In Re: Student v. Medford Public Schools BSEA# 25-15229

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student v. Medford Public Schools

BSEA# 25-15229

DECISION

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

The Student in the instant case is a nearly ten-year-old third-grader who currently attends the Landmark School in Manchester, MA, as a parentally-placed and funded student.  Previously, Student attended a private, parochial school in Medford, and, at certain times, also received discrete special education services funded by Medford.  On June 26, 2025, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA) in which they asserted that the Medford’s proposed Individualized Education Programs (IEPs) covering the 2024-2025 school year, and corresponding placement in the District’s language-based program, were inappropriate and did not offer Student a free, appropriate, public education

Upon receipt of Parents’ hearing request, the BSEA scheduled an initial hearing date of July 31, 2025.  On July 14, 2025, the District requested a postponement of the hearing to enable the parties to pursue resolution and conduct discovery. On July 25, 2025, the BSEA issued an order granting the postponement request for good cause, and postponing the hearing to November 3, 6, and 7, 2025. The hearing was held on those days at the office of the BSEA in Malden, MA.  At the request of Parents, the hearing was open to the public.[1]  Both parties were represented by counsel, and had an opportunity to examine and cross-examine witnesses, as well as to submit documentary evidence for consideration by the Hearing Officer.  On, November 7, 2025, Medford filed an assented-to request to postpone the hearing until December 12, 2025, to allow the parties time to submit written closing arguments.  The request was granted for good cause.  On December 12, 2025, both parties filed closing arguments and the record closed. 

The record in this case consists of Parents’ Exhibits P-1 through P-48, School’s Exhibits S-1 through S-15, as well as stenographically-recorded witness testimony.  Those present for all or part of the proceeding were the following:

Student’s Mother

Student’s Father

Joan Bowen              Medford Public Schools

Kathleen Bradley     Interim Special Education Coordinator, Medford Public Schools

Sybil Cardarelli         School Psychologist, Medford Public Schools

Stephanie Coe-Smith   Occupational Therapist, Medford Public Schools         

Lauren Davidson     Special Education Teacher, Medford Public Schools

Johanna Granada   Speech/Language Therapist, Medford Public schools

Allison Watts             Special Education Teacher, Medford Public Schools  

Dr. Brian Willoughby    Private Neuropsychologist

Lauren Unflat-Berry Private Speech/Language Therapist

Meghan Sebens      Dir. Of Student Progress and Performance, Landmark School

Kathleen Babcock   Academic Advisor, Landmark School

Maureen Flannery   Teacher, Landmark School

Wendy Ellis               Speech/Language Therapist, Landmark School

Brittany Jones           Educational Consultant for Parents

Lisa Nelson               Parents’ advocate

Peter Hahn               Attorney for Parents

Madelyn Caiado       Legal Assistant for Attorney Hahn

Alisia St. Florian       Attorney for Medford Public Schools

Members of the

Public

Carol H. Kusinitz      Court Reporter

Sara Berman            BSEA Hearing Officer

 

ISSUES PRESENTED

The issues to be decided are the following:

1. Whether the IEP dated 3/28/23 to 3/27/24, and as revised, denied Student a free, appropriate public education (FAPE) pursuant to applicable federal and state law;

2. Whether the IEP dated 4/30/24 to 4/ 29/25, as revised, denied and continues to  deny Student a FAPE pursuant to federal and state law;

3. If so, whether Parents’ unilateral placement of Student at the Landmark School was justified such that Parents are entitled to reimbursement for all costs for placement at Landmark for the 2024-2025 school year, including tuition and transportation;

4. Whether Parents are entitled to reimbursement for all costs incurred by Parents related to private services during the time at issue;

5. Whether Parents are entitled to compensatory services for all denials of FAPE over the past two years.

POSITION OF PARENTS

Medford’s proposed placement in its substantially-separate language-based classroom was inappropriate and would not have met Student’s needs in light of her severe, double-deficit dyslexia coupled with ADHD and executive functioning challenges. As observed by Parent, Parents’ evaluator and educational consultant, the proposed placement would not have provided Student with language-based strategies infused throughout the curriculum or with one-to-one reading instruction that Student needed in light of her disabilities in order to make effective progress.  Further, Medford did not employ best practices applicable to Student’s profile in its reading instruction, instructional content was above Student’s skill level, and the student cohort present in the class during the relevant period would have been inappropriate.

Faced with a proposed placement that was inappropriate, Parents were justified in unilaterally placing Student at the Landmark School, which is a DESE-approved private school that specializes in serving students who, like Student, present with language-based learning disabilities (including dyslexia) in the context of average to above-average cognitive ability.  Landmark is well-suited to providing Student with educational programming tailored to meet her unique needs, and Student has made substantial progress during her enrollment there.  As such, Parents should be reimbursed for costs incurred for their unilateral placement of Student at Landmark.

Further, Parents are entitled to reimbursement for the expenses of certain services that they provided privately because Student had been unable to access school-based services due to lack of transportation and/or because such services were and are educationally necessary or constituted “stay put.”  These services included reading instruction provided by Commonwealth Learning Center (CLC) for extended school year 2024, speech-language services from September 2024 through June 2025 and for extended school year 2024, occupational therapy services for June 2023 through January 2024, and for extended school year 2024. 

Lastly, Parents and Student are entitled to compensatory services for approximately 50 hours of reading services that were missed between June 2023 and February 2024 due to lack of transportation.

POSITION OF SCHOOL

Parents have failed to meet their burden of persuasion that the IEPs, services and placement offered to Student during the relevant periods were not reasonably calculated to provide Student with FAPE.  Medford first evaluated Student and proposed an IEP and services for Student while she was attending a local parochial school.  Upon receiving and reviewing a private evaluation that recommended a substantially-separate, language based program for Student, the Medford Team promptly offered placement in its language-based classroom.  This program was staffed with appropriately qualified and certified teachers who would have provided Student with instruction tailored to meet her unique needs. The format for service delivery (e.g., individual vs. small group reading instruction) would have been adjusted as needed.  

In fact, staff credentials of Medford’s proposed instructors were more closely aligned to the recommendations of Parents’ private evaluator than those of Landmark staff. Lastly, it is notable that Student has never been educated within the Medford Public Schools, and has never received direct services from Medford educators. Parents have not met their burden of proving that the relevant IEPs and language-based class were inappropriate, and, as such, are not entitled to reimbursement for the Landmark placement, or to compensatory services.  Regarding reimbursement, Medford already has reimbursed Parents for privately-obtained related services, and is not obligated for further reimbursement.  

SUMMARY OF THE EVIDENCE

1. Student is a nearly ten-year-old child who lives with Parents in Medford.  The Medford Public Schools is the Local Education Authoriy (LEA) responsible for ensuring that Student receives a free, appropriate public education (FAPE), pursuant to the IDEA and MGL c. 71B.  Student is currently a fourth-grader at the Landmark School, a DESE-approved private day school in Manchester, MA, where Parents unilaterally placed her at the beginning of the 2024-2025 school year.   

2. Student is universally described as happy, social, creative, intelligent, empathetic, academically motivated and hard-working. She has excellent conversational and social skills, and many friends. Student enjoys music, dance class, and circus camp, among other activities.  Neuropsychological testing indicates that Student’s cognitive abilities range from “average” to “superior,” with a relative weakness (“low average”) in working memory.  Student does not have any significant social/emotional or behavioral difficulties, although she has experienced anxiety related to her learning struggles. (P-1, Parents, Willoughby)  

In addition to her many strengths, Student has a significant language-based learning disability, diagnosed as “double-deficit” dyslexia, which has seriously impeded her progress in reading, written expression and math.  She also has received diagnoses of a communication disorder (related to articulation), ADHD, inattentive type, a disorder of written expression, and dyscalculia. (Willoughby, P-1, P-3, P-4)  As a result of her disabilities, Student’s academic achievement test scores and ability to perform classroom tasks are significantly lower than would be expected given her strong cognitive abilities, and well below those of her peers.

