In Re: Isa[1] and Hingham Public Schools BSEA# 25-00461

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COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Isa[1] and Hingham Public Schools                                                    

BSEA# 25-00461

DECISION

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

A hearing was held on September 22, 23, 24, and 30 and October 15 and 16, 2024, before Hearing Officer Amy Reichbach. At Parents’[2] request, the hearing was opened to the public. Prior to the hearing, Parents were provided with a document explaining the numerous privacy and confidentiality rights guaranteed to their child and to themselves by federal and state law and informing them that they would be waiving these rights by proceeding with a public hearing. Mother knowingly and willingly signed a written waiver of these rights on behalf of herself and Isa before the hearing commenced.

With the consent of both parties and agreement of all participants, the hearing was held in a virtual format, via Zoom. Those present for all or part of the proceedings were:

Mother                                                       

Barbara Cataldo                         Interim Director of Student Services, Hingham Public Schools

Katherine Florek                         School Psychologist, Team Chair, and Building Team Leader, Hingham Public Schools

Elizabeth Cabral-Townson, Esq. Attorney for Hingham Public Schools

Catherine Lyons, Esq.                Attorney for Hingham Public Schools

Adam Tiro[3]                                  Advocate for Parents

Carol Kusinitz                             Court Reporter

The official record of the hearing consists of documents submitted by Parents and marked as Exhibits P-1 to P-34 and P-36 to P-49;[4] documents submitted by Hingham Public Schools and marked as Exhibits S-1 to S-15;[5] four full days and two partial days of oral testimony and argument; a digital recording of this testimony and argument; and a six-volume transcript produced by a court reporter. At the parties’ request, a postponement was granted through October 25, 2024 for submission of written closing arguments.[6] Closing arguments were received and the record closed on that date.

1. INTRODUCTION

On July 11, 2024, Parents filed a Hearing Request against Hingham Public Schools (Hingham or the District), asserting that during the 2022-2023 school year, Isa had not received her Individualized Education Program (IEP) services consistently and that this lack of support led to extreme behaviors, prompting her to leave Hingham’s East Elementary School. Parents contend that despite multiple meetings, Hingham did not offer other placements, and on or about August 18, 2023, they placed Isa unilaterally at the Inly School (Inly). According to Parents, the District did not offer, and Isa did not receive, a free appropriate public education (FAPE) while attending District schools. Parents requested that Hingham be ordered to reimburse them for Isa’s education at Inly during the 2023-2024 school year.

The Hearing was initially scheduled for August 15, 2024.

On July 22, 2024, the District filed its Response to Parents’ Hearing Request, asserting that all IEPs proposed by Hingham were reasonably calculated to provide Isa with a FAPE. According to Hingham, Parents accepted in full Isa’s IEP for the period March 1, 2022 to February 28, 2023, as amended in September 2022, proposing a full inclusion placement. After reviewing public and private evaluations at Isa’s annual review, the Team proposed increased services in her IEP dated February 28, 2023 to February 27, 2024. Parents rejected this IEP in full on or about September 21, 2023. Hingham agrees that on or about August 18, 2023, Parents withdrew Isa from the District and enrolled her in Inly, and notes that Inly is an unapproved private Montessori school located in Scituate, Massachusetts.[7] Following a failed attempt at mediation, Hingham convened an annual review Team meeting on or about February 27, 2024, and proposed an IEP for Isa. On or about March 21, 2024, the District held a reevaluation Team meeting, determined that Isa continued to be eligible for special education, and proposed an IEP dated March 21, 2024, to March 20, 2025 that included services for the remainder of fifth grade, as well as for her transition to middle school in September 2024. Hingham contends that the IEPs and placements proposed for Isa during the relevant time period have been reasonably calculated to provide her with a FAPE, and that the District has not committed any substantive or procedural violations constituting a denial of a FAPE. As such, Parents are not entitled to public funding for their placement of Isa at Inly, and their request for reimbursement should be denied.

During the Conference Call that took place on July 30, 2024, the parties agreed to postpone the Hearing to September 23, 24, and 25, 2024. The District filed a written postponement request and Parents objected, despite their previous agreement. The undersigned Hearing Officer allowed the District’s request for good cause on August 6, 2024, at which time Parents’ request for a public hearing was also allowed.[8] On August 26, 2024, the undersigned Hearing Officer issued a Ruling denying Parents’ Request to Record All Conference Calls and Meetings.

In early September, several disputes between the parties arose over subpoenas and discovery. The undersigned Hearing Officer addressed these disputes by way of a Ruling on Parents’ Motion to Reconsider and Parents’ Motion to Quash or Vacate Subpoenas issued on September 17, 2024 and a Ruling on Hingham Public Schools’ Motion to Compel, Hingham Public Schools’ Motion to Postpone, and Parents’ “Emergency Motion” to Delay Submission of Documents[9] issued on September 19, 2024.

At the close of Parents’ case, on September 25, 2024, Hingham moved for a directed verdict. The District’s Motion for Directed Verdict was denied orally on that date, and a written Ruling on Hingham’s Motion for Directed Verdict issued on October 22, 2024 expanded on the reasons for such denial.

The issues set forth for Hearing are as follows:[10]

1. Whether Hingham violated Isa’s right to a FAPE by failing to implement a fully accepted, expired IEP during the 2022-2023 school year, up to and including February 28, 2023;
2. Whether Hingham failed to propose IEPs reasonably calculated to provide Isa with a FAPE during the 2022-2023 school year beginning February 28, 2023, and if so, whether Parents are entitled to compensatory services;
3. Whether Hingham failed to propose IEPs reasonably calculated to provide Isa with a FAPE during the 2023-2024 school year; an
   1. If so, whether the Inly School is appropriate for Isa; and
   2. If so, whether Parents are entitled to reimbursement for their placement of Isa at Inly; and/or
4. Whether Hingham committed procedural violations during the relevant time period that amounted to a deprivation of a FAPE.

2. FINDINGS OF FACT[11]

1. Isa is an eleven-year-old resident of Hingham, Massachusetts. (S-1) She enjoys playing outside, tumbling, and listening to Taylor Swift. (S-13)

2. Isa attended East Elementary School in Hingham (East) for pre-kindergarten. After attending Plymouth River School in Hingham for kindergarten and first grade (during which she participated in a pod learning group due to COVID-19), Isa returned to East in second grade. (S-11, S-12; Florek, III: 508)

3. Dr. Katherine Florek has served as Isa’s Team Chair at East from the time she was found eligible for special education in second grade[12] through the present, but she stopped attending Team meetings for Isa on or about February 2024, per Mother’s request. Dr. Florek holds undergraduate degrees in psychology and sociology, a doctorate in clinical psychology, and both Massachusetts and national certification as a school psychologist. She also holds Massachusetts licenses in Clinical Psychology, Safety-Care, Crisis Prevention Intervention, and Special Education Administration. (Florek, III: 503-506, 508, 540-41)

4. Dr. Florek has been employed by Hingham for over a decade as a school psychologist, special education Team chair, and building Team leader. As a school psychologist, Dr. Florek oversees the provision of special education services and collection of related data at East; consults with families and staff who have concerns about students’ needs; oversees the consent process for special education evaluations; and conducts cognitive, executive functioning, and psychological evaluations. She also serves on the school’s child study team, discussing students’ development and considering tiered supports that may be appropriate. In her other roles, Dr. Florek chairs all special education meetings in the building; conducts weekly consultation groups with the special education teachers; and convenes targeted data meetings to ensure that all special education services are being delivered and that they are effective. She also serves on the school’s Crisis Response and Emergency Response Teams. (Florek, III: 500-502, V: 626)

5. When Isa was in third grade, her annual review meeting was held on March 1, 2022. The tenor of this meeting was collaborative. The Team noted that Isa had a Specific Learning Disability (SLD) in Reading and proposed an IEP with goals in reading and math and a full inclusion placement for the period from 3/1/22 to 2/28/23 (2022-2023 IEP). The IEP proposed the following services: Grid-A: consult with staff (1×15 minutes/6 days); Grid-B: math support, provided by a special education teacher or paraprofessional (6×30 minutes/6 days); and Grid-C: reading small group, provided by a special education teacher (2×45 minutes/6 days) and math support small group (2×30 minutes/6 days).[13] The IEP proposed a number of accommodations in PLEP A, including small group and separate setting; tracking of test items and monitoring of responses; use of graphic organizers, checklists, and reference sheets; frequent breaks; breaking larger tasks into smaller, more manageable tasks; cueing use of strategies for decoding and encoding; cycling back to previously mastered material to ensure retention; having Isa repeat directions; teacher check-ins for understanding; encouraging the use of a tracker; seating near the point of instruction; and clarification of test directions with familiar administrators reading aloud when directed. Finally, the Team considered Isa’s level of social skills development and her disability and concluded that her disability was not likely to make her more vulnerable to teasing, harassment and/or bullying. Parents agreed with this determination and accepted the 2022-2023 IEP and placement in full on or about April 4, 2022.[14] (S-2; Cataldo, II: 298-99; Florek, III: 509-13, V: 652)

6. In June of 2022, after the school year had ended, Parents contacted East interim principal Dr. Amanda Donovan to discuss their concerns regarding Isa’s peer relationships and vulnerability to bullying. (Florek, III: 514, V: 657)

7. On August 9, 2022, Parents contacted Dr. Florek to request a meeting near the beginning of the school year to discuss Isa’s social presentation and request that the bullying directive be added to her IEP. (P-32, P-40; Florek, V: 654)

8. When Isa began fourth grade in September 2022, Kathy Jennings was her general education teacher and Laura Hyman was her special education teacher.[15] (P-20; Florek, V: 755, VI: 879) Although Isa did not require paraprofessional support as a special education service at this time, Dr. Florek ensured that she was placed in a general education classroom that had three paraprofessionals available throughout the day to support all students, including classroom aide Kris d’Entrement. (Cataldo, III: 449; Florek, III: 516-17)

9. In Hingham, paraprofessionals receive professional development and are then supervised by the teachers with whom they work. Their assigned teachers share with them information about the students in the classroom, including their required accommodations. (Cataldo, I: 110, II: 305)

10. Isa’s Team reconvened on September 15, 2022 to discuss the concerns Parents had expressed to Dr. Donovan and Dr. Florek. During the meeting, Mother described an incident that had occurred during recess toward the end of the previous school year, where students were pretending to get married; Mother felt that although Isa was involved, she did not understand the complexity of the interaction. (Florek, V: 654-656, 768-69) According to Mother, this incident evinced Isa’s vulnerability to bullying. Although the Team did not share Parents’ concern, it agreed to amend the 2022-2023 IEP by revising the bullying statement to reflect Isa’s vulnerability to being bullied. The Team also added accommodations to PLEP A and PLEP B, including scheduled movement breaks during prolonged academic periods; adult support in navigating ambiguous or charged social situations; access to the School Adjustment Counselor (SAC) as needed; and encouragement of self-advocacy following an event that Isa perceives as uncomfortable. The Amendment was accepted by Parents on November 2, 2022, and returned to Hingham on November 10, 2022. (S-3; S-11; Cataldo, I: 162, II: 294-95, 298-300; Florek, III: 514-515, V: 654-56)

11. The 2022-2023 IEP, as amended in September 2022, was the last IEP and placement accepted by Parents, and as such, it is Isa’s stay-put IEP. (S-2, S-3, S-5, S-6, S-7, S-8; Cataldo, I: 162; Florek, III: 519-20)

12. On or about November 9, 2022, Ms. Jennings sent an email to Parents to express concern about Isa’s recent behavior in school, including an increased inability to focus and stay in her seat, and increased disruptive behavior. (P-1, P-34; Cataldo III: 378-79)

13. Around this time, shortly after Parents had accepted the amendment to the 2022-2023 IEP, Mother began to express concerns that paraprofessionals were either not available to Isa or not aware of her needs despite the amendment’s provision of adult support to assist Isa in navigating difficult social situations. In response to Parents’ concerns, Dr. Florek communicated with Isa’s classroom teacher and special education teacher, as well as with building administrators, to ensure that paraprofessionals were, in fact, available to Isa. (Florek, III: 517-19)

14. On or about December 19, 2022, Ms. Hyman contacted Parents to let them know she was concerned about changes in Isa’s behavioral presentation. Ms. Hyman explained that Isa had recently been having difficulty with self-regulation, impulsiveness, and defiance across several classes, which was “very different” from how she had presented at the beginning of the year. Ms. Hyman asked whether Parents had noticed any changes at home or had any insight and asked whether there had been a change in medication. Ms. Hyman also suggested connecting with the SAC, Lauren McClain, and Guidance Counselor Georgina Young. Parents responded that they had seen the same behaviors at home and would be happy to talk further. (P-36; S-11; Florek, V: 751, 813-14)

15. On or about December 21, 2022, Parents indicated to Ms. Jennings that they would be reaching out to Isa’s pediatrician to discuss her troubling behavior at school. They also requested a meeting to include East Principal Jonathan Hawes to discuss difficulties Isa was experiencing. Isa’s mother asked about supervision during recess and “specials,” and requested clarification regarding the presence of paraprofessionals during specials and teachers during recess. Dr. Florek responded to this email, which appears to have been sent to several people, explaining that paraprofessionals are present to support students when they are with specialists and at recess,[16] though Ms. Jennings would need to answer questions about the presence of teachers at recess, as she did not know their schedules. Dr. Florek indicated that Ms. McClain and Ms. Young would reach out to Parents to discuss support for Isa in the form of Tier 1 and/or Tier 2 services.[17] (P-31; Cataldo, III: 476; Florek, V: 753-54, 764)

16. At the hearing, Dr. Florek explained that school counselors at East provide Tier 1 interventions by working with classrooms and providing support to teachers implementing systems such as Zones of Regulation and Calm Classroom. Students who have elevated scores on screening questionnaires regarding internalizing and externalizing behavior may be recommended for a Tier 2 intervention such as a small group with an SAC. Students who do not display such elevated risks but whose parents express concerns may also receive Tier 2 supports. (Florek, III: 521-23)

17. After speaking with Parents, on December 22, 2022 Ms. McClain sent an email to Parents to follow up on a plan they had made for Isa upon her return from break and to provide a consent form for services to begin. Ms. McClain proposed that she provide Tier 1 interventions by meeting with Isa one-on-one to build skills and support her with challenging situations. Ms. McClain noted that Ms. Young would provide Tier 2 support through a lunch group wherein Isa could practice skills with peers. Parents consented to these interventions. (P-31, P-37; Florek, III: 522-23, 751-55, 779)

