C.D. by and through her parents and Next Friends, M.D. and P.D.et al v. Natick School Committee et al

Filing 73

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. Plaintiff's Motion for Summary Judgment is DENIED and the matter is REMANDED in part to the Board of Special Education Appeals. (Schultz, Allison)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
C.D., by and through her parents and next
)
friends, M.D. and P.D.,
)
)
Plaintiffs,
)
)
v.
)
)
NATICK PUBLIC SCHOOL DISTRICT and )
BUREAU OF SPECIAL EDUCATION
)
APPEALS,
)
)
Defendants.
)
__________________________________________)

Civil Action No.
15-13617-FDS

MEMORANDUM AND ORDER ON PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
SAYLOR, J.
This 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.
Plaintiffs 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 possible.

I.

Background
A.

Statutory Background

The 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)).1
“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)).
1.

Individualized Education Programs

The 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.

On December 10, 2015, Congress enacted the Every Student Succeeds Act (“ESSA”). See Pub. L. No.
114-95, 129 Stat. 1802 (2015). Like the No Child Left Behind Act, which the ESSA replaced, the statute is a
reauthorization of the Elementary and Secondary Education Act of 1965. The ESSA also includes minor
amendments to the IDEA that are not relevant to this case.
1

2

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 former).” Id.
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.
IEPs 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).
2.

Appropriateness and Adequacy

The IDEA requires an “appropriate” education and an “adequate” IEP; it does not require
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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.
Prior 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).
3.

Least Restrictive Environment

The 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

4

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.
4.

Transition Plans

In 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 interests; 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
evaluations.
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, § 2.
The IDEA does not require that there be a separate, stand-alone “transition plan.”
5

Lessard, 518 F.3d at 25. Rather, statements of transition services are to be integrated with the
IEP. Id.
5.

Rejection of a FAPE

Where a 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.
6.

Administrative Hearings

Should 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
6

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(l).
B.

Factual and Procedural Background
1.

The Parties

C.D. is 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).
2.

C.D.’s Middle-School Experience at McAuliffe

C.D. 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. (A.R. 1697-98).

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3.

The 2012-13 IEP
a.

The May 2012 Meeting

In May 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. (A.R. 161).
On May 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 transition. (Id.).
At the meeting on May 24, C.D.’s parents brought Soden and Coellner, C.D.’s private

8

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 generaleducation 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. 271-72).2
The 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).
Natick 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).
The 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

The “Learning Center” appears to be a class or facility during which students with special needs can
receive additional support in their coursework. (A.R. 286).
2

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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.).
The 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).
Finally, 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 highschool 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. 327-28).

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b.

The July 2012 Meeting

The 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. 371).
The 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).
Natick granted the request for an IEP meeting. Prior to the meeting, the parents

11

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).
An IEP 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).
The 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

12

difficult for C.D. given her memory deficits. (A.R. 385-86).
Tagliapietra, 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).
The 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. 392-93).
C.D.’s 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 generaleducation 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).
The team then discussed C.D.’s goals and objectives—which they adopted from her prior

13

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. 40708). 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).
The 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 education. (A.R. 416-17). McGovern also
stated that they would re-evaluate in October and make any adjustments necessary. (A.R. 41617, 419).
c.

The Proposed IEP

On July 30, 2012, Natick provided the parents with their proposed IEP for the 2012-13

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school year. (A.R. 2600). The IEP provided that all of C.D.’s academic classes would be in the
ACCESS program, with electives in the general-education setting. (Id.). The IEP reflected the
conclusion that the ACCESS program was the least-restrictive environment in which to ensure
FAPE and address C.D.’s needs. (A.R. 2606). It also indicated that the recommendation was
based on C.D.’s prior IEP from McAuliffe, as well as input from the Assistant Director of
Student Services, who oversaw the extended school year program in which C.D. participated;
C.D.’s father; her tutors and educational consultant; Natick’s Directors of Student Services at the
middle- and high-school levels; and the principal of Natick High School. (Id.). The IEP also
referred to Natick’s long-term plan for C.D., reflecting her parents’ hopes that she receive a highschool diploma and receive appropriate vocational training. (A.R. 2606). The IEP did not set
out a specific transition plan, but did state that one would be developed at the next IEP team
meeting in October. (A.R. 2606, 2621).
On August 9, 2012, the parents rejected the proposed IEP. (A.R. 2621). The parents
stated their belief that placement in the ACCESS program would hinder C.D.’s academic and
social development, that the goals set out in the IEP were not aggressive enough, that the
services being proposed were not adequate to help C.D. meet her goals, and that a generaleducation setting would be more appropriate for her. (A.R. 2623-25, 3427). The parents decided
to enroll C.D. at a private school, Learning Prep, for the 2012-13 school year, and requested that
Natick fund her placement there. (A.R. 3427).
4.

The 2013-14 IEP

On May 22, 2013, Natick convened a team meeting to review C.D.’s IEP and propose a
new IEP for the 2013-14 school year. (A.R. 3307). A general-education teacher was present at
the meeting to review the electives available at Natick High School. (Id.). The ACCESS teacher

15

was also present to answer questions about that program; however, C.D.’s father, who
participated by conference call, did not have any questions or comments for her. (Id.). At the
meeting, the team reviewed reports of C.D.’s performance at Learning Prep in the areas of
history, biology, and language arts/literature. No one from Learning Prep attended the meeting.
(Id.).
Based on the information presented at the meeting, Natick again proposed an IEP that
provided for all of C.D.’s academic classes to be in the ACCESS program, with generaleducation electives. (Id.). The proposed IEP for the 2013-14 school year was very similar to the
IEP proposed for the 2012-13 school year. (A.R. 2360-61).
On June 17, 2013, the parents rejected the 2013-14 IEP for the same reasons as they
rejected the prior IEP. (A.R. 3424). They decided to re-enroll C.D. at Learning Prep, where they
believed she was receiving an appropriate education. (Id.). They again requested public funding
for her placement. (A.R. 3426). Natick declined that request, stating that Learning Prep, which
is a school exclusively for students with learning and language disabilities, was a more restrictive
environment than that provided by Natick’s proposed IEP, where C.D. would have at least some
opportunities to take classes in a general-education setting. (A.R. 3425-26).
5.

The 2014-15 IEPs

On March 12, 2014, Natick requested the consent of C.D.’s parents to conduct
educational assessments, achievement testing, psychological testing, and a speech and language
evaluation as part of C.D.’s three-year re-evaluation. (A.R. 596-97; 2754). On March 17, the
parents rejected the proposed evaluations due to questions about the evaluations that were going
to be performed. (A.R. 2756). Natick then scheduled a team meeting for April 15, both to
discuss C.D.’s re-evaluation and to propose a new IEP in order to replace the prior IEP, which

16

was set to expire. (A.R. 604-05; 2362). Natick proposed an IEP for the 2014-15 school year (the
IEP was dated April 15, 2014, through April 15, 2015) with the expectation that C.D.’s threeyear reevaluation would be conducted shortly and that the team would reconvene in June in order
to revise the IEP in accordance with the information gained from the reevaluation. (A.R. 2362;
3282).
Employees or representatives of Natick then conducted a psychological evaluation on
May 23, 2014 (A.R. 959); a speech and language re-evaluation on May 27, 2014 (A.R. 945); and
an achievement evaluation on June 6, 2014 (A.R. 954). The psychological evaluation found that
C.D. had strengths in social, emotional, and behavioral domains, but cognitive functioning in the
extremely low/borderline range. (A.R. 966-67). The speech and language re-evaluation found
that C.D. had strengths in pragmatic language, including things such as eye contact and body
language, as well as word memory and comprehension of spoken paragraphs, but significant
deficits in sentence formation, understanding vocabulary and semantic relationships, and
memory in general. (A.R. 950). The achievement evaluation demonstrated that C.D. was below
average in reading and written expression and significantly below average in mathematics. (A.R.
955).
A team meeting was then held on June 13, 2014, to review the evaluations as well as
reports of C.D.’s progress as Learning Prep. (A.R. 983-84). Present at the meeting were Barbara
Molinari-Bates; Lindsey McGovern; Maryann Ouellet, the Chair of the English Department;
C.D.’s father; Dr. Imber; and the three individuals who had performed C.D.’s evaluations. (Id.).
The team members reviewed the information provided by Learning Prep, which indicated that
C.D. was a hard-working student, but that she had difficulties processing information and
maintaining attention, as well as deficits with her memory and expressive and receptive

