United States District Court, D. Massachusetts
C.D., by and through her parents and next friends, M.D. and P.D., Plaintiffs,
NATICK PUBLIC SCHOOL DISTRICT and BUREAU OF SPECIAL EDUCATION APPEALS, Defendants.
MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR
Dennis Saylor IV United States District Judge
dispute arises out of an administrative decision by the
Massachusetts Bureau of Special Education
(“BSEA”) concerning individualized education
programs (“IEPs”) proposed by the Natick,
Massachusetts Public School District. The BSEA found that the
IEPs were adequate to provide C.D., a student with learning
disabilities, with a “free appropriate public
education, ” as required under the Individuals with
Disabilities Education Act, and denied tuition reimbursement
for her placement in a private school. C.D. and her parents
have brought suit against the School District and the BSEA
seeking to overturn the BSEA's decision.
have moved for summary judgment. For the reasons stated
below, the motion will be denied, but the case will be
remanded to the BSEA for further consideration or
clarification as to whether two of the proposed IEPs provided
for an education in the least restrictive environment
Individuals with Disabilities Education Act
(“IDEA”) conditions the provision of federal
funds to public schools on compliance with a requirement to
provide all disabled children with a “free appropriate
public education” (“FAPE”). Roland M.
v. Concord Sch. Comm., 910 F.2d 983, 987 (1st Cir. 1990)
(quoting 20 U.S.C. §§ 1400(c), 1414(b)(2)(A),
1416)).“Substantively, the ‘free
appropriate public education' ordained by the Act
requires participating states to provide, at public expense,
instruction and support services sufficient ‘to permit
the child to benefit educationally from that
instruction.'” Id. (quoting Board of
Educ. v. Rowley, 458 U.S. 176, 203 (1982)).
Individualized Education Programs
individualized education program (“IEP”) is the
IDEA's primary means for assuring the provision of a FAPE
to disabled children. IEPs are written statements detailing
an individualized education plan for disabled children. At a
minimum, “[e]ach IEP must include an assessment of the
child's current educational performance, must articulate
measurable educational goals, and must specify the nature of
the special services that the school will provide.”
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53
(2005); see also Roland M., 910 F.2d at 987.
There is no mechanical checklist by which an inquiring court
can determine the proper content of an IEP; IEPs are by their
very nature idiosyncratic. One thing is clear: the substance
of an IEP must be something different than the normal school
curriculum and something more than a generic,
one-size-fits-all program for children with special needs.
Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518
F.3d 18, 23 (1st Cir. 2008) (citations and internal quotation
marks omitted). The specific requirements for IEPs can come
“from either federal or state law (at least to the
extent that the latter is not incompatible with the
IDEA contains procedural safeguards that must be followed
when creating an IEP. In particular, parental involvement is
required in order to ensure adequate protections for the
interests of individual children with disabilities. See
Rowley, 458 U.S. at 208. IEPs must be formulated through
the participation of a team that includes the student's
parents, at least one of the student's regular-education
teachers (if any), at least one special-education teacher, a
representative of the local education agency, and an
individual who can interpret the instructional implications
of evaluation results. North Reading Sch. Comm. v.
BSEA, 480 F.Supp.2d 479, 482 n.5 (D. Mass. 2007) (citing
20 U.S.C. § 1414(d)(1)(B)). At the discretion of the
parents or the agency, the team may also include “other
individuals who have knowledge or special expertise regarding
the child.” 20 U.S.C. § 1414(d)(1)(B)(vi). Parents
also have the right to obtain an independent educational
evaluation of their child. Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 58 (1st Cir. 2002). Furthermore,
under Massachusetts law, schools are required to, “upon
request by a parent, provide timely access to parents and
parent-designated independent evaluators and educational
consultants for observations of a child's current program
and of any program proposed for the child.” Mass. Gen.
Laws ch. 71B, § 3.
must be reviewed annually and revised when necessary.
Roland M., 910 F.2d at 988. Children with
disabilities must be reevaluated at least once every three
years. 34 C.F.R. § 300.303(b)(2).
IDEA requires an “appropriate” education and an
“adequate” IEP; it does not require perfection.
As the Supreme Court recently articulated, a student receives
a FAPE if the IEP is “reasonably calculated to enable a
child to make progress appropriate in light of the
child's circumstances.” Endrew F. v. Douglas
County School Dist. Re-1, 580 U.S. at 11 (2017).
