# Doe v. Newton Public Schools

> District Court, D. Massachusetts · May 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10199445

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** May 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10199445

## How later opinions describe it (automated extraction)

- noting that “reimbursement is [not] necessarily barred by a private school’s failure to meet state education standards”
- explaining that a court may reduce reimbursement “if the court determines that the cost of the private education was unreasonable”
- 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)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199445. Public record. Not legal advice.