In the recent case of Doucette v. Georgetown Pub. Sch., No. 18-1160 (1st Cir. 2019), the 1st Circuit Court of Appeals issued a very important decision regarding the concept of “exhaustion.” Previously, the rule of thumb for special education attorneys was that if a case involved Section 504 or ADA claims by a student against a school district, the case needed to be heard by the Bureau of Special Education Appelas (“BSEA”) (or in New Hampshire, the Department of Education (“DOE”)) before it could be heard in federal court. This was true, even if the BSEA / DOE did not have the authority to grant the requested remedy, such as damages. Doucette applied and extended the reasoning outlined by the U.S. Supreme Court in Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 197 L.Ed.2d 46 (2017).
[Note: For purposes of this blog article, I will be referring to the BSEA. However, since both Massachusetts and New Hampshire are part of the 1st Circuit, everything discussed applies to both the Massachusetts BSEA and the New Hampshire DOE.]
Concept of Exhaustion
If you are the parent of a special education child, you probably know all about exhaustion, but more from the perspective of physical or emotional fatigue. The legal concept of exhaustion is quite different. In the law, exhaustion is short for “exhaustion of administrative remedies.” Black’s Law Dictionary defines “exhaustion of remedies” as:
The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available.Black’s Law Dictionary, 594 (Bryan A. Garner ed., 7th ed., West 1999)
The Individuals with Disabilities Education Act (“IDEA”) is the federal set of laws governing special education. 20 U.S.C. § 1400 et seq. IDEA does contain such an exhaustion requirement:
Nothing in [the IDEA] shall be construed to restrict or limit the rights,Fry, 137 S.Ct. at 750, quoting 20 U.S.C. § 1415(l)
procedures, and remedies available under the Constitution, the [ADA], title V of the Rehabilitation Act [including § 504 ], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].
In other words, if you are claiming that the school district owes your child something because the district violated the ADA or Section 504, and if you could also make a similar claim and get similar relief under IDEA, you need to start your legal proceedings at the BSEA / DOE. But what if the relief you are seeking is available under the ADA / 504, but is not available under IDEA – for example, financial damages (hearing officers are not authorized to award damages)? The case law in the First Circuit has generally held that you still need to start at the BSEA / DOE, if for no other reason than just to establish the administrative record for the benefit of the federal court.
- If the gravamen of a Rehabilitation Act (Section 504) claim does not involve the denial of a Free Appropriate Public Education (“FAPE”), does the plaintiff still need to exhaust administrative remedies through the BSEA before proceeding to federal court?
- If pursuing a case at the BSEA would be futile, must the parents still exhaust their administrative remedies at the BSEA before proceeding to federal court?
- The student, B.D., had a rare genetic disorder which caused numerous physical and developmental disabilities, and increased the risk of sudden unexpected death correlated with seizure activity.
- B.D. attended elementary school in Georgetown between the ages of three and six (July 2009 through August 2012). He was on an IEP. Parents and school district disagreed about his services.
- Parents temporarily removed B.D. from school in May 2010, and filed for hearing at the BSEA in July 2010. Parents sought an out-of-district placement. The BSEA Hearing Officer agreed that the IEP was inadequate, but did not order a new placement.
- In the fall of 2011, B.D. began working with a service dog to help him with anxiety and balance, and to alert caretakers of any impending seizures. In November 2011, Parents requested that the school district permit the dog at school as a disability accommodation. The school district initially refused outright, but then offered access to the service animal if the parents agreed to a school policy regarding the dog’s handling. The parents refused that offer, and claimed that the school district violated the Americans with Disabilities Act (“ADA”). The school district then ordered a behavioral assessment to take place during the following school year to determine whether his IEP should be amended to include a service dog.
- J.B. Comment: It is unclear from the decision what the school district’s policy was, or why the parents believed that the policy violated the ADA. Footnote 8 of the decision provides some foreshadowing by stating that this issue “will undoubtedly be an important issue to the future viability of the Doucettes’ section 504 claim, but it is not an issue in this appeal.”
- J.B. Comment: It is not clear from the decision how much time elapsed from November 2011 until the school district ordered a behavioral assessment, and then from the time that the assessment was ordered until the following school year when the district actually intended for the assessment to occur.
- In the summer of 2012, when B.D. was participating in the school district’s ESY program (i.e. summer school), he experienced a tonic-clonic seizure for over 20 minutes and required hospitalization. Parents demanded an immediate amendment to the IEP to grant him access to a service dog. This request was denied, but the district offered to allow the dog if the mother would act as the dog’s handler. After the denial, and into September 2012, B.D. suffered four more seizures
- J.B. Comment: An argument can be made that since the parents were requesting an amendment to the IEP, this became a FAPE issue. On the other hand, they were not the ones who initially requested an update to the IEP – it was the school district that responded to the Parents’ initial request for a service dog accommodation by suggesting a possible amendment to the IEP. Basically, the school district drew the Parents into a FAPE disagreement.
