COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
Salem Public Schools v. Student
BSEA # 2601400
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC § 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC § 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
RELEVANT PROCEDURAL HISTORY
Salem Public Schools, (hereafter, “Salem” or “the district”) requested a Hearing on July 30, 2025, and the Hearing was scheduled for August 19, 2026. On August 12, 2025, Salem filed an unopposed request to postpone the Hearing until October 21-22, which was allowed for good cause. Several other subsequent postponements were allowed for good cause while the Parties attempted to resolve their dispute. The Hearing was scheduled for March 23, 2026. On March 17, 2026 counsel for Parent/Student withdrew as counsel because her clients had stopped communicating with her. She provided Parent the exhibits and witness lists submitted by Salem for hearing.
The Hearing proceeded via Zoom (by agreement of the parties) on March 23, 2026. Parent/Student did not participate in the Hearing and did not respond to the Hearing Officer’s phone call inquiring about their intent to participate. On March 24, 2026, Salem submitted an unopposed request to postpone the closing of the record until April 6, 2026, in order to submit a closing argument, which was allowed[1]. On April 6, 2026 Salem submitted its closing argument and the record closed.[2]
Those present for all or part of the hearing were:
Joshua MacGregor Special Education Administrator, Salem Public Schools
Lewis Bauer Special Education Administrator, Salem Public Schools
Jennifer Doucette-Ly Executive Director of Special Education
Keeley Tobler School psychologist, Salem Public Schools
Anna Duey Inclusion biology teacher, Salem Public Schools
Emma Ross School adjustment counselor, Salem Public Schools
Jeremy Vagos Special education liaison, Salem public Schools
Elisabeth Chee Attorney, Salem Public Schools
Loris Dennis Attorney, Salem Public Schools
Daniel Kramer Court Reporter
Catherine Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of: Salem Public Schools’ exhibits marked S-1 through S-18 and approximately 2 hours of recorded oral testimony.
ISSUES
1. Whether Salem’s proposed IEP dated May 2025-May 2026 was reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
2. Whether Salem should be granted substituted consent to send out referral packets to day placement programs for Student.
SUMMARY OF THE EVIDENCE
1. The student (hereafter, “Student”) is a 15-year-old residing in Salem and repeating the ninth grade. (S-2, Bauer) She has been found eligible for special education services based on a primary disability in the emotional impairment category and a secondary disability in the health impairment category. Student reportedly experienced high levels of anxiety and work avoidance, which resulted in minimal classroom attendance. Her anxiety often led to eloping behaviors during which she left the classroom to meet friends in the hallways or bathrooms. She frequently missed instructional time and struggled with task initiation and completion. (S-2)
2. Student’s last accepted IEP, for the period between May 24, 2024 and May 23, 2025, contained goals in the areas of academics, and social/emotional. The IEP notes that Student required placement in a substantially separate classroom and a therapeutic milieu to make appropriate progress and required counseling to develop coping skills to aid her in accessing her learning. There were no services in A or B grids. The C grid provided for counseling (1:1) with the school adjustment counselor 1 x 30 minutes per week, and counseling (small group) with the school adjustment counselor 1 x 30 minutes per week. Therapeutic support services with a special education teacher and paraprofessional were proposed at 1 x 2040 minutes per cycle. The proposed placement was the TIDES therapeutic support program at Collins Middle School. Parent accepted the IEP and placement on August 29, 2024. (S-2)
3. Joshua MacGregor is a special education administrator at the middle school level in Salem.[3] He became familiar with Student during her sixth grade year when she was referred to New Liberty, Salem’s alternative middle/high school, due to her lack of engagement with school. The alternative school was not a special education placement, but a smaller school with smaller classes. It became apparent during Student’s seventh grade (2022-2023 school year) that the New Liberty setting was not working for her. Part of Student’s difficulty at New Liberty was that the school was located within a public building near a mall and Student was eloping to the public parts of the building and interacting with what Mr. MacGregor described as “a bunch of characters in the community.” New Liberty staff observed an increase in Student’s elopement to non-school parts of the building in addition to work avoidance when she was in the classroom. This resulted in a Team proposal to conduct an extended evaluation of Student at the substantially separate TIDES program at Collins Middle School in the spring of 2023. (MacGregor)
4. The TIDES program is a substantially separate program with small classrooms supported by a special education teacher, a behavior specialist, and a dedicated school adjustment counselor who worked exclusively with the approximately 13 students in the program. Students in the TIDES program received all of their academic instruction within that setting, along with social-emotional instruction including functional communication skills and self-regulation strategies. Student had difficulty accessing the TIDES program and even entering the school building. She spent most of her time for the rest of the 2022-23 school year in the adjustment counselor’s office within the TIDES program. By the end of the school year staff was able to get Student to enter the classroom, but she would not engage in any school work. (MacGregor)
