COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

 

In Re: Braintree Public Schools v. Student

BSEA: No. 2409030                    

DECISION

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

On March 4, 2014, the Braintree Public Schools (Braintree, District or BPS), filed a request for hearing seeking an order determining that the District had made good faith efforts to provide Student with a free, appropriate public education (FAPE), including but not limited to conducting evaluations, providing services, and seeking placements, from approximately February 2023 to April 2024, but was impeded in doing so by Parent’s conduct, including Parent’s alleged failure and/or refusal to accept services, make Student available for evaluations, or send referral packets to prospective placements. 

Upon receipt of this hearing request, the BSEA assigned the matter to the “accelerated” track pursuant to Rule II.D. of the Hearing Rules for Special Education Appeals and assigned an initial hearing date of April 3, 2024.  Shortly thereafter, however, Parent informed the BSEA and District that her native language is Polish, and requested that Braintree provide her with a Polish translation of the hearing request.  The District did so on March 18, 2024, and, the BSEA issued a recalculated notice of (accelerated) hearing designating a hearing date of April 8, 2024.  From that date forward, all pleadings filed by the District, and orders issued by the BSEA, were provided to Parent in both English and Polish. 

At the request of the parties, the hearing was postponed on several occasions for good cause and was removed from the “accelerated” track.  Between March 2024 and the final day of hearing on September 16, 2024, the parties filed, and the undersigned hearing officer ruled on, multiple motions, which, for the most part, addressed procedural and/or evidentiary matters.    

The hearing was held on May 24, June 6, June 7, July 10, July 12, August 26, August 27, September 6, September 10, and September 16, 2024. The District was represented by counsel and Parent was represented by an advocate.  At Parent’s request, the hearing was opened to the public.  Immediately prior to the hearing, this Hearing Officer engaged in an on-the-record, non-public colloquy with Parent, informing Parent that if she were to proceed with the public hearing, she would be waiving numerous privacy and confidentiality rights guaranteed to her child and herself by Federal and state law.  This colloquy was presented in English and translated into Polish by a professional interpreter.  Additionally, prior to the hearing, Parent was provided with a written waiver of such privacy rights, in English and in Polish.  Parent stated orally that she would knowingly and willingly waive the above-referenced privacy rights, and also signed the written waiver. 

With the consent of both parties,[1] the hearing was conducted via Zoom Webinar. Both parties had an opportunity to examine and cross-examine witnesses, as well as to submit documentary evidence for consideration by the Hearing Officer.  The BSEA provided Polish language interpreters for each day of hearing.[2]  The parties requested and were granted a postponement until September 16, 2024, on which date Parent presented an oral closing argument, and the District submitted a written brief.  The record closed on September 16, 2024. 

The record in this case consists of School’s Exhibits S-1 through S-54, Parents’ Exhibits P-A through P- YY, as well as stenographically-recorded witness testimony and argument.  Those present for all or part of the proceeding were the following:

Student’s Mother               Parent

Paul Bowen                       Head of School, Fusion Academy, Hingham, MA

Leah Callahan                              Teacher, Quest Program, SSEC

Elizabeth Donahue            Clinician, Quest Program, South Shore Educ. Collaborative

Emily Holleran                              Team Chair, Braintree Public Schools

Caitlin Looby                     Attorney for Dept. Elementary & Secondary Education

Bethanne Packard             Out of District Case Manager, Braintree Public Schools

Dr. Petra Platt                              Director of Student Services, Braintree Public Schools

Stacey Szulak                              Special Education Teacher, Braintree Public Schools

Adam Tiro                         Advocate for Parent and Student

Caitlin Leach Mulrooney     Attorney for Braintree Public Schools

Sara Berman                     BSEA Hearing Officer

Izabella Nagiel                             Interpreter

Agnieszka Kwiecien           Interpreter

Monika Puah                     Interpreter

Beata Kwapicz                             Interpreter

Daniel Kramer                              Guardian[3]

Roberta Ebhert                  Guardian

Ellen Muir                          Senior Guardian

 

 

ISSUES PRESENTED

The issues to be decided are as follows, with respect to the time period of September 2022 to June 2024:

 

1. Whether the Braintree Public Schools has made a good faith effort to provide Student with a free, appropriate public education (FAPE) and that Parent’s alleged refusal of all offered services has impeded Braintree’s ability to provide Student with FAPE;

2. Whether Braintree has offered appropriate locations to evaluate Student and whether Parent’s refusal to make Student available for such evaluation, to visit those proposed locations, and/or speak with evaluators regarding proposed testing is impeding Braintree’s ability to evaluate Student;

3. Whether Parent’s refusal to engage in the intake process for placement at High Roads [school] and overall alleged limitation of Braintree’s ability to communicate with potential placements is impeding Braintree’s ability to identify a new placement for Student consistent with her IEP;  

4. Whether, due to Parent’s alleged refusal of all tutoring and counseling services offered by Braintree for the 2023-2024 school year as well as refusal to permit sending of referral packets in a timely manner, Student is not entitled to compensatory services for this period.

 

POSITION OF SCHOOL

From the time that Student’s placement at the South Shore Education Collaborative was terminated in February 2023, Braintree has attempted to secure an appropriate successor placement for Student, to provide appropriate interim tutoring and counseling services pending location of such placement, and to conduct updated evaluations.  Parent has consistently thwarted Braintree’s efforts by refusing proffered services, refusing to allow referrals to potential placements, and refusing to make Student available for evaluation.  Because any loss of educational benefit to Student is entirely attributable to Parent’s conduct, Student is not entitled to compensatory services for that period.

POSITION OF PARENT

Braintree has violated many of Student’s special education rights.  For example, Braintree violated her rights to “stay put” at South Shore Collaborative and at Fusion Academy.  As for Braintree’s allegations in its hearing request, the District’s failure to convene a Team and develop an IEP for Student from April 2023 to April 2024 is such a egregious violation of applicable law that it cannot prevail on any of its claims. That Student has not been accepted at any out-of-district school, including High Roads, was due to Braintree’s failure to develop a current IEP, not Parent’s actions.  Braintree filed this hearing request in order to cause a “set aside” of a pending PRS complaint, on which it knew Parent was going to prevail.

Regarding evaluations, Braintree ignores the recommendations of Student’s clinicians that she must be evaluated in a familiar location to protect her fragile emotional state and obtain accurate results.  Fusion is such an appropriate setting, and the District refuses to allow evaluations to take place there.  

Braintree, not Parent, initiated the offer of Fusion, and Student was very successful there.  Instead of continuing Student at Fusion or considering why the Fusion model was successful for Student, Braintree persisted in offering tutoring that would not be successful because it would be provided by strangers, in unfamiliar locations.  Braintree should place Student at Fusion pending location of another placement. 

Lastly, Parent has felt continuously disrespected, unheard and treated with disdain by Braintree during Team meetings and other interactions.   

SUMMARY OF THE EVIDENCE

Overview of Student Profile

1. Student is a nearly fifteen-year-old girl who lives with Parent in Braintree, Massachusetts.  Student’s eligibility for special education services from the Braintree Public Schools is not in dispute.  Student has not attended any school since approximately June 2023. 

