In Re: Student v. Bedford Public Schools BSEA# 25-14231

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student v. Bedford Public Schools 

BSEA# 25-14231

DECISION

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

A hearing was held via a virtual platform on October 20, 21, and 22, 2025, before Hearing Officer Alina Kantor Nir.  Parents were represented by an educational advocate.  Bedford Public Schools (Bedford or the District) was represented by counsel. Those present for all or part of the proceedings, all of whom agreed to participate virtually, were:

Mother

Father

Student

Abby Gould                           Attorney for Bedford

Beverly Montgomery             Speech and Language Pathologist, Lex Communicate

Ginny Brennan                     Educational Advocate for Parents

Jane Del Gobbo                   Special Education Program Administrator

Jessica Kirby                        Special Education Teacher, Bedford

Joan “Joni” McLaughlin Former Educational Advocate for Parents, Current Assistant Reading Director, Windham Woods School (Windham Woods)

Kim Marino                            General Education Teacher, Bedford

Kristen Havey-Bergeron     Elementary Director, Windham Woods

Marianne Vines                    Assistant Superintendent Student Services, Bedford

Sharon Musto                       Former Educational Evaluator, Current Director of Reading, Windham Woods

Susan Bacher                       School Counselor, Bedford

Rebecca Baron                    Court Reporter

Melissa Lupo                        Court Reporter

The official record of the hearing consists of documents submitted by Parents and marked as Exhibits P-1 through P-15, and P-18 through P-44; documents submitted by Bedford and marked as Exhibits S-1 through S-18; approximately two days of oral testimony and argument; and a two-volume transcript produced by a court reporter.  At the joint request of the parties, allowed for good cause, the record remained open until November 13, 2025, for submission of written closing arguments. Closing arguments were submitted as scheduled, on November 13, 2025, and the record closed on that day.

ISSUES IN DISPUTE:

The following issues are in dispute:

1. Whether the Individualized Education Program (IEP) dated 3/25/2024-3/24/2025 was reasonably calculated to provide Student with a free appropriate public education (FAPE), including whether or not the District accurately identified Student’s primary disabilities;

2. If not, whether Windham Woods School was an appropriate placement for Student for the 2024-2025 school year; and

3. Whether Parents are entitled to reimbursement for tuition and transportation costs for Student’s placement at Windham Woods School for the 2024-2025 school year?

FACTUAL FINDINGS:

1. Student is a charming, engaging, and bright 10-year-old resident of Bedford, Massachusetts. He is diagnosed with ADHD–Inattentive Type, a mixed expressive-receptive language disorder, a specific learning disability in reading and written expression, and a seizure disorder controlled by medication.[1] Student struggles with articulation challenges, which impact his social interactions.  Student currently attends 4th grade at Windham Woods, in Windham, New Hampshire, where he was unilaterally placed by Parents in August 2024. Prior to attending Windham Woods, Student attended the Lt. Eleazer Davis Elementary School (Davis School) in Bedford, Massachusetts. (Student, Bacher, Mother, Marino, Kirby, Montgomery, P-32, S-2, S-8, S-9)

2. In May 2021, Student participated in a comprehensive neuropsychological evaluation with Rachel Goldin, Ph.D., at Mass General Hospital for Children. The results of this evaluation showed average verbal comprehension, fluid reasoning, working memory, expressive and receptive vocabulary, and listening comprehension, along with age-appropriate preacademic skills; however, Student demonstrated low-average visual-spatial reasoning, significantly reduced processing speed, weaknesses in visual-motor integration, and social-emotional challenges related to attention, theory of mind, and perspective-taking. Dr. Goldin diagnosed Student with Attention-Deficit/Hyperactivity Disorder, Inattentive Presentation (ADHD-I), and recommended an integrated classroom setting with both pull-out and push-in services, individual or shared paraprofessional support, and environmental and instructional accommodations. She further recommended twice-weekly 30-minute speech and language therapy targeting articulation, expressive/receptive language, and social pragmatics; twice-weekly 30-minute occupational therapy to improve fine motor skills, visual-motor integration, handwriting, and self-regulation; a weekly 30-minute structured social skills group to address perspective-taking and peer interactions; behavioral and executive functioning supports for task initiation, organization, transitions, following multi-step directions, and frustration management; and a monthly 15-minute collaborative consultation among his occupational therapist, speech-language pathologist, and special education provider to ensure consistent strategies and to monitor progress. (P-31)

3. Susan Bacher, Student’s school adjustment counselor during his first and second grades (2022-23; 2023-24) is a licensed social worker (LCSW) with five years experience working in the District. Prior to working with Student, she reviewed Dr. Goldin’s report and noted Student’s tendency to withdraw socially and his difficulty communicating his feelings. (Bacher, P-3)

4. On March 22, 2023, the Team met for Student’s annual IEP review. Parents expressed concern about Student’s ability to generalize social and self-advocacy skills to real-life situations. Student’s teachers and Ms. Bacher described Student as increasingly confident and observed that he was making steady academic and social progress, especially as he had met his communication objectives. He still spoke too quickly at times, though, affecting his clarity. Socially, Student demonstrated strong interpersonal skills, good eye contact, and increased comfort initiating and sustaining interactions. He met all social skills objectives, showing growth in reading facial expressions, interpreting body language, taking others’ perspectives, applying problem-solving strategies, and articulating his strengths. Academically, Student made significant progress in reading and writing. (Kirby, P-10)

5. The IEP for the period 03/22/2023 to 03/21/2024 (March 2023 IEP) included goals in the areas of phonics, sensory motor, communication, and social skills as well as the following services: A Grid: consultation by each of the Student’s OT, SLP, and counselor (1 x 30 min. per month); B Grid: written expression support (3 x 30 min. per week); and C Grid: speech and language (3 x 30 min./month), social skills/counseling (3 x 30 min./month), occupational therapy (OT) (6 x 30 min./month), and phonics (3 x 45 min. per week).  Due to observed vulnerabilities in peer interactions, the Team also identified Student as at risk for bullying and recommended that specific objectives and accommodations be included in his IEP to address these concerns. A full inclusion placement at Davis School was proposed. (Kirby, P-11, S-9) Parents accepted the March 2023 IEP and full inclusion placement on April 27, 2023. (P-10)

6. According to Mother, at the end of first grade, Student became increasingly withdrawn and no longer enjoyed previously preferred activities. This continued into second grade. Mother was also concerned that Student struggled to generalize learned skills to “real life incidents.” Mother shared these concerns first with Ms. Bacher and later, in second grade, with Jessica Kirby, Student’s special education teacher. (Mother)

7. Although   Parents began to consider a unilateral placement for Student at Windham Woods in July 2023, they did not raise any placement concerns with the Team at that time. (Mother, S-18) Mother testified that Windham Woods offers many services within the classroom, and based on Student’s reports, she believed he had difficulty reintegrating into activities after pull-out services. Parents also felt that a smaller class setting with peers of a similar profile would help Student feel more accepted, comfortable, and confident. (Mother)

8. Parents applied to Windham Woods in September 2023. Mother testified that she was confused and uncertain about the process for a unilateral placement. (Mother)

9. Also in September 2023, Student participated in a school-based occupational therapy re-evaluation.[2] The results of the evaluation showed that Student had made steady progress. It was recommended that Student receive occupational therapy services 1-2 times per week to address bilateral coordination, motor planning, fine motor strengthening, and self-management skills. (P-34)

10. Kim Marino was Student’s second-grade general education teacher. She is licensed in Massachusetts and has worked as a second-grade teacher for 19 years. Ms. Marino has experience working with students with a variety of disabilities. She co-taught Student’s classroom with Ms. Kirby, and, at times, with a teaching assistant whom Ms. Kirby supervised. (Marino, P-5)

11. Ms. Marino described Student as motivated and happy. He got along well with peers. Student participated alongside his peers in fluency, comprehension, and accuracy work. Either Ms. Marino, Ms. Kirby or the teaching assistant worked with Student on writing, where he needed help to organize his ideas. Ms. Marino implemented the accommodations in Student’s IEP, including those relating to social challenges. She testified that general education teachers implement a variety of accommodations for all students at all times. (Marino, P-5)

12. Ms. Kirby was Student’s second grade special education teacher. She has served as a special education teacher at the Davis School since 2012. Ms. Kirby is a certified Orton-Gillingham (OG) instructor. She has been trained in RAVO and LiPs and has participated in the District’s trauma training. Ms. Kirby testified that, in addition to providing special education services to Student, she “built him up,” “protected him,” provided him with “extra check-ins,” and ensured that he felt comfortable self-advocating. Ms. Kirby testified that Student did not always independently identify what support he needed, which was also typical of a second-grade student. (Kirby) Student required “build-up comments” to show him that he was doing well and making progress. Following classroom disruptions, which Student found upsetting, Ms. Kirby and Ms. Marino provided a safe environment for Student and other students to ask questions and understand that all children have different needs. Given his profile of a seizure disorder, Ms. Kirby paid special attention to Student.  (Kirby, Marino) Ms. Marino was aware of Student’s medical needs, but, to her knowledge, Student did not have any seizures due to classroom disruptions. (Marino)

13. According to Ms. Kirby, she and Ms. Marino incorporated social emotional learning “into everything [they] did” in class. (Kirby)