3. Student’s academic career began with a Montessori preschool in Medford.  Student thrived during her first year in the program, which had no expectation that the children would be beginning to read or write.  She loved school and absorbed information rapidly.  Student continued at the Montessori program for Kindergarten, and almost immediately began to struggle. Mother testified that Student would crawl under the table and cry when expected to do even the minimal amount of homework required by the school.  (Mother, Father)

4. Parents originally planned to enroll Student in the Medford Public Schools for first grade, (2022-2023 school year) but were unable to secure a slot in the school-based before-school and after-school care that their work schedules required.  Partially for this reason, they enrolled Student in St. Raphael’s Parish School, a parochial school in Medford that did provide before and after-school care.  (Parents)

5. Student continued to struggle with reading and other academics throughout her first grade year.  In November 2022, St. Raphael’s began providing Student with 3×30 minutes per week of supplementary services, including small-group reading instruction, taught by a Title I teacher, Ms. Hardy. Later in the year, Student’s Title I reading instruction included Wilson Reading.[2]  The parties agree that the reading services at St. Raphaels did not constitute special education.  (P-37, Mother)

6. St. Raphael’s staff and Parents were concerned that despite these services, Student was not making adequate progress with reading and writing. Student’s classroom teacher also observed that Student’s articulation impacted her ability to decode and encode words and that Student also had difficulties blending sounds. (P-4)  At home, Student had great difficulty doing homework and showed signs of anxiety such as crying and thumb-sucking.  These behaviors were a significant departure from her usual cheerful, upbeat personality. (Mother, Father)

7. In February 2023, Student underwent a private speech and language evaluation conducted by Massachusetts General Hospital (MGH) to determine spoken and written language abilities and to plan interventions. (P-3) According to the evaluation report, Student was diagnosed with a moderate written language disorder, “also known as a specific language disability in the areas of reading and writing, or dyslexia.”  Student’s written language disorder was “characterized by deficits in phonological processing, decoding, encoding, and reading fluency…in the presence of solidly average spoken language abilities and strong pragmatic (social) language skills.”  Student also made a few articulation errors which “minimally” impacted her intelligibility. (P-3)

More specifically, Student demonstrated below average abilities in phonological awareness and rapid naming, but average phonological memory.  The evaluator opined that this pattern would reduce Student’s ability to segment and blend sounds when reading and impair fluency.  Her scores on the Comprehensive Test of Phonological Processing (CTOPP) and the Gray Oral Reading Test (GORT) fell in the “significantly below average” range. (P-3)

As for writing, Student exhibited “moderate-significant deficits across all areas,” including recognizing high-frequency sight words, decoding, reading rate, accuracy, fluency, and reading comprehension (due to her need to focus on decoding rather than obtaining meaning).  Spelling skills were also below average. (P-3)

On the other hand, Student had strong skills in spoken language, pragmatic language, and listening comprehension, scoring in the “average” or “above average” range in the Clinical Evaluation of Language Fundamentals, 5^th Edition (CELF-5).    

8. The MGH evaluator recommended clinic-based speech/language therapy for 45 to 60 minutes per week to address written language concerns, reading remediation 4 to 5 times weekly to address phonological awareness, decoding, encoding, reading automaticity, fluency and reading comprehension, and stated that the services should be delivered by a special education teacher “trained in the delivery of explicit, systematic, multisensory reading interventions such as Orton-Gillingham, Project Read, The Wilson Reading Program and/or Read Naturally.” Additional recommendations included the use of various comprehension programs and academic support to address written expression and executive functioning.  (P-3)

The evaluation report contained multiple detailed objectives, and recommendations for various classroom accommodations.  The evaluator further recommended a school-based special education evaluation.  (P-3)

9. In March 2023, in response to a written request by Parents in January 2023, Medford conducted an initial evaluation consisting of psychological, occupational therapy (OT) speech/language and educational assessments (Bradley, Mother, P-4, S-13)

10. The psychological assessment consisted of cognitive testing using the WPPSI-IV[3] and a student interview and revealed that Student had overall “average” cognitive ability in verbal comprehension, visual spatial, fluid reasoning, working memory, and processing speed domains, with a particular strength (“high average”) in her knowledge of basic facts. (P-4) 

11. Educational testing was conducted by a Medford special education teacher and consisted of the Wechsler Individual Achievement Test-4 (WIAT-4).  Student’s overall score in Reading was “low average,” with a “low average” score in the Word Reading subtest and an “average” score in Reading Comprehension. Student scored in the “very low” range in tests of Phonological Processing. Mathematics testing yielded “average” scores in both problem solving and operations. In the Spelling subtest of the Written Expression portion of the WIAT-4, Student scored in the “low average” range.  The examiner concluded that Student had demonstrated relative strength in Reading Comprehension and Math, and “notable weaknesses” in the area of Phonological Processing, Word Reading, and Spelling.  The evaluator made several recommendations, including for structured practice, modeling and explicitly taught opportunities to develop skills in decoding, encoding, vocabulary and math.  (P-4)

12. Part A of the Educational Assessment was completed by Student’s first grade teacher at St. Raphael’s, who noted that Student was making inconsistent progress, needed teacher support to attend to lessons and to access previous skills.  Student’s math skills had shown consistent growth. Reading skills had also progressed, but “continued to fall below 80% (curriculum metric for intervention.)” Student “struggle[d] with memorized phonics rules/concepts and has trouble accessing skills which build upon previous content from early in the year.”  (P-4)

13. Medford’s speech/language assessment included a review of parent and teacher concerns, as well as of the recent MGH evaluation, and testing to supplement that evaluation. The evaluator concluded that Student had average expressive, receptive and pragmatic language skills, coupled with some articulation errors.  The evaluation report recommended explicit instruction for articulation.

Medford’s OT evaluation recommended various accommodations and activities to support Student’s organizational and handwriting skills.  (P-4)

14. A Team meeting was scheduled for March 28, 2025. On the same date as the scheduled meeting, Parents informed Medford that they had hired a private tutor work with Student on phonics and phonemic awareness, initially for 3×25 minutes/week and later for 3×50 minutes/week.  (Parents)

15.  The Team determined that Student was eligible for special education based on a specific learning disability in basic reading and written expression as well as a communication disability (articulation), and issued an IEP covering March 28, 2023 to March 27, 2024 with goals in Reading, Spelling, Writing and Speech/Language.  The service delivery grid provided for the following, all in Grid C: reading services from a special education teacher, 4×30 minutes/5 day cycle; speech/language services from a speech therapist, 1×30 minutes/5 day cycle; and OT from occupational therapist, 1×30 minutes per 5 day cycle. The proposed IEP provided for “regular” transportation, and “monitoring” for the need for extended school year (ESY) service.  Placement was designated as “full inclusion.”  (P-16)

16. Because Student would continue to attend St. Raphaels, services were to be provided at the Roberts Elementary School, which was Student’s neighborhood school.  According to the N-1 form accompanying the IEP, Parents requested the District to provide transportation between St. Raphael’s and the Roberts School, as Parents’ work schedules precluded them from doing so.  Medford denied this request,[4] and further stated, in the N-1 form accompanying the proposed IEP, that the reading specialist at St. Raphael’s could provide a systematic reading instruction program three times per week. (P-16)

17. On May 3, 2023, Parents accepted the proposed placement, and accepted all services offered. but partially rejected the proposed IEP as insufficient to meet Student’s needs. Specifically, Parents rejected the denial of transportation services between St. Raphael’s and the Roberts School.  Additionally, Parents disputed aspects of the Student Strengths and Key Evaluation Summary, including omission of a summary of the MGH evaluation test findings.  (P-16)