17

language. (A.R. 987). Each evaluator then summarized their findings. (A.R. 991-1006).
After reviewing all of that information, Natick stated that C.D.’s disability category,
which had been noted as “Intellectual” in her prior IEPs, was not supported by the evidence.
(A.R. 1007). Donna Cymrot, the school psychologist who had administered C.D.’s
psychological evaluation, explained that her strengths in social and emotional functioning, as
well as her cognitive functioning, suggested that she did not fit within the category of
“intellectually disabled” but, rather, had a narrower language or communication disability. (A.R.
1007-08). C.D.’s father was surprised by the change, and stated that he needed time to process
the information. (A.R. 1008-09).
Based on the information presented from Learning Prep and the evaluations, the team
then discussed a new IEP for C.D. (A.R. 1009).3 First, Natick proposed placing C.D. in
replacement classes for English, which it believed would be comparable to the English classes
she was taking at Learning Prep, as well as an additional ACCESS reading class. (A.R. 1011-12,
1015). It proposed replacement classes for science, which would prepare her to take the science
MCAS. (A.R. 1038). It also proposed placing her in general-education classes, with appropriate
supports, for history/social studies. (A.R. 1027). It proposed placing her in the ACCESS
program for math, because she required additional support in that area. (A.R. 1025). Finally, it
proposed a daily academic-services class for additional support as well as speech and language
services. (A.R. 1021, 1046-47). Representatives for Natick also discussed their plans to conduct
a formal transition evaluation in order to plan for C.D.’s transition out of high school, and
discussed her areas of interest and possible internship opportunities for her. (A.R. 1010, 105154).

3

Natick had already proposed one IEP for the 2014-2015 school year in April 2014, but the parents had
rejected it on the ground that it was nearly identical to the IEPs they had rejected in the past. (A.R. 3423).

18

C.D.’s father expressed some concerns about the block schedule at Natick High School,
both in terms of the reduced number of classes C.D. would be able to take and the day-long
break between classes. (A.R. 1017, 1021). He also expressed concern that the reading and
writing requirements in a general-education history class might be too demanding for her. (A.R.
1030). Representatives for Natick assured him that she would receive any necessary supports
and modifications. (A.R. 1030-32).
Following the meeting, Natick formally proposed a new IEP for the 2024-15 school year.
(A.R. 2529). On July 7, 2014, the parents rejected that IEP on the grounds that no transitional
assessment had yet been done (and that a transitional assessment would change C.D.’s
benchmarks and objectives) and because there would not have been time in Natick’s proposed
schedule for her to receive speech and language services. (A.R. 3420). They decided to reenroll her at Learning Prep for the 2014-15 school year. (Id.).
6.

Classroom Observations and the Motion to Compel

On May 29, 2014, the parents requested that their independent evaluators and educational
consultants, Dr. Imber and Flax, be allowed to observe the program proposed for C.D. At that
time, the proposed program offered only the ACCESS program for academic classes and
general-education classes for electives. (A.R. 3126). They also requested that Dr. Imber and
Flax be permitted to meet with the ACCESS program teacher and the school’s speech-language
pathologist. (Id.).
On June 10, 2014, Dr. Imber and Flax met with the ACCESS teacher, observed ACCESS
math and science classes, and observed a general-education elective with ACCESS students.
(A.R. 3129). They were permitted to ask the ACCESS teacher brief factual questions related to
their observations. (Id.). The speech-language pathologist was not available to meet with them

19

that day. (Id.). (A.R. 3144-46)
In September 2014, after Natick’s proposed IEP had changed to include replacement and
general-education classes, the parents requested that they and their evaluators and consultants be
allowed to observe those classes. (A.R. 3130). They also requested that C.D.’s tutors be allowed
to observe the ACCESS program. (Id.). Observations were scheduled for October 24, 2014, and
the parents were told that their consultants would be permitted to observe only, but not to ask
questions of the teachers. (A.R. 3131-3140). It appears that during the prior observations, the
ACCESS teacher felt that their questions had been disruptive and inappropriate. (A.R. 3146).
The parents requested separate time, not during class time, to speak with staff. (A.R. 3136).
Natick declined that request, stating that the observations were to be observations only, not an
opportunity to speak in depth with staff. (A.R. 3137). However, Natick did provide that each
visitor would have an escort who would be able to answer basic factual questions. (Id.).
During the course of the observations on October 24, 2014, the attorney for Natick
contacted the parents to inform them that their consultants had asked for time to speak with
teachers during the observations, despite their instructions that the consultants were to observe
only. (A.R. 3140). Flax had asked a few basic questions of the replacement English teacher
during a class break. (A.R. 3147). However, she later stated that she was unable to evaluate the
appropriateness of the class for C.D. due to her inability to ask the teacher more detailed
questions. (A.R. 3148). Dr. Imber also stated that his inability to ask questions prevented him
for properly evaluating the appropriateness of the proposed IEP. (A.R. 3153, 3755). Flax and
Dr. Imber both stated that it is their usual practice to observe proposed classes as well as
interview teachers and other service providers, and that they had never before encountered such
significant barriers to speaking directly with teachers. (A.R. 3147, 3149, 3152).

20

On November 12, 2014, the parents filed a motion to compel with the BSEA seeking an
order compelling Natick to provide them and their consultants with the opportunity to directly
communicate with the teachers and service providers who would be working with C.D. under
Natick’s proposed IEP. (A.R. 3112). The hearing officer concluded that permitting the parents’
experts to submit written questions would provide sufficient access to staff, and ordered them to
submit any outstanding questions from their observations in writing and ordered Natick to
respond in writing. (A.R. 815-16). The parents’ experts submitted numerous questions to the
teachers of the specific classes that they observed, and received responses. (A.R. 1399-1400).4
7.

The November 14, 2014 Team Meeting and Updated 2014-15 IEP

Natick conducted a transition evaluation with C.D. in the fall of 2014. (A.R. 1180). The
evaluation indicated that C.D. was interested in culinary arts and fashion, including being a
hairstylist or make-up artist. (A.R. 3246). However, C.D. appeared unaware of what was
required to obtain a job in one of those areas and lacked independent goal-setting and planning
skills. (Id.).
In order to review the evaluation and discuss an updated IEP, Natick scheduled a team
meeting for November 14, 2014. (A.R. 3404). Prior to the meeting, the parents provided Natick
with independent evaluations conducted by their consultants. (A.R. 3662-3755, 3802-3833,
3876-3898).5 Present at the meeting were C.D.’s father; a special-education teacher; a transition
By order of the hearing officer, Natick was not required to answer every question that the parents’ experts
submitted. The hearing officer concluded that some of the questions were more akin to interrogatories than
clarifying questions based on their observations, and that Natick was not required to answer such questions. (A.R.
1399-1400).
4

5

The independent evaluators recommended that C.D stay at Learning Prep for the remainder of high
school. They emphasized the benefits of receiving a “regular” high-school experience rather than being pulled in
and out of separate programs. In addition, the independent evaluation of Suzanne Flax concluded that the diagnoses
that best described C.D.’s disability were a primary diagnosis of intellectual impairment with a secondary diagnosis
of communication impairment. (A.R. 3832). The independent evaluation conducted by Dr. Gibbon stated that
C.D.’s evaluation was consistent with diagnosis of mild intellectual disability. (A.R. 3893).