2. Student is described as a bright, articulate, caring, creative teen, who enjoys reading and drawing.  Cognitive testing indicates “average” range abilities, with strengths in verbal comprehension and fluid reasoning, and relative weakness in visual-spatial reasoning and processing speed.  (S-45).  When she has attended school, Student has been able to perform at grade level with support, and shows especially strong reading, writing, and artistic skills.  Her math skills are somewhat weaker, but she makes progress  with support.  (S-42)  

3. The parties do not dispute Student’s disability profile.  The most recent neuropsychological evaluation, performed by John Fahey, Ph.D. in March 2024, yielded diagnoses of “mild” Autism Spectrum Disorder (ASD), “on the higher end of the spectrum,” Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder, recurrent, moderate, Panic Disorder without Agoraphobia, Attention Deficit Hyperactivity Disorder (ADHD), combined type, and elements of a Nonverbal Learning Disorder (NLD).  (S-45) 

Student’s constellation of disabilities, which are intertwined and tend to potentiate one another, impede her ability to initiate and sustain social conversations and read social cues and nuances, to identify her own and others’ emotions, to take the perspectives of other people, to regulate her emotions, to plan and organize tasks, to think flexibly, to sustain her attention, and to control her impulses.  Student experiences “near constant tension and worry, panic reactions, and entrenched patterns of avoidance.”  (S-45)

Consistent with the above, Student has historically struggled with interpersonal relationships and transitions.  She sometimes makes extreme and provocative statements, periodically experiences suicidal ideation, becomes very rigid in her thinking, has trouble regulating emotions, sometimes engages in self-injurious behavior, and sometimes vomits when stressed.  (S-1, 2, 41, 45) As a result of her disabilities, Student is vulnerable to teasing, bullying and harassment.  (S-41) 

4. While the parties may disagree on the details of the type of programming that Student requires to make educational progress (for example, Parent believes that Student must be instructed in a 1:1 setting, with opportunities for peer contact outside of class, while the District’s position is that she should be educated with peers, within a therapeutic setting), they agree that Student requires placement in a substantially separate, out-of-district school program with therapeutic support available throughout the day.  (S-41) 

Chronology

5. Student began her educational career in the Braintree Public Schools, which found her eligible for special education on the under the categories of “emotional disturbance” (i.e., PTSD) and “other health impairment” (ADHD) in or about May 2018, at the end of Student’s second grade year.  (S-1, S-2-B)

During the 2018-2019 and 2019-2020 school years (third and fourth grade), Student attended Quest, which is a therapeutic program operated by the South Shore Education Collaborative (SSEC).  Student was placed at Quest to address social, emotional, and behavioral concerns.  Reportedly, Student was very successful in this placement, making progress in all domains and developing strong connections with peers.  (S-3) 

6. After Student completed fourth grade at Quest, her family moved to California, where Student attended fifth grade (2020-2021) and sixth grade (2021-2022). 

During fifth grade, Student participated in both general and special educational programming.[4]  It appears that all instruction was delivered remotely due to the pandemic.  Within this context of remote instruction, Student’s general and special education teachers described her as sweet, hardworking, happy, friendly, independent, eager to please, and respectful.  She had some difficulty with focus and work completion, but generally performed at grade level, with strengths in reading and language arts, and relative weaknesses in math.  (S-2(B))

7. In November and December 2020, the California district conducted a comprehensive triennial re-evaluation of Student consisting of a review of prior evaluations by Braintree, standardized cognitive and academic testing, behavioral rating scales and questionnaires, classroom observations, and interviews with Parent, teachers, and Student.  The evaluation results revealed that that while Student’s cognitive and academic abilities were solidly average or above average in most areas, she continued to be eligible for special education under categories of Emotional Disturbance and “Other Health Impaired.”   (ADHD).  (S-2(B)) 

8. In or about late January 2022, midway through Student’s sixth grade year, Parent removed her from the placement provided by the school district and privately enrolled her in a “tutoring option” at a Fusion Academy[5] (Fusion) program in Student’s community in California because she believed the public-school placement was too large and overwhelming and did not provide an education for Student.  Additionally, Parent believed that Student required a transportation monitor. (S-2(A))

According to reports of Fusion staff to the California Team, Student attended Fusion four days per week, either three or five hours per day,[6] and received tutoring in English, Math, History, Art and Yoga.  While at Fusion, Student preferred to work independently, in a separate room, and occasionally interacted with peers in a “homework café” and on one or two field trips.  Fusion’s goal was to increase Student’s peer interaction. Fusion did not issue benchmark assessments of Student’s academic skills.  The Fusion teachers held a minimum of a Bachelors’ degree in content areas but did not hold teaching credentials. (S-2(A))

9. On April 29, 2022, while Student was still attending Fusion, the California district issued an IEP for the 2022-2023 school year which offered goals addressing Student’s social/emotional and academic (math) needs and proposed an array of accommodations and services including specialized instruction, counseling for Student and Parent, psychological consultation, daily transportation and extended school year (ESY) services.  The proposed placement was a substantially separate “non-public” school that contracted with the California district.  Parent partially rejected the IEP insofar as it did not include 1:1 instruction for times when Student was unable to participate in small groups.  (S-2(A))

At a subsequent IEP meeting on June 10, 2022, Parent requested the California district to provide a monitor for Student’s transportation to and from the proposed non-public school.  Parent also requested consideration of placement at Fusion Academy, to be funded by the district.  In a letter dated June 14, 2022, the California district denied both requests on grounds that evaluative information and Student’s past experience with transportation did not indicate a need for a monitor, and that the proposed non-public placement would be equipped to meet Student’s identified needs.  (S-2(C)) While the record is not explicit on this issue, it appears that Student completed the 2021-2022 school year at Fusion Academy.  (S-2(B))

10. Parent and Student returned to Braintree prior to the beginning of the 2022-2023 school year (seventh grade).  On or about August 29, 2022, Braintree offered to immediately place Student at Quest in order to implement Student’s then-current IEP from California.  Parent declined an offer of evaluation at that time because Student had recently been evaluated in California and Parent wanted her to settle into school.  Braintree also offered tutoring on an interim basis.  Parent refused such placement until an IEP meeting had been held for purposes of drafting a new IEP.  Parent initially refused the offer of tutoring because there would be no transportation monitor.  She then agreed to try transportation without a monitor, but subsequently informed the District that Student could not begin tutoring because of mental health issues. (Packard, S-5)

After meeting with Parent on September 6, 2022, Braintree proposed a 45-day “assessment period” at the Quest program, which Student had attended before moving to California.  (S-4, 5)

11. On September 20, 2022, the Braintree Team convened and proposed an IEP covering 9/20/22 to 4/28/23, encompassing most of the 2022-2023 school year (seventh grade).  This IEP contained goals in Social Skills and Math.  Accommodations included using a neutral tone when Student made extreme statements, sensory/movement breaks, preferential seating, quiet space to settle, daily home-school communication log, and the like.  The proposed placement was the Quest program at SSEC.  According to the signature page, Parent did not respond to the services set forth in the IEP.  Parent consented to the proposed placement “as a 45-day trial.”  (Packard, S-3)

12. Student attended the Quest program from approximately September 2022 until on or about February 17, 2022.  Two witnesses who had worked with Student at Quest  Leah Callahan (special education teacher), and Elizabeth Donahue (social worker/clinician), testified about her progress.

Leah Callahan was Student’s special education teacher in the Quest program during the 2022-2023 school year.[7] She testified that Student was placed in a therapeutic classroom with seven other students, overseen by Ms. Callahan and two paraprofessionals.  Student’s schedule consisted of a daily morning meeting followed by instruction by Ms. Callahan in math, ELA, social studies, and science. Student also participated in art and gym classes taught by specialist teachers.  Twice weekly, Student and her classmates participated in group therapy provided by a clinician.  Additionally, each student in the class received individual services prescribed by their IEPs.  According to Ms. Callahan, Student’s peers were academically capable, verbal, and social, and Student fit in well with the group. Student was sometimes quiet, but also liked to socialize with classmates. 

Ms. Callahan testified that given Student’s complex learning profile, she benefited from the small, structured classroom with consistent routines and behavioral approaches among staff.  Give Student’s anxiety, her regular school attendance, willingness to socialize with peers, and work completion were positive.  With support, she was capable of grade level work, had excellent reading comprehension and writing skills, and earned “A” grades in all subjects for the first term of seventh grade.  (Callahan, S-47B)

Ms. Callahan further stated, however, that Parent restricted her ability to work with Student; therefore, Ms. Callahan was unable to have a therapeutic relationship with Student, which made it difficult for her to provide in-the-moment support or redirect behavior.  (Callahan) 

13. Elizabeth Donahue was the clinician assigned to Student and her classroom in the Quest program during the 2022-2023 school year.[8]  She provided Student with in-class group counseling services and individual counseling, and also was available to her for check-ins as needed.  Ms. Donahue testified that Student was “extremely bright, articulate and artistic,” but also was clearly “pretty anxious.  She had difficulty making eye contact.  You could tell she was uncomfortable in social situations…”  (Donahue, Tr. IV, p. 21) 

Ms. Donahue further testified that Student was an active participant in group counseling sessions, and that she needed and benefitted from embedded therapeutic supports (particularly for peer interactions). Initially, Student appeared to make progress, but according to Ms. Donahue, “her progress had been impeded and even my clinical work with her had been impeded due to Parent’s concerns and wanting to delineate what could be discussed and not discussed in our sessions.” (Donahue)

14. Student’s initial progress report from Quest, issued on November 30, 2022, stated that Student had partially met her expected benchmark towards goals in Social Problem Solving and Math, and completely met benchmarks towards Work Completion and Social-Emotional goals.  (S-47(A)).  

