Doe v. Newton Public Schools

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

JOHN DOE, JANE DOE, and DAVID DOE, )

)

Plaintiffs, )

) Civil Action

v. ) No. 19-12293-PBS

)

NEWTON PUBLIC SCHOOLS and BUREAU )

OF SPECIAL EDUCATION APPEALS, )

)

Defendants. )

______________________________ )

MEMORANDUM AND ORDER

May 3, 2021

Saris, D.J.

INTRODUCTION

Plaintiffs John and Jane Doe, along with their son, David

Doe, challenge a decision by a hearing officer at the Bureau of

Special Education Appeals of the Massachusetts Division of

Administrative Law Appeals (BSEA). The hearing officer found that

Newton Public Schools (Newton) had provided David, who is autistic,

with a “free appropriate public education” as required under the

Individuals with Disabilities Education Act (IDEA). See 20 U.S.C.

§ 1400(d)(1)(A). The Does unilaterally placed their son in an

out-of-state residential therapeutic school after his sophomore

year in Newton North High School (Newton North) because he had

been treated and hospitalized for suicidal thinking over the

summer. He refused to return to Newton North because he felt he

was being bullied. Plaintiffs argue that the full-inclusion

program which Newton North proposed to deal with his problems did

not provide an appropriate level of therapeutic and other services

necessary to provide meaningful access to the academic curriculum.

As relief, the Does request that the Court reverse all

portions of the BSEA hearing officer’s decision and order, issue

an order finding that Newton failed to provide a free appropriate

public education to David, require Newton to reimburse their

expenses related to sending David to Franklin Academy, and award

Plaintiffs reasonable attorneys’ fees and costs.

For the reasons stated below, the Court ALLOWS in part the

Does’ motion for summary judgment (Dkt. No. 60) but excludes from

reimbursement the costs of boarding and out-of-state travel. The

Court concludes that the cost of a private residential school (as

opposed to an out-of-district day therapeutic program) was

unreasonable. The motions for summary judgment filed by BSEA and

Newton (Dkt. Nos. 58 and 59) are accordingly DENIED in part.

BACKGROUND

I. Statutory Framework

A. The Individuals with Disabilities Education Act (IDEA)

The IDEA, 20 U.S.C. §§ 1400 et seq., seeks to “ensure that

all children with disabilities have available to them a free

appropriate public education (FAPE).” 20 U.S.C. § 1400(d)(1)(A).

Massachusetts law similarly requires that school committees

provide students with a FAPE as defined under the IDEA. Mass.

Gen. Laws ch. 71B, § 1. “FAPE” is defined as:

special education and related services that—

(A) have been provided at public expense, under public

supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary

school, or secondary school education in the State

involved; and

(D) are provided in conformity with the individualized

education program required under [20 U.S.C.

§] 1414(d).

20 U.S.C. § 1401(9). “Related services” includes counseling and

psychological services “as may be required to assist a child with

a disability to benefit from special education.” 20 U.S.C.

§ 1401(26)(A).

20 U.S.C. § 1401(9)(D) requires that a FAPE be provided “in

conformity with the individualized education program [IEP]

required under section 1414(d) of [the IDEA].” An IEP consists of

“a written statement for each child with a disability” that

includes, inter alia

a statement of the child’s present levels of academic

achievement and functional performance . . .;

a statement of measurable annual goals . . .;

a statement of the special education and related

services and supplementary aids and services, based on

peer-reviewed research to the extent practicable, to be

provided to the child, or on behalf of the child.

20 U.S.C. § 1414(d)(1)(A)(i). “The instruction offered [through

an IEP] must be specially designed to meet a child’s unique needs.”

Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137

S. Ct. 988, 999 (2017) (cleaned up). “The development of an IEP

requires the participation of a team of individuals, including the

parents, the child’s teacher, designated specialists, and a

representative of the [local education agency].” Roland M. v.

Concord Sch. Comm., 910 F.2d 983, 988 (1st Cir. 1990) (citations

omitted).

The Supreme Court has described the IEP as “[t]he primary

vehicle for implementing [the] congressional goals” behind the

IDEA and the concept of a FAPE. Honig v. Doe, 484 U.S. 305, 311

(1988). In this context, an IEP must ensure the “opportunity for

meaningful educational benefit.” D.B. ex rel. Elizabeth B. v.

Esposito, 675 F.3d 26, 32 (1st Cir. 2012) (internal quotation marks

omitted). Under the IDEA, a State is not required to “maximize

the potential of handicapped children commensurate with the

opportunity provided to other children.” Bd. of Educ. of Hendrick

Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176,

189–90 (1982) (cleaned up). The question, rather, is whether the

IEP was “reasonably calculated” to provide a FAPE. See Roland M.,

910 F.2d at 992 (cleaned up). Accordingly, “courts have concluded

that a FAPE may not be the only appropriate choice, or the choice

of certain selected experts, or the child’s parents’ first choice,

or even the best choice.” G.D. v. Westmoreland Sch. Dist., 930

F.2d 942, 948 (1st Cir. 1991) (emphasis in original).

