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In Re: Pembroke Public Schools v. Student BSEA# 26-00061 

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Pembroke Public Schools v. Student

BSEA# 26-00061

DECISION

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

On July 7, 2025, Pembroke Public Schools (Pembroke or District) filed a Request for Hearing in the above-referenced matter.  Following two requests for postponement of the Hearing, one initiated by the District and one by Parents, both granted for good cause, the Hearing was held remotely on September 22, 2025,[1] before Hearing Officer Rosa Figueroa.  Those present for all or part of the proceedings were:

Parents

Elizabeth Chee, Esq.       Pembroke’s Attorney

Erica Swift                      Pembroke’s Assistant Principal/ Team Chairperson

Jaime Joyce                    Special Education Teacher, Pembroke

Ariana Liakos                  Special Education Teacher, Pembroke

Mallory Hayes                English Teacher, Pembroke

Annmarie Bucca             Behavioralist, Pembroke

Cheryl Larson                 Counselor, Pembroke

Meghan Collum              Secondary Special Education Coordinator, Pembroke

Jessica DeLorenzo          Director of Student Services, Pembroke

Carol Kusintz                   Stenographer, Veritext Court Reporting

The official record of the hearing consists of documents submitted by Pembroke and marked as exhibits SE-1 to SE-21[2], and exhibits submitted by Parents and marked as exhibits PE-1, PE-2, PE-3, PE-4 and PE-6, and recorded oral testimony. 

The record closed on September 22, 2025, following the Parties’ oral closing arguments.  

ISSUES FOR HEARING[3]:

  1. Whether the IEPs promulgated by Pembroke in the spring of 2025, were reasonably calculated to offer Student a free, appropriate public education (FAPE) in the least restrictive setting (LRE) appropriate to meet Student’s needs. 

POSITIONS OF THE PARTIES:

Pembroke’s Position:

Pembroke asserts that the IEP promulgated in the spring of 2025 is reasonably calculated to provide Student with a FAPE.  Because of Student’s significant absences and lack of engagement/ completion of schoolwork when in school, Pembroke has had difficulty understanding what sort of learner Student is and how to best assist him.  This, compounded by Student’s behavioral difficulties led the Team to conclude that Student requires an out-of-district therapeutic placement.  The District seeks a BSEA finding that the IEP proposed in March of 2025 offers Student a FAPE and that the proposed placement constitutes the least restrictive environment (LRE) in which to meet his complex needs.

Parents’ Position:

Parents assert that Student’s attendance at school, participation and behavior have improved since the end of the 2024-2025 school year, which Parents see as a positive pattern.  They attribute Student’s progress to increased support of Student’s mental and physical health, as his diabetes is better understood and managed.  Parents further note the lack of or reduction in suspensions since March of 2025, citing to Student’s desire to remain in the general education setting as motivation for him to continue to do well. 

While Parents are not opposed to the District forwarding referral packets on behalf of Student, owing to concerns about proper management of Student’s diabetes they object to any out-of-district placement located an hour or further away from their home.  Parents are also concerned that given that Student will soon turn sixteen years old, a transfer to an out-of-district placement may result in his withdrawing from school as his experiences in that type of setting has not proven positive in the past.

Parents want Student to remain in-district and for Pembroke to assign him a one-to-one aide throughout the day.  In the alternative, Parents seek Student’s placement in a program close to home, that can address his needs appropriately.

FINDINGS OF FACT:

  1. Student is a fifteen-year-old resident of Pembroke, Massachusetts, whose entitlement to special education services is not in dispute.  He has been described as a charismatic, confident, dynamic, bright and funny individual who struggles with significant behavioral dysregulation. (Hayes; Liakos; Mother).
  1. Student has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder, and Disruptive Mood Dysregulation Disorder (DMDD). (PE-6).  Recently, he was also diagnosed with Type 1 Diabetes. (Mother).
  1. Over the past several years Student has attended numerous schools and programs, to wit: Plymouth Public School District (elementary school); Kingston Public Schools (5th grade); South Shore Educational Collaborative Quest Program (5th grade- February 2021 to June 2021); Reads Collaborative (6th grade- August 2022 to December 2022); High Road School (6th grade- February 2023 to May 2023);   home tutored at the end of 6th grade; Silver Lake Regional School District (7th grade August 2023 to September 2024, the beginning of 8th grade); Olentangy Orange Middle School (8th grade- October 7, 2024 to December 2024); and most recently Pembroke Public Schools from January 14, 2025 to the present date.  He has been through the out-of-district placement process four times.  Those placements were either terminated by Parents due to dissatisfaction, or Student was asked to leave due to the placements’ inability to meet his needs. (PE-3). 
  1. Student’s most recent educational, academic, psychological, occupational therapy and functional behavior assessments were completed in the fall of 2023 while he attended school in Silver Lake. (SE-3).  Those assessments found that his cognitive functioning falls within the low-average range, and he is very capable of accessing grade level curriculum. (SE-2).  Student has strong reading abilities but weaknesses in math, writing and executive functioning skills, and  struggles with social, emotional and behavioral dysregulation. (SE-2; SE-3).  Student also presents with difficulties associated with hyperactivity, depression, conduct, aggression and adaptability, and often engages in attention seeking behaviors, all of which negatively impact his ability to access the curriculum. (SE-2).
  1. Student began the 2024-2025 school year, eighth grade, at Silver Lake Regional School District and in October of 2024, transferred to school in Ohio when his Parents moved to that state. (PE-3; Parent). 
  1. In Ohio, Student received special education services consistent with an IEP which offered him participation in a full inclusion program with small group instruction in the intervention room to address written expression, math concepts and applications, and direct instruction in social/ emotional regulation.  The IEP included a behavior plan designed to increase the amount of time Student spent in the classroom, and offered numerous accommodations (SE-21).  The Ohio IEP references previous testing, noting that,

