In Re:  Student v. West Bridgewater Public Schools BSEA No. 24-03805

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re:  Student v. West Bridgewater Public Schools 

BSEA No. 24-03805

DECISION

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

Student is a twelve-year-old rising seventh-grader with disabilities.  At the time of the hearing, Student was enrolled in an inclusion program in his neighborhood elementary school in West Bridgewater, MA, pursuant to an Individual Education Program (IEP) issued by the West Bridgewater Public Schools (West Bridgewater, District or School).   

On October 19, 2023, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA) in which they alleged that West Bridgewater had failed to provide Student with a free, appropriate public education (FAPE) for the previous two years, and also had failed to issue an appropriate IEP for the 2023-2024 school year.  Parents sought an order directing Bridgewater to place Student in an out-of-district program specializing in education of students with language-based learning disabilities, as well as compensatory services.   

Upon receipt of Parents’ hearing request, the BSEA scheduled an initial hearing date of November 24, 2023.  The parties waived the resolution meeting.  A pre-hearing conference was held on November 21, 2023.  After several joint requests for postponement, which were granted for good cause, the hearing took place on May 7, 8, and 9, 2024, via Zoom videoconference.  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.  At the request of both parties, the hearing was further postponed to June 18, 2024, for submission of written closing arguments, on which date the record closed. 

The record in this case consists of Parents’ Exhibits P-1 through P-9, School’s Exhibits S-1 through S-82 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

Kathy Marble                                  Director of Student Services, W. Bridgewater

Dr. Diane Stephens                    Evaluator for Parents

Amy Winter                                      Fourth Grade Teacher, W. Bridgewater

Melissa Wenzel                             Sixth Grade Science Teacher, W. Bridgewater

Kylee McLaughlin                       Math Teacher, W. Bridgewater

David  Peckrill                                Sixth Grade English Teacher, W. Bridgewater

Kristi Lehane                                  Learning Center Teacher, W. Bridgewater

Richard Leeman                          Elementary Principal, West Bridgewater

Alexandra Shoff                           Speech/Language Therapist, W. Bridgewater

Brittany Elliott                                Psychologist, W. Bridgewater

Dr. Barry Plummer                      Consultant for W. Bridgewater

Susan Fagan                                  Attorney for Parents and Student

Kelly Gonzalez                               Attorney for West Bridgewater Public Schools

Kathleen Burns                             Attorney for West Bridgewater Public Schools

Sara Berman                                  BSEA Hearing Officer

Roberta Ebhert                              Guardian,[1] Readback Active Reporting

Daniel Kramer                               Guardian, Readback Active Reporting

Ellen Muir                                         Sr. Guardian, Readback Active Reporting

ISSUES PRESENTED

The issues to be decided are the following:

1. Whether the IEP and services proposed or provided for Student during the period from October 19, 2021, to the present were reasonably calculated to provide student with FAPE, and, if not, whether, prospectively, the IEP and/or services can be modified to provide a FAPE;

2. If not, whether Student requires an out-of-district, specialized, comprehensive, language-based program with like peers to receive a FAPE;

3. Whether Student is entitled to compensatory services. 

 POSITION OF PARENTS    

Student has not received a FAPE from West Bridgewater Public Schools from October 2019 to the time of the hearing.  Further, the District has failed to consistently implement Student’s IEPs during this period. 

More specifically, Student’s reading skills, and, especially, his reading comprehension skills, are well below grade level.  He continues to struggle with reading comprehension despite years of services and supports.  There is a significant discrepancy between the School’s view of Student as a happy and sociable member of his school community and Parents’ perception that, because of his weak social skills, associated with his Autism Spectrum Disorder (ASD), Student is isolated, marginalized, and vulnerable to bullying.  Parents have lost much of their trust in the District, which has repeatedly assured them that Student has been progressing and doing well; however, based on outside evaluations, Parents have come to believe they were misled, and that Student is not making effective academic or social progress. 

Student requires more intensive academic and social support than the District has provided or is able to provide. Parents’ evaluators have opined that to receive a FAPE, Student requires a specialized placement serving children with entrenched language-based learning disabilities and social challenges. Such placement is particularly important in light of the increasing academic demands that Student will be facing in the coming school years.   

POSITION OF SCHOOL

Contrary to Parents’ claims, throughout the time period at issue, Student has made effective progress commensurate with his abilities in the least restrictive environment of his neighborhood school.  At all relevant times, the District has developed IEPs and provided services that are specifically tailored to Student’s unique needs as articulated in both school-based and outside evaluations, and which have been modified to reflect changes in these needs over time, as well as Parents’ concerns.  In particular, the School has recently begun providing specialized services targeting Student’s weaknesses in reading comprehension and plans to continue such services during the 2024-2025 school year.   

Parents’ concerns about Student’s peer relationships and social functioning are unfounded.  Within the school environment, Student has been an active participant in social interactions, has formed genuine relationships with peers, and is a valued member of his school community.

Lastly, all IEPs issued or in effect during the relevant time period were either fully accepted and expired, or partially accepted, and all such IEPs or accepted portions thereof were fully implemented.  As such, Parents are not entitled to compensatory services.  As of the hearing dates, Parents had not yet responded to the most recently-proposed IEP, but that IEP is appropriate. 

SUMMARY OF THE EVIDENCE

Student Profile

1. Student is a 12-year-old child with disabilities who is a resident of West Bridgewater.  Student’s eligibility for special education and related services from the West Bridgewater Public Schools pursuant to the IDEA and MGL c. 71B is not in dispute.  At the time of the hearing, Student was a sixth-grader in the District’s upper elementary school, which serves grades 4 through 6. 
2. Student is described by School witnesses as a happy, kind, hard-working young boy with a good sense of humor.  (Lehane).  He has many interests including cars, art, music, and trading cards.  He wants to fit in with his peers and does not like interventions that suggest he needs more help than others or which make him feel singled out. (S-18)  According to School witnesses, Student is well-liked by peers, has a core group of friends in school, and is an active and valued member of his school community.  (Lehane, Elliot, Leeman).  Parents, on the other hand, perceive that Student does not have any solid friendships, at least partially because he presents as younger than his age and has weak social skills.  (Mother) 
3. The parties do not dispute that Student has a complex disability profile.  Although Student’s cognitive abilities fall within the average range, he has received diagnoses of ASD, as well as a language-based learning disability/specific learning disorder with impairment in reading. (P-1, P-2).  Student’s constellation of disabilities affects his academic performance, social interactions and executive functioning, and, historically, has caused him to display impulsivity, reactivity, and difficulty with attention. (P-1, P-2, S-8)   