21

coordinator; a general-education teacher; McGovern, the Assistant Director of Student Services;
Luff, the Director of Student Services; Cymrot, the school psychologist; Flax; Dr. Imber;
Coellner, C.D.’s tutor; and attorneys for both Natick and the parents. At the meeting, the parents
objected to the reclassification of C.D.’s disability from “learning” to “communication,”
although the basis of their objection is unclear from the record. (A.R. 2501).
Natick then proposed a new IEP for C.D., again recommending general education classes
for electives and social studies and either replacement classes or the ACCESS program for
science, math, English, and reading. (A.R. 2502, 2517). The IEP also recommended speech and
language therapy as well as transition services. (A.R. 2517). In order to provide all of the
services recommended, the IEP proposed an extended school day in which C.D.’s transition
services and career preparation would take place after regular school hours. (A.R. 2518).
The parents had additional questions after the November 14, 2014 meeting, and requested
a second team meeting to discuss the transition plan and new IEP. (A.R. 3400). Natick did not
believe that a second meeting was necessary. (Id.).
The parents rejected the proposed IEP on December 20, 2014. (A.R. 3398). They
provided a lengthy list of reasons for their rejection, including, among other things, the change in
C.D.’s disability category from “intellectual” to “communication”; unaddressed concerns about
the block schedule; the lack of time in C.D.’s schedule for non-academic electives; concerns
about the extended school day; and C.D.’s placement in the ACCESS program for math, which
would not prepare her for the MCAS. (A.R. 3403). Their notification of rejection also requested
a meeting to discuss the refused placement. (A.R. 3398).
A team meeting was held on January 7, 2015, to discuss the parents’ rejection of the
2014-15 IEP. (A.R. 3395). At the meeting, representatives for Natick explained that the IEP

22

was based on an individualized assessment of C.D.’s strengths and weaknesses, not on her
disability category. (Id.). Natick rejected the request to change C.D.’s disability category,
stating that the switch to “communication” was based on C.D.’s transition assessment. (Id.).
Natick also rejected the parents’ request that C.D. participate in the standard administration of
the math MCAS. (A.R. 3396). Instead, Natick proposed that based on data from her teachers at
Learning Prep and the recent assessments showing significant weaknesses in math, she should
take the MCAS Alternate Assessment for math. (Id.) Natick also stated, however, that it would
continually review that decision were C.D. to enroll at Natick High School. (Id.). In order to
address the parents’ concerns about C.D.’s schedule, Natick also agreed to provide them with
draft schedules based on the proposed IEP. (Id.).
8.

The Appeal to the BSEA

The parents first requested a due-process hearing challenging Natick’s proposed IEPs on
May 23, 2014. (A.R. 870). They amended that request on April 1, 2015. (A.R. 869). The
parents alleged that (1) Natick’s proposals to place C.D. in the ACCESS program for all
academic subjects in the 2012-13 and 2013-14 IEPs, as well as the initial 2014-15 IEP, violated
C.D.’s rights under the IDEA to be educated in the least restrictive environment in which she
could succeed (Claim I); (2) Natick “predetermined” C.D.’s placement in the ACCESS program,
thereby violating the IDEA’s procedural requirement that parents have the opportunity to
participate meaningfully in IEP meetings (Claim II); (3) Natick failed to provide transitional
planning as required (Claim III); (4) Natick failed to provide extended-school-year services in
July 2012 (Claim IV); (5) Natick unnecessarily scheduled annual reviews, IEP team meetings,
and evaluations while C.D. was unilaterally placed in a private school in another district or
violated procedural requirements under IDEA by failing to include persons knowledgeable about

23

C.D. and the proposed programs at IEP meetings (Claim V); (6) Natick failed to disclose that its
attorney would be participating in IEP meetings (Claim VI); and (7) Natick retaliated against the
parents and C.D. for requesting a due-process hearing by changing C.D.’s disability category and
denying her to opportunity to take the Math MCAS (Claim VII).
A hearing was held before Hearing Officer Catherine Putney-Yaceshyn on May 12, 13,
27, and 28, 2015. (A.R. 1551). In a written order dated July 24, 2015, the Hearing Officer
concluded that the IEPs proposed by Natick for the 2012-13, 2013-14, and 2014-15 school years
were all reasonably calculated to provide C.D. with a free appropriate public education in the
least restrictive environment. (A.R. 1571).6
As to the proposed IEP for the 2012-13 school year, the hearing officer concluded that
the IEP was less restrictive than C.D.’s placement at McAuliffe because it provided her “the
opportunity to independently access academic services in a program specifically designed for
students with profiles similar to [hers],” whereas at McAuliffe, she received one-on-one
assistance from her tutors. (A.R. 1565). The hearing officer noted that while none of the
witnesses testified about the level of restrictiveness of C.D.’s placement at McAuliffe, she “took
note of it.” (Id.). She also concluded that one of the parents’ reasons for rejecting the 2012-13
IEP—the father’s belief that the goals in the proposed IEP, which were the same goals contained
in the McAuliffe IEP, should have changed because the setting was changing from an inclusive,
general-education setting to the separate ACCESS program—was not valid because the father
did not have any credentials in education. (A.R. 1566). She also discredited the father’s
contention that the hours of service in the proposed IEP were decreasing from those provided in
the prior IEP because “[h]e did not present any credible evidence to support that presumption.”

Although dated July 24, 2015, the Hearing Officer’s final order was actually issued on July 28, 2015, and
includes three paragraphs inadvertently omitted from the July 24 version. (A.R. 1549).
6

24

(Id.). She also concluded that the parents’ assumption that placement in the ACCESS program
would result in C.D. being unable to pass the MCAS was not supported by the evidence, as the
ACCESS teacher had testified that students in the program are routinely placed in replacement
classes when their abilities indicate that that is appropriate. (Id.).
As to the proposed IEP for the 2013-14 school year, the hearing officer concluded that
because it was substantially similar to the IEP proposed for the prior year, and because it had
been rejected for the same reasons as the prior IEP, she found that it was reasonably calculated to
provide C.D. with a free appropriate public education for the same reasons. (A.R. 1567).
As to the first IEP proposed for the 2014-15 school year, the Hearing Officer concluded
that it was created before C.D.’s three-year evaluation could be conducted, and therefore was
simply a provisional proposal that was created with the understanding that it would be updated
following the three-year evaluation. (Id.).
As to the second IEP proposed for the 2014-15 school year, the hearing officer noted that
the parents had rejected the IEP in part because no transition assessment had yet been conducted
and that such an assessment would likely change the benchmarks and objectives of the IEP.
(A.R. 1568). However, she concluded that the fact that a transition assessment, once conducted,
might change the relevant benchmarks and objectives had “no bearing on the appropriateness of
what was proposed by Natick.” (Id.). In addition, the hearing officer did not credit the parents’
contention that the services proposed could not actually all be delivered within Natick’s
schedule, concluding that there was no evidence in the record to support that belief. (Id.). She
also concluded that despite the parents’ objections to C.D.’s placement in any ACCESS classes,
the proposal for math and reading classes in the ACCESS program was appropriate given C.D.’s
well-documented weaknesses in those areas. (Id.). Finally, she concluded that there was

25

credible evidence that students in the ACCESS program often move to replacement classes
where they are then able to take the MCAS. (Id.).
The third IEP proposed for the 2014-15 school year included the same recommendations
for C.D.’s academic classes, but included additional transition services to be provided in a oneon-one setting after school. (A.R. 1569). The parents objected to the proposed transition
services on the grounds that the one-on-one setting was inappropriate and that C.D. would not
receive services tied to her specific interests. (Id.). The hearing officer concluded that based on
the credible testimony of Lindsay McGovern, the delivery of transition services in a one-on-one
setting after school was simply one of several scheduling options presented to the parents and
was intended to allow C.D. to receive transition services without taking away time in her
schedule for non-academic electives in the general education setting. (Id.). She also concluded
that based on the testimony of Katherine Brown, who taught the vocational class for the
ACCESS program, C.D. would have been able to receive vocational training related to her
interests in cooking and baking. (A.R. 1559, 1569). Thus, the hearing officer concluded that
Natick’s proposed vocational training was appropriate. (A.R. 1569). Finally, the hearing officer
noted the parents’ objection regarding the change in C.D.’s disability classification. (Id.). She
concluded, however, that they had not pointed to any impact that the change would have on the
delivery of services, and that Natick staff had credibly testified that the change would in fact
have no impact on the way in which services were delivered. (Id.).
The hearing officer next addressed the alleged procedural violations. She concluded that
the credible evidence did not support the parents’ contention that they had been unable to receive
information and thus to participate meaningfully in the team’s decision-making. (A.R. 1570).
She found that the parents and their consultants were able to ask questions at all of the team

26

meetings, that they had the opportunity to ask Dalan and her predecessor questions following the
team meeting in the summer of 2012, and that McGovern and the ACCESS teacher had, on one
occasion, made themselves available to answer questions about the program. (Id.). She
concluded that the parents failed to point to any specific instance in which they were not able to
participate in the team process or to have their questions answered. (Id.).
As to the retaliation claim, the hearing officer noted that the record was unclear as to the
basis of the claim but that, in any event, the BSEA did not have jurisdiction over claims of
discrimination under Section 1983. (Id.)
Finally, the hearing officer concluded that because the IEPs proposed by Natick were all
reasonably calculated to provide C.D. with a free appropriate education in the least restrictive
environment, the parents were not entitled to reimbursement for their unilateral placement of
C.D. at Learning Prep. (Id.).
The hearing officer noted that, in reaching her decision, she did not rely on the testimony
of Dr. Imber or Suzanne Flax. (Id.). She concluded that Flax was not a credible witness based
on her statements that C.D. would not benefit from any inclusion classes—a statement not
supported by any other witness and inconsistent with Flax’s prior recommendations—and her
statement that C.D. would not make any friends in the ACCESS program—a statement based
entirely on speculation. (Id.). She concluded that Dr. Imber was not credible because his belief
that inclusion was no longer important for C.D. suggested that he changed his recommendations
to align with whatever placement she was in at the time. (A.R. 1570-71). Finally, the hearing
officer did not rely on the most recent reports submitted by Flax, Dr. Imber, and Dr. Roffman (a
transition expert) as they were first presented to Natick just prior to the hearing and were not
available to the team while preparing the proposed IEPs. (A.R. 1571).