14. Ms. Marino testified that she collaborated with Ms. Kirby “all the time.” They had weekly meetings, met every morning, and “worked off each other,” adjusting their plans throughout the day. (Marino)

15. Ms. Montgomery is a licensed speech and language pathologist with 20 years of experience and a specialty in social/emotional communication and executive functioning challenges. (Montgomery, P-9)  Ms. Montgomery sees Student weekly in a social skills group after school that Parents privately fund.  She began working with Student in August 2021. At that time, articulation and self-advocacy were Mother’s primary concerns. Student was subsequently “red flagged” for literacy challenges. (Montgomery)

16. In October 2023, Mother shared her thoughts about Student potentially needing an out-of-district placement with Ms. Montgomery. Again, she did not share this information with Bedford.  (S-18)

17. On or about the same time, Ms. Montgomery shared with Parents that Student showed decreasing confidence, and she wanted “to ensure that he [was] making sufficient progress and that the right types of supports [were] in place for him as the demands rapidly increase[d].” (Mother, P-33)

18. In November 2023, Student participated in a speech and language evaluation with Ms. Montgomery. Ms. Montgomery did not evaluate Student in the school setting, did not elicit input from school staff, or observe  Student at the Davis School or Lane School (which was later proposed for Student. (Montgomery) While results of the evaluation revealed intact core language skills, deficits were noted with word retrieval (TWF-3 Word Finding Index = 77), below-average Theory of Mind scores[3], social-emotional vulnerability, and inconsistent pragmatic language performance. (P-32). Ms. Montgomery recommended direct instruction in compensatory and “learning to learn” strategies, careful peer matching to address social performance inconsistencies, continued modeling of a growth mindset, and feedback focused on effort, persistence, creativity, and flexibility. She did not recommend a language-based program or a change in placement. (Montgomery, P-32)  Ms. Montgomery was especially concerned about Student’s word retrieval difficulties and his limited awareness of social problems. She testified that Student’s deficits affect all three pillars of social-emotional learning and communication: Theory of Mind, executive functioning, and communication. Although he has made progress in seeking adult support, he is “not always aware when something is a problem,” which she opined leaves him vulnerable to bullying (Montgomery).

19. At Hearing, Ms. Montgomery testified that Student requires a “language-based instructional style.” (Montgomery)

20. Following the evaluation with Ms. Montgomery, Student began showing nonverbal avoidance cues related to articulation work and reported to her that self-advocacy at school “doesn’t work.” He also appeared increasingly dysregulated during sessions. Due to Student’s anxiety, negative self-talk, and strong avoidance, after consulting with Mother, Ms. Montgomery chose to address “repair strategies” indirectly rather than directly. (Montgomery)

21.  Although Ms. Montgomery observed signs of anxiety, she acknowledged that Student does not carry a diagnosis of generalized anxiety disorder. (Montgomery)

22. During the 2023-2024 school year, Student reported to Parents that he was “chased by a girl and her friends” during recess. Student testified that it was because the girl wanted him to participate in a game in which he did not wish to participate.[4] Student told Ms. Bacher about the incidents, and she accompanied him to recess, after which the chasing ceased. (P-18, Bacher, Student)  

23. Student testified that at times he was teased due to his articulation. According to Mother, Student felt that he advocated for himself, but “nothing was done.” Mother felt that Student was withdrawing, and she spoke to Ms. Montgomery about his decreasing confidence and lowered self-esteem. (Mother)

24. In December 2023, Sharon M. Musto, a licensed special educator, who at that time was employed by KidsCenter[5], conducted a privately funded independent education evaluation[6] of Student. Currently, Ms. Musto is the Director of Reading at Windham Woods.[7] (Musto, S-8, P-35)

25. Parents shared with Ms. Musto that Student had “difficulty paying attention[,…] performs better within a smaller setting,” and “lacks confidence in reading.” Student reported that “his time out of the general education classroom [was] a ‘break’ in his day.” (Mother, Musto, P-35, S-8)

26. Ms. Musto reviewed Dr. Goldin’s report and Student’s then-current IEP. She testified that she was concerned that Student only had one literacy goal with five objectives, whereas he needed a separate reading and writing goal with additional objectives in comprehension and fluency. He also needed increased services. (Musto)

27. According to Ms. Musto’s testing, Student performed in the low average range on Phoneme Isolation, Rapid Digit Naming, and Rapid Letter Naming on the CTOPP-2; the Reading composite and Reading Comprehension subtest on the WIAT-4; Sight Word Efficiency and Total Word Reading Efficiency Index on the TOWRE-2; and both Accuracy and Fluency on the GORT. She found that his difficulties with isolating individual sounds in words, rapid naming, speeded word reading, reading accuracy, fluency, and comprehension were consistent with a Specific Learning Disability in Reading. Ms. Musto testified that she consulted with a neuropsychologist about the diagnosis of a Specific Learning Disability in Reading, and they agreed that Student’s challenges were “the hallmark” of a specific learning disability. In addition, his weaknesses with graphomotor skills, along with difficulties in production rate/writing fluency, sentence formulation, orthographic processing, and internalizing spelling patterns, aligned with a Specific Learning Disability in Written Expression.  (Musto, P-35, S-8)

28. Ms. Musto did not calculate the Dyslexia Index on the WIAT-4, but could not recollect the reason. (Musto)

29. Ms. Musto testified that although most of Student’s scores were in the low average or average range, the differences in his scores were significant. She could not determine the extent of his academic delay. Ms. Musto did not believe that ADHD affected Student’s scores because his inconsistencies were random, and he had been very focused during testing. (Musto)

30. According to Ms. Musto, Student was “making some progress with his [then-] current phonics instruction,” but his variable performance on real and nonsense word reading demonstrated that “he still needed highly-structured teaching focused on decoding and recognizing orthographic patterns.” In writing, despite having good ideas and an understanding of basic punctuation, Student showed weaknesses at the letter, word, and sentence levels, including slow and effortful alphabet production, inconsistent spelling, and difficulty applying correct grammar and syntax. (Musto, P-35, S-8)

31. Ms. Musto’s report indicated that Student required intensive support in orthographic patterns, decoding, encoding, oral reading fluency, comprehension, and writing to build skills and protect his self-esteem. She recommended adding goals for oral reading fluency, comprehension, and written expression, increasing reading services to a minimum of 3×45-minute per week, and adding explicit pull-out writing instruction. She also recommended a language-based, direct, systematic, multisensory instructional approach (including visual, phonemic, semantic, or gestural cues and selected sight-word practice) delivered in small groups. (Musto, P-35, S-8)

32. Ms. Musto did not recommend a change in placement, but rather a pull-out service model. She did not elicit teacher input, did not attend team meetings, and did not observe Student in his then-current or proposed program. (Musto, P-35, S-8)

33. Ms. Musto testified that she was aware that Parents were considering Windham Woods when she conducted her evaluation, as Mother had asked that Ms. Musto’s report be included in the application thereto. Ms. Musto testified that Windham Woods is an appropriate placement for “kids who are different.” (Musto)

34. Ms. Musto and Ms. Montgomery consulted to see whether their conclusions aligned, and they did. Like Ms. Montgomery, Ms. Musto noticed that Student engaged in “tactful avoiding” in a group setting. (Montgomery)

35. On December 22, 2023, the District proposed, and Parents consented to, a reevaluation of Student, which included testing in the following areas of suspected disabilities: Academic , Occupational Therapy, Psychological, Speech/Language as well as completion of Educational A and B forms and an observation.  Parents’ concerns included Student’s struggles with fast reading, missing words when reading, language comprehension, writing, “finding things,” staying on task, social communication, and articulation. (S-1)

36. According to Student’s February 2024 Psychological and Academic Evaluation[8], his overall cognitive ability (FSIQ) could not be reported due to significant discrepancies among indexes, but Student’s General Ability Index (GAI) fell in the Average range. His ability to hold information and process information efficiently was in the Low Average range, indicating a discrepancy with his higher-order skills. On the BASC-3, the main indexes fell in the Average range, which suggested that across environments, Student generally presented as a happy, well-adjusted student who was able to communicate his needs, connect with others, and follow expectations.[9]   Student demonstrated grade-appropriate skills in the areas of phonological awareness, rapid naming, and orthographic processing. He also demonstrated strong skills when asked to read both sight words and nonsense words within a time limit. Student was able to read two grade-level passages at a steady rate with only occasional errors. He also demonstrated grade-appropriate comprehension skills when asked to answer both literal and inferential questions based on a passage. In the area of writing, Student demonstrated intact skills when asked to spell words spoken aloud and identify the correct spelling of words. When asked to write a short essay, Student was able to produce several logical sentences within a time limit. However, he made occasional spelling and grammatical errors. Student also demonstrated age-appropriate skills when asked to solve calculation problems and apply math concepts to everyday situations. Recommendations included additional time to answer questions or demonstrate his knowledge, untimed assessments, support and strategies to approach novel problem-solving tasks, having challenging tasks broken down into concrete parts, talking through his ideas aloud before putting them into writing, use of a graphic organizer during writing tasks, word banks, sentence starters, concept maps, cueing for attention, frequent repetitions of directions, reminders to stay on task, scheduled or earned breaks, and the use of language consistent with a growth mindset. (P-28, S-2)