18. On January 3, 2023, Parents sent an email to Ms. Hyman and/or Ms. McClain, stating that Isa would “benefit from the extra help of the classroom para[professional] this week especially during unstructured time.” They requested a phone call or Team meeting to discuss Isa’s social emotional wellbeing, and they requested that Mr. Hawes attend. A Team meeting was scheduled for January 6, 2023. (P-28, P-30, P-38; Florek, V: 657-58, 661, 760)

19. In the interim, Ms. McClain arranged for an informal meeting to take place on January 3, 2023 via Zoom to discuss Parents’ concerns for Isa’s safety, her behavior over winter vacation, and her transition back to school, as well as their concern about a lack of paraprofessional support in the classroom. Dr. Florek was unable to attend. Mother was upset when the meeting ended abruptly due to limits on the particular Zoom call. (P-28; Cataldo, II: 343-47; Florek, III: 520, V: 661-62, 760-61)

20. Following the Zoom meeting, Mother emailed Mr. Hawes to request that going forward, if an administrator were going to attend a meeting about Isa, it be Dr. Donovan (then the assistant principal) instead of Mr. Hawes, as he lacked knowledge regarding her children and their needs. She stated that she did not see him “bringing anything [positive and about Isa] to the table.” Mr. Hawes responded that he and Dr. Donovan “are a team, and aligned in our oversight of important cases, and given the tenor of Tuesday’s meeting and subsequent communications, I feel it’s all the more important to attend Friday’s meeting.” (P-28, P-38; Cataldo, III: 476; Florek, V: 766, 815)

21. On January 4, 2023, Mother emailed Dr. Florek, expressing concern for Isa’s safety and wellbeing during unstructured times. She stated that these concerns dated back to 2019. Given that school staff did not share these concerns, Dr. Florek asked Parents in advance of the meeting whether they could provide additional background and “clear examples of instances that are causing [Parents] to feel that [Isa] is unsafe at school,” at the Team meeting. (P-28, P-30; Florek, V: 763)

22. On January 5, 2023, Parents emailed Dr. Florek to ask whether East’s digital literacy teacher could attend the Team meeting the next day or provide recommendations, as they were seeking “assistant [sic] technology help” at school and for homework. Dr. Florek explained that this teacher was not available to attend but could be available for a phone call. Dr. Florek also clarified that assistive technology (AT) was in the purview of the special education staff rather than the digital literacy teacher and suggested that the Team discuss Parents’ AT questions and brainstorm ideas at the Team meeting the next day.[18] (P-29; Florek, V: 761-762, 793-94)

23.  At the in-person Team meeting on January 6, 2023,[19] Parents expressed concerns about Isa’s social and emotional health at school and at home and discussed recent changes within her family system (loss of an aunt and injury of a grandfather). The Team discussed these concerns and shared information about Isa’s behavior at school. Parents were highly emotional during the meeting. They appeared to be quite stressed and concerned about Isa’s safety, and they became increasingly agitated. Mother was tearful at times. One example Parents presented as a serious safety concern involved an incident where, during a group project, a peer had responded that Isa’s suggestion was a bad or stupid idea. Parents also believed that it was unsafe for Isa to retrieve her schoolwork from her locker.[20] Hingham staff noted that Isa was testing limits, displaying some noncompliance and inattentive or impulsive behavior, all of which they believed was within the realm of normal, age-appropriate development. They described Isa as a student who needs breaks, flexibility in the classroom, and coaching about friendship and conflict; however, they saw the examples raised by Parents as normative, grade-level conflict. Finally, Parents expressed their belief that if Isa were receiving paraprofessional support, she would not display any unexpected behaviors. They viewed the fact that Isa did display such behaviors as an indication that she was not receiving appropriate support.

School staff reiterated that Isa’s services were being implemented, including paraprofessional support. Ms. McClain agreed to develop a communication system to connect with the family weekly regarding Isa’s functioning at school. The Team recommended that in the event Isa were to share information from her school day that was upsetting, Parents reach out to members of her Team to permit school personnel to follow up. The Team agreed to share more information regarding Isa’s needs with the paraprofessionals working in her classroom/specials, and during lunch and recess. Parents requested that a social emotional goal be added to Isa’s IEP immediately, that a Functional Behavioral Assessment (FBA) be conducted, and that paraprofessional support be provided for Isa during unstructured times.[21] Dr. Florek explained that the Team was recommending additional evaluations to address Parents’ concerns and clarify Isa’s needs before additional goals and services were added to her IEP. Specifically, Hingham proposed an FBA (consistent with Parents’ request), an Emotional Evaluation, a Social Pragmatic Language Evaluation, a Home Assessment, an Educational Assessment and an Observation. A consent form for these evaluations was sent to Parents on or about January 9, 2023. (P-28, P-30; S-4; Cataldo, III: 387-90, 468-70, 478; Florek, III: 521-24, 526-529, V: 657, 662-64, 668-73)

24. Parents rejected the omission from Isa’s IEP of social-emotional goals, services, and additional paraprofessional support. (S-4; Catalado, III: 390)

25. On or about January 11, 2023, Parents returned the signed consent form, accepting all evaluations except the Home Assessment, and requesting an Occupational Therapy (OT) evaluation. Hingham agreed to the OT assessment. (S-4; Cataldo, I: 164, III: 470; Florek, III: 529-30, V: 664)

26. Dr. Regan Summers, PsyD, of the Massachusetts General Hospital LEAP Program, conducted a private Neuropsychological Evaluation of Isa on or about January 9, 2023. [22] Although the IEPs proposed for Isa after this date reference this evaluation and it is discussed in the March 2023 reports of several Hingham evaluators, neither party entered Dr. Summers’ evaluation itself into evidence. According to testimony at the hearing and references in other evaluations, Dr. Summers noted that Isa was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in early 2021 by her pediatrician, that she was taking Clonidine, and that she was also taking Prozac daily for anxiety. She recommended counseling within school as well as family counseling. Dr. Summers listed Isa’s diagnosis as follows: Generalized Anxiety Disorder, ADHD Combined Presentation; SLD with impairment in reading/dyslexia, partially remediated; and SLD with impairment in written expression. When Isa’s Team discussed Dr. Summers’ evaluation at a Team meeting several months later, Hingham did not agree with Dr. Summers’ endorsement of an SLD in written expression, as Isa’s written language testing was in the average range. Isa scored within the average range on math skills as well. (P-1; S-5, S-6, S-7, S-11, S-12; Florek, III: 530-32, 535)

27. Isa continued to experience difficulty in the latter part of January 2023. According to the progress report submitted by Ms. Hyman on or about January 27, 2023, Isa’s self-regulation was inconsistent and was impacting her ability to attend to and access small group services. Ms. Hyman approached Dr. Florek about the shift she had noticed in Isa’s engagement in small group between November and January. Ms. Hyman observed that Isa did remain “very redirectable,” however, and she was sharing her feelings about her family and her private life. (S-9; Florek, V: 755-56) Dr. Florek testified that among the multiple factors that might contributed to these changes, Isa had changed medication at the beginning of the school year and at some point it was reported to Ms. McClain that Isa was throwing away her medication rather than taking it. Moreover, Isa was also discussing concerns with her teachers about changes in her family structure. (Florek, V: 725, 767-68, VI: 899-90)

28. An incident occurred during recess on or about January 25, 2023, where Isa was in a physical altercation with another student, and paraprofessionals intervened. Ms. McClain met individually with the students who had been involved, including Isa. They each acknowledged their role, and the students discussed relationship repair. Ms. McClain then held a restorative conversation with a group of students, including Isa. Parents believe there was no paraprofessional support available to Isa during this incident, but according to Dr. Florek, paraprofessionals were present and intervened appropriately. A second incident occurred the next day, where Isa was upset when a different student brought up the recess incident, and she hit that student. No disciplinary action occurred, but Ms. McClain reengaged with Isa regarding voicing feelings without becoming physical. (P-1, P-26, P-27; Florek, V: 756-57)

29. On February 10, 2023, Isa had a difficult day. Ms. D’Entremont, the classroom aide in Ms. Jennings’ class, checked in with her a few times regarding some disruption and dysregulation. Other students reported that Isa was filming videos on her phone outside at recess. (Cataldo, II: 315, III: 449.) When asked about it by Mr. Hawes and Ms. Young, Isa denied having her phone; ultimately it became clear that she had been dishonest. Isa was reminded that school policy prohibited students from having phones on their person at school. (P-17, P-25) According to Dr. Florek, a student bringing her phone to school and using it during the school day, inappropriately, is a rare, limit-testing event, but it is not an extreme behavior. (Florek, V: 745-47)

30. That evening, Parents reached out to Hingham Superintendent of Schools Dr. Margaret Adams and asked her to call regarding their concerns for Isa at East. Dr. Adams responded the next business day that she had checked with Mr. Hawes, as she did not have first-hand knowledge of what transpired in the school building, and shared that an extra paraprofessional was outside at recess to provide additional supervision. Mr. Hawes also reached out the same day to let Parents know he would be happy to review their concerns. (P-16, P-24)

31. On or about February 15, 2023, short-term substitute Madison Gomes began covering for Ms. Jennings in Isa’s general education classroom, as Ms. Jennings was out on leave. Ms. Gomes spent approximately six to eight weeks in this role before Ms. Jennings returned. Although Dr.  Cataldo testified that Ms. Gomes had never had a previous teaching job and had no teaching experience, and Dr. Florek testified initially that she believed East was Ms. Gomes’ first teaching position, Dr. Florek later corrected these statements, testifying that Ms. Gomes had actually come to East highly recommended from another public school district. Ms. Gomes was not, however, a certified teacher. She was briefed on the needs of the classroom before she began. According to Dr. Florek, Ms. Gomes did her best to manage Isa’s behaviors, such as her tendency to play with items from home that she kept out on her desk, and Ms. Gomes sought support from the administration and the counseling department when needed. (P-14, P-17, P-20, P-23(b); S-11; Cataldo, II: 314, III: 458-61; Florek, III: 551-52, 554, V: 634-35, VI: 904)

32. Progress reports developed for the term of Isa’s March 1, 2022 to February 28, 2023 IEP demonstrate that she was making progress in both reading and math during fourth grade. (S-9; Florek, III: 547-548)

33. In mid-February 2023, Dr. Florek reached out to Parents to ask whether they wished to postpone Isa’s annual review scheduled for February 28, 2023 and hold one meeting in March for that purpose and to discuss the pending evaluations that would be completed by then. Parents declined to combine the meetings, and the annual review Team meeting occurred as scheduled on February 28, 2023, Parents received a brief update from Ms. McClain regarding Isa’s progress. Ms. Gomes attended the meeting and had the opportunity to share her feedback regarding Isa’s strengths and challenges. Among other things, Ms. Gomes explained that Isa was making progress, but that she tended to become distracted by the items on her desk. Although neither party submitted the initial 2023-2024 IEP into evidence, Dr. Florek testified that the Team proposed a draft IEP following the meeting that included special education consultative services, B-Grid math support services from a paraprofessional, and C-Grid reading and math services. Mother was stressed at the meeting, as she had hoped that additional supports and services would be added to Isa’s IEP at this time, but Hingham staff explained that the Team would propose a revised IEP after it reconvened to review Isa’s evaluations. (P-1, P-14, P-15, P-23(b), P-24; S-5; Florek V: 675-76, 680-81, 682-83, VI: 884)

34. On March 24, 2023, Isa’s Spanish teacher, who covered her music class that day, contacted Parents regarding Isa’s “rude and disrespectful” behavior. (P-22(b); Cataldo, II: 278-279; Florek, V: 749-50) Mr. Hawes followed up, emailing Parents on April 6, 2023 to let them know that he had met with Isa to discuss some “recent trouble with specialists.” He stated that aside from this, everything else was “super positive,” and explained that he and Isa had come up with an incentive plan for her specialist classes to implement the following week, with Parents’ approval. Incentives included time with Mr. Hawes and/or the assistant principal. (P-18)

35. As part of Isa’s FBA, which was conducted by Jonathan Prone, Board Cetified Behavior Analyst (BCBA), LABA on various dates between January 11 and March 28, 2023, Ms. Gomes filled out the Functional Assessment Informant Record for Teachers (Fair-T) on March 16, 2023. At this time, she had been working with Isa for less than a month. Ms. Gomes reported that Isa is outgoing, tries hard, enjoys working with others, and often produces grade-level work when focused. Ms. Gomes also reported that Isa could display some challenges throughout the day, including noncompliance, difficulty focusing, and impulsive decisions, and that she could often misread social cues and copy other students’ negative behaviors. According to Ms. Gomes, Isa’s behaviors can range in disruptiveness but are often manageable. Ms. Gomes also filled out Isa’s Questions About Behavioral Function (QABF) questionnaire, the results of which were inconclusive. (S-10; Cataldo, II: 271-73, III: 458-66; Florek III: 551-555)

36. In the FBA report, dated March 28, 2023, Mr. Prone explained that Isa’s strengths included following directions, advocating for herself, interacting with peers appropriately, completing academic work independently, appearing motivated to do well, and having friendships within the class. In reviewing behavioral data collected by classroom staff during the assessment period, Mr. Prone noted that Isa was distracted by putty, her fake nails, and socializing with peers; and displayed noncompliance on multiple occasions when asked to engage in particular activities such as removing coloring sheets, staying in line order, and completing classwork. Mr. Prone also observed during his own classroom visits that Isa was focused on her work in class at times but was off-task and/or had difficulty paying attention, particularly while playing with fidgets, at other times; socialized with peers and approached teachers for assistance appropriately; was more likely to engage in unexpected behaviors (standing still when her class was walking, playing a musical instrument in the hall) during transition times; and was responsive, for the most part, to redirection and other prompts from adults regarding expected behaviors. Mr. Prone concluded that Isa appeared to be potentially engaging in inappropriate/unexpected behaviors such as noncompliance, blurting, and being off-task in order to gain attention from adults and peers, escape work demands/activities/instructions, and gain access to preferred tangible items/activities. Moreover, she might be engaging in such behaviors to gain access to non-social sensory stimulation. Mr. Prone recommended that staff use general behavior strategies to assist Isa during the day, including in-vivo social coaching; making time for relationship-building activities; having Isa make choices during the school day when possible to give her a sense of control within specific limits; assisting her in using calming strategies when escalated; using positive reinforcement; checking in with her frequently for comprehension of the lessons; encouraging her to remain organized by removing non-essential materials from her desk; providing clear and consistent behavior expectations and seating that limits opportunities for distractions; and providing opportunities for Isa to be a peer leader. (S-5, S-10; Cataldo, II: 255-57, 274-77; Florek, III: 555-57)

