COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Peabody Public Schools BSEA # 2607428
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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held via a virtual platform on April 27 and 28, 2026, before Hearing Officer Alina Kantor Nir. Parent appeared pro se. Peabody Public Schools (Peabody or the District) was represented by counsel. Those present for all or part of the proceedings, all of whom agreed to participate virtually, were:
Mother
Aunt
Dr. Shannon Crompton Director of Special Education, Peabody
Mackenzie Murphy BCBA, Peabody
Ashlen Fidalgo Dean of Students, Peabody Veterans Memorial High School
Sheila Gaudet Team Chair, Peabody
Stephen Stolfors School Psychologist, Peabody
Sean Goguen Attorney for Peabody
Melissa Lupo Court Reporter
The official record of the hearing consists of documents submitted by Parent and marked as Exhibits P-1 (pages 2-4), P-2 (pages 5-9), P-3 (pages 10-83), P-4 (pages 84-240), P-5 (pages 241-249), and P-6 (pages 250-251); documents submitted by Peabody and marked as Exhibits S-1 through S-17; approximately two days of oral testimony and argument; and a two-volume transcript produced by a court reporter. Closing arguments were made orally on April 28, 2026, and the record closed on that day.
ISSUES IN DISPUTE:
The following issues are in dispute: whether the District denied Student а FAPE by failing to provide appropriate behavioral supports from January 12, 2024, to the present, and, if so, what is the proper remedy?
FACTUAL FINDINGS:
1. Student is an eleventh-grade student who attends Peabody Veterans Memorial High School (High School or PVMHS) in Peabody, Massachusetts. He is currently eligible for special education under the Disability Category of Health (ADHD) and was previously eligible under the Disability Categories of Health and Specific Learning Disability (Reading). (Murphy, Gaudet, S-5, S-6)
2022-2023 Eighth Grade
2. On January 4, 2023, a Decision was issued by Hearing Officer Sara Berman in BSEA Matter No. 23-04801 involving the parties herein (2023 BSEA Decision). Said Decision ordered Peabody to conduct, upon receipt of parental consent, a functional behavioral assessment (FBA) of Student, to convene a Team meeting to consider the results of such assessment, and, if appropriate, to offer a new or amended IEP that incorporated the results of the FBA.[1]
3. In January and February 2023[2], the District completed the ordered FBA. The results of the FBA demonstrated that Student frequently engaged in maladaptive behaviors to escape academic demands, especially during structured classroom activities. Teachers reported daily, high-intensity disengagement, often lasting entire class periods, and identified Student as particularly challenging due to his resistance and escalation when redirected. The FBA concluded that Student’s behaviors were primarily maintained by escape from academic tasks and, secondarily, by attention from peers. The report recommended individualized interventions focused on proactive supports, clear expectations, positive reinforcement, skill-building, consistent staff responses, and a highly structured environment with access to coping strategies. (S-3, S-7, P-4 (p. 85-99))
4. The Team convened on March 9, 2023, to review the FBA, and proposed an Individualized Education Program (IEP) for the period March 9, 2023, to June 14, 2023 (March 2023 IEP).[3] At the meeting, the Теаm discussed the results of the FBA and determined that a student support plan (SSP) was necessary to assist staff in addressing behaviors that affected Student's day-to-day academic performance. Parent fully accepted the 2023 IEP on March 20, 2023. (Gaudet, Crompton, S-1, S-2, S-3)[4]
5. Dr. Shannon Crompton is the Director of Special Education in Peabody, and Shiela Gaudet is the IEP Team Chair for Peabody (grades 10 through post-secondary). Both testified that Student’s behaviors did not rise to the level requiring a Behavior Intervention Plan (BIP). They explained that an SSP is more flexible and less prescriptive, allowing for student input, while a BIP is “directly related to the IEP” and is “related to the goals and services in the IEP”. Further, an SSP can be used for general education and special education students and, unlike a BIP, an SSP is not part of the IEP and does not require parental consent. Often, the components of the SSP are built into the IEP in the form of accommodations, or the SSP is referenced in the IEP. The SSP is a fluid document. (Crompton, Gaudet)
6. In March 2023, Student’s SSP was developed. It was updated in April 2023 (April 2023 SSP). The targeted behaviors were noncompliance, disruptive behavior, and out-of-bounds behavior. Antecedent strategies included encouraging the use of self-advocacy statements, ensuring access to a school adjustment counselor (SAC), withholding reinforcement until compliance, using clear and concise language, providing choices, building rapport, seating Student close to instruction, and monitoring Student during hallway transitions. The SSP included a Reinforcement System whereby Student earned points for being compliant and self-advocating and provided Student with the opportunity to earn a daily break, the timing of which was determined by the staff. Social praise was recommended, as was oversight by the BCBA, to oversee progress and adjust reinforcements. The break procedure was as follows: when Student arrived in class, he was reminded that a break would take place 15 minutes into class. If he left class, a timer was set for nine minutes, and if Student did not return on time, he would be considered to have cut class. (S-8)