Student’s first term report card reflected grades of A or A- in all academic subjects and C in physical education.  Student earned grades of S or S- (“satisfactory) in all skill areas within each subject (e.g., effort, understanding of concepts, etc.) as well as in skills such as relationships with peers and adults, frustration tolerance, problem solving, participation, following directions, accepting responsibility, staying on task, impulse control, organization, independent work, and homework completion.  The report card comment stated that Student was “bright and curious,” was able to access grade level curriculum with support, and had excellent reading and writing skills.  Math was more challenging, but Student was making progress.  (S-47(B))

15. At various times between September 2022 and February 2023, Parent reported to Quest staff that Student was being bullied by peers, ignored by staff, and did not feel safe at school.

Specifically, on or about September 22, 2022, Student alleged that a peer had posted “inappropriate, vulgar, and threatening language” regarding Student on a social media platform.  The following day, Quest staff met with Student, verified that the incident had occurred, disciplined the other student, and provided Student with access to counseling and administrators to share concerns, among other supports. Braintree was notified of the incident.  (S-47(E))

On or about October 11, 2022, Parent reported that Student was being bullied by a peer in gym class.  In a letter dated October 31, 2022, SSEC’s Interim Director of Student Services reported that after investigation, including a meeting with Parent and Student, SSEC did not substantiate allegations of bullying, but proposed various actions including offering to change Student’s classroom and having Student and the peer attend two social skills/pragmatics groups per week.  (S-47(C)).

On October 25, 2022, Parent reported that Student did not feel safe being in the same class as the peer reported for bullying, felt her teacher was ignoring her and not treating her well, did not want to change classrooms, and wanted to talk to her former clinician and not her current clinician.  In response, a meeting was held with Braintree and Quest/SSEC staff some additional supports were offered to Student.  (S-47D) Parent made additional allegations, in writing, on or about November 2, 2022.  (S-47(C))

16.  In a letter to Parent dated December 6, 2022, the Quest program director stated that SSEC would be initiating a planned termination of Student’s Quest placement due to Student’s “not making progress in the program.”  Specifically, at Parent’s request, Student was not meeting 1:1 with her teacher to work on math.  Additionally, Student was resisting interventions regarding eating in school or “doing anything else to push herself out of her comfort zone,” was not taking motor breaks when offered, and was arriving at school one hour late every day.  It appears from this letter that Quest staff had met with Parent, who had stated that Student had regressed academically, socially, and emotionally since returning to Quest, that Quest had offered to change Student’s classroom, but Parent declined the offer.  Lastly, the letter advised Parent that the Team would reconvene within ten days to develop a termination plan. (S-17(A)) 

On or about January 18, 2023, Quest issued a “termination” plan which contained short and long-term goals for Student and reported that Student’s last day at Quest would be February 17, 2023.  (S-17(B)) 

17. Upon notification of SSEC’s plan to terminate Student’s placement, Braintree’s Out of District Case Manager, Bethanne Packard, and Director of Student Services, Dr. Petra Platt, engaged in telephone conversations and correspondence with SSEC in an effort to delay Student’s discharge from Quest past February 17, 2023.   

In a letter to Braintree dated January 24, 2023, the Quest Program Director stated that SSEC was willing to extend Student’s Quest placement under two conditions: first, that Student change classrooms within Quest and, second, that Braintree and Parent actively engage in making referrals and pursuing a new placement for Student.  (Platt, S-17D)

On January 26, 2023, Petra Platt wrote a letter to Quest in which she questioned the rationale for terminating Student’s placement in light of the progress report that showed Student was achieving IEP benchmarks, requested supporting data, and reiterated the request to extend placement beyond February 17, 2023.  The Quest Program Director responded on February 14, 2023, stating, among other things, that Quest would extend Student’s enrollment contingent on the above-referenced conditions.  (Platt, S-17E)

18. On February 17, 2023, the Team convened to address termination of Student’s placement at Quest.  Team meeting notes and the subsequent N-1 form indicate that, consistent with the correspondence referenced above, Braintree sought to extend Student’s time at Quest until a new placement was located and Quest would agree to do so, provided that Student change classrooms and an FBA be conducted.  Braintree agreed with these conditions, but Parent rejected them, at which point Quest “asked for staff to be excused [from the meeting] as “rejecting this option indicated that [Parent] was opting to end the placement.”  (Packard, S-7, S-8)   

The meeting notes further report that Braintree informed Parent that “at this point, there was not an option to continue at Quest…”  and offered in-person tutoring at Braintree High School as well as online tutoring.  Parent rejected both offers, stating that Student was afraid of the high school and would not participate in online services if there was not an opportunity for peer interaction.  (Packard, S-7, S-8)

Parent felt that when she was told there was “not an option” to continue at Quest, that Braintree was misleading her regarding Student’s “stay put” rights, and that the placement was terminated without her involvement and against her will.  Parent felt that Student viewed having to change classrooms as punitive, because she had done nothing wrong and that the child whom she alleged was bullying her should have to change classes. (Parent, P-U)

Braintree proposed to “look into Fusion [Academy] tutoring services as a temporary option while a referral process was conducted to look for another school…Braintree stated that they would be able to fund Fusion, but needed to figure out the process…Braintree will research how Fusion can provide FAPE to [Student] for a temporary time while looking for a new therapeutic day program” while making tutoring available at the high school while this research is in progress.  (Packard, S-7) Parent was interested in exploring Fusion.  (Packard; P-D)

The N-1 form issued on the same day as the meeting stated that “[t]he next step is to speak with Fusion to decide if this can temporarily meet [Student’s] educational needs pending placement in a new therapeutic day school.  Tutoring at the high school or virtual tutoring from Braintree Staff continues to be an option available to the family.”  (S-8)

19. On March 3, 2023, Parent and Braintree’s Out-of-District Case Manager, Bethanne Packard, exchanged emails regarding Student beginning instruction at Fusion.  Ms. Packard advised Parent that for Student to attend Fusion, Parent would need to engage in other referrals.  Ms. Packard requested that Parent consent to signing a release to share information with Granite Academy, assuring Parent that [t]his release would not obligate her to send Student there.  In a follow-up email, to Parent, Ms. Packard stated the following:

We can start her [at Fusion] immediately…if we are also looking at other schools at the same time.  Since Fusion is not a state approved school, the only way that we can fund it is for you to at least consider other day school options…I need you to sign the referral form, which only agrees to share [Student’s] information.  I have only put Granite [Academy] on the consent as you expressed that you would like to see Granite.  We can then sign the contract with Fusion and we plan to have [Student] start on Monday…If after a few weeks at Fusion, you decide you do not want to see Granite, we can go to mediation and make a written agreement for a longer time period at Fusion which the District is willing to discuss. (P-I) 

20. On or about March 7, 2023, Braintree entered into a contract to pay Fusion Academy for “services rendered” to Student.  (S-8).  On March 15, 2023, an “out of District” Team meeting was held at which Braintree proposed providing Student with counseling in addition to her academic services at Fusion because Fusion “is not an approved school” and would not be providing Student with the counseling services contained in her IEP.  (S-9) Parent rejected the proposal for counseling, subject to reconsideration after Student had adjusted to Fusion Academy.(S-8)

21. In an N-1 form dated March 21, 2023, Braintree proposed placement in a therapeutic day school, noted that Fusion Academy was not an approved school; therefore, Student’s services there would be “temporary,” and, lastly, the N-1 form noted that a referral packet would be sent to Granite Academy.  (S-9, Packard)

22. Student received academic services from Fusion Academy from in or about mid-March 2023 to June 2023. Documents in the record indicate that Student attended Fusion five days per week, for approximately four hours per day.  She received instruction in English, Math, Life Science, and Early World Cultures in a tutorial format, and had the opportunity to attend “homework cafe” with peers as well as to participate in field trips and clubs.[9]  Student earned grades in the “A” range in her courses, completed most or all assignments, and was engaged in the subject matter.  Tutors commented that Student was a “pleasure” to teach. (S-18(D)).

23. During May 2023, Parent exchanged emails with Jacob Weaver, who at that time was Head of School of the Fusion program in Hingham.  In these emails, Parent and Mr. Weaver discussed Student’s schedule[10] and Parent also stated that she would be seeking Braintree’s support for full-time placement at Fusion for the 2023-2024 school year.  (S-18(C)).