18. In a letter dated May 8, 2023, Parents notified Medford of their intention to “unilaterally place [Student] for her reading instruction 4×30 minutes per week at St. Raphael’s School.”  (P-16) The letter also notified Medford that Parents would be unilaterally placing Student with Lauren-Unflat Berry of Listening Ears Speech Services for 60 minutes per week of speech services.  Parents requested reimbursement for all costs associated with these placements. Parents stated that one of the reasons for their action was the District’s failure to provide transportation to enable Student to access the reading and speech services in the public school setting.  Lastly, Parents reported that they “looked forward” to Student receiving OT services at the Roberts School “as soon as the District provides transportation…”  (P-16)

19. In an email dated May 17, 2023, Medford agreed to fund 30 minutes per week of speech therapy with Parents’ private therapist, Lauren Unflat-Berry, for the 2023-2024 school year.  (Unflat-Berry, P-16).  Parents responded by letter on May 26, 2023, accepting this offer.  Additionally, Parents notified Medford that they intended unilaterally place Student at OTA Associates in Wakefield for one hour per week for occupational therapy services beginning in June 2023, again because of the lack of District-provided transportation. (P-16)

20. Meanwhile, in or about March 2023, Parents retained a private online tutor to work with Student on phonics and phonemic awareness.  In an email to Student’s Medford case manager, Kathleen Bradley, Parents informed Medford that the tutoring had started at 3×25 minutes per week, but would be increasing to 3×50 minutes per week. In a subsequent letter dated November 10, 2023, Parents informed Medford  that they discontinued the tutoring in October 2023 because Student was showing minimal progress with the intervention.  (P-37)

21. Student returned to St. Raphael’s for second grade (2023-2024 school year) in the fall of 2023.  Student continued to receive Wilson instruction at St. Raphaels, together with private speech/language therapy with Lauren Unflat-Berry and OTA. Student had begun to dread school and exhibited increased anxiety symptoms at home and in settings such as dance recitals and restaurants, which she previously had enjoyed.  (Mother, Father)

22. In a letter dated November 10, 2023, Parents reported that since April 2023, they had been funding one hour per week of speech/language services with Ms. Unflat-Berry in addition to the half-hour per week of District-funded services.  The focus of services was articulation. 

Parents further reported that they had retained a private speech/language therapist with a concentration in literacy to work with Student 2×45 minutes per week on phonemic awareness as a pre-literacy skill.  (P-37)  Parents requested that Medford increase the speech/language services in Student’s by an additional 2×30 minutes per week.  Lastly, Parents reported on Student’s increased anxiety, which they attributed to her struggles with acquiring literacy skills and keeping up with school.  (P-37)

23. The Team reconvened on December 12, 2023, to discuss transportation as well as Parents’ request for increased speech/language and reading services.  On December 20, 2023, Medford issued an amendment to the March 28, 2023-March 27, 2024 IEP; this amended IEP covered December 2023 to March 27, 2024 and provided for transportation to the Roberts School for services if Parents were to choose to access services there rather than from the reading teacher at St. Raphael’s.  The amendment further offered increased reading services to 4×40 minutes per week, in a small group format. Medford declined to offer increased speech/language services. (Mother, Bradley, P-15)

On January 24, 2024, Parents accepted the offer of transportation and increased reading services, but rejected the refusal to provide one-to-one reading instruction and increased speech/language services.  (Mother, P-15) 

Shortly thereafter, Student’s case manager, Kathleen Bradley, informed Parents that Medford would fund a private one-to-one tutor for reading, and requested Parents to locate the tutor.[5]  In February 2024, Parents retained a tutor at Commonwealth Learning Center (“CLC”) and paid for tutoring from February to June 2024.  Medford reimbursed Parents in January 2025.[6]  (Mother, P-34)

24. Meanwhile, On November 30, 2023, Student had undergone a private neuropsychological evaluation conducted by Brian Willoughby, Ph.D. of Achieve New England.[7] The evaluation consisted of a review of records, interviews with Parents and Student, and administration of an extensive battery of standardized tests.  (Willoughby, P-1)

Standardized tests included the Wechsler Intelligence Scale for Children, 5^th Edition (WISC-V) as well as portions of the Wechsler Individual Achievement Test, 4^th Edition (WIAT-4) the Gray Oral Reading Test, 5^th Edition (GORT-5), the Test of Word Reading Efficiency, 2^nd Edition (TOWRE-2) as well as various tests of receptive and expressive language, phonological processing, visual-motor integration, memory, executive functioning, attention, and emotional and behavioral functioning.

Student’s cognitive abilities, as measured by the WISC-V, fell in the “superior” range for Verbal Comprehension, in the solidly “average” range for Visual-Spatial, Fluid Reasoning and Processing Speed, and the “low average” range for Working Memory. 

Student’s reading skills were “variable.” (P-1) She earned “low average” scores on the Oral Reading Fluency and Silent Reading Comprehension subtests of the WIAT-4. Her skills measured as “impaired” to “borderline” in reading sight words, and decoding on the WIAT-4 Word Reading and Pseudoword Decoding subtests as well as on the Sight Word Reading Efficiency and Phonemic Decoding Efficiency subtests of the TOWRE-2.  On the GORT-5, Student read very slowly, made many errors, and had ”borderline” scores for comprehension.  Dr. Willougby’s report states that, “[o]n the GORT-5, she was only able to read a small handful of words…and, essentially, [Student] presents like a “non-reader” at this point.”

Student’s skills on the WIAT-4 spelling subtest were “low average” with phonics based errors.  She scored in the “borderline” range in the WIAT-4 Sentence Composition subtest.  She also had difficulties with handwriting.

Regarding math skills, Student performed in the “average,” “low average,” and “borderline” ranges, respectively on the Numerical Operations, Math Problem Solving, and Math Fluency subtests of the WIAT-4.

25. Dr. Willoughby compared Student’s percentile rankings in academic testing between Medford’s assessments in March 2023 and his November 2023 evaluation and found that percentiles had dropped in several domains, including Word Reading (19^th to  5^th percentile), Reading Comprehension (25^th to 19^th percentile), Math Problem Solving (53^rd to 19^th percentile).  Based on this comparison, “the gap between [Student’s] performance and the performance of her peers has widened over time. That is, across nearly all academic subtests, [Student] has fallen further “off the curve,” especially in the areas of single word reading, reading fluency, reading comprehension, and math word problems. “Her progress has been remarkably slow, even with previous and current interventions.” (P-1)  

In his testimony, Dr. Willoughby elaborated that “over the course of about nine months, she was actually beginning to fall further and further off the curve, despite some of the private services…individualized reading supports, OT and speech and language…[T]he gap was widening over the course of just nine months.”  (Willoughby)

26. In contrast to her performance in reading, writing, and math assessments, Student achieved average or higher scores in tests of listening comprehension, oral expression, and receptive and expressive vocabulary.  Dr. Willoughby testified that unlike some children with language-based learning disabilities, Student did not have a “co-occurring language disorder” impacting listening and speaking. (Willoughby) 

On the phonological processing subtest of the NEPSY-II, Student achieved an “average” score, but showed many errors that are common amongst students with dyslexia…”  (P-1) Tests of visual-motor integration were “low average,” and her memory was “intact” but affected by “variable auditory attention span.” (P-1)

27. The evaluation revealed that Student had significant difficulty with sustained auditory attention as well as with aspects of executive functioning.  (P-1)  Rating scales measuring emotional and behavioral functioning showed no clinical level concerns. (P-1)

28. Dr. Willoughby’s diagnostic impressions were that Student had a “Specific Learning Disorder with Impairment in Reading (Dyslexia), Mathematics, and Written Expression (Dysgraphia), as well as ADHD, Predominantly Inattentive Type.  She presented with weaknesses in phonological awareness coupled with slow rapid automatic naming, which are “hallmarks of “double deficit dyslexia.” He testified that Student met the criteria for a language-based learning disability based on a the discrepancy between her cognitive abilities and impaired functional performance on all measures of reading skill.  (Willoughby)