Chronology Prior to the 2022-2023 School Year (Prior to Fifth Grade)

4. Student received a diagnosis of ASD when he was between two and three years old after Parents noted that he was not meeting developmental milestones at the expected ages, and was displaying concerning behaviors, including “melting down” with certain stressors, and some instances of aggression to peers when upset.  (Mother)  Parents obtained Early Intervention and private services for Student during his toddler and preschool years, including Occupational Therapy (OT), speech/language therapy, and ABA services. (Mother, Father) 
   
   Upon reaching his third birthday, during the 2014-2015 school year, Student entered the West Bridgewater Public Schools as a pre-Kindergarten (PK) student with an IEP, and Student has received services pursuant to successive IEPs throughout his school career. His primary eligibility category has been autism, and IEP goals have targeted social and communication skills and reading comprehension.  To address identified IEP goals, Student has been educated in a full inclusion setting, i.e., placement in general education classrooms that may have been co-taught, along with pullout and push-in services, including speech-language and occupational therapy, and academic and behavioral support, and specialized instruction and/or support in goal areas within the Learning Center.  Prior to issuance of the April 2023-April 2024 IEP, Parents fully accepted all IEPs and placements. 
   
   Throughout most of Student’s elementary school years, Parents have supplemented school-based services with private, in-home ABA services and, at times, private speech/language therapy. (S-1-S-5, Mother, Father). 
5. In May and June 2021, when Student was in third grade, the District conducted a three-year re-evaluation consisting of psychological, educational, and speech-language assessments.  (S-19—S-21) Test results demonstrated that Student’s overall intellectual functioning was in the “average” range, with a relative weakness in processing speed, which was “low average.”  Academic skills, measured via the Wechsler Individual Achievement Test IV (WIAT IV), were “average” or “low average” in most categories, with weaknesses in inferential reading comprehension and math fluency.  The speech/language assessment indicated overall “below-average” skills in expressive and receptive language, pragmatic/social, and metalinguistic skills. 
6. On September 30, 2021, after a Team meeting to review the above-referenced re-evaluation, West Bridgewater issued an IEP covering the period from February 2021 to February 2022.[2] This IEP included goals in Communication (addressing pragmatic social/conversational skills and comprehension), Comprehension (for reading comprehension), and School Behavior (for task initiation and persistence as well as for minor behaviors such as leaving his seat or making random comments). As with prior IEPs, this IEP proposed a full inclusion placement with services including consultation, inclusion support, and pullout social skills group, speech-language therapy and ELA support, including approximately three class periods per week in the school Learning Center with a special education teacher.  The IEP also included Extended School Year (ESY) services for summer 2021.  The statement of “Parent and/or Student Concerns” reported that Parents sought “verbatim” implementation of the IEP, as well as consistent communication with Parents and monitoring of Student’s progress in his areas of need, including independence, comprehension, social interactions in structured and unstructured settings, and off-task behavior.  (S-5)
   
   Parents accepted this IEP and placement in full and did not revoke their acceptance at any time.  Progress reports, report cards, and reports of communications with Parents during the 2021-2022 school year reflect that the IEP was fully implemented, as does the testimony of Student’s fourth grade classroom teacher and special education teacher. (Winter, Lehane, S-36-39, S-65, S-69,).   
7. For the 2021-2022 school year, Student attended fourth grade in a full inclusion classroom, supported by the Grid B and Grid C services and accommodations set forth in the above-referenced, accepted IEP.
8. Midway through the fourth-grade year, the Team referred Student for a functional behavioral assessment (FBA) both to obtain updated data (the previous FBA was conducted in 2017) and to address occasional challenging behaviors including impulsive comments, mouthing of objects, and wandering, as well as off-task behavior.  The FBA, completed in January 2022, revealed that the primary function of these behaviors was “avoidance and task escape,” with secondary functions of “sensory” and “high gratification.”  Recommendations included clear expectations, preparation for unstructured situations, assistance with problem solving with peers and perspective-taking, previewing of changes in routine, positive reinforcement for staying on task, alternate behaviors for mouthing, and other, similar supports.  (S-18)   
9. In February 2022, after an annual review meeting, the Team issued an IEP covering March 2022 to March 2023, corresponding to the last quarter of fourth grade (2021-2022) and the first three quarters of fifth grade (2022-2023).  This IEP, like its predecessor, contained goals in Communication, Comprehension, and School Behavior, provided services and accommodations addressing these areas of need, and provided for a full inclusion placement with push-in and pull-out services. (S-4)  Parents accepted this IEP and placement in full on May 10, 2023.  As with the prior IEP, Parents never revoked their acceptance of the IEP, and progress reports, report cards, and communications with Parents reflected that the IEP was fully implemented.  (Mother, Elliott, Lehane, S-29-36). 

Fifth Grade and the April 2023-2024 IEP

10. Student began fifth grade in or about August or September of 2022.  During that year, Parents began expressing concerns about Student’s progress, particularly in the area of reading comprehension, where they felt that the gap between Student’s performance and that of his peers was widening. [3] (Mother, Father) 
11. Parents also had ongoing concerns about Student’s social functioning.  Mother testified that Student was rarely, if ever, invited to birthday parties or playdates, and generally would not initiate contact with peers. In general, Parents began to question the School’s reports that Student was “doing fine” academically or, especially, socially, because they noted a discrepancy between Student’s presentation at home and the School’s description of him as highly social.  They also believed that Student had experienced incidents of bullying or harassment, and that the School had failed to inform them and/or adequately address the incidents.  Parents were particularly concerned about what they felt was incomplete or untimely communication from the School because, as Father testified, Student would only give them bits of information over time, and they needed to rely on the School for an accurate report about these issues.  (Mother, Father)
12. In response to Parents’ concerns, the District decided to conduct Student’s triennial re-evaluation between February and April 2023, during fifth grade, which was one year earlier than required.  (Marble, S-11, S-63) This re-evaluation consisted of psychological, academic achievement, and speech/language assessments, as well as an OT screening and observation of Student in unstructured settings.  (Marble, S-11-S-17) 
13. The psychological assessment was conducted by Brittany Elliott, a Licensed School Psychologist, and consisted of review of records, behavioral observations, and administration of the WISC-V and two rating scales: the Behavior Assessment System for Children, 3^rd Edition (BASC-3) and the Behavior Rating Inventory of Executive Function, 2^nd Edition (BRIEF-2). 
    