24. Meanwhile, in or about March 2023, Braintree sent a referral packet to Granite Academy.  On April 5, 2023, Granite Academy rejected Student’s application because it could not meet her behavioral support needs.  (Packard, S-13) In an email to Parent dated May 2, 2022, Bethanne Packard informed Parent of this rejection and stated: “We would like to schedule a mediation to discuss if you would like to consider other therapeutic day school options, or if you would like us to talk about longer term options at Fusion.”  (P-D) 

Parent replied that she still wanted to tour Granite Academy.  (P-D) Bethanne Packard testified that Parent called the Director of Granite Academy and accused Granite of rejecting Student for discriminatory reasons; however, Parent also asked Braintree to request Granite Academy to reconsider Student’s application.  Granite agreed to do so once it had received an updated IEP from Braintree.  (Packard) 

25. Parent testified that, based on conversations between Bethanne Packard and herself, she believed that Braintree would fund Fusion on a long-term basis, through high school, and that Parent needed to agree to allow referrals to other schools as a “formality.”  (Parent)   

26. In an N-1 form issued on May 16, 2023, Braintree (1) requested Parent’s consent to send out additional referral packets to therapeutic day schools, (2) requested that Parent agree to mediation regarding Student’s education, given that Fusion is not a DESE-approved special education school; (3) proposed a District-funded independent neuropsychological evaluation, since Parent had declined to consent to testing by Braintree. 
    
    

Attached to the N-1 form was a release form to allow Student’s records to be sent to nine out-of-district programs:  The Education Collaborative (TEC), Farr Academy, Gifford School, Chamberlain School, Bi-County Collaborative (BICO), High Roads, Compass, Dearborn Academy, and Anchor Academy.  (S-14) Braintree Team members believed that each of these schools would be capable of providing Student with FAPE, and that none of them was located more than one hour’s traveling distance from Student’s home.  Parent declined to sign the release form; as such, Braintree could not send out referral packets at that time.  (Packard)

27. On June 21, 2023, Braintree issued an N-1 form proposing academic and cognitive evaluations to be conducted by the District, in addition to the independent evaluation that Braintree previously had agreed to fund, as well as an updated release form authorizing it to refer Student to one additional school, New England Academy.  (S-16)

28. On the same date (June 21, 2023), Jacob Weaver, then-Head of School at Fusion  Academy in Hingham, sent an email to Ms. Packard and Dr. Platt informing them that “[a]fter several conversations, Fusion decided that [Student] needs a higher level of care.”  The email asked Ms. Packard and Dr. Platt to “keep this confidential until we figure out the best way to communicate this with [Parent].  We believe it will be better received if there’s another placement option on the table, so keep us posted on your progress and let us know if you prefer that all messaging comes from the District.”  (S-18(B)).

In a subsequent conversation, Mr. Weaver informed Ms. Packard and Dr. Platt that Student’s tutors felt she needed a program with emotional supports embedded throughout the school day.  He also asked Dr. Platt to have the District communicate this information to Parent.  Dr. Platt declined to do so because Fusion had not informed the District of any difficulties with Student’s services, and had made their decision “of their own accord,” such that it was Fusion’s responsibility to inform Parent  (Platt)

In an email to Fusion dated June 21, 2023, Parent communicated that she was shocked to learn of Student’s termination at Fusion, confused that she had gotten nothing in writing, and that Braintree had been informed before she was.  Parent stated that she disagreed with the decision, and believed that it was discriminatory and made in retaliation for Parent’s having complained to “corporate” about the local director in Fusion’s “not being very responsive and proactive to [Student’s] case.  (Platt, S-50(E)),

Shortly thereafter, Dr. Platt conversed with Paul Bowen, who had just succeeded Jacob Weaver as Head of School at Fusion.  Mr. Bowen told Dr. Platt that he might be able to have a better relationship with Parent than Mr. Weaver, but that he knew nothing about IEPs or special education law. 

Dr. Platt was concerned about further contracting with Fusion because of Mr. Bowen’s lack of special education knowledge, Fusion’s failure to inform the District that it had concerns about Student, that it lacked licensed clinical or teaching staff, and did not follow the Massachusetts Curriculum Frameworks.  (Platt)

29. During the summer of 2023, Parent retained her first attorney (Attorney A).[11] In the course of providing Parent’s counsel with school records, Braintree discovered that Student’s IEP had expired in April 2023. (Packard) On July 9, 2023, Braintree sent Parent an invitation for a Team meeting for an annual review, to be held on July 13, 2023.  Parent declined the invitation, noting that she would be unavailable on that date, and requested that all future correspondence regarding Team meetings be directed to her attorney.  (S-18, S-20(A)).  Parent testified that this and successive Team meetings were scheduled unilaterally, without regard for whether she was available.  (Parent, P-CC) 

30. In an email to the District dated on or about July 11, 2023, Parent declined to consent to referrals being sent to any of the ten proposed placements, either because she believed the travel time would be excessive, or because she felt they would not meet Student’s needs.  District counsel forwarded this email to Parent’s counsel, and informed him that “if we cannot obtain consent to send packets to at least some of the programs listed by mid-next week, we will need to file for substitute consent with the BSEA.”  (S-20(B))

31. Between July and December 2023, Attorney A and the District attempted to negotiate a resolution of this matter.  While negotiations were ongoing, Braintree proposed tutoring from LearnWell and Boston Tutoring, to take place either virtually or at one of several different locations.  Braintree also prepared to provide Student with consultation from an Occupational Therapist and counseling per her expired IEP.  Lastly, during this period, Braintree repeatedly requested Parent (via counsel) to allow it to send additional referral packets.  (S-20(C), (D)) Parent refused the offer of tutoring and services, and did not consent to the sending of additional referral packets, stating that each of the proposed placements was either too far from Student’s home or could not meet her needs.  (S-20(A) – (D)) 

By December 2023, the parties had reached an agreement in principle, which was translated and presented to Parent.  Parent then discontinued representation with Attorney A, and the settlement never came to fruition.  (Platt) 

32. On November 29, 2023, Braintree convened a virtual Team meeting to conduct an annual review and develop an IEP for Student.  Parent attended this meeting along with staff members from the District. The Team meeting invitation noted that an interpreter would be provided for the meeting, and that related communication would be translated. 

Team meeting notes reflect that Parent felt that Fusion was an appropriate placement for Student.  Student’s outside therapist supported this position. Parent further reported that Student is extremely anxious during transportation and requires a specially trained driver and monitor to prevent self-harm or attempts to “destroy the car.”  Student’s therapeutic mentor did not observe such behavior. 

The District reiterated that Parent had not allowed additional referrals to be sent to potential placements, and repeated its offer of immediate tutoring; Parent refused to allow a tutor to come to her home.  The District opined that it lacked data to develop a new IEP because Parent had declined to allow it to conduct new evaluations, and the independent evaluation had not yet occurred; therefore, Student’s expired “stay put” IEP “is the best available data.”  (S-20) 

In an N-1 Form dated December 28, 2023, Braintree proposed to tutor Student while engaging in the evaluation and referral process.  Tutoring was offered in person, with Braintree staff, either at the high school or public library, or virtually, through a company.  The District also offered counseling 1×30, weekly.  (S-20) 

33. On December 31, 2023, Parent granted written permission to Braintree to send referral packets to New England Academy (Marshfield), Granite Academy (Braintree), Dearborn Academy (Newton) and High Roads School (Bridgewater).  (S-25)

34. On January 2, 2024, Braintree filed a hearing request with the BSEA entitled Motion for Substitute Consent to Evaluate Student and Motion for Substitute Consent to Send Referral Packets for Placement, BSEA No. 2406298.  Parent was represented by successor counsel, (Attorney B) who was served with a copy of the hearing request.  (S-23). 

On January 8, 2024, Parent signed an evaluation consent form for academic/achievement and psychological assessments to be conducted by the District, and requested that Polish translations of evaluation reports. be provided for her prior to any Team meeting (S-24)

On January 22, 2024, Braintree withdrew the above-referenced hearing request “without prejudice.”  (S-24)

35. Meanwhile, on January 10, 2024, the Team convened again in order to conduct an annual review and develop an IEP.  Parent attended with Attorney B and her educational advocate.  An interpreter was present.[12] The meeting was recorded by Parent and the District.  Parent objected to SSEC not being in attendance.  Parent raised several concerns, including that she was not advised of “stay put” rights when her placement at Quest was terminated, and that Fusion was a substitute placement, and, therefore, was Student’s “stay put” placement.  Parent sought to have the District fund Fusion, and to use Fusion as an evaluation site.  Braintree disagreed, asserting that Fusion was never a “placement.” 