7. During the 2022-2023 school year, Student accumulated 25 disciplinary referrals. (P-3 (p. 73-75))
2023-2024 Ninth Grade
8. In the fall of 2023, Student transitioned to PVMHS. In October 2023, in response to Parent’s inquiry, Dr. Crompton advised that Student’s SSP had “traveled with him to the high school” and was being utilized by staff during the 2023–2024 school year. She further explained that the BCBA consulted with high school staff and coordinated with the middle school BCBA to support consistent implementation of the Plan. Dr. Crompton testified that SSPs are maintained as part of the student record and are accessible to staff through ASPEN (the student database platform used by Peabody). Although she could not identify specifically which of Student’s teachers had reviewed the SSP, she indicated that the BCBA was responsible for overseeing its implementation. (Crompton, P-3 (p. 50))
9. On December 12, 2023, Student’s SSP was again updated (December 2023 SSP). The December 2023 SSP aimed to increase Student’s compliance and self-advocacy and decrease non-compliance, disruptive, and out-of-bounds behavior. Antecedent strategies included encouraging the use of self-advocacy statements and honoring appropriate requests; ensuring that Student had access to the SAC and was provided with practice opportunities for the use of self-advocacy statements; utilizing an encouraging and supportive tone when engaging with Student individually; ensuring that reinforcing items or activities were withheld until Student earned them via his point sheet; utilizing clear and direct language with instruction; providing Student with choices as to how to complete his work (e.g., written, typed, etc.); building and maintaining rapport with Student; sitting Student close to the point of instruction, away from peers who are likely to cause disruption; and monitoring Student during hallway transitions. The SSP included the following Break Procedure:
“1. When he gets to your class, please remind him when his break will be (15 minutes into class);
2. When he leaves, please give him a pass with the time on it and have him set а timer on his phone for 9 minutes. (The timer is to help him manage his time);
3. If he does not return at all, this would be considered cutting а class.”
Breaks could also be provided at the teacher’s discretion if Student was seen to be sleepy, fidgety, or struggling to focus. Specific responses were included in the SSP to decrease each behavior. (Crompton, S-9, P-2 (p. 5-9))
10. Dr. Crompton testified that although there was no point system in the December 2023 SSP, Student’s breaks were a reinforcer. Unlike in the April 2023 SSP, the December 2023 SSP gave Student more control over when to take his breaks, and he could take a break in each class, in or out of the classroom. Breaks were not contingent on completing his work but rather on having started it. (Crompton, S-9, P-2 (p. 5-9))
11. Dr. Crompton opined that the December 2023 SSP was more robust than the April 2023 SSP and disagreed that it removed key supports. Although the 2023 SSP was appropriate for Student in middle school, it was not appropriate for a high school student. According to Dr. Crompton, the December 2023 SSP was appropriate for Student. (Crompton)
12. According to Dr. Crompton, an SSP has always been implemented at the High School for Student. Before it was updated in December 2023, the April 2023 SSP was being implemented. (Crompton)
13. In January 2024, Student was subject to three searches based on the suspicion of vaping. There were no findings, and Student was allowed to return to class. (P-3 (p. 57)). Aunt testified that there were many additional searches for which either she or Parent had to be present. (Aunt)
14. On February 8, 2024, the District convened a progress meeting and developed an IEP for the period February 9, 2024 to May 9, 2024 (February 2024 IEP) calling for a substantially separate therapeutic placement at PVMHS. Goals comprised executive functioning, reading, social-emotional, social skills, and self-advocacy. The Team proposed adding accommodations, including, extended time, breaking down assignments, and check-ins with staff on assignment completion. The February 2024 IEP continued to include an accommodation stating that Student would have “access to breaks as directed in the student support plan.” The following services were proposed: A Grid: consultation with the special education teacher 1x15 minutes/10 days and with the BCBA 1x15 minutes/monthly; C Grid: specialized instruction with the special education teacher (5x270 minutes), Learning Center services with the special education teacher (5x45 minutes), and counseling with the SAC (1x30 minutes/week). Parent rejected portions of the February 2024 IEP, including the accommodations and the placement. (P-4 (p. 101-126)
15. In February 2024, Parent reported that Student was allowed to leave campus for 20 minutes without her consent or knowledge. In addition, according to Parent, Student’s teachers were not implementing Student’s “IEP which explicitly outline[d] a break plan.” Because Student was not allowed to take his breaks, and because he was not monitored in the hallways, he was late for his midterm, and he was denied his accommodation of extra time, which resulted in a low grade. (P-3 (p. 71-72))