[Student] demonstrates significant challenges with social, emotional, behavioral, and executive functioning that impacts his ability to attend school consistently, as well as to remain in the classroom. Difficulties with hyperactivity, depression, conduct, aggression, and adaptability especially affect his consistent access [to] the curriculum and ability to gain from instruction. An FBA completed approximately a year ago indicated that [Student] engaged in behaviors to seek out attention; however, based on limited experience with him so far, it is believed that he is also significantly struggling to manage his dysregulated emotional responses due to his mood dysregulation disorder and being overwhelmed with emotions that he is struggling to manage when he becomes frustrated, challenged, fearful, or hurt. He has great difficulty accepting help when he feels that it makes him stand out from his peers. [Student] requires high levels of support to be able to help him better manage his needs in these areas so that he can better access the general [education] curriculum. (SE-21).

  1. Student’s grades over the past two years while attending Silver Lake and Olentangy Orange Middle School have been Fs and Ds. (Mother).  While in Ohio, Student was suspended 17 times. (PE-3).  He also had more than ten out of school suspensions while attending Silver Lake. (Mother). 
  1. Student remained in Ohio through December of 2024, and then transferred to Pembroke in mid-January of 2025, when the family returned to Massachusetts.   He enrolled and began attending the second half of his eighth grade in Pembroke on January 14, 2025. (PE-3).
  1. In addition to the services pursuant to the IEP with which he entered Pembroke, Student’s Team convened on January 30, 2025, and found him eligible to receive Section 504 accommodations to address the impacts of his Type 1 Diabetes on “his daily functioning at school.” (PE-2).  
  1. Erica Swift, Assistant Principal in Pembroke and Team Chairperson, is licensed as a teacher of moderate disabilities grades 5 to 12, and as principal assistant for grades 9 to 12. (SE-13).  She testified that Student’s struggles with behavioral issues started on day one, when he was first suspended because of an altercation, and the difficulties continued during Student’s time in Pembroke. (Swift; Hayes). 
  1. Between February 4 and February 13, 2025, Student was placed in partial hospitalization at Pembroke Hospital as a result of an incident at home, reported in school.  He returned to school on February 14, 2025 (PE-1). 
  1. Pembroke’s behavioral incident summary for the period from January 14 to March 24, 2025, reports six incidents for which Student served between one and seven, in school (ISS) and/ or out of school (OSS) suspensions.  These incidents occurred on January 14th, five days OSS; January 14th/ 15th, seven days OSS due to physical altercation with another student and using slurs based on sexual orientation”: March 10th, two days OSS due to incident in the bathroom[4]; March 19th, resulting in an ISS using derogatory language toward a female student; March 21st resulting in a one day ISS for yelling “f—-ing faggot” in the hallway, and later a five day OSS for using inappropriate language toward the principal and making threats of physical violence toward another student[5]; and March 24, 2025, resulting in a ten-day OSS for being verbally aggressive toward the principal and a student, and disregarding directives[6] (PE-1; Swift).  Log entrees for the period through June 3, 2025, by Erica Swift, describe additional incidents on May 9th,[7] May 22nd,[8] and June 3,[9] 2025, two of which resulted in in-house detentions. (PE-1; Swift).
  1. During the period from January 14, through the end of March 2025, Student was the subject of numerous disciplinary hearings pursuant to M.G.L. c.71 §37H3/4 including on March 24, 2025, for the March 20 and 21, 2025 incidents after which, via letter, the School Principal imposed a ten-day suspension during which Student was not allowed on school grounds and could not participate in any school activities. (SE-8).  Because of his special education status, during the suspension Student was allowed an opportunity to “complete assignments, tests, papers and other schoolwork” needed for academic progress through online course access, and tutoring and/ or some combination of both. (SE-8).  A second disciplinary letter from the Middle School Principal, dated March 25, 2025, cites similar incidents and imposes a five-day suspension to be served out of school. (SE-8).  Additional disciplinary hearings occurred on January 14, 15, and on March 10, 11 and 21, 2025, resulting in out-of-school suspensions. (SE-8).
  1. Following two incidents during the month of March 2025, on March 24, 2025, Student’s Team conducted a manifestation determination meeting as Student was facing a fifteen-day suspension, resulting from the March 20 and 21, 2025 incidents involving threats of violence, rudeness, profane or obscene language, disrespect to authority and to others, insubordination, and non-compliance with adult directives.  By then, Student had approximately twenty-five suspensions since his enrollment in Pembroke Community Middle School on January 14, 2025. (SE-2; SE-8).  The Team determined that the disciplinary incidents were not a manifestation of Student’s disabilities over Parent’s disagreement with said finding. (SE-2). 

