Johnson et al v. Boston Public Schools et al

Filing 132

Judge Allison D. Burroughs: ORDER entered granting 90 Motion for Summary Judgment. For the reasons set forth in the accompanying Memorandum and Order, Defendants' Motion for Summary Judgment [ECF No. 90] is ALLOWED, and judgment shall enter for the Defendants on the IDEA claims in Part I of Plaintiffs' Bifurcated Complaint [ECF No. 71]. (Folan, Karen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NICOLE JOHNSON, Parent, and N.S.,
a minor,
Plaintiffs,
v.
BOSTON PUBLIC SCHOOLS and
MASSACHUSETTS BUREAU OF
SPECIAL EDUCATION APPEALS, et al.,
Defendants.

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Civil Action No. 1:15-cv-10026-ADB

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
BURROUGHS, D.J.
Plaintiff Nicole Johnson (“Plaintiff” or “Parent”), on behalf of her minor child N.S.
(“Student”) seeks judicial review of a decision by the Massachusetts Bureau of Special
Education Appeals (“BSEA”), in which the BSEA determined that the Individualized Education
Plans (“IEPs”) and school placement proposed by Defendant Boston Public Schools (“BPS”)
satisfied BPS’s obligation to offer Student a free and appropriate public education (“FAPE”), as
mandated by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.
Before the Court is BPS’s Motion for Summary Judgment. [ECF No. 90]. Defendant
BSEA joins in the Motion. [ECF No. 128]. Plaintiff has filed an Opposition [ECF No. 101]. For
the reasons set forth in this Memorandum and Order, BPS’s Motion for Summary Judgment is
ALLOWED, and the decision of the BSEA is hereby AFFIRMED.
I.

BACKGROUND
A. Statutory framework
“A state receiving federal funds under the IDEA must offer every disabled child within

its jurisdiction a FAPE in the least restrictive environment possible.” Sebastian M. v. King Philip

Reg’l Sch. Dist., 685 F.3d 79, 84 (1st Cir. 2012) (citing 20 U.S.C. § 1412(a)(1), (5)). “If a state is
unable to provide a disabled child with a FAPE through a public school placement, it may be
obliged to subsidize the child in a private program.” Id. (citing D.B. ex rel. Elizabeth B. v.
Esposito, 675 F.3d 26, 34 (1st Cir. 2012)).
“The ‘primary vehicle’ for delivery of a FAPE is an IEP.” D.B., 675 F.3d at 34; see also
D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010) (the IEP is the “‘centerpiece’ of
the IDEA’s system for delivering education to disabled children”). An IEP must be “customtailored” to the child, see Sebastian M., 685 F.3d at 84, and “must include, ‘at a bare minimum,
the child’s present level of education attainment, the short- and long-term goals for his or her
education, objective criteria with which to measure progress towards those goals, and the
specific services to be offered.’” Id. (quoting Lessard v. Wilton Lyndeborough Coop. Sch. Dist.,
518 F.3d 18, 23 (1st Cir. 2008)). An IEP need, not, however, “furnish a disabled child with the
maximum educational benefit possible.” Id. Rather, to comply with the IDEA, an IEP “need only
be reasonably calculated to confer a meaningful educational benefit.” Id. (internal quotations and
citation omitted).
“To ensure the continued adequacy of a child’s IEP, the IDEA requires that it be
reevaluated annually through a collaborative process that involves the child’s parents and
educators.” D.B., 675 F.3d at 35. When parents are dissatisfied with their child’s IEP, they may
demand an administrative hearing before a designated state educational agency. Sebastian M.,
685 F.3d at 84. In Massachusetts, that agency is the BSEA. “The burden of persuasion in the
resulting hearing lies with the party challenging the IEP.” D.B., 675 F.3d at 35. The final
decision of the administrative hearing officer may be appealed to either a federal or state court of
competent jurisdiction. Id. (citing 20 U.S.C. § 1415(i)(2)(A)).

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B. Factual and procedural background 1
Student was born in August 2008 and developed profound deafness as an infant. See
Administrative Record (hereinafter “AR”) at 306. In December 2010, when Student was two and
a half years old, he underwent surgery to receive a cochlear implant in his right ear. The implant
was activated in January 2011, and Student attended periodic follow-ups for MAPping
– i.e., reprogramming of the cochlear implant processors. Id. Student’s official diagnosis was
bilateral auditory neuropathy (auditory dys-synchrony). Id.
Student received early intervention services until he turned three years old, at which time
he transitioned into a pre-school program at the Horace Mann School for the Deaf in Boston,
Massachusetts (“Horace Mann”). Id. at 307. An evaluation performed in March 2011 showed
that Student’s gross motor, social-emotional, and self-care skills were all within normal limits,
but that Student’s language skills were significantly delayed. Id.
Student also received evaluations and services at Boston Children’s Hospital. His primary
providers were speech and language pathologist Denise Eng and pediatric psychologist Dr.
Terrell Clark. Id. Student was evaluated on August 23, 2011, at which time his providers noted
that Student communicated through vocalizations, but that he did not produce any words or word
approximations during the assessment; did not appear to understand any spoken language; and
did not respond to verbal requests. Id. Further, Student was not responsive to sign language,
although Plaintiff (Student’s mother) reported that she had completed a Family Sign Language