16. On March 11, 2024, Student served an in-school suspension for not attending advisory class on March 8, 2024. Ashlen Fidalgo, the Dean of Students for the Class of 2027 at the High School, is responsible for school discipline. Dean Fidalgo noted that alternative remedies, including conferencing with Student and temporarily placing him in four Advisory classes, were unsuccessful. (S-13, P-3 (p. 39-40))
17. On March 13, 2024, the SSP was updated (March 2024 SSP). It aimed to increase independent task initiation and completion, and self-advocacy, and decrease work refusal, disruptive behavior, and out-of-class behavior. It included, in part, the following antecedent strategies: utilize clear and concise language and an encouraging and supportive tone when engaging with Student individually; provide Student with the chance to demonstrate understanding before working independently; provide Student with choices as to how to complete work; build and maintain rapport with Student; seat Student close to the point of instruction; monitor Student during hallway transitions; encourage the use of self-advocacy statements and honor appropriate requests; ensure that Student has access to а trusted adult and provide practice opportunities for the use of self-advocacy strategies. The behavior management procedure indicated that Student would be provided breaks contingent on his work completion. Before taking a break, he should have started work on his assignment and demonstrated knowledge (either through the assignment or verbally) of how to complete it. Breaks could last up to 5 minutes, and Student was responsible for tracking the time for his breaks which should be taken inside the classroom. Breaks could also be provided at the teacher's discretion based on Student’s outward behaviors which included but were not limited to fidgeting frequently, struggling to stay in his seat, and sleepiness. Strategies to decrease maladaptive behaviors included praise, prompting self-advocacy, and reminders. According to the SSP, the BCBA was responsible for overseeing progress and SSP adjustment. (S-10, P-1(p. 3-4))
18. In March 2024, Parent expressed concern that Student was not receiving the breaks outlined in his IEP and that his SSP was not being followed. (P-3 (p. 35, 36, 43))
19. In March 2024, Dr. Fidalgo informed Parent in an email that the “Updated 12.12.2023” SSP is “the only SSP that has been implemented” at the high school. (Fidalgo, P-3 (p. 37)) Dean Fidalgo testified that an SSP was implemented at all time while Student was at the High School. The High School received the SSP from the Middle School; it was implemented and then updated in December 2023. She testified that she “misspoke” in the email. She also informed Parent in the same email that in one week alone, Student took 28 breaks to use the bathroom (totaling 2 hours). (Fidalgo, P-3 (p. 39))
20. In May 2024, the Team convened for a transition meeting and proposed an IEP for the period May 30, 2024 to May 29, 2025 (May 2024 IEP). The Team continued to propose A Grid Services, including consultation with the special education teacher 1x15 minutes/10 days but increased consultation with the BCBA to 30 minutes/monthly. The Team proposed the following accommodations: highly structured predictable routine, similar peers, redirection, modeling, access to SAC, provision of frequent praise and positive attention, prompting to use coping skills and to ask for help, and providing breaks (maximum 5 minutes) in the classroom, as appropriate. The May 2024 IEP again proposed a substantially separate placement. Parent opposed the removal of the accommodation: “access to breaks as directed in the student support plan.” On June 27, 2024, Parent rejected portions of the IEP, including, in part, the removal of the accommodation, referencing the student support plan and the substantially separate placement. (P-4 (p.128-148)
21. In June 2024, Student left the high school during a break between final exams but was late returning to school. As such, his privilege to leave the building was revoked. (P-3 (p. 63))
22. From January 2024 until the end of the 2023-2024 school year, Student had 11 behavioral incidents. (S-13) At the end of the 2023-2024 school year, Student had earned 22.5 credits and had passed English 9, Algebra 1 and Biology. Student took but did not pass the Biology MCAS. (S-6)
23. In August 2024, DESE (Intake #11423) found that the District complied with IDEA by providing a BIP, labeled as a Student Support Plan. Citing 34 CFR 300.530(f), the Department noted that when behavior is a manifestation of disability, a district must conduct an FBA and implement a BIP, though IDEA does not define a BIP. The Department determined the District’s plans effectively functioned as BIPs. It suggested renaming the plans to reflect this. (Gaudet, S-2)
2024-2025 Tenth Grade
24. For the 2024-2025 school уеаr, at Parent’s choosing, Student transferred to Peabody PREP, a DESE-approved virtual high school that is part of the Peabody Public Schools. (Crompton, Gaudet, S-6)