37. Lauren McClain, LICSW, conducted Isa’s Emotional Assessment on various dates between January 11 and March 2, 2023. (S-11) Prior to completing the assessment, Ms. McClain had been reporting to Parents that Isa was open and engaging in activities during individual counseling sessions. (P-13, P-23(a)) In administering the assessment, Ms. McClain considered her individual visits with Isa and completed a records review, observations, and a review of parent communication and social-emotional screenings done by Isa’s classroom teachers to assist her in determining whether Isa had an emotional disability and whether any social emotional services should be added to her IEP. Ms. McClain concluded that Isa did not meet the criteria for an emotional disability. Isa was seen both to have success following expectations and needing reminders to follow expected behaviors. Her peer conflicts appeared to be age-appropriate, and Isa reported having friends in and out of school and continuing to seek out friendships. She did not exhibit a general pervasive mood of unhappiness or depression in school, nor did she identify physical symptoms or fears associated with personal or school problems. Ms. McClain observed that in December 2022, when Isa’s social-emotional screening tool showed high risk internalizing and externalizing behaviors, Isa had experienced a death in her family and changes to her medication. In response to concerns at that time, Isa began to receive individual intervention with the SAC (Ms. McClain) and had subsequently begun individual counseling and a weekly social skills group outside of school. Ms. McClain recommended that Isa continue to work with the SAC and the school counselor to build self-regulation, self-awareness, and self-advocacy skills; that the adults around her continue to monitor and help Isa verbalize and process when a conflict does occur; and that Isa continue have the option of taking breaks. Finally, Ms. McClain noted that it is important to monitor Isa’s social and emotional functioning in school for changes in her mental health, such as by reviewing the social-emotional screenings completed by her classroom teachers, to identify whether an emotional disability is later warranted. (P-1; S-5, S-11; Florek, III: 558-560)

38. Wendy Gillen, MS, CCC-SLP completed Isa’s Speech/Language Evaluation on four dates between mid-February and early March 2023. This evaluation was focused on Isa’s pragmatic language, due to concerns about her social-emotional regulation and ability to understand multiple perspectives in a social situation. Ms. Gillen noted that Isa was cooperative and engaging during the one-to-one assessment, responded appropriately to all bids for connection, and initiated and engaged in conversation appropriately. Although her response style was impulsive at times, Isa communicated for a variety of purposes, maintained eye contact, and interpreted and utilized appropriate nonverbal communication. Moreover, she demonstrated a good ability to shift perspective. During classroom observations, Isa worked quietly at her desk and appeared to be focused on her work. During unstructured times she demonstrated unexpected behaviors by imitating peers, although she did not recognize these behaviors as being unexpected. Ms. Gillen concluded that Isa’s pragmatic/social language skills fell within the low average to solidly average range, and that her inattention to task and impulsiveness appeared to impact her ability to consistently read subtle contextual and interpersonal skills. She noted that Isa would benefit from a structured, predictable routine, opportunities to work in small groups when appropriate, conscious pairing with peers, preview and review of social expectations prior to unstructured activities, check-ins to ensure she is on task, frequent breaks throughout the school day, and access to sensory tools. Ms. Gillen also recommended that Isa have the opportunity to debrief social situations with an adult and meet with the SAC or guidance counselor. (S-5; S-12; Florek III: 560-63, 769)

39. Isa’s OT evaluator noted that during her observation times, with her accommodations in place, Isa was an active participant. The evaluation indicated that Isa was having difficulties in all areas of sensory processing in the classroom environment, though the evaluator noted that her score “should be interpreted with caution as medical, developmental, cognitive, behavioral, emotional, and environmental factors” may have impacted her overall performance, such that some of the behaviors “may be more of a product of her anxiety and ADHD rather than a truly sensory based difficulty.” (S-5; Florek, V: 627-28)

40. At approximately 3:17pm on March 28, 2023, two days in advance of the March 2023 Team meeting, Hingham Special Education Administrative Assistant Darcy Greene sent Isa’s Emotional Assessment, OT Evaluation, FBA, and Speech/Language Evaluation to Parents by email. At this time, Ms. Greene had not yet received Isa’s Educational Assessment Part A and B (Ed A and B) from Ms. Gomes. (P-47; S-15; Florek, V: 632, 635-37, 802-807. VI: 874-75)[23]

41. It is not clear that Parents received the Ed A and B prior to the Team meeting on March 30, 2023 (March 2023 meeting).[24] (P-47, P-49; S-15).

42. On the Ed A, Ms. Gomes noted that Isa is easily distracted, misses social cues, and refuses to do tasks when fixated on a particular peer. She indicated that Isa’s support schedule, which includes extra math and reading support a minimum of three days a week in a small group, “interferes with conventional classroom structure,” but that Isa responds better with individual one-on-one support or small group work with limited distractions. Ms. Gomes explained, consistent with her report at the February 28, 2023 Team meeting, that the “calming objects” on Isa’s desk appeared to be distracting and tied more closely to peer acceptance than useful as a learning aid. She observed that Isa’s “constant need for attention [from a particular peer] continues to influence her negative, defiant, distraction, attention seeking outbursts.” According to Ms. Gomes, Isa shows progress when her environment, socialization, and attention span do not interfere. (P-45(b); Florek, VI: 935-939)

43. According to the Ed B, Ms. Gomes noted that with her accommodations and modifications, Isa was performing “below average when relating to learning standards of MA Curriculum Frameworks.” Ms. Gomes observed that Isa experiences difficulty staying on task, but that she thrives and excels when in a comfortable (“not a conventional classroom”) setting. She indicated that Isa’s participation in classroom activities depends on the environment, her mood, and the ”socialization dynamic.” Ms. Gomes also stated that Isa’s communication and socialization skills “seem lower than her age,” as she has difficulty processing peer social interactions. Ms. Gomes again noted that Isa’s lack of attention span, what she referred to as “obsessive behavioral tendences,” and constant need to move or fidget, appeared to interfere with her ability to retain information. Finally, as to Isa’s interpersonal skills with groups, Ms. Gomes explained that she lacks understanding of peer social cues and her own personal emotional thoughts, which prevents her from socializing fluidly with her peers, and that her behavior may be dictated by a desire for peer acceptance. Ms. Gomes concluded that Isa is bright and talented, benefits from small group learning and one-on-one individual support, and gets overstimulated and easily distracted in a conventional/traditional classroom setting. (P-45(a) and (b); Cataldo, III: 391-92, 394-95; Florek VI: 939-942)

44. On March 29, 2023, the day before the Team meeting, Parents submitted concerns by email regarding Isa’s learning and social-emotional challenges and the ways in which these challenges are addressed at school. Parents stated that they were “highly concerned with classroom management and consistency for [Isa] in addition to appropriate academic supports and interventions,” and “concerned that she receive appropriate accommodations and interventions for her particular constellation of challenges, namely ADHD, dyslexia (specific learning disabilities in the areas of reading and writing) and generalized anxiety, and all their accompanying struggles.” Parents continued, “In keeping with Dr. Summers’ recommendations, we are concerned that [Isa] is in need of therapeutic support both at home and at school, as such services would need to be consistent between the two to be sufficiently effective.” Parents requested that Isa continue to meet with a school counselor at least once a week to work on emotional identification and generalizing positive coping strategies and attend a social skills group if one is available and Isa buys in to it, and, further, that Isa’s school counselor or behavior specialist be available to classroom teachers to design classroom interventions to address mood dysregulation and be in consultation and collaboration with at-home and outside providers. Moreover, Parents requested that in accordance with Dr. Summers’ recommendations, Isa receive a “highly structured, multisensory, sequential reading program designed to help children learn sound-symbol correspondence (e.g., Orton Gillingham, Lindamood Bell), i.e. programs designed and scientifically proven to be effective for children with dyslexia.” They asked that Isa continue to receive weekly specialized reading instruction from a special education teacher or certified reading specialist, delivered with fidelity, and that she receive writing interventions, additional spelling instruction, and additional time to complete work. Parents indicated that Isa had been receiving private tutoring and/or direct instruction in reading, math, and social skills training. Finally, Parents requested that Isa receive additional behavior regulation supports, that increased adult support be provided in unstructured environments such as lunch and recess, and that consultation with a BCBA be incorporated into Isa’s IEP. (S-5)

45. Isa’s Team reconvened on March 30, 2023[25] to review the recent District testing conducted by an occupational therapist, an SAC, and a BCBA, as well as the outside neuropsychological evaluation conducted by Dr. Summers. (S-5) At the meeting, Mother maintained that she was concerned about Isa’s safety.[26] (Florek, V: 651)

46. During their review of Dr. Summers’ evaluation, Isa’s Team noted that it appeared to contain an error in that it recorded a higher Full Scale IQ (FSIQ) than previous testing had shown. According to Dr. Florek, the Team determined, based on all of the reports, that Isa’s FSIQ was in the average range. (S-5; Florek, III: 530-31)

47. Toward the end of the March 2023 Team meeting, Parents requested information regarding Hingham’s Language Acquisition Home Base (LAHB) Program and Comprehensive Learning Center (CLC). Dr. Florek shared information regarding both programs. The Team reiterated that Isa did not require a partial inclusion or substantially separate program at this time. Rather, based on teacher observations and reports, parent input, current classroom performance, and data on IEP progress, Isa’s least restrictive environment remained the inclusion setting. Furthermore, by virtue of the demonstrable progress she was making toward her IEP goals, she would not satisfy the criteria for the LAHB program despite her SLD in reading. The meeting, which was scheduled for 90 minutes, lasted approximately 105 minutes. Toward the end, Mother and her advocates became argumentative, and “[i]t was no longer a productive conversation.”[27] Hingham offered Parents a follow-up meeting to allow them to ask additional questions, but Parents did not avail themselves of the opportunity. (S-5; Cataldo, III: 400-402; Florek, III: 532-33, V: 723, 789-93, 821-22, VI: 906-08, 912-14)

48. At some point during the March 2023 meeting, Mr. Hawes left the room from which he was participating and walked to his office, due to an emergency in the building. He carried his laptop with him. Parents expressed concern that Mr. Hawes’ laptop was not muted and that his video was on, compromising their privacy, and emailed Mr. Hawes asking him to mute and turn off his camera when moving through the building. When it was pointed out to him, Mr. Hawes was highly apologetic about having left his camera on while walking, and he attested that no one had been around and that his audio had been off. At the hearing, Dr. Florek (who had been chairing the March 2023 meeting) testified that Mr. Hawes walked approximately 20 feet, that he was between locations for less than 10 seconds, and that no one could be seen within his periphery. (P-11, P-21; Florek, V: 688-691, 816-18)

49. Although Ms. Gomes attended the March 2023 meeting and had the opportunity to discuss Isa’s performance and presentation in the classroom, Parents contend that the Ed A and B were not discussed, nor were what Parents characterize as Ms. Gomes’ “serious behavioral, social emotional, [and] social pragmatic concerns.” Mother does, however, acknowledge that Ms. Gomes raised concerns at the meeting about Isa being distracted by the fidgets on her desk and offered her opinion that Isa is more productive in a small group or one-to-one setting and is “not fit for a traditional classroom.”[28](P-49; Florek, V: 810, VI: 870-73, 880-94)

50. The day after the Team meeting, Parents sent an email to Dr. Suzanne Vinnes, who was then Hingham’s Director of Student Services, requesting additional information regarding LAHB and criteria for students assigned to the program. Dr. Vinnes responded, explaining that LAHB “is designed to provide specially designed instruction to students with Language-Based Disabilities, most specifically, Dyslexia,” and that Teams may refer students to the program for consideration. (P-12, P-22(a); Florek, V: 728, 743-44)

51. As a result of the March 2023 Team meeting, the Team proposed an IEP dated 2/28/2023 to 2/27/2024 (Amended 2023-2024 IEP) that listed Isa’s disabilities as an SLD (in Reading); Health Disabilities – ADHD (Combined Type), and Generalized Anxiety Disorder. The IEP indicated that Isa was approaching grade level standards with support in reading and math, and meeting grade level standards based on classroom standards in writing. (S-5) Despite Isa’s average math scores, the Team proposed math services, consistent with Dr. Summers’ recommendation, with a maintenance goal. Isa’s self-regulation goal, which appeared for the first time to the Amended 2023-2024 IEP, was added to address the needs identified by Dr. Summers, the FBA, and the Emotional Evaluation, including Isa’s challenges with inhibition regulation. (S-5; Cataldo, I: 165-66; Florek, III: 533-35. VI: 888-89)

52. The Amended 2023-2024 IEP contained goals in Reading, Math, and Self-Regulation, and provided for the following services: A-Grid: OT Consult with the occupational therapist (1×15 minutes/month),[29] Consult with the special education teacher (1×15 minutes/6 days), Behavior Consult with a BCBA (1×15 minutes/month), and Consult with the Counselor (1×15 minutes/month); B-Grid: Math Support and Academic/Behavior Support, both to be provided by a paraprofessional (6×30 minutes/6 days and 6×80 minutes/6 days, respectively); and C-Grid: Reading and Math, both delivered by a special education teacher (3×30 minutes/6 days and 2×30 minutes/6 days, respectively), and Counseling with the Counselor (1×30 minutes/6 days). (S-5)

53. Isa’s Amended 2023-2024 IEP included a range of accommodations, adding to the accommodations in her previous IEP the following: copies of class notes; positive behavior chart/positive reinforcement of expected behaviors and positive behavior list of classroom expectations; advanced verbal cues for changes in schedules, cueing/reinforcement for when Isa indicates she requires a break and time to de-escalate; teaching of strategies to limit careless errors and increase self-awareness due to inattention; seating near the point of instruction that limits opportunities for distractions and increases focus, and the ability to assume different work/seated positions; access to fidgets and gum as needed, as long as they are used appropriately; encouragement of desk organization; access to adult support in navigating ambiguous or charged social situations; access to an SAC as needed; encouragement of self-advocacy skills following an event that Isa perceives as uncomfortable; and opportunities for her to gain attention from peers in a positive social way, such as by being a peer leader. (S-5)

54. The Amended 2023-2024 IEP also provided for a reduced workload in math for classwork and homework and modified spelling lists when applicable; direct and explicit instruction in a research-based, scientifically proven, multi-sensory, structured and sequential phonics approach for decoding, encoding, fluency, and reading comprehension; math instruction in a small group separate setting to address targeted weaknesses; and modified/accommodated tests in all subject areas as needed, with word banks for tests as needed. (S-5)