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These facts are drawn primarily from the Findings of Fact set forth in the Hearing Officer’s
January 2, 2015 Decision, which are supported by citations to hearing testimony and exhibits.
See Administrative Record at 306-326. Neither party has raised any objection to the Hearing
Officer’s factual findings, and both parties have relied upon these findings in their respective
filings on BPS’ Motion for Summary Judgment. [ECF Nos. 90, 101].
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Program. At that time, the clinicians estimated that Student’s language was at the 20 to 21 month
level. Id.
Records from Children’s Hospital noted Student’s inconsistent attendance at scheduled
MAPping appointments and follow-ups. Id. In addition, the clinicians noted that Student did not
appear to be wearing his device consistently, and Plaintiff confirmed that getting Student to wear
the device was a struggle. Id. The clinicians emphasized to Plaintiff that it was essential for
Student to build his base of language through American Sign Language (“ASL”). They
recommended that Student’s family members learn and use sign language to communicate with
him, and that Student receive speech and language therapy. Id. at 307-308.
These recommendations were echoed by Elizabeth Drake, a school psychologist at
Horace Mann, when she evaluated Student on October 3, 2011. Id. at 308. She encouraged his
family members to learn ASL and use it “to allow for carryover of language” into the home. Id.
She also stressed the need for Student to wear his processor for longer periods of time throughout
the day. Id.
Student’s IEP Team convened for the first time on October 14, 2011, when Student was
three years old. At that time, the Team found him to be eligible to receive special education
services from the City of Boston through the Early Childhood Program. Id. BPS proposed an IEP
for the period of October 2011 through October 2012, which included specific goals for prereading and writing, math, socialization and transitional skills, to be acquired through a five-day
per week program. Id. at 308-309. The IEP also noted that Plaintiff’s goal was for Student to
develop the skills he would need to be mainstreamed, preferably into a parochial school. Id. at
308. The 2011-2012 IEP called for Student’s participation in a substantially separate classroom

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taught by a teacher of the deaf. Id. It provided for instruction in both American Sign Language
and Spoken English. Id. at 308-309.
In accordance with the IEP, Student participated in BPS’ pre-school program at Horace
Mann during the 2011-2012 school year. Id. at 309.
In December 2011, Student’s outside therapist at Children’s Hospital stopped seeing
Student for outside therapy, reportedly because Student’s attendance at appointments was
inconsistent, and because of difficulties communicating with Student’s family. Id. at 310.
The Student’s IEP Team reconvened in November 2012. They noted that while Student
had made some gains during the previous year, his language skills remained significantly
delayed for his age. Id. at 309. The Team recommended that for the 2012-2013 year, Student
continue to receive instruction in Sign-Supported English, with ASL as needed for
comprehension. Id. The Team also recommended that Student continue to participate in the Early
Childhood Program, and BPS offered Student participation in a substantially separate
Kindergarten 1 program at Horace Mann. Id. at 310.
In December 2012, Student’s classroom teachers reported that Student had made some
progress. Specifically, he was able to sign several words spontaneously, to name his teacher and
several classmates in sign language, and to label and ask questions using simple words, or nonverbally. Id. He also imitated single words in sign and attempted to approximate speech in an
effort to communicate. Id.
In January 2013, when Student was four and a half years old. Dr. Clark at Children’s
Hospital conducted a follow-up assessment, in which he noted that although Student was using
his voice intentionally, he was not yet speaking using clearly articulated speech. Id. at 310-11.
Student did, however, use gestures and signing, producing seven spontaneous/independent signs

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during the evaluation. Id. Dr. Clark observed that Student’s clearest form of communication was
though signing. Id. at 310. Dr. Clark opined that “[c]ontinued use of signing is essential for
[Student’s] development of linguistic competence,” and that signing would “serve as a bridge to
comprehension of sounds and spoken language.” Id. at 311, 411. The report further noted Dr.
Clark’s concern that Student was not wearing his processor on a full-time, daily basis. Id. at 311,
410-11.
On or about April 8, 2013, Student’s Team reconvened at Plaintiff’s request, to discuss
Student’s language of instruction. Id. at 311-12. Plaintiff communicated her desire that Student
not be educated in ASL. Id. Instead, Plaintiff wished for Student to be instructed in Sign
Supported Spoken English only. Id. at 312, 405. Although the Team discussed their concerns
regarding Plaintiff’s preference, they ultimately acquiesced to Plaintiff’s request and updated
Student’s IEP. Id.
On or about June 21, 2013, Student lost his speech processor device, which was not
replaced until approximately five months later. Id. at 312. Email communications amongst
Plaintiff, Student’s classroom teachers, staff at Horace Mann, and staff at Children’s Hospital
during this period note the difficulties associated with Student’s inconsistent use of the processor,
loss of his processor, efforts to obtain a replacement, Student’s missing appointments, and some
difficulties communicating with his family. Id. at 312.
Student’s academic progress reports for the period ending June 2013 noted that Student
was making slow progress, but his IEP Team nonetheless recommended that Student repeat his
kindergarten year. Id. Plaintiff declined this recommendation and asked that Student be promoted.
Id. Plaintiff also expressed that she did not want Student in classes with peers who used ASL or
who had other, non-hearing-related disabilities. Id. at 312, 476.

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In September and October 2013, Plaintiff expressed her dissatisfaction with Boston’s
program at Horace Mann, because Student had not yet developed Spoken English. Id. at 313-14.
On September 16, 2013, Plaintiff met with Student’s Team for a mediation meeting. Id. at 313,
430. Student’s Team recommended that Student participate in an extra unscheduled evaluation to
reassess his progress. Id. Plaintiff consented to a speech and language evaluation, a classroom
observation, and a psychological assessment. She specifically rejected a home assessment, a health
assessment, and an OT evaluation. Id. at 313, 430-31.
Marci Goldowski, a Speech and Language Pathologist at Horace Mann, performed
Student’s speech and language evaluation on October 7, 9, and 11, 2013. Id. at 314. To assess
Student’s comprehension through residual hearing, part of the testing was performed in Spoken
English, without the benefit of amplification. Id.. Ms. Goldowski assessed Student’s receptive
language skills and concluded that when given single word signs, Student was able to understand
vocabulary words as well as his hearing peers, but that his ability to understand spoken English
without his processor was minimal. Id. at 315. This was in contrast to Plaintiff’s reports to Ms.
Goldowski, which stated that Student was able to hear and communicate in spoken English without
wearing his processor. Id. When Ms. Goldowski assessed Student’s receptive language abilities
using Sign Supported Spoken English, also without the use of Student’s processor, he
demonstrated an ability to understand negatives in sentences, make inferences, understand the use
of objects, and follow commands without the use of gestural cues. Id. He also demonstrated ability
to understand some higher-level academic skills such as identifying colors and letters and
understanding number concepts. Id. Ms. Goldowski remarked that Student’s performance
suggested that his ability to understand unconnected language was emerging. Id. Ms. Goldowski
also tested Student’s expressive language abilities without his processor. Student provided most