`

  1. Due to the number of absences Student had since entering Pembroke, the Team determined that additional time was needed for data collection to better address Student’s needs.  The Team convened on March 5, 2025, and finding Student eligible under a category of emotional impairment, developed an IEP calling for participation in a full inclusion program, with push in and pull out services as follows: one hour per month, consultation by the behaviorist; daily services in science, mathematics, English language arts and social studies in the general education setting; and daily learning center support and counseling.  The IEP contains behavior, written language and math goals.  (SE-1).
  1. Student’s Team reconvened on March 26, 2025, and proposed an FBA as well as a home assessment upon learning that Student displayed similar behaviors at home as he did in school.  The Team hoped to better understand Student’s dysregulation and align school-based interventions with home strategies.  The Team also recommended increasing Student’s counseling services to two daily 15-minute sessions to allow the social worker to check in with Student at the beginning and the end of the day and offer more frequent behavioral and emotional support.  The Team also recommended increasing Learning Center support by adding nine, 48-minute sessions per six-day cycle to the previous 48 minutes daily Learning Center services to offer Student increased “small group, individualized direct support and further support academic engagement, work completion and executive functioning.” (SE-2; Swift). 
  1. Opining that Student was not accessing his education in Pembroke, the March 26, 2025, Team determined that Student required a “smaller school environment with less unstructured time, increased availability of therapeutic supports, increased daily behavior support and flexibility with absences” to better address his emotional and behavioral needs while ensuring his access to FAPE.  The Team drafted an IEP calling for Student’s full inclusion in Pembroke for the period from March 5, 2025 to December 19, 2025, with placement in a separate day program to be determined (when said placement became available) for the period from March 26, 2025 to December 19, 2025. (SE-2).  Parent accepted the IEP and placement in full on April 14, 2025. (SE-2).  This is the last accepted IEP appearing on the record.
  1. Jaime Joyce, special education teacher in Pembroke is licensed as a history and social science teacher grades 5 to 8, and 5 to 12[10], and she is certified in moderate disabilities (SE-14).  Ms. Joyce was Student’s eighth grade special education teacher in the Learning Center.  She testified that Student took his time in the Learning Center as “break time”, was escorted out of the room for breaks frequently and missed a great deal of instruction.  When behaviorally regulated, Student was great, but when dysregulated he was unpredictable and it was challenging to keep him under control and keep everyone safe.  He required a great amount of support and yet produced little work (Joyce).
  1. Ariana Liakos, special education teacher in Pembroke, is licensed as an elementary school teacher grades 1 to 6, moderate disabilities teacher grades Pre-K to 8 and 5 to 12, and she holds an endorsement as a Sheltered English Immersion teacher.[11] (SE-15).  Ms. Liakos conducts some of the work in the Learning Center, and she offers push-in services in the mainstream.  She is also a certified Orton-Gillingham reading teacher, and has experience working with students with emotional impairments. (Liakos). 
  1. Ms. Liakos was Student’s special education classroom teacher and she assisted him in his English class.   In April, Ms. Liakos took over Student’s instruction in the Learning Center where he displayed behaviors similar to those in the general education classroom.  Ms. Liakos also attended Student’s Team meetings in March, and later in May and June of 2025. (Liakos).
  1.  Ms. Liakos testified that despite having a good connection with Student, it was very difficult to get work out of him; Student produced only minimal work not commensurate with the work she would expect a student with moderate disabilities to produce. (Liakos).
  1. Mallory Hayes, Student’s eighth grade English teacher in Pembroke is licensed as a grades 8 to 12 English teacher. (SE-16).  She testified that Student did not want to be in class, did not want to participate and it was difficult to keep him on task.  He was distracted and engaged in attention seeking behaviors like calling out for her, using inappropriate language, or using the phone.  Student was not engaging in his course-work and she was concerned that he was not accessing the curriculum. (Hayes).
  1. Cheryl Larson, Middle School Social Worker in Pembroke, is a Massachusetts licensed independent clinical social worker.  She also holds grades 5 to 12 school guidance counselor certification, and school social worker/ adjustment counselor licensure. (SE-18; Larson).  Ms. Larson provided Student counseling services and attended his Team meetings.  Ms. Larson testified that early on she recommended changing Student’s counseling sessions to 2 x 15, to encourage engagement, but he did not engage, instead opting to look at his phone.  She described his initial presentation as restless, irritable, resistant to help and easily agitated.  This however changed somewhat after the 2025 hospitalization during which his medication was changed as Student appeared more settled and for a couple of weeks was more engaged.  After that short interlude, his presentation went back to what it was in the beginning. (Larson).
  1. Ms. Liakos and Ms. Larson, opined that all the IEPs promulgated for Student were designed to offer him a FAPE, and the recommendation for out-of-district placement was warranted as the level of support Student requires cannot be offered in Pembroke. (Liakos; Larson).
  1. Concerned over Parent’s failure to follow through with medical professionals’ recommendations vis-a vis Student’s safety and well-being, on April 14, 2025, Pembroke filed an abuse and neglect report with the Massachusetts Department of Social Services (DCF).[12]  The report notes that

… [w]hile serving 15 days of an out of school suspension from 3/24 until 4/14, due to verbal aggression toward administrators while on an in school suspension, ….   While home on this suspension, he was placed in a partial hospitalization program at Pembroke Hospital due to an event that happened at home. He started there on 4/3 and was administratively discharged as of 4/15 “due to inappropriate behaviors and violation of program rules, including (bullying other peers, dysregulation in group AEB: language, homophobic comments, and inappropriate physical boundaries with other peers”.  Pembrook Hospital recommended that [Student] seek a higher level of care via a CBAT and/ or a therapeutic school. However, Pembroke Hospital was unable to follow through with the referral due to [Mother] refusing to consent.  The case is being closed and Pembroke Hospital shared that they can no longer refer him at that point. (PE-3). 