    During the classroom observation, Student had followed instructions, completed the assigned task, and attentively participated in a small group discussion of a book.  On the WISC-V, Student’s index scores were all solidly “average.”  Responses to the BASC-3 rating scale indicated many areas to be “at risk,” or “clinically significant,” including but not limited to areas related to emotional regulation, anxiety and depression, atypicality, and organization.  Responses to the BRIEF-2 similarly indicated Student’s difficulty with emotional and cognitive regulation, organization, and transitions.  Recommendations included providing accommodations and teaching Student strategies to support emotional regulation, develop social skills and improve executive functioning.  (S-16)

14. The academic achievement evaluation, conducted by Kristi Lehane, Student’s special education teacher, included standardized testing with the WIAT-4 and the Gray Oral Reading Test-5 (GORT-5) On the WIAT-4, Student earned scores in the “average” or “low average” range on all subtests except for Reading Comprehension, where his score was “very low,” with a standard score of 74, in the 4^th percentile.  On the GORT-5, Student achieved “average” scores for his reading rate, fluency, and accuracy, but a score of “poor” for reading comprehension.  The evaluation report stated that “while he was reading some of the more complex texts very well, he did not understand the content of the story.  For example, after reading about Harriet Tubman and the Underground Railroad, he answered that when she was a young girl she wanted to learn to drive.”  (S-14) Recommendations included use of strategies such as graphic organizers and story maps, explicit teaching of new vocabulary, and periodically checking for understanding.  (S-14)
15. The OT screening consisted of observation of Student in a variety of settings.  Student engaged “sensory self-stimulatory behaviors including scripting, visual distraction (looking around the room to notice all the details), the need for movement, and tactile stimulation (the need to touch objects within his environment.)”  The evaluator also found, however, that Student was “pleasant and energetic,” and “observant, kind, and hardworking…” and that the behaviors referenced above helped Student to self-regulate.  The evaluator recommended accommodations such as movement breaks, allowing him to script when he would not miss instruction by doing so, providing items such as fidgets and a weighted lap pad. (S-17). 
16. On April 25, 2023, after a Team meeting to discuss the re-evaluation results, West Bridgewater issued an IEP covering April 2023-April 2024 with goals in Comprehension, School Behavior, Communication, and “Social.” The Team agreed that comprehension had become Student’s primary area of need.  (S-3)
17. The Comprehension goal stated, under “Current Performance Level,” that Student was “able to read [grade level text] fluently and with high accuracy, but he is comprehending the text at a 2^nd grade level.”  His accuracy rate when answering questions about text increased from 60% to 75% with the help of supports such as graphic organizers, story maps, and discussion.  He could independently answer inferential comprehension questions with 50% accuracy. The School planned to have Student “draw a picture of what he is reading” to aid comprehension, and collect “baseline data…on this”  Some benchmarks/objectives associated with this goal included answering inferential questions about grade-level text, with visual supports, completion of graphic organizers identifying various components of a text, and drawing pictures depicting the content of text.  (S-3)
18. The School Behavior goal reported that currently, Student was a “social butterfly” who loved being with peers in the classroom, sometimes impulsively blurted out comments, and was easily distracted; however, was able to remain on task and maintain expected behavior most of the time. The goal called for Student to increase his independence and further decrease disruptive behavior, and benchmarks included learning to explain how others might feel about him and how to modify his words, actions and body language.  (S-3)
19. The Communication goal was for Student to improve his skills in inferential reasoning, understanding non-literal language, and in using comprehension strategies such as visualizing within small groups.  (S-3)
20. The Social goal was for Student to improve his ability to problem-solve with peers, to take the perspective of others, and to “read the room.”  (S-3)
21. The service delivery grid provided, in Grid A: consultation among general and special education teachers and related service providers; in Grid B: support within the general education classroom for all goals from the general and special education teacher and/or aide, behavior technician, and school psychologist, and, in Grid C: specialized instruction in reading comprehension from the special education teacher or aide, communication instruction from the speech/language therapist, and a social skills group led by the school psychologist.  The IEP also provided for ESY services during the summer of 2023.  (S-3) 
22. During and after the Team meeting that developed the April 2023-April 2024 IEP, School-based Team members discussed with Parents that the District would be able to provide Student with the Lindamood-Bell Visualizing and Verbalizing program (V/V), which is an evidence-based program designed to improve reading comprehension, as soon as Parents accepted the IEP, and would be also able to provide V/V services during the summer, whether or not Student chose to participate in the District’s ESY program. (Lehane)
    
    Parents did not send Student to the ESY program; rather, they sent him to a YMCA camp which they felt would provide him with more benefit. (Mother) Parents sent Student to 2 of the 18 proffered V/V summer sessions.  (S-72)
23. Parents did not respond to the above-referenced IEP until July 2023, at which time they accepted the goals and services but rejected the placement, stating that they had obtained an outside evaluation and, based on that evaluation, would be seeking a different placement for Student.  They shared the outside evaluation with the District at that time. (S-72) 

