community experience, home personal management and leisure and recreational skills would be addressed within the educational and residential services.  Additionally, an “other” service that Student would receive at Evergreen is a residential service.  Further, with respect to music therapy and sensory group, the goal areas they addressed at Perkins would be addressed through related services consultation and during educational service time. Finally, with respect to counseling, Student would have the opportunity to access community counselors, although counseling would not be provided as a direct service[17].  The District believed that the Evergreen program was appropriate and would provide Student with a FAPE.  Parent was reminded of her right to partially reject the IEP consistent with her response to the Stay Put IEP.  (S-13; Duquette V1, 169-71; V2, 60-61; V4, 106, 109-11; V5, 41-42; Alton-Moore V4, 136-37).

36. In comparison to the Perkins 2024 IEP, the service delivery grid proposed for Evergreen increased the communication consultation services from 25 minutes monthly to 60 minutes monthly, reinstated O&M consultation[18], and added a new vision consultation; however, it eliminated psychological consultation.  With regard to C-Grid services, Student’s educational time of 27.5 hours weekly represented a substantial increase from the Perkins 2024 IEP’s 13 x 50 minutes of daily educational services (i.e. 13 hours weekly[19]).  However, after accounting for Perkins’ vocational, community experience, home/personal management and leisure and recreation services (that Evergreen planned to address during Student’s educational and residential times), sensory group and music therapy services (that Evergreen planned to address through consultations and during educational times) and direct SLT and OT services (that Evergreen planned to embed into Student’s educational services), Student would receive approximately the same amount of educational services at Evergreen as he had at Perkins.  Student would receive the same frequency and duration of O&M services, half an hour less per week of APE services, half an hour less per week of PT services, and no individual or group counseling services.  Further, although Evergreen proposed a substantially greater amount of residential service time than Perkins (140.5 hours per week at Evergreen as compared to 73 hours per week at Perkins), Evergreen’s IEP accounted for all 24 hours of the day, whereas Perkins only accounted for approximately 15 hours of daily services.  Evergreen was also able to provide ECC support to Student.  Ms. Alton-Moore confirmed that Evergreen could provide Student with the same adult support to transition between classes as he had received at Perkins.  (P-3; S-13; S-15; Duquette V1, 154-55, 171-73, 163-64; Alton-Moore V4, 131-33, 139, 148).

37. On May 23, 2024, at 1:51 p.m., the District emailed Parent a proposed IEP for Student’s placement at Evergreen (Evergreen IEP).  The only changes to the Evergreen IEP from the Perkins 2024 IEP were the service delivery grid, which was revised to reflect Evergreen’s proposed services outlined above, and the placement page, that identified Evergreen as the location for Student to receive his residential program.  No changes were made to the Student and Parent Concerns section of the Perkins 2024 IEP.  Although placed in a different order, the service delivery grid on the Evergreen IEP reflected all the services contained on the draft service delivery grid that Mr. Duquette provided to Parent via email on May 16, 2024.  (P-9; S-13; S-15; S-49; Duquette V1, 185; V2, 171; V5, 47).

38. Evergreen initially requested that Parent confirm her acceptance of the IEP and placement by the end of the day on May 24, 2024, explaining they could not hold a placement for Student past that date due to their waitlist[20].  Evergreen had already established and postponed its original May 20, 2024, response deadline at Parent’s request.  Evergreen needed Parent’s confirmation to start the next steps in the placement process.  Student’s anticipated start date at Evergreen at this time was July 1, 2024.  The N1 sent with Student’s IEP explained that upon Parent’s acceptance, Evergreen will confirm the consultation and environmental preparations that needed to be made to support Student and his visual impairment needs.  (P-8; S-13; S-48; S-49; Duquette V1, 175-76; V2 61-63; V5, 20; Alton-Moore V4, 130, 142-44, 147).

39. Parent and Mr. Duquette communicated via email several times on May 24, 2024.  Parent still had concerns and edits with regard to the proposed IEP, which she had shared with Ms. Boothroyd and Ms. Bozzuto (who had begun to provide services at that time), who also had some suggestions.  Eventually, Mr. Duquette informed Parent that, according to Evergreen, Parent only needed to provide a verbal or written acceptance; Evergreen did not require her to sign the IEP or the Placement page, as it was understood that Parent required additional time to review the proposed IEP and that Ms. Boothroyd may have some suggested edits.  (S-48).

40. On May 24, 2024, at 5:29 p.m. Mother emailed Mr. Duquette and, among other things, informed him she was rejecting the Evergreen placement[21].  The District forwarded the rejected IEP to the BSEA on June 7, 2024.  Mother explained that she felt there was no parental involvement in the Team meeting that had occurred, and she did not consider it a meeting that officially presented her with an IEP. She objected to the Parent Concerns sections in the Evergreen IEP and the Perkins 2024 IEP being identical, as she has different concerns and goals for Student at a different facility, especially as Evergreen primarily supported students with autism, not multiple disabilities.  Parent objected to the consultative model for SLT and OT as Student’s deficits in these areas required direct services.  Additionally, she believed that a substantial amount of Student’s services at Perkins were removed from the Evergreen IEP, including music therapy and the ECC.  She also believed the proposed class size was too large for Student, and, although he can manage in a larger group socially, he needed 1:1 teaching for academic subjects.  Finally, she was upset about not being given more than “hours” to review a proposed IEP or complete service delivery grid, contrary to the special education laws[22].  (S-12; S-41; Duquette V2, 85-86; V5, 54-55; Mother V2, 273-79).

41. On June 4, 2024, Mr. Duquette requested OT services from Sensation Station, owned by Randal Fedoruk[23].  He introduced Mr. Fedoruk to Parent on July 3, 2024.  (S-30G). 

42. On June 27, 2024, Mr. Duquette sent Parent another Release for “Out of District Placements” without specific schools identified.  Parent responded she was not comfortable signing a “blank release” as she wanted to research specific proposed placements before agreeing to sign any releases.  Parent also requested to pause the referral process as she was concerned that Student’s mental health had deteriorated while at home, and he needed to adjust to the home services rather than undergo another transition.  On July 1, 2024, Mr. Duquette sent Parent another Release identifying ten potential residential programs should she reconsider her decision to pause the referral process, given that she had rejected placing Student at Evergreen despite the District’s recommendation.  (S-48).

43. On July 11, 2024, at Parent’s request, based on her concerns about Student’s behaviors at home, the District forwarded an Evaluation Consent form for a Functional Behavioral Assessment (FBA)[24] along with an N1.  Parent never signed this Consent form as she did not want the FBA to be based on an ABA model, but rather Perkins’ ABC behavior tracking system, and she came to believe this FBA would not be done appropriately.  (S-11; Duquette V2, 81-82; Mother V4, 31-32). 

44. Student’s July 17, 2024, Progress Reports explains, for every goal, that,

“As of February 6, 2024 [Student’s] placement at [Perkins] was terminated. After the Perkins school termination, the parent declined virtual and in-home services offered by Perkins as an interim measure while the district sought to identify a new school placement. The district did propose a new school placement (Evergreen) but the parent declined the placement.  The district has provided some in-home services to [Student], but the services cannot replicate those that would be provided in a school setting and for this reason progress is limited” (PR Interim Services Statement).  (S-28).

45. Although the titles of the goals vary slightly from the January 26, 2024 Progress Report, the goals and objectives are the same in the July 17, 2024 Progress Report.  Ms. Bozzuto, prepared Student’s progress report for his English Language Arts (previously referred to as Functional English Skills) and Math (previously referred to as Applied Money Skills) goals.  Ms. Beitner prepared Student’s progress report for his Self-Regulation goal, and Ms. Kerls prepared Student’s progress report for his Motor Skills (previously referred to as Physical Literacy and Motor Skills) goal.  The remaining goal areas were not reported on, other than noting the PR Interim Services Statement, as Mr. Duquette did not receive any report from any provider.  As compared to the January 26, 2024 Progress Report, Student progressed in some of his English and math skills, regressed in one area, and was unable to work on other objectives due to being home.  He also regressed in two self-regulation objectives but maintained his skills for the two motor objectives he worked on (again being unable to work on the two APE objectives due to being in the home).  (S-28D; Duquette V1, 188-89).

46. On July 24, 2024, Ms. Bozzuto gave her 2-week notice to Parent.  Although Parent initially told Ms. Bozzuto not to return, she later changed her mind.  However, Mr. Duquette was advised that when Ms. Bozzuto returned the following day, she was met with discord and bitterness and was made to feel uncomfortable by Parent, Ms. Shaughnessy and Parent’s boyfriend, all of whom were present.  Parent then sent “threatening/sinister” text messages to Ms. Bozzuto, and she did not return[25].  Parent testified that while, at first, she was satisfied with Ms. Bozzuto’s services, she had concerning interactions with her outside work hours, although none of these concerns were ever present during work hours.  (P-7; S-30G; Duquette V2, 112, 117-18; Mother V2, 288-89).

47. On July 31, 2024, the District re-sent Parent the Releases of Information for the ten residential out-of-district placements it had proposed on July 1, 2024.  (S-10; S-48).

48. On August 8, 2024, at Parent’s request, the District forwarded an Evaluation Consent form for a PT assessment and N1, and Parent thereafter consented.  (S-9).

49. Also on August 8, 2024, after receiving background information from Mr. Duquette and Mother, Mr. Fedoruk began working with Student focusing on the Stay Put IEP’s transition skills, consisting of activities of daily living and home management, specifically simple meal preparation, cutting food, cleaning, picking up after cooking, taking care of personal belongings, community mobility, negotiating a grocery store, and ordering at a restaurant.  He did not work on a shaving routine.  With the District’s permission, Mr. Fedoruk’s OT services were provided weekly for an hour rather than 2 x 25 minutes per week as called for in the Stay Put IEP.  (S-18, S-30B; S-47; Duquette V1, 190-91; Fedoruk V1, 42-43, 51-56, 78).

50. Mr. Fedoruk believed Student’s existing OT home services were sufficient for his IEP goals. Student enjoyed community outings and “benefitted immensely” from being in the community working on his OT goals.  While Mr. Fedoruk discussed with Parent the option for Student to receive additional OT services, once he began attending BICO (discussed below), these additional services were private, insurance- based, supplemental outpatient services, not school-based services.  Outpatient services are home and community-based and client-driven, based upon an evaluation and treatment plan submitted to the insurance company.  They are not tied to a school curriculum or an IEP.  Typically, students receive outpatient services at Mr. Fedoruk’s clinic, and school-based services at school; however, as Student was awaiting an educational placement, Mr. Fedoruk agreed to support the District’s request to provide school-based services in Student’s home, in the community and at his clinic where there is a kitchen and a vacuum.  Mr. Fedoruk did not limit his work only to Student’s OT goal, because, as he explained, a goal does not belong to a discipline; it belongs to the Student.  As such, Mr. Fedoruk was familiar with all of Student’s goals and supported other goals besides the OT goal, such as community mobility goals, when the opportunity arose.  Mr. Fedoruk saw Student consistently on a weekly basis, making up any missed time.  However, Student cancelled services at times.  Sessions that were missed due to the therapist unavailability were not invoiced but sessions missed by Student were noted on invoices[26].  Mr. Fedoruk last provided services to Student on April 24, 2025.  He has not provided any OT services to Student since he began attending BICO.  (S-30A; Fedoruk V1, 43-46. 55-60, 68-69, 78-79, 83-86).

51. Although Student had not met his goals, he made steady progress with Mr. Fedoruk, needing fewer prompts and encouragement to participate and improving in his adaptive abilities of using his phone camera to magnify or amplify cooking directions.  As the home providers did not have access to the database that maintained Student’s Progress Reports, Mr. Fedoruk reported on Student’s progress to the District via a Google Doc, which he then cut and pasted into Student’s Progress Reports.  (S-28A; S-28B; S-28C; Fedoruk V1, 60-68, 76-77; Duquette V2, 128-29; Kerls V3, 73-75; Veroneau V3, 193, 195).

52. In August 2024, the District agreed to reimburse Parent for services provided by Stacey Shaughnessy[27].  Mr. Duquette explained that the District was seeking to cooperate and work with Mother, and this was an area in which it could be flexible, although it retained the right to change its mind.  Although Ms. Shaughnessy did not have any formal training or educational support experience, the District and Parent agreed that Ms. Shaughnessy would support Parent in working on the ECC with Student, as she had a good relationship with him.  This was in lieu of the District hiring an RBT.  (Duquette V2 126-27, 134; Mother V4, 45-46, 52-53). 