  1. Email communications between Mother and Michelle Clarke of Wayside, on April 16, 2025, note Parent’s willingness to explore possible out-of-district placement for Student. (PE-4).  However, after initially agreeing to the District’s recommendations and verbally assenting to the District sending out referral packets, Parent later refused to sign the placement consent form and refused the home assessment (SE-2; PE-3).
  1. In April of 2025, Parent forwarded to the District a note from Stephen Ikeda, M.D., dated April 19, 2025, drafted following an appointment with Student on April 17, 2025.  Dr. Ikeda noted that Student was

…fully capable of returning to school at this time and not requiring a partial hospitalization program. In part, [Student] appears to be responding to a new medication for ADHD to help with hyperactivity and impulse control, but also has been demonstrating a new found motivation to remain in school….(PE-6).

  1. Annmarie Bucca, M.Ed., certified LABA, Pilgrim Area Collaborative, Extended Services, conducted a Functional Behavior Assessment of Student on April 14 and 30, May 2 and 5, 2025. (SE-3). Ms. Bucca looked at antecedents impacting Student’s off-task behavior, inappropriate comments/ vocalizations. (SE-3). She indicated that Student’s off-task behavior had a primary function of “attention and access to a tangible with a secondary function of escape”, and his inappropriate comments/ vocalizations a primary function of “attention with a secondary function of escape and access to a tangible”.  In summarizing the results of her four-day observations, she noted that in order to sustain expected behavior, Student required six to seven prompts 32.40% of the time, four to five prompts 16.20% of the time, two to three prompts 18.90% of the time, one or less prompts 21.60% of the time, and he did not respond to prompts 10.80% of time.

To initiate work and to continue working, Student required six to seven prompts 16.20% of the time, four to five prompts 18.90% of the time, two to three prompts 8.10% of the time, one or less prompts 5.40% of the time, and he did not respond to prompts 51.40% of time. 

Regarding percentage of work completed, Ms. Bucca noted that Student completed 0% of his work 54.1% of the time, 100% of his work in all of his classes 2.7% of the time, 75% of his work 5.4% of the time, 50% of his work 10.89% of the time, and 25% of his work 27.0% of his time. 

Lastly, her summary indicates that Student requested daily breaks in each one of his classes at the following rate:  one break 36.10% of the time, 2 breaks 41.7% of the time, 3 breaks 8.30% of the time, 5 breaks 8.30% of the time, and more than 5 breaks 11.1% of the time. He did not request breaks on 2.8% of the time spent in class (SE-3).

