Tag Archives: Special Education

New Hampshire, Coronavirus (COVID-19) and School Law – Part 2

Introduction

In the prior installment of this series, we started to look at how COVID-19 has impacted public school education in New Hampshire. In particular, we looked at a chronology of the key Executive and Emergency Orders issued by Governor Sununu, as well as the key pieces of guidance issued by the federal and state Departments of Education. In this installment, we will look at some of the issues regarding the provision of special education services in light of the COVID-19 emergency.

Special Education and COVID-19

Do special education services need to be remote? Not necessarily.

Based on Governor Sununu’s Emergency Orders, one would think that special education services, if they are going to be provided at all, would need to be remote. For example, Emergency Order #1 on March 15 ordered all public school districts to transition to remote instruction, and all public schools to be closed to students. Emergency Order #17 on March 26 ordered all non-essential businesses to close their physical locations, and all citizens to stay in their residences. Emergency Order #19 on March 27 extended the remote instruction requirement through May 4. Emergency Order #32 on April 16 extended the remote instruction requirement through the end of the school year.

On the other hand, there is an interesting exception listed in Emergency Order #17. Paragraph 5 states, “This Order shall not apply to any K-12 schools within this State.” On March 30, 2020, the New Hampshire Department of Education (“NH DOE”) issued Guidance specific to Emergency Orders #16 and #17. See Dept. of Educ. Guidance Relating to Emer. Orders #16 and #17 (Mar. 30, 2020). The NH DOE specifically referred to the exception listed in Paragraph 5. This Guidance highlighted several interesting points:

  • There should not be “more than 10 individuals in a single enclosed space, i.e., a room with four walls….” There can be more than 10 individuals in a building. Social distancing should be encouraged. Staff should be allowed to work from home where possible.
  • Special education services that require physical contact, such physical therapy, or that require being within six feet of a student, are considered “essential functions… [and are] consistent with the Orders.” My reading of this is that such services are permissible.
  • Providing and dropping off meals is considered an essential function.
  • Parents are permitted to travel to pick up meals or educational materials, but should observe social distancing guidelines when interacting with others.
  • “Social distancing guidelines should be followed whenever possible in performance of essential functions. If an essential function cannot be performed in accordance with social distancing practice, best hygiene practices should be observed (e.g., hand washing) as well as the use of personal protective equipment (PPE) where appropriate (e.g., gloves).”

Three-Tiered Safety Net

New Hampshire has implemented what it refers to as a three-tiered safety net for its special education students. The New Hampshire DOE Guidance for Remote Instruction describes the three tiers as follows:

Special education services may be of a nature that they can be provided in a remote instructional environment.

Special education services may be able to be provided in person, with limited cohort sizes and other preventative measures that allow in person service delivery in our schools or by one of our valued providers in accordance with HHS guidelines. We recognize that many individuals have concerns about being in school facilities or having contact with students. School communities are encouraged to be sensitive to individuals who may have specific health risks or have regular contact with someone who has specific health risks when determining when in person delivery is appropriate.

Finally, if we are simply not able to provide those services, we may need to revert to compensatory services, knowing that this is a last resort option.

Guidance for Extended Emergency Order Remote Instruction in Support, NH Dept. of Educ. (no date).

Compensatory Services

Yes, compensatory services are possible… but, in my opinion, probably unlikely if the school district is being reasonable and trying to find a way to implement services, given the restrictions presented by the COVID-19 emergency. Note the NH DOE’s wording: compensatory services “is a last resort option.” Also keep in mind what compensatory services are. A very basic explanation is that compensatory services are “a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA.” C.G. ex rel. A.S. v. Five Town Community School Dist, 513 F.3d 279, 290 (1st Cir. 2008). What are nonfeasance and misfeasance? Black’s Law Dictionary defines nonfeasance as “[t]he failure to act when a duty to act existed.” Black’s Law Dictionary 1076 (Bryan A. Garner ed., 7th ed., West 1999). Misfeasance is defined as a “lawful act performed in a wrongful manner.” Id. at 1014.

We should also look at guidance provided by the U.S. DOE:

School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment… these exceptional circumstances may affect how all educational and related services and supports are provided… [S]chool districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically…

[D]uring this national emergency, schools may not be able to provide all services in the same manner they are typically provided. While some schools might choose to safely, and in accordance with state law, provide certain IEP services to some students in-person, it may be unfeasible or unsafe for some institutions, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services. Many disability-related modifications and services may be effectively provided online. These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing.