Castro Evaluation

24. In April, 2023, Student underwent a private neuropsychological evaluation by Rafael Castro, Ph.D. and Alba Kola, Psy.D. from the Integrated Center for Child Development (ICCD).  This evaluation consisted of a review of Student’s developmental history, educational records, interviews with Parents, clinical observation of Student, and formal testing.  (S-1)
25. Drs. Castro and Kola administered an extensive battery of standardized tests, including the the Beery-Butenica Developmental Test of Visual-Motor Integration, 6^th Edition (VMI-6), the California Verbal Learning Test-Children’s version (CVLT-C), subtests from the Comprehensive Tests of Phonological Processing (CTOPP), subtests of the Delis-Kaplan Executive Function System (D-KEFS), Differential Ability Scales, 2^nd Edition (DAS-II), the GORT-5, subtests of the Kaufman Assessment Battery for Children 2^nd Edition (KABC-2), subtests of the NEPSY-II, Revised Children’s Manifest Anxiety Scale, 2^nd Edition (RCMAS-2), the Rey-Osterreith Complex Figure Test (ROCF), Module 3 of the Autism Diagnostic Observation Schedule-Second Edition (ADOS-2), subtests of the Wide Range Assessment of Memory and Learning, 3^rd Edition (WRAML-3), and the Woodcock-Johnson Tests of Achievement (WJ-IV).  (S-1)
    
    In addition, Parents completed the Child Behavior Checklist (CBCL), and Student’s special education teachers completed the Teacher Report Form (TRF).  These instruments elicited information about Student’s social, emotional and behavioral functioning in the home and school settings.  (S-1)

26. The test results from the Castro/Kola evaluation were consistent with the School’s recent test results.  Specifically, Student’s cognitive functioning, measured by the DAS-II, fell within the average range for verbal, non-verbal and spatial reasoning, as well as working memory, but processing speed was in the 5^th percentile. 
    
    Academic and literacy-related testing revealed that Student’s “ability to process verbal information is between one and as much as two standard deviations below the mean.”  While Student’s overall decoding abilities were at the lower end of the average range, despite some weaknesses with phonological awareness, his reading comprehension “falls two standard deviations below the mean and at the second grade level.”  Again, this score was consistent with the School’s testing.  Student also demonstrated weakness in writing. (S-1) 
    
    The evaluation showed that Student’s social skills had improved.  He is interactive, kind, and enjoys helping others, but, consistent with his ASD profile, has reduced foundational social reasoning abilities and, as such, reduced ability to understand and navigate more subtle social situations. 
    
    Emotionally, Student was showing signs of tension, worry, and self-consciousness, and low self-esteem and reportedly would overreact to minor problems.  He was also having sleep difficulties. (S-1)
27. The Castro/Kola report concluded that Student demonstrated well-developed cognitive abilities and improvement with regard to his social skills; however, the “inclusion education model is not appropriate for him at this time,” and he needs to be placed in a substantially separate, specialized program for students with “entrenched learning disabilities,” with a “homogeneous cohort of peers.” (S-1)
28. Specifically, the evaluators concluded that Student’s academic difficulties have persisted despite “lengthy and generous amounts of pullout services,” that “there remains a significant amount of advancement to be accomplished…in the academic and language domains that can only be addressed in the context of a more specialized environment with interventions and accommodations.”  They opined that such a placement should include a slower learning pace, repetition of verbal information, multiple means of presenting information, small class size, and predictable daily schedule.  Student should also receive speech/language services, specialized, evidence-based reading instruction with a focus on comprehension, and explicit social skills instruction.  (S-1)
29. As stated above, on July 11, 2023, Parents sent the School a copy of Dr. Castro’s report together with a letter stating that they were rejecting the placement proposed in the April 2023-April 2024 IEP and requesting a summer IEP meeting to discuss placement for 2023-2024. 

IEP issued in September 2023 for 2023-2024 (sixth grade)  (“September 2023 IEP”)

30. On September 13, 2023, the Team convened to discuss Parent’s rejection of the placement specified in the April 2023-April 2024 IEP, as well as to review Dr. Castro’s report.  Parents attended the meeting accompanied by counsel.  School-based Team members agreed with the test results in the report, opined that many of the recommendations were already included in the IEP, and disagreed with Dr. Castro’s recommendation for a specialized placement, in part because Dr. Castro had not observed Student in his inclusion placement.  (Elliott, S-2)
31. On September 15, 2023, West Bridgewater issued an updated version of the April 2023-April 2024 IEP, which clarified that Student would receive evidence-based reading strategies (V/V) and additional reading services, as well as push-in services from a general education teacher, special education teacher, or aide for reading comprehension and inclusion support,, a behavior technician for social/emotional support, and school psychologist to address social skills.  Grid C services included pull-out reading comprehension services (1×150 minutes/week broken into 30 minutes per day), communication services from a speech/language therapist (360 minutes/month) and a social skills group with the school psychologist or speech/language specialist (1×30 minutes/week).  In general, this IEP increased consultative, inclusion and pull-out supports.  (S-2, S-52)
32. On September 25, 2023, Parents accepted all services in the proposed IEP but rejected the proposed placement.  (Mother) 

Student’s sixth grade performance with the September 2023 IEP

33. Student began attending sixth grade at his neighborhood elementary school in or about late August 2023. The District began implementing the September 2023 IEP on or shortly after Parent’s partial acceptance on September 25, 2023. 
34. Pursuant to the September 2023 IEP referenced above, Student was placed in general education classes under an inclusion model for all academic subjects and specials. His science and math classes were co-taught by a general education teacher with assistance from an Instructional Assistant (IA) and a special education teacher (Ms. Doherty) who alternated weeks in the classroom and assisted with IEP implementation.  Other “push-in” support included the school psychologist and a behavior technician.  His math class also was co-taught by a general educator (Ms. McLaughlin) and Ms. Doherty.
    
    Additionally, as he had in fourth and fifth grade, Student spent approximately three, 30-minute periods per week in the Learning Center, which was staffed by a special education teacher, Ms. Lehane, and an instructional assistant. According to the IEP, Student’s time in the Learning Center was devoted to reading comprehension instruction.  In addition. Student had pullouts for a social skills group and speech/language therapy. 
    
    Student’s general and special education teachers testified that in implementing Student’s IEP, they met regularly and engaged in ongoing collaboration to modify assignments if necessary, preview vocabulary and the like.  Additionally, they implemented accommodations such as preferential seating and additional time for assignments if needed.  (Wenzel, McLaughlin, Peckrill, Lehane)

35. Several teachers testified as to Student’s performance and progress during the 2023-2024 school year.  Melissa Wenzel was Student’s sixth grade science teacher.  She testified that Student participated well in class, both with whole-class activities and in small groups.  She stated that he had shown growth and progress during the 2023-2024 school year, particularly after December 2023.
    