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of his answers by using vocalizations accompanied by a sign. Id. Ms. Goldowski noted, however,
that Student’s scores on these tests showed that he fell below the mean, indicating impairments in
his ability to express himself in sign or Spoken English. Id. at 315-316. Overall, Ms. Goldowski
found Student’s language skills to be significantly delayed, and she recommended that instruction
continue to be delivered in Spoken English and Sign Supported English. She further stressed the
importance of Student using his processor during all waking hours. Id. at 316.
Psychologist Liz Drake conducted the Student’s psychological evaluation on October 16
and 17, 2013. Id. at 316-17. Her assessments suggested that Student’s expressive and receptive
abilities were stronger in sign-supported English, but that they were still significantly delayed. Id.
From a social emotional standpoint, Student had improved his social interactions with peers, but
he continued to have a low frustration tolerance level. Id. Ms. Drake noted that he would benefit
from developing vocabulary to express his emotions, and she opined that it was essential for
Student to be exposed to sign language in addition to Spoken English. Id. This recommendation
was also echoed by Melissa Brown, who administered Achievement testing on October 17, 2013.
Id. at 317.
Student’s IEP Team reconvened on October 23, 2013 to discuss the results of his
evaluations and develop an updated IEP for the 2013-2014 year. Id. at 318. The October 2013 IEP
offered Student continued participation in a substantially separate day program at Horace Mann,
with direct services as follows: thirty minutes per day, four times per week of communication
skills with a speech and language therapist; communication skills 90 minutes daily; reading and
writing skills 90 minutes daily; 80 minutes daily math skills (all taught by a teacher of the deaf);
and 30 minutes of occupational therapy twice per week. The IEP also offered the use of an FM
system to be used with Student’s cochlear implant processor. Id. at 318-319.

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Plaintiff, however, rejected the proposed program and placement set forth in the 20132014 IEP, stating that she was dissatisfied with Student’s progress, and that she wanted Student
to be in a class of peers without disabilities other than hearing loss. Id. at 319; 476, 712-713.
Plaintiff also blamed BPS for losing Student’s processor earlier that year, and she again
expressed her preference that Student not be instructed in ASL. Id.
On October 10, 2013, Plaintiff filed a request for hearing at the BSEA, in which she
proposed an out-of-district placement for Student, “so that his speech and communication with
spoken language will be addressed and he will be with his peers.” AR at 1-3. BPS responded to
the request for a hearing and asserted that Horace Mann was an appropriate placement for
Student. Id. at 13-14. The Hearing Officer scheduled a hearing for November 26, 2013. Id. at 10.
Plaintiff, however, requested that the hearing be postponed until February 2014. Id. at 16. The
Hearing Officer granted Plaintiff’s request, and a number of pre-hearing teleconferences were
held over the next several months. Id. at 18-21.
Plaintiff also requested that an independent evaluation be performed at the Clarke School
for Hearing and Speech – a school for students with hearing impairments, where educators
employ auditory training instead of sign language. BPS agreed to fund these evaluations, but the
evaluations did not take place until March 2014. See id. at 500-532.
Student was also re-evaluated at Children’s Hospital in December 2013. Id. at 320. A report
authored by Denise Eng noted that Student’s receptive and expressive communication skills
remained limited, and that his family still did not sign. Id. at 320, 659-669. She recommended the
consistent use of Student’s processor through all waking hours, and the use of sign language for
comprehension and to help support development of linguistic competence, continued direct
speech, and language and aural rehabilitation therapy. Id.

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Over the winter of 2013-2014, Student’s teachers noted improvements in his academic
progress notes, especially after Student regained use of his processor. Id. at 319-320. In January
2014, Plaintiff wrote to Ms. O’Malley (Student’s classroom teacher) and expressed her
appreciation for Ms. O’Malley’s good teaching. Id. at 320, 625-626. Plaintiff also noted that
Student had made improvements and learned a great deal in Ms. O’Malley’s class. Specifically,
Student had recently been able to write his name, sign and verbalize the letters, and showed
improved counting skills. Id.
In early 2014, however, Plaintiff’s relationship with the staff at Horace Mann began to
deteriorate. Id. at 321. In February 2014, Plaintiff had an argument with the vice principal and a
secretary that resulted in a breakdown of communication. After this incident, Plaintiff stopped
sending the Student to school, and later withdrew Student from Horace Mann entirely. Id. She also
sought an itinerant number for Student, so that he could receive speech and language services
consistent with his IEP. At the time, Student was five years old and not yet of mandatory school
age. Id.
In March 2014, Student underwent comprehensive testing at the Clarke School. Id. at 321,
500-532. Overall, Student’s performance on the evaluations was comparable to a child who had
just received a cochlear implant. Id. The evaluation noted that Spoken English was used in the
home, and that Student did not wear his processor while being transported home by bus, due to
parental concerns that he might lose it, or that the background sounds might be too loud. Id. at 321,
506. The Clarke evaluators noted the importance of full-time use of the speech processor, and
recommended that Student be required to use spoken language or vocalizations any time he wanted
something, to emphasize the value of spoken language. Id. at 321, 507. During Student’s speech
and language assessment, he used only three signs and natural hand gestures. Id. at 321, 515. The

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evaluator recommended that Student be immersed in a small, language-based classroom, with five
days per week of individual speech and language therapy; auditory habilitation services, and visual
supports for spoken language such as pictures, gestures, and speech readings. Id. at 321-322, 516520.
Student’s IEP Team reconvened on May 7, 2014 to discuss the results of the Clarke
evaluation, and they amended Student’s proposed IEP accordingly. Id. at 323, 533-534. Student’s
speech and language therapy services were increased to 30 minutes, five days per week, and
auditory training/rehabilitation was to be provided by a teacher of the deaf three times per week
for forty minutes. Id. In addition, at Plaintiff’s request, Student would be placed in a class using
Spoken English as the primary language of instruction. Id.
In addition, BPS agreed to fund 24.5 hours (nine sessions) of individual audition and
speech and language services, which were provided by Clarke between June 14 and July 14, 2014,
as compensation for 26 hours of speech and language services that Student missed between the
time he withdrew from Horace Mann, and the end of the 2014 school year. Id. at 323, 618. Plaintiff,
however, was dissatisfied with the BPS’s offer of compensatory services, and she later amended
her BSEA hearing request to include a claim for compensatory services and other monetary
damages. See AR at 90-95.
Student attended the first three sessions at Clarke without his processor, which had once
again been lost. Id. at 323; 652-657. The processor was subsequently replaced with a new N6
processor, which Student wore to his remaining sessions. The Clarke therapy report describes
Student as a non-verbal communicator who relies on signs and gestures, at times accompanied by
vocalizations. Id. The evaluators did note some improvement over the four-week period Student
attended Clarke, but concluded that in order for Student to continue to make progress, he would