29. Additional concerns included challenges with attention and executive functioning.  As a result, Student had “severe weaknesses across all academic areas” and was not “performing commensurate with aptitude or grade-based expectations.” In mid second grade, Dr. Willoughby opined that Student was functioning on a kindergarten level, and was not “closing the gap” with peers. (P-1)

30. Dr. Willoughby’s report recommended placement in a “language-based classroom that is substantially separate and where intensive, evidence-based learning supports can be infused into all aspects of her curriculum.” The placement should have a very small student-teacher ratio, with peers having similar profiles of language-based learning disabilities, similar developmental, cognitive and behavioral profiles. Peers should not have “marked developmental, emotional, or behavioral challenges.”  (P-1)

He opined that instruction should be delivered by teachers with training in delivering “research supported, multisensory language-based instruction,” and that Student should also receive individualized daily tutorials (45 minutes X 5 days) using a multisensory phonics-based program. Dr. Willoughby further recommended direct specialized instruction in writing and math, as well as executive functioning supports infused throughout the curriculum. (P-1)

31. In his testimony, Dr. Willoughby elaborated on his recommendations, defining a “language-based program” as one “in which multi-sensory, language-based instruction is infused again throughout all aspects of the curriculum and specifically focuses on students that have deficits that are consistent with dyslexia, oftentimes with dysgraphia as well.” He explained that a “multi-sensory” program would use multiple sensory modalities such as manipulatives.  He further stated that a language-based approach would also be necessary in “specials” such as health or technology which involve a language or working memory component.  (Willoughby)

Dr. Willoughby testified that daily, one-to-one tutorials of 45 to 60 minutes, using a phonics-based approach, was necessary for Student because “the difficulties were so significant and so severe and she was so far behind, it really warranted zeroing in on some of these skills,” and because she had not been responsive to less intensive intervention “suggest[ed] that she needed an even higher level of one-to-one…”  He testified that Student needed ESY services because of the risk of regression over the summer break. (Willoughby)

32. Regarding peers, Dr. Willoughby stated that placement with classmates having similar needs was important so that instruction could be highly individualized, and that students could be taught as a group. (Willoughby)

33. Parents provided Medford with Dr. Willoughby’s report in approximately February 2024. On April 30, 2024, the Team convened to review the report as well as to conduct an annual review of the March 2023-March 2024 IEP.  Dr. Willoughby attended the meeting and discussed his report.  Also in attendance were Parents, two family friends, Medford’s attorney, Medford’s occupational therapist, speech-language therapist, school psychologist, special education teacher, and Student’s second-grade general education teacher from St. Raphaels.  (Mother, Willoughby, P-13) 

34. On May 12, 2024, the District issued an IEP covering April 30, 2024, to April 29, 2025.  (P-13) This IEP proposed placing Student in the substantially separate, Language- Based Program at the Brooks School in Medford. (P-13)

35. The Vision Statement in this IEP stated that the Team sought that Student “develop her phonological awareness skills” to “improve her overall reading and writing abilities, to improve her math skills and her handwriting abilities…” Parents’ vision was for Student t achieve “grade level reading skills in all reading skills within the next two years,” and to be on grade level with “all communication and written expression skills.” (P-13)

36. This IEP listed numerous accommodations for Student, including but not limited to visual charts for sound and spelling patterns for use when reading and writing, personal word wall for high frequency words, reading aloud of materials above her reading level, and using a specific program to reteach letter formation. 

37. IEP goals comprised  Decoding and Encoding, Written Expression, Reading Comprehension, Math, Written Output, and Speech and Language (articulation). The Decoding and Encoding goal specified that Student would be given “explicit instruction” regarding targeted phonetic patterns and/or syllable types.  The Written Expression goal similarly indicated that Student would be provided “systematic writing instruction as well as assistive technology as needed.” The Written Output goal stated that Student would use handwriting, typing, and/or speech-to-text to produce legible sentences. (P-13) The speech/language goal was for Student to improve her articulation and transcription of the three sounds that were challenging for her. (P-13)

38. Under “Methodology/Delivery of Instruction,” the IEP indicates that Student requires “a language-based classroom that employs small group systematic instruction to target literacy, comprehension (including science and social studies content), mathematics, writing, and executive functioning. A cohesive learning environment that provides preview/review of skills and topics addressed in the general education curriculum. Small group, multi-sensory, multimodal, systematic instruction for reading with a focus on decoding , encoding, fluency skills, and comprehension. Small group, multisensory, multi-modal systematic instruction for written expression with a focus on sentence and paragraph formulation. Small group multi-sensory, multi-modal systematic instruction for mathematics with a focus on calculation and problem solving.” (P-13)

39. The service delivery grid indicated that all core academic subjects (reading, written expression, science/social studies, and math) would be taught in the language-based program. There were no services listed in Grids A or B. (P-13)

Specifically, Student was offered 5×45 minutes per 5-day cycle of reading; 3×45 minutes per cycle of written expression, and 4×45 minutes per cycle of science/social studies, all in the language-based classroom. Each subject would be taught by a “special education teacher/para.”  In addition, Student would be receiving 30 minutes per cycle, each, of speech-language therapy and OT. (P-13)  She would join general education classes for homeroom, specials, lunch, and recess.  The IEP provided for transportation, since the Brooks School was not Student’s neighborhood school. It did not include ESY services.  ( P-13 )

40. Mother observed the proposed program at the Brooks School on May 20 and 28, 2024. Based on her observations, detailed, below, Parents concluded that the program would not be appropriate for Student. (Mother, P-35)

41. In a letter dated June 7, 2024, Parents partially rejected the IEP and refused the proposed placement.  Parents stated that they believed the IEP did not comport with Dr. Willoughby’s recommendations, “including placement, services, and extended year,” and also because it did not incorporate recommendations from the MGH Speech-Language evaluation of February 2023 . Parents accepted the IEP goals for purposes of implementation and progress monitoring but rejected them as being insufficiently ambitious given Student’s high potential. Parents also rejected the use of paraprofessionals for service delivery. Parents informed Medford of their intention to place Student at Landmark for the 2024-2025 school year and sought reimbursement for all expenses associated with the placement. Lastly, Parents rejected the absence of ESY services and stated their intention to “continue to pay for private academic, speech, and occupational therapy services over the summer and seek reimbursement…for those services.” (P-13)

42. During the summer of 2024, Parents paid for Student’s tutoring at CLC, as well as for private speech therapy and OT. (Parents, P-13, P-34)

43. Student entered the Landmark School in September 2024, for third grade.  On September 13 and October 2, 2024, while Student was attending Landmark, Medford conducted updated speech/language and OT evaluations of Student.

