Category Archives: Special Education

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.

When General Education is not the Least Restrictive Environment

The Individuals with Disabilities Education Act (“IDEA”) requires that an eligible child receive a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”) (20 U.S.C. § 1401(9); 20 U.S.C. § 1406(2)).  Although special education includes a wide spectrum of available services, ranging from minor adjustments in the child’s mainstreamed class to a complete residential placement, the goal of special education is to keep the child as mainstreamed as possible.  An out-of-district residential placement is considered more restrictive than an out-of-district day placement, which in turn is considered more restrictive than a public school placement with pullouts for various services, which in turn is considered more restrictive than a public school placement in the general education classroom.

However, this all depends on the needs of the child.  If the Team agrees that a student needs special education services, can a non-special education school suffice?  This was the issue decided very recently by the Massachusetts Bureau of Special Education Appeals (“BSEA”) in the case of In re: Curt and West Boylston Public Schools – BSEA # 15-08235.

In this case, the student, who was diagnosed with a Language Based Learning Disabiity (“LBLD”), attended the Carroll School through the ninth grade, which is the highest grade available at Carroll.  The Team agreed that Landmark School, which is another school that specializes in LBLD, would be appropriate for Curt for high school.  However, attending Landmark would have meant a commute of over one hour from West Boylston.

Curt’s parents pointed to 603 CMR 28.06(8)(a), which guides Teams against commutes of over an hour.  This regulation states, “The district shall not permit any eligible student to be transported in a manner that requires the student to remain in the vehicle for more than one hour each way except with the approval of the Team. The Team shall document such determination on the IEP.”  To avoid this commuting problem, the school district even offered to pay for a residential placement.

Parents were not thrilled with either a long commute OR a residential placement at Landmark, so they requested a placement at school district expense at one of two private general education schools:  The Winchendon School or Chapel Hill – Chauncy Hall.  When West Boylston refused both placements, parents made a unilateral placement of Curt at the Winchendon School, and then filed a hearing request with the BSEA.

The Hearing Officer, Ray Oliver, found in favor of the school district.  His reasoning was that if the Team agreed that Curt required a special education placement, a general education placement would not be appropriate.  It would not provide the student with the services that he needed.  Therefore, between the choices of a distant special education school or a nearby general education school, the distant special education school would be where the student could get his FAPE in the LRE.  The Hearing Officer also stated that the regulation regarding commuting time “is not an absolute bar to transporting a student more than one hour each way but rather allows a waiver of such time limit by the Team.”  Although a residential placement would be more restrictive than a day placement, it would at least allow the required IEP services to be implemented, whereas that would not be possible at a regular education school.

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.

Transition Specialists

Massachusetts recently enacted a new regulation creating something called a Transition Specialist Endorsement.  This is basically a way for a special education teacher or vocational rehabilitation counselor to obtain official state recognition of additional training and experience specific to Transition Planning. The citation of the new regulation is 603 CMR 7.14(4).  The Department of Elementary and Secondary Education (DESE) has also published a set of guidelines to help better understand what is required to obtain the Transition Specialist Endorsement.

This Endorsement was created because of the ongoing difficulty that students with special needs have been encountering trying to transition from secondary to postsecondary life. To highlight some of these challenges, the DESE guidelines note the following:

Too many students with disabilities are unprepared to live and work independently when they exit high school. Currently, according to the US Department of Labor, only 25% of 20-24 year olds with disabilities are employed, compared with 60% of their non-disabled peers. Nearly half of all disabled adults who are employed have an income of less than $15,000 per year. In 2012, data shows only 68.6% of Massachusetts students with disabilities graduated on time with their peers, compared to 84.7% for non-disabled students and the dropout rate for students with disabilities was almost twice as high as the rate for non-disabled students. The President’s Commission on Excellence in Special Education acknowledged that, “One reason for these outcomes is that educators are inadequately prepared to provide the transition services required under IDEA.”

 

Massachusetts Department of Elementary & Secondary Education, Guidelines for the Transition Specialist Endorsement 2 (2013).

In order to obtain the endorsement, an individual must have at least two years of experience as a special education teacher or as a vocational rehabilitation counselor. They must also complete courses specific to transition services that have been approved by the DESE. The person must also complete 150 hours of field-based experience providing transition services for transition aged students with disabilities. They must also show subject matter knowledge in four different areas (refer to the regulation for details). There are exceptions to these requirements for individuals who can show that they already have met the subject matter knowledge and skills requirements.

 

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.

 

 

Hamilton-Wenham Special Education Basic Rights Workshop – 02/27/13

Basic Rights In Special Education: A Workshop for Parents and Professionals will be held Wednesday, Feb. 27, at 6:30 p.m. in the multi-purpose room of the Buker School, 1 School St., Wenham. The Basic Rights workshop provides families and professionals with an introduction to their rights and responsibilities under the Individuals with Disabilities Education Act (IDEA), Massachusetts Special Education Law and No Child Left Behind (NCLB). It is designed to help parents learn to be effective partners with their child’s school to decide their child’s eligibility for special education, and to plan, make decisions and monitor their child’s progress in school. A presenter from the Federation for Children with Special Needs will conduct this workshop.  Federation workshops are free and open to the public.  You are welcome to attend any workshop in or outside of your immediate community. For more information, contact Adele Raade at 617-335-1124 or araade@comcast.net.