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need ongoing intensive therapy, and consistent follow-up audiological management. The
evaluators also remarked that ongoing parent education would be of benefit. Id.
In the summer of 2014, the parties engaged in settlement discussions, some of which took
place in the presence of the Hearing Officer, in an attempt to resolve (1) the school placement
issue; and (2) whether BPS owed Plaintiff and N.S. any additional compensatory services beyond
the 24.5 hours of services at the Clarke School, which BPS had already agreed to pay for. Plaintiff
refused to send Student back to Horace Mann, but she consented to BPS sending a referral packet
to both Clarke, and to another outside school known as the READS Collaborative (“READS”), so
that the schools could evaluate Student for potential placement. Id. at 324. 2 Clarke determined that
it could not accept Student into its programs because of his age and significant language and
academic delays. Id. at 324-325. READS, however, indicated that it would accept Student into its
program. On October 10, 2014, Plaintiff accepted BPS’s offer to place Student at READS for the
remainder of the October 2013 through October 2014 IEP period. Id. at 325. Plaintiff began
attending READS in mid-October, 2014. Id. at 325.
On October 16, 2014, the parties and the Hearing Officer participated in a pre-hearing
conference at the BSEA, and attempted to resolve the remaining issues – i.e., Plaintiff’s request
for compensatory services, and Student’s IEP for the upcoming October 2014 through October
2015 school year. Id. at 216, 325. During the conference, counsel for BPS explained that
settlement of the case was contingent on the resolution of issues relating to both school
placement and compensatory services. Id.at 325. Specifically, BPS would not agree to resolve
the placement issue if the matter of compensatory services issue was not resolved along with it.

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READS Collaborative is a private school in Norton, Massachusetts. It offers an educational
program for children with hearing disabilities.
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Id. During the pre-hearing conference, the parties orally agreed to the terms of a settlement,
which included placing Student at the READS Collaborative for the IEP period of October 2014
through October 2015, inclusive of transportation and extended school year services; providing
20 hours of Speech and language services for Student; and reimbursing Plaintiff for certain
transportation expenses she had incurred during the summer of 2014 Id. at 217, 325, 737-38. The
proposed Settlement Agreement proposed that Student’s IEP team would meet no later than
December 2014 and revise Student’s IEP to reflect this placement. Id. at 737.
The next day, however, Plaintiff emailed counsel for BPS and stated that while she was
in agreement with the READS placement, she was no longer in agreement with the proposed
resolution of the compensatory services issues. Id. at 325, 70-72. Upon learning that Plaintiff
would not agree on all the settlement terms, BPS withdrew its settlement offer and notified
Plaintiff that Student’s placement at READS would be terminated. In addition, BPS filed an
Expedited Hearing Request with the BSEA, seeking an order that its IEPs and placement of
Student at the Horace Mann School satisfied its obligation to provide Student with a FAPE in the
least restrictive environment. Id. at 194.
On October 22, 2014, Plaintiff filed a Motion for a Stay-Put Order, seeking to maintain
Student’s placement at READS pending resolution of the administrative proceeding before the
BSEA. In a written decision dated October 29, 2014, the Hearing Officer granted Plaintiff’s
Motion. Id. at 151-153. The Hearing Officer explained that while Student’s out-of-district
placement at READS was “a result of Boston’s good faith efforts to facilitate final resolution of
the case through a settlement,” rather than the result of an IEP Team’s determination or a fullyexecuted settlement agreement, the purpose of IDEA’s “stay-put” provisions is to

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maintain a student’s educational situation during the pendency of an IDEA appeal. Id.
Accordingly, the Hearing Officer ordered that Student remain placed at READS during the
pendency of the proceedings. Id. at 161.
In the regular course, a Team meeting was held on November 6, 2014 to develop an IEP
for Student’s 2014-2015 school year, despite the fact that Student was then attending READS
pursuant to the Hearing Officer’s Stay-Put Order. Id. at 816-830. BPS again offered Student
placement at Horace Mann, with instruction in Spoken English and ASL. Id. Plaintiff rejected
this IEP plan as well, and then challenged the adequacy of this proposed IEP within the ongoing
BSEA administrative proceedings.
The Hearing Officer conducted an administrative hearing on November 17, 18, and 19,
2014, at which fifteen witnesses testified, and a combined 52 exhibits were considered. Id. at
302-337. The Hearing Officer received testimony from Student’s teachers and other staff at
Horace Mann – specifically, audiologist Lynne Graham O’Brien; teachers of the deaf Lita
O’Malley, Rebecca Hart, Amanda Esar, and Ann Marie Accomando; speech and language
pathologist Marci Goldowski; school psychologist Elizabeth Drake; and Headmaster Jeremiah
Ford. Student’s providers at Children’s Hospital and Tufts Medical Center also provided
testimony, including audiologist Jennifer Harris, and pediatric audiologist Lauren Scafort. In
addition, Plaintiff testified at the hearing and called witnesses from the Clarke School and the
READS Collaborative to provide testimony. The parties submitted written closing arguments on
December 8, 2014. Id. at 243-301.
The Hearing Officer issued a 33-page written decision on January 2, 2015, which
included detailed findings of fact supported by the hearing transcripts and documentary
evidence. Id. at 302-337. Based on these findings, the Hearing Officer concluded as follows:

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The evidence supports a finding that Boston’s proposed 2013-2014
and 2014-2015 IEPs offered Student a FAPE, and that Student’s
progress during the two and a half years in Boston was effective
given: the interruptions in services caused by Parent; problems with
Student’s devices which caused him to spend lengthy periods
without access to sound; methodological limitations which impacted
Student’s ability to acquire language; and the lack of effective
access to language/communication in the home due to Parent’s
belief that hearing sound without the ability to understand language
was sufficient for Student to acquire language and learn to speak.
Placement at READS, although appropriate, was unnecessary and
largely duplicative of the program and services offered Student at
the Horace Mann School.
Id. at 328
In addition, the Hearing Officer determined that while Student was entitled to 26 hours of
compensatory services, which corresponded to the the speech and language services that he
missed after Plaintiff withdrew Student from BPS in March 2014, BPS had already compensated
Plaintiff for 24.5 of those hours by paying for services at the Clarke School in June and July of
2014. Accordingly, the Hearing Officer held that BPS was only required to offer Student “1.5
hours of speech and language services reflective of the remaining compensation owed Student
for the period from March to June 2014.” Id. at 328, 335.
II.