53. On August 28, 2024, Mr. Duquette introduced Parent to a new special education teacher, Stephanie Collins, whom he had interviewed on August 3, 2024.  Ms. Collins began working with Student on September 5, 2024.  Parent initially seemed happy with Ms. Collins, but within the first month, she expressed to Mr. Duquette she had concerns about her attendance.  After following up with Ms. Collins, Mr. Duquette concluded there were justifiable reasons for Ms. Collins’s absences such as family illness. He explained that these types of attendance and staffing struggles further reinforced the District’s belief that Student needed to be in an out-of-district school placement, not continuing to receive interim home services.  (S-30G; S-38; Duquette V1, 191-93; V2 121-25). 

54. On September 6, 2024, Mr. Duquette sent Parent Releases for four potential day programs.  He explained that although the District proposed a residential program for Student, at that point it was looking to find any potential educational services in a school program, even on an interim basis, and pursuing day programs increased potential placement options.  Parent immediately replied and consented to one of the programs (BC Campus School (BCC)) indicating she would research the remaining three programs that weekend.  (S-48; Duquette V2, 80).

55. On September 19, 2024, Mr. Duquette sent out email inquiries seeking an O&M Specialist for in-home services for Student, and Jillian Ellis responded[28].  On September 23, 2024, Mr. Duquette sent Parent a Release of Information form to share Student’s information with Ms. Ellis, which Parent signed on October 2, 2024.  A proposed plan for O&M services was sent to Parent on October 11, 2024, and Mr. Duquette introduced Parent to Ms. Ellis via email on October 23, 2024.  On November 9, 2024, Ms. Ellis began to provide Student with 60 minutes of weekly O&M services.  According to Ms. Ellis, since she began working with Student, Student has made progress, particularly with regard to his ability to travel up and down stairs (now using a reciprocal pattern, not the same foot for every step) and the use of a cane.  He has also improved his stamina for walks for up to 60 minutes.  (S-28B; S-30G; Ellis V2, 229-30).

56. In mid-October, BCC indicated interest in pursuing a referral for Student.  Parent and Mr. Duquette scheduled a tour for October 30, 2024, but the day before, Parent cancelled due to a family emergency.  Mr. Duquette attended the tour, nevertheless.  Parent rescheduled the tour for the following week.  After the tour, BCC asked to have Student visit.  This visit ultimately occurred in December 2024 with Parent participating via Zoom for a screening.  However, after the visit, on January 7, 2025, BCC informed the District that it was not accepting Student as they found him capable of a more challenging pre-vocational/vocational program than they could offer.  (S-29; S-48; Duquette V2, 82-85). 

57. Student’s November 4, 2024, Progress Reports reflected progress for all Goals except O&M and communication, and the reports for those Goals only noted the PR Interim Services Statement, along with a statement that O&M services began in November 2024, and communication services began in December 2024.  Ms. Collins reported on the English, Math and Vocational Goals, Ms. Beitner reported on the Self-Regulation Goal, Ms. Kerls reported on the Motor Goal, and Mr. Fedoruk reported on the Daily Living Skills (previously referred to as Independent Living Skills) Goal.  According to Ms. Collins’ reports, Student made progress in all English and Math objectives.  He was also reading at a higher level than noted in July and was now working with coins in addition to dollar bills.  He had also participated in a limited number of community trips since Ms. Collins started in September.  Student showed mixed progress on his vocational goal objectives, maintained his self-regulation progress, maintained progress on one of the motor goal objectives, and improved in his ability to ascend and descend stairs.  Student was still unable to work on one APE objective with the progress report noting that “APE is not applicable at this time due to his home placement”.  Student maintained some daily living skills but regressed in others.  Parent received this Progress Report in January 2024 and disputes the accuracy of Ms. Collins’ reports.  (P-7C; S-28C; Duquette V1, 190; Mother V3, 20-21).

58. Calista Veroneau[29] is a Speech Language Pathologist (SLP) employed by Sensation Station.  She was contracted by the District to work with Student starting on December 5, 2024.  The District had initially reached out to Mr. Fedoruk about contracting with an SLP in September 2024.  Although Ms. Veroneau provided support to Student for one hour weekly, she believes Student would benefit from having his speech services provided at the rate of 2 x 30 minutes per week, provided the services are consistent.  Usually, Ms. Veroneau’s services took place at the Sensation Station clinic, but she also provided services three times in the community, working on ordering food, and once in the home, as she found it important for Student to work on functional life skills in natural environments.  As Student had not yet met his speech goals and objectives on his Stay Put IEP, Ms. Veroneau focused on providing functional activities to support these goals.  She feels that since working with her Student has maintained his skills and has not regressed, but at this time he requires some of his “stay put” goals and objectives to be carried over into a new IEP.  (S-30G; S-48; Veroneau V3, 181-85, 191-93).

59. During November and December of 2024, Student had at least one hospitalization due to behavioral dysregulation.  Student’s behaviors were in part due to not being in a school placement, which Mother described as traumatizing, depressing, confusing, frustrating, and anxiety-provoking.  Student also had physical interactions with his brother, in response to his brother’s behaviors, that had led to his brother being hospitalized for six weeks.  At times Student’s reactions to his brother causes Student to react violently towards Mother.  On one occasion Student’s brother broke Student’s finger, after he had pushed his brother breaking his tooth.  Mother was also involved in this altercation and taken to the hospital for a potential broken nose.  Student’s behaviors have since improved as Mother has explained to Student the significant needs and illness his brother is experiencing.  Student and his brother have also been separated onto different floors at home, which also helps to calm Student’s behaviors.  (S-46; Duquette V1, 221; Mother V2 and V3, generally, V3, 24-26, 29).

60. On January 3, 2025, a dispute arose between Ms. Collins and Ms. Shaughnessy that caused Ms. Collins to leave Student’s home.  Parent explained that the dispute was precipitated by Ms. Collins who asked Ms. Shaughnessy for her data to support the work she was doing with Student.  Ms. Collins requested this data so she could finish providing the information in the Google form for Student’s yet to be completed November Progress Reports, at Mr. Duquette’s request.  Parent did not allow Ms. Collins to return after this date. 

Parent believed Ms. Collins was billing for hours she was not actually providing services for, especially as she frequently arrived late and left early but billed for a full day of services[30].  Ms. Collins also billed for direct services on six days during Christmas break, although she was only at the house for one.  Parent had previously notified Mr. Duquette about these concerns on September 22, 2024, and October 2, 2024.  Additionally, Parent claims she learned that Ms. Collins had been using a personal vape in her car during her breaks to smoke marijuana.  Parent does not believe Ms. Collins smoked anything in the house, or when she was working with Student.  Mr. Duquette received screenshots of text messages between Ms. Collins and Ms. Shaughnessy that pertained to these allegations.  (P-5B; P-7B; S-30B; S-30G; S-38; S-46; S-48; Duquette V2, 125-26; Mother V3, 14-21). 

61. The text messages provided to Mr. Duquette by Ms. Shaughnessy contained concerning statements about Parent not properly caring for Student, and he followed his obligations as a mandated reporter[31].  According to Parent, his complaint was ultimately unsupported.  Also, at that time, Parent was struggling with an undiagnosed medical issue and, since then, has been diagnosed with Diabetes.  (S-46; Duquette V1, 224-26; V2 129, 132; Mother V3, 23). 

62. On January 7, 2025, Mr. Duquette emailed Parent with the results of his investigation into Ms. Collins’ attendance.  He asked Parent to confirm her records relating to Ms. Collins’ actual provision of services to Student.  On January 10, 2025, Mr. Duquette emailed Parent to inform her that the District sought to maintain Ms. Collins’ services to avoid a service gap but planned to monitor her attendance and enforce her 9:30 a.m. to 2:30 p.m. schedule.  Parent declined to have Ms. Collins continue to provide services to Student.  Parent explained that she was no longer comfortable having Ms. Collins in her home and worried Ms. Collins would “fake some sort of injury”.  Parent further had concerns about Ms. Collins’ character.  (P-7B; S-30G; Duquette V2 131-32, 177-78; Mother V3, 21-22). 

63. On January 10, 2025, the District exercised its right to end its arrangement of reimbursing Parent for Ms. Shaughnessy’s services.  Mr. Duquette explained that based upon the text messages, he no longer felt it was valuable to have Ms. Shaughnessy provide District-funded services in the home, and in fact, at times, she seemed to be getting in the way of instruction from other District-contracted providers.  (Duquette V2, 133-34).

64. On January 17, 2025, Parent consented to a Release of Information to be sent to BICO.  Mr. Duquette sent a referral packet on that day, and BICO replied shortly thereafter to express interest in Student.  (S-29).

65. On January 29, 2025, the District sent Parent an N1 to formally respond to her recent concerns, and to clarify the purpose and scope of the interim special education services Student was being provided at home while awaiting a new school placement.  The District confirmed it never supported or proposed a home placement, and that the interim services were temporary and were being provided to minimize educational loss while a new placement was explored.  The N1 also noted that Parent had refused the District’s offer for continued interim special education services by the identified special education teacher.

The N1 also offered, as compensatory services, to hire an in-home Behavior Technician (BT) (James Lewis, discussed supra) that Parent had found to provide the IEP’s behavior and residential (ADL) services, and to develop and implement lessons pertaining to Student’s IEP objectives involving the ECC, vocational, independent living, community, behavior, self-regulation and self-help skills at home and in the community for 20 hours per week (to overlap with Student’s special education teacher and other related service providers).  The proposed duties and responsibilities of the BT were specified.  The N1 noted that since May 2024, the District had been providing or was currently seeking to provide 11 hours per week of special education instruction from a special educator, an hour per week of counseling, an hour per week of PT, an hour per week of Speech, an hour per week of OT, and an hour per week of O&M plus specialist consultation[32]. 

The N1 further noted that Parent had not consented to referral packets being sent to all proposed programs and that BICO had informed the District that Student may be appropriate for its program and was interested in pursuing a visit with Parent.  Further, it advised that the District had strongly recommended that Parent accept the Evergreen placement, and that Parent’s failure to accept this placement has “hindered the District’s ability to provide a FAPE to [Student]”.

Finally, the N1 indicated the District’s rejection of Parent’s request to be reimbursed for use of her home and for non-educational items, and it also rejected Parent’s request to be paid the monetary difference between Student’s tuition at Perkins and the money the District paid for the interim home services.  It declined to reimburse Parent for specific gloves she requested for personal care, although it offered her gloves the District possessed in stock as a courtesy.  Further, it confirmed that it would no longer reimburse Parent for Ms. Shaughnessy’s services as it found that the arrangement “hindered the out-of-district referral process and created a hostile environment for District-funded staff”.  However, the District committed to continuing to provide educational services (rather than financial compensation) and all necessary supplies needed for these services to occur at home.  It also committed to continuing to communicate with Parent but advised that communication should remain respectful, and that it would not respond to repetitive questions or harassing or threatening language.  (S-8).

66. Despite the District’s continued affirmations that it was not able to replicate an out of district program at home, when compared to Student’s Stay Put IEP, the interim services being provided/sought to be provided and reflected in the January 29, 2025 N1 comprised most of the Stay Put IEP’s services, including some of the residential services.  The interim services amounted to 10 minutes more per week of educational services, PT, O&M and OT[33], and 35 minutes more per week of individual Counseling and Speech than provided in the Stay Put IEP.  Based upon the description of the duties of the BT, the 20 hours of weekly BT services more than supported the 9.75 total hours per week of community experience, home personal management, leisure and recreation skills, vocational services, music therapy and sensory group services in the Stay Put IEP, as those services were provided to work on Student’s self-regulation and independent living skills goals.  It also addressed approximately 10.25 of the 35 hours per week of residential services in the Stay Put IEP.  Thus, the only services in the Stay Put IEP not being addressed in the home were 2 x 50 minutes per week of APE (as according to Ms. Kerls, APE was not a service that could be provided in the home setting), and 50 minutes per week each of group speech, and group counseling as Student did not have access to other peers at home.  (S-8; S-18; Kerls V3, 54-55).