37. Also in February 2024, Ms. Kirby completed Educational Assessment A, and Ms. Marino completed Educational Assessment B. According to Ms. Kirby, Student had made significant progress in his decoding skills and was working on fluency when reading connected text. DIBELS data showed that he was meeting expectations in all domains, and his Fundations end-of-unit assessments showed that he was meeting the benchmark for grade-level phonics instruction. On his most recent math written assessment, Student scored  72% and was working on showing his work when problem-solving. In writing, Student was able to generate creative ideas following taught writing structures. He benefited from support to organize his thoughts using a graphic organizer. Although Student sometimes lost track of his thoughts or what he was working on and required some support to sustain attention, he did not display hyperactive behaviors. He required additional time to get through multi-step tasks. While Student still made some articulation errors, he was generally understood by peers and adults and worked well with peers. (P-25, P-26, P-27, S-3, S-4)

38. As a result of Student’s Occupational Therapy Evaluation[10], the following accommodations were recommended: iPad/tablet; keyboarding instruction;  sequential step process for multi-step tasks; and checklists and completed models to assist with in-task organization. No direct services were recommended. (P-30, S-6)

39. Student’s Speech and Language Evaluation[11] reflected average receptive, expressive, and pragmatic language skills, strengths in answering questions that relied on his ability to infer information from background knowledge, context, figurative language, and to make predictions, and relative strength in his ability to use social language. Student’s speech was intelligible, although he made noticeable errors, and his speech sound production skills fell below the average range. He often spoke at a fast rate,, negatively impacting his overall speech intelligibility. Student was observed to demonstrate multiple pragmatic functions. Recommendations included modeling correct speech sound production and appropriate speech rate across academic environments, focusing attention on target sounds when reading books with Student, placing extra emphasis on target speech sounds, using sound-specific articulation prompting as needed, and using verbal prompting and/or visual pacing boards. (P-30, S-7)

40. On February 12, 2024, Windham Woods accepted Student for the 2024-2025 school year. (P-38)

41. Student’s Progress Reports for the March 2023 IEP demonstrated consistent progress on all goals and objectives. (P-11, S-5)

42. Ms. Kirby testified that although Student sometimes felt discouraged and needed reminders of his progress to recognize his strengths, this did not affect his overall classroom demeanor. She was not aware that he had difficulty reintegrating after pull-out services, noting that students “come and go all the time” and are routinely “caught up “upon return. (Kirby) School staff further testified that while Student continued to need accommodations to support his confidence and self-esteem, this did not diminish the progress he was making. They noted that some challenges were part of his profile and would require ongoing work. (Marino, Bacher, Kirby)

43. Ms. Bacher saw Student three times per week for direct service in her office and once as a pull-out at recess. Student initiated choosing a different peer every few sessions. Although he participated in a lunch bunch for a while, it became apparent that he wanted to spend time with his friends during lunch, so the sessions were more often held during recess. (Bacher)

44. In anticipation of Student’s upcoming March 2024 IEP Team meeting, Parents hired Joan “Joni” McLaughlin as an advocate. (Mother, McLaughlin, P-7) Ms. McLaughlin is a certified teacher who worked at Landmark School for 24 years.[12] (McLaughin, P-7) Prior to the March 2024 IEP meeting, Mother met with Ms. Mclaughlin once. (McLaughlin) Mother testified that she talked to Ms. McLaughlin about Student’s social-emotional concerns briefly. (Mother) According to Ms. McLaughlin, based on her conversation with Mother, she planned to address the following concerns at the Team meeting: word retrieval, executive functioning, phonics, reading, spelling, and social thinking challenges. (McLaughlin)

45. On March 25, 2024, the Team met to review the results of Student’s evaluations. The Team determined that the Student presented with the Disability Categories of Neurological and Health (ADHD) due to his difficulties with fine motor precision, visual-motor integration, written expression, and sound production. (P-12, S-9)

46. According to Ms. Kirby, Student had made progress on all his goals.[13] In her pull-out sessions with him, she utilized ReadLive and Orton-Gillingham. She tracked Student’s progress with DIBELS, classroom assessments, STAR screeners, and Fundations. Student responded well to these interventions. He was not pulled out for writing because he was able to access the writing curriculum alongside his peers. Although Student’s written output “took longer,” he did not require a different methodology. (Kirby, P-12, S-9)

47. Student had also made significant progress in decoding skills and was working on fluency when reading connected text. His DIBELS data showed that he was meeting expectations in all domains. Student’s Fundations end-of-unit assessments showed that he was meeting the benchmark for grade level phonics instruction. ln writing, Student was able to generate creative ideas following taught writing structures. He benefited from support to organize his thoughts using a graphic organizer. Student consistently followed the rules and routines of the classroom. (Kirby, P-12, S-9)

48. Socially, Student worked well with a variety of peers in his classroom and demonstrated kindness and thoughtfulness towards others. According to Ms. Bacher, Student had met his social skills goal. In the area of occupational therapy, a shift to a focus on visual-motor skills was recommended moving forward. The Team agreed that the next IEP should focus on generalization of skills. Parents did not raise any concerns regarding Student’s reading, writing, or placement at the Team meeting.  (Kirby, Bacher, P-12, S-9)

49. The IEP for the period March 25, 2024 to March 24, 2025 (March 2024 IEP) proposed several accommodations including but not limited to visuals to support writing, phonics and reading comprehension skills, opportunities to practice newly acquired skills in a variety of formats with guided support and corrective feedback, breaking down multi-step tasks/projects/assessments into smaller steps, modeling of expected work outcomes, modeling of appropriate speech sound production and rate of speech, reminders to use communication repair strategies, social coaching and facilitation of problem solving and self-advocacy skills, additional time to complete tasks and assessments especially with fine motor components, additional time to formulate answers before an oral or written response, support for pacing during tasks (cue to slow down to decrease error rate), movement breaks both upon request and/or scheduled, reinforcing accurate speech sound production, providing initial phonemic cues to aid in word retrieval, and providing multiple choice options to aid in word retrieval. (Kirby, Marino, Bacher, Del Gobbo, P-13, P-15, S-9, S-10)  

50. The March 2024 IEP proposed goals in the areas of Reading Skills (phonics, fluency and accuracy, comprehension), Written Expression (generating ideas, writing ideas down, spelling, self-editing), Visual Motor Skills (sequencing, keyboarding), Communication (speech production, pace of speech, word retrieval), and Social Skills (self-advocacy, identification of feelings, growth mindset, regulation of feelings). The following services were proposed: Grid A (Consult): Occupational Therapy (OT/Gen. Ed/Sped) (1 x 30 min./month); Speech/Language Therapy (Related Service Provider/Sped) (1 x 30 min./month); Social/Emotional Support (Counselor/Sped Staff) (1 x 30 min./month); Grid B (Push-In): Reading Skills (Gen Ed/SPED/TA) (3 x 20 min./5 days); Written Expression (Gen Ed/SPED/TA) (3 x 30 min./5 days); Grid C (Pull-Out): Reading Skills (Special Ed. Teacher) (3 x 20 min./5 days); Occupational Therapy (OT/COTA) (6 x 30 min./month); Speech/Language Therapy (SLP/SLPA) (1 x 30 min./5 days); Social/Emotional Support (Counselor) (3 x 30 min./month). A full inclusion setting was proposed at Davis School for the remainder of the 2023-2024 school year and at Lieutenant Job Lane School (Lane School) for the 2024-2025 school year. (Kirby, Marino, Bacher, Del Gobbo, P-13, P-15, S-9, S-10)

51. The Additional Information section of the March 2024 IEP included an Anti-Bullying statement that documented that the Team reviewed Student’s needs in social skills, emotional resilience, and self-advocacy and agreed he required direct instruction in these areas, which were incorporated into his Social/Emotional goal and accommodations, with ongoing review planned.[14] (Del Gobbo, Kirby, S-11) School staff testified that this statement did not indicate that Student had been bullied but rather reflected proactive efforts to protect him and ensure he was not bullied. (Marino, Bacher, Kirby) Ms. Bacher testified that if she had concerns about peer relationships or suspected bullying, she would have addressed them in counseling and initiated a bullying investigation. (Bacher)

52. Ms. Kirby testified that the March 2024 IEP included more push-in services to reduce classroom interruptions for Student. This shift also reflected Student’s progress, as he no longer required as many pull-out services, and needed more classroom time to generalize skills. The reading goal emphasized applying learned skills to connected text, fluency, comprehension, and accessing grade-level, non-controlled, non-predictable text, while the writing goal targeted idea generation, organization, and editing. (Kirby)

53. Ms. Kirby recalls the Team discussing Student’s disability category. She believed the Neurological Disability category best captured his profile, as Specific Learning Disability (SLD) would not encompass all his needs. Student had previously been identified with Developmental Delay and also presented with a seizure disorder, ADHD, executive functioning challenges, and speech and occupational therapy needs, all of which affected his ability to consistently demonstrate his knowledge. She added that even if he had been classified under SLD, the proposed services would have remained the same, as he was already receiving the necessary reading and writing supports. (Kirby) Ms. Kirby testified that Student’s ADHD presented as  internal distraction. He received frequent breaks for movement,. Although articulation remained a challenge, he had made significant progress  but language processing continued to affect him. Ms. Kirby noted that while anxiety could contribute to executive functioning difficulties, in the classroom his executive functioning challenges were primarily related to organizational skill breakdown rather than task-related anxiety. There was no disagreement at the Team meeting regarding the Disability Categories. (Kirby)