    Specifically, Student had learned the social cues of the classroom and was “the first one” to make sure he was prepared to start class. He developed the ability to connect vocabulary and concepts across subject lines (e.g., saw relationships between concepts in science and history classes), and his vocabulary “came alive” during that period.  Ms. Wenzel believed that Student was “very much able to reach all the science standards.”  Lastly, Ms. Wenzel testified that Student benefited from placement with typical peers in that he learned “how different students approach different things in the classroom.  I think having these peers is really, really important to him.” 

36. Kylee McLaughlin was Student’s sixth grade math teacher.  Ms. McLaughlin testified that she implemented Student’s IEP by seating Student strategically so that she could check in with him frequently, and modified assignments as needed in collaboration with Ms. Lehane, Ms. Knight and Ms. Doherty.  Ms. McLaughlin stated that Student had made progress in her class in that he had increased his independence, confidence, and ability to self-advocate.  (McLaughlin)
37. David Peckrill was Student’s sixth grade English teacher.  Mr. Peckrill testified that Student was an enthusiastic participant in his class, and was able to access the curriculum with the modifications, accommodations and supports provided pursuant to his IEP.  Like Ms. Wenzel and Ms. McLaughlin, Mr. Peckrill testified that he and Student’s special educators collaborated both formally and on an ongoing, informal basis to ensure that the curriculum was accessible for Student.  (Peckrill)
38.  Kristi Lehane was the special education teacher who oversaw the Learning Center that served grades 4, 5, and 6 at Student’s school.  Ms. Lehane had provided Grid C services to Student for most of fourth grade as well as for grades 5 and 6.  Ms. Lehane testified that she staffed the Learning Center full-time along with one full-time instructional assistant and occasional additional “floating” assistants when needed.  Students using the Learning Center have a variety of profiles and generally use the Center to work on specific IEP goals or to receive assistance with classroom assignments.  (Lehane)
    
    Ms. Lehane described Student as “hilarious,” with a great sense of humor, and eager to please.  She further stated that as a feature of his ASD diagnosis, Student thrives on routine, and is prone to misinterpret social situations. She described him as a “rule follower,” who tries to make sure his peers also follow the rules.  (Lehane)
    
    Ms. Lehane testified that in addition to collaborating with Student’s classroom teachers as referenced above, she worked with Student over the past three years on reading comprehension.  She stated that with supports and accommodations, he was accessing grade level curriculum.  In particular, Student was progressing with the V/V program during sixth grade.  (Lehane)
    
    Lastly, Ms. Lehane testified that during the three years she has worked with Student, she has maintained regular contact with Parents, including weekly or, at times, daily written reports, as well as informal emails and meetings.  (Lehane)
39. Alexandra Shoff was Student’s speech/language therapist during sixth grade.  Ms. Shoff testified that during 2023-2024 she worked with Student in a small group three times per week.  The group, which consisted of three students having similar profiles, worked on figurative and abstract language, language comprehension, and inferences.  She is trained in the V/V program and used it in the small group.  She collaborated  with Ms. Lehane to coordinate the work that both were doing with V/V. 
    
    Ms. Shoff testified that V/V was particularly appropriate for a learner such as Student who is a “strong reader” who “does not pick up content.”  Ms. Shoff stated that Student was “doing really well” with V/V, having progressed from working with pictures to words to sentences. 
    
    Lastly, Ms. Shoff testified that Student seemed to fit in well socially with his peers, both in the small group and in the classroom.  (Shoff)
40. Student’s quarterly progress reports reflected his progress on IEP goals during sixth grade and indicated that by April 2024, he had met or surpassed goals in communication, school behavior and social skills.  (Shoff, S-26).  Data sheets maintained by the behavior technician also demonstrated progress in the areas of attention and behavior.  (Plummer)

Stephens Observation Report

41. On December 5, 2023, at Parents’ request, Dr. Diane Locatelli Stephens conducted an observation of Student in his school setting.  Dr. Stephens is the Director of Consultative Services for ICCD, and an Educational Consultant.  In the latter role, Dr. Stephens collaborates with families, school personnel, and other professionals to support children with special education needs, reviews educational programming, and conducts collaborative assessments.  She holds a Ph.D. in Educational Studies and a MS degree in Education. (P-9)
42. To prepare for the observation, Dr. Stephens reviewed Student’s most recent school-based testing as well as the report of Dr. Castro. She also reviewed the IEP and spoke with Parents.  Dr. Stephens typically does not meet with a student prior to observation, and did not meet with Student in this case.  (Stephens) 
43. Dr. Stephens observed Student during inclusion math, inclusion science, and a snack period for a total of approximately 2.5 hours. She was accompanied by the Director of Student Support Services, Kathleen Marble.  After her observation, Dr. Stephens’   conducted a more thorough review of Student’s IEP and other records, spoke briefly with School staff as well as Parents, and wrote a report consisting of a summary of recent testing and of Student’s IEP, followed by snapshot descriptions of Student in the context of his classroom, recorded at approximate two to four minute intervals.  (Stephens, P-2)
44. In her report, Dr. Stephens observed that while Student was reportedly accessing the content of his classes, he required much prompting, breakdown of information, and “additional scaffolding” to do so. She further stated that necessary language-based strategies that were listed as accommodations were not implemented consistently, i.e., such strategies and supports were embedded in the math class but not in the science class. The report further stated that there were no supports in place to assist Student with generalizing social skills. 
    
    Lastly, the report stated that Student’s emotional presentation was concerning, and that recent testing showed elevated anxiety and indicators consistent with depression.  Student was working harder than typical peers to manage the demands of his school day, and the resulting tension was making it more difficult for him to access coping strategies. 
    