44. The speech/language assessment was conducted by Joanna Granada.  Ms. Granada holds a Master’s degree in communication disorders and is a licensed and certified speech/language pathologist. She also holds certifications as a reading specialist and is certified in Wilson Reading. Ms. Granada has worked as a speech/language therapist in the District for 20 years. For the past 15 years, Ms. Granada has divided her time equally between providing speech/language services and reading instruction. Regarding reading, Ms. Granada works with students diagnosed with dyslexia and other reading difficulties, typically in small groups, but also one-to-one. (Granada)

45. The purpose of Ms. Granada’s evaluation was to determine if Student was ready for discharge from speech/language services.  At the time, Student was receiving services to address articulation from Lauren Unflat-Berry, a private speech/language therapist. Ms. Granada reviewed prior evaluations, discussed Student’s articulation issues with Parents and Student’s classroom teacher at Landmark, and observed Student in a LiPS tutorial at Landmark. She also administered the Goldman-Fristoe Test of Articulation. (P-5, Granada)

46. During the observation, Student was understandable 99% of the time. Student’s teacher reported that Student was understood in the classroom.  On the Goldman-Fristoe Test of Articulation, Student scored in the 50^th percentile for “words in isolation” and the 77^th percentile for “words in sentences.” The evaluation report concluded that Student was in the “average” range in producing sounds in words and sentences, and 100% understandable to familiar and unfamiliar listeners. Landmark staff reported that Student’s speech sounds did not affect her writing. Ms. Granada concluded that Student no longer required speech/language therapy in order to access the curriculum. (P-5)

47. The OT evaluation was conducted by Stephanie Coe-Smith.  The evaluator assessed Student’s skills in various handwriting tasks, typing, and use of speech-to-text technology. Student’s written output skills were below average.  She had not yet really learned to type. She experimented with speech-to-text and enjoyed it, and was able to produce 96 words in one minute. The OT report recommended various accommodations such as three-lined paper, letter strips, and, for longer assignments, assistive technology such as speech to text and word prediction. (P-5)

48. On October 22, 2024, the Team convened to review the speech/language and OT evaluations referenced above. Medford Team members recommended discharge from speech/language services, and continuation of OT services. On November 7, 2024, Medford issued a proposed amendment to the IEP covering April 30, 2024 to April 29, 2025, which removed speech/language therapy; otherwise, the IEP was unchanged. The N-1 form accompanying the IEP indicated that the Team was not recommending ESY services. (P-12)

49. In a letter dated November 26, 2024, Parents rejected, among other things, removal of speech-language therapy and related goals and omission of ESY services, requested “stay put” for speech/language therapy, and continued to reject the proposed placement in Medford’s Language-Based Program. Parents also continued to request reimbursement for all privately obtained educational and related services during 2023-24 and summer 2024. (P-12)

50. As stated above, Medford proposed placing Student in Medford’s Language-Based Program at the Brooks Elementary School for the 2024-2025 school year. This program serves students in grades 2 through 5 whose primary disability is a specific learning disability affecting reading and writing, as well as average to above-average cognitive potential. Students may also have diagnoses of anxiety and/or ADHD, but do not present with disability-related disruptive behavior. All students require specialized instruction. (Watts, P-2)

Classes comprise up to eight students with a special education teacher, or up to twelve students with a certified special education teacher and a paraprofessional. Specialized approaches and programs include Orton-Gillingham (OG) for reading and spelling, Framing Your Thoughts and Landmark School’s writing curriculum for written expression, as well as other curricula supporting phonological awareness and narrative language. The program also includes strategies for executive functioning, organizational skills, and social skills. Students receive grade-level content. (Watts, P-2)

A speech/language therapist is assigned to the Language Based Program and consults weekly with teachers to develop a weekly co-taught lesson. Additionally, an occupational therapist comes into the classroom during writing blocks to work with students on handwriting and sentence production as needed, as well as to facilitate access to assistive technology if needed. Some students also are pulled out for speech/language therapy and/or OT sessions per their IEPs. (Watts)

Medford consults with the Landmark Outreach Program, which helped set up the Language-Based Program initially, and which has provided curricular resources, conducted observations, workshops on language-based instruction, mentoring, and coaching.  (Watts, P-2)

51. During the 2024-2025 school year, the Language-Based Program initially consisted of two classrooms, one containing three third grade students and one with four students in the fourth and fifth grades.  Between December 2024, and May 2025, the two classes were combined because Ms. Capuccio, teacher of the older classroom, went on leave. The combined class was taught by the teacher for the third graders, Allison Watts, who is a Master’s level special education teacher who holds DESE licenses in moderate disabilities and elementary education, as well as certifications in Orton-Gillingham (associate’s level), and Wilson Reading (Level 1).  Ms. Watts has taught in the Language-Based Program for twelve years.  She would have taught Student during the 2024-2025 school year if she had attended the program. (Watts)

52. Ms. Watts testified that the Language-Based Program provides specialized, language-based instruction for all core academic subjects, including reading, writing, math, social studies and science.  She uses explicit, structured multi-sensory instruction throughout the curriculum, including daily OG lessons, typically in small groups.  Instruction is highly individualized and continually adjusted to meet each student’s needs in a particular area. For example if a student does not make adequate progress in small group reading, Ms. Watts provides one-to-one instruction. If a student requires a program such as LiPS for phonological awareness, such instruction would be provided, most likely by a speech/language therapist who with appropriate credentials. (Watts)

53. Students are instructed in the Language-Based Program classroom for four 45-minute sessions per day, totaling about three hours per day. The remaining time is spent in the general education setting for morning meeting/homeroom, specials (art, music, PE, technology, and a social/emotional learning program called Nexus), lunch, and recess.  Paraprofessionals may accompany students to specials to provide support if needed. (Watts)

54. During the period of the 2024-2025 school year when Ms. Watts taught the combined class, she was assisted by two paraprofessionals who moved in and out of the classroom as needed.  At times, paraprofessionals work with students individually, using materials assigned by Ms. Watts. She testified that the students all had language-based learning disabilities; at least one was diagnosed with double-deficit dyslexia, and none had significant emotional or behavioral concerns. (Watts)

55. Ms. Watts testified that she has not met or evaluated Student, but has reviewed Medford’s and Dr. Willoughby’s evaluation reports, and felt that Student would be “a good fit for [her] classroom, that a lot of her needs aligned with students in my room,”noting that programs recommended by Dr. Willoughby for Student such as OG, Framing Your Thoughts, and From Talking to Writing are all programs used in the Language-Based Program.  While the program typically delivers reading instruction in small groups of two or three students, if Student had needed one-to-one instruction, it would have been provided.  (Watts)

56. Mother observed the Language-Based Program on May 20 and 25, 2024, accompanied by Julie Santos, Coordinator of Special Education for the Brooks School. Mother testified that she had prepared for the observation by attending trainings about language-based methods and strategies, as well as by reading about the subject. (Mother)

57. At the time of Mother’s observation, there were three third-graders and one fourth-grader assigned to the room. At this time, the teacher was Ms. Capuccio, (the teacher who went on leave the following year).  On the first day of observation, Parent observed reading and math lessons. She observed that the teacher worked with two children while the paraprofessional worked with the others.  Mother testified that the teacher did not appear to be using language-based strategies for reading and math, such as assisting with decoding or providing manipulatives for math. Mother also observed the mainstream computer class, which she described as “chaotic.” She was concerned that Student would not have support in that class because such support was not contained in her IEP. (Mother)

On May 28, 2024, Mother observed science and ELA instruction. Mother testified that the science instruction began abruptly, with no preview of the upcoming material. She observed no visual supports for a writing lesson and further observed that children were attempting to type a writing assignment with no help with typing and no discussion of sound-symbol relationships Mother felt that given the structure of the class, there was no way that Student could have received more than about 20 minutes per day of individual reading instruction.  (Mother, P-35)

58. On January 31, 2025, Dr. Willoughby and Brittany Jones,[8] who is an educational consultant with Achieve New England, observed math, specialized reading, and ELA, in Ms. Watts’ classroom in the Language -Based Program as well as a general education technology class.  (Willoughby, Jones, P-2)

The report of the observation stated that the program used a variety of language-based approaches, that Ms. Watts had used a language-based writing program in the observed lesson, and that she had delivered an OG lesson “with fidelity.” Dr. Willoughby and Ms. Jones also stated that the program’s “dedicated space, small class size, and consultation with Landmark Outreach and the school’s speech/language pathologist are additional assets.”  (P-2)

Despite the program’s strengths, Dr. Willoughby and Ms. Jones opined that it would not meet Student’s needs. Ms. Jones testified that the math lesson would have been inaccessible to Student because of the complexity of language used in word problems. Dr. Willoughby shared these concerns. (Willoughby). Regarding specialized reading, Ms. Jones observed that the students in the small group of four were not homogeneously grouped, and were working on two different concepts at once, which would be very confusing for Student, given her double-deficit dyslexia and ADHD. She testified that the ELA class did not provide sufficient scaffolding and one-to-one support to meet Student’s needs. (Jones)

