Category Archives: Autism Spectrum Disorder

Specifying Teaching Methodology in an IEP


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.


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, or call 781-209-1166 for more information.

MA Legislature Passes Autism Omnibus Bill

The Massachusetts Legislature recently passed the Autism Omnibus Bill.  Massachusetts Advocates for Children, which provided vital advocacy in support of the Bill, has summarized the key provisions as follows:

  • A requirement that MassHealth cover medically necessary treatments for children with ASD who are under 21 years old – including ABA therapies as well as dedicated and non-dedicated AAC devices;
  • Extension of Department of Developmental Services (DDS) eligibility to many persons with Autism, Prader Willi Syndrome and Smith-Magenis syndrome;
  • The creation of an Autism Endorsement for special education teachers to enable them to voluntarily gain in-depth knowledge about the complexities of educating students with ASD;
  • The creation of tax-free saving accounts (called “Achieving a Better Life Experience” or ABLE) to help families cover anticipated disability-related expenses for individuals with ASD and other physical and developmental disabilities;
  • Requiring DMH and DDS to develop and implement a plan to provide services to individuals who have both a mental illness and a developmental disabilities; and
  • Establishing the Autism Commission as a permanent entity.

Mass Advocates Web Site Summary


Mass Advocates has also published:

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, or call 781-209-1166 for more information.

Medway SEPAC to Host “What the Dracut Decision Taught Us About the Importance of Social Skills and Language Pragmatics in an IEP”

The Medway SEPAC will be hosting what should be a very interesting and informative presentation entitled “What the Dracut decision taught us about the Importance of Social Skills and Language Pragmatics in an IEP.”  It will take place on January 22, 2013 at 7:00 PM at Medway High School, 88 Summer Street Medway, Ma 02053.  The presentation will be free and open to the public.  If you plan to attend, you should RSVP to  Discussions will be led by Elsa Abele MS CCC/SLP & clinical Assistant Professor at Boston University & Professor at the Center For Autism Disorders at Antioch University.  The presentation will also feature two lawyers from the Disability Law Center of Massachusetts who worked on this case, Janine A. Solomon and Pamela J. Coveney.  The Dracut case is a very important BSEA decision in Massachusetts, particularly for those students on the Autism Spectrum.  If you would like to read a good summary of this case, you can access it here.  The complete BSEA decision can be found here.

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, or call 781-209-1166 for more information.

Free Guide for Parents of Children with Autism

The National Autism Center has made a guide on autism available for free.  It is intended to assist parents of children with autism.  It is available for download here: A Parent’s Guide to Evidence-Based Practice and Autism.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters.  Please visit, or call 781-209-1166 for more information.

Hudson SEPAC to host ‘Asperger’s Syndrome vs. Autism vs. PDD-NOS’ workshop

The following information was published by Community Advocate.  You can find the original article at:

Hudson– The Hudson Special Education Parent Advisory Council (SEPAC) is hosting a workshop by Dr. Amy Shogren on autism spectrum disorders, “Asperger’s Syndrome vs. Autism vs. PDD-NOS.” The workshop will be held Tuesday, Feb. 7, from 7 to 9 p.m., in Room A-134 at Hudson High School.

Particpants will learn how the features of each of these diagnoses vary, as well as how children diagnosed with these developmental disabilities differ in their communicative competency, social functioning, behavioral presentation, and academic trajectory, and what interventions are important to address the challenges associated with these disabilities? The seminar will assist parents and school personnel in understanding these diagnostic categories and how to intervene at home and at school.

The workshop is free, and parents and teachers are encouraged to attend. To RSVP or for more information, call 978-212-9651 or visit Hudson High School is located at 69 Brigham St.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters.  Please visit, or call 781-209-1166 for more information.

Worries About Bullying Insufficient to Prove Lack of FAPE

An interesting case in Pennsylvania, which made it all the way up to the US District Court there, stands for the proposition that fears about bullying are insufficient to prove that there was a lack of FAPE (Free Appropriate Public Education).  The plaintiffs in this case (J.  E. et al. v. Boyertown Area School District, 10 – 2958 (E.D. Pa., 2011)), made a unilateral placement of the student at a private school that they believed would provide the child with a FAPE.  The student had been diagnosed with Asperger’s Syndrome.  They claimed that the placement proposed by the school district would subject their child to bullying.  The student had previously been subjected to bullying at a previous school district placement, but not at the placement that was then being proposed by the school district.  The parents were simply fearful of potential bullying at the school district’s proposed placement.  The court determined that a fear of bullying is not sufficient to prove a lack of FAPE.  “The Hearing Officer concluded that the AS program could appropriately deal with any bullying that occurred and that this concern was only prospective. There is no reason for the Court to find otherwise. J.E. may face bullying, but a fair appropriate public education does not require that the District be able to prove that a student will not face future bullying at a placement, as this is impossible.”

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Who Can Diagnosis Autism Spectrum Disorder?

During my presentation on Special Education Law and Asperger’s Syndrome at yesterday’s AANE conference, a very interesting question arose.  An attendee asked who can diagnosis a disability.  That question seems simple enough, but the answer is not so simple.