STANDARD OF REVIEW
The IDEA provides that courts reviewing agency decisions “(1) shall receive the records

of the administrative proceedings; (2) shall hear additional evidence at the request of a party; and
(3) basing its decision on the preponderance of the evidence, shall grant such relief as the court
determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). The district court “reviews the
administrative record, which may be supplemented by additional evidence from the parties, and
makes an independent ruling based on the preponderance of the evidence.” Lt. T.B. ex rel. N.B.
v. Warwick Sch. Comm., 361 F.3d 80, 83 (1st Cir. 2004) (internal quotations and citation
omitted). “That independence,” however, is “tempered by the requirement that the court give
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‘due weight’ to the hearing officer’s findings.” Id. (quoting Bd. of Educ. of Hendrick Hudson
Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982)). The result is an “intermediate level of
review,” id., falling “somewhere between the highly deferential clear-error standard and the nondeferential de novo standard.” Lessard, 518 F.3d at 24. This standard reflects a concern that
courts “not substitute their own notions of educational policy for that of the state agency, which
has greater expertise in the educational arena.” Lt. T.B., 361 F.3d at 83-84.
In an appeal from a final decision of the BSEA, the burden of proof is on the party
challenging the hearing officer’s decision – here, Plaintiff. See Hampton Sch. Dist. v.
Dobrowolski, 976 F.2d 48, 54 (1st Cir. 1992). Furthermore, in IDEA cases, like other
administrative appeals, “a motion for summary judgment . . . is simply a vehicle for deciding the
relevant issues, and the non-moving party is not entitled to the usual inferences in its favor.”
Sebastian M. 685 F.3d at 84-85.
Accordingly, the Court has considered BPS’s Motion for Summary Judgment, and
Plaintiff’s Opposition thereto, in light of Administrative Record in its entirety, as well as certain
supplemental records submitted by Plaintiff, which include (1) Student’s 2015 progress reports
from the READS Collaborative; and (2) certain 2015 medical records from Tufts Medical
Center. See [ECF No. 89] (Order allowing Plaintiff to supplement the record); [ECF No. 102]
(supplemental records).
III.

ANALYSIS
Plaintiff’s Complaint [ECF No. 71] alleges that the final decision of the BSEA should be

vacated because the Hearing Officer (1) misapplied the burden of proof; (2) failed to weigh the
evidence appropriately; (3) erred in finding that BPS did not owe Student compensatory services
in excess of 1.5 hours; and (4) erroneously determined that Plaintiff was not a credible witness,
based on improper considerations. Plaintiff’s Opposition to BPS’s Motion for Summary
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Judgment [ECF No. 101] introduces an additional argument – namely, that the Hearing Officer
failed to consider Plaintiff’s argument that Student should be “mainstreamed” instead of being
placed in a substantially segregated program at Horace Mann. The Court examines each
argument in turn.
A. Burden of proof
Plaintiff does not appear to be pursuing her argument that the Hearing Officer misapplied
the burden of proof, as this issue is not mentioned in Plaintiff’s Opposition. See [ECF No. 101].
In any event, the Court finds no error in the Hearing Officer’s allocation of the parties’
respective evidentiary burdens. In her decision, the Hearing Officer noted that “Parent, the
individual challenging the appropriateness of the proposed IEPs, and asserting compensatory
claims, must prove her case by a preponderance of the evidence . . . .” AR at 328 (citing Schaffer
v. Weast, 546 U.S. 49 (2005)). The Hearing Officer also stated that insofar as BPS filed its own
hearing request seeking an affirmative determination that the proposed IEPs for the 2013-2014
and 2014-2015 school years were appropriate, BPS had the burden to present evidence to support
its proposed findings. See id. (noting that BPS “must also show that its program can offer
Student a FAPE”). Because the parties had essentially filed cross-claims regarding the proposed
IEPs, the Hearing Officer’s assignment of respective burdens of proof was not erroneous. See
Schaffer, 546 U.S. at 62 (burden of proof in administrative proceeding under the IDEA is placed
upon the party seeking relief). Ultimately, the Hearing Officer determined that Parent failed to
satisfy her burden of persuasion, but that BPS had met its burden of showing that the 2013-2014
and 2014-2015 IEPs offered Student a FAPE. See AR at 328.
B. Weight of the evidence
Plaintiff raises two objections to the Hearing Officer’s decision on the merits of the
FAPE issue, one general, and one specific. First, Plaintiff asserts that the Hearing Officer placed
17

too much emphasis on the evaluations performed at Horace Mann in October 2013, because
those evaluations took place at a time when Student did not have access to his processor.
Plaintiff asserts that these test results should have been discounted. [ECF No. 71, p. 7]. The
Court does not find this argument persuasive. The Hearing Officer was well aware that the 2013
evaluations had been completed without the processor, as she expressly noted this fact in her
decision. AR at 330. Further, while Hearing Officer appears to have placed some evidentiary
weight on the October 2013 evaluation, it was not the sole basis for her decision that BPS had
offered Student a FAPE during the relevant periods. Rather, the Hearing Officer exhaustively
reviewed all the evidence before her, including other evaluations that were performed at Horace
Mann; the Clarke School, and Children’s Hospital. The Court finds no error in the weight the
Hearing Officer assigned to the 2013 evaluation and declines to disturb her findings in this
regard.
Plaintiff also argues – from a more general standpoint – that Student’s utter lack of
progress during the years he attended Horace Mann demonstrates that the proposed IEPs did not
offer Student a free and appropriate public education. [ECF No. 101, pp. 6-9]. As a threshold
matter, the Court does not agree that Student failed to progress at Horace Mann. Shortly before
he entered Horace Mann in 2011, Student’s providers at Children’s Hospital had noted that while
he attempted to communicate through vocalizations, he could not produce any words; did not
appear to understand spoken language; and was unresponsive to sign language. When Student’s
IEP Team convened in November 2012, however, they noted that Student had “made several
gains in receptive/expressive language” over the course of the academic year, although he
remained “significantly delayed for his age.” AR at 392. By the fall of 2012, Student was able to
identify a few alphabet letters, and the numbers 1 and 2 in written form; he was able to identify