The Team also discussed locations for the evaluation.  Parent’s position was that Student should be evaluated in the familiar settings of Fusion or SSEC, but these were not available.  Braintree offered an administrative building, which was a quiet, buzzer-entry location with no students present, where  Parent and Student’s therapist could wait outside the door, and where Student could take breaks during testing.  No agreement was reached on evaluation location, and no IEP was developed as a result of this meeting. (S-26, 27)

36. In a letter to Parent dated January 12, 2024, Braintree again proposed to conduct cognitive and academic evaluations of Student, proposed nine different dates for these to take place and reiterated its offer of the administration building as a test site. (S-27) 

37. On February 2, 2024, the Team again reconvened to attempt development of a new IEP.  Parent continued to maintain that Student should be evaluated and placed at Fusion pending securing a prospective placement.  Braintree disagreed and offered tutoring and counseling through several potential providers. The Team did begin formulating goals and accommodations.  (S-32)

38. In an email dated February 9, 2024 from District counsel to Parent’s counsel, Braintree reported that SSEC would make a conference room available for Student’s evaluations. Attorney B replied that it would be inappropriate for Student to be evaluated in the familiar setting of SSEC but be unable to return there as a student; rather, Student should be enrolled in Fusion as a “compensatory” service and be evaluated at Fusion.  (S-29) 

39. On January 29, 2024, Granite Academy rejected Student’s resubmitted referral, stating that it was identical to the original referral, with no updated information; as such, Granite had the same “behavioral fit concerns.”  (S-31)
40. On February 5, 2024, High Roads school informed the District’s attorney that Parent had told High Roads that she needed to consult with her attorney regarding an intake interview because the IEP was out of date. Subsequently, Parent’s counsel and District counsel exchanged emails regarding the referral process; among other things, Parent’s successor attorney objected to sharing confidential information (other than the initial referral packet) about Student with potential placements unless the school could had indicated in writing that it could  implement Student’s IEP, and the District’s attorney explaining that the referral process might involve telephone conversations and other such contact to determine if Student was a potential “fit” for a program, and that the referral process could continue while the IEP development was in progress.  (S-35)

41. On February 28, 2024, Braintree issued an N-1 form proposing to conduct an FBA in Student’s home, based on Parent report of a crisis in the home and a home-based clinician’s report of Student’s increased anxiety about not attending school.  Parent opposed this proposal, stating that an FBA could not be conducted until Student was back in school.  (S-36).

42. On March 1, 2024, High Roads and Bethanne Packard exchanged emails in which High Road reported that it had made three attempts to schedule an intake interview by leaving messages with Attorney B, and that it had reviewed the service delivery grid from Student’s expired IEP and would be able to deliver the services listed.  (S-37)

43. On the same date, Parent’s and District’s counsel exchanged emails in which School counsel urged Parent’s counsel to have Parent participate in the intake process at High Roads, and Parent’s counsel insisted that placement at High Roads would be “predetermined” and premature because there was not yet a Team consensus on a new IEP and placement, and that the only “clinically appropriate” setting for Student was Fusion, which counsel deemed to be a “stay put” placement or compensatory service.  (S-38) 

44.  On February 26, 2024, Braintree issued a Team meeting invitation scheduling a meeting on March 13, 2024.  On the same date, Parent responded with an email stating that the March 13 date was too far away and requesting an “urgent meeting to put [Student] back in Fusion for compensatory services.”  Parent’s email contained numerous allegations, including that none of the District-proposed placements would enable Student to catch up on missed schoolwork, that only Fusion was approved by Student’s clinical team, Parent and Student, only Fusion could provide Student with needed services, that Student’s SSEC termination was illegal and against Parent’s will, that the District agreed to place Student at Fusion but then terminated her without Parent’s knowledge or agreement, and that the District was knowingly keeping Student out of school as a retaliatory measure. (S-39)

45. On March 18, 2024, after issuance of the Team meeting invitation referenced above but before the meeting was held, Braintree filed its hearing request in the above-numbered action. 

46. The Team convened on March 26, 2024, for the purpose of completing the IEP.  An interpreter was provided; Parent requested to use the interpreter as needed.  Team meeting notes reflect Parent’s multiple concerns, including that Student needed to be educated in a 1:1 setting and could not be transported for more than 15 minutes.  The notes also reflect that Parent wished to revisit portions of the IEP development that already had been completed at prior meetings.  Parent’s advocate noted that Parent felt her voice and concerns were not being heard.  Student’s in-home therapist opined that Fusion would be clinically appropriate for evaluations.  (S-40)

47. On April 2, 2024, Braintree issued an IEP covering March 26, 2024 to March 25, 2025.  The accompanying N-1 form reported that Braintree continued to propose an updated re-evaluation, to include a home assessment, a home-based FBA, and transportation assessment.  Additionally, Braintree encouraged Parent to follow up on High Roads’ offer of an intake interview and consider the proposed placements to which referrals had been sent.  Lastly, Braintree rejected Parent’s request for placement at Fusion Academy, stating that:

Tutoring at Fusion was offered as a very short-term agreement while a referral process was conducted.  Fusion Academy is not an approved special education school, does not provide specialized instruction, and does not provide therapeutic support services or milieu.  The District also rejects the parent’s position that [Student] can only be educated in a 1:1 setting.  Data…supports the need for [Student] to have access to peers in educational settings in order to develop her social and emotional skills and regulation.  (S-41)

48. In April 2024, Parent, through her attorney, filed a Motion for a Preliminary Injunction with the Norfolk County Superior Court in which she sought an order determining that Fusion Academy would be Student’s official “stay put” placement, pending resolution of disputes between the parties.  On April 18, 2024, the Court denied Parent’s Motion and ordered “stay put” to be ”any IEP that was agreed to by Parent and Braintree prior to 2019, before Student enrolled in SSEC.  If Student was not enrolled in IEP prior to SSEC, Court then ORDERS a virtual or in-person tutoring and counseling services as a temporary educational placement…from April 22, 2024, to end of school year.”  (S-42)

On April 25, 2024, Parent filed an Emergency Motion for Reconsideration of the above-referenced Order.  The Court held an emergency Zoom hearing on the following day, and, after hearing reports from the parties, modified its order to state that until the BSEA’s decision was issued, or the end of the school year, Student could opt for placement at High Roads or on-line tutoring provided by Braintree.  (S-43)  

Subsequently, in May 2024, High Roads filed a Motion to Intervene in order to clarify the prior Modified Order.  In an Order dated May 16, 2024, the judge stated, “after a hearing, the mother, by her own right and for her own reasons…does not wish to proceed with the intake and assessment at High Roads School to even consider an admission decision of the child.”  The judge then further modified the prior order to direct Student to participate in online tutoring and services provided by Braintree.  (S-54) 

49. On May 7, 2024, Parent provided the District with an initial report of an independent neuropsychological evaluation conducted by John Fahey, Ph.D. in late March to late April 2024.  Dr. Fahey had previously evaluated Student in 2017. Parent provided a revised version on May 19, 2024. The evaluation consisted of a clinical interview with Parent and Student, review of records, and administration of standardized testing. 