    Dr. Stephens’ report concluded that Student’s inclusion placement was not appropriate, and that he required a substantially separate language-based placement, i with accommodations and supports for his executive functioning, academic, social and emotional needs embedded throughout the school day. Instructional groups should contain no more than eight students, and peers should have similar profiles and should not demonstrate serious acting-out or aggressive behaviors.  (Stephens, P-2)
45. Dr. Stephens elaborated on her report in her testimony, stating that Student did not participate in science class, but did participate in math, where more language-based strategies were employed.  She described Student as “socially awkward,” and that he “stood out.”  When asked why inclusion was not the least restrictive appropriate environment for Student, she stated that his combination of language-based learning disabilities and autism give rise to a lack of “central coherence,” which, in turn, means that to progress as an independent learner, Student needs a cohesive program rather than supports within an inclusive setting.  With respect to social interactions, Dr. Stephens testified that Student is not developing friendships with typical peers, in part because his behavior is stigmatizing, and that he needs to be with a group of peers with whom he can connect, in a setting that accommodates his needs.  Lastly, Dr. Stephens stated that Student’s IEP was “robust,” and addressed Student’s needs, but that the setting of his placement was inappropriate. (Stephens)
46. West Bridgewater staff who reviewed Dr. Stephens’ report did not agree with her conclusions, and felt that she was not in a position to recommend a change in placement without a fuller understanding of Student’s program or the progress he had made over the years.  (Lehane, Wenzel)

Plummer Observation Report

47. In or October or November of 2023, Kathleen Marble, the District’s Director of Student Services, arranged for an observation of Student by an independent consultant, Barry Plummer, Ph.D. Dr. Plummer holds a doctoral degree in psychology, is a licensed psychologist in Massachusetts and Rhode Island, and a Board Certified Clinical Psychologist.  Dr. Plummer provides direct clinical services in a variety of settings, and consults with several public school districts and collaboratives in Massachusetts and Rhode Island.  (Plummer)
48. The District requested Dr. Plummer to observe Student informally in the school setting and assess Student’s “engagement in classroom tasks and learning, social interactions, and behavior regulation.” (Plummer, S-8)
    
    Dr. Plummer conducted his observation on January 17 and 24, 2024 for a total of 4 hours and 40 minutes. To prepare, Dr. Plummer reviewed prior school-based evaluations as well as the Castro evaluation and observation report by Dr. Stephens. He was accompanied on his observation by the BCBA and, on January 17 only, by Kathleen Marble. (Plummer, S-8)
    
    On January 17, Dr. Plummer observed Student in his regular 6^th grade lunch, in science class, and a “WIN” class with his special education teacher. On January 26, Dr. Plummer observed Student in English, social studies, snack break and physical education. In each of these settings, he reported that Student was usually engaged, attentive, and responded appropriately to teachers and peers.
    
    Dr. Plummer did not observe any instances of problems with behavior regulation or of mistreatment of Student by peers. He reported that his observations were consistent with data reported by the District’s BCBA, which reflected attention and on-task behavior ranging from 68 %to 100%, which was similar to typical peers. Socially, Student initiated and responded to interactions with peers, but seemed to have social communication skills below age expectations, “lacking flexibility, and…in need of further development.” (Plummer, S-8)
49. Dr. Plummer recommended that the District consider keeping Student in a full inclusion program, both because he appeared to be engaged in learning with the supports he was receiving, and so that he could continue to model behavior of typical peers.  He noted that a more restrictive setting would reduce such modeling opportunities without necessarily providing more academic support.  He further recommended that the District enhance Student’s program with additional interpersonal skills training, including social coaching, more frequent executive functioning support in each class, and support with engaging in extracurricular activities. (Plummer, S-8) 
50. Dr. Stephens testified that after reviewing Dr. Plummer’s report, she questioned whether Student would resist the additional supports proposed by Dr. Plummer because they would make him feel singled out.  (Stephens)

Peer Interactions

51. As stated above, Mother testified that Student does not have solid, reciprocal friendships.  (Mother) On the other hand, Student’s educators testified that Student seems to have a regular group of peers with whom he spends time and interacts in school but have little or no knowledge of his social relationships outside of school.  (Lehane, Leeman, Elliott) 
52. Parents have been very concerned that Student has been the target of ridicule, bullying and/or harassment at various times, and that the District has neither informed them of the situations in a timely manner nor taken corrective action.  (Mother, Father)  For example, on one occasion, the school principal, Mr. Leeman, came into the gym and found Student on the floor, crying, while other students threw balls at his head.  According to Mr. Leeman, the students were playing dodgeball, Student was upset at being hit by the ball, and Mr. Leeman directed the other students to stop the behavior and stayed with Student until he was calm. (Father, Leeman) 
    
    Another example was that some peers were using the word “rizz” (slang for “charisma”) and Student perceived that this was being directed to him in a derogatory manner.  School staff investigated and determined that Student was not being targeted, and peers were instructed not to use this terminology. (Leeman, Wenzel)
    
    All testified that they did not observe Student to be a target for bullying or harassment, and Ms. Lehane testified that there was a group of “sweet” peers who cared about Student, and with whom he had good relationships.  (Wenzel, Leeman, McLaughlin, Elliott, Lehane)

Cafeteria Situation

53. When Student was in fourth grade, one of the custodians began salvaging discarded food in the cafeteria to feed to piglets on her farm.  Student was interested, and began helping her with this project, on his own initiative. Parents testified that they were unaware of this until a year or more later, when another parent informed Mother that Student had a “job” sorting trash in the cafeteria, that he was the only child doing so, and that other students were ridiculing him. (Mother)  On the other hand, Student’s fourth grade teacher, Ms. Winter, testified that Parents knew of the activity and approved of it.  (Winter)
54. Parents requested, and were granted, an immediate meeting to discuss this issue. At the suggestion of Parents’ advocate, School staff decided to create a “table to farm” project to repurpose food waste by feeding it to the custodian’s piglets. Student was an eager participant in this project, as were other students.  At some point, Parents informed the School that they did not wish Student to participate, and the School complied, and apologized for any miscommunications or misunderstandings.  Parents felt that Student was stigmatized by this activity.  Additionally, Father was concerned because Student began to pick through trash outside of school and had to be told that this was not appropriate.  (Mother, Father, Leeman, Winter)

IEP for 2024-2025 and Program Proposed by School

55. On March 28, 2024, after March 20, 2024 annual review Team meeting, the School issued a proposed IEP covering March 2024 to March 2025.  This IEP covered the latter portion of sixth grade, and the first three quarters of seventh grade. (In West Bridgewater, middle school officially begins with seventh grade, and Student would be moving on from his upper elementary school to the Middle and High School). (S-1)
56. The proposed IEP for the latter portion of sixth grade continued the goals set forth in the predecessor IEP (Comprehension, School Behavior, Communication, and Social), and provided for additional social skills training and support for participation in extracurricular activities. Placement would be in a full inclusion setting. (S-1)
57.  For seventh grade, Student would address essentially the same goals, but be placed in a substantially separate, explicitly language-based classroom for ELA, reading, and academic support/executive functioning.  This classroom would be staffed by a special education teacher with consultation and support from the Landmark Outreach program.  (Marble) 
58. As of the hearing date, Parents had not yet responded to the proposed IEP. 

