Category Archives: BSEA

Specifying Teaching Methodology in an IEP

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.

Advertisements

Joining a Third Party to a BSEA Case

When you have been harmed, and you need to take legal action against another party, you probably think of a lawsuit between a plaintiff and defendant. But what if you, as the plaintiff, cannot get complete relief from taking action against just one party? Or what if the relief sought by the plaintiff would result in an unfair burden placed on the defendant? In those types of cases, it might be necessary to “Join” a third party, thereby making that third party part of the lawsuit.

For matters dealing with special education, a due process hearing is the equivalent of a lawsuit in court. Each state has its own administrative body which adjudicates due process hearings. In Massachusetts, the administrative body is called the Bureau of Special Education Appeals (“BSEA”).  The BSEA Hearing Rules for Special Education Appeals list factors that a Hearing Officer should consider when a request is made to join a third party (See BSEA Hearing Rule 1(J) in the above link).

The factors defined in Rule 1(J) are:

  • The risk of prejudice to the present parties in the absence of the proposed party;
  • The range of alternatives for fashioning relief;
  • The inadequacy of a judgment entered in the proposed party’s absence; and
  • The existence of an alternative forum to resolve the issues.

Two recent rulings from the BSEA provide excellent examples of how a Hearing Officer applies the above factors to a real-life situation.  In the case of Student v. North Middlesex Regional School District & Department of Children and Families (22 MSER 156 (2016)), the parents filed a BSEA due process hearing request against both the school district (“NMR”) and the Department of Children and Families (“DCF”) seeking a six month residential placement to address the student’s chronic stress.  DCF believed that it should not be joined as a party, and filed a Motion to Dismiss.  The school district, on the other hand, was opposed to removing DCF as a joined party.

Hearing Officer Rosa Figueroa ruled in favor of the parents and the school district in denying DCF’s Motion to Dismiss. Although DCF did not have care or custody of the student, it did provide a Treatment Plan and also arranged for a neuropsychological evaluation of the student, so there was a pre-existing relationship between the student and DCF. The hearing decision documents the school district’s argument:

NMR argued that the scope of the Hearing therefore involves not only Student’s need for residential placement but also: a) whether her current private day placement offers her a FAPE; b) whether Student requires additional in-home or residential services; (3) whether those in-home or residential services would be educational in nature; and d) if not educational in nature, whether DCF is responsible to provide them. Moreover, according to NMR, given that Student and her family are currently receiving services under a Treatment Plan Document (June 1, 2016 Treatment Plan Document) it would appear that any difficulty experienced by Student in the home is attributable to the home environment rather than unmet educational needs, therefore, a private day placement for Student would suffice to offer her a FAPE in the least restrictive environment. Since a determination of the need for residential placement and/or home wrap-around services, as well as whether such services would be for educational reasons may involve orders against NMR and DCF, the BSEA would be unable to fashion the necessary remedies in the absence of DCF. Lastly, NMR argued that administrative efficiency could only be assured by maintaining DCF as a party.

22 MSER 156 (2016).  Hearing Officer Figueroa agreed that “the existence of an active and comprehensive Treatment Plan establishes enough of a relationship to allow the BSEA to order non-residential services (such as additional home-based or therapeutic services) consistent with DCF’s rules and regulations, that are necessary to enable Student to receive a FAPE.” Id.  In other words, since there was at least a possibility that DCF’s services might be needed in order for the student to be able to receive her Free and Appropriate Public Education (“FAPE”), DCF needed to stay involved as a joined party in the case.

It is important to realize that the ruling against DCF’s Motion to Dismiss does not mean that the parents won their residential placement.  This Motion was just one aspect of the larger overall litigation.  The decision simply kept DCF involved as part of the case.

In the second case, Student & Natick Public Schools (22 MSER 159 (2016)), the result was the exact opposite (DCF was not joined), but for reasons that are very much in line with the North Middlesex case.  In Natick, it was the parent who tried to join DCF “because she asserts that DCF was ‘complicit’ with alleged actions by Natick that Parent believes deprived Student of a free, appropriate public education (FAPE) and created a ‘hostile environment’ within the Natick Public Schools. Parent’s position is that… DCF (among others) collaborated with Natick to deprive Student of her rights.”  22 MSER 159 (2016).

The facts in Natick show that Natick did apply for a Child Requiring Assistance (CRA) petition with the Juvenile Court. Natick also filed a 51A report with DCF because of concerns about the students school attendance.  However, the student was never under DCF care or custody, DCF did not have an open case on the student or her family, and DCF was not providing any services to student or the family.

Hearing Officer Sara Berman provided an excellent summary of the factors that a Hearing Officer considers in determining joinder:

In general, factors that hearing officers consider in determining whether the criteria of 603 CMR 28.08(3) and Rule I.J have been met include the following:

  • The student’s eligibility for services from the agency;
  • status (or lack thereof) as a current client of the agency;
  • length and degree of involvement that the agency already has with the student, if any;
  • likelihood that the evidence at hearing will show that the student needs services that only are available from the agency to benefit from special education, that the agency has refused or failed to provide such services, and that no appropriate forum exists to contest the agency’s decision;
  • likelihood that an order to the school district alone will provide the student with FAPE;
  • administrative efficiency of joining a potentially responsible state agency early in the proceeding.

On the other hand, the BSEA has declined to join human services agencies in situations where the agency has found the student ineligible or has not determined eligibility under its own regulations, where the student is eligible only for minimal services from the agency, or where agency involvement in the future is theoretically possible but speculative.