55. With regard to the bullying statement, the Team continued to conclude that social development and/or disability is likely to make Isa more vulnerable to bullying, harassment, and/or teasing; as a result, developmentally appropriate accommodations and/or social-emotional behavioral goals/benchmarks were included in the proposed IEP to address this. Moreover, the IEP noted that Isa has access to general education resources such as the social skills curriculum, school counselors, and administrators, to address potential issues of social skill development, bullying, teasing, harassment, and conflict resolution. (S-5)

56. Isa’s Amended 2023-2024 IEP was sent to Parents on or about April 4, 2023.[30] (S-5)

57. On or about April 5, 2023, Isa’s mother contacted Dr. Summers to discuss aspects of the neuropsychological report she had completed in January. Although Dr. Summers had never spoken with any of Isa’s teachers, attended a Team meeting, nor observed Isa at school, Mother asked whether she would recommend a specialized therapeutic or language program for Isa. Dr. Summers responded that at this time, Isa should receive “an aide/BCBA in the classroom in addition to accommodations and services to address her attention regulation, emotional, and social needs.” Dr. Summers also noted that if Isa’s functioning declines even with these supports in place, a “more advanced therapeutic placement” should be considered. (P-2; Cataldo, I: 177-79, 182, 420-421; Florek, V: 724)

58. Ms. Jennings returned to the classroom on or about April 6, 2023. Parents expressed concern regarding the transition for Isa. (P-19, P-20)

59. At some time before May 1, 2023, Parents requested that East staff complete forms for “private school and private evals.” (P-1)

60. On May 2, 2023, Isa was involved in an incident in the cafeteria. She and a peer were tossing food across the table at another classmate, “T.” Ms. D’Entremont, who was supervising in the cafeteria along with two paraprofessionals/interventionists, noticed and checked in with the girls. Ms. D’Entremont warned them, but the behavior continued. Ms. McCLain went to the cafeteria to discuss the incident with the girls, at which point she discovered that Isa and one peer and had ruined T’s lunch. The girls told Ms. McClain that they had ripped up T’s lunch and thrown it at her. Isa then ripped up her own lunch. T reported feeling hurt by the behavior. Ms. McClain asked Isa and her peer to clean up the mess they had created and offer a sincere apology to T. Isa and the other peer were not sincere and continued to laugh about what had happened. Ultimately, the girls did clean up. They also participated in a restorative circle overseen by Ms. McClain, where they were asked to discuss the incident and its impact on those involved. As a consequence for her behavior, Isa was told that she would have lunch in the office for the remainder of the week. (P-9, P-10; Cataldo, III: 406-07, 409-11, 450-51; Florek, V: 706-08, 721-22)

61. Ms. Jennings emailed Parents that day to inform them of the incident and ask Parents whether they could “shed light on any strategies . . . use[d] at home which might be successful in school.” (P-10; Florek, V: 742)

62. Isa’s mother was unhappy with the investigation of the incident and/or the consequence and expressed concern that Isa was being “accused of things she didn’t do.” (P-9)

63. On or about May 5, 2023, Isa stopped attending East. District staff contacted Parents several times to inquire as to Isa’s status, including when (and whether) she would be returning to school. (P-1, P-6, P-8; Florek, V: 743)

64. On or about May 8, 2023, Parents contacted Hingham to inquire about services available to students on IEPs attending private schools. Both Dr. Florek and Dr. Vinnes explained that students may be scheduled to drop into a Hingham Public Schools building for services during the school day, or for a private school located outside of Hingham, such services could be provided through the town in which the private school is located, dependent on that town’s IDEA funding. This conversation continued into June. (P-7, P-8; Cataldo, I: 86-87, III: 440-42; Florek, V: 740-42)

65. On or about May 9, 2023, Parents submitted a medical form filled out by Isa’s pediatrician to support a request for home tutoring. The form was missing diagnostic information and the proposed dates of home confinement. Dr. Vinnes contacted Parents to let them know that the form was incomplete and she indicated that a message had been left for Isa’s pediatrician requesting additional information. Hingham offered to meet with Parents to discuss their concerns and get more information regarding whether and when Isa would return to school, but Parents declined. (P-1, P-6, P-7; Florek V: 728-32)

66. Isa was admitted to Massachusetts General Hospital (MGH) for a seizure study on or about May 22, 2023, where she remained until on or about May 25, 2023. (P-1; Florek, V: 729-30)

67. On or about June 5, 2023, Parents submitted an additional request for home tutoring. Dr. Vinnes explained that a home/hospital physician affirmation form needed to be completed to verify that Isa was confined to the home and not cleared medically to participate in community-based activities. Parents responded, “If you need any further information you can contact the doctors themselves. We have provided you with enough information.” Dr. Vinnes sent Parents a notice documenting the District’s refusal to provide services and invited them to submit for review an “updated, fully completed, attestation form” signed by a physician. (P-1, P-5; Florek, V: 730-31)

68. A comment on Isa’s end of year report card noted that she had received home tutoring from Hingham after she had been unable to finish the school year at East due to health concerns. According to Dr. Florek, home tutoring was offered while Isa was at MGH, but Isa did not access it; Dr. Florek testified that Isa’s teacher may not have been in a position to know whether Isa had received the tutoring that was offered.  (P-3; Florek, V: 725-27)

69. In the meantime, on or about May 23, 2023, Parents applied on behalf of Isa to the Inly School.[31] On the application, Parents were asked whether Isa was currently on an IEP or 504 Plan. They indicated yes, and in the space where they were asked what type of support Isa is receiving, Parents noted, “Dyslexia but is reading on grade level per MGH report 1/2023.” Parents also noted that Isa is being followed for seizures. (S-1; Cataldo, II: 268-59)

70. Dr. Cataldo met with Isa’s mother on August 9, 2023, at which time Mother stated that Isa would be attending Inly for the 2023-2024 school year. Among other things, they discussed the possibility that proportionate share services might be available to support Isa at Inly. Parents later emailed to inform Hingham that they intended to hire a tutor of their own choosing to provide Isa with multi-sensory reading instruction. On August 28, 2023, the District offered Parents $9,972 for Orton-Gillingham tutoring, based on Parents’ assertion that Isa required multi-sensory reading, the District’s recent proposal adding these services to Isa’s IEP, and the availability of grant money to fund the service. Hingham gave Parents until August 31, 2023 to respond. Parents did not respond by the deadline. (P-44; Cataldo I: 48-49, 55-56, 129-131, 134-35)

71. On or about August 21, 2023, Parents provided written notice via a 10-day letter to Hingham of their unilateral placement of Isa at Inly for the 2023-2024 school year.  (P-1; Cataldo, I: 46, 52, 133-34) Upon receipt of the letter, Hingham requested that Parents participate with the District in mediation.[32] (Cataldo, II: 134)

72. On or about September 13, 2023, eight days after the school year began on September 5, 2024, a Hingham Special Education Liaison reached out to Parents offering special education services to Isa at East consistent with her IEP and asking Parents to sign and return the pending IEP Amendment.[33] Parents did not sign the Amendment or accept services at East at this time; instead, they inquired as to when Hingham would begin providing services to Isa at Inly. (P-44)

73. Shortly thereafter, Dr. Cataldo reached out to Scituate Public Schools (Scituate) and learned that Inly chooses not to collaborate with Scituate, and “they do not utilize proportionate share funding for their students.”[34] On or about September 19, 2023, Dr. Cataldo contacted a private tutor in the area who had worked with Inly students in the past to discuss potential special education services for Isa. The tutor informed Dr. Cataldo of potential challenges when working during the school day at Inly, including space, noise, and scheduling. (P-44; Cataldo, I: 130-131)

74. Although Dr. Cataldo initially testified that no Hingham staff applied for an advertised position to provide tutoring for Isa at Inly, Parents refuted this testimony through Dr. Cataldo’s own signed statement, made to DESE’s Problem Resolution System (PRS) on a Local Report Form submitted by Hingham on October 5, 2023. (P-44; Cataldo, I: 83-84, 120, 122, 128, 131, II: 233-34)

75.  On or before September 21, 2023, Hingham received confirmation that several District employees would be willing to provide after-school special education services for Isa on site at Inly. Hingham then provided a release of information form to permit the District to communicate with Inly to make the necessary arrangements. As of October 5, 2023, when Dr. Cataldo signed the Local Report Form, the release had not been returned. (P-44; Cataldo, I: 131-32, II: 233-35)

76. For the 2023-2024 school year, Hingham offered Parents the opportunity for Isa to receive walk-in special education services within Hingham during the school day and, in the alternative, offered almost $10,000 of funding for private tutoring services at Inly. Parents accepted neither of these options, and as such Isa did not receive any services from Hingham during this time. (Cataldo, I: 55, 84-87, 131-35, II: 233-34; III: 431-32, 440-43; Florek, III: 550)

77. On September 21, 2023, Hingham received Parents’ rejection in full of Isa’s Amended 2023-2024 IEP.[35] Because Parents did not accept the services or goals proposed in the Amended 2023-2024 IEP before Isa stopped attending East, the District did not have the opportunity to implement the proposed self-regulation goal or academic/behavior support goal, with accompanying paraprofessional support. Hingham reached out to Parents to schedule a Team meeting to discuss the rejected IEP. A meeting was scheduled for October 3, 2023, but was then canceled in light of a mediation scheduled to occur in November. (P-44; S-5; Cataldo, I: 115-16, 132, III: 457-58; Florek, III: 539, V, 778-79, 819)

78. Isa’s Team convened for her annual review on February 27, 2024. Parents declined to have a representative from Inly attend the meeting, and no reports from Inly were provided. During the meeting, Isa’s mother expressed concern regarding the Team’s proposed placement of Isa in a full inclusion program at East and verbally rejected the placement. The Team reviewed performance data and evaluations available to it and observed that as Isa had not accessed special education services through Hingham during the 2023-2024 school year and the Team did not have any information about her current performance at Inly, the results of the three-year reevaluation, then underway, would be particularly important. According to the N1 associated with this meeting, releases were to be sent by Hingham to Parents that would permit the District to speak with Isa’s educators at Inly and her outside tutor, therapist, and evaluator. (S-6; Cataldo, I: 167; Florek, III: 541-41)

79. Following this meeting, the Team proposed an IEP dated 2/27/24 to 2/26/25 (2024-2025 IEP). Parents’ concerns, listed in the IEP, had been submitted by email on February 27, 2024.[36] Parents expressed concern that during the 2022-2023 school year, Isa had not received her IEP services consistently, particularly as her classroom teacher had been on a medical leave, the substitute teacher “was not qualified,” and Isa did not receive the promised paraprofessional support. According to Parents, this lack of support led to extreme behavior, prompting Isa to leave East “due to safety concerns.” Moreover, Parents’ request for home tutoring was denied, as was access to her IEP services, and “the family had no choice but to seek education elsewhere since [Isa] was not offered enrollment placement in Hingham Public Schools along with the rest of the district on August 18, 2023.” (S-6)

80. The 2024-2025 IEP notes that Isa’s special education eligibility is based upon an SLD (in Reading), which is characterized with difficulty decoding and encoding, as well as her Health Disabilities (ADHD, Combined Type and Generalized Anxiety). It proposes Reading, Math, and Self-Regulation goals, as well as A-Grid Consultations in OT with the occupational therapist (1×15 minutes/month), in behavior with the BCBA (1x 15 minutes/month), with the special education teacher (1×15 minutes/6 days), and with the Counselor (1×15 minutes/6 days); B-Grid services from a paraprofessional in math (6×30 minutes/6 days) and in Academic/Behavior (6×80 minutes/6 days); and C-Grid services with the special education teacher in reading (3×30 minutes/6 days) and math (2×30 minutes/6 days) and with the Counselor in Counseling (1×30 minutes/6 days). No changes were made to the proposed accommodations in Isa’s Amended 2023-2024 IEP, and this IEP again notes that Isa is more vulnerable to bullying, harassment, and/or teasing. The Team proposed placement at East. A District representative signed the proposed IEP on or about March 11, 2024. (S-6; Cataldo, I: 167-68)

81. Parents did not respond to the 2024-2025 IEP. Hingham interpreted this non-response as a rejection. (S-6; Cataldo, I: 168)

82. Isa underwent a three-year reevaluation during the spring of 2024, which was comprised of Psychological and Academic Evaluations.[37] (S-7, S-13, S-14)

83. Isa’s Psychological Evaluation was performed on March 8, 2024 and consisted of a Record Review, a Student Interview, and administration of the Wechsler Intelligence Scale for Children – Fifth Edition (WISC-V). On the WISC-V, Isa’s Visual Spatial, Fluid Reasoning, Working Memory, and Processing Speed Index scores all fell within the Average Range. Her Verbal Comprehension Score was in the Low Average range, as was her FSIQ. (S-13; Cataldo, II: 241; Florek, III: 563-66)

84. Isa’s Academic Evaluation was performed on March 8 and 15, 2024 and included the Wechsler Individual Achievement Test Fourth Edition (WIAT-4), the Gray Oral Reading Test-5 (GORT-5), and the KeyMath3 Diagnostic Assessment (KeyMath). On the WIAT-4, Isa’s Total Achievement was in the Average range. She scored in the Average range overall in Reading, Written Expression, and Math, with certain subtests in Reading and Written Expression in the Low Average range. She also scored in the Average range on the Dyslexia Index, including all subtests, meaning that she either does not have dyslexia or it has been remediated such that it is no longer presenting. Isa further scored within the Average range on all measures on the GORT-V and KeyMath. The Summary and Recommendations section of Isa’s Academic Evaluation noted strengths in Mathematics and Writing and challenges in Oral Reading Fluency and Spelling. (S-14; Cataldo, II: 241, 244-47; Florek, III: 566-575) Overall, these scores were consistent with Dr. Summers’ findings from January 2023, that Isa was on grade level in reading and had solidly average math calculation scores. (Cataldo, II: 250-51; Florek, III: 572)

85. Isa’s Team reconvened for a reevaluation meeting on March 21, 2024. Parents again declined to have a representative from Inly attend. Although Mother was present at the start of the meeting, she objected to the presence and participation of Mr. Hawes. When Mr. Hawes indicated that he would not leave, Mother left the meeting and did not participate. The Team held the meeting without her.[38] (S-7; Cataldo, I: 169-70, II: 236-37; Florek, III: 545-46)

86. During Isa’s reevaluation meeting, the Team confirmed her ongoing eligibility for special education under the categories of: SLD in reading, as well as health disability due to ADHD and generalized anxiety disorder (per Dr. Summers’ report). (S-7; Florek, III: 576-77)