It is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency… Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services – IEP teams (as noted in the March 12, 2020 guidance) must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.

Finally, although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies. Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students.

Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities, U.S. Dept. of Educ. (Mar. 21, 2020).

Putting this all together – the restrictions caused by COVID-19, the restrictions presented by the Governor’s emergency orders, the guidance offered by the New Hampshire and United States Departments of Education, as well as my own experience and knowledge – I expect that whether a school district will owe compensatory services to a student will depend a great deal on how reasonable and easy to work with the district is during this crisis. A school district that is responsive to parents, tries to find ways to implement services required under the IEP, listens to parent concerns and responds appropriately, and is generally reasonable, will likely be viewed as a district that truly tried to offer FAPE; a school district that is unresponsive, unreasonable, does not offer services, or offers services that are wholly inadequate compared to what was possible under the circumstances, will likely be viewed as a school district that denied FAPE and owes compensatory services.

Similarly, parents need to be reasonable. They need to understand that it might not be possible to implement IEP services as agreed to in the IEP. It also might not be physically possible to make up for every minute of a services that was missed due to the COVID-19 emergency. Therefore, parents need to be open to different approaches and options.

If there is a dispute that goes to a due process hearing, hearing officers will apply the laws to the facts to settle the dispute and make decisions. However, they will also look to see who was reasonable or unreasonable. You do not want to be the party going into a due process hearing looking like the party that was overly demanding and unreasonable during an emergency.

Summary of Part 2

In Part 1 of this blog series, we looked at key orders and guidance documents pertaining to COVID-19 and New Hampshire education law. In Part 2, we looked at special education in New Hampshire during the COVID-19 emergency. Coming up, we will look at implementation issues and other challenges facing New Hampshire school districts and parents as they try to ensure that education continues while health risks are minimized in light of the COVID-19 emergency.

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 for more information, or to schedule a phone or video consultation.

New Hampshire, Coronavirus (COVID-19) and School Law – Part 1

Introduction

School districts all over the country have been grappling with educational, technical and legal challenges as they have been forced to transition from in-person to remote instruction due to the coronavirus (COVID-19). Each school district has been responsible for implementing its own version of remote learning, based on guidance provided by the United States Department of Education, as well as each state’s Department of Education (DOE).

State and school district responses to the remote learning challenge have run the gamut from openly refusing to provide remote services to openly embracing the changes. New Hampshire appears to fit into the latter description. The New Hampshire DOE immediately jumped on the challenge and helped school districts within the state give a good faith effort to meet the challenge. As Vice President Mike Pence said, New Hampshire is “setting the pace.” See, e.g., https://www.unionleader.com/news/education/vp-pence-says-nh-is-setting-the-pace-on-remote-learning/article_b496dda9-a48e-5b7d-b9b8-01cfd8891bbf.html. What we do not know yet is whether the actual execution has been as good as the plans. New Hampshire parents: what has been your experience?

Since the beginning of March, the amount of information issued by federal and state authorities has been almost overwhelming. There have been fact sheets, Q&A sheets, guidance sheets, letters to education leaders, executive orders, webinars, trainings, video conferences and audio conferences. Let’s look at some of the key legal points from all of this information.

Chronology of Guidance and Orders

COVID-19 started in China in December 2019, but by March it had spread to the United States with such intensity that it became both a state and national emergency.