Cognitive testing showed intellectual functioning in the average range in all domains except for Processing Speed, which was “Borderline.”  Tests of attention and executive functioning showed weaknesses in these areas.  Regarding Student’s social and emotional functioning, Dr. Fahey found that Student met criteria for “the higher end of the autism spectrum,” as well as for ADHD, “extremely high anxiety,” depressed mood, and was “psychologically complex in that there are interacting neurodevelopmental and emotional concerns.” (S-45)

Dr. Fahey recommended placement in a “small, structured setting with low staff-to-student ratio,” with staff familiar with ASD and associated weaknesses in executive functioning, and social/emotional skills, and the ability to meet Student’s social, emotional, and academic needs.  The placement should provide academic support, teaching of study and social skills, and access to emotional supports.  Dr. Fahey also recommended that Student continue her outside counseling services.  (S-45)   

50.  On June 10, 2024, the Team convened to consider Dr. Fahey’s evaluation, and  issued a proposed IEP covering June 10, 2024 to March 25. 2025. This IEP incorporated data and recommendations from Dr. Fahey’s report as well as from SSEC and contained goals in Counseling (to address interpersonal problem-solving), Math, Executive Functioning, and Emotional Regulation.  The service delivery grid provided for consultation in Occupational Therapy, Behavior, and Counseling in Grid A, and, in Grid C, Academics/Behavioral Support Group, Small Group Counseling Services and Specialized Math.  The IEP also provided for an array of accommodations, including but not limited to access to motor breaks, preferential seating, wait time for responses, clear and consistent limits and expectations, quiet space to settle, daily home-school communication log, and access to school-based therapist.  Student would have a shortened school day (starting at 10:00 AM) while data was being gathered to support full-day attendance.  Lastly, the IEP proposed extended school year (ESY) services to prevent regression.  (S-55)   

The placement page called for a private day school.  On July 7, 2024, Parent accepted the proposed placement, and accepted most of the remainder of the IEP, rejecting only the District’s use of the term “therapeutic day school” instead of “substantially separate private day school,” because the term “therapeutic” was not defined.  (S-55)   

51. As of the hearing dates, Student had not been accepted at any of the schools to which referrals had been sent, and had not attended any school or received any educational services since approximately June 2023.   

DISCUSSION

Legal Framework

Substantive Components of FAPE

There is no dispute that Student is a school-aged child with a disability who at all relevant times was eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq., and the Massachusetts special education statute, M.G.L. c. 71B (“Chapter 766”).  Student is entitled, therefore, to a free appropriate public education (FAPE), which “comprises ‘special education and related services’–both ‘instruction’ tailored to meet a child’s ‘unique needs’ and sufficient ‘supportive services’ to permit the child to benefit from that instruction.”  C.D. v. Natick Public School District, et al., No. 18-1794, at 4 (1^st Cir. 2019),  quoting Fry v. Napoleon Community Schools, 137 S. Ct. 743, 748-749 (2017); and 20 USC§1401 (9), (26), (29).[13]  Student’s IEP, which is “the primary vehicle for delivery of FAPE, C.D. v. Natick, 18-1794 at 4, quoting D. B. v. Esposito, 675 F. 3d 26, 34 (1^st Cir. 2012), must be “reasonably calculated to enable [her] to make progress appropriate in light of [her] circumstances.”  C.D. v. Natick, 18-1794 at 4, quoting Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988, 1001 (2017).

While Student is not entitled to an educational program that maximizes her potential, she is entitled to one which is capable of providing not merely trivial benefit, but “meaningful” educational benefit.  C.D. v. Natick, 18-1794 at 12-13; D.B. v. Esposito,  675 F.3d at 34-35; Johnson v. Boston Public Schools, 906 F.3d 182 (1^st Cir. 2018).  See also, Bd.of Education of the Hendrick Hudson Central School District v. Rowley, 458 US 176, 201 (1982); Town of Burlington v. Dept. of Education (“Burlington II”), 736 F.2d 773, 789 (1^st Cir. 1984).  Whether educational benefit is “meaningful” must be determined in the context of a student’s potential to learn.  Endrew F. 137 S. Ct. at 1000, Rowley, 458 US at 202; Lessard v. Wilton Lyndeborough Cooperative School District, 518 F3d 18, 29 (1^st Cir. 2008); D.B. v. Esposito, 675 F.3d at 34-35.  Within the context of each child’s unique profile, a disabled child’s goals should be “appropriately ambitious in light of [the child’s] circumstances, Endrew F. 137 S. Ct. at 1001; C.D. v. Natick, 18- 1794 at 14. 

Finally,eligible children must be educated in the least restrictive environment (LRE) consistent with an appropriate program; that is, students should be placed in more restrictive environments, such as private day or residential schools, only when the nature or severity of the child’s disability is such that the child cannot receive FAPE in a less restrictive setting.  On the other hand, “the desirability of mainstreaming must be weighed in concert with the Act’s mandate for educational improvement.”  C.D. v. Natick, 18-1794 at 5-6, quoting Roland M. v. Concord School Committee, u910 F.2d 983 (1st Cir. 1990).  

Procedural Components of FAPE

Student is entitled not only to the substantive components of FAPE as outlined above, but she and Parent also are entitled to procedural protections designed to support the parent-school collaboration envisioned by federal and state special education statutes.  Parents are full members of the Team that develops IEPs, which are the blueprints for providing services for eligible students, 20 USC §1414(d)(1)(b)(i).  Parental participation in the planning, developing, delivery, and monitoring of special education services is embedded throughout the IDEA, MGL c. 71B, and corresponding regulations. 

Courts have consistently emphasized the centrality of parental participation to the IDEA scheme.  In Rowley, supra, the Supreme Court stated “…Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process…as it did upon the measurement of the resulting IEP against a substantive standard.”  See also:  In Re Framingham Public Schools and Quin, 22 MSER 137 at 142 (Reichbach, 2016), and cases cited therein.  

Notwithstanding the above, it is well settled that although parents are Team members, entitled to fully participate in the IEP development process and to have their views considered, they are not entitled to dictate the terms of an IEP.  On the contrary, a school is not required to negotiate with parents to reach a result with which parents agree, if by doing so they propose an IEP that the school believes is not appropriate for the child.  Rather, schools are obligated to propose what they believe to be FAPE in the LRE, whether or not the parents are in agreement.  In Re Natick Public Schools, 17 MSER 55, 66 (Crane, 2011); In Re: Andover and Quincy Public Schools, BSEA No. 1602494 (Berman, 2017).   

If parents disagree with the district on what constitutes an appropriate IEP and/or placement for a child, the IDEA and Massachusetts law provide detailed mechanisms for dispute resolution, i.e., mediation with a trained mediator who assists the parties in negotiating a legally-binding agreement, and due process hearings, where both parties submit evidence to an impartial hearing officer who adjudicates the dispute and issues a written decision.  Both of these processes enable parents and school districts to resolve disputes in a structured manner with the assistance of a neutral third party. 20 USC §1415; 34 CFR §300; MGL c. 71B§2A; 603 CMR 28.08. 

Remedies—Compensatory Services

An award of compensatory services is one remedy available to a hearing officer to make a student whole if a school district fails to implement accepted portions of an IEP or commits other procedural violations that result in a denial of FAPE to an eligible student, or if a school district prevents parents from meaningfully participating in the Team process.  Pihl v. Mass. Department of Education, 9 F.3d 184 (1^st Cir. 1993).  An award of compensatory services is in the nature of an equitable remedy.  Diaz-Fonseca v. Comm. of Puerto Rico, 451 F.3d 13 (1^st Cir. 2006). 

As such, a hearing officer must “balance the equities” by considering the reasonableness of both parties’ conduct and the resultant impact on the student when deciding if compensatory services are warranted in a given situation.  Hearing officers may deny compensatory services if parents unreasonably obstruct the IEP process or otherwise interfere with the ability of the school district to fulfill its obligations. See C.G. and B.S. v. Five Town Community School District, et al., 513 F. 3d 279 (1^st Cir. 2008), citing Roland M. v. Concord School Committee, 910 F.2d 983 at 987 (1^st Cir. 1993); Murphy, 22 F.3d at 1197; In Re: Andover and Quincy Public Schools, supra.         

Burden of Proof

In a due process proceeding to determine whether a school district has offered or provided FAPE to an eligible child, the burden of proof is on the party seeking to challenge the status quo.  In the instant case, as the moving party seeking to establish that it has attempted to provide Student with a FAPE, but has been thwarted by Parent’s conduct, the District bears this burden.

Analysis

After a careful review of the testimony and documentary evidence presented by the parties, as well as the thoughtful arguments of counsel for the School and the advocate for Parent, I conclude that the School has met its burden of proof on issues 1 through 3 in this matter, but that Student is entitled to limited compensatory services with respect to issue 4.  My reasoning follows.

The parties agree, and the record establishes, that while Student is intelligent, creative, and academically capable, she has a complex profile including ASD, ADHD, PTSD, significant anxiety, and depression. As a result of these disabilities, Student struggles with social and interpersonal relationships, and emotional regulation.  She has difficulty in understanding the nuances of social interactions.  Her thinking can become very rigid when she is stressed. Unfamiliar settings, social situations, and social conflict can cause her to become tremendously anxious.  Student is vulnerable to harassment, teasing, and bullying.

