Introduction

Can / should / must a special education Team specify a teaching methodology in an IEP?  More specifically, if a student with Autism Spectrum Disorder (ASD) requires Applied Behavior Analysis and Discrete Trial Training (ABA / DTT) in order to make effective progress, should the Team include the ABA/DTT methodology in the IEP?  Must the Team include ABA/DTT in the IEP?

Legal Background

The very definition of the term Special Education would seem to indicate that IEP’s can and should name specific methodologies.  Both federal and New Hampshire law define “Special Education” as “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability….”  34 CFR 300.39(a)(1); Ed 1102.05(c).  Specially Designed Instruction is then defined as:

(3) Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction–

(i) To address the unique needs of the child that result from the child’s disability…

34 CFR 300.39(b)(3); Ed 1102.05(c).  In Massachusetts, the definition is slightly different: “Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.” 603 CMR 28.02(20).

Guidance provided by the federal Department of Education states, “if an IEP Team determines that specific instructional methods are necessary for the child to receive FAPE, the instructional methods may be addressed in the IEP.”  71 FR 46665 (2006).  On the other hand, that same guidance also states, “There is nothing in the Act that requires an IEP to include specific instructional methodologies… The Department’s longstanding position on including instructional methodologies in a child’s IEP is that it is an IEP Team’s decision.”

But what if the Team makes the wrong decision?  What if a child requires a specific methodology in order obtain a meaningful benefit from their educational program?  Surely the courts can help, right?  Not necessarily.  The U.S. Supreme Court has stated that

[C]ourts must be careful to avoid imposing their view of preferable educational methods upon the States.[29] The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.

Board of Educ. v. Rowley, 458 U.S. 176 (1982).  So, parents should not expect a court to overrule methodology choices made by IEP Teams.

Luckily for parents, though, the administrative agencies in each state which adjudicate special education matters are not part of the state or federal court systems.  They are, in fact, administrative bodies of state governments.  The difference might seem minor, but it is, in fact, very important.  Notice that Rowley does not leave the methodology decision just to the IEP Team (i.e. the “local educational agenc[y]).  Instead, it leaves the decision to “state and local educational agencies…”  Furthermore, the decision must be made “in cooperation with the parents or guardian of the child.”  In New Hampshire, special education disputes are not initially adjudicated in the court systems; they are adjudicated by the New Hampshire Department of Education.  Similarly, in Massachusetts, the administrative body that hears special education disputes is called the Bureau of Special Education Appeals (BSEA), which is part of the Massachusetts Department of Administrative Law Appeals (DALA).

Courts have even recognized the difference in knowledge and expertise between the state administrative law judges / hearing officers and judges within the state or federal court systems.  For example, in Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004), it was stated,

[T]he ALJ is a representative of the state presumed to have both the educational expertise and the ability to resolve questions of educational methodology that the federal courts do not have. While the district court always is required to give due deference to administrative findings in an IDEA case, even greater weight is due to an ALJ’s determinations on matters for which educational expertise is relevant.

Id. at 865.

New Hampshire Case Law

I recently litigated a case in New Hampshire which dealt with the issue of whether an IEP of a student on the autism spectrum should be updated to reflect the need for the ABA/DTT methodology.  Student v. School District, IDPH-FY-16-02-020 (NH Dept. of Educ. May 9, 2016).  The result was very positive for the parents.  In this case, it was well documented through private evaluations and reports that a kindergarten student with very limited verbal skills required ABA/DTT in order to learn.  The student’s neuropsychological evaluation stated that the student required a minimum of 25 to 30 hours of individualized, ABA/discreet trial based therapy per week, with placement in a full-time, full-year program utilizing 1:1 ABA, with staff being ABA-trained and BCBA supervised.

The school district even recognized the importance of ABA/DTT for the student.  For example, Team meeting notes documented that the student was “rapidly gaining skills during ABA in a structured one-on-one setting.”  A Written Prior Notice documented, “The team recognizes that [Student] has benefited from discrete trial instruction by a trained therapist with oversight by a BCBA… [Student] is acquiring skills rapidly in a one-to-one setting using ABA and Discreet Trial Methodologies.”  Perhaps most importantly, the district’s program actually included ABA/DTT, as well as other methodologies.

Despite such clear evidence, and even admission by the school district, about the need for Applied Behavior Analysis / Discrete Trial Training, the school district refused to commit to any ABA/DTT services in the IEP Service Delivery Grid.  In order to ensure that the student received the required services, the parents kept the student at home, arranged for full-time private ABA/DTT services at home, and eventually filed for a due process hearing.

The hearing officer differentiated this case from other methodology cases by clarifying that this was not a dispute about the need for ABA/DTT.  The district admitted that the student needed ABA/DTT, and even admitted that the program included some ABA/DTT.  Instead, this was a case about the Team refusing to document the need for ABA/DTT within the IEP.  In his decision, the hearing officer stated:

[T]he dispute here is more about the school district’s reluctance to put specific language in an IEP about a service and a particular methodology that the Team agreed would be provided. The school members of the IEP team did not want to include any specific amount of ABA/DTT services in the IEP because they did not want to “tie their hands” and it was “not good practice” to include methodology in an IEP. That led to uncertainty about how much and what kind of special education services the student would receive.

While the cases say that methodology does not have to be included, they do not say that it cannot be included. There is nothing in the law that would prohibit the school from including a methodology in an IEP. Methodology is part of the definition of special education and specialized instruction in the IDEA and its regulations, 34 CFR § 300.30(b)(3), and it seems that it should be part of the listing of the amounts of special education services a student will receive when part of those services will knowingly be from some method like ABA/DTT… [I]f a team agrees that a student requires ABA/DTT services, which it did here, those services should be included in the IEP.

Id. The Massachusetts Bureau of Special Education Appeals (BSEA) has established similar case law.  For example, in the case In Re: Middleborough Public Schools, 9 MSER 244 (2003), the school district raised similar arguments as the NH case just described.  “The School argues that this is purely a question of methodology, that the choice of educational methodologies belongs solely to the school, and cannot be dictated by Parents or a hearing officer.” Id.  The hearing officer stated that the school district was taking a general principle and carrying it too far.  While it is true that courts generally defer to educators on the issue of methodology, this general principle does not apply when the IEP itself is inappropriate.  Interestingly, the hearing officer got even more specific regarding ABA/DTT methodology, when she stated,

Additionally, courts seem to address ABA/DTT differently from other methodology disputes. In numerous cases courts have held that there is a “window of opportunity” for children with PDD/autism spectrum disorders to develop language and behavioral skills. If the evidence—including expert testimony– shows that ABA/DTT is necessary for FAPE during that window, courts have ordered schools to provide it. See, e.g., T.H. v. Palatine , supra.

Summary

Educators, collaborating with parents and guardians, generally determine methodology.  If a specific methodology is necessary for a student to receive a Free and Appropriate Public Education (FAPE), that methodology should – and I would argue must – be included in the IEP.  Courts generally will not overrule the methodology decisions of school districts.  However, the administrative bodies that adjudicate special education cases are not part of the court system; they are considered part of the “state educational agency” as described in Rowley.  Hearing officers have expertise in educational matters, and while they may generally defer to the “local educational agencies,” they do have the right and responsibility to override a methodology decision if such methodology is required for FAPE.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.