67.  Student’s January 31, 2025, Progress Reports reflected progress for all goals except self-regulation (which only noted the PR Interim Services Statement).  Ms. Collins reported on his English, Math and Vocational Goals, Ms. Kerls reported on his Motor goal, Ms. Ellis reported on his O&M Goal, Mr. Fedoruk reported on his Daily Living Skills Goal, and Ms. Veroneau reported on his Communication Goal.  According to Ms. Collins, Student maintained all reading and math progress except regressing on answering WH questions “due to hospitalization and the holidays”.  Student engaged with adults in the community and was able to ask clarifying questions with prompting.  Student also progressed on his vocational objectives, even when faced with new activities of Daily Living Skills and maintained his progress on his motor goal’s objectives, further improving in his ability to ascend and descend stairs.  The APE objective continued to not be worked on with the progress report noting that “APE is not applicable at this time due to his home placement”.  Student also maintained or improved his progress on his O&M and Communication Goals, despite this being the first quarter he had worked on these since leaving Perkins.  Parent disputes the accuracy of Ms. Collins’ reports.  The District was unable to follow up with Ms. Collins, since Parent withdrew her consent for the District to communicate with Ms. Collins about Student once she no longer allowed her to work with him.  (P-7C; S-28B; Duquette V2, 130-31).

68. On February 6, 2025, a partial Team meeting was held to review the results of Student’s PT evaluation.  In attendance were Parent, Ms. Durler and Ms. Kerls.  Student navigated his home environment and performed 11 of the 20 skill areas in which he was assessed.  Student could functionally traverse up and down stairs safely, using more caution going downstairs, due to his visual impairment.  Student’s stamina was good, but there was a slight decrease in strength since PT services started likely due to the length of being at home where less walking is required.  Ms. Kerls believed the findings reflected what was already known about Student from a PT standpoint and were consistent with his prior PT evaluation.  Although no changes were recommended to Student’s PT services, the evaluation recommended exercises such as yoga and light weight training to build strength.  The District agreed to purchase a yoga mat and light weights to facilitate this.  The recommendations were generally structured for a school setting as that was the intended placement for Student; however, the yoga recommendation was specific to the home.  Ms. Kerls explained that she felt it appropriate to maintain services at 2 x 30 minutes weekly, allowing Student to spread his PT services out across the week, consistent with standard practice.  (S-7; J-2; Kerls V3, 53-54, 66-68).

69. In February 2025, Mr. Duquette visited BICO with Parent, and Student toured thereafter.  Parent was able to ask questions and meet with relevant staff during this tour.  (S-6; S-29; Duquette V2, 86)

70.  On February 26, 2025, the District sent Parent an N1 and a proposed placement page for the BICO Life Roles Transition Center 18+ program.  A proposed start date of March 4, 2025, was indicated.  (S-6; Duquette V2, 86-87).

71. On March 5, 2025, the District received a confirmation letter from BICO offering Student a placement in its Life Roles Transition Center (LIRTC) program immediately upon acceptance of a placement page.  (S-29).

72. Meagan Ingalls is the referral and admission specialist for CMS.  She began in this role in January 2025 but has been with CMS for 10 years.  CMS is a 766-approved special education school in New Hampshire offering both day and residential programs.  It educates about 50 students, approximately half of whom attend the residential program.  While most students in attendance have an autism diagnosis, CMS also supports students with multiple disabilities, including traumatic brain injuries, and cortical vision impairments.  There are eight classrooms, each with eight students.  Most students are supported daily by a 1:1 aide in school, and at a 1:1 or 1:2 ratio in the residences.  During the seven full weeks when school is not in session, CMS residential students typically stay on campus and receive residential supports.  (Ingalls, V1 99-101, 112, 117-18).

73. In January 2025, Ms. Ingalls received a referral from Franklin for Student.  Upon receiving the referral, she searched her system and saw that CMS had previously received a referral for Student in August 2024, prior to her employment. The August 2024 referral information included the Stay Put IEP, Student’s then-current Progress Reports, and information about the ECC.  Upon receiving the 2025 referral, and obtaining clarification on medical information contained in it, CMS followed its standard practice to set up a virtual observation of Student and observed him for 15 minutes during an OT session with Mr. Fedoruk at his clinic, where Student was working on daily living skills relating to hand washing and making cupcakes.  After the observation, CMS also spoke with Mr. Fedoruk, describing the program at CMS.  Mr. Fedoruk indicated he felt it would be a good fit for Student.  CMS invited Mother for a tour, which she attended with Mr. Duquette.  After the tour, on March 4, 2025, CMS sent the District a letter offering Student a placement as a residential student with a proposed start date of March 31, 2025.  The District informed Parent of this acceptance and anticipated start date on the same day.  The teacher in the classroom identified for Student was very familiar with the ECC.  (S-4; S-34; Ingalls V1, 101-08, 116; Duquette V1, 208-09).

74. Although Ms. Ingalls informed the District that they did not currently have an SLP on staff and were working to contract with outside providers, she believed CMS could implement Student’s Stay Put IEP.  If Student’s placement offer was accepted, CMS would hold a pre-admission meeting to connect with Student’s most recent team, the District, Parents and any external providers, such as DDS, to discuss Student’s IEP services, including his ECC services.  If there were services that CMS could not provide, they would collaborate and partner with the District to contract with external agencies to provide these missing services remotely or otherwise.  (Ingalls V1, 104-05, 108-09, 117).

75. On February 28, 2025, Parent filed a complaint with PRS with regard to whether Student’s November 2024 and January 2025 progress reports accurately reported on the ECC and whether the District provided sufficient tutoring services to Student from September 15, 2024, through January 10, 2025.  (P-7C1).

76. On March 3, 2025, the Team convened virtually for an annual review.  According to the N1 prepared on March 14, 2025, reflecting this meeting, this meeting had been initially scheduled for January 30, 2025, but Parent was not available on that date. She also wanted clarification about why the meeting needed to be held.  It was then rescheduled to a date that would allow as many Team members as possible to attend.  This N1 also provided Parent with additional information about the CMS proposed program, and the services and supports it provides pertaining to technology, family contact, transition and care management, PT and O&M, OT, SLT, staffing ratios, academics, music therapy, counseling, sensory group, APE, Community, home/personal management, leisure and recreation and vocational.  With the exception of speech services, and music therapy, CMS was able to immediately provide all of the services contained in the service delivery grid of the Stay Put IEP.  However, as to speech and music therapy, CMS noted it would work with the District to determine how to access these supports.  (P-5; S-5).

77. On March 17, 2025, the District sent Parent the March 14, 2025, N1 and the IEP developed at this Team meeting dated from 3/32025 to 3/2/2026 (Proposed 25-26 IEP).  This IEP proposed placing Student at CMS residentially, starting March 31, 2025.  The IEP contains goals in the areas of self-regulation, daily living skills, motor skills, functional academics/transition, communication, vocational, and O&M.  The Service Delivery Grid proposes services to address functional academics and the ECC in the A-Grid consisting of 30 minutes per month of vision consult by a TVI, two 15-minutes per month O&M consult, and 30 minutes monthly of a Team consult.  No B-Grid services are proposed.  The C-Grid proposes 2 x 30 minutes weekly of counseling services; 30 minutes daily of daily living skills services by a special education teacher; 2 x 30 minutes weekly each of OT, PT and SLT (noted as “communication”) services; 30 minutes weekly of APE; 90 minutes weekly of community services by a special educator; 90 minutes daily of academic services by a special educator; 4 x 50 minutes weekly of vocational/transition services by a special educator; and one hour weekly of O&M services[34].  No residential direct services were proposed.  (P-5; S-5; S-36; Duquette V2, 95-97, 105-06).

78. On March 11, 2025, Mr. Duquette met with a BCBA from Focused Staffing Group to provide services to Student.  Parent canceled the first meeting with this BCBA on March 13, 2025.  (S-30G).

79. As CMS had a waitlist, they asked Parent to confirm her placement decision within ten days of their March 4, 2025, offer.  When Parent did not reply within that timeframe, on March 14, 2025, the District sought injunctive relief from the Superior Court to allow it to place Student at CMS.  Mr. Duquette explained it appeared to the District that Parent was not going to accept CMS as a placement, and it strongly believed that Student needed to be in a school setting, as it could not replicate an out-of-district program in the home.  Thus, the District felt it needed to take additional steps beyond what it did for Evergreen to hold this placement.  After a hearing that day, where Parent was represented by counsel, the Superior Court issued an Order denying, without prejudice, the District’s Motion for Emergency Injunctive Relief, noting it was not able to find that day, based on Parent’s testimony, that she was “unreasonably withholding [ ] consent for [Student’s] placement into a residential program … but this question is a close call”.  The Court recognized that depending on Parent’s actions with regard to future placements, this determination may change.  The denial was also based upon a balancing of harms to Parent and Student, that involved the hardship they would incur in Parent driving five hours round-trip for Student to come home for visits, given Student’s right to the comfort and companionship of his family[35].  (P-5A; S-31; Duquette V1 212-13, 219-20; V2, 98). 

80. After the Superior Court proceeding, Mr. Duquette reached an agreement with CMS for the District to fund and hold an open placement at a rate of $792.09 per day, starting on March 21, 2025, with a two-week notice before the funding stopped.  Ultimately, Mother declined to place Student at CMS, instead placing him at BICO.  Mother explained that Student’s depression, being home, had grown so significant that he has now been diagnosed with separation anxiety and thus requires the ability to return home from any future educational placement.  Mother also feels strongly that Student needs opportunities at home even if he is in a residential program.  Further, she objected to CMS being beyond the one-hour travel distance requirement she believed applied to this school placement under the law.  (S-33; Ingalls V1, 109-11; Duquette V2, 99-100; Mother V3, 25-26, 29-30; V4, 38).

81. On March 17, 2025, Ms. Ingalls emailed Mr. Duquette to inform him that CMS was aware that Student’s Roger’s Orders did not match his current medication regimen and they could not accept Student until this was updated.  (S-33).

82. Student’s March 31, 2025, Progress Reports reflected progress on his Motor Skills, O&M, Daily Living Skills and Communication Goals, with the reports for the other Goals only noting the PR Interim Services Statement.  Ms. Kerls reported on his Motor Goal, Ms. Ellis reported on his O&M Goal, Mr. Fedoruk reported on his Daily Living Skills Goal, and Ms. Veroneau reported on his Communication Goal.  Student maintained his progress on his Motor Goal objectives (except the APE objective that was still not worked on due to the home placement).  He progressed on his O&M Goal, improved in his Daily Living Skills Goal and maintained or improved progress on his Communication Goal.  (P-7C; S-28A).

83. On April 1, 2025, Parent and the District executed a Temporary Placement Agreement relating to Student attending the proposed LIRTC day program at BICO, as this program does not provide residential or other services contained in the Stay Put IEP.  Among other things, the Agreement provides that Parent fully agrees to the reduction in services during Student’s enrollment at BICO, although the Parties agreed Student’s stay-put placement was a residential program.  The District committed to funding BICO, providing door-to-door transportation, and providing an additional staff member who could administer any medication Student required during this transportation.  Parent waived compensatory claims for services Student had received at Perkins that were not being provided at BICO, as well as for any compensatory services resulting from the delay in placement at an approved residential program after the date of this agreement.  A service delivery grid for BICO was attached[36].  (S-3; Duquette V2, 100-01).

84. On April 17, 2025, the District sent Parent an N1 with a proposed placement page for the BICO Life Roles Transition Center 18+ program.  A proposed start date of April 29, 2025, was indicated, and the N1 noted that this start date was identified “per the BSEA phone call held on 4/17/2025”.  (S-2).

85. Student is a client of DDS.  He received DDS Service Coordination first with a Children’s Coordinator and then, starting in December 2023, with Ms. Hershey (discussed below).  Additionally, in 2017 Student received Intensive Flexible Family Supports (IFFS) consisting of case management services and flexible funding to help purchase items or services for a child experiencing a serious challenge due to their disabilities that causes severe stress for the family and may risk an out-of-home placement.  This service usually lasts for no more than 12 months.  Further, he has received Flexible Funding allocations yearly, although living residentially, since 2020. 

To access approved flexible funding funds, Parent must submit receipts for services.  Once approved, if funds are depleted, she can request additional funding up to a total of $3,000.00 that must be separately approved.  On May 10, 2024, Parent requested $900 of flexible funding for Student in order to hire a travel companion for his trip to visit CDC in Florida.  On February 6, 2025, Parent requested flexible funding of between $0 – $500 for respite care[37].  Additionally, Ms. Shaughnessy provided Student with 35 hours of respite care on 3 weekends in September and October 2024 at the rate of $25.00 per hour for a total of $875.00.  (DDS does not provide any respite care directly to youth under the age of 22, and it is up to Parent to locate a respite care provider).  (D-1; D-2; D-3; Hershey V3, 91- 97, 102-03, 106, 108-09, 121, 112-25).