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.

Triton plans special education workshops

Triton’s office of special education, along with the Massachusetts Association of Special Education Parent Advisory Councils, will present a Basic Rights Workshop at Triton Regional High School on Thursday, Jan. 10, from 10:30 a.m. to 12:30 p.m. and again on Wednesday, Jan. 16, from 6:30 to 8:30 p.m.

The presentation will be given jointly by David Magee, Triton’s administrator of special education, and Leslie M. Leslie of MassPAC. Magee also will invite parents of students receiving special education services to participate in establishing a vision for Triton’s Special Education Parent Advisory Council.

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.

Basic Rights Workshop in Waltham

The Waltham, Lexington and Minuteman Parent Advisory Councils will host a special education Basic Rights Workshop on November 13, 2012.  The Basic Rights workshop provides families with an introduction to their rights and responsibilities under:

  • Individuals with Disabilities Education Act (IDEA)
  • Massachusetts Special Education Law and
  • No Child Left Behind (NCLB)

This workshop is designed to help parents learn to be effective partners with their child’s school to decide their child’s eligibility for special education, and to plan, make decisions and monitor their child’s progress in school.

Date: Tuesday, November 13, 2012
Location: 510 Moody Street, Waltham MA
Time: 6:30PM – 8:30PM
Contact: Amy DiMatteo, Waltham SEPAC amy.dimatteo@verizon.net

Questions regarding this workshop should be directed to the contact individual listed above.
A presenter from the Federation for Children with Special Needs will conduct this workshop. Federation workshops are free and open to the public. You are welcome to attend any workshop in or outside of your immediate community.

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.

Massachusetts Special Education Director to Speak in Kingston

Don’t miss a great opportunity to listen to and meet Marcia Mittnacht, the Director of Special Education for the Commonwealth of Massachusetts.  Ms. Mittnacht will be speaking in Kingston at the next meeting of the Kingston Special Education Working Group on Wednesday, November 14, 2012 at 7:00 PM.  The meeting will be held at the Kingston Council on Aging, 30 Evergreen St. in Kingston.  Ms. Mittnacht will be speaking about special education programs in Massachusetts.  For additional information, call 508-732-0033.

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.

Special Education Child Search in Rockland, Massachusetts

Wicked Local Rockland has published the following news article online:

Rockland parents or people in a care giving or professional position of a Rockland child ages 3 through 21 that suspect the child has a disability and may require special education should call the Office of Pupil Personnel Services at 781-878-1380 for assistance.

Rockland Public Schools offers special education programs at the preschool level and for children enrolled in kindergarten through high school.

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.

Special Education “Basic Rights Workshop” in Wilmington

Wicked Local Wilmington has posted the following online:

Wilmington Special Education Parent Advisory Council (SEPAC) invites parents, guardians and other interested parties to attend a workshop entitled “Basic Rights Workshop” on Thursday, Oct. 25, 6:30-8:30 p.m., at the Wilmington High School Library, 159 Church St., in Wilmington.

Presented by a representative from the Federation for Children Special Needs, this workshop provides families with an introduction to their rights and responsibilities under the Individuals with Disabilities Education Act (IDEA), Massachusetts Special Education Law and No Child Left Behind (NCLB). It is designed to help parents learn how to be effective partners with the school, to decide the child’s eligibility for special education, to plan, make decisions and to monitor the educational progress of their child.

If you plan to attend this workshop, it would be helpful, but not necessary, if you send an email to fjobrien@gmail.com, so we will have a sufficient number of handouts available.

For more information about Wilmington SEPAC, go to www.wilmington.k12.ma.us/SEPAC.htm.

Read more: Wilmington basic rights workshop set for Oct. 25 – Wilmington, MA – Wilmington Advocate http://www.wickedlocal.com/wilmington/news/x1826359608/Wilmington-basic-rights-workshop-set-for-Oct-25#ixzz2AJkYmDCh

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.

Natick SEPAC to Hold Free Special Education Basic Rights Workshop

The Natick SEPAC will hold a special workshop tonight (10/18/12) at 7:00 PM to inform families about their special education rights and responsibilities under the Individuals with Disabilities Education Act (IDEA), Massachusetts special education law, and No Child Left Behind (NCLB).  The workshop will be presented by a representative from the Federation for Children with Special Needs.  Topics will include how parents can work in partnership with the school district to determine special education eligibility, and how to plan, make decisions regarding education, and monitor progress.  The workshop will be held at Natick Town Hall, 13 E Central St, Natick, MA.  Contact the Natick SEPAC to RSVP and for more information (naticksepac@gmail.com).

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.