  1.  Ms. Bucca’s report reflects that Student is able to navigate the school environment and engage socially with peers.  He reads at grade level, but his academic task avoidance and significant number of off-task behaviors interfere with his overall performance.  Ms. Bucca noted that teachers were primarily worried about Student’s behavior and its impact on his own safety and that of others, interactions with peers, and academic engagement.  The staff reduced the work expectations and supervised Student’s transitions in the hopes of seeing improvement to no avail.  Ms. Bucca reported that on occasion, Student’s diabetes causes him to experience fatigue, nausea and vomiting. (SE-3, Bucca).
  1.  Ms. Bucca opined that, “given the high level of support currently in place for Student, which includes access to the Learning Center, in-class paraprofessional support, monitoring during transitions, and frequent breaks for movement or guidance (averaging 2-3 per class), implementation may not be feasible within a general education setting.  While she offered recommendations for implementation of a Functional Behavioral Plan (FBA) while Student was in Pembroke, she ultimately supported out-of-district placement for him. (SE-3; Bucca).
  1.  Student’s Team reconvened on May 14, 2025, and recommended amending the IEP to incorporate the recommendations in the FBA through a Behavior Intervention Plan (BIP) that addressed Student’s off task and inappropriate comments/vocalizations. (SE-4; SE-6; Swift; Bucca).  Student’s teachers reported that he was not making effective progress in any academic areas due to his frequent requests to take motor breaks or visit the nurse, and because he rarely completed class work. (SE-4; Swift).  Student’s attendance record for the period from January 14 through May 19, 2025, shows that he was absent or on outside school suspension 38 days and tardy on eight other occasions. (SE-8). 
  1. Student’s May 14, 2025, Team agreed that Student required special education teacher or paraprofessional support in all his classes, throughout the entire school day.  The Team continued to recommend out-of-district therapeutic placement, but Mother continued to disagree with this recommendation.  The Notice of Proposed District Action (N1)[13] notes that another consent form to send out referral packets to potential out-of-district placements was forwarded to the family along with the IEP, as Parents had yet to respond to the initial consent form provided to them on March 26, 2025. (SE-4).  The Team agreed to meet again in June of 2025 to discuss Student’s transition into high school. (Id.)
  1. In May of 2025, following Student’s administrative removal from Pembroke Hospital, and convening of the Team Student was assigned one-to-one paraprofessional support in school as a preventative measure. (Swift).  According to Ms. Liakos, Ms. Bucca, Ms. Joyce, Ms. Hayes and Ms. Swift, Student’s behaviors continued even after assignment of the one-to-one paraprofessional support, and he remained unable to engage in/ or complete classwork or pass academic courses.  
  1. Data collected on implementation of Student’s BIP for the period from May 19, 2025 to June 6, 2025 show that Student never met the 80% reinforcement point on any given day, attending ten out of 35 blocks on the first week, 10 out of 28 blocks on the second week, and he was absent twice during that three-week period.  During the week starting on May 19, 2025, he showed expected behavior in 80% of the blocks he attended and 70% on the second week.  Student produced 25% of the expected work in 50% of the blocks attended on the first week, and 25% of the work in 20% of the blocks attended during the second week. During the week of June 6 , 2025, Student attended 15 of the 25 blocks, showed expected behavior in 47% of the classes attended and he produced 25% of the work in the 13% of the blocks attended; that earned him15% of the 80% maximum points per day. (SE-5).  Overall, Student’s classroom attendance and engagement declined between May 19 and June 6, 2025, despite “criteria for success being intentionally set at a modest level to encourage positive outcomes.”  (SE-7).  Student’s BIP was updated in June of 2025. (SE-6).
  1. According to Ms. Liakos, she tried to implement Student’s BIP for several weeks but he never bought into it, stating “No, I am not doing that plan”.  Other teachers and service providers also tried to implement the plan unsuccessfully. (Liakos). 
  1. Ms. Larson testified that while initially appearing interested in the BIP rewards, Student quickly became uninterested.  In her opinion he had a challenging year making no progress. (Larson).
  1. On June 11, 2025, the Team reconvened to discuss Student’s transition into high school, and the IEP program and placement (SE-7).  The Team proposed out-of-district therapeutic placement for Student’s ninth grade as he continued not making effective progress in Pembroke despite implementation of the BIP and increased services.  The Team noted concerns that if this trend continued Student’s ability to receive a high school diploma would be in jeopardy, citing high school minimum attendance requirements in order to earn credit in academic subjects as well as Student’s inability to access the academic content.  A third consent form for the District to send referral packets was forwarded to Parents.  Mother noted concerns that the potential placements be close to the family’s home given Student’s medical Diabetes and her preference that it not be a collaborative given Student’s failed experiences at the two previous collaboratives he attended. (SE-7). 
  1. Since March of 2025, Pembroke has sought consent from Parents to forward referral packets to out-of-district programs including South Coast Collaborative- Gallishaw High School; South Shore Collaborative- High School; Home for Little Wanderers- Clifford Academy; Manville School; JRI- Anchor Academy; The Cove School; High Road School of Massachusetts; READS Collaborative. (SE-9). Geographically, Pembroke is not located close to many of the potentially appropriate private therapeutic schools, but is closer to some of the more local collaborative programs. (DeLorenzo).   
  1. On July 14, 2025, Parent consented to packets being sent to JRI- Anchor Academy and Pilgrim Area Collaborative, and Meghan Collum, Out of District Coordinator for Pembroke sent them. (SE-10; DeLorenzo).  On July 15, the District’s attorney assented to Parents’ requests and inquired if consent could also be given to a referral packet to North River Collaborative.  Mother consented, expressing willingness to tour the location and obtain more information. (SE-11).  Mother reiterated that she would not agree to placement in any program located far from the family home. (Mother; DeLorenzo).  
  1. Student’s record lacks any medical documentation that Student is unable to travel for up to one hour whether by regular school bus or specialized transportation. (DeLorenzo).   
  1.  On August 1, 2025, Parent consented to a referral packet to the Home for Little Wonderers. (SE-12).  Student has been rejected by the out-of-district programs for which the District received parental consent. (Swift; DeLorenzo; Mother).
  1. Jessica DeLorenzo, Pembroke’s Director of Student Services (Special Education Director for the District) is licensed as an elementary school teacher grades 1 to 6, school principal and assistant principal PreK to 6, Sheltered English Immersion administrator, and a special education administrator for all levels. (SE-20).
  1. Ms. DeLorenzo testified regarding Student’s presentation since August 27, 2025, the first day of school for the 2025-2026 school year in Pembroke, and approximately 17 days before the Hearing.  She indicated that Student had some minor infractions during the first couple of weeks, to wit:, insubordination, use of vulgar language, and failure to follow teacher directives, for which he served detention.  During the third week of school his behavioral dysregulation increased, and by September 22, 2025, he faced possible suspension due to use of vulgar language threatening in nature, swears[14] directed at the teacher and the school principal, non-compliance with staff directives and inappropriate behavior. (DeLorenzo).  Student’s behavioral escalation occurred despite implementation of his IEP and BIP. (DeLorenzo).  The disciplinary hearing on these infractions is pending.  
  1. Between August 27 and September 22, 2025, Student’s grades in all core academic subjects were three Fs and two Ds.  He was only passing physical education and Learning Center services. (DeLorenzo).  According to Parent this is Student’s best year academically as his desire to work is at its highest. (Mother).
  1. Student was in the emergency room between September 18 and 19, 2025. (Mother).
  1. Parent testified that she agrees with Pembroke’s identification of Student’s needs, but disagrees as to the location for provision of services, i.e., placement, noting that Pembroke has ignored the family’s opinions at Team meetings, including during the manifestation determination meeting  in March of 2025, ignoring Student’s issues with “moods, irritability, anger, extreme reaction to minor setbacks, poor decision making, temper tantrums, defiance, recklessness, intense distress, flashbacks, hyper vigilance, impatience, anxiety and fear”. (Mother).  She opined that all Student’s behaviors are related to his diagnoses, noting that the District had ignored literature and information she provided regarding these diagnoses.  She testified that the District had been uncooperative, even filing false DCF reports against Parents based on misinformation.  Parent testified that “Student was pulled from [the] different [Collaborative] placements because [Mother] wanted to protect him” and his psychiatrist provided letters addressing Student’s mental health and depression issues while at those placements. (Mother).
  1. Parent is interested in Student potentially attending MAP Academy.  She however, provided no information regarding this school or whether it offers therapeutic interventions.  According to Ms. Swift, MAP Academy is not a special education placement, but a public charter school.  In order to attend, Student would have to be unenrolled from Pembroke and enrolled there. (Swift).
  1. Mother testified that after touring two collaboratives close to her home, she was not comfortable with either.  Parent further noted that any potential program would need to have staff specifically trained to address Student’s Type 1 Diabetes and be able to implement his Section 504 Plan, including during transportation. (Mother).  Parent wants Student to remain in-district and for Pembroke to assign him a one-to-one paraprofessional, throughout the day.[15] In the alternative, she seeks a suitable location, close to home, that can address his needs appropriately. (Mother). 
  1. When Student is dysregulated in the home, Parents cannot talk to him in the moment; instead, they give him space and have the conversation about the incident at a later time. (Mother).  Parent attributes many of Student’s behavioral dysregulation to his diagnoses of Type 1 Diabetes, first diagnosed on January 7, 2025.  She noted that despite being a “pretty smart kid”, Student’s time out of class due to his behaviors together with his medical issues account for his poor academic achievement.  She further explained that Student had three hospitalizations in 2025; two related to his mental health issues and the one in January for medical reasons involving Student’s diabetes. (Mother).