B. Mainstreaming Provision

“Mainstreaming” of students is preferred under the IDEA,

Roland M., 910 F.2d at 987, which requires that students be

educated in the “[l]east restrictive environment,” 20 U.S.C.

§ 1412(a)(5). Education in the “[l]east restrictive environment”

means that

[t]o the maximum extent appropriate, children with

disabilities, including children in public or private

institutions or other care facilities, are educated with

children who are not disabled, and special classes,

separate schooling, or other removal of children with

disabilities from the regular educational environment

occurs only when the nature or severity of the disability

of a child is such that education in regular classes

with the use of supplementary aids and services cannot

be achieved satisfactorily.

20 U.S.C. § 1412(a)(5)(A). In light of this so-called

mainstreaming provision, local education agencies may recommend a

residential placement in an IEP only where the student “would not

make educational progress in a day program.” Lenn v. Portland

Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993) (cleaned up).

C. Unilateral Placement in a Private School

The IDEA provides that, under some circumstances, parents may

be reimbursed for the education of a child enrolled in a private

school “without consent of or referral by the public agency.” 20

U.S.C. § 1412(a)(10)(C)(ii). Specifically, reimbursement for the

costs of private schooling is available where a “court or hearing

officer finds that the [public] agency had not made a free

appropriate public education available to the child in a timely

manner prior to [the] enrollment [in private school].” Id.

The cost of reimbursement may be reduced or denied, however,

“upon a judicial finding of unreasonableness with respect to

actions taken by the parents.” 20 U.S.C.

§ 1412(a)(10)(C)(iii)(III). Courts, moreover, are empowered by

the IDEA to “grant such relief as the court determines is

appropriate,” 20 U.S.C. § 1415(i)(2)(C)(iii), and may consider

equitable factors in fashioning relief, see Florence Cty. Sch.

Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15–16 (1993).

These discretionary powers are broad, and they permit a court to

reduce reimbursement “if the court determines that the cost of the

private education was unreasonable.” Id. at 16.

D. Hearing Process

If a complaint about an IEP arises, the State must convene an

“impartial due process hearing.” 20 U.S.C. § 1415(f)(1)(A). In

Massachusetts, such hearings are performed by the BSEA. Roland

M., 910 F.2d at 988 (citing Mass. Gen. Laws ch. 15, § 1M).

The outcome of the BSEA hearing is reviewable in federal

court. Id. The reviewing court’s “focus is upon the educational

program which finally emerges from the administrative review

process, not the IEP as originally proposed.” Id. (citation

omitted). Moreover, the Court must judge the IEP based on the

information that was available at the time the IEP was developed.

“An IEP is a snapshot, not a retrospective.” Id. at 992. This

means that “[i]n 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.” Id. (citations omitted).

If the Court finds that the IEP was not appropriate, it must

then determine whether the private program was appropriate. See

Florence Cty., 510 U.S. at 12. Upon such a finding, the Court may

order the school district to reimburse the parents for some or all

of the cost of the private program, as described above. See id.

II. Factual Background

The following facts are derived from the parties’ statements

of facts and associated exhibits, as well as the hearing officer’s

opinion. Except where otherwise noted, they are undisputed.

A. Freshman Year (2015-2016)

David has received special education services since he was in

kindergarten, and his IEPs from third grade onwards identified

autism as David’s primary disability. A neuropsychological

evaluation report shows that David has also been diagnosed with

major depression and an anxiety disorder. The services provided

to David in elementary school included inclusion support,

occupational therapy, social pragmatics instruction, and adaptive

physical education. David began reporting suicidal ideation in

middle school and started working with a therapist, but the

therapist ultimately recommended that the services be discontinued

due to David’s resistance to them.

In ninth grade, in 2015, David joined Newton North. At the

Does’ request, David’s ninth-grade IEP eliminated many of the

support services that he had received in middle school, including

instructional modifications, David’s daily academic support class,

and inclusion support. David also underwent an evaluation by Dr.

Colleen Meigher, a Newton school psychologist, who met with him

for approximately two to three hours in January 2016. David

enrolled in courses at the Advanced College Prep level, but he was

not enrolled in any Honors-level courses. He participated in

extra-curriculars, including cross country and Model U.N.

David’s next IEP covered the period from March 29, 2016 to

March 28, 2017. In preparation for David’s March 2016 IEP meeting,

his teachers indicated in assessment forms that David struggled

with memory problems, slow processing speed, failure to finish

assigned tasks, difficulty dealing with large class sizes, and

difficulty working independently. The assessment forms showed

that David was receiving grades ranging from A to B- at the time

of the evaluation. The resulting IEP provided for regular

consultation and services by a speech pathologist in social

pragmatics. It also provided for other academic supports,

including accommodations for test-taking; access to a keyboard for

note taking; extended time for completing assignments and tests;

extensions for long-term writing assignments as needed; clear

statements of classroom instructions, assignments, and due dates;

encouragement for self-advocacy; and support in explaining

directions, unfamiliar tasks, etc. David’s parents accepted the

IEP in full.