Endrew F. elaborated on the Court's prior
statement in Rowley that a student receives a FAPE
if her IEP is “reasonably calculated to enable [her] to
receive educational benefits.” Rowley, 458
U.S. at 207.
to Endrew F., the First Circuit articulated the
appropriateness requirement in the following way:
“[T]he obligation to devise a custom-tailored IEP does
not imply that a disabled child is entitled to the maximum
educational benefit possible.” Lessard, 518
F.3d at 23, see also Rowley, 458 U.S. at 198;
Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361
F.3d 80, 83 (1st Cir. 2004). The Supreme Court has said that
an IEP must offer only “some educational benefit”
to a disabled child. Rowley, 458 U.S. at 200. Thus,
the IDEA sets “modest goals: it emphasizes an
appropriate rather than an ideal, education; it requires an
adequate, rather than an optimal, IEP.” Lenn v.
Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.
1993). At the same time, the IDEA calls for more than a
trivial educational benefit, in line with the intent of
Congress to establish a “federal basic floor of
meaningful, beneficial educational opportunity.”
Town of Burlington v. Dep't of Educ. of Mass.,
736 F.2d 773, 789 (1st Cir. 1984). Hence, to comply with the
IDEA, an IEP must be reasonably calculated to confer a
meaningful educational benefit.
D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26,
34 (1st Cir. 2012).
Least Restrictive Environment
IDEA expresses a preference for the education of children
with disabilities in the “least restrictive
environment.” See 20 U.S.C. § 1412(a)(5).
It requires states to maintain policies and procedures to
ensure that “[t]o the maximum extent appropriate,
children with disabilities . . . are educated with children
who are not disabled, and special classes, separate
schooling, or other removal of children with disabilities
from the regular education environment occurs only when the
nature or severity of the disability of a child is such that
education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily.”
Id. IEPs must, therefore, balance the often
competing interests of “mainstreaming, ” on the
one hand, with substantive educational improvement, on the
other. Roland M., 910 F.2d at 992-93.
accordance with its purpose to prepare children with
disabilities for “further education, employment, and
independent living, ” 20 U.S.C. § 1400(d)(1)(A),
the IDEA requires the provision of “transition
services” beginning at age sixteen. Id. §
1414(d)(1)(A)(i)(VIII). The term “transition
services” means “a coordinated set of activities
for a child with a disability” that
(A) is designed to be within a results-oriented process, that
is focused on improving the academic and functional
achievement of the child with a disability to facilitate the
child's movement from school to post-school activities,
including post-secondary education, vocational education,
integrated employment (including supported employment),
continuing and adult education, adult services, independent
living, or community participation;
(B) is based on the individual child's needs, taking into
account the child's strengths, preferences, and
(C) includes instruction, related services, community
experiences, the development of employment and other
post-school adult living objectives, and, when appropriate,
acquisition of daily living skills and functional vocational
Id. § 1401(34). Thus, at least by age 16, IEPs
must include “appropriate measurable postsecondary
goals based upon age appropriate transition assessments
related to training, education, employment, and, where
appropriate, independent living skills” and “the
transition services (including courses of study) needed to
assist the child in reaching those goals.” Id.
at § 1414(d)(1)(A)(i)(VIII)(aa)-(bb). By statute,
Massachusetts has lowered the age at which transition
planning must begin to fourteen. Mass. Gen. Laws ch. 71B,
IDEA does not require that there be a separate, stand-alone
“transition plan.” Lessard, 518 F.3d at
25. Rather, statements of transition services are to be
integrated with the IEP. Id.
Rejection of a FAPE
state fails to provide a FAPE in a timely manner, the parents
of a disabled child have the right to seek reimbursement,
where appropriate, for private-school tuition. See
Burlington v. Department of Educ., 471 U.S. 359, 370
(1985). The Supreme Court has made clear, however, that
parents who unilaterally change their child's placement
without the consent of state or local school officials
“do so at their own financial risk, ” see
Burlington, 471 U.S. at 374, and are entitled to
reimbursement “only if a federal court
concludes both that the public placement violated IDEA and
that the private school placement was proper under the
Act.” Florence Cty. Sch. Dist. Four v. Carter,
510 U.S. 7, 15 (1993) (emphasis in original). A school
district that is “unable to furnish a disabled child
with a FAPE through a public school placement” is
“responsible for the reasonable costs incident to [a
proper] private placement, ” including tuition
reimbursement. Five Town, 513 F.3d at 284-85.