  • March 12, 2020 – The federal Department of Education created a COVID-19 Q&A document to provide guidance to school districts, parents and other stakeholders. Questions and Answers on Providing Services to Children with Disabilities during the Coronovirus Disease 2019 Outbreak, U.S. Dept of Educ. (Mar. 12, 2020). This Q&A, like most guidance documents, did not change any laws or create any rights. Guidance documents simply interpret existing laws so that parties can make reasonable decisions about how to implement the laws. Among the guidance provided in this Q&A was that if a school district closes its schools and does not provide any educational services to the general student population, then the district would not be required to provide services to students with disabilities. On the other hand, if a school district “continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.” FAPE stands for Free Appropriate Public Education, and is one of the basic requirements of special education law. The U.S. DOE’s wording created confusion among some states and school districts, to the point that some districts (outside of NH, as far as I know) openly stated that they would not be providing formal remote education, because they were afraid of violating FAPE requirements. As you will see below, New Hampshire officials stepped in quickly to clarify the need to continue formal remote instruction, and to provide school districts with appropriate support. The U.S. DOE also issued clarifying guidance on March 21, 2020, discussed below.
  • March 12, 2020 – The New Hampshire Board of Education implemented an emergency amendment to Education regulation Ed 306.18(a)(7), regarding remote instruction.
    • The pre-emergency version of Ed 306.18(a)(7), implemented in 2014, authorized, but did not require, school districts to submit a plan to the Commissioner of Education, outlining the district’s plan to conduct remote instruction “for up to 5 days per year when the school has been closed due to inclement weather or other emergency. The plan shall include procedures for participation by all students. Academic work shall be equivalent in effort and rigor to typical classroom work. There shall be an assessment of all student work for the day. At least 80 percent of students shall participate for the day to count as a school day.”
    • The emergency amendment to Ed 306.18(a)(7) authorizes school districts to conduct instruction remotely. It also requires districts to “create a plan that shall include procedures for participation by all students. Academic work shall be equivalent in effort and rigor to typical classroom work. There shall be an assessment of all student work for the day.”
  • March 13, 2020 – Governor Sununu issued an Executive Order related to COVID-19, in which he declared a state of emergency. NH Exec. Or. 2020-04 (Mar. 13, 2020). Although the contents of the order are very important, there are just a few education-related items that need to be highlighted here:
    • Section 13: Directs the NH Department of Education to “provide updated and specific guidance relating to preventing and mitigating COVID-19….”
    • Section 14: Suspends all school sponsored out-of-state travel for public school students and teachers.
    • Section 18: States that additional “orders, directives, rules and regulations” might be forthcoming.
  • March 15, 2020 – Governor Sununu issued his first Emergency Order, pursuant to his March 13 Executive Order. NH Emer. Or. 1 (March 15, 2020). In this Emergency Order, the Governor:
    • Ordered all NH public K-12 school districts to transition to remote instruction and support for three weeks, between Monday, March 16, 2020 and Friday, April 3, 2020.
    • Ordered each school district to “develop a temporary remote instruction and support plan….”
    • Ordered that all public K-12 schools be closed to students starting on March 16, 2020, to allow each school district to develop and transition to remote instruction and support.
    • Ordered that each school district begin providing temporary remote instruction and support to all students no later than Monday, March 23, 2020, and continuing through Friday, April 3, 2020.
    • Ordered the Department Of Education to provide assistance and guidance to school districts in the development of remote instruction and support.
  • March 21, 2020 – The U.S. Department of Education issued additional guidance in the form of a “Supplemental Fact Sheet.” Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities, U.S. Dept. of Educ. (Mar. 21, 2020).The U.S. DOE stated that federal law should not be interpreted as an excuse for not providing educational programs through remote instruction. The U.S. DOE also clarified that school districts are required to provide FAPE to students with disabilities, while also protecting the health and safety of the students and their teachers and service providers. FAPE might be possible through distance instruction virtually, online, or telephonically. How FAPE is provided might need to change during this emergency. If services cannot be provided, IEP Teams “must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.” What I believe is the most important statement in this document concerns collaboration: “The Department encourages parents, educators, and administrators to collaborate creatively to continue to meet the needs of students with disabilities.” Putting this all together, my view of the key points of this guidance are as follows:
    • School districts are required to provide FAPE;
    • During this emergency, FAPE might look different than what the parties would normally deem acceptable;
    • Schools and parents need to be flexible, open to new approaches, and work together to find ways to provide services;
    • If FAPE cannot be provided, compensatory services later might be appropriate.
  • March 26, 2020 – Governor Sununu issued Emergency Order #17, pursuant to his March 13 Executive Order. NH Emer. Or. 17 (Mar. 26, 2020). In this Order, the Governor required that all non-essential businesses close their physical workplaces and facilities at least until May 4, 2020. He also ordered all New Hampshire citizens to stay in their residences, with limited exceptions. Interestingly, Section 5 of this Order states that the Order “shall not apply to any K–12 schools within this State.” Sections 6 and 7 also exclude state and local governments, as well as houses of worship.