B. Sophomore Year (2016-2017)

In tenth grade (2016-2017), David enrolled in two Honors-

level classes. David also continued to participate in social

pragmatics sessions, but his speech language pathologist reported

that he attended the sessions “begrudgingly.” Dkt. 26-1 at 113.

David had told the speech language pathologist that he felt

stigmatized by being in an IEP program and did not believe that he

needed social pragmatics support.

In January 2017, David’s Latin teacher wrote a letter to

David’s guidance counselor, which the teacher then forwarded to

David’s parents. The letter explained that David had reported to

the teacher that he was “drowning” due to his two Honors-level

classes, and that he was getting little sleep and was often sick.

When David’s teacher suggested to David that he could change his

schedule, David explained that he could not drop Honors math

because he would then not be eligible to go to a “good college.”

Dkt. 26-1 at 114. John Doe responded to the letter, explaining

that the teacher was “preaching to the choir” and that he and Jane

Doe had tried to convince David to not enroll in Honors math and

had attempted to convince David to meet with an outside

psychologist. Id.

In February 2017, the Does sent an email to David’s speech

language pathologist and his guidance counselor expressing doubt

that the upcoming IEP Annual review meeting would be productive.

They further explained that they were considering vetoing David’s

enrolment in Honors-level courses the following year. In or around

March 2017, the Does emailed David’s guidance counselor requesting

that David’s teachers deny him the opportunity to enroll in “too

high-level classes.” Dkt. 26-1 at 114.

In March 2017, David met with his IEP Team, where he was

informed that his teachers would not be recommending him for

Honors-level classes the following year. David became upset,

breaking down in tears and saying, “[d]on’t do this to me. I have

nothing now.” Dkt. 71 ¶ 25. Pursuant to this meeting, David’s

Team proposed an IEP with an added goal in the area of planning,

organizing, and strategizing. David’s guidance counselor

testified that the Does apparently believed that David would be

resistant to any additional services being added to his IEP.

David continued to struggle to accept his academic and social

challenges. On March 21, 2017, David informed his parents that he

wanted to kill himself by jumping out of the fourth-floor window

of a building at Newton North. David’s parents sought an emergency

meeting with David’s guidance counselor but did not call a doctor

or 9-1-1.

On March 23, 2017, David’s parents brought him to Riverside

Emergency Services for a safety evaluation. At Riverside, David

denied suicidal intent and reported that he would not act on

suicidal ideation. He explained that his teachers had recommended

that he not enroll in Honors-level classes the previous week and

reported that “the only thing I have going for me is that I am in

some Honors classes.” Dkt. 26-1 at 115. The Riverside staff did

not find that David was in immediate danger of harming himself and

sent him home. David’s parents subsequently found a private

therapist, Dr. Albert Cotugno, who began to meet with David weekly.

The spring of David’s sophomore year was also punctuated by

two major social incidents that led to a deterioration in David’s

mental well-being. First, in May 2017, David was not elected to

a leadership position in Model U.N. In an email to David’s

guidance counselor, David’s parents explained that David had

become “ill” over the results of the election and was unable to

attend school the next day as a result. Then David’s social

struggles worsened when he reported to school authorities that a

fellow student had a stolen copy of an Honors chemistry exam and

posted it in a chat room. After members in his study chatroom

were notified of his actions, he was verbally threatened by several

students.

C. Summer Before Junior Year (2017)

In June 2017, David’s Team reconvened to review his March

IEP. They proposed adding academic support with a special

education teacher to David’s schedule, and they also proposed

continuing social pragmatics. The Team did not include counseling

in the IEP. One of David’s teachers recalled that counseling was

excluded from David’s program because of David’s resistance to

such services.

In July 2017, David’s parents discovered a large bottle of

Tylenol in David’s room. David admitted he had taken the Tylenol

with the intent of using it to commit suicide. The Does made an

appointment for David at the Lurie Center for Autism at

Massachusetts General Hospital. David was evaluated by Dr.

Michelle Palumbo, a psychiatrist, who found that David presented

with symptoms of “major depressive disorder, severe, with active

suicidal ideation and a history of suicidality ideation with plan.”

Dkt. 26-1 at 118.

On July 19, 2017, the Does emailed members of David’s IEP

team at Newton and informed them of David’s hospitalization and

his opposition to returning to Newton North. They also reported

that David had been bullied at Newton North. On July 26, 2017,

twelve days after he was first hospitalized in a locked pediatric

ward, David was discharged from North Shore Medical Center and

admitted for treatment at McLean Southeast Adolescent Residential

Program (“McLean”) in a full hospital setting where he remained

until August 9, 2017. His discharge notes explain that his

depressive symptoms had begun to ameliorate, and that David was

open the possibility of attending a therapeutic high school instead

of Newton North.