the parents of a disabled child or a school district wish to
contest an IEP, the IDEA requires the state to convene an
impartial hearing. 20 U.S.C. § 1415(f)(1)(A). In
Massachusetts, those hearings are conducted by the BSEA in
accordance with rules that it has promulgated pursuant to
Massachusetts law. See Mass. Gen. Laws ch. 71B,
§ 3; 603 Mass. Code Regs. 28.08(5); see also Roland
M., 910 F.2d at 988. Under Massachusetts law, the BSEA
has jurisdiction to hear disputes
between and among parents, school districts, private schools
and state agencies concerning: (i) any matter relating to the
identification, evaluation, education program or educational
placement of a child with a disability or the provision of a
free and appropriate public education to the child arising
under this chapter and regulations promulgated hereunder or
under the Individuals with Disabilities Act, 20 U.S.C. §
1400 et seq., and its regulations; or (ii) a
student's rights under Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794, and its regulations.
Mass. Gen. Laws. Ch. 71B, § 2A(a). The BSEA's
administrative decision is reviewable in either state or
federal court. See 20 U.S.C. § 1415(i)(2)(A),
(i)(2)(C)(iii); see also Roland M., 910 F.2d at
987-88. However, before such an action is brought, the party
seeking review must exhaust all administrative procedures
under the IDEA. 20 U.S.C. § 1415(1).
Factual and Procedural Background
a young woman who has been diagnosed with Borderline
Intellectual Functioning. (A.R. 3876). She lives with her
parents in Natick, Massachusetts. (A.R. 272). The Natick
schools receive federal funds from the United States
Department of Education pursuant to the IDEA. (Id.
at ¶ 14).
C.D.'s Middle-School Experience at
attended McAuliffe Regional Charter Public School in
Framingham, Massachusetts, for grades six through eight.
(A.R. 3378). She took all of her classes, with the exception
of math, in an inclusive, general-education setting. (A.R.
3378, 1695). She received supplementary support in her
general-education classes from two retired special-education
teachers, Nan Coellner and Marcia Soden, who had been hired
by her parents. (A.R. 271, 1694-1696). Coellner and Soden
would stand near C.D. and make sure that she understood what
she was supposed to be doing in class. (A.R. 1696). It
appears that C.D. did very well at McAuliffe, was able to
access the general-education curriculum, and that her
self-confidence improved significantly while she was there.
The 2012-13 IEP
The May 2012 Meeting
2012, C.D.'s parents contacted Natick by e-mail to
request a meeting to discuss C.D.'s re-enrollment in the
Natick public school system. (A.R. 161). C.D. would be
completing the eighth grade at McAuliffe that spring, and
planned to enroll at Natick High School for summer services
and ninth grade in the fall. (Id.). In anticipation
of the meeting, C.D.'s parents sent Natick her most
recent educational evaluation, which had been conducted by
Dr. Steve Imber in the winter of 2012; a neuropsychological
evaluation conducted by Dr. Erin Gibbons; a speech and
language evaluation conducted by Susan Flax, C.D.'s
speech therapist; and her course selection list for the high
school. (A.R. 161, 177, 238, 2750). C.D.'s parents
requested that prior to the meeting, they receive copies of
the syllabuses for general education classes as well as
whatever program Natick thought would be appropriate for C.D.
22, 2012, Gina Dalan, the director of special education,
responded to C.D.'s parents, informing them of
Natick's usual practices for transferring students from
McAuliffe to Natick High School. (A.R. 268). It appears that
a meeting had already scheduled for May 24, and Dalan
informed C.D.'s parents that the meeting would be
“more of an information sharing meeting than an IEP
meeting.” (Id.). At the meeting, Natick's
special-education coordinator would inform the parents about
the services offered at the school and what services might be
appropriate for C.D., but would not actually propose a new
IEP. (Id.). Dalan also informed the parents that if
they did decide at the meeting to enroll C.D. at Natick High
School, she would send someone from Natick to McAuliffe to
observe C.D. and speak with her teachers to help plan for her
meeting on May 24, C.D.'s parents brought Soden and
Coellner, C.D.'s private tutors; Flax, her speech
therapist; and Dr. Imber, an independent evaluator. (A.R.
271). Also present at the meeting were Dalan, the director of
special education; Joshua Hanna, a general-education teacher
from Natick; Milly Cuiffo, a speech and language therapist;
Donna Cymrot, a school psychologist at the high school; Karan
Litpak, a Learning Center teacher at the high school; Barbara
Molinari-Bates, the evaluation team leader at the high
school; and attorneys for both Natick and the parents. (A.R.
parents informed Natick that C.D. had done well in an
inclusive setting at McAuliffe, and that they wanted her to
continue in an inclusive, general-education program at the
high school. (A.R. 273). The parents, Coellner, and Soden
explained their arrangement and the support Coellner and
Soden that provided to C.D. at McAuliffe. (A.R. 274-76). The
parents hoped that similar support could be provided at the
high school to enable C.D. to continue in an inclusive
setting. (A.R. 276-77).
informed the parents about the different education models
available for students with learning disabilities at the high
school. (A.R. 294-95). At one end of the spectrum, Natick
offered inclusive, general-education classes with teaching
aides. (A.R. 294). It also offered replacement
classes-separate classes taught by a special education
teacher where all students were on an IEP. (A.R. 294-95).