The reason he asked the question was that his IEP Team told him that the school system is not able to diagnose a disability – they claimed that it is up to the parents to get that diagnosis privately.  I see this often at Team meetings.  In general, it is not true.  The evaluation that the school system performs will likely include a psychological evaluation, an educational evaluation, input from parents and teachers, and possibly a medical evaluation by a physician (at school expense!).

The school system is perfectly capable of diagnosing a learning disability.  On the other hand, it is in no position to diagnosis a physical ailment that only a physician can diagnose.  Autism Spectrum Disorder (ASD) is in between.  According to IDEA, “Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.”  34 C.F.R. 308(c)(1)(i). A developmental disability is generally defined as a mental or physical impairment identified prior to age 18.  A qualified psychologist – and one would assume that a school psychologist is qualified – should be able to diagnose autism.

What’s even more interesting, and beneficial to parents when the school is refusing to diagnose autism, is 34 C.F.R. 308(c)(1)(iii): “A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied.” So, even if the child has not been formally diagnosed with autism – regardless of who should have done the diagnosis – if the child “manifests the characteristics of autism,” the Team could then identify the child as having autism, and treat him or her as such.

I would be very interested to get feedback from readers of this blog regarding your own experiences.  Please take 30 seconds to respond to this poll:

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Asperger’s Association Conference

I had a wonderful time today speaking at the Asperger’s Association of New England (AANE) conference in Marlboro.  The subject of my presentation was Special Education Law and Asperger’s.  I covered the basics of IEP’s and 504’s, and then discussed how those apply to students with Asperger’s syndrome.  We also talked about the Massachusetts Curriculum Frameworks and how they can be applied to students with disabilities, particularly those with Asperger’s Syndrome and others who have Autism Spectrum Disorder (ASD), to build an argument for appropriate services from the school system.  The audience was quite large, very engaging, and asked excellent questions.  I will try to provide more details about the content in upcoming blogs.

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Federal Judge Saris Affirms that Dracut Denied FAPE to Asperger’s Student – Precedent Setting Case in Massachusetts

The long-awaited decision on the appeal of the Dracut case has just come down.  The following is from an email I received this morning from Massachusetts Advocates for Children:

Judge Patti Saris, US District Court, MA, has just decided the LEA’s appeal of two transition decisions in favor of a special education student with Asperger’s Syndrome.  Both administrative decisions, along with the federal Judge’s Memorandum and Order, appear on the Massachusetts Disability Law Center’s website,

The Judge affirmed the Hearing Officer’s finding that Dracut Public Schools (“Dracut”) had denied the student FAPE.  It had not performed timely assessments, as IDEA requires, inevitably leading to a failure to provide appropriate, measurable goals related to the student’s needs.  Of particular interest was the Judge’s observation that the student’s pragmatic language deficits were key to his postsecondary academic, social and vocational success and her characterization of Dracut’s failure to address those deficits as “egregious.”

The Judge did not affirm several of the Hearing Officer’s proposed remedies, however.  The HO had extended the student’s special education eligibility, for example, while simultaneously directing that he receive his diploma.  The Hearing Officer also ordered the LEA to hire and compensate two of the testifying experts to collaborate on creating and implementing a Transition Service Plan.  The Judge ruled that this exceeded the HO’s equitable authority and further remanded the matter for additional consideration of the necessary compensatory services.

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MA House Passes Bill Requiring Insurance Companies to Cover Services for Children with Autism

The Massachusetts House has passed a bill requiring insurance companies to cover services for children with autism. These covered services would include ABA (Applied Behavioral Analysis). This is not yet law, though, because the Senate will need to pass its version of the bill, and differences between the two versions will need to be hashed out, and then the Governor would need to sign it into law, so it still has a way to go.

Insurance companies, of course, oppose this bill. They claim it will only increase the cost of insurance coverage. Using that reasoning, though, why not just eliminate all health coverage? Isn’t autism a health-related issue? If not, then what is it? I used to work for an insurance company, and I can tell you that they almost universally oppose any type of mandated coverage. Back when President Clinton was trying to get universal health coverage passed, I recall the insurance company I worked for convening meetings of all company employees (thousands), strongly requesting that all employees write to their Senators and Representatives opposing such health coverage.

Insurance companies claim the cost of covering autism will increase annual costs by somewhere between $14 and $30 per insured. Advocates of the bill claim the annual cost would only be about $10 per year. Either way, I believe that this change is a good change, properly recognizing that autism is a health issue, and that all families regardless of income should be able to treat this disorder.

The bill is far from perfect, but it is better than nothing. Some of the problematic aspects of the bill are:

1. Insurance companies will be able to drop autism coverage for three years if the company’s overall insurance costs rise by more than 1% a year. To me, that seems to give insurance companies incentive to be very liberal with their coverage during the first year, for the sole purpose of being exempted from coverage for the next three years.

2. Insurance companies will be exempt from paying for in school services. I foresee strong battles developing among insurance companies, schools, and parents. Insurance companies will be claiming that various services are appropriate only for schools to administer; schools will be claiming that those same services are not really education related, and should be covered by health insurance companies; parents will be caught in the middle fighting both schools and insurance companies.

3. Small to medium-sized companies that offer health insurance to their employees would be disproportionately affected by this new mandate, because large companies are not subject to such insurance mandates.

By the way, to see a report created by my daughter regarding autism, check out this video:

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