22 MSER 159 (2016).  The Hearing Officer concluded:

DCF should not be joined as a party in the instant case because none of the criteria for joinder listed in the “Legal Frameworks” section of this Ruling have been met. Student is not a current client of DCF. She is not in DCF care or custody, voluntary or otherwise, and receives no DCF services. Moreover, Parents seek no DCF services for Student and/or their family now, and there is no evidence in the parties submissions that they intend to do so in the future… [C]omplete relief, i.e. all relief sought by Parent from the BSEA, can be granted without DCF as a party. There is no risk of prejudice to any existing party if DCF is not joined because there is no remedy that the BSEA can order against DCF.

Id. Through these two cases, we can see how a very similar approach and analysis resulted in polar opposite decisions because the facts of the cases were so different.

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.

 

Stay Put is a Powerful Tool

Stay put is the mechanism intended to ensure stability for students while parents and school districts work out their disputes.  Under 20 U.S.C. §1415(j), “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child…”  Similarly, in Massachusetts, under 28 CMR 28.08 (7), “during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise.”  New Hampshire’s stay put regulation is Ed. 1123.23.

So, what happens if a student is in an out-of-district placement, which the parent approves of, but the school district wins at due process for a different placement, and the parent appeals to federal court?  This was the scenario in a recent decision handed down by the Massachusetts Bureau of Special Education Appeals.  In the case of In Re: Boston Public Schools v. Student – BSEA # 15-03083 & BSEA # 14-01653, a Boston student was attending the READS Collaborative, pursuant to a prior stay put decision of the BSEA. Boston then filed for a hearing, asking the BSEA to rule that its proposed placement at a different school – the Horace Mann School – was appropriate for the student. Boston won that due process hearing. Ordinarily, this would mean that the student would need to start attending the Horace Mann School instead of READS. However, the Parent in this case appealed to the U.S. District Court.

The dispute then became the issue of what the stay put placement should be. The Parent claimed that stay put should be READS, since that was the then-current placement of the student. Boston argued that stay put should be the Horace Mann School, since that was the decision of the BSEA hearing officer.

Hearing Officer Rosa Figueroa ruled in favor of the Parent. The reasoning for this decision was that the students then-current placement was indeed the READS Collaborative. Even though Boston won the case at the BSEA in favor of the Horace Mann School, the the fact that the Parent appealed the case to U.S. District Court meant that they were still legal proceedings that were pending. To ensure stability for the student, the hearing officer maintained READS as stay put while the dispute worked its way through the system.

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.

2012 BSEA Statistics

The following table summarizes some of the key statistics for Fiscal Year 2012 that were recently published by the Massachusetts Bureau of Special Education Appeals (BSEA). There are a couple of points worth highlighting:

  • Out of 8,460 rejected IEP’s, there were only 52 due process hearings with decisions. Why?  Most cases reach resolution prior to a hearing.  In other words, based on the statistics, there is only a 0.6% likelihood that any rejected IEP will actually go all the way through to a complete Hearing.
  • Of the 52 decisions that were rendered, parents prevailed in just 13 cases.  That represents just 25% of the BSEA decisions.

What is the lesson here for parents?  Proceed with caution when it comes to litigation.  As an attorney, I judge my success not by the number of cases litigated, but by the number of positive outcomes achieved (preferably without litigation).

2009 2010 2011 2012
Rejected IEP’s 7,252 7,875 8,348 8,460
Mediations 846 854 809 917
Hearing Requests 609 545 544 582
Actual Hearings with Formal Decisions 48 50 35 52
Parents prevailed 6 9 7 13
Districts prevailed 36 29 22 26
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.

Procedures Lite = Rights Lite

Have you ever heard of “Procedures Lite?”  If not, don’t feel bad.  Very few people have, though you will probably be seeing reference to this more and more.

Federal and state special education laws grant numerous rights to parents, and create numerous requirements for public school systems, to ensure that disabled children are provided with a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). Anyone who has been involved with creating or implementing an IEP, or dealing with disputes that may crop up regarding a child’s education, can attest to the large overhead that is involved with special education.

Procedures Lite is an attempt by school districts to avoid the time, paperwork, cost and accountability that are required by federal and state special education laws.  Here’s how you will “ benefit:”

  1. You will “agree to suspend state and federal special education procedural requirements…”
  2. You will “understand that an Individualized Education Program (IEP) will be replaced by a one-page Student Learning Plan (SLP)…”
  3. You will agree not to:
    1. _____convene the Team meeting to develop an IEP.

    2. _____develop an IEP.

    3. _____ send/receive periodic parent notices.

    4. _____conduct procedurally required evaluations

  1. You will agree to “forever WAIVE [your] rights to appeal all issues under all state and federal laws… including all rights related to compensatory services or damages.”

Is Procedures Lite sanctioned by the Massachusetts Department of Elementary and Secondary Education (DESE) or the Bureau of Special Education Appeals (BSEA)?   I can find no reference to it in any state or federal website or communication, yet its advocates will have you believe that it is sanctioned by the DESE.  The Town of Weston – the only district of which I am aware that openly makes reference to this procedure – states, “DESE identifies the purposes of Procedures Lite as follows… DESE suggests that Procedures Lite agreements be limited….”  http://bit.ly/owsn9r.

I can’t think of any good reason for parents to agree to the use of Procedures Lite.  I see lots of benefits for the school districts, but none for the parents.  Is a district asks you to utilize Procedures Lite, would you mind notifying my office?  I would like to keep a running list of districts attempting to utilize Procedures Lite.  Thank you.

For further information about the Law Office of James M.  Baron, please visit http://www.lawbaron.com,or call 781-209-1166.