54. Although Ms. Montgomery was not present at the Team meeting, she assumed that Parents had shared her letter of concerns and evaluation results with the Team. Ms. Montgomery testified that a Communication Disorder should have been identified as Student’s Disability Category, given his receptive and expressive language needs, phonological and articulation challenges, and executive function difficulties. The Neurological Disability category did not “fit” Student. In her view, Social Emotional and Health would have been more appropriate, and SLD should also have been added. She also believes the Team should have gone through “the process” to consider whether SLD was appropriate. (Montgomery)

55. According to Ms. Montgomery, because of his communication disorder, Student demonstrated anxiety in “nonverbal ways,” such as through facial expression. Although he had  “great ability to acquire skills,” Student struggled to generalize them and to recognize when to use them. Ms. Montgomery believed that class disruptions caused Student significant anxiety due to his “vigilance,” emphasizing his need for predictability and structure. She noted that Student felt a sense of loss when disruptions prevented him from engaging in preferred class activities. Although Student had learned the language of a growth mindset, he did not “believe it,” noting that he could say “it is okay to make mistakes, but he is not buying it.” Ms. Montgomery was concerned that Student lacked sufficient wrap-around supports during unstructured times. (Montgomery)

56. Ms. Montgomery testified that Student’s social skills goal needed to include generalization, with peer problem-solving addressed “in the moment,” particularly in less structured settings like recess. He required immediate reinforcement. Student needed a language-based program with structure and explicit instruction delivered at a pace he could manage, along with a “narrow spiral” approach, revisiting content in varied ways to avoid boredom, and frequent reminders to use his skills. She further testified that a language-based program did not necessarily mean a separate school. (Montgomery)

57. On March 28, 2024, in a communication to Ms. Montgomery, Mother noted that Student had “made so much progress in reading” during the past year and that his Team believed that his self-confidence had been increasing. (S-18)

58. Following the March 25, 2024 meeting, Mother and Ms. McLaughlin drafted Parents’ concerns for the IEP.  Mother hoped Student’s reading, writing, and self-advocacy skills would continue to improve and noted that although Student’s social skills and speech articulation had progressed, his rapid speech could make him difficult to understand, leading to possible miscommunication and lowered self-esteem. Mother further hoped that specialized instruction would strengthen Student’s executive functioning and social thinking skills to help him build and maintain peer relationships as social demands increased. (Mother, McLaughlin, S-9)   

On April 4, 2024, Mother informed Ms. Montgomery that Parents were “leaning towards Windham Woods as [the school] [] offered [them] a 50% tuition reduction.” Mother expressed concern that “even with all the supports in place [in Bedford], the whole thing with MCAS and the social demands becoming harder, it may be difficult for [Student] to navigate through all that.” (S-18)  

59. On April 5, 2024, Parents partially rejected the March 2024 IEP but accepted the placement.  They expressed that “overall they were pleased with the IEP,” however, they requested additional accommodations and asked to modify some of the goals and objectives. (McLaughlin, Mother, P-12, P-14, S-9, S-10) The District agreed to incorporate Parents’ requested changes into the March 2024 IEP and issued a revised IEP reflecting changes to a phonics objective, a writing objective, a speech objective, additional accommodations, and a transportation statement. Parents accepted the revised IEP and placement in full. (Mother, S-11)  

60. Mother testified that she was satisfied with the March 2024 IEP but felt that the District could do more. At the time, Parents were uncertain whether they would unilaterally place Student at Windham Woods, and they wanted him to have “a strong IEP” moving into the upper elementary school. (Mother)

61. Ms. McLaughlin testified that she advised Parents to consent to the placement once the requested changes to the IEP had been made. (McLaughlin) Ms. McLaughlin has not observed Student’s placement at Davis School or the proposed placement at Lane School. (McLaughlin)[15]

62. School staff testified that the proposed IEP was appropriate, and both Davis and Lane Schools were capable of implementing the fully accepted revised March 2024 IEP. (Marino, Del Gobbo, Kirby, Bacher) Jane Del Gobbo is the Special Education Program Administrator at the Lane School. Ms. Del Gobbo has only met Student once. However, she attended the March 2024 IEP Team meeting and testified that Student’s IEP goals, accommodations, and services could be implemented at Lane School. For A Grid services, providers would schedule their own consultation sessions; B Grid services would be implemented in class by the special education teacher or the instructional assistant; C Grid services would most likely be implemented during the What I Need (WIN) Block, in which all students at Lane School participate. Lunch Bunch would most likely be implemented during recess, as school adjustment counselors found it challenging to provide services during busy elementary school lunch periods. Del Gobbo testified that Davis School is the only “feeder school” into Lane School. Lane School services grades 3 through 5. Many Lane School students have needs and services similar to those of Student. (Del Gobbo)

63. Student’s IEP accommodations and services were implemented immediately upon Parents’ acceptance of the March 2024 IEP. (Marino)

64. During the 2023–2024 school year, Student’s class evacuated several times due to a dysregulated peer, which caused Student anxiety. Parents worried these disruptions could trigger seizures. Ms. Marino testified that the peer targeted her, not Student, and she and Ms. Kirby ensured  that the peer did not sit at Student’s table. They processed each incident with the class. No seizures were observed at school. (Mother, Student, Kirby, Marino, P-21, P-22, P-23, P-24)  

65. During the 2023–2024 school year, a peer “punched” the van driver, which concerned Student because he liked the driver. (Student, Mother, Kirby, P-19) The peer was thereafter removed to a different vehicle. Another end-of-year van incident involving an exchange of playing cards also concerned Parents. (P-20, Mother) The Team then proposed, and Parents accepted, an Amendment to the 2023–2024 IEP for Student to transition from the van to the regular bus. Student successfully managed riding the regular bus. (Mother, Kirby, P-12)

66. Ms. Bacher testified that Student’s anxious behavior presented as hesitation. She had concerns regarding Student’s self-advocacy but did not feel that his self-esteem was decreasing. She opined that Student could apply learned skills to other settings “at times.” He needed continued support in this area, including coaching, facilitation, reinforcements, and check-ins. It was her goal in working with Student to have him recognize his strengths, focus less on things that were hard, and increase his self-awareness. She wanted “to build him up.” Ms. Bacher saw progress in that Student advocated for himself both during counseling sessions with peers and at recess. Benchmarks were assessed during sessions,  recess and specials. (Bacher)

67. Ms. Kirby testified that while Student sometimes worried about oral reading (e.g., losing his place), this was typical for second graders and did not impede his progress. Staff taught him strategies and supported him in recognizing and processing his worries with Ms. Bacher. The Team fostered confidence through class-wide social-emotional instruction and non-verbal reinforcement, which benefited Student. Ms. Kirby noted that confidence and self-esteem challenges are part of Student’s profile, and although he may always need support in these areas, he was responsive to interventions and his confidence improved over the year. (Kirby)

68. Student’s Progress Reports for the March 2024 IEP demonstrated progress on all  targeted goals and objectives. Not all objectives had been worked on as Student did not return for the 2024-2025 school year. (Bacher, P-13, S-13)

69.  Student’s 2023–2024 report card reflects that he performed consistently and independently across all subjects and was a cooperative, engaged learner. His writing showed growing stamina, improved sentence detail, and stronger endings. His reading became more fluent and accurate, with increasing ability to discuss characters, problems, and themes; he also demonstrated stronger comprehension strategies and active participation in group work. In math, Student gained confidence, practiced new concepts through partner activities, contributed more to in-class discussions, and effectively applied strategies to solve problems with larger numbers. (S-12)

70. Ms. Marino testified that Student made strong progress in confidence and self-advocacy and had learned to speak up. He met year-end benchmarks in math and phonics with Tier 1 instruction, and although reading and writing were harder, he made progress with support. She reported no concerns regarding peer interactions or bullying, and Parents did not raise such concerns with her. (Marino, S-3)

71. According to Ms. Bacher, Student would have transitioned to a new counselor at Lane School for 3rd grade. She and the new counselor would have collaborated for the “hand off.” (Bacher)

72. By July 2024, Parents decided that Student would attend Windham Woods for the following school year. (S-14)

73. Via email dated August 21, 2024, Parents informed the District that

“over the years [Student had] begun to lose his confidence as he feels he can’t do things that other kids can and he [began] to feel like he [was] different from other kids because he [was] taken out of the classroom so much. Due to these reasons [they felt] a smaller classroom setting [would] be beneficial to Student and his outside providers agree[d] with [] placing him at Windham Woods.”