87. Following this meeting, Hingham proposed an IEP for Isa dated 3/21/2024 to 3/20/2025 (revised 2024-2025 IEP). The revised 2024-2025 IEP contains summaries of Isa’s March 2024 Academic and Psychological Evaluations, but no changes were made to the Parent statement of concerns, the summary of key evaluation results, the accommodations, and the bullying statement from the initial 2024-2025 IEP. The revised 2024-2025 IEP proposes two goals, one in Reading and one in Self-Regulation. For the remainder of the 2023-2024 school year (3/21/2024 to 6/14/2024), the revised 2024-2025 IEP includes, in the A-Grid, Consultation with the special education teacher (1×15 minutes/6 days), with the BCBA (1×15 minutes/month), and the Counselor (1×15 minutes/6 days); in the B-Grid, Academic/Behavior support from a paraprofessional (6×80 minutes/6 days); and in the C-Grid, Reading services with a special education teacher (3×30 minutes/6 days) and Counseling services with a Counselor (1×30 minutes/6 days).[39] Under Additional Information, it was noted that releases had been sent by Hingham to Parents for Isa’s educators at Inly and her outside tutor, therapist, and evaluator, but none of them had been returned. (S-7; Cataldo, I: 170-172)

88. The revised 2024-2025 IEP proposed full inclusion placements at East (3/21/2024-9/3/2024) and Hingham Middle School (9/4/2024-3/20/2025) Parents did not respond to the revised 2024-2025 IEP; the District viewed this as a rejection. (S-7; Cataldo, I: 172-73, III: 458)

89. Hingham held a “Special Education Reconvene of the Eligibility Determination Team meeting” on May 30, 2024. This was essentially a “re-do” of the March 21, 2024 reevaluation meeting, this time with Parents in attendance. The meeting was not chaired by Dr. Florek; a different team chair had assumed responsibility for Isa at this time, per Parents’ request. No one from Inly attended, due to a conflict with other Inly responsibilities. During the meeting, the Team determined that Isa continues to be eligible for special education services and continues to demonstrate an SLD in Reading and a Health disability (ADHD). The Team recommended a full inclusion placement at East for the remainder of the 2023-2024 school year and at Hingham Middle School for the remainder of the IEP period. Mother expressed concern about these placements. Parents also expressed concern regarding Isa’s need for counseling and pull-out support in the areas of reading and mathematics. The Team rejected a math goal, as current evaluations demonstrated that one was not warranted. Parents requested that a special education teacher provide B-Grid support and rejected paraprofessional support in Isa’s inclusion classes. The Team determined that a paraprofessional would provide the appropriate support. With Parents’ agreement, the Team rejected a Strategies class and focused, instead, on a full block of reading to permit Isa to be eligible for other electives. The Team agreed to reconvene to discuss Isa’s transition to the middle school within the first eight weeks of the new school year. Parents requested an independent evaluation in Math, and the District agreed to proceed with one.[40] Mother also requested the criteria for the LAHB program, and the Interim Director of Student Services read the criteria. Mother stated that she believed Isa fits those criteria. (P-42; S-8; Cataldo, I: 90-91, 173-76, II: 237, 247-48, 253-54, 327-29; Florek, III: 546)

90. After the meeting, an IEP was developed, dated 3/21/2024 to 3/20/2025 (final 2024-2025 IEP), and sent to Parents on or about June 12, 2024, along with placement pages for full inclusion programs at East and at Hingham Middle School.[41] The final 2024-2025 IEP again contains goals in Reading and Self-Regulation and the same accommodations proposed in Isa’s previous IEPs. No changes were made to the services for the remainder of the 2023-2024 school year.[42] In the Additional Information section, the final 2024-2025 IEP states that because navigating social situations can be challenging for Isa, making lunch a stressful time, administration and teachers should be aware of this and provide additional supervision and social coaching, as needed, when Isa attends Hingham Middle School. It also notes that Isa will receive paraprofessional support in ELA, Science, Math, and Social Studies (4×30 minutes/cycle in each class). At the time the final 2024-2025 IEP was drafted, Hingham had received a signed release for Inly but was still awaiting signed releases for Isa’s outside tutor, therapist, and evaluator. Parents shared that they would be sending Isa to Hingham Middle School, but they had also applied to Landmark. (P-42; S-8; Cataldo, I: 174-176)

91. Parents did not return the final 2024-2025 IEP or the accompanying placement pages. (P-42; S-8; Cataldo I: 176)

92. According to Isa’s Inly Spring Progress Report for the 2023-2024 school year, academically she had “grown in her literacy skills,” as well as in her “organization and output as a writer.” In math, she was showing “a good grasp of the concepts” and “benefits greatly from practice.” In Reading and Reading Comprehension, she received a score of 3, or “making progress with consistent teacher assistance” in three categories, and a score of 2, or “making appropriate progress for his/her age” in five categories. In Writing, she received three scores of 3 and six scores of 2; in Math, she received four scores of 3 and two scores of 2. She received all 2s in Science, Cultural, and Service Learning. In her Approach to Learning class, which appears to include social-emotional development and organization and work habits, she received mostly 2s, with one 3 and two 1s, or “working above expectations.” Her scores in “co-curricular” courses were mostly 2s. This Progress Report is the only documentation regarding Isa’s course of study, supports, and/or performance at Inly.[43] (P-41) It was not provided to Hingham in advance of the Team meeting that occurred on May 30, 2024. (Cataldo, III: 445) There is no evidence that Inly provides any special education services in the areas of reading, math, social skills, or behavior. (Cataldo, III: 443)

93. No evidence was submitted to Hingham or to the BSEA recommending that Isa be placed in a substantially separate classroom setting, a private or public special education school, or a private, non-special education school. (Cataldo, I: 184-85)

3. DISCUSSION

It is not disputed that Isa is a student with a disability who is eligible for special education services under state and federal law. To determine whether Parents are entitled to a decision in their favor, I must consider substantive and procedural legal standards governing special education. As the party challenging the status quo in this matter, Parents bear the burden of proof. [44] As such, to prevail, Parents must prove, by a preponderance of the evidence, that Hingham failed to implement Isa’s accepted, expired 2022-2023 IEP; that Hingham failed to propose IEPs reasonably calculated to provide Isa with a FAPE for the remainder of the 2022-2023 school year beginning February 28, 2023; that Hingham failed to propose IEPs reasonably calculated to provide Isa with a FAPE during the 2023-2024 school year; that Inly was appropriate for Isa and that Parents are entitled to reimbursement for her unilateral placement there during the 2023-2024 school year; and/or that Hingham committed procedural violations during the relevant time period that amounted to the deprivation of a FAPE.

I address each of these issues in turn, incorporating the factual findings above by reference.

1. Legal Standards

1. FAPE and Unilateral Placement

The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education . . . designed to meet their unique needs and prepare them for further education, employment and independent living.”[45] The statute contains both substantive and procedural protections to effectuate this purpose.[46] There are, therefore, “two types of arguments available to the parents at a due process hearing, both of which center on the denial of a FAPE. They can argue that their child is being denied a FAPE substantively, on the grounds that his or her IEP lacks certain special education or related services . . . and they can argue that their child is being denied a FAPE due to procedural violations.”[47]

1. Substantive Violations

To fulfill its substantive obligations pursuant to federal law, a school district is required to develop and implement an IEP tailored to a child’s current academic and functional needs.[48] To provide a FAPE, the IEP must be individually designed and include, “at a bare minimum, the child’s present level of educational attainment, the short- and long-term goals for his or her education, objective criteria with which to measure progress toward those goals, and the specific services to be offered.”[49] The goals contained in an IEP should be “appropriately ambitious” for the child.[50] An IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” will be substantively sound.[51] 

Similarly, Massachusetts FAPE standards require that an IEP be “reasonably calculated to confer a meaningful educational benefit in light of the child’s circumstances,”[52] and designed to permit the student to make “effective progress.”[53] 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.’”[54]

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 that will “accommodate the child’s legitimate needs.”[55] For most children, a FAPE “will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade.”[56] However, “the benefits to be gained from mainstreaming must be weighed against the educational improvements that could be attained in a more restrictive (that is, non-mainstream) environment.”[57]

A substantive violation of the IDEA occurs where the content of an IEP is insufficient to afford the student a FAPE.[58] For example, courts have found such violations where a school district continues to propose IEPs for a student with an orthographic processing disability that rely on the same type of reading instruction under which he has shown limited progress for two years, rather than requesting additional evaluations or considering a change in methodology,[59] and where an IEP fails to provide the “substantial related services and greater individualized attention” through one-to-one instruction that a child needs to make educational progress and receive an educational benefit.[60]

Alternatively, an IEP’s failure to identify specific measurement methods, where there is evidence a teacher will measure progress over the course of a school year, does not constitute a substantive violation.[61] Nor does a school district’s determination to place a child in a setting other than that selected by certain experts or the child’s parents constitute a substantive violation, so long as the program offered is reasonably calculated to provide the child with a FAPE.[62]

Here, as Parents seek reimbursement for unilateral placement of Isa at Inly. I measure the IEPs proposed for Isa during the relevant time period against the substantive standard outlined above. If I determine that one or more of the IEPs was not reasonably calculated to provide Isa with a FAPE, I must then turn to standards governing unilateral placement to determine whether Parents are entitled to reimbursement.[63]

2. Unilateral Placement

Reimbursement is an equitable remedy to which parents may be entitled under the IDEA for unilaterally placing a student in private school without the school district’s consent or referral.[64] Section 1412 of the IDEA provides that a Hearing Officer may order reimbursement for the cost of that placement if she finds that a district had not made a FAPE available to the child in a timely manner prior to the parents’ unilateral placement.[65] Hearing Officers and courts have interpreted section 1412 to allow reimbursement for a unilateral placement when: (1) the school district had not made a free appropriate public education available to the student prior to that enrollment; and (2) the private school placement was appropriate.[66] Unlike an IEP proposed by a school district, a unilateral private school placement need not meet all of the requirements of FAPE to be appropriate.[67] Where parents have rejected an inappropriate IEP and placed their child unilaterally, to qualify for reimbursement the private placement must only “offer at least some element of special education services in which the public school placement was deficient.”[68] The reasonableness of the private placement will depend upon the nexus between the special education required and the special education provided, such that a unilateral placement is only appropriate if it provides an education “specifically designed to meet the unique needs” of the child.[69]

3. Procedural Violations

The Supreme Court has recognized the centrality of the procedural safeguards in the IDEA, which serve a dual purpose: they ensure that each eligible child receives a FAPE, and they provide for meaningful parental participation.[70] Under the IDEA, even if no substantive irregularities have occurred, procedural errors may amount to a deprivation of a FAPE “if the procedural inadequacies – (I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits.”[71]

Procedural errors do not automatically render an IEP legally defective; to constitute a violation of FAPE, “[t]here must be some rational basis to believe that the procedural violations had those effects [on FAPE], and that they were not mere technical violations.”[72] In other words, procedural violations do not constitute a denial of a FAPE without some showing that they have impacted a student negatively (i.e., by denying a FAPE or depriving the student of educational benefits) or impeded the parents’ participation in the decision-making process regarding their child.[73] For example, a court held that a student had not been denied a FAPE where her teacher failed to retain raw data for two years, in contravention of district policy, and the school district had gradually increased the student’s time in a substantially separate setting without notifying parents or revising her IEP.[74] The court concluded that even though this increase essentially changed the student’s placement, such change provided her with a FAPE and did not significantly impede parents’ ability to participate in educational decision-making.[75] In another matter, the United States District Court for the District of Massachusetts concluded that where a school district failed to provide parents with an N1 and a notice of procedural safeguards in connection with a particular meeting, but had provided the notice of procedural safeguards to parents previously, these procedural violations did not constitute a denial of FAPE because they did not interfere with parents’ participation in the IEP process and did not harm the student.[76] The United States Court of Appeals for the Second Circuit held that where a school district had provided homebound tutoring that was “inconsistent in terms of duration of sessions and number of sessions per week,” but had provided compensatory tutoring hours that had permitted the student to make progress and advance from grade to grade, this procedural error did not violate student’s right to a FAPE or significantly impede parents’ ability to participate.[77] In contrast, a school district’s failure to propose an IEP, coupled with its failure to schedule a Team meeting, constituted “procedural missteps [that] impeded the [p]arents’ ability to participate meaningfully in educational planning . . . and consequently denied [student] a FAPE.”[78]

4. Implementation

Where an IEP has been accepted in full and has expired, the analysis focuses on implementation.[79] “To provide a free and appropriate public education to a student with disabilities, the school district must not only develop the IEP, but it also must implement the IEP in accordance with its requirements.”^[80] The United States District Court for the District of Massachusetts has linked the failure to implement an IEP to the failure to permit a student to benefit educationally – or in other words, to provide a FAPE.^[81] In a subsequent case, the United States District Court for the District of Puerto Rico relied on the generally adopted standard articulated by the United States Court of Appeals for the Fifth Circuit in Houston Independent School District v. Bobby R., requiring “more than a de minimis failure” to prevail on an implementation claim under the IDEA.^[82] The court summarized the analysis as follows:

. . . a court reviewing failure-to-implement claims under the IDEA must ascertain whether the aspects of the IEP that were not followed were “substantial or significant,” or, in other words, whether the deviations from the IEP’s stated requirements were “material.” A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP. This standard does not require that the child suffer demonstrable educational harm in order to prevail; rather, courts applying the materiality standard have focused on the proportion of services mandated to those actually provided, and the goal and import (as articulated in the IEP) of the specific service that was withheld.^[83]

The Colon–Vazquez Court adopted the approaches endorsed by the United States Courts of Appeals for the Fifth, Eighth, Ninth, and Eleventh Circuits, as well as the United States District Court for the District of Columbia and is appropriate to follow here as the First Circuit has yet to address this question.^[84]

2. Analysis

Here, Parents contend that Hingham committed procedural, substantive, and implementation violations that amounted to a denial of Isa’s right to a FAPE. Their claims, which fall into three categories, allege that Hingham: (1) failed to implement a fully accepted, expired IEP during the 2022-2023 school year, up to and including February 28, 2023; (2) failed to propose IEPs reasonably calculated to provide Isa with a FAPE during the 2022-2023 and 2023-2024 school years, beginning February 28, 2023; and (3) committed procedural violations throughout these time periods that denied Isa a FAPE.