- B.D. continued to have seizures and hospitalizations. The parents eventually removed B.D. from school and again requested an alternative school placement. B.D.’s doctor wrote a letter expressing concern about the school district’s ability to handle B.D.’s health and safety, and recommended that B.D. be kept out of school until a safe placement could be identified. The school district wrote back that any extended absences would be considered truancy.
- In September 2012, Parents relented, and sent B.D. back to school. However, he had yet another tonic-clonic seizure, requiring hospitalization. Finally, the school district agreed to evaluate out-of-district placements, and in fact agreed to a new placement. B.D. did not experience any further seizures following removal from the school district.
- In 2015, the Doucettes filed suit in U.S. District Court alleging (1) state law tort claims, as well as federal claims under (2) Section 504 of the Rehabilitation Act and (3) 42 USC §1983.
- The District Court ruled against the parents on their federal law claims, stating that the parents failed to exhaust the IDEA administrative remedies. The court also declined to exercise pendent jurisdiction over the state law claims.
Summary of Key Regulations and Statutes Referenced in the Decision
- Section 504 of the Rehabilitation Act (29 USC §794): Section 504 requires public entities (including, but not limited to schools) to make reasonable modifications to their existing practices in order to accommodate disabled persons. Such modifications include support services. Alexander v. Choate, 469 US 287, 299 – 300 (1985). “IDEA guarantees individually tailored educational services, while Title II and § 504 promise non-discriminatory access to public institutions.” Fry, 137 S. Ct. at 756.
- Section 1983: This applies to everyone within the United States (not just disabled individuals), protecting everybody from deprivation of any federal rights by anyone acting under state law.
- Exhaustion Requirement: This concept is described above. The U.S. Supreme Court, in its Fry decision, provided the following guidance regarding exhaustion:
- The key to determining whether exhaustion at the state administrative level must occur is whether the gravamen of the claim concerns FAPE. If it does concern FAPE, then exhaustion must occur at the state administrative level before a claim can be made in federal court; if it does not concern FAPE, then the case can proceed directly to federal court without exhaustion at the state administrative level. Fry 137 S. Ct. at 754.
- The Supreme Court provided two “clues” to determine whether the case is related to FAPE:
- “could the plaintiff have brought essentially the same claim if the alleged conduct that occurred at a public facility that was not school?” and
- “could an adult at the school… Have pressed essentially the same grievance?”. Id. at 756 – 757.
Doucette § 504 Analysis
Regarding the 504 claim, the Doucette court looked to the Fry “clues” to determine that the 504 claim was not related to FAPE, and therefore exhaustion was not required. First, the the court stated that the plaintiff could have brought essentially the same claim against any public facility – not just a school. For example, if a movie theater, restaurant, hotel, or store failed to accommodate somebody by not allowing a service dog, that facility would be subject to a similar claim in federal court, without the plaintiff having to exhaust claims at the state administrative level. Doucette at 17 – 19. This reasoning is similar to Fry, where the “complaint alleges only disability-based discrimination, without making any reference to the adequacy of the special education services…” Fry at 137 S. Ct. at 758.
Doucette also utilized the second clue from Fry. Specifically, the court stated that a nonstudent (e.g. a teacher) could bring essentially the same claim against the school district if they were denied use of a service dog. Doucette p. 18.
The majority decision in Doucette also addressed several other arguments. One argument was that because the Doucettes previously engaged in a BSEA due process hearing regarding FAPE in 2010, the current dispute regarding the service dog must be related and must also concern FAPE. The court disagreed. The majority pointed out that the Doucettes did not raise the service dog issue until November 2011, well after the BSEA due process decision was issued. Id. at 20 – 21.
Another argument addressed by the court was that because the Doucettes eventually requested that B.D.’s IEP be updated to include reference to a service animal, the gravamen of their complaint concerned FAPE (and therefore exhaustion would be required). The court disagreed. The majority pointed out that the Doucettes initially requested the service dog without reference to the IEP. It was the school district that responded to the Doucette’s service dog request by ordering an assessment to take place to determine whether the IEP should be updated. Id. at 22.
Regarding the pure 504 vs. FAPE discussion, the majority pointed out that a student at risk of seizures who needs a service dog in school is not much different, legally, than a wheelchair-bound student who requires ramps in order to get into the school building. Neither case concerns educational services; both cases concern access. Id. at 23.