(Mother, P-15, S-15)

74. On August 23, 2024, Bedford declined to fund Student’s placement at Windham Woods and offered to convene a Team meeting. (S-15, P-16) Parents did not respond to the offer of a Team meeting. (Del Gobbo, Mother)

75. On September 24, 2024, Bedford again contacted Parents to inform them that “[a]lthough [Student] [was] no longer enrolled in the Bedford Public Schools, [he] remain[ed] eligible to receive the special education services specified on [his] current [IEP].” (P-16)

76. Mother testified that although she received the Notice of Procedural Safeguards each year, she only understood “some of it” and did not find the document “helpful.”  (Mother)

77. Ms. Montgomery testified that she believed that Windham Woods’s multi-age groupings and institutional structure would benefit Student. The small class size was an essential feature for Student due to his low confidence which must be closely monitored, as he is less likely to self-report. (Montgomery)

78. Kristen Havey-Bergeron is the Elementary Director at Windham Woods. She is also a special education teacher with 18 years of experience in the field. (Havey-Bergeron, P-6)  Windham Woods is a language-based program that provides a highly individualized, skills-based curriculum for neurodiverse students. It emphasizes hands-on, project-based learning, outdoor classrooms, and explicit instruction in reading, writing, listening, and speaking, with speech and language support embedded across the program. Students receive targeted reading intervention in groups of 2 or 3, attend classes of 10 or fewer, and follow an appropriately challenging sequential curriculum. The program’s Eight Core Teaching Methods include project-based and outdoor instruction, pre-teaching vocabulary, repetition and rephrasing, micro-uniting content, consistent review and practice, literacy reinforcement across subjects, and daily executive function instruction to support access to content and academic progress. Windham Woods is not approved by the Department of Elementary and Secondary Education (DESE). (Havey-Bergeron, P-36, P-44, P-45)

79. Teachers at Windham Woods are not required to be licensed. Most have education degrees and backgrounds. They also undergo an extensive 2-week onboarding training and participate in monthly professional development.  (Havey-Bergeron)

80. According to Ms. Havey-Bergeron, Windham Woods relies on diagnostics to inform its students’ Individualized Learning Programs (ILPs), as it is not an approved private special education school. ILPs outline objectives for students in each subject area. IEPs often drive ILPs, and Windham Woods reports on IEPs when an agreement with a town so dictates. (Havey-Bergeron, P-39, P-42) Student’s ILP focuses on sight-word efficiency, decoding, fluency, spelling, the ending grid, and comprehension. (Musto)

81. Windham Woods incorporates frequent movement and, through its ECO class, emphasizes executive functioning and social skills throughout the day. Ms. Havey-Bergeron testified that Student feels safe, included, and comfortable at Windham Woods because transitions are well-prepared for and executive function supports are embedded. (Havey-Bergeron, P-40, P-45) Student requires direct support with organizing his writing, repetition, and scaffolding, speech and language, executive functioning, and predictability, and the small class sizes at Windham Woods are “huge” for him, allowing him to access to supports and questions. (Havey-Bergeron, P-39)

82. Although pull-outs at Windham Woods typically include 2 or 3 students, during the 2024-2025 school year, Student participated in daily, 1:1, 48-minute reading tutorials, utilizing syllabication from LiPS, Kilpatrick, and Read Naturally. (Musto, P-44) According to Ms. Musto, reading tutorials must be in small groups because it is “hard to do drills” in a large group. (Musto)

83. Ms. McLaughlin testified that Student appears to have positive peer interactions at Windham Woods and based on her conversations with Ms. Musto, has responded well to interventions and is making progress. She believes the small, language-based setting, strong sense of community, and minimal daily transitions have been beneficial for him. (McLaughlin)

84. Ms. Musto testified that she works with Student and his teachers at Windham Woods and develops his ILPs. She assessed Student before admission, in summer 2024, and again in fall 2025. Based on the TOWRE and GORT, his sight word efficiency and phonemic awareness increased between November 2023 and the end of the 2023–2024 school year, and more than doubled during 2024–2025. By the end of second grade, his reading rate improved, but not his accuracy; by the end of third grade, Student’s accuracy had increased by 30%. (Musto, P-41, P-42, P-43) She opined that Student’s rate of progress has been greater at Windham Woods than at Bedford. He is still difficult to understand at times and has expressed that it is hard for him when his peers do not understand him. (Musto) However, Student is very comfortable being himself at Windham Woods and even participated in a school play. (Musto, Student)

85. Ms. Musto does not believe that Student’s progress at Bedford was commensurate with his abilities because his progress during third grade at Windham Woods was greater. (Musto)

86. On February 24, 2025, Parents informed Windham Woods that Student would return in the fall and stated they were “beyond pleased” with his significant progress in just over half a year. They also expressed gratitude for receiving additional financial assistance for the new school year. (S-17)

87. In March 2025, Ms. Montgomery spoke with Mother, the latter expressing concerns that Student was “[p]ulling away from a lot of social stuff” and was being “[c]lingy at home.” She worried that “[o]lder kids take advantage of him,” and that he was “[n]ot advocating for himself.” She continued to have concerns about Student’s self-esteem, confidence, and self-advocacy, and noted that he had “anxiety with branching out.” (S-18)

88.  At Parents’ request, Ms. Montgomery observed Student at Windham Woods to assess peer interactions. She saw him engaging positively with peers. Her notes indicate the Director had told the former SLP that Student played mainly with one peer because others were less accepting of his speech, but the current SLP reported he has good bonds with several peers. (Montgomery)

89. Ms. Montgomery testified that she continues to work with Student on Theory of Mind, pragmatic skills, and self-advocacy. She wants to see Student expand on and generalize his skills across settings. (Montgomery)

90.  Student testified that he did not like getting pulled out “for his special needs” at Bedford. At Windham Woods, Student enjoys the extensive movement opportunities. He also likes having fewer kids in class because it means fewer kids to make fun of him. He reports having friends, liking school, and feeling accepted. He also feels that he learns more at Windham Woods than he did at Bedford. (Student)

DISCUSSION:

1. Legal Standards

1. Free Appropriate Public Education in the Least Restrictive Environment

The Individuals with Disabilities Education Act (IDEA) was enacted “to ensure that all children with disabilities have available to them a free appropriate public education” (FAPE).[16]  To provide a student with a FAPE, a school district must follow identification, evaluation, program design, and implementation practices that ensure that each student with a disability receives an Individualized Education Program (IEP) that is: custom tailored to the student’s unique learning needs; “reasonably calculated to confer a meaningful educational benefit”; and ensures access to and participation in the general education setting and curriculum as appropriate for that student so as “to enable the student to progress effectively in the content areas of the general curriculum.”[17]  Under state and federal special education law, a school district has an obligation to provide the services that comprise FAPE in the “least restrictive environment” (LRE).[18]  This means that to the maximum extent appropriate, a student must be educated with other students who do not have disabilities, and that “removal . . . from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services, cannot be achieved satisfactorily.”[19] “The goal, then, is to find the least restrictive educational environment that will accommodate the child’s legitimate needs.”[20] 

The IEP must be individually tailored for the student for whom it is created.[21]  When developing the IEP, the Team must consider parental concerns; the student’s strengths, disabilities, recent evaluations and present level of achievement; the academic, developmental and functional needs of the child; and the child’s potential for growth.[22]  Evaluating an IEP requires viewing it as a “a snapshot, not a retrospective. In striving for ‘appropriateness,’ an IEP must take into account what was . . . objectively reasonable . . . at the time the IEP was promulgated.”[23]

At the same time, FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential,[24] and appropriate progress will look different depending on the student.[25]  An individual analysis of a student’s progress in his/her areas of need is key.[26]  The educational services provided to a student, therefore, need not be, “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”[27]

2. Reimbursement for Private Placement

When parents elect to place a student unilaterally in a private school notwithstanding the availability of a free appropriate public education (FAPE) through the school district, parents retain responsibility for the cost of that education.[28]  However, parents who enroll a student in a private school without the consent of or referral by the school district may obtain reimbursement if a hearing officer finds both that the school district “had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate” for the student.[29] 

Parents are entitled to reimbursement for a private placement if (1) the school district’s proposed placement violated the IDEA, and (2) the parent’s alternative private placement was appropriate.[30]  In other words, parents may be entitled to reimbursement for their unilateral placement if, after demonstrating that the district’s proposed IEP and placement were not appropriate, they demonstrate that their chosen placement was appropriately responsive to the student’s needs. To be reimbursed, parents’ chosen placement need not meet state standards for special education schools, provided that the school chosen by the parents is “otherwise proper” under the IDEA or “appropriately responsive to [the child’s] special needs.”[31] Hence, the review of the private placement “is more informal than review of the original IEP: a private placement need not meet the IDEA requirement for a FAPE.”[32]

Although evidence of a child’s success at the unilateral placement is relevant to the court’s review, such evidence does not itself demonstrate that a private placement was appropriate; rather the Hearing Officer must assess the “totality of the circumstances,” and the parents “need only demonstrate that the placement provides ‘educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”[33]

3. Burden of Persuasion

In a due process proceeding, the burden of proof is on the moving party.[34] If the evidence is closely balanced, the moving party will not prevail.[35] In the instant case, as the moving party challenging the IEP and seeking public funding for the unilateral placement at Windham Woods, Parents bear this burden. That is, in order to prevail, Parents first must prove, by a preponderance of the evidence, that for the period for which they seek reimbursement, Bedford’s IEP was not reasonably calculated to provide Student with a FAPE.[36] If Parents meet this burden, they must then prove that Windham Woods was appropriate for Student for third grade. Parents are not held to the same appropriateness standard as Bedford and need only demonstrate that Windham Woods was responsive to Student’s special needs, so that he could benefit educationally.[37]

2. Application of Legal Standard[38]:

It is not disputed that Student is a student with a disability who is entitled to special education services under state and federal law. The fundamental issues in dispute are set out under ISSUES IN DISPUTE, supra.