Upon his release, David’s clinicians at McLean, child

psychiatrist Peter Adams and social worker/case manager Catherine

Lopes, determined that David would require “extensive therapeutic

support in order to be able to access the academic curriculum at

any level” and recommended that he attend a therapeutic school.

Dkt. 26-8 at 155. They explained:

[David] would benefit from a program with experience in

working with teens with high functioning Autism spectrum

disorder and ongoing mood crises. [David] will need

daily mental health check-ins and therapy support.

[David] will need to have access to staff and therapeutic

supports in order to develop flexibility of thinking,

and combat his current thought rigidity that: school

performance is the only predictor of a life worth living.

Secondarily, [David] would benefit from learning healthy

coping skills to manage mood crisis, rejection and

unwanted feelings. We strongly recommend [David] be

considered for services offered at a therapeutic school

given his ongoing emotional difficulties, coupled with

suicidal thinking, which will continue to require

intensive interventions.

Dkt. 26-8 at 155.

With the help of a hired educational advocate, the Does began

looking at special day and residential schools for David. One was

Franklin Academy. Franklin, a college preparatory school, was

designed to educate children diagnosed with autism spectrum

disorders. Many Franklin students also present with depression

and anxiety and report bullying in their past schools. The classes

at Franklin are small, with approximately seven students per class.

Each student receives a team, including a counselor, learning

specialist, residential dean, and four subject teachers. The team

meets three times per week to discuss the student’s progress and

each team has a designated liaison to provide updates to the

parents.

Notably, Franklin is also a residential school, offering a

boarding program to its students in Connecticut. The Does had

focused their search on residential schools because David had

failed to make friends at Newton North. They believed that David,

who had spent most of his free time in his room studying, could

learn about friendship only at a residential program, where skilled

staff were available to instruct in social pragmatics. The Does

also, however, simultaneously looked at some therapeutic day

programs, including Beacon High School, which is in-state.

On August 18, 2017, the Does sent an email to Newton rejecting

the proposed IEP and placement from June 2017, explaining that

they believed that David required an appropriate therapeutic

placement. The Does requested a meeting to discuss the rejected

IEP and a new approach to David’s education. On August 25, 2017,

the Assistant Special Education Department Head of Newton North

emailed the Does and members of David’s IEP Team, offering a

meeting with the Does to discuss the rejected June IEP. When

David’s parents accepted the invitation, they attached a copy of

the letter from Adams and Lopes recommending that David enroll in

a therapeutic schooling program.

D. The August 31, 2017 IEP Meeting

David’s IEP Team met on August 31, 2017 to discuss the

rejected June 2017 IEP and to address David’s suicidal ideations

and recent hospitalization. None of the clinicians who had treated

David over the summer were present. Newton proposed that David

receive increased speech and language services and that he receive

additional academic support as part of a revised IEP. It also

proposed that David participate in Newton North’s LINKs program,

a special education program. According to the hearing officer,

Mr. Heslin, a former co-director of the LINKs program, explained

that LINKs was a therapeutic program that provided individual and

group counseling. The parties dispute how the LINKs program was

specifically described during the August 2017 IEP meeting. The

Does assert that their patient advocate asked many questions about

LINKs but that Newton was unable to answer most of her questions.

They further contend that at no point was LINKs referred to as

“therapeutic” during the meeting. Newton disputes these

characterizations of the meeting and asserts that LINKs is a

therapeutic placement.

At the end of the meeting, the Does’ advocate informed Newton

that they intended to place David at Franklin Academy and would be

requesting reimbursement for the school’s tuition.

E. The August 31, 2017 IEP

In addition to proposing David’s enrollment in the LINKs

program, the proposed IEP resulting from the August 31, 2017

meeting consisted of the following services for David:

• Four sessions of 60 minutes each per five-day cycle of

academic support

• Two sessions of 30 minutes each per five-day cycle of

counseling services

• One session of 50 minutes per five-day cycle of social

pragmatics.

The IEP further provided for the following consultation services,

which are indirect services to school personnel and parents:

• One session of 30 minutes per month of social pragmatics

consultation

• One session of 15 minutes per month of academic support

consultation

F. Enrollment in Franklin Academy

David applied to Franklin on August 26, 2017, and he was

accepted on August 29, 2018. By August 30, 2017, David’s parents

had emailed some of the private schools with which they had

communicated to inform them that David had accepted an offer at

Franklin. The Does then confirmed their acceptance via a deposit

on September 3, 2017.

G. Newton Denies Funding for Franklin Academy

On or after September 11, 2017, Newton administrators sent

the Does a letter denying their request for funding for David’s

enrollment at Franklin Academy. In the letter, Newton also

proposed an evaluation of David in a 45-day assessment program.