The parties further agree that to make progress that is meaningful in light of her unique circumstances, Student requires a small, structured educational program where she can access grade-level curriculum while also receiving embedded therapeutic and executive functioning supports and accommodations.  The parties disagree on whether Student should be educated via a 1:1 format (Parent’s position) or in small groups with compatible peers, but this disagreement is not material to the decision in this matter. 

Rather, the parties’ dispute is over whether Braintree made “good faith efforts” to provide Student with FAPE (including evaluations), and whether Parent’s conduct impeded those efforts.  In the context of this dispute, Parent contends that (1) Braintree committed a procedural error by failing to develop an IEP between April 2023 and May or June 2024, such that Student is entitled to compensatory services; (2) Braintree violated Student’s “stay put” rights by allowing termination of the SSEC placement and by terminating services with Fusion, and (3) Braintree must fund services for Student at Fusion Academy, either as a compensatory service or as a “stay put” placement, pending her acceptance at an approved day school.  I will address each of the District’s contentions in turn, incorporating Parent’s position in this analysis.

1. Braintree Public Schools met its burden of proving that it made a good faith effort to provide Student with a FAPE, and that Parent’s refusal of most offered services impeded the Districts efforts

The record is replete with evidence of Braintree’s good faith efforts to provide Student with a FAPE. Upon Student’s return from California, the District attempted to immediately implement her California IEP by placing her at SSEC’s Quest Program, which was analogous to the non-public placement called for by the California IEP and also was a program in which Student had previously been successful.  When Parent wished to delay enrollment pending a Team meeting, Braintree offered tutoring until Student could be placed, and also deferred to Parent’s wishes to delay evaluations by the District until Student had made the transition to a new setting. 

The uncontested evidence in the record indicates that Parent refused the offer of immediate tutoring, at least in part because she believed Student required a transportation monitor.  While Parent ultimately agreed to try tutoring without a monitor, she withdrew that agreement, and Student did not receive the tutoring.  Nothing in the record substantiates Parent’s belief that a monitor was required.  The California district had previously denied a request for a transportation monitor, stating that there was no data to support such accommodation, and Parent presented no evidence to the contrary. 

Braintree also attempted to preserve Student’s placement at the Quest program.  According to report cards and progress reports, Student’s first quarter at Quest was successful; however, by December 2022, Quest reported that Student was not fully participating in its therapeutic program, and that, as a result, she was not progressing on her IEP goals.  Two of Student’s providers at Quest, Leah Callahan and Elizabeth Donahue, testified persuasively that their relationships with Student, and their efforts to work with her were curtailed by Parent’s insistence on limiting the subjects that could be discussed with Student. 

Upon receiving notice of SSEC’s intention to terminate Student’s placement, Braintree made efforts to delay such termination until a successor placement could be located.  Among other things, Dr. Platt questioned SSEC’s rationale for termination, pointing out that progress reports had shown that Student was making effective progress and requesting data to support SSEC’s position. 

Ultimately, SSEC agreed to extend Student’s term at Quest on the condition that she change classrooms and undergo an FBA.  Parent felt that the classroom change would be “punitive,” and refused to consent to it.  While Parent may have had her own reasons for such refusal, she presented no evidence at the hearing that changing classrooms was an unreasonable condition, especially in light of the lack of therapeutic relationship between Student and her teacher in her then-current classroom.  Parent’s refusal clearly impeded Braintree’s efforts to preserve Student’s placement at Quest. 

After SSEC terminated Student’s placement, Braintree made an immediate offer of tutoring by District staff, which Parent rejected.  Parent presented no evidence at hearing supporting such rejection.  Braintree then proposed to purchase tutoring services from Fusion Academy in Hingham as a temporary measure to provide Student with some instruction while a new placement was sought and took necessary measures to secure Fusion’s services.  Although Fusion is not an approved special education program, and did not implement IEP goals, Braintree was willing to fund it temporarily in the interest of ensuring that Student received some type of instruction during the search process for a successor therapeutic placement. 

Student’s last accepted IEP provided for counseling, which Braintree offered to provide, in addition to services at Fusion.  Parent refused this offer of counseling, and offered no witness testimony or other evidence at hearing to support her position.  As such, Parent’s actions impeded Braintree’s efforts to provide FAPE by implementing the counseling component of Student’s IEP. 

Fusion made the decision to terminate Student’s services on June 21, 2023.  A successor Head of School at Fusion later indicated a willingness to resume such services, but Braintree declined to do so, citing concerns about Fusion’s failure to inform the District of any problems with Student prior to seeking to terminate services, as well the lack of credentialed staff or knowledge of special education, and non-adherence to Massachusetts curriculum frameworks.  

Braintree then made multiple successive offers of in-person or virtual tutoring, counseling, and consultative services consistent with Student’s IEP between August 30, 2023 and March 2024, all of which Parent rejected.  Parent presented no evidence at hearing as to why any or all of these offers of services were inappropriate.  As such, Parent’s conduct in this regard impeded Braintree’s efforts to implement Student’s last accepted IEP to the extent possible while the search for a new placement was ongoing. 

2. Braintree has met its burden to prove that it offered appropriate locations to evaluate Student and Parent’s refusal to make Student available for such evaluation, to visit those proposed locations, and/or speak with evaluators regarding proposed testing impeded Braintree’s ability to evaluate Student.

Braintree first sought to conduct evaluations of Student in or about August 2022, upon her return from California, because Student had not undergone a comprehensive evaluation from Braintree since 2018 and from California since 2020-2021. 

In June 2023, Braintree sought consent to conduct academic and cognitive assessments to support the referral process and develop a new IEP, and also agreed to fund an independent evaluation to supplement the District’s assessments. As was the case with Braintree’s offers of tutoring, the District made multiple attempts to secure Parent’s consent between June 2023 and January 2024, all of which were met with refusal until January 8 and 16, 2024, after the District had filed a hearing request with the BSEA seeking an order of substitute consent. 

From January 2024 forward, the parties had multiple Team meetings and discussions regarding the location of evaluations. According to Parent and her clinician, Student needed to be evaluated in a familiar location; Braintree secured permission from SSEC for Student to be evaluated there, as well as several other locations.  Braintree offered to ensure that said locations would be quiet, and private, and that Parent and Student’s home-based clinician could accompany her, and offered to let Student meet the evaluators, but Parent declined all such proposals, maintaining that Fusion would be the only appropriate evaluation site.

Parent provided no persuasive evidence at hearing that none of the proffered evaluation sites would be appropriate, and that Fusion was the only location that would accommodate Student’s anxiety and allow for accurate test results.  Parent’s position in this regard is undermined by Student’s successful evaluation experience with Dr. Fahey, whom she had met before, but had not seen since 2017.  Parent also refused to consent to a home FBA, despite having reported that Student was having emotional difficulties at home

The IDEA requires school districts to conduct timely and comprehensive evaluations and re-evaluations of all eligible students.  Without the information obtained from such evaluations, school districts cannot develop IEPs that are tailored to meet individual student needs.  See 20 USC §1401(9), (26), (29); MGL c. 71B, §3; 603 CMR 28.05(4)(b);  C.D, v. Natick Public School District, supra, at p. 624.  While school districts may fund, and must consider, outside evaluations obtained by parents, they have the right to conduct their own evaluations.  See In Re: Greater Commonwealth Virtual School, 2411692 (Kantor-Nir, 2024) 

In the instant case, Student was due for a three-year re-evaluation as of late 2022 or, at the latest, early 2023, and had undergone several placement changes.  The District had both the right and the obligation to conduct updated assessments, offered multiple options relative to location so as to accommodate Student’s needs.  Parent’s refusal to allow evaluations directly impeded Braintree’s ability to fulfill its obligation to obtain the information necessary to produce an IEP.  As stated above, Parent presented no evidence at hearing supporting her position that she could only be evaluated at Fusion, or could not undergo a home-based FBA.  That Parent arranged and made Student available for an independent evaluation was positive and helpful, but did not obviate the District’s right and obligation to conduct its own evaluations, especially in areas not assessed by the independent evaluator.  Braintree has met its burden on this claim.

3. Braintree has met its burden to prove that Parent’s refusal to engage in the intake process for placement at High Roads [school] and overall limitation of Braintree’s ability to communicate with potential placements impeded Braintree’s ability to identify a new placement for Student consistent with her IEP.