Based upon two days of oral testimony, the extensive exhibits introduced into evidence, thoughtful arguments of Advocate and Counsel, and a review of the applicable law, I conclude that Parents did not meet their burden to show that Bedford’s IEP for the relevant time period was not reasonably calculated to provide Student with a FAPE in the LRE.  As such, I need not address the question of whether Windham Woods is “appropriately responsive to [Student’s] special needs.”[39] My reasoning follows.

My analysis as to the appropriateness of the March 2024 IEP, proposed prior to Parents’ unilateral placement at Windham Woods, turns on the information then available to the Team regarding Student’s needs and skill level, as noted supra.

When the Team convened in March 2024, it had available the results and recommendations from Dr. Goldin’s neuropsychological evaluation from 2021, Ms. Montgomery’s November 2023 speech and language evaluation, Ms. Musto’s 2023 educational evaluation, and the District’s re-evaluation. [40] These all identified deficits in reading, writing, communication, executive function, and social emotional skills. Ms. McLaughlin and Mother identified the following  concerns in anticipation of the meeting: word retrieval, executive functioning, phonics, reading, spelling, and social thinking challenges. Moreover, the Team was aware that Parents were concerned about Student’s self-esteem, confidence, and self-advocacy.  As discussed below, I find that the goals and objectives, services, and extensive accommodations proposed in the March 2024 IEP indeed addressed the concerns identified by all evaluators as well as those articulated by Parent and Ms. McLaughlin.

In their Closing Argument, Parents take issue with the goals in the IEP, as not aligning perfectly with the recommendations of outside evaluators.  However, a detailed review of the record does not support  Parents’ argument. The accommodations, goals, and services in the revised March 2024 IEP aligned with Ms. Montgomery’s recommendations that the District offer Student direct instruction in “compensatory strategies” and “learning to learn” skills, that “Growth Mindset” continue to be modeled and reinforced and, that the Team focus on effort, persistence, creativity, and flexibility when providing positive feedback. The IEP aligned with Ms. Musto’s recommendations that Student receive reading and writing intervention and a range of accommodations to help him access the curriculum appropriately, that his reading goal include more syllable types, and that additional goals related to oral reading fluency/comprehension and written expression be added. Ms. Kirby’s and Ms. Marino’s testimony was credible in demonstrating that, in conformity with Ms. Musto’s and Ms. Montgomery’s recommendations for “language-based instructional style,” their co-taught approach included language-based strategies that targeted reading, fluency, and comprehension instruction. In addition, Ms. Kirby, who has expertise as a certified Orton-Gillingham (OG) instructor and has also been trained in RAVO and LiPs, provided services utilizing these rules-based reading programs to Student both inside and outside the general education classroom and consulted with the Team for continuity of services.

In addition, Parents argued that Student had difficulty managing classroom and van disruptions and dysregulations by peers. They were concerned about the impact of these incidents on his seizure disorder. They were also concerned about Student’s ability to self-advocate and express his feelings relative to such incidents.  Parents’ concerns are certainly understandable. However, in this regard, the key question is whether Student’s exposure to peer disruptions or dysregulations impaired his ability to access instruction or negatively impacted his health condition. Here, given Student’s specific vulnerabilities, there were a handful of incidents that were upsetting to him. Nonetheless, there was no evidence that Student was deprived of educational benefit as a result of these disruptions or that his health was negatively impacted by them. Student continued to make progress. In addition, Student’s IEP included accommodations and strategies to allow him to respond to and process these situations and the feelings they evoked. Testimony was also convincing that both Ms. Marino and Ms. Kirby encouraged processing of the incidents, using them as teachable moments.  Further, no evidence was presented to indicate that the single peer’s disruptions made the peer cohort at Bedford inappropriate for Student.[41] Here, Parents expressed concern regarding possible bullying, and Student’s profile certainly made him vulnerable to same. The Team recognized this in Student’s IEP, including an Anti-Bullying directive as well as accommodations, goals, and services to target Student’s deficits, which rendered him vulnerable. There is no evidence that the District either failed to respond to peer conflict complaints or responded to them improperly. Ms. Kirby credibly testified that school staff were aware of Student’s profile and attempted to “protect him.”

Moreover, Parents’ partial rejection letter states they were “overall pleased with the IEP.”, and additional supports and benchmarks they requested were incorporated into the revised March 2024 IEP. (The additional goal area and benchmarks proposed by Ms. Musto’s report were included in the March 2024 IEP.) No expert suggested that Student’s IEP goals were not ambitious in light of his circumstances.[42]  Neither Ms. Montgomery nor Ms. Musto (nor Dr. Goldin) recommended a language-based program, nor a change in placement for  Student, and Ms. McLaughlin testified that she had advised accepting the IEP and placement. Further, Parents never raised the issue of Student’s placement to the Team. To the contrary, Parents accepted the March 2024 IEP and placement in full.[43]

The only recommendation not included in the March IEP was Ms. Musto’s suggestion that Student receive a minimum of 3 × 45 minutes of explicit writing instruction as a pull-out service. Instead of increasing pull-out support, the March 2024 IEP included additional push-in supports in the general education classroom.  School staff testified that this decision was based on a variety of factors. According to Ms. Kirby, the March 2024 IEP incorporated more push-in services to avoid classroom interruptions for Student. In addition, given Student’s progress, he no longer needed as many pull-out services, but rather more time in the classroom to generalize his skills in that setting. Student’s reading goal focused on applying learned skills to connected text, fluency, comprehension, and accessing grade-level text, which was non-controlled and non-predictable. His writing goal focused on idea generation, organization, and editing. As Ms. Musto did not solicit teacher input for her evaluation prior to making the recommendation for increased pull out services, nor did she attend any Team meetings for Student or observe him at his program, I find the Team’s decision to be reasonable.

The record shows that the Team considered Student’s progress when developing the March 2024 IEP. While all evaluations demonstrated on-going deficits in the areas of reading, writing, executive functioning, and social/emotional, none indicated that Student had not made effective progress or that his progress was not commensurate with his abilities.[44]   Student’s rate of progress was not raised as a concern at the March 2024 Team meeting or in the partial rejection. Student’s progress reports and the consistent testimony of school staff demonstrate that Student was making progress on his goals and meeting many of his benchmarks. Parents too acknowledged that Student was making progress,  in reading and social skills, both in their partial rejection letter as well as during private communications with Ms. Montgomery.  In fact, the record includes multiple instances in which Parents shared that they were pleased with  Student’s progress.  Ms. Musto’s report also stated that Student had made “some progress” and that “Student was benefiting from the phonics instruction he was currently receiving.”  Thus, according to all measures, while at Bedford, Student was making progress on all his goals and objectives, and Ms. Musto herself testified that Student’s reading had improved from the time of her testing until his unilateral placement. That she found that “he continued to have important skills that fall below age- and grade-based expectations” does not negate the progress that he had made.[45] As District staff persuasively testified, Student’s needs are an ongoing part of his profile.  Staff expected that Student would have on-going challenges given his deficits, provided that he also made effective progress. (I note, by way of example, that Ms. Montgomery has herself been working with Student on deficits in social communication for five years, and they are not yet remediated.)

Moreover, the record shows that while at Windham Woods, Student continued to have the same social-emotional challenges he experienced at Bedford. Mother continued to have concerns about Student’s social emotional functioning in March 2025 while he attended Windham Woods, expressing  to Ms. Montgomery issues that Student was “[p]ulling away from [] social stuff”; he was “[c]lingy at home; “[o]lder kids take advantage of him”; and he was “[n]ot advocating for himself.” Mother continued to be concerned about Student’s self-esteem, confidence, and self-advocacy, and went so far as to hire Ms. Montgomery  to observe Student at Windham Woods due to these concerns.

I also do not find persuasive Ms. Musto’s testimony  that Student’s progress at Bedford was not commensurate with his abilities because he made greater progress at Windham Woods. The IDEA does not require a school district to maximize a child’s potential. While “any progress that [a student goes] on to achieve at [the unilateral placement] is relevant to whether that was an appropriate unilateral placement by his parents, the issue whether [the school district] offered him [a FAPE in the LRE] depends solely on the information before the [IEP Team] at the time of the IEP meeting.”[46] Here, the District customized Student’s educational program “on the basis of [his] assessment[s] and performance,”[47] and there was no evidence that Student did not make progress commensurate with his abilities at Bedford. That Student could have made greater progress elsewhere is not the relevant inquiry.[48]

I turn next to the appropriateness of the disability category identified in the IEP, an issue that Parents did not raise with the Team.  In general, when faced with competing disability categories, the primary disability classification is that which primarily impedes a student’s ability to access his education.  The March 2024 IEP included disability categories of Neurological and Health.  Parents contend these categories were inappropriate and that the appropriate categories were not included. They argue that Student’s access to  education was impacted more significantly by his SLD, communication, executive functioning, and social-emotional challenges, than  by his ADHD and/or seizure disorder.  Specifically, Parents assert that Student “has never been diagnosed by a medical or other provider as having a neurological impairment of any kind….Further review of the both PLEP-A and B reveal very little impact from his ADHD diagnosis.”   