Placement Sought by Parents

59. As stated above, Parents seek a substantially-separate, specialized language-based program consistent with the recommendations of Dr. Castro and Dr. Stephens.  They have not suggested or explored specific programs or placements.

DISCUSSION

Legal Framework

Substantive Components of FAPE

There is no dispute that Student is a school-aged child with a disability who at all relevant times was eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq., and the Massachusetts special education statute, M.G.L. c. 71B (“Chapter 766”).  Student is entitled, therefore, to a free appropriate public education (FAPE), which “comprises ‘special education and related services’–both ‘instruction’ tailored to meet a child’s ‘unique needs’ and sufficient ‘supportive services’ to permit the child to benefit from that instruction.”  C.D. v. Natick Public School District, et al., No. 18-1794, at 4 (1^st Cir. 2019),  quoting Fry v. Napoleon Community Schools, 137 S. Ct. 743, 748-749 (2017); and 20 USC§1401 (9), (26), (29).[4]  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 his potential, he is entitled to one which is capable of providing not merely trivial benefit, but “meaningful” educational benefit.  C.D. v. Natick, 18-1794 at 12-13; D.B. v. Esposito,  675 F.3d at 34-35; Johnson v. Boston Public Schools, 906 F.3d 182 (1^st Cir. 2018).  See also, Bd.of Education of the Hendrick Hudson Central School District v. Rowley, 458 US 176, 201 (1982); Town of Burlington v. Dept. of Education (“Burlington II”), 736 F.2d 773, 789 (1^st Cir. 1984). 

Whether educational benefit is “meaningful” must be determined in the context of a student’s potential to learn.  Endrew F. 137 S. Ct. at 1000, Rowley, 458 US at 202; Lessard v. Wilton Lyndeborough Cooperative School District, 518 F3d 18, 29 (1^st Cir. 2008); D.B. v. Esposito, 675 F.3d at 34-35.  Within the context of each child’s unique profile, a disabled child’s goals should be “appropriately ambitious in light of [the child’s] circumstances, Endrew F. 137 S. Ct. at 1001; C.D. v. Natick, 18- 1794 at 14. 

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

Procedural Components of FAPE

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

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

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

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

Remedies—Compensatory Services

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

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

Burden of Proof 

 In a due process proceeding to determine whether a school district has offered or provided FAPE to an eligible child or whether the school district has deprived a child of FAPE because of procedural missteps, the burden of proof is on the moving party.  In the instant case, as the moving party, Parents bear this burden.  Schaffer v. Weast, 546 U.S. 49, 44 IDELR 150 (2005)

That is, in order to prevail in their claim for a change in Student’s placement, Parents must prove, by a preponderance of the evidence, that the IEP for 2024-2025 is not reasonably calculated to provide Student with FAPE.  To prevail on their claim for compensatory services, Parents must prove, by a preponderance of the evidence, that prior accepted and expired IEPs were not fully implemented, and that such failure to implement caused educational harm to Student.  With respect to the partially rejected IEPs, Parents must prove that West Bridgewater failed to implement the accepted portions thereof, and/or committed procedural violations that resulted in a denial of FAPE to Student, or excluded Parents from meaningful participation in the Team process, all as set forth in the statement of Issues Presented, above.  

In light of the foregoing legal framework, I will analyze each of the issues for hearing in this case to determine whether Parents have met their burden.  

Issue #1:  Have Parents proved that the IEP and services proposed or provided for Student during the period from October 19, 2021, to the present were reasonably calculated to provide student with FAPE, and, if not, whether, prospectively, the IEP and/or services can be modified to provide a FAPE?

The IEPs covering February 2021 to February 2022 and March 2022 to March 2023 were fully accepted by Parents and have expired.  As such, they may not be revisited, and may not give rise to a claim for compensatory services unless Parents can prove that these IEPs were not implemented and that Student suffered educational harm as a result.  (Parents do not allege procedural violation in development of these IEPS or denial of meaningful parental participation in the Team process.)

Parents presented no evidence to support their allegation that fully accepted, expired IEPs were not fully implemented, or to counter the testimony of teachers and service providers that the services and accommodations set forth in those IEPs were, in fact provided.  As such, Parents do not prevail on their claims for compensatory services with respect to the IEPs for February 2021 to February 2022 and March 2022 to March 2023.

In July 2023, after receiving the Castro report, Parents rejected the full-inclusion placement proposed in the April 2023-April 2024 IEP, but accepted the remainder of the IEP, including all goals, services, and accommodations.  After a Team meeting in September 2023 to discuss Dr. Castro’s report and the rejected placement proposal, West Bridgewater issued a revised IEP that incorporated some of Dr. Castro’s recommendations and, importantly, shifted the focus of the IEP to Student’s significant weakness in reading comprehension, and proposed providing Student with an evidence-based program (V/V) to address this area of need. 

The subsequent proposed IEP, covering April 2024-April 2025, further refined its predecessor to reflect the recommendations of Dr. Plummer for increased instruction and support for Student’s social skills as well as to clarify and intensify services to address reading comprehension.  Further, pursuant to this IEP, for seventh grade, the District would place Student in a separate, language-based classroom for ELA and specialized instruction in reading comprehension with V/V.  This classroom would be supported by consultation from the Landmark School.  As of the hearing date, Parents had not responded to this proposed IEP.

Parents’ sole objection to the April 2023-April 2024 IEP was the proposed inclusion placement.  Parents rely on the reports of Drs. Castro and Kola as well as the report and testimony of Dr. Stephens to support their claim that such inclusion placement is no longer appropriate, and that Student requires a substantially-separate, language-based program with language-based strategies and support for social interactions infused throughout the day, across all settings. 