On October 16, 2017, the Does’ attorney sent a renewed request to

Newton to support David’s placement at Franklin, emphasizing his

emotional distress and that the LINKs program and proposed IEP

were insufficient to meet his needs. The Does formally rejected

the proposed August 31, 2017 IEP and declined to release David’s

information to extended evaluation programs.

H. Junior Year (2017-2018)

Although David’s transition to Franklin Academy was rocky,

marked by anxiety around getting into college and lingering

resentment towards Newton North, the mental health professionals

who supported him during his junior year observed some progress in

his mental and emotional state. Shannon Cove, a learning

specialist on David’s eleventh grade team at Franklin, reported

that she worked with David to encourage him to spend more time

socializing instead of studying in his bedroom in the evenings.

As David began gradually interacting with more students, he

developed a social group of classmates with whom he ate lunch and

socialized during his free time. Although Cove observed that David

remained rigid and continued to struggle after his junior year,

she nevertheless believed that David benefitted from the

residential aspect of Franklin.

David received individual counseling from a school counselor

at Franklin, and he also began seeing a private therapist, Dr.

Barbara Hughes. Although Dr. Hughes observed that David continued

to face significant challenges, she also believed that David had

made progress during his first year at Franklin, noting, for

instance, that David had organized a Model U.N. club at the school.

I. The April 25, 2018 IEP

In February 2018, the Does had David evaluated by Jason

McCormick, a neuropsychologist and expert in children and young

adults with autism. Dr. McCormick determined that David needed to

be placed in a specialized education program in a residential

setting. Dr. McCormick thought that it was essential that David

receive “in-the-moment” instruction of social, emotional, and

executive functioning skills and noted that David’s social

challenges were “inextricably linked” to his emotional distress.

Dkt. 26-9 at 141–42. Dr. McCormick thus found residential placement

necessary based on David’s need for continuous social and emotional

support.

On April 25, 2018, David’s IEP Team met for an annual review

and to discuss Dr. McCormick’s evaluation. The IEP proposed that

David be placed in an unspecified “Out of District Private/Public

Day” school that would allow “all IEP services [to] be provided

outside the general ed. classroom and in a separate school that

only serves students with disabilities.”1 Dkt. 26-10 at 2. In

contrast to Dr. McCormick’s recommendation, the IEP did not

recommend that David be placed in a residential program. On June

26, 2018, the Does rejected the April 25, 2018 IEP, feeling that

David needed to continue his placement at Franklin in its

residential program.

J. Senior Year (2018-2019)

David remained at Franklin Academy for his senior year of

high school. He participated in the Franklin Learning Institute

program, which offers high school seniors a college-like

experience. When David met with Dr. Palumbo in December 2018, he

reported that he was doing well at Franklin, and that he had

developed friendships and better sleeping and eating habits.

K. The March 25, 2019 IEP

On March 25, 2019, David’s IEP Team reconvened to produce a

final IEP for David. The IEP team continued to propose that David

be placed in a therapeutic day program, consistent with its

1 A separate section of the IEP indicated that David should be

placed a “[p]ublic” “[s]eparate [d]ay [s]chool.” Dkt. 26-10 at 2.

The parties do not discuss this language from the IEP and Newton

and BSEA have admitted that the IEP Team proposed that David be

placed in an “Out of District Private/Public Day.”

recommendation in the prior year. The Does rejected this

recommendation.

L. The Due Process Hearing

The Does filed a due process hearing request with the BSEA

pursuant to the IDEA. The hearing before the BSEA took place on

May 20, 2019 and May 21, 2019 and included discussion of the three

most recent IEPs outlined above. On August 9, 2019, the hearing

officer issued her decision, which held that Newton had offered a

FAPE for the 2017-2018 and 2018-2019 school years, thus denying

the Does reimbursement of the costs associated with David’s

placement at Franklin Academy. On November 7, 2019, the Does

initiated this action appealing the officer’s decision.

LEGAL STANDARD

“District courts considering challenges to administrative

IDEA decisions apply an intermediate standard of review.” Johnson

v. Bos. Pub. Sch., 906 F.3d 182, 190 (1st Cir. 2018). Under this

standard,

[a] district court reviews the administrative record,

which may be supplemented by additional evidence from

the parties, and makes an independent ruling based on

the preponderance of the evidence. However, that

independence is tempered by the requirement that the

court give due weight to the hearing officer’s findings.

As a result, a district court’s review falls somewhere

between the highly deferential clear-error standard and

the non-deferential de novo standard.

Id. (citing D.B. ex rel. Elizabeth B., 675 F.3d at 35–36

(alteration in original)). “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. ex rel.

N.B. v. Warwick Sch. Comm., 361 F.3d 80, 83–84 (1st Cir. 2004)

(citations omitted).