The mere fact that a student might require both accommodations under Section 504 and educational services under IDEA does not mean that all claims related to the student and the school must be exhausted at the state administrative level. To have such a requirement would discriminate against disabled students. Id. at 24 – 25.
Plain and simple, the 504 claim concerned a public institution’s denial of nondiscriminatory access to an individual by failing to accommodate use of a service dog, and the harm (i.e. seizures) that resulted from that denial; the 504 claim did not concern the school district’s obligation to provide a particular education program (i.e. FAPE). Doucette at 16 – 17.
Doucette § 1983 Analysis
Unlike the § 504 claim, the §1983 claim was very much related to FAPE. Here, the parents made a claim that the school district had notice that the placement was inappropriate, and that the district’s refusal to allow a different placement, and subsequent threatening of truancy, “amounted to ‘deliberate indifference in severe, pervasive disregard for [the] safety and well-being [of] B.D.’ and that, as a result, B.D. ‘suffer[ed] great physical and emotional harm,’ including ‘five [ ] life-threatening tonic-clonic seizures.’” Doucette at pp. 26 – 27. The Doucette court applied the Fry clues to conclude that FAPE was very much an issue. Doucette at 27.
Nonetheless, the court still ruled that the plaintiffs were not required to file at the state administrative level for several reasons:
1. Exhaustion was met. The Doucettes had a due process hearing in 2010. In July 2012, they again requested an alternative placement. They again brought the dispute to the attention of the local school district. They eventually received the relief they were looking for. However, the § 1983 claim did not concern whether the placement was appropriate or not; it concerned the harm that B.D. suffered as a result of the school district’s delay in providing the relief. Doucette at pp. 30 – 31.
2. Exhaustion was not necessarily even required. The Doucettes were seeking relief that was not available to them under IDEA – money damages for physical or emotional harm. Therefore, “§1415 (l) does not appear to require exhaustion of the Doucette’s constitutional claim…” Id. at 32.
3. Pursuing a claim at the state administrative level would have been futile. Hearing officers do not have the authority to provide the relief that the Doucettes were seeking. They are not authorized to award money damages for physical or emotional harm. Id. at 32. Hearing officers are limited to providing equitable relief in the form of educational services, compensatory services, and reimbursement for education -related expenses. Id. at 34.
The court acknowledged that FAPE-based claims can benefit from the administrative process, because such a hearing will develop the evidentiary record based on the specialized knowledge of education professionals. However, the court stated that such a record had already been developed through the 2010 due process hearing, as well as through the Doucette’s 2012 pursuit of an educational placement.
JB Comment: On the one hand, this particular argument seems ripe for appeal. Part of the record that the court refers to was not developed under oath, or in front of the hearing officer. The court is simply referring to documents which often become evidence that a hearing officer will weigh in a due process hearing. On the other hand, even if the court will benefit from further litigation in order to develop the evidentiary record, this one issue alone does not seem to be vital enough to require the cost and delay of further litigation at the state level. In fact, an alternative argument could be made that engaging in such litigation, knowing that a hearing officer does not have the authority to award the relief requested, amounts to frivolous litigation that only serves to increase the cost to both sides.
The Doucette decision is very important for special education cases which involve non-FAPE matters in the 1st Circuit. If an attorney representing a parent is considering whether to file a claim in federal court before litigating the issue at the BSEA / DOE, the attorney should first apply and analyze the clues provided by the Supreme Court in Fry, and applied in the 1st Circuit in Doucette.
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 https://www.lawbaron.com, or call 781-209-1166 for more information.
The joy of a snow day… I get a chance to catch up on a blog posting that I have been meaning to write for a long time. Last June, 2017, New Hampshire implemented a significant number of changes to its regulations related to special education. The changes range from correcting minor typos and grammatical changes, to major changes. After comparing the current and prior regs, I wanted to highlight some of what I believe are the more important changes. This list is not intended to be a complete list of the changes. These changes are all specific to New Hampshire:
- Once you have been involved with the special education system for a while, you learn that the school district is supposed to evaluate a child initially as part of the special education eligibility consideration process, as well as at least every three years thereafter. However, the evaluation process was never defined. It is now. The following new reg has been added:
“Evaluation process” means the completion of initial evaluations, reevaluations and assessments, a written summary report, and a meeting of the IEP team to review the results of the evaluations and assessments. When the purpose of the meeting is to determine eligibility for special education and related services, the evaluation process also includes the determination of eligibility. Ed 1102.02(n).