27

9.

The Appeal to This Court and Remand to the BSEA

On October 21, 2015, plaintiffs filed the complaint in this action seeking review of the
BSEA’s decision. They filed for summary judgment on June 27, 2016. A hearing was held on
December 1, 2016, and the Court took the motion under advisement.
On March 22, 2017, while the motion was under advisement, the Supreme Court issued
its decision in Endrew F. On March 28, the Court denied plaintiffs’ motion for summary
judgment and remanded the case to the BSEA in order for the hearing officer to indicate whether
the standard she applied was in accordance with the standard announced in Endrew F. The
hearing officer responded on April 10, indicating that the standard she applied—the standard
articulated in the First Circuit prior to Endrew F.—was in accordance with the standard set forth
in Endrew F. and that her decision in this case was not impacted by Endrew F. Plaintiffs then
renewed their motion for summary judgment.
II.

Legal Standard
Plaintiffs have moved for summary judgment on their challenge to the BSEA’s

conclusions. However, “[i]n a case like this, summary judgment is merely the device for
deciding the issue, because the procedure is in substance an appeal from an administrative
determination, not a summary judgment.” North Reading, 480 F. Supp. 2d at 481 n.1 (citations
and internal quotation marks omitted). The burden of proof rests on the party challenging the
BSEA hearing officer’s decision. Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 54 (1st Cir.
1992).
Essentially, “judicial review [of administrative decisions on claims brought under the
IDEA] falls somewhere between the highly deferential clear-error standard and the nondeferential de novo standard.” Lessard, 518 F.3d at 24 (citing Roland M., 910 F.2d at 989). The

28

IDEA provides that courts reviewing agency decisions “(i) shall receive the records of the
administrative proceeding; (ii) shall hear additional evidence at the request of a party; and
(iii) 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 Supreme Court has explained that a
district court’s review entails both procedural and substantive aspects. Rowley, 458 U.S. at 205
(“When the elaborate and highly specific procedural safeguards embodied in § 1415 are
contrasted with the general and somewhat imprecise substantive admonitions contained in the
Act, we think that the importance Congress attached to these procedural safeguards cannot be
gainsaid.”). Thus, in reviewing the appropriateness of an IEP, a court “must ask two questions:
‘First, has the State complied with the procedures set forth in the Act? And second, is the
individualized educational program developed through the Act’s procedures reasonably
calculated to enable the child to receive educational benefits?’” Roland M., 910 F.2d at 990
(quoting Rowley, 458 U.S. at 206-07).
A reviewing court must ensure that the school district and state education agency adhere
scrupulously to the procedural requirements of the statute and relevant regulations and rules. See
Rowley, 458 U.S. at 205-06 (noting that the Act “demonstrates the legislative conviction that
adequate compliance with the procedures prescribed would in most cases assure much if not all
of what Congress wished in the way of substantive content in an IEP.”). However, in reviewing
an agency’s substantive decisions on FAPEs and IEPs, a reviewing court’s “principal function is
one of involved oversight.” Roland M., 910 F.2d at 989. “[C]ourts should be [loath] to intrude
very far into interstitial details or to become embroiled in captious disputes as to the precise
efficacy of different instructional programs.” Id. at 992; see also Lt. T.B. ex rel. N.B. v. Warwick
Sch. Comm., 361 F.3d 80, 83 (1st Cir. 2004) (“The Rowley standard recognizes that courts are ill-

29

equipped to second-guess reasonable choices that school districts have made among appropriate
instructional methods.”). Nonetheless, it is the reviewing court’s role to render “an independent
ruling as to the IEP’s adequacy based on a preponderance of all the evidence, including the
hearing officer’s duly weighted findings.” Lenn, 998 F.2d at 1089.
In short, on matters that implicate educational expertise, heightened deference is due to
an agency’s administrative findings. Mr. I v. Maine Sch. Admin. Dist. No. 55, 416 F. Supp. 2d
147, 156 (D. Me. 2006). However, “when the issue is more a matter of law, the educational
expertise of the agency is not implicated, and less deference is required.” Id. at 157.
As to the evidence, the administrative process is to be accorded “its due weight” such that
“judicial review does not become a trial de novo, thereby rendering the administrative hearing
nugatory.” Id. at 996. The First Circuit has directed district courts reviewing appeals of
administrative decisions under the IDEA to
review[ ] the administrative record, which may be supplemented by additional
evidence from the parties, and make[ ] an independent ruling based on the
preponderance of the evidence. That independence is tempered by the requirement
that the court give due weight to the hearing officer’s findings. This intermediate
level of review reflects the 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 (citation and internal quotation marks omitted).
Finally, an IEP should not be judged exclusively in hindsight. “An IEP is a snapshot, not
a retrospective. In striving for ‘appropriateness,’ an IEP must take into account what was, and
was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was
promulgated.” Roland M., 910 F.2d at 992.
III.

Analysis
A.

The Impact of Endrew F.

30

As noted, the Supreme Court refined its formulation of the standard for determining the
appropriateness and adequacy of an IEP during the pendency of this case. In Endrew F., the
court held that 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.” 580 U.S. at 11. The standard
as articulated by the First Circuit prior to Endrew F. states that “an IEP must be reasonably
calculated to confer a meaningful educational benefit.” D.B. ex rel. Elizabeth B., 675 F.3d at 34.
The Court agrees with the hearing officer that the standard articulated in Endrew F. is not
materially different from the standard set forth in Elizabeth B., and applied by the hearing
officer, at least as it applies to the facts of this case. Contrary to plaintiffs’ contention, Endrew
F. did not reject all standards that focus on the level of benefit provided in favor of a standard
based on the level of instruction. Rather, Endrew F. explains that the benefit to be provided is
“appropriate” educational progress. That is consistent with a “meaningful educational benefit.”
See Brandywine Heights Area Sch. Dist. v. B.M., 2017 WL 1173836, at *10 n.25 (E.D. Pa.
March 29, 2017) (concluding that “meaningful educational benefit” standard applied by hearing
officer is consistent with Endrew F.).
B.

Adequacy of the 2012-13 IEP

Plaintiffs’ first challenge is to the adequacy of the 2012-13 IEP.
1.

Procedural Challenges

Plaintiffs first contend that Natick violated the procedural requirements of the IDEA by
failing to have a team composed of individuals knowledgeable about either C.D. or the classes
and programs being proposed for her. In particular, they allege that there was no one from
Natick present at the July 2012 meeting with direct knowledge about C.D., nor was there a
teacher from the ACCESS program. That contention fails for two reasons.

31

First, plaintiffs’ contention is belied, in part, by the administrative record. The transcript
from the July 2012 meeting makes clear that a teacher familiar with C.D. from the extendedschool-year program at Natick was in fact present, and did share his observations regarding
C.D.’s performance. (A.R. 387).
Second, while the ACCESS teacher was not present, that absence did not constitute a
procedural violation of the IDEA. The IDEA requires that an IEP team include (1) the student’s
parents; (2) at least one of the student’s regular-education teachers (if the student is or may be
placed in regular education classes); (3) at least one special-education teacher, or, where
appropriate, at least one of the student’s special-education “providers”; (4) a representative of the
local educational agency; and (5) “an individual who can interpret the instructional implications
of evaluation results.” 20 U.S.C. § 1414(d)(1)(B). In addition, where appropriate, other
individuals with knowledge or expertise about the student and/or the student herself may also
participate. Id.
There is no statutory requirement that the teacher of the program in which a student is
likely to be placed be present at all team meetings.7 The IDEA simply requires a specialeducation teacher, of which there was at least one present at the July 2012 meeting. (A.R. 38485). Furthermore, while the presence of the ACCESS teacher likely would have been beneficial,
Natick accommodated the parents’ request to hold an IEP meeting before the start of the school
year, and can hardly be faulted for failing to pull together an ideal team in the middle of the