1. Parents Failed to Prove that Hingham Did Not Implement Isa’s 2022-2023 IEP.

Hingham’s approach to implementing Isa’s fully accepted IEP during the 2022-2023 school year, as amended in September 2022, reflects a diligent attempt to provide Isa with services aligned with her educational needs. Parents argue that Isa did not receive the services and accommodations set forth in her 2022-2023 IEP. They contend that the District’s documentation and Isa’s behavior indicate lapses in service delivery. Parents failed to produce any evidence to support their claim, however, and Isa’s progress toward her IEP goals, as discussed in her progress reports and corroborated by witness testimony, suggests that Hingham fulfilled its obligation to implement her IEP.

Isa’s 2022-2023 IEP outlined a range of services and accommodations to support her in a full inclusion placement. Isa received math support in both the B- and C-Grids and small group reading in the C-Grid. To support her focus and engagement, PLEP A listed numerous accommodations, including the use of graphic organizers, test item tracking, frequent breaks, task segmentation, cueing for decoding and encoding, and check-ins to verify understanding. When the 2022-2023 IEP was amended in September 2022, the Team proposed further accommodations in PLEP A and PLEP B that included scheduled movement breaks during prolonged academic periods; adult support in navigating ambiguous or charged social situations; access to the SAC as needed; and encouragement of self-advocacy following an event that Isa perceives as uncomfortable. Parents accepted the IEP, as amended, in mid-November 2022.

According to Hingham, Isa’s attendance at school and her progress, as demonstrated by her progress reports, indicate that her academic support services were delivered in accordance with her IEP. Parents, who bear the burden to prove that Isa’s services and accommodations were not implemented, introduced no evidence to suggest otherwise.[85]

Parents point to Isa’s behaviors, such as inattentiveness and impulsivity, as evidence of Hingham’s noncompliance with Isa’s IEP. They argue that incidents of peer conflict and Isa’s cell phone usage during recess on or about February 10, 2023 demonstrate a lapse in paraprofessional support. However, Dr. Florek, who has been employed by Hingham for over a decade as a school psychologist, special education Team chair, and building Team leader and who has chaired Isa’s Team since she was found eligible for special education in second grade, testified credibly that this is not the case. According to Dr. Florek, the unexpected behaviors Isa displayed during the 2022-2023 school year were not atypical for her developmental stage, and, further, the presence and purpose of paraprofessional staff is to mitigate the consequences of such behaviors, not to prevent them. Moreover, isolated incidents such as those described by Parents do not evince, without more, a failure to implement a student’s IEP. Parents assert, with particularity, that the District failed to provide Isa with the adult support accommodations called for the 2022-2023 IEP, as amended. Contrary to this contention, however, emails between Parents and District personnel that were entered into evidence by Parents, in addition to Dr. Florek’s testimony, show that in accordance with the accommodations added to Isa’s IEP in the fall of 2022, she did have access to adult support in navigating difficult social situations. Such support included in-vivo processing with paraprofessionals and Ms. McClain, as well as Tier 1 and Tier 2 supports provided by Ms. McClain and Ms. Young.

Parents have, therefore, not met their burden to prove that Hingham failed to implement Isa’s 2022-2023 IEP in any way no less committed a material failure.[86]

2. Parents Failed to Prove that the IEPs Proposed by Hingham for the 2022-2023 and 2023-2024 School Years, Beginning in February 2023, Were Not Reasonably Calculated to Provide Isa with a FAPE.

From February 28, 2023, when Isa’s fully accepted 2022-2023 IEP expired, through the end of the 2023-2024 school year, Hingham proposed IEPs for Isa that were reasonably calculated to provide her with a FAPE in the least restrictive environment. Isa’s 2023-2024 IEP, as amended in March 2023, was carefully crafted based on a comprehensive evaluation of her academic, behavioral, and social-emotional progress, as well as input from Parents and various service providers. The same is true for the IEP developed in March 2024.

In December 2022, before Isa’s last fully accepted IEP expired, Parents expressed concerns to the Team regarding her social-emotional and behavioral needs. In response, in January 2023, while awaiting the results of a privately obtained neuropsychological evaluation, Hingham proposed an Emotional Evaluation, a Speech/Language Evaluation, a Home Assessment, and an FBA, to gain a fuller picture of Isa’s social pragmatic, emotional, and behavioral functioning. Parents consented to all but the Home Assessment and further requested an OT evaluation, which Hingham agreed to complete.

Hingham convened on February 28, 2023 for Isa’s annual review, while the District’s evaluations were pending. The Team considered observations, reports, and other input from Ms. Gomes, Isa’s substitute teacher, and Ms. McLain, the SAC who had been working with Isa since her return from winter break, as well as information regarding Isa’s progress toward the goals on her 2022-2023 IEP and her current classroom performance. Based on this information, the Team proposed an IEP that all members agreed would be amended the following month when the Team would reconvene to review and incorporate the results of the District’s testing and Dr. Summers’ report. The initial 2023-2024 IEP included C-Grid reading and math services, B-Grid math support, and consultative services in the A-Grid.[87] Parents never responded to it.

Isa’s Team then reconvened on March 30, 2023 and as anticipated an amended 2023-2024 IEP was proposed, which addressed Isa’s academic, behavioral, and social-emotional needs. Academically, the Amended 2023-2024 IEP included Reading and Math goals, with B-Grid support in math and academic/behavior, as well as C-Grid instruction by a special education teacher in both math and reading.[88] Behaviorally, Isa’s Team noted that although Isa’s behavior was not developmentally inappropriate and did not endanger her, she struggled with self-regulation at times. Thus, the Team also proposed a Self-Regulation goal to address Parents’ concerns about Isa’s social- emotional and behavioral needs and in response to the recent behavioral information Hingham had gathered through its evaluations. This goal aimed to assist Isa in identifying her emotions and their effect on her behavior; understand responsible decision-making; and identify positive strategies to regain regulation. To support this goal, the Team proposed the services of a Behavior Consult with a BCBA; Academic/Behavior support to be provided by a paraprofessional (80 minutes per day); and Counseling (1×30 minutes/6-day cycle). In addition, the IEP provided for a broad range of accommodations, including breaking down tasks, checking in for understanding, positive behavior charts and positive reinforcement, advanced verbal cues for changes in schedules, cuing/reinforcement for when Isa indicates she requires a break and time to de-escalate, and teaching of strategies to limit careless errors and increase self-awareness due to inattention. Further, based on the recommendation of the Emotional Evaluation, the IEP proposed counseling services as a special education service for the first time, to assist Isa with social-emotional development, aiming to bolster her coping strategies and resilience. The Amended 2023-2024 IEP also incorporated the previous PLEP A accommodations of adult support in navigating ambiguous or charged social situations, as-needed access to the SAC, encouragement of self-advocacy skills following an event that Isa perceives as uncomfortable, and opportunities for her to gain positive attention from peers.

During the March 2023 IEP meeting, Parents participated actively, expressing concerns regarding Isa’s need for more intensive social-emotional support as identified in Dr. Summers’ neuropsychological evaluation. The Team acknowledged these concerns, and found that the proposed supports – counseling, a behavioral goal, and classroom accommodations – were appropriate to address Isa’s needs and were reasonably calculated to enable meaningful progress.

The evidence before me, therefore, demonstrates that the Amended 2023-2024 accounted for Isa’s academic, social-emotional, and behavioral needs and was reasonably calculated to allow her to make “progress appropriate in light of [her] circumstances.”[89] Parents rely on the Ed A and B filled out by a short-term substitute with limited knowledge of Isa and without training in special education to argue otherwise. Yet even Parents’ own evaluator (who had not observed Isa in school or spoken with her teachers or counselor) recommended, in April 2023, only that Isa receive the support of an aide or BCBA in the classroom in addition to accommodations and services to address her attention regulation, emotional, and social needs. This is essentially what Hingham had proposed in March 2023, although Parents never accepted the proposed services of BCBA consultation or academic/behavioral support provided by a paraprofessional.

Hingham did not have the opportunity to implement Isa’s 2023-2024 IEP, as Parents rejected it in full in September 2023. Moreover, Isa never returned to Hingham after May 4, 2023 and she was unilaterally placed at Inly for the 2023-2024 school year.

Isa’s Team next convened for her annual review on February 20, 2024. Hingham did not receive any information regarding Isa’s progress at Inly, as no representatives from Inly attended and Parents declined to provide report cards or progress reports (until they ultimately provided one progress report in connection with this hearing). Further, Parents had not signed any of the releases Hingham had requested to permit the District to speak with Inly or Isa’s tutor, therapist, or evaluator. As such, Hingham proposed a 2024-2025 IEP that was substantially similar to the Amended 2023-2024 IEP, based on the information then before it. Given the lack of any new information at the time it proposed the initial 2024-2025 IEP, I find the District’s actions and proposals to be reasonable and appropriate, and this IEP to have been reasonably calculated to provide Isa with a FAPE.[90]

Following Isa’s three-year reevaluation, her Team reconvened on March 21, 2024 for her eligibility determination meeting to discuss her Academic and Psychological Evaluations. Isa’s Academic Evaluation indicated that she was performing in the Average range across the board in Math and in the Average range overall in Reading and Written Expression. Isa’s Dyslexia Index score indicated that she no longer presented with dyslexia. With the exception of her Low Average FSIQ and Low Average Verbal Comprehension Score, Isa’s scores on the WISC-V were all in the Average range.

No Inly staff attended this Team meeting, nor did Parents provide the District with any information (written or oral) from Inly regarding Isa’s progress or her needs. The District still had not received consent to speak with Inly staff or Isa’s outside tutor, therapist, or evaluator. Although Mother was present at the beginning of the meeting, as discussed in the Findings above, she chose to leave and the meeting proceeded without her. Hingham held a reconvene of the eligibility determination meeting on May 30, 2024, at which time Parents participated actively.

The Team revised the initial 2024-2025 IEP by proposing goals in Reading and Self-Regulation for the remainder of the 2023-2024 school year, with A-Grid Consultations with the special education teacher, BCBA, and Counselor; B-Grid Academic/Behavior support from a paraprofessional, C-Grid Reading services with a special education teacher and Counseling services with a Counselor. Based on Isa’s performance on the three-year reevaluation, the Team reasonably concluded that she no longer required C-Grid math support, though her reading services were continued, in light of her diagnosed SLD in this area. As with the initial 2024-2025 IEP, Parents did not respond to the revised 2024-2025 IEP.

After the Team reconvened the March 21, 2024 meeting on May 30, 2024, it proposed changes to the 2024-2025 IEP that impacted only the 2024-2025 school year. Because that period is beyond the scope of the present matter, I analyze the revised and final 2024-2025 IEPs together.

I conclude that Isa’s revised and final 2024-2025 IEPs were based upon all information known to the Team at the time, including the new updated evaluations.[91] Moreover, Parents had the opportunity to participate fully in the March meeting and did participate in the May meeting, such that the IEPs were developed with the input of all Team members. These IEPs further evidence a thoughtful discussion of changes in services and accommodations for Isa based on this information and input. There is no evidence before me to suggest that so much of the 2024-2025 IEP as pertains to the 2023-2024 school year is, therefore, anything but reasonably calculated to provide Isa with a FAPE. [92]

Because I have concluded that the Amended 2023-2024 IEP and so much of the proposed 2024-2025 IEP that pertains to the 2023-2024 school year were reasonably calculated to provide Isa with a FAPE, I do not reach the appropriateness of Inly.[93]

3. With One Exception, Hingham Did Not Commit Any Procedural Errors, and Hingham’s Procedural Violation in Connection with the March 2023 Team Meeting Does Not Amount to a Violation of a FAPE.

Parents raised three specific claims of procedural violations.[94] Parents argue that Hingham should have provided home tutoring to Isa during the 2022-2023 school year after they removed her from school, and/or that the District was required to offer services for Isa at Inly. The evidence shows that when Parents submitted an incomplete medical form to support their request for home tutoring in the spring of 2023, the District sought additional information from Parents directly and from Isa’s pediatrician but did not receive it. During the 2023-2024 school year, Hingham offered to provide the special education services it had proposed for Isa within Hingham during the school day and, in the alternative, offered almost $10,000 to fund private tutoring. Parents did not avail themselves of either offer. Parents provided no evidence to support any claim that the District’s determination not to provide home tutoring in the absence of a completed home/hospital physician affirmation form or to provide services for Isa at Inly constituted procedural violations, much less a FAPE violation. Moreover, as I have concluded that Hingham proposed IEPs that were and are reasonably calculated to provide Isa with a FAPE, I find that the District’s obligation is only to continue to offer the services contained in these IEPs, which it may offer within Hingham Public Schools. Nothing further is required.

As to Parents’ contentions regarding the Ed A and B, pursuant to the IDEA, all evaluations (or at a minimum, summaries of each evaluation) should have been provided to them two days prior to the Team meeting that occurred on March 30, 2023.[95] Hingham provided internally inconsistent evidence regarding when, and whether, the Ed A and B completed by Isa’s substitute teacher, Ms. Gomes, was provided to Parents prior to this Team meeting. Initially Dr. Florek testified that these assessments were emailed to Parents by her Administrative Assistant, along with the Emotional, Speech/Language, and OT Evaluations and the FBA, on the afternoon of March 28, 2023. Faced with emails and screenshots of those emails submitted by Parent as rebuttal evidence showing that the Ed A and B were not included in the email sent by Dr. Florek’s Administrative Assistant to Parents on that day, Hingham submitted an Affidavit from the Administrative Assistant explaining that the Ed A and B were left in an envelope for Parents to pick up on March 29, 2023, pursuant to their request. According to Hingham, I am to infer that Parents picked up the envelope, as it was not in the office at the end of the day. Mother, on the other hand, asserts through her Affidavit that she neither requested nor picked up paper copies of the Ed A and B. Furthermore, the Ed A and B were dated March 30, 2023, two days after they were to be sent to Parents. Although Dr. Florek testified that sometimes teachers write the meeting date, rather than the date the assessment was completed, on their assessments, overall I do not find Hingham credible in its assertion that Parents were timely provided with the Ed A and B in advance of the March 30, 2023 meeting.