Finally, it offered an ACCESS program, a substantially
separate program with a significantly modified curriculum in
which students would typically not take standardized tests
(the Massachusetts Comprehensive Assessment System, or
“MCAS”) and would not receive high-school
diplomas. (A.R. 295).
parents asked about the possibility of observing the programs
available at the high school. (A.R. 313). Molinari-Bates
responded that the school district typically permits parents
or their designee to observe a program that had been proposed
in an IEP, but because no IEP had yet been proposed-and
because C.D. had not yet enrolled at the high school-it was
too early to schedule any observation. (Id.).
attorney for the school district noted that pursuant to the
law concerning transfer students, the district was required
to provide services comparable to C.D.'s current IEP at
McAuliffe. (A.R. 314). However, several representatives for
Natick stated that based on the information available at the
time, the school district had concerns about a
general-education placement. (A.R. 317-28, 321).
Specifically, Molinari-Bates stated that she was concerned
that the larger class sizes (approximately 30 students per
class at the high school compared to 18 students per class at
McAuliffe) would make the general-education environment
difficult for C.D. (A.R. 316-18, 321). Molinari-Bates stated
that the ACCESS program appeared to be appropriate for C.D.,
but, as the parents had made clear that they were not
interested in that program, that replacement classes would
likely be the most comparable program to the services
provided at McAuliffe. (A.R. 319). When the parents inquired
about the possibility of having C.D.'s private tutors
continue to help her in general-education classes at the high
school, Molinari-Bates and the attorney for the school
district responded that having private tutors in the
classroom would not be possible because Natick employed its
own teachers and teaching aides. (A.R. 318).
the team members briefly discussed possible plans for
C.D.'s education after high school. (A.R. 326-328). The
parents stated their hope that C.D. would receive a
high-school diploma, but stated that they did not yet have
post-high school plans. (A.R. 327). Dalan informed them of
the school district's Achieve program, which is a
job-coaching program for students aged 18 to 22. (A.R.
The July 2012 Meeting
parents submitted C.D.'s completed registration paperwork
to Natick on May 29, 2012. (Pl. SMF ¶ 89; A.R. 360-68).
On May 31, 2012, Dalan, the director of special education,
went to observe C.D. at McAuliffe and speak with her
special-education teacher. (A.R. 370). On June 5, 2012, Dalan
wrote to the parents informing them that while the ACCESS
program appeared to be appropriate for C.D. based on the
information available, Natick would be recommending all
replacement classes given the parents' objections to the
ACCESS program. (Id.). Dalan also informed the
parents that due to scheduling difficulties, the parents
would not be able to observe classes at the high school prior
to the end of the school year. (Id.). However, she
stated that they would be welcome to observe early in the
fall, prior to writing a new IEP for C.D. (Id.).
Finally, Dalan informed the parents that she would be leaving
the school district on June 22, 2012, and that Tim Luff would
be replacing her as the director of special education. (A.R.
parents, through their attorney, then wrote to Natick on June
13, 2012, requesting an IEP team meeting prior to the start
of the 2012-13 school year. (A.R. 374-75). They noted their
concern about placing C.D. in replacement classes, simply to
comply with regulations requiring that a transfer student
receive services comparable to their current IEP, only to
then propose a new program in the first few weeks of the
school year after proposing a new IEP. (A.R. 374). In
particular, they were concerned that C.D. would start the
school year in replacement classes only to be switched into
the ACCESS program, which they did not believe was
appropriate for her. (Id.). They requested an IEP
meeting over the summer so that a new IEP could be proposed
prior to the school year. (A.R. 375).
granted the request for an IEP meeting. Prior to the meeting,
the parents requested a copy of any report or notes that
Dalan had generated as a result of her observations of C.D.
at McAuliffe. (A.R. 378). The parents wanted the information
gathered from those observations to inform the IEP meeting.