Nevertheless, it is well established that the IDEA makes no specific provision for a student to be classified under a particular disability but instead requires that the student’s educational program be designed to suit the student’s demonstrated needs.[49] The fact that Parents believe that Student’s disability  was mislabeled does not per se mean that he was denied a FAPE. Massachusetts regulations define a neurological impairment as a limitation to the capacity of the nervous system with difficulties exhibited in one or more of the following areas: the use of memory, the control and use of cognitive functioning, sensory and motor skills, speech, language, organizational skills, information processing, affect, social skills, or basic life functions….[50] The regulations define a Health Impairment as a chronic or acute health problem such that the physiological capacity to function is significantly limited or impaired and results in one or more of the following: limited strength, vitality, or alertness including a heightened alertness to environmental stimuli resulting in limited alertness with respect to the educational environment. The term includes health impairments due to asthma, attention deficit disorder or attention deficit.[51]  Ms. Kirby offered credible testimony that the Team discussed the disability categories and agreed that Neurological and Health best captured Student’s deficits. Parents did not object to the classifications at that time nor in their partial rejection letter, which they drafted with Ms. McLaughlin’s assistance.

Even if Parents could prove that Student’s disability classification in the IEP was improper, they would still need to establish that the IEP denied Student a FAPE on the basis of his unique needs, regardless of the disability label given to those needs,[52] and, in the instant matter, I find that Parents have not met that burden. Although the First Circuit has not addressed this issue explicitly, in Heather S. v. State of Wisconsin, the Seventh Circuit found that, in general, “[t]he IDEA concerns itself not with labels, but with whether a student is receiving a free and appropriate education.”[53]  In Bell v. Board of Education of the Albuquerque Public Schools, for instance, the district court found that incorrect identification led to a denial of FAPE for a student with a learning disability who, for two years, was mislabeled as cognitively delayed. “[U]nconvinc[ed]” that a school district “would design the same IEP for a learning disabled student as it would for a [cognitively challenged] student,”[54] the court further noted, however:

“This general finding, however, does not mean that Bell was necessarily denied a FAPE….[Rather,] Bell has specifically demonstrated that his IEP changed when his eligibility was changed. Labels are not determinative. They are, however, often important. [The District’s] actions in changing Bell’s IEP indicate that Bell’s situation was one in which the incorrect label turned out to be important.”[55]

In Bell, the change in classification resulted in a drastically different IEP with a “significant number of objectives and modifications.”[56] 

As noted above, Parents object to the failure to include an SLD disability category.  While the record is not fully clear as to whether the Team engaged in the appropriate process to determine whether Student’s IEP should have included an SLD disability category, no specific learning disability eligibility form was provided with the March 2024 IEP, as required in Massachusetts, so I make the assumption that it did not.[57]  However, based on the facts in the instant case, this error was harmless.[58] Specifically, as discussed above, this is not a case in which a specific disability category on an IEP was crucial, especially given that Ms. Kirby testified that Student received the reading and writing services he would have received had his IEP included an SLD disability category.

In the same way, the failure to include Communication or Emotional disability categories did not affect Student’s receipt of a FAPE or the appropriateness of the March 2024 IEP, as Student received speech and language services and his IEP addressed his communication and social pragmatic needs. The IEP also addressed social-emotional deficits with benchmarks, accommodations,  and interventions. Ms. Bacher, Ms. Marino, and Ms. Kirby offered extensive testimony as to how Student’s social emotional needs were addressed by the Team throughout his day.

Thus, no changes to strategies, interventions, goals, or objectives in the March 2024 IEP were necessary due to his learning disability, communication deficits, or social-emotional challenges.[59] Student’s March 2024 IEP, incorporating the recommendations from Student’s re-evaluation and Ms. Montgomery’s and Ms. Musto’s reports, addressed the documented skill deficits that interfered with Student’s ability to learn.  In the present matter, even if Student’s IEP had included an SLD and/or Communication Disorder and/or Emotional Impairment disability category, there is no persuasive evidence in the record to suggest that such an IEP would have included different or additional supports and services or addressed different deficit areas than those contained in the March 2024 IEPs.[60] 

For all the above reasons, I find that the March 2024 IEP was reasonably calculated to provide a free, appropriate public education to Student in the least restrictive setting.

Because Parents did not meet their burden to show that Bedford’s IEP for the relevant time period was not reasonably calculated to provide Student with a FAPE in the LRE, I need not reach the question of whether Windham Woods is “appropriately responsive to [Student’s] special needs.”[61]

ORDER:

The Individualized Education Program developed by Bedford for Student during the relevant time periods was reasonably calculated to provide a free, appropriate public education to Student in the least restrictive setting.  Parents are not entitled to reimbursement for expenses incurred for Student’s placements at Windham Woods, nor for any other expenses incurred during said time.

So Ordered,

By the Hearing Officer,

/s/ Alina Kantor Nir

December 2, 2025

Alina Kantor Nir, Hearing Officer

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] Student also has a history of idiopathic zinc deficiency. (Mother)

[2] Student participated in 3 subtests of the Bruininks-Oseretsky Test of Motor Proficiency (BOT-2). On the fine motor and manual dexterity subtests, Student scored within the below average range. (P-34)

[3] The Theory of Mind results were based on Parent ratings only. (Montgomery)

[4] Student testified that other than when he was being chased, he liked recess at Davis School. (Student)

[5] In the past, Ms. Musto worked at Landmark School, first as a reading director and then as a testing director. (Musto, P-8)

[6] Ms. Musto utilized the following tools in her evaluation: Wechsler Individual Achievement Test – Fourth Edition (WIAT-IV); Test of Word Reading Efficiency – Second Edition (TOWRE-2), Form B; Comprehensive Test of Phonological Processing – Second Edition (CTOPP-2), selected subtests; Gray Oral Reading Test – Fifth Edition (GORT-5), Form A; and Word Identification and Spelling Test (WIST).  (S-8)

[7] As the current Director of Reading at Windham Woods, Ms. Musto also evaluated Student upon admission and at the conclusion of the 2024-2025 school year. (Musto)

[8] The following tools were utilized in this evaluation: Wechsler Intelligence Scale for Children, Fifth Edition (WISC-V); Feifer Assessment of Reading (FAR) – select subtests; Feifer Assessment of Writing (FAW) – select subtests; Kaufman Test of Educational Achievement – Third Edition (KTEA-3) – Brief form; and Behavior Assessment System for Children, Third Edition (BASC-3) – Parent & Teacher forms. (S-2)

[9] Mother testified that she completed the BASC-3 relevant to Student’s behaviors at home, not school. (Mother)

[10] This evaluation utilized the BOT-2, Developmental Test of Visual Perception, 3rd edition (DTVP-3), Sensory Processing Measure, Child School Form (SPM-2), and clinical observation. (S-6)

[11] This evaluation utilized the following: The Comprehensive Assessment of Spoken Language-2nd Edition (CASL-2); The Oral Passage Understanding Scale (OPUS); The Receptive, Expressive, and Social Communication Assessment-Elementary; (RESCA-E): Social Communication Core Subtests; Arizona Articulation and Phonology Scale, 4th Revision (Arizona-4); Speech Language Case History Form-completed by parent; Oral Peripheral Examination; Classroom Observation; and Records Review.(S-7)

[12] Ms. McLaughlin currently works as the Assistant Reading Director for Windham Woods.  (McLaughlin, P-7)

[13] In January, 2024, Student’s DIBELS scores were as follows: Nonsense Word Fluency- Correct Letter Sounds: 86; Nonsense Word Fluency- Words Recoded Correctly: 29; Word Reading Fluency- 52; Oral Reading Fluency- Words Connect- 97; Oral Reading Fluency- Accuracy- 100%. Student’s progress toward goals was as follows: Student met all 5 of both his previous Communication goal and previous Phonics goal objectives; and 2/3 Sensory Motor goal objectives, specifically visual memory skills and accuracy with letter placement, while partially meeting the keyboarding objective as he was able to use both hands to type at a rate of 3 words per minute with 99% accuracy, but not at 5 words per minute.  On his most recent math written assessment, Student scored 72% and was working on showing his work when problem solving. (P-12, S-9)

[14] The Additional Information section also included a statement that Occupational Therapy would be delivered through a 3:1 flexible service model emphasizing collaborative services to promote carryover of skills to the classroom and real-life settings. It also referenced a Medical Plan for Student’s seizure disorder, noted that Student would attend a monthly “lunch bunch” with the school counselor, and indicated that ESY was not required for summer 2024, with progress to be monitored in fall 2024 to determine any substantial regression. The Team also planned to discuss introducing bus transportation in spring 2024. (S-11)

[15] Ms. McLaughlin did not continue her advocacy work with Mother after assisting her with the partial rejection letter. (Mother, McLaughlin)

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

[17] See 20 U.S.C. §1401(9), (26), (29); 603 CMR 28.05(4)(b); C.D. by and through M.D. v. Natick Public School District, 924 F.3d 621, 629 (1st  Cir. 2019); Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d 84, 84 (1st Cir. 2012); Lessard v. Wilton Lyndeborough Cooperative Sch. Dist., 518 F. 3d 18 (1st Cir. 2008); C.G. ex rel. A.S. v. Five Town Comty. Sch. Dist., 513 F. 3d 279 (1st Cir. 2008).