5. Student continued in the TIDES program during her eighth grade year (2023-2024). At the beginning of the year she was able to engage more with the teachers and attended school more frequently, however, she often eloped from class and avoided her work. Staff spent a great deal of time trying to locate Student. There were concerns that Student was vaping in school because the vape detectors often went off when she was in the bathroom. Student sometimes used racialized or inappropriate language. Staff attempted to use point sheets as incentives to increase Student’s motivation to participate in academics and adhere to school expectations. Mr. MacGregor described one instance in which Student actively sought to attack another student and tried to push through staff to access the student. Student’s behavior led to disciplinary action and a manifestation determination review. At that point (spring of 2024), staff determined that Student’s current setting was not appropriate and could not provide her sufficient support. Salem proposed an extended evaluation at Salem Prep, the district’s public day school. Salem Prep is a school setting separate from the general education setting with its own staff and adjustment counselors. Parent verbally refused the evaluation and stopped communicating with the district. Student finished her eighth grade with sparse attendance. She continued to be dysregulated; to elope from class; to disregard staff redirection; and to use “colorful language” toward peers and staff. (MacGregor)
6. Lewis Bauer is a special education administrator at Salem High School.[4] He described Student as very bright and perceptive and exceptionally reactive and avoidant, presenting with features of anxiety. At the beginning of the 2024-2025 school year (Student’s ninth grade) Student had moved to another Massachusetts town. By December or January, she moved back to Salem and Mr. Bauer became familiar with her through the high school TIDES program. The high school TIDES program is similar to the middle school program. Students in the program have access to a “home base”, which is a separate space to work or to access a trusted staff member throughout the day. Most students in the TIDES program are designated as having a partial inclusion placement, with access to therapeutic supports throughout the day. Students have the option of receiving separate instruction in ELA, math and history. Science is co-taught by a therapeutic staff member and a general education science teacher. (Bauer)
7. When Student re-enrolled in Salem, Mr. Bauer learned that she had criminal charges pending outside of school. Salem held a manifestation determination hearing which found that the incidents leading to the charges were not a manifestation of her disability and Student was suspended. Student remained out of school for the rest of the school year. Salem offered Student tutoring at the public library, and she attended a handful of times. (Bauer)
8. Student was due for a triennial review in the spring of 2025, to which Parent consented. Testing sessions were scheduled on April 11, 15, 29, and May 8 and 16, 2025, but Student did not complete the testing despite a number of phone calls and emails to Parent from the school psychologist. (Bauer)
9. The Team convened on May 20, 2025 to conduct Student’s triennial review. Neither Student, Parent, nor Student’s then-attorney attended the meeting. Based upon Team members’ observations of Student and their review of her earlier history, the Team proposed placing Student in a more intensive setting through an extended evaluation. Parent rejected the proposal. She accepted the goals and services of the proposed IEP, but rejected placement in a separate day school. (Bauer)
10. In the fall of 2025 Parent agreed to Salem sending packets to Topsfield Vocational and a collaborative school. Both placements responded with preliminary interest. Mr. Bauer was unsure of the status of the placement process as of the date of the hearing. (Bauer)
11. Student did not earn any credits for her ninth grade year. (Bauer)
12. Student began the 2025-2026 school year with very occasional participation in classes. She would rarely accomplish a task in the TIDES classroom. She engaged in the same pattern of elopement she had previously demonstrated when demands were placed on her. When she was redirected about eloping she would typically disregard staff or respond verbally in an inappropriate manner. She completed almost no work. Her attendance was erratic. On days that she attended school her mother often dismissed her before the end of the day. Further, the staff had to spend a great deal of time determining Student’s whereabouts. As of the March 23, 2026 Hearing, Student had last attended school on January 23, 2026. (Bauer)
13. Salem staff strongly believe Student requires a placement outside of the traditional high school building. She requires a smaller and more controlled environment where there are literally fewer places for Student to go and where every staff member is versed in maintaining a therapeutic milieu. The IEP proposed for the period from May 2025-May 2026 was drafted with a therapeutic separate day school in mind, which the Salem members of the Team determined to be reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. (Bauer)
14. Keeley Tobler is a school psychologist at Salem High School. She is familiar with Student through her records, but has not met her. She tried to schedule dates on which to conduct testing of Student with Mother, but each time they scheduled an appointment the family cancelled. The first cancellation was because Student did not feel well. Then, mother reported Student was uncomfortable coming to the high school. Another time she simply did not show up and then the family’s car would not start. Ms. Tobler was never able to meet with Student in person. Instead, she did a record review, looking at the information in her file and trying to get an understanding of Student’s profile to make recommendations. (Tobler)