The IDEA does require that the IEP include one of the student’s regular-education teachers. While the
team did include a regular-education teacher from Natick High School, there was not a regular-education teacher
who had taught C.D. However, the parents have not objected to the team composition on that ground. In addition,
because C.D. had been at McAuliffe—an out-of-district placement—for the past three years, there was not a regulareducation teacher at Natick with any direct experience with her. While the presence of one of C.D.’s teachers from
McAuliffe might have been beneficial, it is not clear that Natick can be faulted for not including an out-of-district
teacher in its IEP team. See Roland M., 910 F.2d at 995. Furthermore, C.D.’s private tutors were present at the
meeting and able to comment on her performance in the general-education setting at McAuliffe. (A.R. 397-403).
7

32

summer.
Finally, there is no indication that any potential shortfalls in the team composition
compromised C.D.’s right to an appropriate education or seriously hampered the parents’ ability
to participate in the creation of her IEP. The transcript from the July 2012 meeting suggests that
most of the parents’ specific questions about the ACCESS program were answered. (see, e.g.,
A.R. 406-11). After the meeting, and after the proposed IEP had already been developed, the
parents requested “study guides for the 9th grade Access program.” (A.R. 453). McGovern
responded that they “raise[d] good questions about [C.D.’s] program of study” and suggested
that they meet with the lead ACCESS teacher at the beginning of the school year to discuss the
curriculum. (Id.). Natick “cannot be faulted for drafting an IEP that does not answer all of the
parents’ after-the-fact questions when the parents were given an opportunity to participate in the
IEP.” Alloway Tp. Bd. of Educ. v. C.Q., 2014 WL 1050754, at *9 (D.N.J. March 14, 2014).
With one minor exception, the parents had all of their questions about the ACCESS program—
including questions about the other students in the program, the number of students, the
schedule, the nature of instruction in the program, and the ability of students in the program to
move into replacement or general education classes—answered at the July 2012 meeting. (A.R.
406-11, 417-18).8
The parents also contend that Natick predetermined C.D.’s proposed placement in the
ACCESS program. “[P]redetermination occurs when an educational agency has made its
determination prior to the IEP meeting, including when it presents one placement option at the

8
C.D.’s father did ask whether students in the English/Language Arts ACCESS class read the same books
as students in the general-education classes. (A.R. 409). McGovern responded that she did not know, but that C.D.
would likely be reading modified texts so that she could access texts at her grade level. (Id.). In response to a
question from one of C.D.’s tutors about whether they would be reading actual texts or things like recipes,
McGovern assured the parents that students in the ACCESS program read texts. (Id.).

33

meeting and is unwilling to consider other alternatives. In such cases, regardless of the
discussions that may occur at the meeting, the School District’s actions would violate the
IDEA’s procedural requirement that parents have the opportunity ‘to participate in meetings with
respect to the identification, evaluation, and educational placement of the child.’” H.B. ex rel.
P.B. v. Las Virgenes Unified Sch. Dist., 239 Fed. Appx. 342, 344 (9th Cir. 2007) (quoting 20
U.S.C. § 1415(b)(1)). “However, predetermination is not synonymous with preparation.” Nack
ex rel. Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 (6th Cir. 2006). School districts may
come to IEP meetings with a proposal in mind, but must remain open to input from parents and
their experts. See G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947-48 (1st Cir. 1991)
(finding no predetermination despite the fact that the district came to team meeting with draft
IEP); K.D. ex rel. C.L. v. Department of Educ., Hawaii, 665 F.3d 1110, 1123 (9th Cir. 2011)
(finding no predetermination where district had a placement in mind before meeting but
considered alternatives).9
Here, there is certainly evidence that Natick considered the ACCESS program to be an
appropriate placement for C.D. prior to the July 2012 IEP meeting. In a communication prior to
that meeting, Dalan stated that the district’s recommendation of the ACCESS program was based
on Dr. Imber’s most recent evaluations of C.D. as well as their discussions at the May 2012
meeting. (A.R. 377). Dalan also stated that her observations of C.D. at McAuliffe were not
intended to change that recommendation. (Id.). Furthermore, at the July 2012 meeting,
representatives for Natick expressed reluctance to reconsider their recommendation of the

9
For example, courts have found predetermination where school districts have unofficial policies of
refusing certain programs or placements regardless of a child’s individual needs, making programming or placement
decisions based purely on financial considerations, or prohibiting parents from asking questions during IEP
meetings. See Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 855-59 (6th Cir. 2004); W.G. Bd. of Trus. of
Target Range Sch. Dist. No. 23, 960 F.2d 1479 (9th Cir. 1992) (finding predetermination where district decided
placement prior to IEP meeting and “assumed a ‘take it or leave it’ position at the meeting”).

34

ACCESS program, despite statements from the parents’ consultants that C.D. was able to
perform well in a general-education setting with some additional one-on-one support. (A.R. 402,
413-14). They expressed concern about the discrepancy between their description of her abilities
and her low test scores, and stated that, “on paper,” the ACCESS program was the most
appropriate placement to meet her needs. (Id.).
Coming to an IEP meeting with a proposal in mind and then declining to change that
proposal after considering the parents’ input does not amount to predetermination. Pre-meeting
consideration only amounts to predetermination if the district refuses to consider the input,
objections, and suggestions of the parents such that they are denied the opportunity to
meaningfully participate in the IEP development process. Nack, 454 F.3d at 610.
Here, there is no evidence that representatives for Natick were following an unofficial
policy in recommending the ACCESS program, that they recommended the ACCESS program
based solely or even predominantly on financial considerations, or that they steadfastly refused
to consider alternative placements. As the hearing officer noticed, while the district never
formally proposed an IEP including replacement classes in 2012, it did initially recommend
starting C.D. in replacement classes for the 2012-13 school year and then reconvening in the fall
to create a new IEP. (A.R. 370). Furthermore, there is evidence that the recommendation of the
ACCESS program did take into account some of the concerns raised by the parents at the July
2012 meeting. For example, representatives for Natick believed that the ACCESS program
would help address the parents’ concerns about the block schedule at Natick High School. (A.R.
408-09). In addition, they made clear that the proposal was flexible and that they would reevaluate C.D.’s placement in October 2012, after they had more direct experience with her.
(A.R. 419). Because the record shows that representatives for Natick meaningfully considered

35

the parents’ input when proposing C.D.’s placement in the ACCESS program, and remained
open to reconsidering her placement in the future, they did not predetermine C.D.’s placement in
violation of the IDEA.
The parents also contend that Natick denied them the opportunity to participate
meaningfully in the IEP process by not allowing them to observe the ACCESS program. Under
Massachusetts law, school districts are required, “upon request by a parent, [to] 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. The administrative record shows that the parents requested the
opportunity to observe classes at Natick at the end of the 2011-12 school year, but that, due to
scheduling complications including standardized testing, special events, and final exams, Natick
was not able to find a time for them to observe. (A.R. 370). However, Natick did recommend
holding a team meeting in October 2012 to reevaluate C.D.’s placement, and stated that the
parents would be welcome to observe classes prior to that meeting. (Id.). While the parents thus
did not have the opportunity to observe classes prior to the July 2012 IEP meeting, Natick cannot
be faulted for failing to find an appropriate time for observations at the end of the school year.
Similarly, because the parents requested an IEP meeting in the summer, Natick cannot be faulted
for their inability to observe classes prior to that meeting. Natick’s offer to have the parents
observe classes in the fall was reasonable and, under the circumstances, would have constituted
“timely access.”
2.