Parents were entitled to summaries of the Ed A and B on or before March 28, 2023, and they have met their burden to show that such summaries were not timely provided; it is possible Parents did not receive them at all prior to the March 2023 Team meeting. Hingham’s failure to provide Parents with the Ed A and B summaries on or before March 28, 2023, if at all, thus constitutes procedural error.[96] Whether Parents are entitled to a remedy depends on whether the District’s procedural violation resulted in a denial of FAPE – in other words, did it impede Isa’s right to a FAPE, significantly impede Parents’ opportunity to participate in the decision-making process regarding Isa, or cause a deprivation of educational benefits.[97]

Ms. Gomes attended Isa’s Team meetings in both February and March 2023, and Dr. Florek testified that Ms. Gomes then had the opportunity to discuss Isa’s strengths, challenges, allowing for a substantive conversation about Isa’s needs.[98] Dr. Florek’s testimony is bolstered by Mother’s Affidavit, where she admitted that Ms. Gomes expressed some concerns about Isa during these meetings. I credit Ms. Gomes’ observations of Isa in the classroom, to the extent that it is appropriate to do so as she did not testify. However, given Ms. Gomes’ status as a short-term substitute, who had only begun working with Isa in mid-February, I assign less weight to her opinions regarding Isa’s academic performance relative to her peers and the significance of her behaviors. The evidence shows that despite Hingham’s failure to timely provide Parents with the Ed A and B, the March 2023 Team meeting included a thorough review of Isa’s educational status and needs, based on evaluations, observations, and data, with contributions from all members of Isa’s Team, including Ms. Gomes.[99] Furthermore, the information contained in the Ed A and B were substantively presented to Parents at the Team meeting (with some of it having been presented by Ms. Gomes during the February 2023 Team meeting) and was considered by the Team in developing the Amended 2023-2024 IEP.

Moreover, as I have already concluded, above, the IEP developed for Isa following the March 2023 Team meeting was reasonably calculated to provide her with a FAPE. To the extent Isa may have been deprived of educational benefits, such deprivation occurred as a result of Parents’ decision to remove her from school in May 2023, whereby she did not receive any services for the remainder of the school year; Parents’ rejection of the supports proposed in Isa’s 2023-2024 and 2024-2025 IEPs to address self-regulation and other areas of social emotional growth; and/or Parents’ failure to accept the tutoring offered by Hingham. Thus, although Hingham did not provide the assessments two days before the meeting, I do not find that this delay impeded Isa’s right to a FAPE or deprived her of educational benefits.[100]

Finally, Hingham’s failure to timely provide Parents with Isa’s Ed A and B assessments did not significantly impede their ability to participate in decision-making regarding Isa. The evidence shows that Parents were actively involved in the March 2023 Team meeting and had ample opportunity to engage in discussions about Isa’s educational program. Further, as emails submitted by Parents demonstrate, Hingham was highly responsive to Parents’ evolving concerns about Isa, proposing Tier 1 and 2 supports toward the end of December 2022 and convening both a formal Team meeting and an informal discussion shortly after students returned to school following the winter break. Hingham then proposed a battery of evaluations in early 2023 to gain more information that would assist the Team in developing social-emotional goals and services for Isa.[101] Thus, although Parents may not have been able to prepare questions about the Ed A and B in advance of the March 2023 meeting, the structure of the meeting itself – and the other Team meetings held during the relevant time period – provided opportunities for them to express their concerns and contributions, thus preserving their important participatory role in the decision-making process.[102]

Given these conclusions, Parents have not proven that the procedural error Hingham committed by failing to provide them with the Ed A and B two days prior to Isa’s March 2023 Team meeting significantly impeded Parents’ opportunity to participate in the decision-making process regarding Isa, either.[103] Thus, this procedural violation did not amount to a deprivation of a FAPE, and Parents are not entitled to compensatory services.[104]

CONCLUSION

After reviewing the record in its entirety in the context of relevant case law, I conclude that Hingham did not violate Isa’s right to a FAPE during any of the timeframes at issue in this matter. Parents failed to establish that Hingham did not implement Isa’s fully accepted, expired 2022-2023 IEP, as amended in September 2022. They failed to prove that the IEPs proposed for Isa for the 2022-2023 school year, beginning February 28, 2023, and for the 2023-2024 school year, were not reasonably calculated to provide Isa with a FAPE. Additionally, although Parents proved that Hingham committed a procedural violation in connection with the March 2023 Team meeting, they did not establish that this violation deprived Isa of a FAPE. Therefore, the Parents are not entitled to compensatory services or reimbursement for their private placement of Isa at Inly.

ORDER

          So ordered.

By the Hearing Officer:[105]

      /s/  Amy M. Reichbach

Dated: November 22, 2024           

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[1] “Isa” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.

[2] Although I refer to “Parents” throughout the course of this Decision, Isa’s father did not appear at the hearing or otherwise participate in matters preliminary to the hearing.

[3] On the third day of the hearing, Parents requested a continuance to obtain representation, and on October 7, 2024, advocate Adam Tiro entered a Notice of Appearance on their behalf.

[4] Parents did not submit a proposed Exhibit 35. Exhibits 22 and 23 include both (A) and (B). Exhibit P-49 was submitted on October 18, 2024, after the last day of testimony, pursuant to an Order allowing such submission. Parents also submitted additional documents that were labelled P-A and P-C through P-F for identification; these were not admitted into evidence.

[5] Hingham Public Schools (Hingham or the District) also submitted additional exhibits that were labelled S-A, S-B, and S-C for identification. These documents were not admitted into evidence.

[6] The parties initially requested that closing arguments be delivered orally, but after the date had to be rescheduled twice and the parties could not agree upon an alternate date prior to November, the Hearing Officer directed them to submit closing arguments in writing.

[7] In its Response to Parents’ Hearing Request, Hingham asserted that Parents failed to notify the District of their intention to seek public funding for their unilateral placement prior to Isa’s withdrawal from Hingham, but the District did not make this argument at any point after the pleading stage, and the evidence shows otherwise.

[8] The Ruling on Parents’ Motion to Reconsider and Parents’ Motion to Quash or Vacate Subpoenas issued by the undersigned Hearing Officer on September 17, 2024 detailed Parents’ ongoing objections to this postponement.

[9] As part of this Ruling and in light of conflicting information regarding tuition paid by Parents to Inly that came to the attention of the Hearing Officer, who had been copied on emails between the parties, Parents were directed to supplement their exhibits with a document produced by the Inly School (Inly) reflecting the sum of all tuition and fees for the 2023-2024 school year paid by Parents to Inly for Isa, accompanied by an Affidavit signed by a representative of the Inly School under the pains and penalties of perjury. See BSEA Hearing Rule IX(C)((6) (“The Hearing Officer may require any party to submit additional evidence on any relevant matter”) and Hearing Rule IX(C)(1) (“At the hearing, the Hearing Officer may permit or request the introduction of additional documentary evidence where no prejudice would result to either party”). On October 14, 2024, Parents submitted this document, which is marked P-46.

[10] On October 7, 2024, Parents filed a Motion to Order a Team Meeting and Reimburse/Fund Private Placement, which I treated as a mid-hearing Motion to Amend because it sought to add claims not previously raised by Parents. Hingham opposed this Motion, and it was denied in a Ruling on Parents’ Motion to Order a Team Meeting and Reimburse/Fund Private Placement, issued on October 23, 2024.

[11] I have carefully considered all evidence presented in this matter. I make findings of fact with respect to the documents and testimony, however, only as necessary to resolve the issues presented.

[12] Isa’s initial evaluation did not demonstrate that she had a disability, but additional testing proposed by the Team revealed a reading disability. (Florek, III: 508-609).

[13] The paraprofessional support provided for Isa in Grid B of the 2022-2023 IEP aimed to support her, as needed, and help her follow the processes she was being taught (Cataldo, I: 114)

[14] Mother dated her signature on the placement page “2/4/2022,” though her signature on the IEP page was dated 4/4/2022. Both documents were stamped “received” by Hingham on 4/6/22.

[15] Ms. Hyman holds certifications as a special education teacher and a general education teacher (grades K through 6) through the Massachusetts Department of Elementary and Secondary Education (DESE). She has been trained in multiple reading programs, including Orton-Gillingham, Wilson, and Read Naturally. (Florek, V: 781-82, 784, VI: 928-29)

[16] Although Hingham’s Interim Director of Student Services, Dr. Barbara Cataldo, testified that she was aware Isa had paraprofessional support in place during unstructured times, and there is evidence in the record that an extra paraprofessional was assigned to provide additional supervision outside at recess, there is no evidence that such an arrangement was provided as a service on Isa’s IEP at this time. (P-16; Cataldo, II: 336) Dr. Cataldo began working in the District on July 1, 2023. Prior to her current position, Dr. Cataldo served as a teacher, assistant director, director, assistant superintendent of student services, and superintendent. Dr. Cataldo hold a doctorate in educational administration leadership and is certified in Wilson, Orton-Gillingham, Alphabetic Phonics, and Project Read; she also holds certifications as a special education administrator and an assistant superintendent. (Cataldo, I: 44-45, 159-60)

[17] At the hearing, Dr. Florek explained that Tier 1 and Tier 2 supports are both general education interventions that do not involve specialized instruction. Counseling could be provided as either type of support or as an individualized education program (IEP) service. Counseling services are provided in an IEP if a child requires a goal, direct instruction, monitoring, data collection, and progress reports in that area, whereas counseling as a Tier 1 or Tier 2 service is a general education intervention. (Florek, V: 751-54) Dr. Cataldo also clarified that a student receiving general education counseling might have special education counseling added to her IEP as a specialized service, with a goal and objectives, if the Team believed it would help the student. (Cataldo, III: 454-55)

[18] Hingham does not employ an assistive technology (AT) specialist internally, but contracts for AT services for evaluation or consultation. Parents never requested, nor did Hingham conduct, an AT assessment of Isa. During the Team meeting that occurred on March 30, 2023, after multiple evaluations were performed, Isa’s Team did consider whether she had any AT needs, though there was no AT specialist in attendance. Isa was able to access technology within her classroom settings without any difficulty; the Team determined she did not need support in this area. (Florek, VI: 794-96, 821-25, 827-29)

[19] Ms. Jennings was not available to attend this meeting, and Parents waived her participation. (P-30; Florek, V: 763-64)

[20] Parents believed Isa was unsafe because she was eloping from the classroom, but according to Dr. Florek, Isa would either go to her locker and might have to be redirected to return to the classroom, or request permission to go to the nurse or the bathroom and at times, chat with a peer before returning to the classroom. The District did not view this behavior as unsafe. (Florek, III: 556-57)

[21] At this time, Isa’s services included Grid-B math support provided by a special education teacher or paraprofessional and her accommodations included access to adult support in navigating ambiguous or charged social situations. She did not have a social-emotional or behavioral goal or associated specialized instruction or services. (S-2, S-3)

[22] Dr. Regan Summers is also referred to as Dr. Regan Storey in testimony and in some of the documents submitted by the parties, as her last name changed after she evaluated Isa. (P-2; S-5, S-6, S-7; Florek, III: 530)

[23] Although Dr. Florek testified initially that the Educational Assessment Part A and B (Ed A and B), despite being dated March 30, 2023, were also emailed to Parents on March 28, 2023 (Florek, V: 635-37, 684, 785-86), this assertion was contradicted by both a screenshot of the attachments to the email sent by Ms. Greene to Parents on that date (P-47) and Ms. Greene’s Affidavit (S-15). Dr. Florek later retracted her previous testimony on this point, though she maintained that teachers often put the date of the meeting on an evaluation rather than the date they completed it. (Florek, VI: 868-70, 876-79, 918-19)

[24] According to Ms. Greene, who did not testify at Hearing but submitted an Affidavit dated October 16, 2024, she received the Ed A and B from Ms. Gomes after she had left the office on March 28, 2023, as an attachment to an email. The document itself was dated March 30, 2023. At some time before 8:30 AM on March 29, 2023, Ms. Greene received a voicemail from Isa’s mother requesting paper copies of all evaluations and indicating that she would pick them up later that day. Ms. Greene stated that she printed hard copies of the Emotional Assessment, OT Evaluation, FBA, Speech/Language Evaluation, and Ed A and B and left them in a sealed envelope that she “gave . . . to the front office” around 10:00 AM. At approximately 2:45 PM that day, Ms. Greene was in the front office and noted that the envelope was no longer there. Ms. Greene did not receive an email, phone call, or other communication from Parents regarding the receipt of evaluations. (S-15) In her own Affidavit dated October 18, 2024, Mother contends that she never called the school to request paper copies of Isa’s evaluations, did not pick them up, and was not aware of the existence of the Ed A and B until she made a formal records request of Hingham in March 2024. (P-49) There is no evidence that Parents picked up or otherwise received copies of the Ed A and B in advance of the March 2023 meeting. (Florek, VI: 920-22)

[25] Although this meeting occurred prior the commencement of Dr. Cataldo’s employment in Hingham, a letter dated February 6, 2023, for a meeting to occur on March 30, 2023 was sent to Parents to request permission to excuse B. Cataldo/Interim Director of Student Services from the meeting. Dr. Cataldo testified that this was simply a typographical error, as the meeting for which the District sought her excusal occurred on March 30, 2024, but school staff had failed to change the date on the notice. (Cataldo, I: 145, 149-55)

[26] Dr. Florek offered conflicting testimony regarding Mother’s demeanor at this meeting. At one point, Dr. Florek testified that during the Team meeting that occurred on March 30, 2023 (March 2023 meeting), Mother presented erratically, at times calm and at other times yelling and crying. (Florek, V: 641-42) Later, Dr. Florek testified that during the same meeting, Mother was “attentive,” at times “would argue the results or the response,” but “there were also two advocates present, so her demeanor was a little bit different than previous meetings, where she was kind of able to sit back and listen a bit more.” (Florek, V: 685, 687) Due to the variability on this point, I do not credit Dr. Florek’s testimony regarding Mother’s demeanor at the March 2023 meeting.

[27] Within Exhibit P-49, Mother offered statements regarding placement discussions during the March 2023 meeting. I do not consider these statements, however, as I specifically directed the parties at the end of the sixth day of Hearing that I would accept affidavits only on the issue of the submission and consideration of the Ed A and B at the March 2023 meeting. (Reichbach, VI: 853-54, 945-46)

[28] Meeting notes for the March 30, 2023 meeting were not submitted by either party. There is no reference in Isa’s Amended 2023-2024 IEP to an educational assessment, nor to comments or concerns raised by her general education substitute teacher having been discussed. (S-5)

[29] The Team proposed occupational therapy (OT) consultation in Isa’s A-grid to assist teaching staff in helping Isa use the fidgets and other items on her desk as tools to assist in her self-regulation, rather than as distractions. (Florek, V: 629-30)

[30] When Hingham sent Parents the placement page for the Amended 2023-2024 IEP, District personnel erroneously checked off that the Department of Youth Services has placed the student in a facility for committed or detained youth. Parents never returned a signed placement page to Hingham to accept or reject the proposed placement, though they did reject the IEP in full in September 2023. (S-5)

[31] According to Dr. Florek, Mother reached out to Mr. Hawes in or about January 2023 regarding recommendations for Isa’s application to Inly. Ms. Hyman completed Isa’s recommendation in January, but Ms. Jennings’ recommendation was delayed. (Florek, V: 700-01, 722, 739)

[32] There is no information in the record regarding Parents’ response.