CONCLUSIONS:

Neither Student’s entitlement to special education services pursuant to federal[16]and Massachusetts special education law[17] nor his diagnoses, needs or complex presentation are in dispute.  The Parties’ dispute rather centers on placement.

School districts are required to offer IDEA eligible students a FAPE, through individualized education programs (IEP) tailored to meet their unique needs[18] in a manner “reasonably calculated to confer a meaningful educational benefit”[19] to the eligible student.[20]  Moreover, the program and services offered must be delivered in the least restrictive environment appropriate to meet the individual student’s needs[21], and must be  “reasonably calculated to enable [the student] to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Distr., 137 S. Ct. 988 (March 22, 2017); D.B. ex rel. Elizabeth B., 675 F.3d at 34. 

Massachusetts has adopted the FAPE standard delineated in Endrew F., requiring that eligible students be provided with a special education program and services specifically designed to develop the student’s individual educational potential.[22] As such, educational progress is measured in relation to the particular student’s potential.[23] 

As the moving party, Pembroke carries the burden of persuasion pursuant to Schaffer v. Weast, 126 S.Ct. 528 (2005), and must therefore prove its case by a preponderance of the evidence in order to prevail.  In rendering my determination, I rely on and incorporate by reference the facts delineated in the Facts section of this Decision, focusing only on the most salient ones in the analysis below.

The evidence in this matter, when considered in the context of the applicable legal standards, overwhelmingly supports Pembroke’s position that Student requires out-of-district placement in order to receive a FAPE.  My reasoning follows.

The record shows that Student’s behavioral dysregulation, chronic absenteeism, hospitalizations, and suspensions have made it impossible for him to access his education in a general education setting.  Specifically, over the past few years, as a result of the amount of time spent outside the classroom owing to behavioral dysregulation or breaks, outside school suspension, (17 suspensions in Ohio and at least 23 in Pembroke during the 2024-2025 school year), three hospitalizations [24],and failure to complete assignments, Student has made no academic gains. This is clearly evidenced by his grades of s Fs and Ds in all his classes (PE-1; PE-3; SE-8; Larson, Hayes, Liakos, Joyce).  Students’ classroom attendance and engagement continued to decline through the end of the 2024-25 academic year. 

Over the years Student has been recommended for numerous out-of-district placements, most recently following the February 2025 hospitalization, from which placements he has been terminated or withdrawn by Parent. (PE-3; Parent). 

While the FBA conducted by Ms. Bucca in April and May of 2025 effectively identified antecedents/ triggers of Student’s behavior (such as attention-seeking, avoidance and escape), the BIP resulting from the FBA proved ineffective in addressing these behaviors, as Student ultimately did not buy into the plan. (Larsen; Liakos).  The record shows that the District intentionally set the criteria for success in the BIP at modest levels so as to encourage positive outcomes in addition to significantly increasing supports for Student across settings. (SE-7; Bucca).  Only the implementation of a one-to-one paraprofessional throughout the day, toward the end of the 2025 school year, marginally contained Student’s behavioral dysregulation, but was wholly ineffective in helping him make effective academic or educational progress, resulting in Pembroke’s continued recommendations for a therapeutic out-of-district placement (SE-4; SE-5; SE-6; SE-7; SE-8). 

Further, the record reflects a disconnect between implementation of strategies in school and in the home.  When Pembroke attempted to address this concern by recommending a home assessment, Parents refused.  In her desire to “protect Student”, Parent has withdrawn him from programs with which she was dissatisfied, and most recently has impeded referral to programs potentially equipped to effectively address Student’s needs and behaviors.  Failures resulting from the lack of effective coordination across settings attributable in great part to Parents’ resistance and control over the referral process, have caused Student to remain stuck in a program that is inappropriate to meet his needs, and has contributed to an endless downward spiraling for Student; one which is self-reinforcing.  It would appear that the precise opposite of what is desired has been accomplished; Student has learned that his inappropriate behaviors effectively get him out of whatever challenge or task he chooses to avoid. 