Substantive Challenges

Plaintiffs contend that the hearing officer erred in concluding that the 2012-13 IEP was
reasonably calculated to provide a FAPE in the least restrictive environment. Their primary

36

complaint appears to be that the ACCESS program was more restrictive than necessary to
provide an adequate education, and that the hearing officer failed to consider evidence in the
record showing that C.D. had performed well in the general-education setting at McAuliffe.
The IDEA mandates a preference for educating students with disabilities in generaleducation settings. The IDEA’s requirement that students with disabilities be educated in the
“least restrictive environment” means that “[m]ainstreaming may not be ignored, even to fulfill
substantive educational criteria.” Roland M., 910 F.2d at 993. Rather, the benefits to be gained
from mainstreaming must be weighed against the educational improvements that could be
attained in a more restrictive (that is, non-mainstream) environment. Id.
The hearing officer concluded that C.D.’s placement in the ACCESS program was “less
restrictive than [her] McAuliffe placement,” where she was in general-education classes with the
assistance of a tutor, “because [the ACCESS placement] did not provide for the assistance of a
one to one aide throughout the day. It provided [C.D.] the opportunity to independently access
academic services in a program specifically designed for students with profiles similar to [hers].”
(A.R. 1565).
It is likely true that the ACCESS program provides greater individual autonomy to the
student than a one-on-one aide, and in that sense is “less restrictive.” But as a general matter, a
separate program for students with disabilities is not less restrictive than a placement in
mainstream, general-education classes. While C.D. may well have benefitted academically from
a placement in the ACCESS program—a conclusion well within the educational expertise of the
agency—such academic benefits “cannot be invoked to release an educational agency from
compliance with the [IDEA’s] mainstreaming provisions.” Roland M., 910 F.2d at 993 (internal
quotation marks omitted). It is unclear whether the hearing officer adhered to the requirement

37

that the benefit of mainstreaming be weighed against the benefits of a more restrictive
environment. Under the circumstances, on this issue, remand is appropriate in order to permit
the hearing officer to consider, or at a minimum clarify, whether the 2012-13 IEP was reasonably
calculated to provide a FAPE in the “least restrictive” environment possible.
Plaintiffs also contend that the 2012-13 IEP was defective because Natick had not yet
conducted a transition assessment. Under Massachusetts law, transition planning is to begin
when students are 14 years old, and C.D. was 15 when the 2012-13 IEP was created. (A.R.
2602). However, the IDEA does not require a stand-alone transition plan. See Sebastian M., 744
F. Supp. 3d at 407. Nor does Massachusetts law require a separate transition assessment. Under
Massachusetts law, transition assessment and planning can consist of informal discussion of the
student’s postsecondary goals, her skills and strengths that might contribute to that goal as well
as the skill and strengths she would need to acquire in order to achieve that goal, and the
supports and services necessary to help her make progress towards achieving that goal. See
Technical Advisory SPED 2014-4: Transitional Assessment in the Secondary Transition
Planning Process (“SPED 2014-4”) (“Any assessment that is conducted when a student on an
IEP is aged 14-22 can be viewed as a transition assessment, in that it affords information which
can be used to discern the student’s vision; understand the student’s needs, strengths, preference,
and interests; and measure progress towards the acquisition of skills.”).
C.D.’s post-secondary goals were discussed at both the May and July 2012 meetings, and
Natick discussed available services that might help her achieve those goals. (A.R. 326-28; 39195). The parents stated that they hoped she would receive a high-school diploma, but did not yet
know of any specific postsecondary goals. (A.R. 326-27; 391-93). The proposed IEP stated,
under the heading of “Vision Statement,” that C.D.’s parents hoped that she would receive a

38

high-school diploma and vocational training. (A.R. 2606). Furthermore, the IEP specified that
in order to help C.D. achieve her goals, she would be provided with vocational services. (A.R.
2617). Because transition services were discussed at the team meeting and mentioned in the IEP,
there was no error in the 2012-13 IEP based on transition planning. See Sebastian M., 744 F.
Supp. 3d at 407 (“Because transition services were mentioned in the IEPs and because transition
services were actually provided to [the student], there is no error here based on transition
planning.”).
C.

Adequacy of the 2013-14 IEP

Plaintiffs contend that the 2013-14 IEP was procedurally improper because Natick failed
to include accurate and up-to-date information regarding C.D.’s then-present levels of
performance. However, according to the 2013-14 IEP, Natick was unable to update C.D.’s
current performance level because Learning Prep—the school C.D. had attended for the past
year—had not provided sufficient data regarding her performance. (A.R. 2584). Plaintiffs fail to
put forth any specific information that Natick should have considered in creating the 2013-14
IEP but did not.
However, because the 2013-14 IEP was virtually identical to the 2012-13 IEP, it is
subject to the same substantive concerns as the prior IEP regarding whether placement in the
ACCESS program was the least restrictive environment possible. Accordingly, and for the same
reasons stated above, remand is appropriate to enable the hearing officer to determine whether
the 2013-14 IEP provided for an appropriate education in the least restrictive environment
possible.10

10

Plaintiffs also contend that the first IEP proposed for the 2014-15 year was not reasonably calculated to
provide a FAPE in the least restrictive environment. However, for the reasons stated below, any challenge to the
substantive adequacy of that IEP is moot because it was replaced prior to the start of the relevant school year. See
Pohorecki v. Anthony Wayne Local Sch. Dist., 637 F. Supp. 2d 547, 555 (N.D. Ohio 2009). Furthermore, because

39

D.

Adequacy of the 2014-15 IEPs
1.

Procedural Challenges

The parents contend that Natick predetermined the change in C.D.’s disability
classification from “intellectual” to “communication” prior to the team meeting on June 13,
2014. At the June 13 meeting, representatives for Natick stated that, based on the results of
C.D.’s three-year re-evaluations, they were “looking at noting her disability category as
communication” instead of intellectual. (A.R. 1007). C.D.’s father was surprised, and stated, “I
just think that the parents need a little bit of time to process that and, you know, it certainly can
be proposed. But it probably just needs some discussion.” (A.R. 1008). Donna Cymrot, the
school psychologist, responded, “I respect that it takes a little time to digest a change. . . .
[C]ertainly we can discuss it further if you care to.” (Id.).
As discussed above, pre-meeting consideration only amounts to predetermination if the
district refuses to consider the input, objections, and suggestions of the parents, such that they are
denied the opportunity to participate meaningfully in the IEP development process. Nack, 454
F.3d at 610. It appears from the administrative record as though representatives for Natick were
willing to consider the parents’ input and further discuss the change in C.D.’s classification with
them. Thus, the record does not support the parents’ contention that Natick predetermined the
reclassification. Furthermore, even if there had been some procedural inadequacy regarding the
reclassification, there is no evidence that the change in C.D.’s disability classification impeded
the parents’ ability to participate meaningfully in the IEP development process or changed the

plaintiffs do not appear to challenge the adequacy of the second and third IEPs proposed for the 2014-15 years on
the grounds that they were not reasonably calculated to provide a FAPE in the least restrictive environment (see Pl.
Reply at 2) remand on this issue is only necessary as to the 2012-13 and 2013-14 IEPs.

40

nature of the services provided to C.D.11
The parents also contend that Natick denied them the meaningful opportunity to
participate in the IEP process by unreasonably restricting their ability, as well as that of their
consultants, to observe classes at Natick High School. Under Massachusetts law, school districts
are not only required to provide timely access to parents and their evaluators or consultants for
observation, they are also prohibited from imposing any
conditions or restrictions on such observations except those necessary to ensure the
safety of children in a program or the integrity of the program while under
observation or to protect children in the program from disclosure by an observer of
confidential and personally identifiable information in the event such information
is obtained in the course of an observation by a parent or designee.
Mass. Gen. Laws ch. 71B, § 3. The parents contend that Natick imposed an unreasonable
restriction by prohibiting their experts from asking any questions during their
observations.
Nothing in either § 3 or the Commonwealth’s guidance concerning that section
explicitly requires that parents or their experts be given the opportunity to speak with
school staff during the course of their observations. See Mass. Gen. Laws ch. 71B, § 3;
Technical Assistance Advisory SPED 2009-2: Observation of Education Programs by
Parents and Their Designees for Evaluation Purposes (“SPED 2009-2”). Nonetheless, the
BSEA has, in the past, concluded that allowing experts the opportunity to ask questions
of teachers and other service providers is essential to enable those experts to conduct
thorough and meaningful evaluations of proposed IEPs. See In Re: Northbridge Public
Schools, BSEA # 09-2533 (Oct. 30, 2008). However, in order to avoid classroom

After discussing the potential change in C.D.’s disability category, a representative for Natick stated
“there is no one here that doesn’t think that [C.D.] needs to have continued support from a special education IEP.”
(A.R. 1009).
11

41

disruption, school districts do not need to permit experts to ask questions during the
observations themselves, but may set aside a separate time for questions afterward. See
id.
Here, it appears that Natick did not set aside time for the parents’ experts to ask
questions related to their observations. Furthermore, there is evidence in the
administrative record that the experts were unable to make a full evaluation of the
adequacy of the proposed IEP given their inability to ask follow-up questions. (A.R.
3148, 3153, 3755). However, any procedural error was cured when the parents’ experts
where able to submit clarifying questions in writing. The parents have not pointed to any
evidence in the record that the written questions and answers were inadequate to enable
their experts to make a meaningful evaluation of the appropriateness of Natick’s
proposed IEPs.
2.