Their observation report concluded that the Brooks program would not provide Student with sufficient time or intensity of specialized reading instruction, that the reading demands across the curriculum would not provide adequate scaffolding, differentiation or embedded supports to assure access to grade level curriculum. Further, they concluded that the student cohort was inappropriate in that several students engaged in disruptive behavior such as calling out, which would be distracting for Student. (P-2)

59. Parents’ exhibits P-38 – P-43 consist of redacted IEPs for six peers (Peers A through F) who were enrolled in the Brooks program for the 2024-2025 and 2025-2026 school years. According to the IEPs, each student had average cognitive ability and specific learning disabilities affecting reading, writing, and math. While each of the IEPs contained social-emotional goals, these goals were to address issues such as confidence, problem-solving, communication, and anxiety; none of the IEPs indicated problems with disruptive behavior. Each IEP contained goals in reading, written expression and math, and most contained goals in phonemic awareness, decoding and encoding. (P-38)

60. Mother had observed one child who worked exclusively with a paraprofessional during her observation, and who engaged in some disruptive behavior; however, according to Ms. Watts, this student was in the classroom temporarily, for an extended evaluation, and was not permanently placed in the Language Based Program. (Watts)

61. Student has attended the Landmark School for third grade (2024-2025) and is currently attending Landmark as a fourth grader (2025-2026) pursuant to Parents’ unilateral placement.  Parents seek reimbursement for the cost of the 2024-2025 school year.

62. The Landmark School is a DESE-approved private special education day and residential school.  Landmark serves approximately 490 students in grades 2 through 12 on two campuses: elementary and middle school, and high school.  During 2024-2025, 174 of Landmark’s students were enrolled in the elementary and middle school, approximately 51 of whom were in elementary school.  (Sebens)

Landmark serves students who are diagnosed with language-based learning disabilities, including dyslexia and dysgraphia, which affect all aspects of literacy, including reading and writing. To be accepted by Landmark, students must have at least average cognitive ability. While students may have executive functioning weaknesses, ADHD, and/or anxiety in addition to their language-based learning disabilities, Landmark does not serve students carrying diagnoses of autism spectrum disorders or social-emotional disorders that result in externalizing behaviors. (Sebens)

Instruction at Landmark is language-based, and uses systematic, multi-sensory, multi-modal, research-based methodologies to address student needs in reading, writing, listening, speaking and math. Among the programs used by Landmark is the Lindamood-Bell Phoneme Sequencing Program (LiPS), which addresses phonemic awareness, which is one of the foundations of Landmark programming. All teachers undergo intensive initial and ongoing training in Landmark methodologies. (Sebens)

Students are grouped homogeneously by skill level in classes of no more than eight, taught by a special education teacher. Additionally, most students, including Student, receive an individual reading and language arts tutorial daily or every other day. (Sebens) Landmark does not provide individual speech or occupational therapy, but employs a speech/language therapist who consults with teachers and tutors. (Babcock, Ellis)

Landmark adheres to the Massachusetts curriculum frameworks. For publicly funded students, Landmark staff attend Team meetings, develop IEP goals and objectives, and generate progress reports.  For privately-funded students, Landmark also develops learning plans with goals and objectives, and monitors and reports on progress. (Sebens, Babcock, P-19 –24)

63. Student’s individual tutoring has focused on phonemic awareness using LiPS. She has been learning to track and manipulate sounds, orally, and to map sounds onto words for reading and spelling. (Sebens, Babcock)

64. Student reportedly has made progress in her areas of need at Landmark.  Parents and others observed that she has become much happier and more confident about school and her own abilities, and her anxiety symptoms have greatly lessened or disappeared. (Parents, Babcock, P-19—24)  

DISCUSSION

Legal Framework

FAPE Standard

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

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

Finally,eligible children must be educated in the least restrictive environment (LRE) consistent with an appropriate program; that is, students should be placed in more restrictive environments, such as private day or residential schools, only when the nature or severity of the child’s disability is such that the child cannot receive FAPE in a less restrictive setting.  On the other hand, “the desirability of mainstreaming must be weighed in concert with the Act’s mandate for educational improvement.”  C.D. v. Natick, 18-1794 at 5-6, quoting Roland M. v. Concord School Committee, 910 F.2d 983 (1st Cir. 1990).   Opportunities for mainstreaming will not cure an otherwise inappropriate program.  Id.

Unilateral Placement

The IDEA allows parents to seek reimbursement from a school district for the costs of a unilateral placement made in response to the district’s failure to make a timely offer of an appropriate IEP.  20 USC §1412(C)(a)(ii); School Committee of Burlington, Mass. v. Mass. Department of Education, 471 U.S. 359, 373-374 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S.7, 11(1993).  To prevail at a due process hearing on a reimbursement claim, a parent first must prove that the IEP that was proposed at the time of the unilateral placement was not reasonably calculated to provide the child with a FAPE, taking into account the information available to the Team at the time the IEP was developed.  Roland M. v. Concord School Committee, 910 F.2d 983, 992 (1990); Doe v. Newton Public Schools, 48 F.4^th 42, 56 (D. Mass. 2022).  If the parents prove that the proffered IEP was not appropriate, they may be entitled to reimbursement if they can demonstrate that their chosen placement was appropriate.  Parents’ chosen placement need not meet state standards for special education schools for the parents to qualify for reimbursement, provided that the school chosen by the parents is “otherwise proper” under the IDEA, Florence County District Four, supra, at 14 (1993), that is, “appropriately responsive to [the child’s] special needs.” Matthew J. v. Massachusetts Department of Education, et al., 988 F. Supp. 380, 391 (1998).

The principles governing reimbursement for unilateral school placements are also applicable to situations where parents seek reimbursement for privately-obtained related services.  In such cases, parents must first prove that the school district’s omission of such services constituted a denial of FAPE.  If that threshold is met, the parents must then show that the private services were appropriate. 

Transportation for Private School Students 

In Massachusetts, transportation for special education students is governed by 603 CMR 28.05(a)(2), which states in relevant part:

(5) The Team shall determine whether the student requires transportation because of his or her disability in order to benefit from special education.

(a) Regular Transportation. If the student does not require transportation as a result of his or her disability, then transportation shall be provided in the same manner as it would be provided for a student without disabilities. …[I]f the school district provides transportation to similarly situated students without disabilities, the eligible student shall also receive transportation.

       (1)  …

(2) If regular transportation is noted on the student’s IEP and the student is enrolled by his or her parents in a private school and receiving services under 603 CMR 28.03(1)(e), such student is not entitled to transportation services unless the school district provides transportation to students without disabilities attending such private school.  

Federal regulations are somewhat different, however, stating the following at 34 CFR §130.139(b):

Transportation —

(1) General.

(i) If necessary for the child to benefit from or participate in the services provided under this part, a parentally-placed private school child with a disability must be provided transportation—

(A) From the child’s school or the child’s home to a site other than the private school; and

(B) From the service site to the private school, or to the child’s home, depending on the timing of the services.

(ii) LEAs are not required to provide transportation from the child’s home to the private school.

(2) Cost of transportation. The cost of the transportation described in paragraph (b)(1)(i) of this section may be included in calculating whether the LEA has met the requirement of §300.133 [governing calculation of proportionate share of federal funding for parentally-placed private school students.]

Two BSEA decisions address the issue here presented. The earlier decision, In Re Weymouth Public Schools, BSEA No. 11-2663 (Crane, 2011), involved a child attending a private preschool with an IEP calling for speech therapy at a local public school. The child’s disability did not, per se, require specialized transportation, but the child could not access her IEP services without such transportation.  The Hearing Officer in the Weymouth case determined that the child was entitled to transportation, relying on the above-cited Federal regulation, because the transportation was necessary to enable the child to benefit from the speech therapy services.