86. Kristen Hershey, DDS Transition Coordinator since 2009, has been Student’s area coordinator since December 2023.  In February of 2025, Ms. Hershey referred Student for the services of the joint DDS/ DESE in-home educational services program that provides wrapround services for students ages 6-21 to help prevent a more restrictive educational or out-of-home residential placement, or to assist families with children coming out of a residential placement as they transition back into the community[38].  According to Ms. Hershey, Student was approved for these services despite scoring below the qualifying score and having a residential educational program placement recommendation, under an exception that provides him with these services while he is awaiting a residential placement and given unique circumstances in his home. 

For FY25, Student was approved for 44 hours of Family Support Navigation, 6 hours weekly of skills training, and $5,000 for DESE/DDS support services.  Parent must be present when these services are provided, and they cannot overlap with respite services.  The services are overseen through a DDS vendor, Ascentria.  Had Parent not accessed her own provider, Ascentria could provide its own staff support.  Ascentria was chosen as the vendor by DDS based on their success in supporting students with behavioral needs[39].  Ascentria last met with Parent for Family Support Navigation services on April 8, 2025. 

For FY26, starting on July 1, 2025, Student has been approved to receive 48 hours of Family Support Navigation and $10,000 for DESE/DDS support services.  Ms. Hershey was not sure if there were additional skills training hours available to Student or if he had any skills training hours available next fiscal year and she would need to reach out to Ascentria to confirm.

Student also receives services from the Massachusetts Commission for the Blind (MCB) and from Adult Family Care, a Medicaid funded service that provides tax-free payments to caregivers or friends to care for qualified members in their home, through Quality Care, consisting of monthly in-home nursing and case manager supports.  Neither of these services is associated with DDS.  Mother confirmed that the service provider for these services was primarily her partner, but that Ms. Shaughnessy did provide Quality Care services for a period of two weeks in the fall of 2024. 

While Mother did not have any concerns with Ms. Hershey, specifically, she disputes that DDS provided Student with all available services.  (D-1; D-2; Hershey V3, 87-91, 97-101, 109, 112-20, 124-25; Mother V4, 42-44, 56).

87. DDS services requiring an application that have not been offered to Student include Medically Complex Programs consisting of intensive case management and flexible funding to buy items or services for children with serious cognitive, physical and/or complex health care needs.  They also include Planned Facility-Based Respite Program services, consisting of out-of-home respite care on a short-term, temporary basis, that includes overnight, weekend and/or vacation stays.  Finally, DDS offers upon application, but has not offered Student, Family Leadership Development services that provide education, mentoring and support to families to learn “best practices” in caring for children and youth with disabilities.

Non-application DDS services available to Student consist of Family Support Centers, like Open Sky, that provide community and leisure activities, trainings for families and flex funding upon request and availability.  Student has not accessed these services.  (D-1; Hershey V3 ,127-28).

88. The District purchased or reimbursed Parent and providers for equipment and supplies, including the portable magnifier (CCTV) ordered on July 2, 2024 at Ms. Boothroyd’s request; an iPad ordered on July 15, 2024; a low vision assistive technology keyboard, portable monitor and storage organizer bins, ordered on July 18, 2024; printer ink at Parent’s request ordered in October and November 2024 and January and March 2025; and a yoga mat and light weights recommended in the PT evaluation ordered on February 10, 2024. The total cost for these supplies was $4,766.35.  (S-30F; Duquette V1, 183; Kerls V3, 71-72; Boothroyd V3, 146-47; Mother V4, 54).

89. The District also reimbursed Parent for expenses incurred for a community outing to the Southwick Zoo on September 27, 2024.  Parent explained that although Ms. Collins had planned a lesson for this community outing, she was out sick that day and Parent and Ms. Shaughnessy went with Student and his sibling[40].  The reimbursement included payment for a motorized scooter and four adult admission tickets.  The total cost for this outing was $158.00 but it appears Student’s costs were half the expense.  (S-30F; S-38; Mother V3, 19-20).

90. Between February 2024 and February 2025, Parent signed releases for thirty school programs.  Although at times she was slower than the District wanted in doing so, she consistently communicated her unwillingness to sign blank releases and her desire to research programs before agreeing to sign.  Parent did not want Student attending a school that used ABA as a primary strategy because such an approach, involving a lot of vision-based tasks, did not work well for Student due to his visual impairments[41].  Parent also felt some proposed programs were inappropriate after researching them as they used behavior techniques she did not agree with, or they primarily accepted students with behavioral or mental needs. 

Only Evergreen, CMS and BICO accepted Student.  Darnell School and the Guild School indicated interest in proceeding in January and February 2025, but Parent declined to continue these referrals.  The remaining programs declined to accept Student, although he initially underwent a more involved screening at BCC, noted previously, and was placed on a waitlist at one school.  (S-30; S-32; S-35; S-48; Duquette V1, 193-94; V2, 71, 90-92; Mother V3, 32-33; V4, 36, 57-66).

91. In early 2025, the District attempted to arrange for an interagency review of complex cases among the District, DDS, MCB and DESE but this did not take place due to Parent’s failure to consent to that process.  (Hershey V3, 108-09).

92. Mr. Duquette reached out to over 20 staffing agencies, schools and vendors about supporting Student’s interim home services between Student’s termination from Perkins and his attending BICO.  Mr. Duquette also considered providing services in a District building, but there was no available space.  Parent believes that the District did not conduct a sufficient search for staff to support Student during this time as she looked for District postings for positions specific to Student and did not find any.  (P-7D; S-30G; Duquette V1, 134-35; Mother V3, 44-45).   

93. Between August 8, 2024, and April 10, 2025, the District paid for a total of approximately 25 hours of Mr. Fedoruk’s services to Student and 12 hours of Ms. Veroneau’s services for a total of $4,753.67.  Parent claims that Student received 63 hours of direct services from Mr. Fedoruk between August 1, 2024 and May 12, 2025, and 14 hours of direct services from Ms. Veroneau between January 9, 2025 and May 12, 2025.  Parent is satisfied with the services provided by Mr. Fedoruk and Ms. Veroneau.  (P-7; S-30A; Mother V4, 51).

94. Between July 1, 2024, and April 14, 2025, the District paid for a total of 37.25 hours of Ms. Kerl’s PT services to Student, 30 minutes for Ms. Kerls to attend Student’s Team meeting to review her evaluation, and 6 hours of evaluation time.  In total, the District paid $3,986.25 for Ms. Kerl’s services.  Parent claims that Student received 44 hours of direct services from Ms. Kerls between May 8, 2024, and May 12, 2025.  Ms. Kerls confirmed that she does not recall many if any missed sessions, and, after Student started at BICO, she continued to provide services for the 30-day termination period.  Parent is satisfied with the services provided by Ms. Kerls.  (P-7; S-30B; Kerls V3, 75-76, 79; Mother V4, 51).

95. Between July 5, 2024, and October 28, 2024, the District paid for a total of 18 hours of Ms. Beitner’s Counseling services to Student[42] for a total of $1,530.00.  Parent claims that Student received 18 hours of direct services from Ms. Beitner between May 8, 2024 and October 23, 2024.  (P-7; S-30B).

96. Between July 31, 2024, and March 31, 2025, the District paid a total of $29,972.70 for Ms. Boothroyd’s TVI services to Student.  Further, Ms. Boothroyd testified that she only provided consultation services to Student when another special education teacher was present and last provided such services to Student with Ms. Collins present.  Parent was satisfied with the services provided by Ms. Boothroyd.  (S-30E; S-38; Boothroyd V3, 149, 173-74; Mother V4, 52).

97. Between November 1, 2024, and March 31, 2025, the District paid for 35.25 hours of Ms. Ellis’ O&M Services to Student, consisting of direct, consultation and administrative services, an hour to attend Student’s IEP meeting, an hour to write Student’s Proposed 25-26 IEP, half an hour to write Student’s January 31, 2025 Progress Report, an hour of compensatory services and 10.5 hours of travel time for a total of $6,031.25.  Parent claims that Student received 23 hours of direct services from Ms. Ellis between November 8, 2024 and May 12, 2025.  Ms. Ellis recalls that whenever she was unable to attend a session, she rescheduled it with Parent.  Parent canceled approximately 2-3 sessions around the time Ms. Ellis first started working with Student and she provided 4 sessions since he started attending BICO as compensatory services.  Parent is satisfied with the services provided by Ms. Ellis.  (P-7; S-30D; S-47; Duquette V2, 145-46; Ellis V2, 239-40; Mother V4, 52).

98. Between July 2024, and February 2025, the District paid for 320 hours of Ms. Bozzuto and/or Ms. Collins’ services for Student[43] inclusive of planning for a total of $27,465.00.  One hundred of Ms. Collins hours are noted as being for “completion of final IEP work”.  Parent claims that Student received only 200 hours of direct services from a special education teacher between May 20, 2024, and January 1, 2025.  (P-7; S-30B).

99. In July 2024, the District paid for 2 hours of services by a BCBA and a half an hour of services by an RBT for a total of $242.50.  Even though these services were not on Student’s IEP, the District felt they could assist Student with vocational skill building, community access, and preparing the learning environment so he was ready to learn when the District was able to locate a special educator.  According to Mr. Duquette, neither provider ever provided direct services to Student as the RBT resigned after meeting with Parent, and the BCBA resigned after Parent failed to accept the proposed FBA.  (S-30B; Duquette V2, 119-21).

100. Between August 26, 2024, and January 10, 2025, the District reimbursed Parent a total of $17,150.00 for services provided by Ms. Shaughnessy.  Parent paid Ms. Shaughnessy via Venmo and submitted the Venmo receipts to the District for reimbursement.  As another student is included on the payment spreadsheet, it is unclear how many of these services were provided specifically to Student.  It is also unclear the total hours of services Ms. Saughnessy provided or the hourly rate she charged.  Parent is satisfied with Ms. Shaughnessy’s services.  (S-30C). 

101. Between February 26, 2025, and March 14, 2025, the District paid for 52 hours of BT services from James Lewis[44] to Student (20 hours per week according to the January 29, 2025 N1) for a total of $2,496.00.  Mr. Lewis passed away unexpectedly on March 18, 2025.  Although the District agreed to hire Mr. Lewis on January 29, 2025, it was unable to complete the onboarding process until February 26, 2025, primarily due to delays by Mr. Lewis.  Parent has also requested the District reimburse her for the payments she made to Mr. Lewis for his services for Student and another student in January and February 2025, prior to the District hiring him.  The District has declined to do so as Parent has not provided sufficient documentation to receive reimbursement.  The only evidence submitted by Parent is a handwritten note which she claims Mr. Lewis signed, noting “paid in full” and showing that Mr. Lewis worked 23 days in January and 18 days in February for 8 hours per day, supporting Student and the other student at a rate of $55.00 per hour 40 hours a week, for a total payment of $18,040.00[45]. 

Ms. Boothroyd recalls seeing Mr. Lewis providing behavior support services every time she was present between January and mid-March 2024.  During these times, Mr. Lewis also occasionally accompanied Student and Mr. Fedoruk on community outings or supported Student’s OT sessions at home or at Mr. Fedoruk’s clinic.  Mr. Fedoruk found Mr. Lewis to be very helpful with task initiation, prompting, and managing behaviors, although generally Mr. Fedoruk was able to redirect Student. 

All payments Parent made to Mr. Lewis were in cash.  She has no receipts or documentation other than the handwritten note.  Upon questioning, Parent advised that she maintained all this money in a vault in her home, so she did not have any withdrawal receipts to corroborate the payments.  Parent claims there was also a ledger that she and Mr. Lewis utilized to track the payments she owed and made, but Mr. Lewis took this ledger with him (despite it usually staying in Parent’s home) the last day he provided services, so it was not available to her anymore.  The only other evidence Parent relies on to support her reimbursement claim is emails not submitted into the record that she claims to have sent to Mr. Duquette starting on December 21, 2024, about Mr. Lewis’s services and her need to be reimbursed for them.  (P-5B; P-7A1; S-8; S-30E; Fedoruk V1, 74-75; Duquette V2, 138-42, 146-47, 180-81; Mother V3, 30-31; V4, 46-51, 70-80, 92-94; Boothroyd V3, 159-61).