25. On October 4, 2024, the Team convened to review Student’s registration at Peabody PREP and Parent’s rejection of the IEP. The Team proposed an IEP for the period October 4, 2024 to May 30, 2025 (October 2024 IEP), which proposed goals in the areas of executive functioning, reading/comprehension, coping skills, and self-advocacy. The Team proposed to advance Student’s re-evaluation , an option which Parent rejected. The accommodations included, in part, modeling of prosocial behavior, provision of breaks, redirection when off task, frequent praise and positive attention, frequent reinforcement, prompting to use breaks and use coping skills, building and maintaining rapport with Student, providing breaks as directed in the student support plan, providing positive attention, access to SAC, and access to high-frequency reinforcement. The October 2024 IEP recommended placement in the substantially separate Therapeutic Learning Community. It is unclear when, but Parent rejected the placement at the Therapeutic Learning Community and portions of the IEP, specifically rejecting the student support plan referenced in the accommodations, requesting that the April 2023 SSP be implemented. (P-4 (p. 150-177)
26. The Team convened for a transfer meeting on December 18, 2024, to review Student’s progress during the fall semester at Peabody PREP. At that time, Parent expressed that she wanted Student to return to the High School. Subsequently, Peabody proposed an IЕР for the period from December 18, 2024 to May 29, 2025 (December 2024 IEP) pursuant to the Disability Categories of Health (ADHD) and SLD (Reading), with placement at the substantially separate Therapeutic Learning Community at РVМНS and goals in the areas of reading comprehension, executive functioning, self-advocacy, and coping skills. The IEP provided for specialized instruction in academic courses (math, ELA, science, and history), a Learning Center taught by special education teachers, and Counseling services; accommodations which included, in part, modeling of prosocial behavior, provision of breaks, redirection when off task, frequent praise and positive attention, frequent reinforcement, promptings to use breaks and use coping skills, building and maintaining rapport with Student, providing breaks as directed in the SSP, providing positive attention, access to SAC, and access to high frequently reinforcement; . (S-6, P-4 (p.178-206). Parent partially rejected the IEP, including the December 2023 SSP. Ms. Gaudet responded to Parent, clarifying that the SSP is not part of the IEP and that Student had no BIP currently or prior. (Gaudet, S-6, P-3 (p. 28, 30-31), P-4 (p.178-206))
27. Beginning January 2025, Student began to attend PVМHS in person, although it is unclear from the record whether Student participated in a partial inclusion program or the TLC. (Gaudet)
28. From January to June 2025, Student had 2 instances of conduct code violations. (S-13, P-3 (p. 27))
29. In June 2025, the District again proposed to reevaluate Student in the fall of the 2025-2026 school year because his presentation was “so much different” from his earlier presentation that year. Ms. Gaudet noted that she wanted to develop an IEP for Student that reflected his progress and presentation. She noted that Student had “shown so much progress.” (Gaudet, P-3 (p. 45))
2025-2026 Eleventh Grade
30. Parent consented to the reevaluation in October 2025. (Crompton)
31. In October 2025, Student participated in а psychological assessment as part of this three-year re-evaluation. The results of this psychological assessment indicated that Student’s cognitive skills fall within the low average range, with intact cognitive skills in the areas of verbal comprehension and visual-spatial, and marked weaknesses in processing speed and working memory. The evaluation results did not indicate the presence of a social-emotional disability. (Gaudet, S-15)
32. In November 2025, Student was administered the Woodcock-Johnson, which generally reflected average foundational skills (solid accuracy in reading and math, and adequate writing and problem-solving), with weaknesses in fluency, complex math, and timed performance. (Gaudet, S-14)
33. In October and November 2025, Mackenzie Murphy, a District BCBA, conducted Student’s FBA. Due to low rates of observed and reported behaviors, the data was limited. Available information suggested that disengagement and out-of-class behaviors were maintained by escape/avoidance, with a possible sensory function for out-of-class behavior; no data was available for disruptive behavior. Recommendations included preferential seating, clear and consistent expectations, checking for understanding, securing attention before instruction, scheduled teacher check-ins, promoting self-advocacy (e.g., requesting help or breaks), immediate and positive reinforcement, home-school communication, and fostering a supportive relationship with Student. (Murphy, S-11, P-4 (p.232-240))
34. When asked whether the limited observations conducted for the FBA, and the isolated incidents of maladaptive behavior observed, were sufficient data, Ms. Gaudet testified that the absence of behaviors is in fact data that there is no demonstrated need for additional behavioral supports in the form of a BIP. No staff person or evaluator recommended that Student required a BIP. According to Ms. Gaudet, behavioral supports for Student were proposed in the form of goals, accommodations and services. Student’s executive functioning do not require a BIP. (Gaudet)
35. In November 2025, Student used the elevator against school policy. (P-3 (p. 62))