The second, more recent decision is In Re: Pembroke Public Schools, BSEA No. 2510070 (Putney-Yaceshyn, 2025). In the Pembroke case, the Hearing Officer determined that state regulations governed, such that a private school student was not entitled to transportation between her private school and public school services, but noted that the analysis was limited to the unique facts of that case, in which the private school was located a district other than the child’s residence, where services were made available.

DESE has attempted to reconcile the overlapping Federal and state responsibilities for special education services to private school students in Administrative Advisory SPED 2018-1: Guidance and Workbook for Calculating and Providing Proportionate Share Services for Students with Disabilities Enrolled by Their Parents in Private Schools. This document explains how public school districts are required to expend Federal “proportionate share” funds on behalf of parentally placed private school students. With respect to transportation, the Advisory states that districts determine how to allocate such Federal funds after consultation with private schools and others, “may provide transportation,” but does not address the apparent contradiction between Federal and state regulations.

Burden of Proof

In a due process proceeding to determine whether a school district has offered or provided FAPE to an eligible child, the burden of proof is on the party seeking to challenge the status quo.  In the instant case, as the moving party challenging the placement offered by Medford, Parents bear this burden.  Schaffer v. Weast, 546 US 49 (2005) As such, to prevail, Parents must demonstrate, by a preponderance of the evidence, that the program proposed by Medford was not appropriate, and that their chosen placement for Student was appropriate. Lastly, Parents must prove that they are entitled to reimbursement for certain related services.

Analysis

Parents Have Not Met Their Burden With Respect to Unilateral Placement

Based on my review of the record, I conclude that the IEP and services, including placement, covering the 2024-2025 school year were reasonably calculated to provide Student with FAPE, and that Parents have not met their burden to prove otherwise. My reasoning follows.

The parties substantially agree on Student’s profile as an intelligent, creative, polite, friendly, hard-working child who has excellent conversational and social skills and no significant emotional or behavioral challenges. The parties also agree that Student presents with significant language-based learning disabilities, including “double-deficit” dyslexia, as well as ADHD, articulation difficulties, and executive functioning weaknesses.  As a result, Student’s academic skills and performance, especially in the literacy domain, fall far below what would be expected in light of her cognitive abilities and grade level.

The parties further agree, and the record shows,  that to make effective progress, Student needs a highly specialized, substantially separate, language-based program that infuses language-based methodologies as well as executive functioning strategies throughout the curriculum, that includes daily or near-daily individual or very small group,[10]  specialized literacy instruction with a special education teacher experienced in using structured, sequential, evidence-based methodologies. Student needs to be grouped with compatible peers, i.e., with students who have similar struggles with reading, writing, and/or math, but who have at least average cognitive abilities and who do not present with primary behavioral disabilities.   

The only significant dispute between the parties is whether Medford’s proposed placement in the Language-Based Program at the Brooks School could have met Student’s needs as described above during the 2024-2025 school year, or, if not, whether Parents’ chosen placement at Landmark was appropriate.

The record shows that Student’s struggles with reading and writing emerged as early as Kindergarten in her private Montessori school and intensified during her first and second grade years at St. Raphael’s.  Student received discrete services at various times while she attended St. Raphaels, including Title I reading intervention and some Wilson reading at St. Raphael’s, private on-line tutoring funded by Parents, as well as private speech/language therapy and private reading tutoring from CLC, both of which were obtained by Parents, who were then reimbursed by Medford.

The parties agree, and the record shows, however, that despite these services and interventions, Student continued to struggle throughout first and second grade. In March 2024, after reviewing the neuropsychological report by Dr.Willoughby, Medford issued an IEP that incorporated many of his recommendations, including daily specialized instruction in reading and written expression, and placement in a substantially-separate, language-based program for all core academic subjects.   

The record shows that the Language-Based Program is well-established, having been in existence for at least 12 years. (Watts). The record further shows that the program is designed and equipped to provide the explicit, systematic instruction in reading, written expression, and math, and to employ language-based strategies in other core academic subjects, as recommended by Dr. Willoughby and supported by evaluations performed by the District. 

Ms. Watts, who would have been Student’s teacher during the 2024-2025 school year has appropriate credentials to deliver the recommended instruction. Ms. Watts testified credibly that although she had not met or evaluated Student, based on her review of Student’s records, as well as her experience (which includes teaching students with “double-deficit” dyslexia), she believed that Student would have been a “good fit” for her classroom, and that Student’s profile and instructional needs aligned with other students in the class. 

Parents’ objection to the Medford placement is based, in part on Mother’s concerns arising from her observation of one of the classrooms in the Brooks program in May 2024. Based on her observations, for which she had prepared by studying the elements of language-based instruction, Mother concluded that language-based strategies were not being employed consistently. She also expressed concern about the “chaotic” mainstream computer class, where she believed Student would not have support. I note that the language-based classroom that Parent observed was not the classroom in which Student would have been placed for 2024-2025. As such, I give her testimony on this issue less weight than if she had been able to observe the class in which Student actually would have been placed. 

The observations of Dr.Willoughby and Ms. Jones occurred after Student had already enrolled in Landmark, and so does not form a basis for assessing Parents’ reasonableness in placing Student there; however, because Dr.Willoughby and Ms. Jones observed Ms. Watts’ classroom, where Student would have been placed for 2024-2025, their observation provides somewhat of a counterweight to Mother’s observation.  Dr. Willoughby and Ms. Jones found the program to have many strengths, including that the teacher was using language-based strategies to deliver instruction and taught an OG lesson “with fidelity.” Dr. Willoughby’s and Ms. Jones’ main concern with Medford’s proposed placement was that it would not have provided Student with sufficiently intensive one-to-one reading instruction. Ms. Watts testified credibly, however, that such instruction would be provided to Student if needed.  

Lastly, Parents argue that the peers who would have been Student’s classmates during 2024-2025, would have been inappropriate.  Based on redacted peer IEPS, Parents assert that all of the children had social/emotional goals on their IEPs, that one student required physical therapy, that another had “low average intelligence,” and that one had an emotional disability, that one or more had been diagnosed with a “developmental delay,” and that as such, these children would have been inappropriate peers for Student. 

After reviewing the redacted IEPs at issue, I conclude that this argument lacks foundation.  With the exception of one peer who scored “low average” on the WISC-V, all of the proposed peers had at least “average” cognitive ability.  Each had a language-based learning disability requiring systematic, explicit specialized instruction in decoding/encoding and other aspects of reading and written expression, and their IEP goals reflected these needs, and were mostly similar to Student’s IEP goals. The counseling goals addressed issues such as confidence, problem-solving, and anxiety; there is no evidence that any of the proposed peers demonstrated “externalizing” social, emotional, or behavioral issues. The record does not support a conclusion that the peer cohort would have been inappropriate or would have prevented Student from benefiting from placement in Medford’s program.

Because Parents have not met the threshold of proving that Medford’s proposed placement would have been inappropriate, I do not reach the question of the appropriateness of Landmark. Parents clearly believe that Landmark is better suited to meeting Student’s needs than the Brooks program; however, they are not entitled to public funding for Landmark when they have not demonstrated inappropriateness of the District’s proposed placement.

The IEPs at Issue Were Appropriate

Parents allege that the IEP dated 3/28/23 to 3/27/24, as revised in December 2023, and the IEP dated 4/30/24 to 4/29/25, as revised in October 2024, failed to offer Student a FAPE, for a variety of reasons, including goals that not appropriately ambitious, failure to provide transportation, failure to provide ESY services, and failure to provide an appropriate placement.  Parents have not established that the IEPs were inappropriate when drafted.