Substantive Challenges

Plaintiffs next contend that the first two IEPs proposed for the 2014-15 year were not
reasonably calculated to provide a FAPE because a transition assessment had not yet been
conducted. As to the first IEP proposed for the 2014-15 year, it was replaced prior to the start of
the relevant school year, and thus any challenge to its adequacy is moot. See Pohorecki, 637 F.
Supp. 2d at 555 (concluding that IEP that was never implemented and was replaced prior to start
of relevant school year “is not ripe for adjudication as to whether it provided [student] with a
FAPE”). As to the second IEP proposed for 2014-15, transition planning was discussed at the
June 2014 team meeting and mentioned in the IEP. (A.R. 1085, 2557-58). That is sufficient to
satisfy the requirement for transition planning. See Sebastian M., 744 F. Supp. 3d at 407.
Plaintiffs also contend that the first proposed IEP for 2014-15 (dated April 15, 2014

42

through April 15, 2015) was not reasonably calculated to provide C.D. with a FAPE in the least
restrictive environment. Again, however, that IEP was only intended to be provisional and was
replaced in June 2014, prior to the start of the 2014-15 school year. Any challenge to its
adequacy is therefore moot. See Pohorecki, 637 F. Supp. 2d at 555.
E.

The Hearing Officer’s Treatment of Witness Testimony

Plaintiffs also contend that the hearing officer erred by giving insufficient weight to the
testimony of their witnesses and giving too much weight to the testimony of Natick’s witnesses.
However, “[c]redibility determinations . . . are the province of the factfinder, which in this case
is the Hearing Officer,” and should not be “recalibrate[d]” absent compelling evidence. Andover
Sch. Comm. v. Bureau of Special Educ. Appeals of Div. of Admin. Law Appeals, 2013 WL
6147139, at *14 (D. Mass. Nov. 21, 2013). Accord Sebastian M., 685 F.3d at 86 (“The valuation
of expert testimony is precisely the sort of first-instance administrative determination that is
entitled to judicial deference by the district court.”). Here, there is no compelling evidence to
warrant disregarding the hearing officer’s credibility determinations.
1.

Testimony of C.D.’s Father

Plaintiffs contend that the hearing officer improperly discounted the testimony of C.D.’s
father. They first contend that the hearing officer erred by discrediting the father’s statement that
the 2012-13 IEP was inadequate because it contained the same goals as the McAuliffe IEP, even
though the McAuliffe IEP involved education in an inclusive, general-education setting, while
the Natick IEP did not. The hearing officer discredited that statement based on the fact that the
father did not have any credentials in education. (A.R. 1566). Plaintiffs contend that by
discrediting that statement, “the hearing officer completely disregarded the fundamental
importance Congress placed on parental participation in the educational decision-making process

43

under the IDEA.” (Pl. Am. Mem. at 31-32). However, hearing officers are free to disregard
parent testimony when that testimony is “impressionistic and not based upon any expertise.”
J.E. v. Boyertown Area Sch. Dist., 834 F. Supp. 2d 240, 251 (E.D. Pa. 2011). Disregarding such
testimony under appropriate circumstances does not improperly strip parents of their right to
participate in the development of IEPs.
Plaintiffs also contend that the hearing officer erred by dismissing the father’s statement
that the hours of service in the 2012-13 IEP were less than those provided in the prior IEP. The
hearing officer concluded the father “did not present any credible evidence to support that
presumption.” (A.R. 1566). Plaintiffs now point to a chart provided to Natick by the father
indicating that the hours of service provided by the proposed IEP would be lower than the hours
of service provided by the prior IEP. (See A.R. 3432). However, in connection with his
testimony regarding the reduced programming, the father also testified that he understood that
the IEP proposed by Natick offered different programing, including different types of classes,
from the prior IEP at McAuliffe. (A.R. 1666). Given those differences, and even assuming that
the hours of service were in fact lower, there is nothing in the record to suggest that the decrease
in hours alone would have rendered the IEP inadequate to provide a FAPE.
Finally, plaintiffs contend that the hearing officer erred by disregarding their concern as
to whether the ACCESS program would prepare C.D. to take the MCAS. The hearing officer
noted the parents’ concern, but stated that their belief that the ACCESS program would be
inappropriate because it would not prepare C.D. for the MCAS “was an assumption made by
Parents and their evaluators that was not supported by the evidence before me.” (A.R. 1566).
The parents now contend that the hearing officer failed to consider evidence showing that
students in the ACCESS program are not prepared for the MCAS. However, there is also

44

evidence in the record (including testimony at the hearing from Natick teachers) showing that
students were able to move from the ACCESS program into replacement classes when their
abilities and classroom performance suggested that such a move was appropriate, and that
students in the replacement program are generally prepared to take the MCAS. (See A.R. 2298,
2396, 2439-40). It was within the hearing officer’s discretion to credit that testimony over that
of the parents. See Andover Sch. Comm., 2013 WL 6147139, at *14.
2.

Testimony of Nan Coellner

Plaintiffs next contend that the hearing officer erred by allegedly omitting all of the
testimony of C.D.’s tutor, Nan Coellner. However, the hearing officer recounted Coellner’s
testimony in her summary of the evidence, and considered that testimony in her analysis. (See
A.R. 1553, 1565, 1569). The hearing officer ultimately credited the testimony of others rather
than that of Coellner’s, but did not, as plaintiffs contend, fail to consider any of her testimony.
3.

Testimony of Suzanne Flax and Dr. Steve Imber

Plaintiffs further contend that the hearing officer erred by discrediting the testimony of
C.D.’s speech therapist, Suzanne Flax, and their independent evaluator, Dr. Steve Imber. The
hearing officer’s order stated that she did not rely on the testimony of either Flax or Dr. Imber
because she did not find them credible. (A.R. 1570-71). As to Flax, the hearing officer reasoned
that while she “had appropriate credentials and experience,” she made statements during her
testimony that “caused her to lose credibility.” (A.R. 1570). In particular, the hearing officer
noted that Flax testified that C.D. “would not benefit at all from any inclusion,” a statement not
supported by any other witness and contrary to her own prior recommendations for C.D. (Id.).
As to Dr. Imber, the hearing officer stated that while he previously supported an inclusive
placement, “he no longer believed that inclusion was as important for [C.D.],” and that, on that

45

basis, it appeared that he “changed his recommendations to align with which ever placement she
was in at the time he was asked to state his opinion.” (A.R. 1570-71).
Plaintiffs have failed to produce any evidence suggesting that this Court should now
“recalibrate” the hearing officer’s credibility determinations, and the Court will therefore defer to
those determinations. See Andover Sch. Comm., 2013 WL 6147139, at *14; Sebastian M., 685
F.3d at 86.
4.

Testimony of Arlyn Roffman

Plaintiffs next contend that the hearing officer improperly disregarded the testimony of
Arlyn Roffman, an expert in the field of transition services. Roffman testified at the hearing as
to her opinion of the transition services proposed by Natick. Plaintiffs contend that the hearing
officer “without explanation summarized [Roffman’s testimony] as, ‘she opined that the
transition plan contained in S-4 was not properly filled out.’” (Pl. Mem. at 37). It is true that the
hearing officer stated that “[m]ost of Dr. Roffman’s criticisms of the transition services Natick
proposed related to her opinion that forms were not filled out correctly.” (A.R. 1569). While it
may not have constituted the majority of her testimony, Roffman did testify regarding the way in
which the transition planning forms were completed. (A.R. 1755-56, 1780). More significantly,
however, the hearing officer did not disregard the rest of her testimony. The hearing officer also
addressed Roffman’s opinions that it was inappropriate for C.D. to receive vocational services in
a one-on-one setting as part of an extended school day and that the proposed services were not
adequately tailored to C.D.’s interests. (A.R. 1569). The hearing officer concluded that the
testimony of two Natick witnesses, McGovern and Cymrot, adequately addressed those concerns
and suggested that the transition services proposed were not inadequate on those grounds. (Id.).
While plaintiffs question Cymrot’s credibility as a witness, they have failed to offer any reason

46

to second-guess the hearing officer’s determination that the testimony of McGovern and Cymrot
was more credible on these points than that of Roffman.
5.