The IDEA provides that, “basing its decision on the

preponderance of the evidence, [the reviewing court] shall grant

such relief as the court determines is appropriate.” 20 U.S.C.

§ 1415(i)(2)(C)(iii). Thus, if a court holds that the public

placement violated the IDEA, the court is empowered to weigh

equitable considerations in fashioning relief. Florence Cty., 510

U.S. at 15–16. Indeed, “[c]ourts fashioning discretionary

equitable relief under IDEA must consider all relevant factors,

including the appropriate and reasonable level of reimbursement

that should be required.” Id. at 16. This means that “[t]otal

reimbursement will not be appropriate if the court determines that

the cost of the private education was unreasonable.” Id.

ANALYSIS

I. Whether the August 31, 2017 IEP Provided a FAPE

Newton and BSEA argue that the August 31, 2017 IEP was

appropriate and was reasonably calculated to provide David with

meaningful educational benefits in the least restrictive

environment. In support of this contention, they point to evidence

that (1) none of David’s clinical treatment providers attended the

IEP meeting; (2) although a letter from David’s physicians at

McLean recommended that David attend a therapeutic school, the

letter did not discuss any recommendations that David enroll in a

residential program; (3) the team responsible for crafting the IEP

proposed to increase social pragmatics and counseling support; and

(4) the team recommended David’s placement in the LINKs program,

which would provide David with adequate special education services

at Newton North.

The Does, on the other hand, argue that (1) the hearing

officer failed to give due weight to David’s needs; (2) the hearing

officer ignored evidence showing that the Does were provided with

little information about the LINKs program, that David would have

spent little time in LINKs, and that the program was inappropriate

for David; (3) the hearing officer erroneously relied on

information presented by Newton two years after the IEP was

produced, which was not available at the time; (4) the hearing

officer misapplied the “least restrictive environment” principle;

and (5) that, by adopting the April 25, 2018 IEP, Newton

effectively conceded that the August 31, 2017 IEP was inadequate.

The Does have presented sufficient evidence to prove by a

preponderance of the evidence that the information available to

David’s IEP team before the August 31, 2017 IEP was produced

supported David’s placement in a therapeutic program. They have

also demonstrated that the program offered by Newton in the IEP

was inadequate to meet this need. To begin, the clinicians who

had treated David at McLean, Dr. Adams and Lopes, expressed in no

uncertain terms that David “be considered for service offered at

a therapeutic school given his ongoing emotional difficulties,

coupled with suicidal thinking, which will continue to require

intensive interventions.” Dkt. 26-8 at 155. They further

determined that, due to David’s thinking patterns, including

“thought rigidity . . . around school performance and rigor and

suicide,” David would require “extensive therapeutic support in

order to be able to access the academic curriculum at any level.”

Id.

Although the hearing officer’s decision cited these

recommendations, the officer failed to adequately explain why she

discredited them. Instead, the officer determined that Newton’s

recommendation to place David in the LINKs program was reasonably

calculated to provide David with a FAPE in the least restrictive

environment. This conclusion was largely based on the testimony

of Dr. Meigher, the Newton school psychologist with a specialty in

suicide prevention, who had conducted a psychological evaluation

of David as part of his three-year evaluation. According to Dr.

Meigher, LINKs would provide David with adequate therapeutic

support and a “home base” during the day as well as individual and

group counseling. Dkt. 26-1 at 121. Under Newton’s proposal,

David would still go to mainstream academic classes at Newton

North. The hearing officer concluded that Dr. Meigher had

“credibly testified that the LINKs program could meet [David]’s

therapeutic needs,” citing evidence that David could “participate

in both individual and group therapy” as a student in LINKs and

would be able to “leave the LINKs classroom to receive academics

at a higher level . . . and still return to the LINKs classroom at

any time during the day.” Id. at 130.

But, as the Does point out, Dr. Meigher testified that she

had seen David for only one psychological evaluation, in 2016,

during his time at Newton. She did not see him after his mental

health crisis in the summer of 2017. And although Dr. Adams and

Lopes from McLean were not present at the August IEP meeting, Dr.

Meigher was not present either. The clinicians at McLean who wrote

the letter strongly recommending a therapeutic school placement

for David were responsible for David’s psychiatric care during the

events of the summer leading to his unilateral placement, and they

were better positioned than Dr. Meigher to understand David’s needs

at the time that the August 31, 2017 IEP was developed. On the

whole, the hearing officer’s failure to explain adequately why she

discredited the McLean clinicians’ recommendations in favor of Dr.

Meigher’s opinion undermines her decision.

One key question addressed by the hearing officer was whether

the LINKs program would have provided enough therapeutic support

to David. Based on Dr. Meigher’s testimony, the hearing officer

reasonably could find that David would have received some

therapeutic benefit from having enrolled in the program. But the

LINKs program would nevertheless have required David to continue

participating in the full-inclusion model at Newton North, rather

than taking classes at a “therapeutic” school with daily mental

health check-ins and therapy support, as was “strongly”

recommended by his McLean clinicians. Dkt. 71 at 24. Indeed, the

Does have calculated that David would have spent less than 21% of

school hours outside the general education classroom while in

LINKs2.