  • March 27, 2020 – Governor Sununu issued Emergency Order #19, pursuant to his March 13 Executive Order. NH Emer. Or. 19 (Mar. 27, 2020). In this Emergency Order, the Governor extended the public school requirement for remote instruction through Monday, May 4, 2020.
    • Sometime after Governor Sununu issued Emergency Order #19, the NH DOE issued an undated guidance document based on that Emergency Order, entitled “Guidance for Extended Emergency Order Remote Instruction in Support.” Note that this guidance document incorrectly states that Emergency Order 17 extended remote instruction through May 4; it was actually Emergency Order 19 that extended remote instruction through May 4. This Guidance is a detailed, 6-page document dealing with:
      • Managing Expectations – Teachers need to hold high expectations, but be flexible;
      • Planning and Advisory – Teachers should allow time for preparing instructional materials, collaborating with colleagues, and engaging individually with students;
      • Student Screen Time – Remote learning does not necessarily mean that students are always online. Teachers need to be mindful to avoid too much screen time. They need to develop other creative instructional opportunities with resources that are at hand;
      • Asynchronous and Blended Instruction – Teachers need to be aware that students, parents and families are dealing with multiple, simultaneous responsibilities and challenges as a result of the COVID-19 emergency. Remote instruction and support is just one of the many responsibilities and challenges. Teachers and administrators need to be flexible with students and families;
      • Special Education/ESOL – Remote support will mean finding ways to be creative to support students with IEPs and non-English speakers;
      • Healthy Habits – Everyone needs to be aware of how disruptive the current circumstances are, and how important it is that everybody take care of themselves and others;
      • Mandatory Reporting – All adults in New Hampshire are mandatory reporters if they suspect child abuse or neglect. That responsibility has not changed;
      • Instruction Hours – New Hampshire law requires that schools offer 945 hours of instructional time for elementary schools, and 990 hours of instructional time for middle/high schools. Although this is not changed, the state Board of Education or the Commissioner of Education is authorized to reduce the amount of instructional time. However, New Hampshire is being very lenient in what it considers instructional time. “During this remote instruction and support period, any day for which remote instruction is offered is considered an instructional day. In addition, the period from March 16 – 20, which for some districts was a preparation period for remote instruction and support, also is considered as instructional days. Districts that believe they may have difficulty meeting the statutory instructional time, are encouraged to reach out to the department to evaluate the individual circumstances and determine if a waiver may be required. “
      • Attendance – How attendance is recorded is up to each school district. New Hampshire offers “a great deal of flexibility around attendance.” Simply engaging instructional material can be the basis for participation and attendance. “For some districts or classes, that may mean a daily check-in, for others it may occur less frequently. As a general rule, the department sees frequent, quick check ins with students an effective approach to monitor engagement.” Even with this flexibility, there might still be truancy, defined by RSA 189:35 as “Ten half days of unexcused absence.” If a school district believes a student is truant, the district should engage with the district’s truant officer.
  • April 16, 2020 – Governor Sununu issued Emergency Order #32, pursuant to his March 13 Executive Order. NH Emer. Or. 32 (Apr. 16, 2020). In this Emergency Order, the Governor extended the public school requirement for remote instruction through the end of each school district’s school year.

Summary of Part 1

That completes our brief introduction and summary of the key orders and guidance documents pertaining to COVID-19 and New Hampshire education law. However, we have only touched the surface of all of the information promulgated by national, state and local authorities. New Hampshire school districts must ensure that education takes place remotely. School districts and parents must be willing to work collaboratively, be flexible, and understand that an acceptable and appropriate education, under the circumstances, might look very different than what it would have looked like when children were physically in school each day. In Part 2, we will dig into more detail about special education issues, technical and implementation issues, and other challenges facing New Hampshire school districts and parents as they try to ensure that education continues while health risks are minimized in light of the COVID-19 emergency.

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 for more information, or to schedule a phone or video consultation.

Recent Changes to the NH Special Education Regulations

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:

  1. 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).

  2. 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.
  3. 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).
  4. 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).

  5. 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).
  6. 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).
  7. 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).
  8. Home instruction can now be considered an “alternative placement.” Ed 1111.04(a).
  9. 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.
  10. 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).
  11. 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.

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.

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.

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.