36. On November 5, 2025, Parent emailed Ms. Gaudet, asserting that Student was entitled to breaks under his original BIP, which the District allegedly removed and replaced without her consent, resulting in discipline when Student attempted to self-regulate. (Parent referenced an incident in which Student was permitted to go to Dunkin’ Donuts but did not return to school and did not receive his break.) Parent also noted that DESE had indicated that Student’s SSP was a BIP and therefore it was part of the IEP and could not be removed. On November 6, 2025, Ms. Gaudet responded that Student did not have a BIP in his IEP, that the SSP was a general education support not requiring consent, and that she would review the IEP and remind staff to implement accommodations for self-regulation. Ms. Fidalgo responded, clarifying that while some autonomy during breaks had been allowed for all students at PVMHS previously, students were no longer permitted to leave campus, that the SSP provided 5-minute breaks, and that Smart Pass data (which she included in the email) showed Student regularly accessed breaks. (S-12, P-3 (p. 20-22, 24, 29))
37. Via email on November 25, 2025, Dr. Crompton stated the SSP had not been removed but updated upon Student’s transition to high school; she had looked at the plans and compared the original from March of 2023 to the current plan and it seemed that “most of the information [was] the same other than the targeted behaviors to decrease and schedule specific information as the original plan was written for Higgins Middle School and [Student was then] in the high school.” Dr. Crompton also advised that the reevaluation included an updated FBA as the last one had been completed in February 2023. (P-3 (p. 68)) She further stated that the BCBA consultation on the IEP A-Grid supported consistent implementation of behavioral supports. (Crompton, P-3,(p.48))
38. According to Dean Fidalgo and SMART PASS records, Student has not been denied breaks. (Fidalgo, P-3 (p. 28))
39. In December 2025, Student left class without permission. He was located, asked to gather his belongings, and to meet with Dean Fidalgo, for whom he needed to wait in a room which is also used for in-school suspensions, as well as for other uses (classroom, advisory). While there, he engaged in an improper interaction with a peer. Student spoke to Dean Fidalgo. He was not in school suspended, and neither his leaving the classroom nor his negative peer interaction resulted in any consequences other than the conversation with Dean Fidalgo. As this was at the end of the day, he did not return to class but left to go home. The incident and the conference were recorded in ASPEN. (Fidalgo, P-3 (p. 19, 38, 61))
40. On January 6, 2026, the Department (Intake PRS 14761) found the District complied with its obligation to implement behavior supports derived from the FBA, as ordered by the hearing officer, for the period November 17, 2024 to November 17, 2025. The District used a Student Support Plan in place of a BIP, which the Department had previously determined in PRS 11423 satisfied 34 C.F.R. § 300.530(f). (S-1)
41. On December 9, 2025 and January 14, 2026, the Team met to review the results of the three-year re-evaluation, finding that Student remained eligible. The Team proposed an IEP for the period January 14, 2026 to January 13, 2027 (January 2026 IEP) with specialized instruction in Math, ELA, and History, Learning Center and counseling services, and goals in executive and academic functioning. The District removed the Specific Learning Disability (Reading) category based on average scores on the Woodcock-Johnson V and identified ADHD as the primary disability. A new self-advocacy objective was included in the IEP to address incidents when Student experienced a miscommunication issue with staff. A partial inclusion placement at PVMHS was recommended instead of the TLC program, in light of Student’s strong progress and lack of emotional disability. The IEP continued small-group instruction, and Learning Center supports and indicated that for grade 12, Student would be eligible to take history in the general education setting. BCBA consultation was discontinued due to minimal, low-intensity behaviors per recent FBA and records. Accommodations included chunking, breaks, praise, self-advocacy prompts, counselor access, and SMART PASS to a trusted adult. (Gaudet, S-5, P-4 (p.208-231) The Team did not recommend a BIP based on the results of the FBA (which included both teacher input and BCBA observations) and the limited disciplinary referrals. (Murphy, Gaudet)
42. Aunt testified that she has attended all of Student’s IEP meetings since he had been found eligible for an IEP. During the January 2026 meeting, Dean Fidalgo reported on Student’s behaviors which were ongoing. These behaviors included leaving class, using the bathroom, sleeping, not completing work, and not following rules. (Aunt)
43. Ms. Gaudet testified that at the January 2026 Team meeting Parent explained that she wanted Student to have a BIP to prevent him from being disciplined. At this meeting, Student indicated that he was getting his breaks. Ms. Gaudet did not believe Student required an SSP, but also noted that removing the SSP is an action independent of the Team process. (Gaudet)
44. Parent has not responded to the proposed January 2026 IEP, and the District has been implementing the stay put IEP, which includes BCBA consult. (Gaudet, Murphy)