The record shows that upon termination of Student’s placement at SSEC, Braintree began the process of securing a successor placement either at a private day school or a collaborative.  pursuant to her last accepted IEP. The District requested Parent’s consent to make referrals to ten (10) potentially appropriate schools, including High Roads.  Until Braintree filed a hearing request seeking an order of substituted consent in January 2024, Parent refused to authorize any such referrals, except to Granite Academy, which rejected Student twice. 

In correspondence with the District, Parent contended that all of the ten proposed schools were either too distant from Student’s home, or otherwise inappropriate, but presented no evaluations, testimony, or other evidence to support this contention.  After Parent eventually did authorize four referrals, she (via Attorney B) took the position that she did not need to cooperate further with the process because Student still did not have an updated IEP or current evaluations (which purportedly could only be conducted at Fusion).  Counsel B further prohibited District counsel from having conversations with prospective placements, which clearly inhibited the referral process. 

With respect to High Roads in particular, a representative of that program verified that it could implement Student’s IEP and reached out to Parent and/or Counsel B on three occasions in an effort to set up an intake interview.  Again, Parent, via counsel, took the position that Parent was not required to do anything other than sign the referral consent form. 

An examination of the documentary record, including correspondence between Parent and Fusion during the spring of 2023 (see Paragraph 23, above) makes clear that Parent’s intention was to have Braintree fund Fusion on a long-term basis (although not necessarily to the exclusion of an approved school at some point in the future). 

Parent’s testimony bolsters this conclusion.  Parent stated that in various conversations, Braintree’s Out-of-District Case Manager, Bethanne Packard, had assured her that Braintree would fund a longer term placement at Fusion, but that Parent would have to agree to other referrals as a “formality.”  While Parent may have been under the impression that Ms. Packard had made such statements, I can give little or no weight to this testimony because Parent was not subject to cross examination,[14] and her testimony was contradicted by both by that of Ms. Packard (which was subject to cross examination) and documents in the record, to the effect that Parent had been made aware that Fusion was intended to be a temporary service.

Ms. Packard’s email statements set forth at Paragraphs 19 and 24, above, to the effect that Parent should authorize the proposed referrals, but that longer-term services at Fusion could be discussed at mediation might have been interpreted by Parent as Braintree’s intention to extend Student’s time at Fusion.  The more accurate interpretation, however, was that if Parent would sign the consent form for referrals, Braintree might discuss further Fusion services at mediation.  This reading of Ms. Packard’s statements is consistent with the repeated message given to Parent that the Fusion services were not a “placement” as such, but were intended to be temporary. 

The uncontroverted evidence in the record is that other than ultimately signing consent forms to send referrals to various schools, Parent made no effort to cooperate or collaborate with the referral process.  Indeed, through Counsel B, she made it clear that she had no intention of doing so, all in an effort to secure Fusion as a long-term placement.  Braintree has met its burden on this issue.

4. Parent is entitled to limited compensatory services due to Braintree’s failure to issue an IEP in a timely manner after expiration of the IEP in April 2023

There is no dispute that Student’s IEP expired in April 2023, and Braintree did not issue a successor IEP until June 2024. Parent cites to the matter of C.D. v. Natick Public School District, C.A. No. 19-12427 (D. Mass. 12/22/2020) in support of her position that Braintree’s failure to issue the IEP in a timely manner is such an egregious violation of the IDEA that Student is entitled to compensatory relief, presumably in some form of funding for Fusion Academy. 

In the. C D. case, the student’s parents unilaterally placed the student in a private special education school and sought reimbursement from the Natick Public Schools (Natick).  Natick failed to schedule a Team meeting or propose an IEP during some of the time that the student was enrolled in the private school.  The District Court agreed with the BSEA hearing officer that “the failure to schedule a Team meeting or propose an IEP was a sufficiently significant procedural violation, even in the absence of demonstrable educational harm, that it had the effect of denying C.D. a FAPE,” because it precluded parents from participating in the Team process, and, as such, the Court upheld the hearing officer’s award of tuition reimbursement for the applicable period. 

In the instant case, Parent has not incurred expenses and, as such, an award of reimbursement is inapplicable.  However, neither the absence of expenses to be reimbursed, nor Parent’s documented failure to fully cooperate with the Team process completely immunizes Braintree from liability for compensatory services. At some point, upon noting that the Team process would be unduly protracted, Braintree could, and should, have issued an IEP based on its own best information as to what would be appropriate for Student, based on the information it had available at the time.  Nonetheless, Braintree should not be punished for its repeated efforts to convene the Team and involve Parent in the process. 

Taking the above into consideration, and noting that an award of compensatory services is in the nature of an equitable remedy, I find that Student is eligible for compensatory services corresponding to the period of April 2023, when the IEP expired, to November 29, 2023, when Braintree issued an invitation to a Team meeting for an annual review.  The nature of such compensatory service shall be determined by the Team. 

CONCLUSION AND ORDER

Braintree has met its burden on issues 1 through 3.  Braintree has not met its burden on issue 4.  Within 30 days of the date of this Decision, the Team shall convene to develop  a plan for compensatory services corresponding to the period from April 2023 to and including November 29, 2023. 

By the Hearing Officer,

/s/Sara Berman

____________________________________

Sara Berman

Dated:  October 11, 2024

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[1]On September 9, 2024, the District requested that if the hearing were to continue to be opened to the public, that the hearing be held in person.  The District’s request was denied. 

[2]Parent’s first language is Polish, but she also speaks English. To ensure that Parent understood the proceedings, she was periodically asked if she preferred sequential or simultaneous translation, as the latter could be confusing to an individual who speaks both languages.  At several points during the hearing, Parent requested to proceed in English to save time; she was permitted to interrupt and ask for translation as needed.  During the first two days of hearing, Parent stated that the interpreter was not and “educational” interpreter; as such, her translations were confusing to Parent.  The hearing was suspended on that day, and different interpreters, with backgrounds in education, were retained and used for the remainder of the hearing. 

[3] “Guardian” is the term used by the court reporting company to designate the person who attends the hearing and monitors off-screen stenographers.

[4] The record does not indicate the type, amount, or location of special education services, nor does it specify the amount of time that Student spent in the general education setting.   

[5] Fusion Academy is a network of private programs that provides academic instruction and mentoring at the middle and high school level, primarily under a tutorial model, for students who may not thrive in traditional school settings.  Fusion is located in California and Massachusetts, and may also be located in other states.  Fusion instructors must hold bachelor’s degrees in content areas, but need not be credentialed teachers.  Fusion Academy in Hingham, MA is not a DESE-approved special education school, does not implement IEPs, and does not follow the Massachusetts Curriculum Frameworks.  (P-J – P-R, Platt)

[6] Fusion reported that she was attending three hours per day, and Parent disagreed, stating that she attended five hours per day.  Student was not receiving credit. 

[7] Ms. Callahan has a Masters’ degree in special education and a Certificate of Advanced Graduate Study in educational leadership and holds DESE licenses in moderate special needs, grades 5-12 and special education administration.  Ms. Callahan has been employed as a teacher at Quest for seven years. 

[8] Ms. Donahue holds a Masters’ degree in clinical social work and is a licensed, independent clinical social worker (LICSW).  She has been employed as a social worker at SSEC for 30 years.  

[9] Email correspondence between Parent and Ms. Packard during March 2023 reflect Parent’s dissatisfaction with the amount of instruction that Braintree was willing to fund at Fusion, as well as Parent’s position that Student should not have been terminated from Quest before another placement had been secured.  (P-F) 

[10] Parent expressed some dissatisfaction with schedule changes at Fusion, as well as that Student was not attending full days of classes. (S-18(D)).

[11] As will be discussed below, Parent retained a second attorney after Attorney A stopped representing her. 

[12] The original interpreter failed to appear at the scheduled starting time of 10:00 AM.  Braintree secured an alternate interpreter, and the meeting ran from 10:30 AM to 12;00 PM instead of 10:00 AM to 11:30 AM as originally planned.  (S-26)

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

[14] Parent’s advocate called her as a witness after the District had rested its case in chief.  After several minutes of testimony, District counsel responded to one of Parent’s statements by requesting the Hearing Officer to advise Parent that she was under oath, under pains of perjury.  Ultimately, Parent, through her advocate, declined to testify further, stating that she felt “intimidated” and “bullied” by District witnesses and counsel.  Parent, through her advocate, declined to call her other three planned witnesses (Student, Paul Bowen, and Student’s therapist), stating that they feared these witnesses would be subject to bullying and intimidation.