Ms. Tobler noted that Student’s profile suggests that difficulties with regulation and a lot of maladaptive coping prevent her from being able to access educational environments. It appeared that Student became easily aroused and then engaged in behaviors to get out of the situations she had difficulty tolerating. Ms. Tobler recommended that Student’s programming focus on helping Student to build more regulatory ability and to tolerate distress. She also made some academic recommendations because Student struggles with engaging in academic work. Among other things, she recommended presenting Student with activities that she can master so that she begins to feel success. She suggested building enough confidence so that Student can tolerate challenges. (Tobler)
1. Ms. Tobler agreed Student requires a therapeutic day school setting. She opined that Student requires a contained less stimulating environment where there is predictability to keep her arousal level low and help her to work through the challenges from which she seeks to elope. (Tobler)
2. Anna Duey is a biology teacher at Salem High School. She is somewhat familiar with Student, but has not seen her much. Student was in her biology class during the current school year, but only attended class three times. The last time she was in class was October 15, 2025. She was relatively quiet and mostly worked with Ms. Duey’s co-teacher. Student completed some work in her class in a separate room, turning in about five assignments. Ms. Duey did not think Student was accessing academics in her classroom as she demonstrated virtually no understanding of concepts on the midterm exam and was not showing progress. (Duey)
3. Emma Ross is the adjustment counselor in the therapeutic support program at Salem High School.[5] She is familiar with Student and has had a little bit of interaction with her in the therapeutic support program this school year. She described Student as energetic and social. She has a peer group and minimal connections with teachers. Student’s attendance and elopement from classes has limited her interactions with Ms. Ross. She described multiple instances in which Student was in the building, but did not report to her class or the home base room. Additionally, there were times that Student asked for a pass and never returned to class or just walked out of the classroom. Ms. Ross has not seen Student since February. She has tried to contact Mother several times since Student has not been in school, but has not received a response. She believes Student requires a smaller school setting where she can focus and have more one to one support. (Ross)
FINDINGS AND CONCLUSION:
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)[6] and the state special education statute.[7] As such, she is entitled to a free appropriate public education . Neither her status nor her entitlement is in dispute. The Parties, however, disagree as to whether Salem’s proposal to place Student in a therapeutic separate public day school is reasonably calculated to provide her with a free appropriate public education (FAPE) in the least restrictive environment.
The right to a FAPE for all students with a disability is guaranteed by both federal and state law through the IDEA, M.G.L. c. 71B, and their corresponding regulations[8]. If a student is found eligible to receive special education, the Team must then develop an IEP setting forth the special education and related services that meet the special education needs of the student[9]. An IEP is a “a snapshot, not a retrospective. In striving for ‘appropriateness,’ an IEP must take into account what was and was not objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated”[10]. To provide a student with a FAPE, a school district must follow identification, evaluation, program design, and implementation practices that ensure that each student with a disability receives an Individualized Education Program (IEP) that is: custom tailored to the student's unique learning needs; "reasonably calculated to confer a meaningful educational benefit"; and ensures access to and participation in the general education setting and curriculum as appropriate for that student so as "to enable the student to progress effectively in the content areas of the general curriculum.”[11] Under state and federal special education law, a school district has an obligation to provide the services that comprise FAPE in the "least restrictive environment" (LRE).[12] FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential,[13] and appropriate progress will look different depending on the student.[14] An individual analysis of a student’s progress in his/her areas of need is key.[15]
The burden of persuasion in an administrative hearing is placed upon the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 126 S. Ct. 528, 534, 537 (2005) In this case, Salem is the party seeking relief, and as such has the burden of persuading the Hearing Officer of its position by a preponderance of the evidence.
It is in the context of the foregoing legal framework that I now turn to the issues before me. The testimony of Salem’s witnesses strongly supports its contention that Student is not benefitting from her current placement and requires a more restrictive setting. Student’s struggles have been ongoing since at least the sixth grade, when she was referred to the New Liberty School and had difficulty remaining in the classroom and engaging in academic tasks. Since that time Salem has increased Student’s supports by placing her in the TIDES program in both middle school and high school. It has also sought to increase Student’s services by changing her placement to Salem Prep and to a therapeutic substantially separate public day school, but Parent has not consented.
