Category Archives: IEP

Written Prior Notice and IEPs

In special education disputes, the question sometimes comes up about how binding statements are from a Written Prior Notice (“WPN”), especially compared to an IEP.   What if a key service or description is in the WPN, but not the IEP? Can the two documents be read together, to make them equally enforceable? A case recently decided by the First Circuit Court Of Appeals helps to answer these questions. Ms. M. v. Falmouth Sch. Dept., 847 F.3d 19 (1st Cir. 2017).  Even though the case originated in Maine, because both Massachusetts and New Hampshire are also part of the First Circuit, the decision is binding throughout all three states (as well as Rhode Island and Puerto Rico).

Whenever a Team makes a decision to take or not take an action, it is supposed to issue a Written Prior Notice form describing the decision that was made, and why. 20 U.S.C. § 1415(b)(3); 20 U.S.C. § 1415(c)(1) . Federal law and New Hampshire refer to this as a Written Prior Notice or Prior Written Notice; Massachusetts refers this as an N1 Form.  Assuming any changes are going to be made, an IEP follows the WPN. The IEP is what parents are used to signing, by accepting, partially accepting, or rejecting the document. The IEP becomes the contract between the parents and the school district, at least in terms of whatever is agreed to in the IEP.

The Ms. M. case concerned a 12-year-old girl (“O.M.”) diagnosed with Down Syndrome and Attention Deficit Hyperactivity Disorder, attending school in Falmouth, Maine.  In October 2013, the school district issued a WPN in which the district proposed “the introduction of a structured reading program to [O.M.]’s IEP.” Ms. M., 847 F.3d at 23. After Ms. M. expressed dissatisfaction with various aspects of the district’s proposal, the district, on November 5, 2013, issued a new WPN, in which it “‘proposed’ to provide O.M. with 60 minutes of daily SPIRE instruction.” Id. Ms. M. responded on November 14, 2013 by writing to the school district stating that she had identified several errors in the WPN, and did not believe that SPIRE was appropriate, because according to Ms. M., SPIRE was not a research-based program. Ms. M clarified her position when she wrote that she was “‘NOT in agreement with the proposal to use [SPIRE] for [O.M.]'” Id.  The resulting IEP did not identify or discuss SPIRE, and instead stated that Falmouth would provide O.M. with eight hours and forty-five minutes of specially designed instruction in literacy and math per week.  On April 17, 2014, Ms. M notified the school district that her daughter would start to receive private tutoring sessions in a different structured reading program called Lindamood Phoneme Sequencing (“LiPS”). On May 1, 2014, at a Team meeting, Falmouth notified Ms. M that they were declining her request to provide O.M. with LiPS instruction, and again agreed to provide her with SPIRE instead, though not until the following school year. Id. at 23 – 24.

In June 2014, Ms. M filed for due process.  Ms. M., 847 F.3d at 24. The hearing officer ruled in Ms. M.’s favor, determining that the contents of the October 31st WPN were part of the IEP. The hearing officer also determined that since the combined documents called for SPIRE instruction, Falmouth had violated the IEP by not providing her with such instruction. However, the hearing officer also ruled that the failure was merely a procedural violation and had not harmed O.M. educationally, and therefore FAPE was not denied. Id. at 24 – 25.

Ms. M. then appealed to federal court.  Ms. M., 847 F.3d at 25. A magistrate judge supported the findings of the hearing officer. The case then proceeded to district court, which disagreed with the magistrate judge and hearing officer in terms of whether the violation was substantive or merely procedural.  The court found that the violation was material, and entered a judgment of $4,111.25 in favor of Ms. M., reflecting the cost of the LiPS tutoring for 3 1/2 months. Id.

The case then proceeded to the First Circuit Court of Appeals, which reversed the lower courts.  The First Circuit agreed with Falmouth’s argument that “SPIRE… was never part of O.M.’s IEP because the IEP team only mentioned its use in the Written Prior Notice generated after the October 31st meeting, a document which proposed, but did not promise, that the School Department would provide specific educational programs to O.M.” Ms. M. at 25. The court stated that although the WPN might contain more specific terms than the IEP, those terms are intended as proposals, and are “not binding.” Id. at 28.

The court did identify an exception that would allow the WPN to be read with some binding authority.  Specifically, if a term in the IEP is ambiguous, the WPN can be referenced for help clarifying the ambiguity. Ms. M. at 28.

As one last aside, it is valuable to point out how important it is for both parents and school districts to be reasonable when dealing with each other.  In this case, the parent told the school district that she was opposed to SPIRE, yet then proceeded to bring a due process case for the district’s failure to implement SPIRE, even though SPIRE was never in an IEP.  Regardless of whether the WPN and IEP could be read together to create a binding set of services, it does not seem reasonable for a parent to bring a due process case, trying to fault the district for failing to implement the program to which the parent was opposed.  That is litigation that should never occur.

In summary, based on the Ms. M. case, parents in the First Circuit (including Massachusetts and New Hampshire) should not assume that a WPN is binding, or that the WPN should be read together with an IEP.  The WPN should be looked as a set of proposals that are not binding until the details are in the IEP, and the IEP is agreed to by both district and parents.  If parents do not see what they are looking for in an IEP, the first step should be to ask the school district to correct the error.  If the district refuses, then the parent should document their position, which would typically be done through a rejection (partial or full, depending on the circumstances).