102. Student began attending BICO on April 29, 2024.  His placement there has been a very positive experience thus far.  Parent has received positive reports from BICO and Student looks forward to going to school each day.  Parent is thankful he is there and believes it has been of great benefit to him.  (Duquette V2, 103; Mother V3, 25-26; V4, 54-55).

LEGAL STANDARDS:

1. Procedural Violation Claims Under IDEA

The IDEA’s procedural protections serve a dual purpose; they ensure meaningful parental participation while guaranteeing that each eligible child receives the protections of the IDEA^[46].  However, procedural violations that are technical or de minimis, not resulting in educational harm, are not actionable[47].  Under the IDEA, procedural violations can only be found to amount to a deprivation of a FAPE if,

“the procedural inadequacies – (I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits”^[48]. 

Although one of the purposes of the elaborate set of procedural safeguards imposed by Congress on school districts is to ensure parents’ full participation in the IEP process, “the fact that a parent doesn’t agree with the final IEP does not mean that either parent participation or FAPE was denied”[49].

2. Free Appropriate Public Education

Federal and state special education laws guarantee all students with a disability a right to a FAPE[50].  A FAPE is “special education and related services [consisting of] both ‘instruction’ tailored to meet a child’s ‘unique needs’ and sufficient ‘support services’ to permit the child to benefit from that instruction”[51] that must be provided in the “least restrictive environment[52]”.  To constitute a FAPE, a student’s educational program must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”[53] and the student’s educational potential[54].  

Provided the proposed IEP is “reasonably calculated” to deliver “educational benefits”, and “to enable the child to make progress appropriate in light of the child’s circumstances” the school district has met its IDEA obligations[55].   An IEP must be “custom tailored” and “individually designed” to be “reasonably calculated to confer a meaningful educational benefit” to a student[56].  However, an IEP’s educational services need not be “the only appropriate choice or the choice of certain selected experts, or the child’s Parent’s first choice, or even the best choice”[57].  A school district’s obligation is to provide an “appropriate, rather than an ideal, education; it requires an adequate, rather than an optimal, IEP”[58].  An IEP is a “a snapshot, not a retrospective.  In striving for ‘appropriateness,’ an IEP must take into account what was and was not objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated”[59].  School districts also have discretion over the implementation of the IEP program, provided the “goals and objectives of the IEP can be met, and the student can make effective progress”[60]. 

3. Compensatory Services

Compensatory education is an available remedy for violations of the IDEA that result in a denial of a FAPE to a Student[61].  An award of compensatory services while appropriate for “nonfeasance or misfeasance” by a school district, is discretionary, and equitable in nature[62].  Whether compensatory educational services are appropriate will, therefore, be based on a consideration of whether the conduct of both parties was reasonable[63], as well as the resulting impact of the district’s missteps on the student’s education.  If it is determined that compensatory services are warranted, a district “must provide compensatory services ‘equal in time and scope’ with what a student would have received while eligible”[64].  Federal Courts have generally calculated the “equitable amount of compensatory services owed pursuant to the IDEA” following one of two possible methodologies[65] – the “day-for-day approach” of Dracut School Committee v. Bureau of Special Education Appeals (737 F. Supp.2d 35, 55 (D. Mass. 2010)) adopted by the Second, Third and Eighth Circuits; or the “totality of circumstances approach” that “evaluates whether the plaintiffs intentionally hindered the defendants from creating and implementing a proper IEP and FAPE”, adopted by the Fourth and Ninth Circuits and by the Federal District Court of Maine[66].  The First Circuit has yet to “adopt[ ]or reject[] either method, and the district courts in the First Circuit have not decided on a singular approach”[67].

4. Burden of Persuasion.

In a special education due process proceeding, the burden of proof is on the moving party[68].  If the evidence is closely balanced, the moving party will not prevail[69]. 

DISCUSSION[70]:

Neither Student’s eligibility for special education based on his sensory/vision, intellectual and neurological impairment nor his need for a residential special education program is in dispute.  The Parties also agreed and stipulated to Student’s profile and needs while he was at Perkins[71].  Rather, this case is about whether the educational placements and interim services offered to Student over the course of a 15-month period (between January 2024, when his placement at Perkins terminated, through April 2025, when the Parties agreed on Student’s placement at BICO) constitute FAPE. 

Upon consideration of the documentary and testimonial evidence, the applicable law, and the Parties’ arguments, I conclude that Parent has not met her burden to prove that the proposed placement at Evergreen would not have provided Student with a FAPE.  As a result, Student is not owed any compensatory services past that time.  Moreover, I conclude that although, under the circumstances of this case, Parent had good cause to decline Perkins’ two conditional interim service offers, the interim services the District provided over the fifteen-month period in dispute have more than compensated Student for any services he was eligible to receive during this time.  Thus, after considering that Student’s overall progress during the relevant time remained similar to his progress while at Perkins, as well as the equities involved, I find that no further compensatory services are owed.  Finally, I conclude that while DDS offered Student all available services, additional oversight is necessary to ensure complete implementation of these services, and their specific supports.  My analysis follows:

1. The Evergreen IEP and Placement

IEPs challenged in due process proceedings must be analyzed under a “two-fold” inquiry consisting of “[f]irst, has the [District] complied with the procedures set forth in the Act?  And second, is the [IEP] developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits”[72]?  Thus, I address Mother’s procedural claims with regard to the Evergreen IEP first.

1. Procedural Claims

Mother’s procedural challenges to the Evergreen IEP comprise that it was identical to the Perkins 2024 IEP, other than with respect to the service delivery grid, the lack of revised parent concerns, and the limited time she had to accept it.  As procedural violations are only actionable under IDEA if they impeded a student’s right to a FAPE, caused a deprivation of educational benefits, or if they “significantly impeded the parents’ opportunity to participate in the decision-making process”[73], I examine each claim from this context.   

Mr. Duquette acknowledged the only revisions he made from the Perkins 2024 IEP were to the service delivery grid.  However, no other changes were warranted because, according to both Ms. Alton-Moore and Mr. Duquette, Evergreen intended to support all the goals, objectives and accommodations in the Perkins 2024 IEP, albeit through a different service delivery methodology.  The Evergreen IEP, as it was proposed during the timeframe covered by the Perkins 2024 IEP, was essentially an Amendment to that IEP, and thus it was not improper to maintain the goals, objectives and accommodations of the Perkins 2024 IEP.  Further, decisions on methodology are wholly within the discretion of a school district, and Ms. Potter explained that Student could receive a FAPE through a different service delivery model than he received at Perkins, provided his IEP goals and objectives were still addressed.

As to the lack of revised parent concerns, Mother testified to the different concerns she had communicated pertaining to Student’s attendance at Evergreen, and thus the Parent Concerns on the IEP should have been revised.  However, it is undisputed that Mother was fully engaged with Evergreen and the District prior to and during the May 22, 2024, Team meeting from which the Evergreen IEP was generated.  Her concerns with the Evergreen program were fully known and reviewed by the Team as evidenced by the N1 resulting from that meeting.  Thus, while the Evergreen IEP should have included these revised concerns, the failure to include them did not impede Mother’s ability to participate in the decision-making process to develop this IEP or with regards to Student’s placement at Evergreen.  I, therefore, find the failure to include updated Parent Concerns in the Evergreen IEP was a de minimis technical procedural violation that did not amount to a deprivation of a FAPE.    

Finally, as to Mother’s claims that she was not provided 30 days to respond to the Evergreen IEP, not only does the evidence not support this, but to the extent Mother was initially given less time for review of the Evergreen IEP, this, too, did not result in a denial of a FAPE for Student.  Mother received the written draft service delivery grid for the Evergreen IEP on May 16, 2024, along with a detailed explanation as to how the services would be delivered.  The service delivery grid included in the final Evergreen IEP reordered, but did not change, the information from this draft service delivery grid.  At Mother’s request, after receiving the draft service delivery grid, Evergreen also extended its initial May 20, 2024 response deadline, agreeing to schedule the May 22, 2024 Team meeting wherein Mother had the opportunity to discuss the draft service delivery grid fully and was reminded of her right to partially accept the IEP, as she had with the Stay Put IEP, and subsequently to provide Mother until May 24, 2024 to reply. 

Although Evergreen initially asked Mother to sign the Evergreen IEP a day after Mr. Duquette sent it to her, she was ultimately provided sufficient time to review it.  Not only did Evergreen extend its original deadline by 4 days, but upon outreach by Mr. Duquette, on behalf of Mother, about the new May 24, 2024, deadline, it also agreed to take a verbal or email commitment from Mother, rather than requiring a signed IEP and placement page[74].  Mr. Duquette informed Mother on May 23, 2024, within a few hours of sending her the Evergreen IEP on the same date, that, after further discussion with Evergreen, she did not need to sign the IEP or a placement page and would have additional time to review it and add Ms. Boothroyd’s suggested edits (and presumably her revised concerns).  All Evergreen ultimately required of Parent at this time was an email or verbal commitment that she planned to send Student there and wanted to move forward with placement.  Further, he sent two emails that same day encouraging Mother to provide her own and Ms. Boothroyd’s feedback to the Evergreen IEP.  

Moreover, given the waitlists and limited placement spaces at Evergreen that existed at that time[75], adherence to the strict procedural timeframe in the IDEA for Mother to consider the Evergreen IEP after it was sent to her, would have likely deprived him of the educational benefits from Evergreen.  Additionally, as Mother learned of Evergreen’s interest in Student on March 4, 2024; toured Evergreen twice, first on April 4, 2024 and again with Student; and was aware Student had been accepted at Evergreen as of May 5, 2024, with an ultimate expected start date of July 1, 2024, she was not impeded in participating in the decision-making process to place Student at Evergreen.  Thus, to the extent there were any procedural violations with respect to the response timeframe, they supported rather than deprived Student of a FAPE.  While Mother ultimately exercised her right to decline to place Student at Evergreen, there were no FAPE-impacting procedural errors in presenting this IEP to her.  I conclude, therefore, that the Evergreen IEP was developed appropriately.

2. Substantive Appropriateness of Evergreen

Turning next to whether the Evergreen IEP was reasonably calculated to provide Student with a FAPE, Mother’s contentions that it was not are based on concerns with Evergreen’s class sizes, its consultative model for delivery of SLT and OT services, its overall decrease in the number of services and elimination of the ECC and music therapy.

Mother relies on Ms. Spiesz’s evaluation recommendation to support her contention that Student’s class size at Evergreen would have been too large.  However, Ms. Spiesz explained that her recommendation was the “ideal learning environment” for Student, and that a slightly larger class size of 3 students to 1 staff, for more challenging educational topics, and up to 5 students and 1 staff for more social learning situations (particularly if peers were carefully selected and opportunities for 1:1 learning were available), would also work for Student, unless he was otherwise emotionally dysregulated.  The educational program proposed in an IEP need not be “the only appropriate choice or the choice of certain selected experts, or the child’s Parent’s first choice, or even the best choice”[76].  Moreover, Ms. Alton-Moore confirmed that despite groups with 8 students, the staff-to-student ratio both in the school and in the residence was never greater than 2:1, which is smaller than what Perkins offered Student.  Mother learned of this ratio on her tours, and again in Mr. Duquette’s October 23, 2024, email.  Both Mr. Duquette and Ms. Alton-Moore credibly testified that despite the total number of students in the classroom, sufficient staff support was available to meet Student’s needs and would always be provided throughout the day.  I also credit Mr. Duquette’s testimony that based upon Student’s social nature, and Evergreen’s model of having their residential students grouped together both in the classroom and in the residences, Student would have benefitted from the structure of this grouping as it would have supported his ability to create friendships and form bonds with his peers.  Thus, Evergreen’s class size did not render the placement inappropriate. 

With regard to the consultative model for SLT and OT services, while Student clearly benefits from direct OT and SLT services, I do not find that Evergreen’s consultative model would have deprived Student of a FAPE.  Both Ms. Alton-Moore and Mr. Duquette explained that under Evergreen’s consultative model, licensed SLPs and OTs oversee, train, and monitor the provision of their respective services, although direct support in these areas is provided by all Evergreen staff embedded throughout the day.  Nothing about Student’s OT and Speech goals and objectives, as written, necessitates that they only be directly provided by staff licensed in these areas, despite the Stay Put IEP’s service delivery grid specification for such providers.  Further, daily embedment of these services supports both Mr. Fedoruk’s and Ms. Veroneau’s testimony that Student would benefit from having more opportunities throughout the week to receive services in these areas.  I also agree with Mr. Duquette that given Student’s age, moving away from individual direct services to the teaching of these skills in his natural environment is an appropriate shift in service delivery and supports generalization of skills.  Thus, I find that Evergreen’s consultative model for SLT and OT services would have provided Student with a FAPE.   