[33] It is likely that this references the Amended 2023-2024 IEP.

[34] This testimony conflicts with Dr. Cataldo’s later testimony, to the effect that Parents accepted services from Scituate Public Schools under the proportionate share funding formula. (Cataldo, III: 443)

[35] Although Hingham received the rejected IEP on September 19, 2023, Mother dated her signature August 21, 2023. Parents did not check any of the boxes on the accompanying Placement Consent Form. (S-5; Cataldo, I: 166-67; Florek, III: 539)

[36] This IEP appears to list the date of the email incorrectly as March 27, 2024 – after the document was generated. The proposed IEP dated 3/21/2024 to 3/20/2025 contains the same content but references an email from Parents dated February 27, 2024.

[37] These evaluations were performed by Hingham staff who worked at Foster, a different elementary school within Hingham, because Mother had requested that East staff members no longer conduct Isa’s evaluations. (Cataldo, II: 241-43; Florek, III: 563-57)

[38] Parents filed a complaint with DESE’s Problem Resolution System (PRS) regarding this meeting. PRS concluded that Hingham was in compliance with respect to the Team meeting participants, including the District’s decision to allow Mr. Hawes to participate. (Cataldo, I: 169-70)

[39] For the remainder of the IEP period, 9/4/2024 to 3/20/2025 (which is not in issue in the instant matter), the 2024-2025 IEP proposes, in the A-Grid, Consultation with the special education teacher (1×15 minutes/4 days), with the BCBA (1×15 minutes/month), and the Counselor (1×15 minutes/4 days); in the B-Grid, English Support delivered by a special education teacher or paraprofessional (4×30 minutes/4 days); and in the C-Grid, Reading services (3×30 minutes/4 days) and Academic Support (3×40 minutes/4 days), both delivered by a special education teacher. (S-7; Cataldo, I: 170-72)

[40] According to Dr. Cataldo, Hingham sent the necessary paperwork for an independent math evaluation, but Parents never responded. (Cataldo, II: 247-48)

[41] Services and placement at Hingham Middle School were scheduled to begin September 4, 2024. (P-42; S-8)

[42] In the B-Grid, the final 2024-2025 IEP pertaining to the 2024-2025 school year removes the English Support contained in the revised IEP and adds Academic/Behavior services provided by a paraprofessional (4×30 minutes/4 days). In the C-Grid, the final 2024-2025 IEP pertaining to the 2024-2025 school year proposes services in Reading with a special education teacher (4×47 minutes/4 days) and Counseling with a Counselor (1×30 minutes/4 days), in place of Reading (2×30 minutes/4 days) and Academic Support (3×40 minutes/4 days).

[43] As noted above, in response to an Order from the Hearing Officer, Parents did provide an Affidavit reflecting the amount of tuition they paid for Isa at Inly for the 2023-2024 school year (P-46), but other than the application submitted by the District (S-1), no other information about Inly appears in the record.

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

[45] 20 U.S.C. §1400(d)(1)(A).

[46] See Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982) (“a court’s inquiry in suits brought under §1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?”); Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1095 (1st Cir. 1989) (noting that complaints authorized by the IDEA include both procedural and substantive violations); Lowen v. Shrewsbury Public Schools, BSEA #1910123 (Reichbach, 2019) (“The IDEA contains both substantive and procedural protections for children with disabilities”).

[47] Pollack v. Reg’l Sch. Unit 75, 886 F.3d 75, 80 (1st Cir. 2018) (internal citation omitted). See A.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 679 n.7 (4th Cir. 2007) (explaining that an alleged deficiency in what a school district offers is considered substantive, whereas an alleged deficiency by which the offer is developed or conveyed is procedural).

[48] See Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. 386, 401, 403 (2017); D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012).

[49] Esposito, 675 F.3d at 34 (internal citations omitted).

[50] Endrew F., 580 U.S. at 402.

[51] Id. at 403.

[52]  C.D. v. Natick Pub. Sch. Dist., 924 F.3d 621, 624-25 (1st Cir. 2019) (cert denied).

[53] 603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”).

[54] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (internal quotations and citations omitted).

[55] C.G. ex rel. A.S. v. Five Town Comty. Sch. Dist., 513 F.3d 279, 285 (1st Cir. 2008); see 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).

[56] Endrew F., 580 U.S. at 401.

[57] C.D., 924 F.3d at 631 (quoting Roland M., 920 F.2d at 993).

[58] See Endrew F., 580 U.S. at 403; In re: Zeke, BSEA #2200246 (Reichbach, 2022); see also P.K. ex rel. S.K. v. Dep’t of Educ., 819 F. Supp. 2d 90, 105 (E.D.N.Y. 2011) (when assessing whether an IEP satisfies the IDEA, a “court must examine the record for any objective evidence that the student’s IEP will afford more than trivial advancement and is likely to produce progress, not regression” (internal quotation marks and citations omitted)).

[59] Falmouth Sch. Dep’t v. Doe ex rel. Doe, 44 F.4th 23, 35 (1st Cir. 2022)

[60] P.K. ex rel. S.K. v. Dep’t of Educ., 526 Fed. Appx. 135, 139-40 (2nd Cir. 2013).

[61] See P.K., 819 F. Supp. 2d at 109 (deferring to Department State Review Officer’s conclusion that where IEP did not specify a method by which the student’s progress would be measured, “any alleged deficiency with respect to [her] goal did not rise to the level of a denial of a FAPE”).

[62] See Amann v. Stow Sch. Sys., 982 F.2d 644, 651 (1st Cir. 1992); Gonzalez v. Puerto Rico Dep’t of Educ., 969 F. Supp. 801, 811 (D.P.R. 1997).

[63] See 20 U.S.C. §1412(a)(10)(C)(ii); Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 369-70 (1985); In re: Uma, BSEA #2103885 (Reichbach, 2021); see also Schoenfeld v. Parkway Sch. Dist., 138 F.3d 379, 382 (8th Cir. 1998) (“Reimbursement for private education costs is appropriate only when public school placement under an individual education plan (IEP) violates IDEA because a child’s needs are not met”).

[64] See 20 U.S.C. §1412(a)(10)(C)(ii); Sch. Union No. 27 v Ms. C., 518 F.3rd 31, 34-35 (1st Cir. 2008); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31 (1st Cir. 2006).

[65] See 20 U.S.C. §1412(a)(10)(C)(ii).

[66] See 20 U.S.C. §1412(a)(10)(C)(ii); Burlington, 471 U.S. 359 at 369-70; Schoenfeld, 138 F.3d at 382; In re: Uma; In re: Medfield Public Schools, BSEA #077260 (Crane, 2007). See also Florence Cnty. Sch Dist. Four v. Carter ex rel. Carter, 507 U.S. 10, 15 (1993) (Parents who place their children unilaterally “are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and that the private school placement was proper under the Act” (emphasis in original)). In addition to this standard, there is a notice requirement. Even where parents have established that a district failed to offer a FAPE and that they selected a placement that was appropriate for their child, the IDEA allows a Hearing Officer to reduce or deny reimbursement due to parents’ failure to provide appropriate notice of their intent to place the child unilaterally. See 20 U.S.C. §1412(a)(10)(C)(iii).

[67] See Florence Cnty., 507 U.S. at 13-14; Mr. I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3rd 1, 23-24 (1st Cir. 2007); Frank G. v. Bd. of Educ., 459 F.3d 356, 364-65 (2nd Cir. 2006).

[68] Mr. I., 480 F.3rd at 23-24.

[69] Gagliardo v. Arlington Cent. Sch. Dist.,489 F.3d 105, 115 (2d Cir. 2007) (emphasis in the original) (citing Frank G., 459 F.3d at 365 (internal quotation marks and citations omitted); see Mr. I., 480 F.3d at 24.

[70] See Rowley, 458 U.S. at 205-06; see also Honig v. Doe, 484 U.S. 305, 311 (1998) (“Congress repeatedly emphasized throughout the [IDEA] the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness”).

[71] 20 U.S.C. §1415(f)(3)(E)(ii); see 34 CFR 300.513(a)(2); Roland M., 910 F.2d at 994.

[72] Doe v. Attleboro Pub. Sch., 960 F. Supp. 2d 286, 295 (D. Mass. 2013) (internal citations and quotation marks omitted); see Gonzalez, 969 F. Supp. at 809; see also Student v. Winchester Public Schools, BSEA #1804106 (Berman, 2018) (de minimis procedural errors that do not interfere with parent’s or student’s abilities to participate in Team process or deprive student of FAPE not compensable).

[73] See A.M. v. Monrovia Unified Sch. Dist., 627 F.3d 773, 779-80 (9th Cir. 2010) (although district failed to develop a new valid IEP within thirty day deadline, student suffered no deprivation of educational benefit and therefore has no claim”); Gonzalez, 969 F. Supp. at 812 (explaining that the failure to comply with procedural safeguards may be sufficient grounds to hold that a school district has failed to provide a FAPE where there is “some rational basis to believe that procedural inadequacies compromised the pupil’s right to an appropriate education, seriously hampered the parents’ opportunity to participate in the formulation process, or caused a deprivation of educational benefits;” even a state department of education’s failure to hold a timely hearing and render a decision does not constitute a violation of the IDEA unless it meets these criteria (internal citations and quotation marks omitted)).

[74] See R.F. v. Cecil Cnty. Pub. Sch., 919 F.3d 237, 244, 248-49 (4th Cir. 2019) (regardless of the procedural violations, the teacher’s failure to retain data was not “nefarious,” the student’s placement in the intensive communication support classroom was reasonably calculated to enable her to make progress appropriate in light of her circumstances, and the unilateral change was consistent with her parents’ objection that her IEP contained too many hours in the general education classroom).

[75] See id.

[76] See Attleboro Public Schools, 960 F. Supp. at 293.

[77] P. v. West Hartford Bd. Of Educ., 885 F.3d 735, 753 (2nd Cir. 2018).

[78] C.D. v. Natick Pub. Sch. Dist., No. CV 19-12427, 2020 WL 7632260 (D. Mass. 2020) at *5 n.12.

[79] See Colón-Vazquez v. Dep’t of Educ., 46 F. Supp. 3d 132, 143-44 (D. P.R. 2014); In Re: Benjamin, BSEA #2401643 (Reichbach 2024).

[80] Colón-Vazquez, 46 F. Supp. 3d at 144; see Doe v. Hampden-Wilbraham Reg’l Sch. Dist., 715 F. Supp. 2d 185, 195 (D. Mass. 2010).

[81] See Hampden-Wilbraham Reg’l Sch. Dist., 715 F. Supp. 2d at 198; see also Ross v. Framingham Sch. Comm., 44 F. Supp. 2d 104, 118 (D. Mass. 1999) (“when presented with a claim that a school district failed to implement a student’s IEP, a district court must determine whether the alleged failure to implement the IEP deprived the student of her entitlement to a ‘free appropriate public education,’ as defined under the applicable federal and state prescriptions”).

[82] See Colón-Vazquez, 46 F. Supp. 3d at 143.

[83] Id. at 143-44 (citing and quoting Van Duyn v. Baker Sch. Dist., 502 F.3d 811, 822 (9th Cir. 2007) and Garmany v. District of Columbia, 935 F. Supp. 2d 177, 181 (D. D.C. 2013); see Van Duyn, 502 F.3d at 815 (“We hold that when a school district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the child’s IEP”).

[84] See Doucette v. Jacobs, 2022 WL 2704482 at *13 (D. Mass 2022) (citing Colon-Vazquez with approval); In Re: Benjamin; Stewart v. Acton-Boxborough Regional School District, BSEA #2101061 (Reichbach, 2021).

[85] See Schaffer, 546 U.S. at 62.

[86] See Colón-Vazquez, 46 F. Supp. 3d at 143; Van Duyn, 502 F.3d at 815.

[87] As the initial 2023-2024 IEP was not submitted by either party, I cannot discuss it in detail.

[88] Parents offered no evidence regarding the appropriateness, or lack thereof, of these goals.

[89] Endrew F., 580 U.S. at 403; see Esposito, 675 F.3d at 34-35.

[90] See Roland M., 910 F.2d at 992 (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’” (internal citations omitted)).

[91] See Roland M., 910 F.2d at 992.

[92] See Endrew F., 580 U.S. at 403; Rowley, 458 U.S. at 200; Esposito, 675 F.3d at 34.

[93] See 20 U.S.C. §1412(a)(10)(C)(ii); Florence Cnty. Sch Dist. Four, 507 U.S. at 15; Burlington, 471 U.S. 359 at 369-70.

[94] Although Parents did not present Hingham’s failure to provide home tutoring and services at Inly as procedural violations, they did expend significant time on these issues at the hearing. Thus, I address them here.

[95] See 603 CMR 28.05(1) (“The evaluation assessments shall be completed within 30 school working days after receipt of parental consent for evaluation. Summaries of such assessments shall be completed so as to ensure their availability to parents at least two days prior to the Team meeting.”)

[96] See 603 CMR 28.05(1).

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

[98] See G.D. v. Westmoreland School Dist., 930 F.2d 942, 947 (1st Cir. 1991) (noting that an IEP “is formulated at a meeting of the parents, teachers, and administrators”).

[99] See Roland M., 910 F.2d at 994; G.D., 930 F.2d at 947.

[100] See Attleboro Pub. Sch., 960 F. Supp. 2d at 295; Student v. Newton Public Schools, BSEA #1408637 (Figueroa, 2015).

[101] The evidence demonstrates that Parents were actively involved in Team meetings at all relevant times and that Hingham solicited their input. For example, in March 2024, when Mother left Isa’s eligibility determination meeting, Hingham held the meeting as it was required to, then reconvened in May for a Team meeting in which District staff reviewed the same information with Parents and solicited their feedback.

[102] See Rowley, 468 U.S. at 205-06, Roland M., 910 F.2d at 994; G.D., 930 F.2d at 947.

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

[104] See Student v. Winchester Public Schools, BSEA #1804106 (Berman, 2018).

[105] The undersigned Hearing Officer is grateful for the diligent assistance of legal intern Sophie Rudloff in the preparation of this Ruling.