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.

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What Should Happen When a Special Ed Child Moves

Consider this hypothetical (or not so hypothetical) situation: You have made the decision to move to a different school district.  Your child is on an IEP.  The new school district believes that the services documented in the IEP are not appropriate, and tells you that they will not be providing those services, or that they do not have anything comparable.

In the above situation, is the school district operating within the law?  NO!  The Individuals with Disabilities Education Act (IDEA) is very clear that when a child changes school districts within the same state, “the local educational agency shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law.”  20 U.S.C. § 1414(d)(2)(C)(i)(I).  Massachusetts has very similar wording in its regulations: 603 C.M.R. § 28.03(c)(1).

In other words, the new district must immediately provide services that are comparable to the old district’s IEP.  At some point, the new district will need to decide whether it will adopt the old district’s IEP, or attempt to develop a new IEP.  If the new district tries to develop a new IEP, that new IEP would not be considered the effective IEP until the parent accepts it.

For families who are moving across state lines, the IDEA provides very similar wording and protections.  The big difference for families changing states is that the new district must provide comparable IEP services until the new district conducts an evaluation of the student and develops a new IEP.  20 U.S.C. § 1414(d)(2)(C)(i)(II)34 C.F.R. § 300.323(f).

There is also often a question of records.  How do the old records get to the new school?  Again, IDEA defines the district’s responsibilities.  The new school “shall take reasonable steps to promptly obtain the child’s records… from the previous school in which the child was enrolled.” 20 U.S.C. § 1414(d)(2)(C)(ii).

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.

“Sped Staff” Not Sufficient in IEP Service Grid

If you have worked with IEP’s, you have probably seen this before: the Service Delivery Grid of the IEP might list “Sped Staff” as the provider of services. Massachusetts PQA (Program Quality Assurance) recently investigated a complaint alleging that the Hudson School District’s use of “Sped Staff” as the provider was insufficient, and a violation of Massachusetts special education law. PQA agreed with the complainant, and required the following of the school district “The District must send a memo to its IEP Team Chairpersons responsible for the development of the IEP stating that the use of term ‘SPED Staff’ on the IEP service delivery grid is not acceptable, and that each IEP should identify the type of service providers, e.g., special education teacher, paraprofessional, Occupational Therapist, etc.”

More specifically, PQA determined that the generic use of the term “Sped Staff” was a violation of Massachusetts regulation 603 CMR 28.06(2)(a), which requires IEP Teams to consider the type of service providers. According to the PQA report, “In the same manner which the IEP Team must distinguish between the types of related services necessary for the student (for example, “speech Therapy” or “Physical Therapy”) in making its placement decision, the regulation requires the same sort of consideration for distinguishing the student’s service providers.”

Click here to view the complete PQA “Letter of Finding.”

Thank you to Education Advocate Lucie Chansky and SpedWatch for bringing this PQA decision to my attention.

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

MA Senate Passes Transition Services Legislation for Students with Disabilities

The Massachusetts Senate has passed H. 3270, An Act to promote the successful transition of students with disabilities to post-secondary education, employment, and independent living.  The Bill now goes back to the House for enactment, and will also need to be signed by the Governor before becoming law.  The Bill directs the state Board of Elementary and Secondary Education to develop regulations that will allow special education teachers and rehabilitation counselors “to develop the competence necessary to serve as transition coordinators to facilitate provision of a coordinated set of activities to adequately prepare students with disabilities to achieve successful transition to post-school activities including further education, competitive employment, and independent living.”

What does all of this mean?  Basically, Massachusetts is trying to put in place a framework and supports to allow special education teachers to obtain additional expertise in the area of transition planning.  Through additional coursework and field experience, special educators will be able to earn an “endorsement” in transition planning from the state.  The transition section of the IEP is the area where a student’s post-secondary goals are listed, as are the services and supports that will be utilized to help the student achieve post-secondary goals and independence.  Unfortunately, transition planning is often an afterthought in IEP’s.  Hopefully, this new law will help to fix that situation.

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

Categorizing Your Dispute

The school year is now well underway.  It is a sad fact of life that as the school year rolls along, more and more disputes arise between parents and school systems regarding a child’s education.  For disputes that cannot be resolved directly between the parents and the school systems, it is sometimes necessary to engage an attorney.  When parents call my office, one of the first things I do is to categorize the dispute into one of four major categories (and then further sub categorize within those categories):

  1. Eligibility and Evaluations.  Does the child have a disability?  Is the child not making effective progress in regular education due to that disability?  Does the child require specially designed instruction or related services in order to access the curriculum?  If the answers to these questions are yes, then the child should be eligible for special education services.
  2. The Team process and IEP services.  Who makes up the Team?  Do Team meetings take place when and how they are supposed to according to the law?  Does the IEP properly reflect the special needs of the child?  Do the accommodations and services match what the medical professionals and recommended in the evaluations?
  3. Placement.  Where will services be provided?  In-district or out-of-district?
  4. Discipline.  Has a child been removed from their educational placement because of discipline?  Has this happened for more than 10 days?  Did the school conduct a Manifestation Determination and a Functional Behavioral Assessment?

Once you know where the dispute exists within this special education “lifecycle,” you can then better understand your rights and the school district’s responsibilities under the law.

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