45. To date, Student continues to struggle with completing work and arriving on time. (P-3 (p. 32, 33, 60)) According to Parent, Student continues to have disability related behaviors that interfere with his ability to participate in instruction. She also believes that the April 2023 SSP provided the necessary structured behavioral program including reinforcement, behavior tracking, clear target behaviors, and specific intervention procedures. The December 2023 SSP replaced that structure with general classroom strategies, reminders, and disciplinary responses and does not provide the same level of individualized behavioral support. In Parent’s opinion, the December 2023 and March 2024 SSPs were not sufficient to address Student’s needs. (P-3 (p. 53))
46. Parent has expressed concern that not all of Student’s infractions are properly documented by the District. (Aunt, P-3 (p. 55))
47. Dr. Crompton testified that between March 2025 and April 2026, Student had more than 600 breaks, which he generated himself using the SMART PASS. (Most were over the allotted break time.) She testified that the District always provided Student with his breaks. (Crompton, S-4)
48. Since returning to the High School in January 2025, Student has made up credits, is earning passing grades, and completing independent work. He is no longer classified as having a specific learning disability in reading, as all his scores are in the average range, and he is on track to graduate next year. (Gaudet, S-13) Dean Fidalgo testified that Student had made significant behavioral progress and now has far fewer referrals than in ninth grade. Although there has been a reduction in behaviors, maladaptive behaviors have not been eliminated. and he continues to require some behavioral supports. Student continues to have an SSP, and no one has broached with her the notion that it should be changed. (Fidalgo)
DISCUSSION:
A. Legal Standards
a. Free Appropriate Public Education in the Least Restrictive Environment
The Individuals with Disabilities Education Act (IDEA) was enacted "to ensure that all children with disabilities have available to them a free appropriate public education" (FAPE).[5] 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 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.”[6] 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).[7] This means that to the maximum extent appropriate, a student must be educated with other students who do not have disabilities, and that "removal . . . 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."[8]
The IEP must be individually tailored for the student for whom it is created.[9] When developing the IEP, the Team must consider parental concerns; the student's strengths, disabilities, recent evaluations and present level of achievement; the academic, developmental and functional needs of the child; and the child’s potential for growth.[10] Evaluating an IEP requires viewing it as a "a snapshot, not a retrospective. In striving for 'appropriateness,’ an IEP must take into account what was . . . objectively reasonable . . . at the time the IEP was promulgated.”[11]
At the same time, FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential,[12] and appropriate progress will look different depending on the student.[13] An individual analysis of a student’s progress in his/her areas of need is key.[14] The educational services provided to a student, therefore, need 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."[15]
b. Implementation Failures
“[H]earing officers are precluded from revisiting or re-opening accepted IEPs that have expired where parents participated in the development of the IEP. The purpose of this rule is plain; deciding upon which goals and methods to include in any student’s IEP is not an exact science, and allowing parents to second guess IEP decisions after it has expired would only undermine the process of providing students with the educational services they need.”[16] Nevertheless, “[t]o provide a free and appropriate public education to a student with disabilities, the school district must not only develop the IEP, but it also must implement the IEP in accordance with its requirements.”[17] Where an IEP has been accepted in full and has expired, the analysis focuses on implementation.[18] The generally adopted standard requires “more than a de minimis failure” to prevail on an implementation claim under the IDEA.[19] Specifically,
“a court reviewing failure-to-implement claims under the IDEA must ascertain whether the aspects of the IEP that were not followed were ‘substantial or significant,’ or, in other words, whether the deviations from the IEP’s stated requirements were ‘material.’ A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP. This standard does not require that the child suffer demonstrable educational harm in order to prevail; rather, courts applying the materiality standard have focused on the proportion of services mandated to those actually provided, and the goal and import (as articulated in the IEP) of the specific service that was withheld.”[20]
Courts have found FAPE violations where (1) the “failure” to implement was “complete”; (2) the variance from the special education and related services specified in the IEP deprived the student of a FAPE; and (3) the provision of special education and related services failed to enable the student to make “progress” toward the achievement of the goals stated in the IEP.[21]
c. Burden of Persuasion
In a due process proceeding, the burden of proof is on the moving party.[22] If the evidence is closely balanced, the moving party will not prevail.[23] In the instant case, Parent bears this burden.