18

and name the colors red and yellow. In addition, test results indicated that Student scored at the
equivalent of 2.9 years on the Expressive Vocabulary Test, whereas the previous year, he scored
below 2 years. Id.
Student continued to make slow progress over the course of the 2012-2013 year,
particularly after he regained use of his processor. In December 2012, Student’s classroom
teachers reported that he was able to sign several words spontaneously, to name several of his
classmates and teacher in sign language, and to label and ask questions using simple words, or
non-verbally. Id. at 403. He also imitated single words in sign and attempted to approximate
speech in an effort to communicate. Id.
In January 2013, Dr. Clark at Children’s Hospital made similar observations – notably,
that Student was using gestures and signing, including seven spontaneous/independent signs. Dr.
Clark observed that Student’s clearest form of communication was though signing. Id. at 310,
408-413. Dr. Clark also opined that “[c]ontinued use of signing is essential for [Student’s]
development of linguistic competence,” and that signing would “serve as a bridge to
comprehension of sounds and spoken language.” Id. at 411. Dr. Clark acknowledged, however,
that Student was still “far behind” in language acquisition and development. Id.
The Hearing Officer further noted that while Student’s progress was “slow,” he had
received little to no reinforcement in Sign Supported Spoken English or ASL at home, given his
mother’s resistance to the methodology. Id. at 330-331. The Hearing Officer also considered the
fact that Student had not had access to his processor for nearly five months, which “seriously
impacted” his ability to access spoken language. Id. at 331. She concluded that
[g]iven that Student started in Boston with almost no language, and in
light of the lack of carry-over into the home setting and the extended
periods without his processor, the progress he did achieve between
October 2011 and February 2014 can certainly be characterized as

19

effective, albeit with on-going, significant delays. In viewing the totality
of the record, the evidence is convincing that contrary to Parent’s
assertions, Student made effective progress while in Boston even if he
was unable to fully close the gap between his skills and those of his
hearing peers, a clearly unrealistic expectation in such a short period of
time, given his significant language delays.
Id. at 331.
After reviewing the totality of the evidence, the Court concurs with the Hearing Officer’s
assessment. The record reflects that throughout Student’s time at Horace Mann, Plaintiff resisted
the recommendations of Student’s educators and medical providers, nearly all of whom strongly
recommended the use of sign-supported English and ASL as an essential language-acquisition
methodology. Plaintiff’s opposition was so strong, in fact, that Student’s IEP Team ultimately
conceded to her request to place Student in a classroom that did not use ASL at all, but instead
relied exclusively on sign-supported Spoken English. Id. at 405. In light of these circumstances,
the fact that Student’s progress at Horace Mann was “slow” does not indicate that the IEPs failed
to offer him a FAPE.
Furthermore, although Plaintiff is happy with Student’s progress at the READS
Collaborative, and wants BPS to continue funding this out-of-district placement, the Court notes
that READS has been instructing Student in both ASL and Spoken English. Plaintiff has
evidently become more receptive to this methodology since Student has been at READS,
whereas she resisted BPS’s efforts to instruct Student in ASL when he attended Horace Mann.
The Hearing Officer concluded that “READS uses the same methodology that Boston had been
recommending for years.” AR at 333. The Court agrees with this conclusion, which is further
supported by the recent READS progress reports that Plaintiff submitted in this appeal. [ECF No.
102]. Specifically, a READS Progress Report from April 2015 notes that the “primary language

20

of communication and instruction” in Student’s classroom at READS is American Sign
Language. Id. Another progress note from November 2015 states that Student
has acquired some basic language skills through his immersion in
an environment that uses American Sign Language and his
expansion of ASL is assisting him in making sense of some spoken
language. His acquisition of auditory and spoken language has not
kept pace with his cognitive growth and he requires use of ASL to
access information and curriculum.
Id.
Horace Mann is able to support a similar methodological model and has a similar studentteacher ratio to Student’s current program at READS. And to the extent that the IEPs that BPS
proposed for 2013-2014 and 2041-2015 academic years did not include the use of ASL, this was
due to Plaintiff’s specific and repeated requests to the contrary. Accordingly, the Court affirms
the Hearing Officer’s conclusion that BPS’s proposed IEPs offered Student a FAPE in the least
restrictive environment appropriate, and finds no error in the Hearing Officer’s evaluation of the
evidence.
C. Compensatory Services
Plaintiff’s Complaint alleges that the Hearing Officer’s decision on compensatory
services was clearly erroneous, but Plaintiff does not pursue this argument in her Opposition to
BPS’s Motion for Summary Judgment. In any event, the conclusion that BPS’s proposed IEPs
offered student a FAPE requires that Plaintiff’s claim for compensatory services be denied.
“Compensatory education is a surrogate for the warranted education that a disabled child may
have missed during periods when his IEP was so inappropriate that he was effectively denied a
FAPE.” C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 290 (1st Cir. 2008).
Compensatory education, however, is “not an automatic entitlement but, rather, a discretionary
remedy for nonfeasance or misfeasance in connection with a school system’s obligations under