- Related to the evaluation process, the length of time that the school district has to conduct the evaluation has been increased from 45 to 60 days. Ed 1107.01(c), (d). Under the old rules, the allowable time for evaluations could be extended by no more than 15 days, as long as both school district and parents agreed; the new rules now permit an extension of up to 30 days.
- The term “Health Evaluation” has been added and defined. The Health Evaluation is intended to provide the IEP Team with information on the student’s physical condition. Ed 1102.03(b).
- Related to Health Evaluations, the regs now define who is qualified to conduct such an evaluation:
“Professional licensed to provide a health evaluation” means anyone who, under their specific licensing, is qualified to provide a health evaluation. This may include, but is not limited to: a school nurse, a registered nurse, physician, psychiatrist, and naturopathic doctors. Ed 1102.04(m).
- Representatives of DCYF and appointed Guardians ad Litem (GAL) are now specifically defined as potential members of the IEP Team , under the category of “other individuals.” Ed 1103.01(c).
- Team meeting “invitations” are now referred to as “notices.” It is now defined that notices need to include “the purpose, time, location of the meeting and the identification of the participants.” Ed 1103.02(c).
- When a referral was made for special education consideration, it used to be that the Team needed to decide how to proceed regarding the referral within 15 days. That has now been changed to 15 business days. Ed 1106.01(d), (e).
- Home instruction can now be considered an “alternative placement.” Ed 1111.04(a).
- Under the previous regulations, if a school district made a proposal for something in the IEP that it believed was necessary for the child to receive his or her Free and Appropriate Public Education (FAPE), and if the parent refused to consent to that proposal, the school district was required to initiate a due process hearing. Ed 1120.05(f). The reality is that this almost never occurred. That requirement has been removed under the new regs.
- When a complaint is filed with the DOE which results in corrective action being required of the school district, the regs now allow 20 days for an appeal, versus what had been 10 days in the prior regs. The regs also clarify that during the appeal process, any changes that had been ordered as part of the initial complaint decision must be implemented pending the appeal. Ed 1121.04(a).
- Related to the complaint appeal process, the regs previously allowed the Commissioner 20 days to rule on the appeal; that has been shortened to 15 days. Ed 1121.04(b). The regs also now clarify that a further appeal may be made to the NH Supreme Court, or to a NH Superior Court. Ed 1121.04(c).
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.
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.
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?
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. 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 http://www.lawbaron.com, or call 781-209-1166 for more information.
Medically speaking, there are countless types of disabilities. Educationally speaking, the number disability categories is much more limited. What sometimes causes confusion and frustration for parents and school personnel alike is that the definition of disabilities under state and federal laws differs from the medical definitions used by doctors under the DSM-5 manual.
For a child in Massachusetts to qualify for an IEP, he or she must have at least one of the following specifically defined types of disabilities: Autism, Developmental Delay, Intellectual Impairment, Sensory Impairment (Hearing Impairment or Deaf, Vision Impairment or Blind, Deafblind), Neurological Impairment, Emotional Impairment, Communication Impairment, Physical Impairment, Health Impairment, or Specific Learning Disability. 603 CMR 28.02(7). Although this might seem like a very limited list of disabilities, they are, in fact, very broad categories that cover a wide variety of conditions. The specific definitions under Massachusetts education law are as follows:
(a) Autism – A developmental disability significantly affecting verbal and nonverbal communication and social interaction. The term shall have the meaning given it in federal law at 34 CFR §300.8(c)(1).
(b) Developmental Delay – The learning capacity of a young child (3-9 years old) is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: receptive and/or expressive language; cognitive abilities; physical functioning; social, emotional, or adaptive functioning; and/or self-help skills.
(c) Intellectual Impairment – The permanent capacity for performing cognitive tasks, functions, or problem solving is significantly limited or impaired and is exhibited by more than one of the following: a slower rate of learning; disorganized patterns of learning; difficulty with adaptive behavior; and/or difficulty understanding abstract concepts. Such term shall include students with mental retardation.
(d) Sensory Impairment – The term shall include the following:
Hearing Impairment or Deaf – The capacity to hear, with amplification, is limited, impaired, or absent and results in one or more of the following: reduced performance in hearing acuity tasks; difficulty with oral communication; and/or difficulty in understanding auditorally-presented information in the education environment. The term includes students who are deaf and students who are hard-of-hearing.
Vision Impairment or Blind – The capacity to see, after correction, is limited, impaired, or absent and results in one or more of the following: reduced performance in visual acuity tasks; difficulty with written communication; and/or difficulty with understanding information presented visually in the education environment. The term includes students who are blind and students with limited vision.
Deafblind – Concomitant hearing and visual impairments, the combination of which causes severe communication and other developmental and educational needs.