Testimony of Donna Cymrot

Plaintiffs next contend that the hearing officer erred by crediting the testimony of Donna
Cymrot, a psychologist at Natick High School, concerning the appropriateness of a “blended
program” of instruction that would combine some services in the ACCESS program with others
in general-education classes. The hearing officer credited the testimony of Cymrot, as well as
two other Natick witnesses (McGovern and Liptak), in concluding that the father’s objection to
C.D. being placed in any classes in the ACCESS program did not a support finding that the
2014-15 IEP, which proposed a blended program, was inadequate. (A.R. 1567-68). In
particular, the hearing officer credited Cymrot’s testimony that a blended program would enable
C.D. to address areas of weakness, such as math, more intensively in the ACCESS program,
while also allowing her to receive instruction in other areas in less-restrictive replacement
classes. (Id. at 1568).
Plaintiffs point to a number of statements that Cymrot made on cross-examination that
they contend undermine her credibility as a witness. (Pl. Mem. at 38). Many of those statements
relate to Cymrot’s opinion regarding the change in C.D.’s disability classification, and do not
appear to be relevant to her testimony concerning the appropriateness of a blended program. The
rest of the statements suggest that Cymrot had not reviewed the entire administrative record.
However, the record shows that Cymrot was well-versed regarding C.D.’s strengths and
weaknesses. (See A.R. 1007-09). There was thus adequate evidence in the record to support the
hearing officer’s conclusion that Cymrot was a credible witness, and the Court will not now
second-guess that determination.

47

6.

Testimony of Karen Liptak

Next, plaintiffs contend that the hearing officer erred in crediting the testimony of Karen
Liptak, a special-education teacher at Natick High School. As with Cymrot, the hearing officer
credited Liptak’s testimony regarding the appropriateness of a blended program over the father’s
testimony that placement in any ACCESS classes was inappropriate. Specifically, the hearing
officer credited Liptak’s testimony that C.D. would benefit from the opportunity to interact with
different peers in the different classes. (A.R. 1568).
Liptak testified that she had seventeen years of experience as a special-education teacher,
that she was familiar with both the ACCESS program and replacement classes at Natick High
School, and that she had some familiarity with C.D. from a summer program she attended at
Natick at which Liptak was a teacher. (A.R. 2321-26). It appears reasonable, based on that
experience, to credit Liptak’s testimony regarding the benefits of a blended program. While
plaintiffs point out that Liptak only had limited experience with C.D. in the summer of 2012, that
is not a sufficient basis on which to overrule the hearing officer’s credibility determination.
7.

Testimony of Christine Michelson

Finally, plaintiffs contend the hearing officer erred by crediting the testimony of
ACCESS teacher Christine Michelson over that of the parents and their witnesses. Specifically,
plaintiffs contend that the hearing officer erred by relying on Michelson’s opinion that the IEP
2014-15 IEP was appropriate because Michelson had neither met nor observed C.D and had not
reviewed all of the available evaluation reports. However, while the hearing officer recounted
Michelson’s testimony in her summary of the evidence, it does not appear that she relied on that
testimony in finding that the IEPs proposed for 2014-15 were appropriate. (See A.R. 1560-61,
1567-69). In her consideration of the appropriateness of those IEPs, the hearing officer

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specifically referred to and relied upon the testimony of other Natick witnesses—including
McGovern, Cymrot, Litpak, Brown, and Karian—but did not refer to Michelson’s testimony.
Plaintiffs’ contention accordingly appears to be misplaced.
F.

Hearing Officer’s Failure to Consider the Expert Reports of Dr. Imber, Flax,
and Roffman

Plaintiffs contend that the hearing officer erred by failing to consider reports that were
prepared by Dr. Imber, Flax, and Roffman and provided to Natick as exhibits five business days
prior to the hearing. The hearing officer stated that she “did not rely upon the most recent
reports submitted by Ms. Flax or Dr. Imber, as they were first presented to Natick as exhibits in
the hearing and the [IEP] Team did not have the opportunity to review them prior to the
hearing.” (A.R. 1571). She similarly stated that she “did not rely upon the written report of Dr.
Roffman as it was not received by Natick prior to the hearing.” (Id.).
Plaintiffs contend that the hearing officer’s failure to rely on those reports was erroneous,
because the reports were timely submitted to Natick as exhibits prior to the hearing in
accordance with Rule IX of the BSEA rules and 45 C.F.R. § 300.502. They concede that the
reports—which were completed after the development of the third 2014-15 IEP—were not
relevant to the hearing officer’s determination of the adequacy of that IEP, as they were not
available to Natick at the time the IEP was promulgated. (Pl. Reply at 28). They contend,
however, that the reports should have been considered for other purposes, such as witness
credibility, their assessments of the prior IEPs, and their statements concerning their inability to
obtain information from Natick.
It is clear from the record that the testimony of Dr.Imber, Flax, and Roffman provided
ample information regarding their professional experiences and expertise, their experience with
and knowledge of C.D., their assessments of the prior IEPs, and their abilities or inabilities to
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obtain information from Natick. (See, e.g., A.R. 2015-23, 2026-2030, 2034, 2040, 2043-52
(Imber); 1840-43, 1845-46, 1854, 1855-56, 1870-72 (Flax); 1745-47, 1751-57, 1761, 1762-64
(Roffman)). Plaintiffs have failed to identify any additional evidence contained within the
reports that would have been anything other than cumulative of their testimony at the hearing.
There is, therefore, no basis from which to conclude that hearing officer’s failure to consider the
results themselves resulted in any kind of error.
G.

The Hearing Officer’s Determination as to Plaintiffs’ Discrimination Claims

In their complaint before the BSEA, plaintiffs alleged that Natick engaged in
discrimination and retaliation in violation of 42 U.S.C. § 1983 and § 504 of the Rehabilitation
Act. The hearing officer concluded that the record was unclear as to the basis of the allegation
and that the parents had “not met their burden of showing that Natick engaged in discrimination”
and that the BSEA “does not have jurisdiction over claims of discrimination under Section
1983.” (A.R. 1570). Plaintiffs now contend that the hearing officer ignored substantial evidence
in the record suggesting that Natick discriminated C.D. on the basis of her disability. They
contend that the record was “replete” with evidence of discrimination, citing to evidence
concerning the restrictions placed on plaintiffs’ consultants when visiting classes at Natick High
School.
As to the § 1983 claim, the hearing officer was correct to conclude that she lacked
jurisdiction. While section 1983 claims are sometimes permitted to be brought along with IDEA
claims in a BSEA proceeding, the BSEA does not have the jurisdiction to resolve such claims.
See In re Rafael v. Norton Public Schools, BSEA # 1609348, at 8-9 (Aug. 30, 2016). Section
1983 claims may be brought before the BSEA only for the purpose of developing a relevant
factual record to aid later court adjudication. See id.; CBDE Pub. Schs. v. Massachusetts Bureau

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of Special Educ. Appeals, 2012 WL 4482296, at *8 n.7 (D. Mass. Sept. 27, 2012). Because
plaintiffs challenge only the hearing officer’s determination as to the § 1983 claim, and do not
appear to bring an independent claim, that claim must fail.
As to the § 504 claim, plaintiffs bear the burden of proving four elements: “(1) that
[C.D.] is disabled; (2) that she sought services from a federally funded activity; (3) that she was
‘otherwise qualified’ to receive those services; and (4) that she was denied those services ‘solely
by reason of her . . . disability.” Lesley v. Hee Man Chie, 250 F.3d 47, 53 (1st Cir. 2001)
(quoting 29 U.S.C. § 794(a)). Plaintiffs appear to contend that Natick discriminated against C.D.
on the basis of her disability by placing restrictions on the ability of her consultants to ask
questions while observing classes. However, plaintiffs have failed to offer any evidence
suggesting that Natick imposed those restrictions “solely by reason of [C.D.’s] . . . disability.”
The record suggests that Natick imposed those restrictions because the consultants had been
disruptive during a prior observation (see A.R. 3146), and plaintiffs have not offered any
evidence to suggest that that reason was pretextual. They have not, for example, offered any
evidence “showing weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the . . . proffered legitimate reasons” provided by Natick.” D.B. ex rel.
Elizabeth B. v. Esposito, 675 F.3d 26, 42 & n.10 (1st Cir. 2012) (holding that plaintiffs failed to
show that school district’s proffered legitimate, non-retaliatory explanations for its actions were
pretextual).
IV.

Conclusion
For the foregoing reasons, plaintiffs’ motion for summary judgment is DENIED. The

matter is hereby REMANDED in part to the Board of Special Education Appeals for further
proceedings, consistent with this opinion, as to whether the 2012-13 and 2013-14 IEPs provided

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a free appropriate public education in the least restrictive environment possible.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: July 21, 2017

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