(Id.). Dalan responded that her observations were
simply intended to help ease C.D.'s transition to the
high school, that it was not a formal evaluation, and that
she did not create a written report. (Id.). She
further stated that her observations were not intended to
change what the IEP team had discussed at their last meeting,
and that their recommendation of the ACCESS program for C.D.
was based on their discussions at that meeting and Dr.
Imber's most recent evaluation of C.D. (A.R. 377).
meeting was held on July 27, 2012. (A.R. 383). Present at the
meeting were the parents; their attorney; C.D.'s tutors,
Coellner and Soden; Dr. Imber; Lindsey McGovern, the
Assistant Director for Student Services at Natick High
School; Tim Luff, the new Director of Student Services at
Natick High School; Paul Tagliapietra, the Assistant Director
of Student Services at Natick elementary schools; Donna
Bresnick, a special education teacher at Natick High School;
Kari-Anne Daley, a social studies teacher at Natick High
School; Rose Bertucci, Principal of Natick High School; Susan
Balboni, the Assistant Director for Student Services at
Natick Middle School; and Alisia St. Florian, the attorney
for Natick. (A.R. 384-85. 2601).
purpose of the meeting was to discuss C.D.'s transition
to Natick High School and to develop a new IEP for her. (A.R.
385). McGovern began the meeting by asking the parents if
they had any concerns that should guide the IEP development.
(A.R. 385). The parents expressed concern about whether C.D.
would be placed with students who had behavioral issues; the
kind of support she would receive in non-academic courses;
whether she would be able to access the general-education
curriculum; and whether the block schedule-with 80-minute
classes two or three days per week instead of 45-minute
classes five days a week-would be difficult for C.D. given
her memory deficits. (A.R. 385-86).
who appears to have worked with C.D. over the summer during
her extended-school-year classes, reported on the kind of
work she had been doing over the summer. (A.R. 387-88). He
stated that her level of performance over the summer matched
the level of performance that was stated in her previous IEP
from McAuliffe. (A.R. 387).
team then discussed long-term plans for C.D. (A.R. 391-92).
The parents expressed some concern about whether C.D. would
pass the MCAS-which is required to receive a high school
diploma-and asked about what vocational services Natick could
provide to help C.D. get a job after high school. (A.R. 392).
Natick representatives then explained the range of transition
services and vocational services available. (A.R. 392-95).
They also explained that because C.D. was 14 years old, they
would begin planning for her transition that year. (A.R.
392). McGovern recommended that the IEP team reconvene in
October to make any necessary revisions to C.D.'s IEP and
to begin developing a detailed transition plan for her. (A.R.
tutors then discussed her performance at McAuliffe. (A.R.
396-400). They highlighted her areas of strengths and
weaknesses, and stated that she did well in her
general-education classes with appropriate support-which they
described as being not significant. (Id.). Dr. Imber
then explained that because of the ways in which tests and
formal evaluations are performed, C.D.'s test scores did
not adequately reflect her abilities. He also stated that
with appropriate supports and services, she could perform at
a level substantially higher than that indicated by her test
scores. (A.R. 400). Natick representatives expressed some
concern about what they perceived as the very large
discrepancy between what the parents and the parents'
experts said about C.D.'s abilities as compared to her
very low test scores. (A.R. 402).
team then discussed C.D.'s goals and objectives-which
they adopted from her prior IEP-and the types of services
that would be necessary to help her achieve those goals.
(A.R. 405). McGovern stated her belief that the ACCESS
program would best help C.D. achieve her goals, because it
was designed for students with cognitive, communication, and
social/pragmatic deficits, and that C.D. “would, on
paper, fit into that category” given her intellectual
disability and difficulties with communication and
social/pragmatic skills. (A.R. 406). Natick representatives
then explained the curriculum and structure of the ACCESS
program. (A.R. 407-08). The parents again expressed concern
about the block schedule, given C.D.'s memory deficits.
McGovern explained that the ACCESS program would help address
those concerns because, as a separate program with a single
teacher, it provides more continuity of instruction across
different subject matters. (A.R. 408-09). Several Natick
representatives also explained that students in the ACCESS
program can transition into replacement or general-education
classes as they are able to do so, and that they take
general-education electives with appropriate supports and
instructional assistants. (A.R. 410-12).
parents again expressed their belief that, based on her
performance at McAuliffe, C.D. should be in general-education
classes with support. (A.R. 413). McGovern stated that, based
on her IEP from McAuliffe and her test scores, the school
district did not believe that general education was
appropriate for her and that the ACCESS program would best
meet her needs. (A.R. 413-14). Thus, McGovern stated that
Natick would propose an IEP that included the ACCESS program,
plus electives in general ...