21

the IDEA.” Id. Where, as here, there has been no nonfeasance or misfeasance, and the school
system has offered the Student a FAPE, Plaintiff’s claim for compensatory services cannot
survive. See id. The Hearing Officer, therefore, committed no error in this regard.
Further, as BPS has already agreed to provide Student with the remaining 1.5 hours of
speech and language services, the Court hereby affirms the Hearing Officer’s decision on the
compensatory services issue.
D. Credibility
Next, Plaintiff challenges the Hearing Officer’s finding that she was not a credible
witness. Plaintiff contends that the Hearing Officer based her credibility finding on two improper
considerations: first, Plaintiff’s alleged bias against public schools and preference for private
parochial schools; and second, Plaintiff’s conduct during settlement negotiations that took place
at pre-hearing conferences.
After reviewing the Hearing Officer’s credibility determination in context, it is clear that
the Hearing Officer did not discount Plaintiff’s testimony in its entirety. In fact, the decision cites
repeatedly to Plaintiff’s testimony to support certain factual findings. See, e.g., AR 311 (Parent
testified that getting to Waltham from Boston for a 3:00p.m. appointment was difficult); AR 312
(Parent testified that Student lost his speech processor on or about June 21, 2013); AR 319
(Parent testified that in December 2013, Student’s grandfather became ill, and that this resulted
in Student’s independent evaluations being delayed).
Further, the Hearing Officer addressed Plaintiff’s credibility immediately after discussing
some tangential allegations that Plaintiff had raised during the proceedings – i.e., that she felt
Student had been subject to race discrimination at Horace Mann, and that she was concerned that
a BPS staff member might have molested Student in September 2013. The Hearing Officer found
that there was no evidence of racial discrimination or molestation, and noted that the Department
22

of Children and Families had previously dismissed the report of molestation. She then went on to
note that Plaintiff’s credibility was “seriously compromised” for a number of reasons. Thus,
when read in context, the Hearing Officer’s adverse credibility finding may be limited to
Plaintiff’s allegations of racial discrimination and possible molestation, which were
uncorroborated by any evidence of record. Those accusations, moreover, were not directly
relevant to the central issue presented in this IDEA appeal: i.e., whether BPS’s proposed IEPs
offered Student a FAPE. Accordingly, even assuming that the Hearing Officer based her
credibility finding on improper considerations, Plaintiff has not persuasively demonstrated that
this credibility determination adversely affected the Hearing Officer’s decision on the merits of
the Plaintiff’s IDEA claim.
In any event, the Court does not agree that the Hearing Officer based her credibility
determinations on improper considerations. First, the Hearing Officer referenced Plaintiff’s
alleged “lack of memory and insistence that Boston had not explained multiple times that its
offer for a READS placement was contingent on her acceptance of a settlement that fully
disposed of all claims against Boston, including compensatory services.” AR 333. Here, the
Hearing Officer appears to be referring to the fact that during an October 16, 2014 prehearing
conference, Plaintiff had initially agreed to BPS’s settlement proposal in toto, but later reneged
on the compensatory services aspect of the settlement, and claimed not to understand that BPS’s
offer to place Student at READS was contingent on resolution of the compensatory services
question. Plaintiff argues that it was improper for the Hearing Officer to consider Plaintiff’s
conduct during the pre-hearing conference, because (1) Federal Rule of Evidence 408 prohibits
evidence of conduct during compromise negotiations; and (2) the IDEA contains specific
statutory provisions stating that “[d]iscussions that occur during the mediation process shall be

23

confidential, and may not be used as evidence in any subsequent due process hearing or civil
proceeding.” 20 U.S.C. § 1415(e)(2)(G).
Section 1415(e)(2)(G), however, does not apply here, because the settlement discussions
did not take place during a “mediation,” as that term is described by the IDEA. The statute
provides that state educational agencies must “ensure that procedures are established and
implemented to allow parties . . . to resolve . . . disputes through a mediation process.” 20 U.S.C.
§ 1415(e)(1). Such mediations must be conducted by an impartial mediator, and not by the
Hearing Officer. See id. § 1415(e)(2)(A)(iii). In accordance with Section 1415(e), the BSEA has
developed a Mediation program for Special Education Appeals, which is described in a brochure
available on the BSEA’s website. 3 Here, in contrast, the discussions in question took place
during a prehearing conference before the Hearing Officer – not in a mediation with a third-party
mediator. See AR 54 (Order providing that October 16, 2014 hearing would be converted into a
Pre-hearing Conference). The BSEA’s Hearing Rules for Special Education Appeals (“BSEA
Hearing Rules”) expressly contemplate that settlement discussions may take place at prehearing
conferences. BSEA Hearing Rule V provides that the prehearing conference is intended to
“clarify or simplify the issues as well as review the possibility of settlement of the case.” 4
Notably, the BSEA Hearing Rules do not provide that matters discussed during pre-trial
conferences, or that the conduct of parties during those pre-trial conferences, must remain
confidential. Thus, the Hearing Officer did not violate any IDEA provision or BSEA Hearing
Rule by considering Plaintiff’s conduct during the prehearing conference.

3

BSEA Mediation Brochure, available at http://www.mass.gov/anf/hearings-andappeals/bureau-of-special-education-appeals-bsea/ (last visited August 17, 2016).
4

BSEA Hearing Rule V, available at http://www.mass.gov/anf/hearings-and-appeals/bureau-ofspecial-education-appeals-bsea/ (last visited August 17, 2016).
24