As to Mother’s remaining objections to Evergreen, she did not meet her burden to prove there would be an overall decrease in services to Student, or that music or ECC supports would be eliminated.  The N1 from the May 22, 2024 Team meeting specifically explained how the A-Grid and C-Grid services of the Perkins 2024 IEP that were not explicitly included in the Evergreen IEP service delivery grid would be addressed and provided at Evergreen.  Further, as compared to the Perkins 2024 IEP, Evergreen would have provided the same or slightly greater amounts of services to Student (not accounting for the changes due to the consultative model for SLT and OT), except for providing half an hour less of APE and PT services weekly and requiring all his counseling services to be provided by non-Evergreen staff therapists.  A decrease of half an hour of APE and PT services does not otherwise make the Evergreen IEP inappropriate, particularly as Evergreen confirmed it would reassess and adjust service delivery based upon Student’s needs and presentation once he began attending. 

With regard to the ECC concerns, Ms. Alton-Moore testified, in response to Mother’s questions, that Evergreen’s model allows it to meet the ECC support Student needed, and that if staff needed training, they would consult with their TVI in order to obtain such training.  Finally, with respect to music therapy, while music is clearly an important and essential aspect of Student’s educational program, he does not require it to receive a FAPE.  Ms. Potter credibly testified that while Student’s educational program must ensure access to music opportunities, music therapy per se is not essential for Student, and the N1 reflecting the May 22, 2024 Team meeting explains that music therapy would have been addressed via related services consultation and during educational service time.  Thus, I conclude that Student would have received a FAPE at Evergreen.

2. Compensatory Services

Having determined that a placement at Evergreen would have provided Student with a FAPE[77], I turn now to the question of whether Student is entitled to and owed compensatory services between the time he stopped attending Perkins and the proposed start date of July 1, 2024, at Evergreen. 

1. Student’s Entitlement to Compensatory Services

The District points to Perkins’ conditional offers of interim services to have Student continue as a day student or to educate Student virtually, with Perkins providing support and equipment, both of which Parent declined[78], and argues that since these offered services were appropriate and would have provided a FAPE, Student is not entitled to any compensatory services.  However, considering the specific facts and circumstances in this matter, I find that Mother had good cause to decline Perkins’s conditional interim offers.  First, some of the conditions imposed by Perkins, particularly the refusal to allow Mother to communicate with Perkins staff if virtual services were provided, were punitive and highly restrictive.  Further, Mother’s overall concerns with Perkins’ medication errors in 2023, and the medication error that occurred on January 24, 2024 (following which Perkins pursued an emergency termination of Student, based upon an unsupported claim that Student was a danger to himself and others), are legitimate.  While I do not doubt that after discovering the medication errors over the 2023-2024 holiday break, Mother engaged in inappropriate and extensive communications with Perkins that were also likely threatening and hostile, Perkins responses were Mother-focused rather than Student-driven[79].  Perkins refused to pursue alternatives to repair its relationship with Mother, including declining to access the District’s offered assistance.  Thus, while Perkins’ interim service offers, on their own, would not have justified Mother’s rejection, given Perkins other actions and inactions at this time, and her concerns and mistrust around Perkins’ ability to properly educate and support Student and maintain his safety, Mother’s rejection was reasonable.  As such, the period of viability of the compensatory services claim is January 24, 2024, through July 1, 2024. 

2. Calculation of Compensatory Services and Equitable Considerations

The District further argues that its ongoing, consistent efforts to pursue services for Student, resulting in offers to provide/provision of interim home services since his termination at Perkins, more than met any compensatory education it owes.  Compensatory education is an equitable remedy, and any award is discretionary[80].  Should compensatory services be warranted, they must be “equal in time and scope” to what an eligible student otherwise would have received[81].  Here, applying either of the recognized approaches, discussed supra, to calculate the equitable amount of compensatory services owed[82], I conclude that the District has met its compensatory service obligation to Student[83]. 

First, I note that the calculation of compensatory services is made based upon the Stay Put IEP and the approximately 5-month period (approximately 20 school weeks) between January 24, 2024, and July 1, 2024.  While it is not disputed that the District could not replicate a residential educational program at home, it did closely approximate most of the Stay Put IEP services, given the multitude of interim home services provided to Student, as outlined on the January 29, 2025 N1, inclusive of the TVI services not included on this N1.  Since services were occurring in the home with Parent present and all providers were continually discussing and consulting with Parent as to Student’s needs, services, and supports, all of Student’s A-Grid consultation services were in fact provided.  As to his C-Grid services, the invoices submitted by the District and the testimony of the relevant witnesses demonstrate that Student was provided with sufficient services to meet the direct service hours he was entitled to in the designated C-Grid areas for this approximately 5-month/20 school week period.  Specifically, the District funded services from an OT (supported by Mr. Fedoruk’s testimony), a SLP (supported by Ms. Veroneau’s testimony), a PT (supported by Ms. Kerls’ testimony), a Counselor, a TVI (supported by Ms. Boothroyd’s testimony), an O&M Specialist (supported by Ms. Ellis’ testimony), and special education teachers[84].  In fact, many of these services were provided beyond the compensatory time Student was owed[85]. 

Additionally, the District funded substantial services provided by Ms. Shaughnessy and Mr. Lewis, although no direct behavioral or paraprofessional services are included in the Stay Put IEP.  Mother credibly testified that both of these individuals assisted with Student receiving his ECC supports, and this is further supported by Mr. Lewis’s job description included in the January 29, 2025, N1.  These additional services, combined with the surplus services delivered by the other providers, fulfill the remaining services Student was entitled to receive pursuant to the Stay Put IEP during this time.

Moreover, Student’s progress, during this period (as evidenced by the comprehensive Progress Reports submitted by the interim service providers) was similar to the progress he made at Perkins.  According to the Stay Put IEP, while at Perkins, Student made expected progress and would meet certain goals albeit not all objectives in all goal areas.  Further, Student’s January 26, 2024 Progress Report reflected Student making adequate progress towards most objectives, mastering one objective and having emerging skills for three objectives while at Perkins.  The interim service Progress Reports demonstrate that Student’s overall skill development remained consistent during this time[86]. 

As to equitable considerations with respect to an award of compensatory services, here, Mother contends that the District acted inappropriately, particularly in filing for injunctive relief to place Student at CMS.  She believes this action was purposefully intimidating and violated her legal consent rights under the IDEA.  Additionally, she objects to the record not being impounded until one business day after the filing was made[87]. 

Injunctive relief is a legitimate legal option which should only be used in extreme and unusual circumstances.  I find that such circumstances existed in the instant matter at the time the District sought such relief.  The District filed for injunctive relief on the day that another potentially viable and appropriate residential program (CMS) had indicated was its deadline to preserve a spot for Student’s placement, and only after Parent had again failed to respond.  Based on the referral and placement search process that the Parties had undertaken as of that date, the District had a justifiable expectation that it would not be able to identify a third residential educational program for Student for many more months, years, or possibly not at all.  Moreover, the District took the extraordinary step of funding a placement spot at CMS (that Student never ultimately accessed), after pursuing this judicial process, in the event Parent ultimately agreed to place Student there.  Further, Student’s interim services were difficult, if not at times impossible to maintain, despite the District’s expenditure of substantial resources, time, and effort. 

The District contends that Mother’s refusals, actions, and inactions justify a denial of all compensatory services.  I disagree that Mother’s responses to the District’s proposed placement referrals were wholly improper, despite being slow and at times requiring multiple reminders.  I also do not find that Mother significantly delayed the referral process and tours at Evergreen, BCC or CMS, as her reasons for needing to reschedule were facially valid.  However, throughout these proceedings, Mother’s verbal and written communications responding to placement and service offers, while expressing her legal consent rights, were often emotional and alienating.  Her emails to the District were at times excessive, hostile, legally threatening and argumentative. While these communications reflect Mother’s strong advocacy style, they did not always serve Student’s best interests.  The record does not support the District’s contention that Mother was motivated by a conscious desire to delay locating a new educational program for Student, however, her stated goals were sometimes questionable.  Evidence in the record demonstrates instances where Mother used the educational placement process to inappropriately attempt to force the District to make substantial monetary payments to her or people she knew (i.e., her then-partner, and/or Ms. Shaughnessy).  Specifically, Mother’s series of emails on May 24, 2024, and her emails of May 28, 2024, and May 31, 2024, are concerning.

Further, Mother’s request for reimbursement for her alleged payments to Mr. Lewis and her testimony surrounding this are questionable.  The handwritten note that Mother contends Ms. Lewis signed, reflecting over $18,000.00 she claims she paid him in cash, is insufficient to support any award of reimbursement to Mother for these services, even if I had otherwise found that Student was owed compensatory BT services, which he is not.  The record reflects instances where Mother appears to be in desperate need of funding, such as her demands for the District to make their agreed-upon payments “today” towards the costs of the CDC evaluation, her multiple emails asking if printer ink that she had requested the District purchase for her had been received yet, or her complaints that the reimbursement process for the field trip expenses and Ms. Shaughnessy’s services were taking too long.  Yet, Mother inexplicably testified that she maintained over $18,000.00 in cash in her home, allowing her to pay Mr. Lewis over a two-month period.  Thus, while Mother’s love and care for Student and his educational needs and well-being were evident, and she is undoubtedly Student’s greatest advocate, she was not credible with regard to her testimony about the services Student did and did not receive, or payments she may or may not have made to service providers.  Mother’s actions in this regard took up time and resources the District could have otherwise used to find new school placements and interim service providers for Student and hindered the District’s ability to fulfill its obligations to him.   

As such, I find that Student received all services to which he was entitled under the Stay Put IEP during the compensatory timeframe.  Student’s demonstrated skill development was consistent with his prior skill development at Perkins.  Mother’s actions surrounding her attempts to secure monetary payments or reimbursement from the District impeded the District from meeting its FAPE obligations to Student.  I, therefore, conclude that under either a “day-for-day”, or a “totality of circumstances” approach, Student is not owed any further compensatory services.

3. DDS Claims

Turning last to Parent’s claim that Student is owed services by DDS, I note that according to MGL c. 71B, § 3 the BSEA “ … may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided by the … department of mental retardation [now the department of developmental services], …, in addition to the program and related services to be provided by the school committee”[88].  Here, therefore, I consider DDS’s obligations, after accounting for both Student’s current attendance at a day program, pursuant to the Parties’ Temporary Placement Agreement, and my conclusions with regard to his entitlement for compensatory services, above.

Ms. Hershey was a knowledgeable and credible witness who testified with great specificity about the available supports (and the limits thereof), that DDS offers.  However, the evidence indicates that there may be additional services and supports that DDS or its vendors could provide that have not been fully explored.  Specifically, Ms. Hershey confirmed that the amount of skills training Student could access from the DESE/DDS program has not been clarified both as to whether more than 6 hours weekly of such services are available this fiscal year and/or if additional skills training services are available next fiscal year.  According to Ms. Hershey, these skills training services could be provided by a staff person identified by Ascentria.  Thus, unlike other DDS services, such as flex funding or respite care, Parent does not have to be responsible for locating a provider.  Further, although 44 hours of Family Support Navigation from Ascentria were approved for this fiscal year, inexplicably it appears the last time these services were provided was over a month before the Hearing. 

Both the skills training services in the home, and the assistance of Family Support Navigation would have assisted and will continue to assist Student in accessing FAPE.  The delay in providing or clarifying these available services seems to lie with both Parent and DDS’s vendor.  Thus, I conclude that additional, regular, and consistent oversight and coordination by DDS is necessary to address the miscommunication that appears to have plagued the existing interactions between Mother and Ascentria.  To the extent that the status and available amount of such services remains unclear, DDS should forthwith confirm, either directly, or via its vendor, Ascentria, how many hours of skills training Student is eligible to receive this fiscal year and next fiscal year and also provide Parent with the name and contact information of specific personnel who can perform these services.  Further, DDS should forthwith coordinate with Ascentria to establish a bi-weekly schedule for them to provide Family Support Navigation services to Parent and Student within the allocated hourly budget for each fiscal year[89].  I, therefore, conclude that additional DDS oversight is needed to implement the DDS services available to Student, particularly the joint DESE/DDS program services.

