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.