Similarly, although Plaintiff cites Federal Rule of Evidence 408, the Federal Rules of
Evidence are not applicable to administrative proceedings before the BSEA. BSEA Hearing Rule
X(C) provides that the Hearing Officer
shall not be bound by the rules of evidence applicable to courts, but
shall observe the rules of privilege recognized by law. Evidence
shall be admitted only if it is the kind of evidence upon which
reasonable persons are accustomed to rely in the conduct of serious
affairs.
Thus, Fed. R. Evid. 408 does not apply here, and further, the Court does not find that the Hearing
Officer erred or acted improperly by considering Plaintiff’s conduct during pre-hearing
proceedings. Specifically, although Plaintiff claimed not to have understood that resolution of the
placement issue was contingent on resolution of the compensatory services issue, the Hearing
Officer explained that she did not find Plaintiff to be credible on this point, because she had
heard BPS’s counsel explain the terms of the settlement proposal to Plaintiff during the prehearing conference. The Court sees nothing improper in the Hearing Officer’s considering this
fact in connection with her credibility assessment.
Nor did the Hearing Officer err by considering “Parent’s admitted bias against public
schools and insistence that all her children be educated in private schools.” AR 333. Although
Plaintiff suggests that the Hearing Officer violated Plaintiff’s First Amendment right to free
speech by considering Plaintiff’s political beliefs about public schools, this is simply not so.
“The partiality of a witness is subject to exploration at trial, and is ‘always relevant as
discrediting the witness and affecting the weight of his testimony.’” Davis v. Alaska, 415 U.S.
308, 316 (1974) (quoting 3A J. Wigmore, Evidence s 940, p. 775 (Chadbourn rev. 1970)); see
also Udemba v. Nicoli, 237 F.3d 8, 17 (1st Cir. 2001) (noting that the fact finder “must assess the
credibility of witnesses to determine the accuracy of their testimony, and information as to bias
can be of great assistance in making such determinations”). Plaintiff contends that the Hearing
25

Officer was attempting to “punish” Plaintiff for her political beliefs, but the record belies this
accusation. The Hearing Officer did not decide that Plaintiff was not credible simply because she
prefers parochial schools to public schools. Rather, the Hearing Officer appropriately considered
Plaintiff’s admitted bias against public schools when assessing the weight of her testimony. This
was neither erroneous, nor a violation of the First Amendment. 5
E. Mainstreaming
Finally, Plaintiff argues that the Hearing Officer erred in finding that Student’s placement
at Horace Mann provided a FAPE in the “least restrictive environment possible” because Horace
Mann is a segregated educational facility that does not permit Student to interact with this
typically developing peers. [ECF No. 101, pp. 2-6]. Plaintiff contends that BPS’s proposed
placement at Horace Mann violates IDEA’s preference for “mainstreaming” – i.e., that disabled
and non-disabled children should be educated together, “to the maximum extent appropriate.” 20
U.S.C. § 1412(a)(5)(A). According to Plaintiff, Student “could easily have been accommodated
in a more regular setting.” [ECF No. 101, p. 5].

5

Plaintiff also asserts a related argument – that the Hearing Officer exhibited bias against
Plaintiff throughout the administrative proceedings. After reviewing the Administrative Record,
Court finds no merit to these accusations, as there is no evidence that the Hearing Officer
“prejudged facts” or that she based her decision on “actual bias or hostility” toward Plaintiff. See
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 997-98 (1st Cir. 1990). In fact, the record
reflects that the Hearing Officer conducted her duties in a highly professional manner, and that
she consistently treated all parties, including Plaintiff, with courtesy and respect. Furthermore,
not all of the Hearing Officer’s decisions in this case favored the defendants. Although the
Hearing Officer ultimately ruled against Plaintiff on the FAPE issue, she had previously granted
Plaintiff’s Motion for a Stay-Put Order, which allowed Student to maintain his outside placement
at the READS Collaborative during the pendency of the proceedings. This fact significantly
undercuts Plaintiff’s allegations of bias. Moreover, the Hearing Officer afforded Plaintiff, a pro
se litigant, with an equal opportunity to present evidence, examine witnesses, argue, and object at
the hearing. Finally, the Hearing Officer’s reasoned, written decisions on every critical issue that
came before her demonstrate that her decisions were based on an impartial and thorough review
of the evidence, and not any apparent bias or prejudice against the Plaintiff.

26

BPS, however, argues that Plaintiff is precluded from requesting mainstreaming as relief
in this appeal, because Plaintiff did not raise the issue before the Hearing Officer. “[B]efore
filing a lawsuit, ‘IDEA mandates that plaintiffs exhaust administrative remedies through the due
process hearing.’” Pollard v. Georgetown Sch. Dist., 132 F. Supp. 3d 208, 221 (D. Mass. 2015)
(quoting Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000)); see also 20 U.S.C. § 1415(i)(2)(A).
After reviewing the record, the Court agrees with BPS. During the proceedings before the
BSEA, Plaintiff consistently advocated for Student’s out-of-district placement at specialized
schools for children with hearing impairments – namely, the Clarke School and/or READS
Collaborative. Although Plaintiff did argue to the Hearing Officer that Student’s placement at
Horace Mann did not afford him an appropriate peer group, 6 Plaintiff never argued that Student
should be “mainstreamed” into a classroom alongside his hearing peers. Nor does Plaintiff take
that position in this appeal. Instead, she argues that Student should maintain his current
placement at READS – not that he should be mainstreamed into a regular classroom within
Boston Public Schools. Accordingly, the Court declines to consider Plaintiff’s “mainstreaming”
argument. See Valerie J. v. Derry Co-op. Sch. Dist., 771 F. Supp. 483, 488 (D.N.H.) (“[F]or
issues to be preserved for judicial review they must first be presented to the administrative
hearing officer.”), order clarified, 771 F. Supp. 492 (D.N.H. 1991); E.H. v. New York City Dep’t
of Educ., No. 15 CIV. 3535 (RWS), 2016 WL 631338, at *7 (S.D.N.Y. Feb. 16, 2016) (refusing
to consider issue not raised in administrative proceedings). 7

6

The Hearing Officer expressly addressed those peer-group contentions in her decision. See AR
332 n.18.
7

This case does not fall into any permissible exception to the exhaustion requirement. See Pihl v.
Mass. Dep’t of Educ., 9 F.3d 184, 190 (1st Cir. 1993) (“Exhaustion may not be required where
the pursuit of administrative remedies would be futile or inadequate; waste resources, and work

27

IV.

CONCLUSION
For the foregoing reasons, the Defendants’ Motion for Summary Judgment [ECF No. 90]

is ALLOWED, and the decision of the BSEA is hereby AFFIRMED in all respects. Judgment
shall enter for Defendants BPS and BSEA on Plaintiff’s IDEA claims.
Dated: August 17, 2016
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

severe or irreparable harm on the litigant; or when the issues raised involve purely legal
questions.”) Whether or not mainstreaming is appropriate is a fact-dependent question. The
Hearing Officer had no opportunity to consider this issue in the first instance, and in the absence
of a fully developed record, the Court declines to do so here.
28