B. Application of Legal Standards[24]:
It is not disputed that Student is a student with a disability who is entitled to special education services under state and federal law. The fundamental issues in dispute are whether the District denied Student а FAPE by failing to provide appropriate behavioral supports from January 12, 2024 to the present, and, if so, what is the proper remedy. After reviewing the evidence before me in the context of the legal standards set forth above, as well as the thoughtful arguments of Parent and District Counsel, I find that Parent has not met her burden of persuasion.
The IDEA requires that in the case of a child whose behavior impedes the child's learning or that of others, the IEP team consider the use of positive behavioral interventions and supports and other strategies to address that behavior.[25] IEP teams should consider students' behavioral needs when developing, reviewing, and revising IEPs to ensure FAPE is provided.[26] However, the U.S. Department of Education expressly rejected the notion that districts should be required to develop a BIP for all students with emotional disturbances. Instead, a student's need for behavioral interventions and supports must be decided on an individual basis by the student's IEP team.[27] Here, Peabody has met this obligation. The evidence is ample that Student’s behavior was discussed at each Team meeting, and goals, accommodations, and services were included in each proposed IEP to support Student’s struggles with engagement, work completion, noncompliance, and self-advocacy.
The updates to the April 2023 SSP did not result in a denial of FAPE. I credit Dr. Crompton’s testimony that the revisions were designed to align supports with Student’s maturation and the high school setting, emphasizing increased autonomy, flexible access to breaks, and self-regulation. The December 2023 SSP supports were incorporated into Student’s IEPs and correspond with Student’s reduced disciplinary incidents and improved engagement, as reflected in Student’s passing grades, credit recovery, and progress toward graduation. Dean Fidalgo’s testimony and the documentary record confirm a decline in referrals, and this improvement is further supported by FBA findings and consistent staff reports of limited behavioral concerns.
Parent’s argument that Student’s behaviors have not been eradicated is unpersuasive. The IDEA does not ensure a perfect outcome.[28] Special education does not necessarily aim to extinguish behaviors, but rather to support students so as to enable them to progress effectively and access their education. The record reflects that this has been accomplished in the instant matter. From January 2024 onward, Student demonstrated measurable improvement across multiple domains: a reduction in disciplinary incidents, increased academic engagement, accumulation of credits, and progress toward graduation. By the 2025–2026 school year, Student’s behavioral presentation had improved to the extent that discontinuation of BCBA consultation was recommended, as was removal of an emotional disability from his IEP. These outcomes strongly support a finding that the District’s approach was effective.
Nor do I find the updating of the SSP without Parent’s consent to be a procedural violation. The credible testimony established that the SSP is a general education support tool, designed to be flexible and responsive to a student’s evolving needs, and is not itself an IEP component requiring parental consent. Although aspects of the SSP were referenced in the IEP, particularly regarding breaks and reinforcement strategies, this incorporation does not transform the SSP itself into a legally binding IEP component. Accordingly, the District’s modification of the SSP without formal parental consent does not constitute a procedural violation of the IDEA.
Parent contends that behavioral supports were inconsistently implemented, particularly regarding breaks. However, the evidence does not substantiate a material failure to implement the IEP. To the contrary, credible testimony and documentary evidence, including SMART PASS data, demonstrate that Student accessed breaks frequently, indeed excessively at times. While there may have been isolated instances of miscommunication or disagreement regarding the parameters of breaks (such as leaving campus), such instances do not rise to the level of a “material” or “substantial” deviation required to establish an implementation failure under IDEA.[29] There is no evidence that any alleged inconsistency deprived Student of educational benefit or impeded progress toward IEP goals.