Finally, I want to underscore and commend Mr. Duquette’s actions throughout this matter as he remained FAPE-focused and dedicated to finding both permanent placement and interim service solutions for Student.  While the District’s overall efforts were exemplary, the record clearly demonstrates Mr. Duquette’s Herculean efforts, time and attention both in pursuing multiple new appropriate educational school programs, while also soliciting, hiring and managing a multi-staffed interim home service program for Student for 15 months.  At all times Mr. Duquette maintained a responsive, courteous, and collaborative approach with the family, interim service providers, and potential program staff.  In addition to proactively and consistently reaching out about Student, he continually and professionally replied to all (even inappropriate) communications from Mother, reinforcing his demonstrated and ongoing care and focus on Student’s educational needs. 

ORDER:

The Evergreen IEP was developed appropriately, and Student would have received a FAPE at Evergreen.  Student is not owed any compensatory services, as any services he would have been entitled to have already been provided.  Additional DDS oversight must be provided to support implementation of the DDS services available to Student, particularly the joint DESE/DDS program services, consistent with this Decision.

Respectfully submitted,

By the Hearing Officer,

/s/ Marguerite M. Mitchell

Marguerite M. Mitchell

June 30, 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 for review in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts. 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).

Confidentiality

In 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]   Ms. Shaughnessy withdrew with the allowance of the Hearing Officer, and Parent’s consent, prior to the start of the third day of Hearing due to unexpected personal reasons.

[2]   Exhibits P-2 and P-4 were initially admitted, but Parent later withdrew them as they were mislabeled in the Index, and the District had submitted these same documents in its exhibits.  Also, as P-7 and P-7A are duplicative documents, for consistency I only rely on P-7 in this Decision. 

[3]   Parent contends she was given less than one day to respond to the IEP.

[4]   I have carefully considered all evidence presented in this matter.  I make findings of fact, however, only as necessary to resolve the issues presented.  Consequently, all evidence and all aspects of each witness’ testimony, although considered, is not included if it was not needed to resolve said issues.

[5]   This service was to be provided by either a Teacher of the Visually Impaired (TVI) or a special educator.

[6]   It appears this was not sent to Mother until July 18, 2023, although the delay was not explained.

[7]   Ms. Spiesz (f/k/a Ms. Guerrero) has a bachelor’s degree in human development and family studies with a concentration in early childhood education and development, and an educational specialist degree in school psychology.  She is a licensed School Psychologist in Massachusetts and has worked in this capacity at Perkins since June of 2019.  (S-47, Spiesz V2, 199-201).

[8]   The volume of emails and calls from Parent at this time caused Perkins to establish a communication protocol with her.  (Duquette V2, 36-37).

[9]   Parent subsequently filed a complaint with the Department of Elementary and Secondary Education’s (DESE’s) Problem Resolution System (PRS) about Perkins’ termination of Student and PRS determined that Perkins followed proper procedures.  (Mother V4, 23).

[10]   Mr. Duquette has a master’s degree in special education and a certificate of advanced graduate studies (CAGS) in educational leadership.  He has taught at private approved residential schools, worked in their residences, and also supported their students when they attended public schools.  He also taught in public substantially separate special education programs at the elementary and high school levels, and as an inclusion liaison teacher.  He has been the District’s high school level student support leader, and the Assistant Director of Special Education for the past three years.  (S-47; Duquette V2, 9-15).

[11]   Mother had also worked at Evergreen as a nurse on a contracted basis through an agency, in 2007 or 2008.  (Mother V4, 66-67).

[12]   Ms. Alton-Moore holds a master’s degree in public administration specializing in non-profit management, and is a BCBA, licensed Behavior Analyst and licensed Social Worker.  She has worked at Evergreen for ten years, two in her current position.  In her role, she oversees the day-to-day operations of the residential program, including the school and residential elements, admissions and the family services department.  She also supports the therapy and health services departments.  (Alton-Moore V4, 117-18).

[13]   Ms. Boothroyd worked at Perkins over 20 years agon and has been an itinerant TVI for Carroll for the past five years.  She had previously supported another student in the District before working with Student.  Ms. Boothroyd was also familiar with Parent as she had supported another student in Parent’s home in the past.  She has a master’s degree in intensive special needs and early intervention and as a teacher of students with visual impairments.  She holds licensure and certifications to support students with intensive special needs, deaf, blind, early intervention, teacher of students with visual impairments and blindness, rehabilitation and vision rehabilitation therapy.  (Mother V2, 285-86; Boothroyd V3, 154, 156-57, 162-63, 168-69, 171-73).

[14]   Student’s father, who was estranged from Student, had filed an objection to Mother being named as Student’s legal Guardian.  At Mother’s request, Mr. Duquette wrote a letter in support of her appointment to the Probate Court.  Mother was ultimately appointed as Student’s permanent legal Guardian in the fall of 2024.  (Duquette V1, 222; Mother V2, 267-68).

[15]   CDC is a non-profit agency supporting blind and visually impaired individuals through job training, employment, independent living, technology training and community services for both students and adults.  Parent believes it will provide Student with a seamless transition upon turning 22.  Parent asked the District to fund her trip for a two-week trial.  The Parties attempted to negotiate a resolution involving such funding as a form of compensatory services, but they were not able to reach agreement.  Student did attend this two-week trial and has been accepted at CDC.  CDC is not a school, however, and the guardianship uncertainty did not allow Student to move out of state at the time he participated in the two-week trial.  (S-14; S-40; S-41; Duquette V1, 148-50; Mother V2, 279-82, 288; V4, 28, 67-69).

[16]   Ms. Kerls has worked as a licensed PT in a public-school setting since at least 2013, supporting Pre-Kindergarten to age 22 students, performing PT evaluations, providing direct services, writing PT goals and objectives for IEPs and participating in Team meetings.  She holds a master’s degree in physical therapy.  (S-47; Kerls V3, 56-58).

[17]   Counseling in the Perkins 2024 IEP was proposed to address Student’s Self-Regulation Goal that targeted Student identifying and labeling levels of anxiety and yellow zone emotions (from the Zones of Regulation curriculum) with increased independence. Evergreen planned to address this goal during Student’s educational and residential services by his teachers and residential staff.  (S-13; S-15).

[18]   Student was still receiving this service as it was provided for in the Stay Put IEP.  No evidence or testimony was presented at the Hearing to explain why the Perkins 2024 IEP had proposed to remove this service. 

[19]   Perkins operated on 25-minute and 50-minute service blocks.  Evergreen operates on 30-minute and 60-minute service blocks.  I do not consider the difference in these service blocks to be meaningful.

[20]   Ms. Alton-Moore explained that at that time, and since the COVID pandemic, wait lists for residential programs across the state were “pretty significant”.  This continues even today due in large part to the lack of available staffing resources to support the student population’s needs.  At any given point Evergreen had approximately two dozen outstanding referrals for students perceived as appropriate for the program.  (Alton-Moore V4, 128-29). 

[21]   This was the fourth email Mother sent Mr. Duquette that day.  The first email did not mention the Evergreen placement at all.  Instead, she asked Mr. Duquette to inform her of the “monetary value of [Student’s compensatory] services and what percentage of it will be used to explore educational opportunities in Florida.” She indicated that she needed the “funding released today” and asked for a response about hiring an aide for “this homeschooling situation” as her then-partner needed to return to work, and neither she nor he was being “compensated for the use of my home as a school”.  She also noted that Ms. Shaughnessy was present that day to assist Student.  Mother’s second email mentioned that she was being pressured to accept the Evergreen IEP although she had just received the Service Delivery grid the day before.  Mother also wanted confirmation on funding for the CDC evaluation “today” and requested that Ms. Shaughnessy be hired “on the payroll” as Student’s aide.  Mother’s third email indicated that the District was “backing [her] into a corner”, Student was owed compensatory services “either by provision or monetarily and [she] ask[ed] for it to be monetarily presented …”.  Mr. Duquette responded to the third email, reiterating that he believed Student belonged in a school placement and recommending he attend Evergreen when the placement was available.  Mr. Duquette reiterated the interim training and preparations that the District and Evergreen would engage in for Student to attend Evergreen successfully.  He offered to send a draft proposal the following week for the District to fund the CDC evaluation in Florda as compensatory services, advising that while the District “hope[s] to work with you to come to an agreement on that issue, [ ] it should not delay your Evergreen placement decision. … I intend to continue working collaboratively with you as we work to support [Student]”.  Several other similar email exchanges took place between the parties on May 28, 2024, and May 31, 2024, containing similar content and tone by Parent, involving Parent’s ongoing focus and insistence she be given a cash payment for Student’s compensatory services.  (S-40; S-41; Duquette V2, 64-67).

[22]   Mother subsequently rejected a renewed referral offer to Evergreen that Evergreen revisited on October 23, 2024.  At that time, Mr. Duquette had emailed Parent with regard to Evergreen’s response to her concerns with the program, while also confirming that Evergreen could not adjust classroom sizes, although the student to staff ratio was 2:1 in all environments (school and residences) and 1:1 when students worked on ADLs.  He also confirmed that the SLT and OT services were offered only on a consultative basis not as direct services.  (S-37).

[23]   Mr. Fedoruk holds a bachelor’s degree, an advanced master’s degree and doctorate in Occupational Therapy, specializing in pediatrics and evidence-based practice.  He has worked as an OT for over 27 years, primarily for school systems providing direct intervention, and performing evaluations to determine eligibility for services.  He has taught OT at the college level for over 20 years and has owned and operated a private practice (Sensation Station) for the past 14 years, primarily providing outpatient services to children ages 0 to 21 years. Mr. Fedoruk is a certified Occupational Therapist in Connecticut, Rhode Island, Massachusetts and Canada.  (S-47, Fedoruk, V1, 48-51).

[24]   Ms. Spiesz had also recommended an FBA for Student in her 2023 Evaluation.  Despite the Team supporting this at the February 1, 2024 Team meeting, using the behavior models of Perkins, it was not pursued at that time in light of the placement situation.  (Spiesz V2, 213-14; Mother V4, 31).

[25]   According to the Invoices for Ms. Bozzuto’s services, the District paid for her services on July 26, 29, 30 and 31 and on August 1, 2, 5, 6, 7, 8, and 9, 2024 for a total of $4,590.00.  (S-30B). 

[26]   None of the OT invoices note any services missed by Student.  (S-30A)

[27]   Ms. Shaughnessy was Parent’s friend who also appeared as her advocate for the first 2 days of Hearing, but as noted supra, then withdrew for personal reasons.  She did not testify.  (Duquette V2, 126-27).

[28]   Ms. Ellis has a master’s degree as an O&M Specialist.  She has been licensed as an O&M Specialist Teacher for 17 years.  She worked in this capacity in public schools and for the Carrol School for the Blind, and she is on retainer at Brown University.  (Ellis V2, 229, 231-32).

[29]   Ms. Veroneau holds a master’s degree in speech language pathology.  She is a certified speech language pathologist with a Certificate of Clinical Competence through ASHA.  She has worked for Sensation Station for two years, first as a clinical fellow and this past year, as a speech therapist.  She has a caseload of approximately 50 students from young ages through age 21, working on speech language and social skills.  She has never worked in a public-school setting (except for a 12-week graduate school practicum at an elementary school) or in an approved residential school.  (S-47; Fedoruk V1, 70-72; Veroneau V3, 198-201).

[30]   Ms. Collins claimed the additional hours were “family cancellation” times as she was also a provider of services to another student in the home who was not then present as he was hospitalized.  (S-30G).

[31]   Mr. Duquette had also taken such action upon learning of the hospitalization for Student’s broken finger.  No information about the outcome of this report was provided by either Party.  (Duquette V2, 132).

[32]   No mention is made in this list about the services Student received from his TVI, Ms. Boothroyd.  (S-8).

[33]   As this analysis is made for compensatory service purposes, unlike the comparison of the Evergreen IEP to the Perkins 2024 IEP that was being analyzed for FAPE purposes, I strictly compare the Stay Put IEP service minutes to the interim home service minutes.  Thus, the Stay Put IEP’s provision of 13 x 50 minutes weekly of education services amounts to 650 minutes of education services per week, while Student was receiving 660 minutes (11 hours) of special education teacher support at home.  (S-8; S-18).

[34]   Ms. Ellis explained this was recommended as 1 x 60 rather than 2 x 30 minutes of services due to Student being at home at that time.  Once Student returned to a school setting, Ms. Ellis believes a 2 x 30 service delivery model would be preferable, as it would provide him with more opportunities to work with the O&M Instructor.  (Ellis V2, 236-37).