The uncontroverted testimony shows that even when Student is present in school, staff is not able to provide her with instruction. Instead, Student leaves the classroom, evades staff and finds peers with whom to engage in non-educational activities. Rather than being able to provide Student with access to the curriculum, staff spends a great deal of time simply trying to locate Student within the building.
Mr. Bauer was persuasive in his testimony that Student requires a smaller and more controlled environment where there are fewer places for Student to elope and where every staff member can respond to Student’s needs within a therapeutic milieu. Ms. Tobler was equally persuasive in her testimony that Student requires a placement where there is predictability and where Student would not be easily aroused. She explained that a smaller and more contained environment could reduce her arousal level and help her to work through the challenges that she seeks to avoid.
Despite Student’s lack of participation in her last triennial evaluation, the Salem Team was able to gather sufficient information to verify that Student’s placement in the TIDES program continued to be insufficient to meet her needs. (Tobler, Ross, Bauer)
Salem’s currently proposed IEP appropriately addresses her identified needs, including goals in academics targeting hers ability to participate in classroom activities, use coping skills, and be receptive to support from staff. It also targets Student’s social emotional needs with goals of increasing her functional communication and emotional regulation. The proposed placement recognizes Student’s demonstrated need for a “an intensively supported setting where all supporting staff are versed in maintaining a therapeutic milieu, and where there is a consistently small staff to student ratio in all portions of the day.” (S-10, pg. 13)
Therefore, based on a preponderance of the evidence, I find that Salem’s proposed IEP and placement is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
I turn next to Salem’s request that it be granted substitute consent to send out packets to day placements . Salem has not met its burden with respect to this request. The testimony shows that Parent previously consented to the mailing of packets to Topsfield Vocational and a collaborative program. It is unclear from the record where those inquiries currently stand. There is also no evidence in the record that Parent has refused to consent to the sending of additional packets. Therefore, there is no basis for providing Salem with substitute consent at this time.
ORDER
1. Salem’s proposed IEP and placement is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
2. Salem’s request for substitute consent to send packets to additional day placements is DENIED.
So ordered by the Hearing Officer,
/s/ /Catherine M. Putney-Yaceshyn
________________________________
Dated: May 1, 2026
Footnotes
[1] As discussed at the Hearing, the additional purpose of the postponement was to allow the pro se Parent who did not appear at the Hearing to review a transcript of the Hearing and submit a written statement of her position with respect to the issues.
[2] Parent did not submit a written position statement despite subsequently being permitted additional time after Salem submitted its closing argument to submit the same by email until April 29, 2026.
[3] Mr. MacGregor has a master’s degree in special education and is licensed by DESE as an administrator and a special education teacher (grades 5-12).
[4] He is licensed by DESE in moderate disabilities (grades 5-12) and as a special education administrator (all levels). (Bauer)
[5] Ms. Ross holds a bachelor’s and a master’s degree in social work and is a licensed in social work and by DESE as a school adjustment counselor. (Ross)
[6] 20 USC 1400 et seq.
[7] MGL c. 71B.
[8] 20 USC 1400, et seq.; M.G.L. c. 71B; 34 CFR 300.000, et seq.; 603 CMR 28.00 et seq.
[9] 603 CMR 28.02(11); 603 CMR 28.05(3).
[10] Roland M. v. Concord School Committee, 910 F.2d 983, 992 (1st Cir. 1990).
[11] See 20 U.S.C. §1401(9), (26), (29); 603 CMR 28.05(4)(b); C.D. by and through M.D. v. Natick Pub. Sch. Dist., 924 F.3d 621, 629 (1st Cir. 2019); Sebastian M. v. King Philip Reg'l Sch. Dist., 685 F.3d 84, 84 (1st Cir. 2012); Lessard v. Wilton Lyndeborough Cooperative Sch. Dist., 518 F. 3d 18 (1st Cir. 2008); C.G. ex rel. A.S. v. Five Town Comty. Sch. Dist., 513 F. 3d 279 (1st Cir. 2008).
[12] 20 U.S.C. §1412(a)(5)(A); 34 CFR 300.114(a)(2)(i); M.G.L. c. 71 B, §§2, 3; 603 CMR 28.06(2)(c).
[13] Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 197, n.21 (1982) (“Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education”).
[14] See Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 400-401 (2017);see also 603 CMR 28.02(17).
[15] Endrew F., 580 U.S. at 388 (“The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child's IEP should pursue”); see K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 809 (8th Cir. 2011) (explaining that the court would not compare the student to her nondisabled peers since the key question was whether the student made gains in her areas of need).