(e) Neurological Impairment – The capacity of the nervous system is limited or impaired with difficulties exhibited in one or more of the following areas: the use of memory, the control and use of cognitive functioning, sensory and motor skills, speech, language, organizational skills, information processing, affect, social skills, or basic life functions. The term includes students who have received a traumatic brain injury.
(f) Emotional Impairment – As defined under federal law at 34 CFR §300.8(c)(4), the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance: an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems. The determination of disability shall not be made solely because the student’s behavior violates the school’s discipline code, because the student is involved with a state court or social service agency, or because the student is socially maladjusted, unless the Team determines that the student has a serious emotional disturbance.
(g) Communication Impairment – The capacity to use expressive and/or receptive language is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: speech, such as articulation and/or voice; conveying, understanding, or using spoken, written, or symbolic language. The term may include a student with impaired articulation, stuttering, language impairment, or voice impairment if such impairment adversely affects the student’s educational performance.
(h) Physical Impairment – The physical capacity to move, coordinate actions, or perform physical activities is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: physical and motor tasks; independent movement; performing basic life functions. The term shall include severe orthopedic impairments or impairments caused by congenital anomaly, cerebral palsy, amputations, and fractures, if such impairment adversely affects a student’s educational performance.
(i) Health Impairment – A chronic or acute health problem such that the physiological capacity to function is significantly limited or impaired and results in one or more of the following: limited strength, vitality, or alertness including a heightened alertness to environmental stimuli resulting in limited alertness with respect to the educational environment. The term shall include health impairments due to asthma, attention deficit disorder or attention deficit with hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia, if such health impairment adversely affects a student’s educational performance.
(j) Specific Learning Disability – The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think speak, read, write, spell, or to do mathematical calculations. Use of the term shall meet all federal requirements given in federal law at 34 CFR §§300.8(c)(10) and 300.309.
New Hampshire and Federal Education Law
Unlike Massachusetts, New Hampshire education law simply defers to the federal educational definitions of disability, but then adds two more categories not found in the federal law. The federal special education disability categories are as follows: mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. 34 CFR 300.8. The extensive definitions are as follows:
(i) 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.
(ii) Autism does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (c)(4) of this section.
(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.
(2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.
(3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification that adversely affects a child’s educational performance.
(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
(ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section.
(5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in this section.
(6) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance.
(7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness or mental retardation-orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include deaf-blindness.
(8) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).
(9) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that–
(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and
(ii) Adversely affects a child’s educational performance.
(10) Specific learning disability.
(i) General. Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
(ii) Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.
(11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance.
(12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.
(13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness.
New Hampshire specifically references the federal definition (Ed 1102.01(t)(1)), but then also includes developmental delays and acquired brain injury as two additional categories. Ed 1102.01(t)(2 – 3).
A statute of limitations defines how long you have to bring a legal action. With special education matters, if you are going to file for a due process hearing, the general rule is that you have 2 years to file for a hearing regarding any alleged violation. 20 U.S.C. § 1415(b)(6)(B). If you make a unilateral placement (i.e. make a “unilateral” decision to enroll your child in a private school without school district approval), NH has significantly limited the time period that is allowed for filing for a hearing related to that placement. In particular, New Hampshire allows just 90 days for filing for a hearing regarding the unilateral placement. RSA 186-C:16-b. The 90 days runs from the date the unilateral placement is made. Further complicating this is that the date of the unilateral placement is not always clearcut. For example, is it:
- The date that the parents applied to the private school?
- The date that the private school accepted the student?
- The date that the parents returned the acceptance letter to the private school?
- The date that the parents sent in their first deposit to the private school?
- The date that payment was made in full?
- The date that the parents notified the public school district that they were withdrawing their child from the public school, and enrolling him or her at the private school?
Parents might have a bit of a reprieve from the 90 day burden if the school district did not provide the parents with notice of their special education rights, which they usually do at least annually. If notice was not given, then the 90 days would not start running until proper notice is given to the parents.
The exact wording of the NH law is:
186-C:16-b Due Process Hearing; Appeal. –I. Any action against a local school district seeking to enforce special education rights under state or federal law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered.
II. Notwithstanding the provisions of paragraph I, any action against a local school district to recover the costs of a unilateral special education placement shall be commenced by requesting an administrative due process hearing from the department of education within 90 days of the unilateral placement.
III. Where the parent, legal guardian or surrogate parent has not been given proper written notice of special education rights pursuant to 20 U.S.C. section 1415(d), including notice of the time limitations established in this section, such limitations shall run from the time notice of those rights is properly given. The department of education shall make available a model notice of rights which school districts may use as one means of complying with this paragraph.