2 The brochures about LINKs included in the administrative record

paint an inconsistent picture. One brochure for the LINKs program

states that it provides “a highly supportive and flexible

environment to support students with emotional disabilities.”

Dkt. 26-9 at 25. It further explains that the program “provides

wraparound services and supports to engage students and support

consistent attendance and engagement in all aspects of the

educational environment.” Id. The brochure goes on to convey

that the program includes special education teachers, small class

sizes of eight to twelve students, and classes in English, history,

math and physical education offered at the college-prep level (the

lowest track of classes offered at Newton North). The Does

complain they were not fully informed about the LINKs process

during the August 2017 IEP meeting. They argue the second brochure

indicates that the LINKs program’s primary focus is on correcting

attendance issues, explaining that the “LINKs program supports

students with chronic attendance problems who are at risk of not

graduating within four years. Many students receive special

education services to address emotional disabilities.” Id. at 26.

The brochure continues: “Students participate in a behavior system

that is designed to promote consistent attendance.” Id. The two

brochures differ significantly in emphasis; which description is

more accurate is not entirely clear. The Does contend that they

believed that the LINKs program was not appropriate for David’s

needs because it was focused on attendance.

Based on an intermediate level of review, I find that the IEP

in August 2017 was not adequate given David’s severe mental health

needs and crisis during the summer of 2017. This conclusion is

buttressed by Newton’s decision in the two subsequent IEPs to

recommend that David be placed in an out-of-district

public/private day school. As the Does point out, Newton had

little new information about David between the August 31, 2017 IEP

and the April 25, 2018 IEP, aside from Dr. McCormick’s letter

advocating for a residential placement for David and follow-up

letters from David’s doctors, Dr. Cotugno and Dr. Palumbo. These

letters did not express that David had experienced any major

changes in status since the August 31, 2017 meeting. Newton and

BSEA have not adequately explained why David would have been

entitled to placement in an out-of-district public/private day

school in April 2018 but not in August 2017.

II. Whether David’s Placement at Franklin was Appropriate

The next question is whether David’s placement at Franklin

Academy, an expensive, out-of-state residential program, was

appropriate. On the whole, the record shows that Franklin Academy

provided David with the therapeutic support that he needed, through

trained and experienced staff, therapeutic counseling, small class

sizes, and teaching of metacognitive skills.

Although Newton asserts that Franklin Academy’s report cards

“lack goals, objectives, and any measurable data or information to

determine if students made progress,” Dkt. 69 ¶ 89, Franklin’s

curriculum need not necessarily meet state education standards,

see Florence Cty., 510 U.S. at 14 (noting that “reimbursement is

[not] necessarily barred by a private school’s failure to meet

state education standards”). And the record shows that David’s

move to Franklin resulted in significant benefits to his mental

health, with his clinicians testifying that his anxiety and

depression had improved since he started as a student there.

Newton further argues that Franklin was inappropriate

“because it did not provide David with the embedded and cohesive

therapeutic services and programming, such as individual

counseling, as recommended by David’s clinicians and Dr.

McCormick.” Dkt. 64 at 17. Although David did seek private

therapy from Dr. Hughes during his time at Franklin, the Does point

out that he also received individual counseling from school staff,

including a school counselor who was available to meet with David

and was supervised by Franklin’s clinical director.

I note that the least-restrictive environment principle, or

the “mainstreaming” provision of the IDEA, did not require the

Does to place David in the least restrictive environment if an IEP

does not provide FAPE. As the Second Circuit in Frank G. v. Bd.

of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), explained,

“parents are not barred from reimbursement where a private school

they choose does not meet the IDEA definition of a free appropriate

public education,” and therefore “parents may not be subject to

the same mainstreaming requirements as a school board.” Id. at

364 (cleaned up). See also Warren G. ex rel. Tom G. v. Cumberland

Cty. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (upholding the

district court’s reasoning that “imposition of the least-

restrictive environment requirement on private placements would

vitiate the parental right of unilateral withdrawal”). Franklin

was not the least-restrictive environment for David because it was

a residential school in a different state, but this does not bar

reimbursement under the IDEA.

III. Whether the April 25, 2018 IEP and the March 25, 2019 IEP

Provided a FAPE

The next issue is whether the subsequent IEPs produced by

Newton provided David with a FAPE. Both the April 25, 2018 IEP

and the March 25, 2019 IEP recommend that David be placed in an

“Out of District Public/Private Day” school. Dkt. 71 ¶ 99, 112.