Student’s initial transition into high school has not gone much better, as approximately three weeks into the 2025-2026 school year he faced a suspension for the same type of behaviors previously displayed in middle school. Indeed, the June 11, 2025, Team that worked on Student’s transition to high school warned about the potential implications that Student’s behaviors could have on his ability to access the curriculum and receive a high school diploma, noting the high school’s minimum attendance requirements in order to earn credits in academic subjects. 

The evidence does not support Mother’s assertions that Student is committed to doing well in high school and opining that he in fact is doing better than he has in the past.  Student may intend on doing well, but his actions do not reflect his intent.  Furthermore, Mother indicates that she agrees that Student requires out-of-district placement, but it is her preference for Student to remain in-district among typically developing peers, and she cites to her fears associated with Student’s medical needs to limit the search for potential programs.  As a result she has tied the hands of the District, preventing Pembroke from implementing the recommendation for an out-of-district placement that can afford Student a FAPE. 

Mother’s concern over Student’s medical needs relate to his recently diagnosed Type 1 Diabetes. This concern has caused her to reject any potential placement located more than half-an-hour, or so, from the family’s home. 

Student is almost sixteen years old and possesses average cognitive ability.  The record lacks any indication that he is incapable of taking an active role in managing his diabetes.  On the contrary, in Pembroke he requests breaks to go to the nurse’s office during the day.  Moreover, Parents presented no medical evidence to support their claim that Student’s diabetes prevents him from travelling in a car for more than forty-five minutes.  They also presented no evidence to suggest that a well-coordinated Section 504 plan between Pembroke and the out-of-district placement could not successfully manage Student’s needs relative to diabetes.  603 CMR 28.06(8)(a)[25]   allows for placement of publicly funded students in private special education programs at a distance not to exceed one hour from the student’s home, unless the Team agrees to a longer travel time.  Given Parents’ failure to present evidence supportive of their claim and the limited number of therapeutic private placements close to Parents’ home, Student’s medical needs should not be the driving force with respect to appropriate placement.  As such, Mother’s claim that Student cannot travel and or be placed at a location far from the family’s home due to his diagnoses of Type 1 Diabetes is unpersuasive.

Parent also does not want Student to attend a collaborative program and is concerned that Student may withdraw from school when he turns 16 years old.  This position, in conjunction with her stance regarding travel distance, have prevented the District from exploring potential appropriate placements, thereby causing Student’s access to an appropriate out-of-district placement to remain in limbo.  Given Student’s age, time is of the essence.

The record is convincing that Student’s emotional and behavioral needs can only be appropriately addressed through the level of therapeutic and behavioral interventions that are provided in an out-of-district therapeutic school, with a small student to teacher ratio and in the moment interventions by professionals especially trained to address dysregulated behaviors, as Pembroke’s Team has recommended over and over again. 

The evidence is also convincing that the IEPs developed by Pembroke during the spring of 2025, were and are reasonably calculated to offer Student a FAPE in the LRE consistent with federal and state law.[26]   Pembroke has met its burden of persuasion pursuant to Schaffer, in showing that the IEP promulgated by Pembroke recommending an out-of-district therapeutic placement for Student is appropriate.  In the absence of medical documentation supporting Parents’ contention that the location of the program must be close to the home, nothing prevents Pembroke from expanding its search for potentially viable therapeutic out-of-district placements and forwarding redacted referral packets to such schools.

ORDER:

  1. Pembroke’s spring of 2025 IEPs recommending an out-of-district therapeutic placement offer Student FAPE in the LRE.     

By the Hearing Officer,

/s/ Rosa I. Figueroa

Rosa I. Figueroa

Dated: October 17, 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 (1st 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).

ConfidentialityIn order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

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

October 17, 2025

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

PEMBROKE PUBLIC SCHOOLS

&

STUDENT

BSEA# 26-00061

BEFORE

ROSA I. FIGUEROA

HEARING OFFICER

ELIZABETH CHEE, ESQ., ATTORNEY FOR PEMBROKE PUBLIC SCHOOLS

PARENTS PRO-SE

[1]  Due to Student’s hospitalization the night before what was to be the first day of Hearing, Parents’ postponement request was granted via Order issued on September 19, 2025, and the Hearing was continued to what had previously been scheduled as the second day of hearing.  Additionally, a previous Order issued on September 16, 2025, extended ’the date for filing of Parents’ list of witnesses through 6:00 p.m. on September 16, 2025.

[2]   SE-21 is the IEP promulgated by Olentangy Local Schools in Colombus, Ohio, following a Team meeting on December 20, 2024, referenced during the Hearing and submitted at the conclusion of the Hearing at the request of the Hearing Officer.  

[3]  The Issues for Hearing were stipulated by the Parties.

[4]   “Calling [the other student] a woman, telling him to use the woman’s bathroom, telling him to put his hand in his pocket and be “his bitch”. (PE-1).  In the hallway he continued making inappropriate statements including: “F— you”, “c—“, “shut the F—- up”, “fat b—-”, “this school is full of guys and transgender faggots without d—– or b—-”, “they are f—— transgender freaks”. (SE-8).