The evidence in the record does not support Parents’ claim.  Dr. Castro’s recommendation for such change in placement lacks sufficient foundation to be persuasive.  Neither Dr. Castro nor Dr. Kola observed Student in his educational setting and neither testified at the hearing.  There is no evidence that they had any first-hand familiarity with the specifics of Student’s placement.  Parents’ statement that Student had no friends was adopted without further probing.  As such, I do not credit the Castro report insofar as it recommends a change in placement. 

Similarly, Dr. Stephens’ recommendation for a change in placement lacks sufficient foundation.  Dr. Stephens observed an inclusion math class during which she found Student to be engaged, and the teacher to be using language-based strategies.  She also observed an inclusion science class, where she believed that such strategies were not applied in a consistent manner.  Her recommendation for an outside placement was based on the opinion that Student needed a more cohesive program to address his comprehension needs throughout the day, and a cohort of like peers so that he would not feel singled out or stigmatized.  She did not dispute that Student was accessing the curriculum, or that he had made progress within the School’s program. 

Dr. Stephens’ recommendation for an outside placement is not supported by the evidence in the record, which persuasively demonstrates that Student has made significant academic, behavioral, and social progress within the inclusion setting, and that Student’s placement with typical peers has been an important factor in supporting such progress.  Dr. Stephens correctly emphasized Student’s struggles with reading comprehension; however, the District’s most recent IEPs have targeted this area with increased specialized instruction, using evidence-based methodologies, from which Student already has benefited. 

Lastly, the IEP as proposed for seventh grade would actually provide Student with a language-based program for part of his day, as well as increased support for social communication and skill development. 

Parents’ motivation for seeking an outside placement is twofold.  First, it is their belief that Student has not or cannot make sufficient progress within the inclusion setting, This belief is not supported by the record.  Second, they feel he has been socially marginalized and isolated, and, at times, a target for mistreatment, and that the District has not addressed these concerns in a prompt and effective manner. 

Parents’ concerns in this latter regard are understandable.  It is undisputed that Student’s constellation of disabilities make him vulnerable to bullying and/or social isolation.  School personnel testified persuasively that Student is not regularly targeted, and that he has peers with whom he spends time and appears to have genuine relationships.  Further, the School appears to have responded promptly to Parents’ concerns about specific incidents. 

In fact, there is support in the record to infer that Student’s daily exposure to, and inclusion with, typical peers may enhance his social skills, by enabling him to model expected behaviors as well to experience “how different students approach different things in the classroom.” (Testimony of Wenzel, supra.  See also, report of Plummer, supra.

I also credit Parents’ testimony that Student does not have close friendships outside of school.  At this time, however, the record does not support a finding that the inclusion setting is inappropriate.  Rather, some of Parents’ concerns might be addressed by encouraging Student to participate in structured extracurricular activities as recommended by Dr. Plummer and as suggested in the most recent IEP.

Based on the foregoing I find that Parents have not met their burden of proof on Issue No. 1.  On the contrary, the weight of the evidence presented at hearing is persuasive that the IEPs and placements provided and offered between October 2021 and the present have been, and are, prospectively, reasonably calculated to provide Student with FAPE.  In particular, the IEP and placement proposed for seventh grade (2024-2025) appears to address Parents’ and District concerns about Student’s reading comprehension and communication needs by providing substantially-separate, targeted, and explicitly language-based instruction, supported by Landmark consultants, for part of Student’s day, while still allowing him to benefit from inclusion. 

Issue No. 2:  If prospective IEPs are not appropriate and cannot be made appropriate, does Student requires an out-of-district, specialized, comprehensive, language-based program with like peers to receive a FAPE?

As set forth above, Parents have not met their burden to show that the IEPs for 2023-2024 or 2024-2025 are inappropriate.  As such, they have not proved that Student requires an out-of-district placement to receive FAPE, and, therefore, do not prevail on this issue.

 Issue No. 3:  Have Parents proved that Student is entitled to compensatory services?   

As stated above, the School presented persuasive evidence that prior fully accepted and expired IEPs for February 2021-February 2022 and March 2022-March 2023 were fully implemented.  Parents have presented no concrete evidence to the contrary.  As such, Parents and Student are not entitled to compensatory services based on alleged non-implementation of these IEPs.

With respect to the partially rejected IEPs covering April 2023-April 2024, as revised in September 2023, Parents have not proven procedural violations, failure to include Parents in the Team process, or non-implementation of the accepted portions of the IEPs.  Nor have they demonstrated that the partially rejected IEPs failed to substantively provide Student a FAPE. Similarly, regarding the proposed IEP for the period March 2024-March 2025, Parents have neither alleged nor proved procedural violations that deprived Student of educational benefits, nor failure to provide Parents with an opportunity to meaningfully participate in the Team process. As such, Parents are not entitled to compensatory services corresponding to these IEPs.

CONCLUSION AND ORDER

Based on the record before me, I conclude that Parents have not met their burden to prove that the fully accepted and expired IEPs for the periods February 2021-February 2022 and March 2022-March 2023 were not fully implemented. 

I further conclude that partially-rejected IEPs covering April 2023-April 2024, as revised in September 2023, or to the proposed IEP for the period March 2024  to March 2025 were and are reasonably calculated to provide Student with a FAPE in the least restrictive environment.  As such, Student does not require placement in a substantially-separate, out of district program, and Parents and Student are not entitled to compensatory services.

I commend Parents for their commitment to providing their child with services to meet his needs, and for their vigorous and knowledgeable advocacy on his behalf.  Their concern for his educational progress, safety, and well-being is appropriate and understandable.  I also commend West Bridgewater for their responsiveness to Parents’ concerns and their commitment to Student’s progress.  Lastly, I acknowledge and appreciate the parties’ mutual respect and civility both prior to hearing and during the hearing in this matter.

By the Hearing Officer,

/s/Sara Berman

Sara Berman

Dated:  July 26, 2024

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[1] “Guardian” is the term used by the court reporting company to designate the individual who manages the transcription process. 

[2] This IEP superseded a prior IEP covering the February 2021-February 2022 period to reflect the re-evaluation of May and June 2021. 

[3] Mother testified that her concerns actually arose earlier, beginning in around third grade (Mother) 

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