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.
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.
“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):
- 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.
- 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?
- Placement. Where will services be provided? In-district or out-of-district?
- 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.
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