[35]   Parent felt that the District’s action in filing with the Superior Court was an unreasonable attempt to force her to accept a placement at CMS, which she could not feasibly do as Student’s Roger’s Orders needed to be amended and her request that Student have a nurse involved in all transportation to administer his epilepsy medication if needed was not yet resolved. Moreover, she had overall concerns with the distance. Parent objected to the District’s failure to impound the pleadings at the time of filing, although the District corrected this error the following business day.  (P-5A; P-5B; Mother V3 36-43).

[36]   This service delivery grid was the service delivery grid from the Stay Put IEP with an additional column added entitled “Comment/Changes” reflecting whether the service was available at BICO or not, and explaining how the service would be provided, or why it was not available.  (S-3).

[37]   It is unclear if any of this money was for Student, as another student is also identified on the flexible Funding Request Form.  (D-3).

[38]   Ms. Hershey made a referral to this program rather than to IFFS at this time because there was no specific focused goal that Student needed support in reaching, as IFFS requires.  Rather he had overall wraparound support needs.  (Hershey V3, 121-25, 130-32).

[39]   Services did not begin until April 4, 2025, when Parent began accessing 6 hours of skills training weekly with her own provider, Ms. Shaughnessy.  Ms. Hershey explained this delay was due to miscommunication and Ascentria’s inability to connect with Parent when the service was initially approved.  Ms. Hershey was unaware that Ascentria had contacted Mother during the Hearing and asked to meet on days Mother was participating in the Hearing.

[40]   According to the Invoices for Ms. Collins’ services she billed for a complete workday on the day of this community outing.  (S-30B; S-38).

[41]   Ms. Boothroyd explained that based upon her limited knowledge of ABA, which she understood to be vision-based, and her knowledge of Student’s disabilities, she would not support Student being trained or provided with direct ABA services, but she would support the use of ABA principles of routine, consistency and schedule with Student.  (Boothroyd V3, 152-59).

[42]   I only account for Student’s services with regard to these Invoices, as based upon other evidence in the record, it appears the Invoices include services given to Student and another student.    (S-8; S-30B; S-48).

[43]   The January 29, 2025 N1 indicates the District provided Student with 11 hours of special education teacher support a week.  Thus, I only account for this amount of time on the Invoices submitted although more hours are shown that appear to be for another student.  (P-7B; S-8; S-30B; Duquette V2, 143-44).

[44]   Mr. Lewis previously worked with Student as a BT at Perkins, and Mother learned of his availability to support Student at her home in December 2024.  (Mother V3, 30).

[45]   Although Mr. Lewis at times would spend the night, he never provided overnight care according to Mother but stayed only for his own convenience due to lack of a personal car and a lengthy public transportation process.  Mother claims Mr. Lewis only provided BT services 8 hours a day.  (Mother V4, 48).

[46]   See Honig v. Doe, 484 US 305, 311 (1988) (“Congress repeatedly emphasized throughout the [IDEA] the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness”); Bd. of Educ. v. Rowley, 458 US 176, 205 (1982) (“Congress placed every bit as much emphasis on compliance with procedures giving parents and guardians a large measure of participation in every stage of the administrative process . . . as it did upon the measurement of the resulting IEP against a substantive standard”). 

[47]   Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 54 (1st Cir. 1992); see Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990).

[48]   20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); see Roland M., 910 F.2d at 994 (“[b]efore an IEP is set aside, there must be some rational basis to believe that procedural inadequacies compromised the pupil’s right to an appropriate education, seriously hampered the parents’ opportunity to participate in the formulation process, or caused a deprivation of educational benefits” (citations omitted)).

[49]   In Re: Anchorage Sch. Dist., 112 LRP 22775 (AK, 2011) citing B.V. v. Dep’t of Educ., State of Hawaii, 451 F. Supp. 2d 1113, 1132 (D. Haw. 2005), aff’d, 514 F.3d 1384 (9th Cir. 2008) (“although parent disagreed with the decisions, education officials discussed parent’s concerns and considered [] views; the IDEA requires nothing more from a procedural standpoint”); see Sch. Comm. of Twn. of Burlington v. Dept. of Ed. of Mass, 471 US 359, 379 (1985). 

[50]   20 USC 1400, et seq.; M.G.L. c. 71B; 34 CFR 300.000, et seq.; 603 CMR 28.00 et seq; see 20 U.S.C. §1400 (d)(1)(A) (The first purpose of the IDEA is “to ensure that all children with disabilities have available to them a [FAPE] …”).

[51]   20 USC 1401(9), (26), (29); C.D. v. Natick Pub. Sch. Dist., et al., 924 F.3d 621, 624 (1st Cir. 2019), quoting Fry v. Napoleon Cmty. Schs., 580 US 154, 158 (2017).

[52]   20 U.S.C 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i); M.G.L. c. 71 B, §§ 2, 3; 603 CMR 28.01 and 28.06(2)(c).

[53]   Endrew F. ex. re. Joseph F. v Douglas County Sch. Dist., RE-1, 580 US 386, 399-400, 403 (2017); see Johnson v. Boston Pub. Schs., 906 F.3d 182, 194-95 (1st Cir. 2018) (holding that Massachusetts’ “meaningful educational benefit” standard adopted by the 1st Circuit in D.B. v. Esposito, 675 F.3d 26 (1st Cir. 2012), comports with the Endrew F. standard).

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

[55]   C.G. and B.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 284 (1st Cir. 2008) quoting Rowley, 458 U.S. at 207; see Endrew F., 580 US at 399-403.

[56]   Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d 79, 84 (1st Cir. 2012); Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993); Esposito, 675 F.3d at 34.

[57]   G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1^st Cir., 1991).

[58]   Lenn, 998 F.2d at 1086 citing Rowley, 458 U.S. at 198; Roland M., 910 F.2d at 992; see E.T., a minor, by his parents v. BSEA, 169 F. Supp. 3d 221, 229 (D. Mass. 2016).

[59]   Roland M., 910 F.2d at 992.

[60]   In Re: Hampshire Reg.l Sch. Dist., BSEA No. 2103975, 27 MSER 227 (Kantor Nir, 2021) citing In Re: Dennis-Yarmouth Reg.l Sch. Dist., BSEA No. 03-4447, 10 MSER 64 (Putney-Yaceshyn, 2004) (districts have discretion to “determine the appropriate methodology of the education services so long as the student is able to make meaningful and effective progress”) citing E.S. v. Indep. Sch. Dist., No. 196, 135 F.3d 566, 569 (8^th Cir. 1998) (“As long as a student is benefiting from her education, it is up to the educators to determine the appropriate methodology”); see Rowley, 458 US 208. 

[61]   C.G., 513 F.3d at 290 (“Compensatory education is a surrogate for the warranted education that a disabled child may have missed during periods when his IEP was so inappropriate that he was effectively denied a FAPE” (citations omitted)).

[62]   Florence Cty. Sch. Dist. Four v. Carter, 510 US 7, 16 (1993); Johnson v. Bos. Pub. Sch., 201 F.Supp.3d 187, 202 (D. Mass. 2016), aff’d, 906 F.3d 182 (1st Cir. 2018) (“compensatory education may be awarded; however, [it] is ‘not an automatic entitlement but, … a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA’” (citations omitted)).

[63]   See C.G., 513 F.3d at 286, citing Roland M., 910 F.2d at 995; In Re: Haverhill Pub. Sch., BSEA No. 2005314, 26 MSER 176 (Berman, 2020) (“Hearing officers may deny compensatory services if parents unreasonably obstruct the IEP process or otherwise interfere with the ability of the school district to fulfill its obligations”).

[64]   Dracut Sch. Comm. v. BSEA, 737 F. Supp.2d 35, 55 (D. Mass. 2010) quoting Puffer v. Raynolds, 761 F.Supp. 838, 853 (D.Mass.1988).

[65]   Arroyo-Delgado v Dep’t of Educ. of Puerto Rico, 2018 WL 3491673, *4.

[66]   I.J. v. Portland Pub. Sch., 2016 WL 5940890, *5 (D. Me., 2016) adopted report and recomm., 2016 WL 7076995 (D. Me. 2016).

[67]   Arroyo-Delgado, 2018 WL 3491673, *4

[68]   Schaffer v. Weast, 546 US 49, 56-57, 62 (2005).

[69]   Id. (placing the burden of proof in an administrative hearing on the party seeking relief).

[70]   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.

[71]   The only exception is whether at the time he attended Perkins, he required what Parent termed, “full-time” residential services.

[72]   Rowley, 458 US at 206. 

[73]   20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); see Roland M., 910 F.2d at 994.

[74]   Student’s start date at Evergreen was July 1, 2024, more than 30 days from when the Evergreen IEP was presented to Mother, thus she would have had a full 30 days to review and request revisions to this IEP. 

[75]   Mother was fully aware of these issues having strongly objected when Student’s initial spot at Evergreen was lost.

[76]   G.D., 930 F.2d at 948.

[77]   As I find that Evergreen would have provided Student with a FAPE, it is unnecessary for me to address if CMS would have done so too.  However, as much of the same analysis I apply to Evergreen similarly applies to CMS, Student would have also received a FAPE there. 

[78]   Mother always has the legal right to accept or reject any services or placement, but just as with the Evergreen placement, if I find any such service offers sufficient to provide Student with a FAPE on an interim basis, the District would not be liable for compensatory education after such offer was made.

[79]   Additionally, even prior to the January 24, 2024, incident, shortly after Mother’s allegations regarding the medication error and her hostile communications, Perkins pursued a planned termination of this long-term, high needs student relying on a questionable justification of an increase in the number of his medications.

[80]   Florence Cnty., 510 US at 16; Johnson, 201 F.Supp.3d at 202.

[81]   Dracut, 737 F. Supp.2d at 55.

[82]   See Arroyo-Delgado, 2018 WL 3491673, *4

[83]   See In Re: Westborough Pub. Schs. and Ric, BSEA No. 18-09434, 24 MSER 196 (Oliver, 2018) (concluding that compensatory services, as they are an equitable remedy, are not owed after a new school placement was located and “but for Mother’s actions Ric would currently be enrolled [in and] receiving FAPE” as no other placement was available, and the district “to the extent possible” provided a FAPE to the student).

[84]   Given that these licensed and highly qualified interim service providers supported Student on school-based goals in a non-school setting and recognizing staffing challenges impacting the Commonwealth across all specialties, I take this opportunity to note that all of the interim service providers who testified were professional, dedicated and well-versed in their field of expertise.  They demonstrated creativity, care and concern for Student’s educational and related service needs. 

[85]   For instance, Student was entitled to 1000 minutes of OT services (50 minutes weekly for 20 weeks), and he received 1500 minutes of OT services from Mr. Fedoruk (25 hours), for a surplus of 500 minutes.  Similarly, Student was entitled to 1000 minutes of PT services but received 2,235 minutes of PT services from Ms. Kerls (37.25 hours) for a surplus of 1,235 minutes.

[86]   While Mother credibly testified to Student’s deteriorated mental health and his spike in behaviors during November and December 2024, I do not attribute this to lost skills, but rather to the overall lack of placement in a structured educational program; Student’s understandable confusion as to what had happened to his Perkins teachers, friends and peers; and his frustration at receiving all educational services at home for fifteen months.  I note again that Student remained at home for these fifteen months despite having been offered a placement that would have provided him with a FAPE after five months.

[87]   I make no conclusions as to Parent’s claims relating to the District’s failure to impound the record for one business day, as such issue is outside my jurisdiction and Parent did not present any evidence to indicate that this failure had any impact on Student’s receipt of a FAPE. 

[88]   See 603 CMR 28.08(3); In Re: Plymouth Pub. Sch. BSEA No. 06-2584, 12 MSER 33 (Crane, 2006) (internal citations omitted) (interpreting the statutory ”in addition to” language to mean that the services that the human service agency provides in accordance with its rules and policies, must be found necessary for a student to access or benefit from the school district’s special education program “(over and above those services that are the responsibility of the school district)”.  In Re: Fitchburg Pub. Sch. BSEA No. 02-0038, 8 MSER 141 (Byrne, 2002) (A state agency’s involvement in a BSEA matter must be based on a determination that a “free appropriate public education can[not] be developed, delivered, declared or guaranteed without the participation of the state agency …”).

[89]   Should DDS discover there are services approved for Student for this fiscal year that were allocated but not provided, and that can be carried into next fiscal year, consistent with DDS’s policies, this should occur.