[5]   “[Student] was told that for any walking breaks, he would be accompanied by an administrator. [Student] left the office area, ignoring directives to return, and was using inappropriate language towards the principal. [Student] several 7th graders ahead of him in one of the hallways. He made several verbal threats that he would beat up one of the students and had to be physically blocked by administration several times when he charged at him so he couldn’t make physical contact. Another student was at the water bubbler, was watching and [student] walked up to him threateningly but turned around just prior to making contact with his body.” (PE-1)

[6]   “Because of previous unsafe behaviors, beginning on 3/24/2025, a staff member [was assigned] to monitor [Student] throughout his school day and [Student] was not to attend PE class (on 3/24/25) due to an ongoing investigation of verbally aggressive behavior towards another student in PE. [Student] became verbally aggressive towards the principal and continually disregarded directives. [Student] went to the gym, insisting he would attend PE class. Gym classes were moved to a different location. While on the bleachers, he picked up a large metal handrail and looked at the principal. He eventually pulled the handrail down. A random student entered the gym and [Student] yelled ‘get the f—- out of here or I will beat you’re a—’”. (PE-1).

[7]  “Lunch/TT det[ention]- [Student] Was in gym class period another student kept taking his basketball, [Student] asked him not to 2-3 times. When the student didn’t listen, [Student] became frustrated and got more handsy/ physical. Also used profanities with the student. The other student walked-away and student was able to regulate and stay in class.  Staff member and [Student] reported similar stories. Discussed inappropriate language but proud of him for not escalating it further and being able to move on quickly. Spoke to [Mother] to make her aware. Due to the inappropriate language used, [Student] will meet with Mrs. Larson during lunch or TT to review and reinforce why this language is unacceptable.” (PE-1).

[8]  “Another student shared that [Student] was messaging him via Snapchat saying he was going to fight him. [Student] said the student had thrown his brother’s croc down the stairs a few days prior, and he was upset about it. Told [Student] there are better ways to handle that than fighting. Told him I would handle it and reminded him that he is not to put his hands on anyone in this building. Student continues to have an escort, other student also has a staff member monitoring in hallways. All staff made aware. Parents contacted. SRO made aware.” (PE-1).

[9]   “Lunch det[ention]- Lunch detention for twice grabbing items from another more vulnerable student. Advised of harassment/ bullying policy, and if it happens again, he will have much bigger consequences. Told to stay away from her. Emailed staff to have them keep an eye out. Called mother.” (PE-1).

[10]   Ms. Joyce’s 5 to 12 license was provisional as of December 28, 2023. (SE-14).

[11]   The grade level depends on prerequisite license.

[12] A previous DCF referral had been made in March of 2025, as a result of an incident in the home.  The referral was screened out due to Student’s hospitalization in February of 2025. (PE-3; Swift).

[13] The N1 references that the Notice of Procedural Safeguards/ Parents’ Rights was sent to the family via email on March 11, 2025. (SE-4).

[14]   Student told the teacher, “s— his d—-”, “f— off”.

[15]   “[Student] said that having someone there made it a little bit easier, so that when he was going to react to something, that someone was kind of there to, you know, redirect him or kind of remind him, like, ohh, this isn’t worth me reacting to. So I feel like having someone around him, you know just kind of reminding him of the expectations and really being able to–I mean, [Student] is very clear when he’s not doing well. He has a lot of signs. He’s very verbal about it. So it’s helpful to have someone right there able to help. But he also does well with peer models, you know, looking at everyone else in the classroom. If he’s the only one acting out, like, he feels awkward. A lot of times he cannot control it, but he doesn’t prefer to stick out.”. (Parent).

[16]   20 USC 1400 et seq.

[17]   MGL c. 71B.

[18]   20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE, 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).

[19]  See D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012) where the court explicitly adopted the meaningful benefit standard.

[20]  Sebastian M. v. King Philip Regional School Dist., 685 F.3d 79, 84 (1st Cir. 2012)(“the IEP must be custom-tailored to suit a particular child”); Mr. I. ex rel L.I. v. Maine School Admin. Dist. No. 55, 480 F.3d 1, 4-5, 20 (1st Dir. 2007) (stating that FAPE must include “specially designed instruction …[t]o address the unique needs of the child that result from the child’s disability”) (quoting 34 C.F.R. 300.39(b)(3)).  See also Lenn v. Portland School Committee, 998 F.2d 1083 (1st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee, 910 F.2d  983 (1st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education, 736 F.2d 773, 788 (1st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).

[21] 20 USC 1412 (a)(5)(A).

[22] MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (defining “special education” as “…educational programs and assignments…. designed to develop the educational potential of children with disabilities….”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”).  See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: [Guidance on the change in special education standard of service] from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).

[23]   Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 199, 202 (court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student). See also Lessard v. Wilton Lyndeborough Cooperative School Dist., 518 F3d. 18, 29 (1st Cir. 2008), and D.B. v. Esposito, 675 F.3d at 36 (“In most cases, an assessment of a child’s potential will be a useful tool for evaluating the adequacy of his or her IEP.”).

[24] One of the hospitalizations was for medical reasons.

[25]   “The District shall not permit any eligible student to be transported in a manner that requires the student to remain in the vehicle for more than one hour each way except with the approval of the team. The team shall document such determination on the IEP.”. 603 CMR 28.06(8)(a).

[26] See, e.g. Endrew F. v. Douglas County Sch. Distr., 137 S. Ct. 988  (2017)

Updated on October 21, 2025

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