The first question is whether these two IEPs should have

recommended a residential placement for David. Newton and BSEA

argue that the recommendation of a residential placement would

have been inappropriate based on the least-restrictive environment

principle, which generally favors day school placements over

residential placements. See Lenn, 998 F.2d at 1086 (explaining

that the IDEA’s preference for mainstreaming means that “a student

who would make educational progress in a day program is not

entitled to a residential placement even if the latter would more

nearly enable the child to reach his or her full potential”

(cleaned up)).

The Does argue that David’s residential placement was

necessary because David required a great deal of structured support

in order to socialize with his peers. They principally rely on

the evaluation provided by Dr. McCormick, which advocated for a

residential placement for David. The letter had explained that

“in addition to social pragmatic and social thinking work during

the school day, [David] requires social programming both during

and after traditional school hours.” Dkt. 26-9 at 142. It further

articulated that

[David]’s one-track focus on academic success, coupled

with his fear of rejection[,] drove him to self-isolate

after school, seating himself alone in his room with his

homework rather than spending time with his peers. Thus,

it is unrealistic to believe that [David] would—even if

extended day services were to be offered—participate in

unstructured social activities. Thus, [David]’s need

for social instruction throughout the entire day,

coupled with the near certainty that he would not

participate in unstructured social activities were he to

be placed in a day program, necessitates his placement

in a residential setting, one that teaches and

reinforces social thinking/social pragmatic skills

during school hours and, with the help of trained

residential staff, during after school hours.

Id.

Dr. McCormick’s evaluation provides some support for the

Does’ argument that David required residential education. The

hearing officer, however, expressly entertained Dr. McCormick’s

evaluation and determined that it was unpersuasive because his

conclusion that David would not participate in social activities

in a day school placement was too speculative. The hearing officer

also noted that Dr. McCormick’s opinion was not shared by any of

the Newton teachers who worked with David nor with any of his other

clinicians and that Dr. McCormick never observed David outside his

office. Because the hearing officer’s finding is subject to an

“intermediate” standard of review, see Johnson, 906 F.3d at 190,

and because her conclusion is adequately supported by facts in the

record, I find that she did not err in dismissing Dr. McCormick’s

recommendation that David be placed in a residential setting.

The Does’ second major argument is that David would have

suffered emotionally and academically had he transferred from

Franklin Academy to another therapeutic school. This contention

provides a stronger basis for concluding that the April 25, 2018

IEP and the March 25, 2019 IEP did not provide David with a FAPE.

As the Does point out, Dr. McCormick, Dr. Hughes, and Cove each

expressed that David was not ready to leave Franklin Academy after

his junior year. Before the hearing officer, Dr. McCormick

testified that he “would be concerned that the skills weren’t

consolidated, and to then move [David] from that setting [Franklin

Academy], where he demonstrably was making social and emotional

gains, to then a different—yet a different setting . . . I would

be concerned that some of those gains would be unraveled.” Dkt.

26-3 at 13. Dr. Hughes testified that, based on her work with

David over two years, she did not think that David would have been

ready to transition to a day therapeutic placement after his first

year. Cove expressed that she would have been “very concerned”

about David leaving Franklin Academy after his first year. Dkt.

26-4 at 82.

Although this testimony was not available to David’s Team at

the time of the April 25, 2018 IEP meeting and the March 25, 2019

IEP meeting, the testimony nevertheless speaks to the common-sense

notion that removing a student like David from a supportive

academic environment would likely pose emotional and social

disruption. I determine, on this basis, that the April 25, 2018

IEP and the March 25, 2019 IEP did not provide David with a FAPE.

I note that Newton correctly cautions against a blanket rule

allowing any student to remain in a private unilateral placement

because transitioning away from the placement would be disruptive.

But, by the same token, David should not be punished for enrolling

at Franklin Academy after we was denied a FAPE through the August

31, 2017 IEP. This ruling must therefore be limited to the facts

of David’s case. Newton’s failure to provide David with a FAPE in

the first instance, through the August 31, 2017 IEP, is what

rendered the following proposals to transfer David to a therapeutic

day program inappropriate.

IV. Relief

The final question that I consider is what relief is

appropriate. The Does seek full reimbursement for the cost of

sending David to Franklin Academy, including for the cost of his

out-of-state travel expenses. In light of the above conclusion

that David did not require a residential placement, however, I

determine that any boarding and travel costs should be excluded

from reimbursement. See Florence Cty., 510 U.S. at 16 (explaining

that a court may reduce reimbursement “if the court determines

that the cost of the private education was unreasonable”).

ORDER

For all of the reasons stated above, the Court ALLOWS the

Does’ motion for summary judgment (Dkt. No. 60) but excludes from

reimbursement the costs of boarding and travel. The motions for

summary judgment filed by BSEA and Newton (Dkt. Nos. 58 at 59) are

accordingly DENIED.

SO ORDERED.

/s/ PATTI B. SARIS

Hon. Patti B. Saris

United States District Judge