Medford’s IEP covering 3/28/23 to 3/29/24 was based on its evaluations and established goals, benchmarks, and services that reflected Medford’s understanding of Student’s needs at the time she was evaluated.  When the lack of transportation impeded Student’s access to services, Medford amended the IEP in December 2023 to add transportation, as well as to increase reading services. When transportation for reading services proved impractical, Medford agreed to fund the CLC tutor selected by Parents, as well as the private speech/language therapist retained by Parents. No evidence in the record documents that Student experienced regression in skills over breaks; as such, Parents have not demonstrated that ESY services were necessary for FAPE.

The IEP covering 4/30/24 to 4/29/25 was similarly appropriate.  This IEP incorporated many of the findings and recommendations of Dr. Willoughby, including the recommendation for placement in a substantially-separate language-based program. The evidence in the record does not support a finding that the goals, benchmarks, services or placement were inappropriate, or that Student’s skills would regress without ESY services.

The 4/30/24 to 4/29/25 was amended to remove speech/language services, and Parents  rejected such removal.  Parents have not met their burden to show that removal of this service would deny Student a FAPE. Student’s speech/language goals addressed articulation. Medford’s speech/language therapist, Joanna Granada, evaluated Student in September 2024, and found that her articulation issues had greatly improved, that Student was fully intelligible, and that any remaining articulation issues did not interfere with Student’s reading or writing. While Parents were concerned that speech/language therapy continued to be necessary to support phonemic awareness and phonological processing, they presented no evidence to counter the District’s position that these issues would be addressed in the context of the proposed specialized reading program.

Parental disagreement with portions of an IEP does not render the IEP inappropriate.  Lessard v. Wilton Lyndeborough Cooperative School District, 518 F.3d 18 (1^st Cir., 2008). While Parents are entitled to meaningful participation in the Team process, and to have their contributions considered, the District is ultimately responsible for proposing an IEP that it deems reasonably calculated to provide Student with FAPE, whether or not Parents are in agreement.  In Re: Natick Public Schools, BSEA NO. 11-3131 (Crane, 2011), cited in In Re: Acton-Boxboro RSD, BSEA No. 2509385 (Kantor-Nir, 2025), and cases cited therein.

Parents are Not Entitled to Additional Reimbursement But Are Entitled to  Compensatory Services Corresponding to Reading Services Missed Due to Lack of Transportation.

Parents and Medford agreed that Medford would fund certain services while Student was attending St. Raphael’s, specifically, speech/language services from Lauren Unflat-Barry and reading services from Commonwealth Learning Center.  There appears to be no dispute that Medford made the agreed payments in full.  Parents also requested reimbursement for reading, OT, and speech/language services during the summer of 2024. As stated above, Parents have not met their burden of demonstrating that ESY services were necessary to provide FAPE during that summer; as such, Parents are not entitled to reimbursement for privately-obtained services.

Lastly, Parents seek compensatory services corresponding to a period of time during the beginning of the 2023-2024 school year when Student was unable to access reading services at St. Raphael’s due to lack of transportation from Medford. While it is not at all clear whether Federal or state regulations apply, I am persuaded that the facts in the instant case are distinguishable from those in Pembroke because here, Student’s private school is located in Medford, her district of residence.  I also note that no evidence was presented suggesting that Medford did not have proportionate share funds available for transportation. I am persuaded, therefore, by the reasoning in Weymouth, that Student would have been entitled to transportation if necessary to enable her to receive her IEP services.  

CONCLUSION AND ORDER

Based on the record and the well-reasoned arguments of counsel, I conclude that Parents have not met their burden of persuasion on any of their claims with the exception of claims for compensatory service for sessions of reading missed due to lack of transportation. Therefore, within 30 days from the date of this Decision, Medford is directed to convene a Team meeting to determine the amount and type of compensatory service to be offered to Student.

Parents are knowledgeable and diligent advocates for their daughter, and understandably seek an educational setting for her that seems to best meet her needs.  Clearly, they believe that Landmark constitutes such a setting, and Student appears to be thriving there. To secure public funding for this placement, however, Parents must prove that Medford’s proposed Language-Based Program was not reasonably calculated to provide Student with FAPE, and they have not met this burden.            

By the Hearing Officer,

/s/ Sara Berman 

Sara Berman

Dated:  January 21, 2025

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF FINAL BSEA ACTIONS AND RIGHTS OF APPEAL

Effect of BSEA Decision, Dismisssal with Prejudice, and Allowance of a Motion for Summary Judgment

20 USC §1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review.  Similarly, a Ruling Dismissing a Matter with Prejudice and a Ruling Allowing a Motion for Summary Judgment are final agency actions.  If a ruling orders Dismissal With Prejudice of some, but not all claims, or if a ruling orders Summary Judgment with respect to some, but not all claims, the ruling of Dismissal with Prejudice or Summary Judgment is final with respect to those claims only.

Accordingly, the Bureau cannot permit motions to reconsider or to re-open either a Bureau decision or the Rulings set forth above once they have issued.  They are final subject only to judicial (court) review. 

Except as set forth below, the final decision of the Bureau must be implemented immediately.  Pursuant to M.G.L. c. 30A, §14(3), appeal of a decision does not operate as a stay.  This means that the decision must be implemented immediately even if the other party files an appeal in court, and implementation cannot be delayed while the appeal is being decided.  Rather, a party seeking to stay—that is delay implementation of—the decision of the Bureau must request and obtain such stay from the court having jurisdiction over the party’s appeal. 

Under the provisions of 20 USC §1415(j), “unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” while a judicial appeal of the Bureau decision is pending, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents th child shall be placed in the public school program.” 

Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau.  School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985).  Otherwise, a party seeking to change the child’s placement while judicial proceedings are pending must ask the court having jurisdiction over the appeal to grant a preliminary injunction ordering such a change in placement.  Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2 910 (1^st Cir. 1983). 

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appels contending that the decision is not being implemented and setting out the areas of non-compliance.  The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy.  Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referring the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action.  603 CMR 28.08(6)(b). 

Rights of Appeal

Any party aggrieved by a final agency action by the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts for review.  20 USC §1415(i)(2). 

Confidentiality

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

Record of the Hearing

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

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[1] Prior to the hearing, Parents executed a written waiver of certain privacy rights on behalf of themselves and Student.  Parents affirmed, on the record, that they had consulted with counsel prior to signing the waiver, and that they fully understood its terms. 

[2] The Title I reading teacher at St. Raphael’s, Ms. Hardy, was paid by Medford, through “proportionate share” funding. Medford also had used such funding to pay for Ms. Hardy’s certification in Wilson Reading, (Bradley)

[3] Wechsler Preschool and Primary Scale of Intellgence

[4] Kathleen Bradley testified that parents of children in private school generally were responsible for transporting children between the private school and public school site for services, usually before or after school.  Because Student’s disability did not require specialized transportation, Medford reasoned that she was not entitled to transportation between the Roberts School and St. Raphael’s. (Bradley)

[5] Ms. Bradley testified the proposed Roberts School reading instruction met mid-day, which would require Student to be transported 10 to 15 minutes each way between the Roberts School and St. Raphaels. She proposed 1:1 tutoring to avoid this disruption to Student’s school day. (Bradley)

[6] Parents also funded CLC services during the summers of 2024 and 2025.

[7] Dr. Willoughby is a licensed psychologist and pediatric clinical neuropsychologist. He testified that over 23 years in practice, he has conducted approximately 3000 neuropsychological assessments and supervised an a]dditional 2000.  (Willoughby)

[8] Ms. Jones holds Master’s degrees in elementary education and special education, moderate disabilities, and is licensed as a reading specialist, school psychologist, and teacher of English as a second language.

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

[10] Parents believe that Student requires individual instruction. Medford takes the position that based on its experience with children having profiles similar to Student, she might do well with small group instruction, but that the Brooks program could provide her with individual reading instruction if needed. (Watts)