[18] 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 28.06(2)(c).

[19] 20 U.S.C. §1412(a)(5)(A); C.D. v. Natick Pub. Sch. Dist., 924 F. 3d at 631 (internal citations omitted).

[20] C.G. ex rel. A.S., 513 F.3d at 285.

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

[22] 34 CFR §300.324(a)(i-v); Endrew F., 137 S. Ct. at 999; D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012); N. Reading Sch. Comm. v. Bureau of Special Educ. Appeals of Mass. Dep’t of Educ., 480 F. Supp. 2d 479, 489 (D. Mass. 2007) (“The First Circuit has characterized the federal floor, which defines the minimum that must be offered to all handicapped children, as providing a meaningful, beneficial educational opportunity, and that Court has stated that a handicapped child’s educational program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”) (internal citations and quotations omitted).

[23] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).

[24] Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 197, n.21 (1982) (“Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education”); see N. Reading Sch. Comm., 480 F. Supp. 2d at 488 (“The focus of inquiry under 20 U.S.C. §1415(e)(i) must recognize the IDEA’s modest goal of an appropriate, rather than an ideal, education”).

[25] Endrew F., 580 U.S. at 400-401; see also 603 CMR 28.02(17). 

[26] Endrew F., 580 U.S. at 388 (“The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue”); see K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 809 (8th Cir. 2011) (explaining that the court would not compare the student to her nondisabled peers since the key question was whether the student made gains in her areas of need).

[27] G.D. Westmoreland Sch. Dist., 930 F.2d at 948-949.

[28] See 34 CFR §300.148.

[29] 34 CFR §300.148(c). See 20 USC §1412(a)(10)(C)(ii); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 243 (2009) (explaining that §1415(i)(2)(C)(iii) authorizes “reimbursement when a school district fails to provide a FAPE and a child’s private school placement is appropriate”).

[30] See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) (parents are entitled to reimbursement only if federal court concludes public placement violated IDEA and private placement was proper, and the court is to consider all factors in fashioning equitable relief); Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 349 (1985) (parents may be reimbursed for private special education if court ultimately determines private placement was proper).

[31] Florence Cnty., 510 U.S. at 14; see Matthew J. v. Mass. Dep’t. of Educ., et al., 988 F. Supp. 380, 391 (1998).

[32] H.W. v. New York State Educ. Dep’t, No. CV 13-3873 SIL, 2015 WL 1509509, at *19 (E.D.N.Y. Mar. 31, 2015); see Florence Cnty., 510 U.S. at 14–15, (“Nor do we believe that reimbursement is necessarily barred by a private school’s failure to meet state education standards…. Indeed, the school district’s emphasis on state standards is somewhat ironic. … [It] hardly seems consistent with the Act’s goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child’s needs in the first place”) (internal citations and quotations omitted).

[33] H.W.,  2015 WL 1509509, at *19; see Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) (“No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs”) (internal citations and quotations omitted).

[34] Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62 (2008).

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

[36] Id.

[37] Florence Cnty., 510 U.S. at 13 (1993); Doe v. West Boylston Sch. Comm., 28 IDELR 1182 (D. Mass., 1998); In Re Gill-Montague RSD, BSEA #01-1222 (Crane, 2001). 

[38] 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.

[39] Florence Cnty., 510 U.S. at 14.

[40] I note that in their Closing Argument, Parents observe that “each of the school evaluations [] fell short in providing a clear picture of [Student].… [T]here were discrepancies in test findings and teacher input with no explanation offered. There was an over-reliance on single assessments as evidence of progress.” This issue was not raised by Parents in their Hearing Request and is not addressed in this Decision.   

[41] Compare J.L. v. City Sch. Dist. of City of New York, No. 12 CIV. 1516 CM, 2013 WL 625064, at *11 (S.D.N.Y. Feb. 20, 2013) (rejecting the argument that “C.L.’s placement in a classroom at PS 198, with ‘an unknown and potentially disruptive or low-functioning grouping of students’ (which could be read as nothing more than a thinly—veiled reference to ‘not the sort of child who goes to an expensive private school’) was inconsistent with the recommendations in the various reports in the child’s record” as well as parents’ suggestion “that they had a right to know more details about the 11 other children who would have been in C.L.’s public school placement, so they could evaluate whether those children were sufficiently ‘calm’ and ‘non-aggressive’ to allow their son to receive a FAPE [as the]IDEA affords the parents no right to participate in the selection of their child’s classmates. Furthermore, private school is no guarantee of non-disruptive peers”).

[42] See Endrew F., 580 U.S. at  388 (“educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives”).

[43] Mother testified that she was confused about the unilateral placement process. She also testified that she had received the Notice of Procedural Safeguards but did not find the document helpful. Although I empathize with parents who must navigate the special education process, I note that in the instant matter Mother had the benefit of working with an advocate at a time when, according to the record, she was contemplating a unilateral placement. As such, she could have tapped her advocate’s expertise in clarifying the unilateral placement process.

[44] See Sebastian M., 685 F.3d at 86 (“Sebastian ‘made progress commensurate with his ability” under his previous IEPs… ’”).

[45] See Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 397 (5th Cir. 2012) (“Nowhere in Rowley is the educational benefit defined exclusively or even primarily in terms of correcting the child’s disability.  ..the whole educational experience, and its adaptation to confer ‘benefits’ on the child, is the ultimate statutory goal”).

[46] J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 653 (S.D.N.Y. 2011).

[47] Klein, 690 F.3d  at 397–98.   

[48] See Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 133 (2d Cir. 1998) (“The inadequacy of an IEP is not established, however, simply because parents show that a child makes greater progress in a single area in a different program”) see also Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1039–40 (3d Cir.1993) (child’s “dramatic progress” in alternative program chosen by parents does not, by itself, establish that a proposed IEP was not “reasonably calculated to enable the child to receive educational benefits”) (internal citations omitted).

[49] See 20 U.S.C. §1412(a)(3)(B) (“Nothing in this chapter requires that children be classified by their disability so long as each child who has a disability listed in section 1401 of this title and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under this subchapter”); Fort Osage R-1 Sch. Dist. v. Sims ex rel. B.S., 641 F.3d 996, 1004 (8th Cir. 2011) (“Given the IDEA’s strong emphasis on identifying a disabled child’s specific needs and addressing them, … the particular disability diagnosis affixed to a child in an IEP will, in many cases, be substantively immaterial because the IEP will be tailored to the child’s specific needs…. [T]he party challenging the IEP must show that the failure to include a proper disability diagnosis ‘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.”); K.E. ex rel. K.E., 647 F.3d at 814 (“A school district is not required to identify a student’s issues by name or official diagnosis so long as the IEP properly identifies and addresses the student’s disability”).

[50] 603 CMR 28.02(e).

[51] 603 CMR 28.02(i).

[52] See In re: Student and Hamilton-Wenham Regional School District, BSEA #21-04633 (Kantor Nir, 2021).

[53] Heather S. v. State of Wisconsin, 125 F.3d 1045, 1055 (7th Cir.1997).

[54] Bell v. Bd. of Educ. of Albuquerque Pub. Sch., No. CIV.06-1137 JB/ACT, 2008 WL 5991062, at *27 (D.N.M. Nov. 28, 2008)

[55] Id.

[56] Id. at *28.

[57] In Massachusetts, the Specific Learning Disability Team Determination of Eligibility form (28M/10) is mandated for inclusion in every eligibility determination Team meeting and includes documentation of the four components used to determine eligibility. Each component has a corresponding SLD form to document the findings. See Memorandum on Specific Learning Disability — Eligibility Process/Forms (December 10, 2017)  which may be found at https://www.doe.mass.edu/specialeducation/iep/sld/.

[58] Not every procedural violation by a school district amounts to a denial of FAPE. “[A] hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies impeded the child’s right to a FAPE;

significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provisions of a FAPE to the parent’s child; or caused a deprivation of educational benefits.” 34 CFR 300.513 (a)(2).

[59] See Bell, WL 5991062, at *27; see also Torda ex rel. Torda v. Fairfax Cty. Sch. Bd., 517 F. App’x 162, 163 (4th Cir. 2013) (agreeing with lower court that by addressing all  the student’s difficulties in processing information, the school district essentially nullified any IEP challenges relating to his classification).

[60] See Torda, 2012 WL 2370631, at *17 (ruling that a district’s failure to list a second disability in the student’s IEP did not amount to an IDEA violation because the IEP addressed all the student’s needs, regardless of his classification).

[61] Florence Cnty., 510 U.S. at 14; see Walczak, 142 F.3d at 134 (“The Walczaks are, of course, free to continue educating their daughter at Maplebrook if they wish. Nevertheless, because the School District has demonstrated by a clear preponderance of the evidence that the 1995–96 IEP complied with the requirements of IDEA, it cannot be ordered to reimburse the parents for expenses incurred as a result of their decision to remove their child from the BOCES program”).