In addition, Parent’s argument that no SSP was implemented between September and December 2023 is irrelevant, as the issue is beyond the statute of limitations. Moreover, Parent’s reliance on an isolated email suggesting that only the December 2023 SSP was implemented does not establish a lapse in services. Even if there was some ambiguity regarding which version of the SSP was in use at a given time, the relevant question remains whether the substance of the behavioral supports, many of which were incorporated directly into the IEP, was delivered, and I find that it was.
Therefore, I find that Student’s IEPs adequately addressed Student’s behavioral needs. Parent has failed to meet her burden on her claims.
ORDER:
Peabody Public Schools provided Student with appropriate behavioral supports from January 12, 2024 to the present. Parent did not meet her burden on her claims.
So Ordered,
By the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir, Hearing Officer
May 11, 2026
Footnotes
[1] I take administrative notice of this Decision.
[2] Student was then in eighth grade at Higgins Middle School (Middle School) in Peabody.
[3] It appears that this IEP was an amendment rather than a new IEP.
[4] Following the issuance of the 2023 BSEA Decision, the Department of Elementary and Secondary Education (DESE or the Department) verified and confirmed that the District had complied with the 2023 Decision. (S-3)
[5] 20 U.S.C. §1400 (d)(1)(A).
[6] See 20 U.S.C. §1401(9), (26), (29); 603 CMR 28.05(4)(b); C.D. ex. rel. v. Natick Pub. Sch. Dist, 924 F.3d 621, 629 (1st Cir. 2019).
[7] 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).
[8] 20 U.S.C. §1412(a)(5)(A); C.D., 924 F. 3d at 631 (internal citations omitted).
[9] Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 402 (2017).
[10] 34 CFR §300.324(a)(i-v); Endrew F., 580 U.S. at 402; D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012); N. Reading Sch. Comm. v. Bureau of Special Educ. Appeals, 480 F. Supp. 2d 479, 489 (D. Mass. 2007) (“The First Circuit has characterized the federal floor, which defines the minimum that must be offered to all handicapped children, as providing a meaningful, beneficial educational opportunity, and Court has stated that a handicapped child's educational program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”)(internal citations and quotations omitted).
[11] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).
[12] 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”); see N. Reading Sch. Comm., 480 F. Supp. 2d at 488 (“The focus of inquiry under 20 U.S.C. §1415(e)(i) must recognize the IDEA's modest goal of an appropriate, rather than an ideal, education”).
[13] Endrew F., 580 U.S. at 400-401; see 603 CMR 28.02(17).
[14] 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”).
[15] G.D. Westmoreland Sch. Dist., 930 F.2d 942, 948-949 (1st Cir. 1991).
[16] Doe ex rel. Doe v. Hampden-Wilbraham Reg’l Sch. Dist., 715 F. Supp. 2d 185, 194–95 (D. Mass. 2010).
[17] See Colón-Vazquez v. Dep’t of Educ., 46 F. Supp. 3d 132, 144 (D. P.R. 2014).
[18] See id. at 143-44.
[19] Id. at 143.
[20] Id. at 143-44 (citing and quoting Van Duyn v. Baker Sch. Dist., 502 F.3d 811, 822 (9th Cir. 2007) and Garmany v. District of Columbia, 935 F. Supp. 2d 177, 181 (D. D.C. 2013); see Van Duyn, 502 F.3d at 815.
[21] See Ross v. Framingham Sch. Comm., 44 F. Supp. 2d 104, 119 (D. Mass. 1999), aff’d, 229 F.3d 1133 (1st Cir. 2000).
[22] Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62 (2008).
[23] Id. (places the burden of proof in an administrative hearing on the party seeking relief).
[24] In making my determinations, I rely on the facts I have found as set forth in the Findings of Facts, above, and incorporate them by reference to avoid restating them except where necessary.
[25] See 34 CFR 300.324 (a)(2)(i).
[26] Questions and Answers on Endrew F. v. Douglas County Sch. Dist. RE-1, 71 IDELR 68 (EDU 2017); and Dear Colleague Letter, 68 IDELR 76 (OSERS/OSEP 2016).
[27] See 71 Fed. Reg. 46,683 (2006).
[28] See P.P. ex rel. Michael P. v. West Chester Area Sch. Dist., 585 F.3d 727, 729–30 (3d Cir.2009) (“maximal or optimal educational services or results are not guaranteed under the IDEA”).
[29] See Ross, 44 F. Supp. 2d at 119.