methodology powerpoint - handout · methodology for students with ieps, but where is a...

“Methodology Disputes: Getting Beyond the Assumption of Deference”

April 15, 2009

presented by

Mandy Favaloro and

Carolina Watts A2Z Educational Advocates

Los Angeles, CA

The Advocate Academy is a project of

A not-for-profit organization dedicated to services and projects that work to improve the lives of children, youth and adults with disabilities.

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About the Presenters

Mandy Favaloro is an attorney in Los Angeles, California. Mandy is from San Francisco and moved to southern California for college. She graduated manga cum laude from the University of Redlands with Honors with a B.A. in Government in 2002. Mandy was a member of Phi Beta Kappa, an academic honor society and numerous local and national community service organizations including Mortar Board. During college, Mandy worked in the Redlands Unified School District providing reading intervention strategies to at-risk students. She attended Pepperdine University School of Law in Malibu, California. While at Pepperdine, she participated in the Special Education Advocacy Clinic where she first had the opportunity

to advocate for students and parents at IEPs. Mandy is now an attorney with A2Z Educational Advocates where she advocates for parents of students with disabilities at all stages of the process including IEP meetings, mediations and due process hearings. Mandy has presented at the Council of Parents Attorneys and Advocates National Conference in 2007, 2008 and 2009 on varying topics including IEEs, mediation and negotiation strategies. She also was a panel participant on several topics at Disability Rights California?s All Staff Annual Conference in 2008.

Carolina Watts graduated from the University of Georgia and then moved to California to attend law school at Pepperdine University. Carolina worked for the Office of the Child Advocate (OCA) in Georgia during law school, conducting oversight investigations of cases within the Department of Family and Children's Services, including child protective services and foster care cases. While at the OCA, Carolina was involved with a statewide Child Welfare task force and working on legislative agenda and other policy related to children's rights. While in law school, Carrie was a member of the Pepperdine Special Education Advocacy Clinic, where she worked with parents on preparing for and attending IEP meetings for their kids. Following that experience, Carolina pursued her interest in special education law by working at A2Z Educational Advocates, where she remained after law school as an advocate. Carolina has presented at the Council of Parents Attorneys and Advocates National Conference in 2007, 2008 and 2009 on varying topics including mediation and negotiation strategies and methodology issues. She also was a panel participant on several topics at Disability Rights California's All Staff Annual Conference in 2008.

WEBINAR: Methodology Disputes: Getting Beyond the Assumption of Deference April 15, 2009

© 2009 Favaloro and Watts of 19

Methodology Disputes: Getting Beyond the

Assumption of Deference

Carolina WattsMandy Favaloro

Is the question of methodology important?

• Congressional findings related to the 2004 reauthorization indicated that implementation of IDEA “has been impeded by the failure of schools to apply replicable research on proven methods of teaching and learning.”

Importance to Advocates

• Build Cases from the IEP level– Methodology cases are difficult to win

because of deference to the school districts– Advocates need to be addressing issues at

the IEP level or even before to reframe the issue so that it focuses on FAPE and the District’s obligations rather than being seen as a purely “methodology dispute”



Overview: Understanding Methodology Disputes

• Define Methodology• Understand the General Rule• Anticipate when there will be a dispute• Advocate for methodology in an IEP• Use District’s Procedural Obligations in

Methodology Disputes• Apply Language from IDEIA regarding

Research- based instruction and services• Understand FAPE in context of Methodology

Issues

What is methodology?

• Numerous decisions refer to methodology, and many cases are litigated on the issue of appropriate methodology for students with IEPs, but where is a definition???

How is Methodology defined in the IDEIA?

– IDEIA does not contain a specific definition for the term methodology.

– The Part C regulations define the term method as “how a service is provided,” with respect to an IFSP. 34 C.F.R. §303.344(d).



Methodology Defined

• “A body of methods, rules, and postulates, employed by a discipline: a particular procedure or set of procedures.”

• “The analysis of principles or procedures of inquiry in a particular field.” Miriam Webster’s online dictionary

The Rules (or rule)

• Deference to school districts!

• So long as the District provide FAPE, the choice of methodology is left up to the District.– Even if parent’s

preferred program would result in greater benefit!

Cases that establish the general rule

• The Rowley opinion established that so long as a school district provides an appropriate education, the methodology employed in doing so is left up to the district’s discretion. Rowley, at page 208.

• Hearing officers “must give appropriate deference to the decisions of professional educators.” M.M. v. School District of Greenville County, at page 533.



The General Rule, continued

• “Educational methodology, including instructional techniques, remains within the discretion of the school district, provided the methods chosen offer the student a FAPE.” Barnett v. Fairfax County.

• Courts are ill- equipped to second- guess reasonable choices that school districts make among appropriate instructional methods. T.B. v. Warwick School Comm.

Anticipating the Dispute

When is the service or program in question “methodology?”

A methodology dispute exists when more than one option could meet the child’s needs.



Remember the basis of the general rule:

• Courts are ill-equipped to second-guess reasonable choices that school districts make among appropriate instructional methods.

• This assumes that we are dealing with a case where there are multiple appropriate choices of methodology that would meet the child’s needs.

Examples

• “There are many available programs which effectively help develop autistic children… IDEA and case law interpreting the statute do not require potential maximizing services. Instead, the law requires only that the IEP in place be reasonably calculated to confer a meaningful educational benefit.” Adams, at pages 1149-1150.

Examples, continued• The court found that the parents preferred method

was one of several methods or programs of reading instruction which could meet the IDEA’s requirements for research-based methods. The court indicated that while the district should take into account parent’s preference the fact that the District did not offer the preferred methodology did not amount to a per se violation of the statute. Parents were reimbursed for providing reading instruction due to the District’s failure to implement its own program. Miller ex rel. S.M.



Examples, continued• Although parents presented evidence

demonstrating that the differences between the District’s proposed program and their own preferred methodology, they were not able to show that the District’s program was not an accepted and proven therapy that served the same purpose. The District is only required to provide an appropriate methodology, not the “best” methodology. C.M. v. School Board of Miami-Dade County

Child with Significant

Reading Deficits

Combination ofPrograms in DistrictResource program

Lindamood Bell 1:1Instruction

Orton Gillinghamprogram

TEACCH program

District “eclectic”program

1:1 programUsing ABA

or DTT

Preschool student

With Autism

RelationshipDevelopmentIntervention

Pivotal ResponseTherapy

Floor Time



“Methodology?”

• Whether to provide direct speech therapy or “language based classroom”

• This is a decision about whether the student needs a specific related service (speech therapy), not about what methodology will meet the student’s needs

“Methodology?”

• Whether to provide Adaptive Physical Education (APE) or Recreational Therapy (RT) for a student with deficits in play skills

• Not a question of methodology – APE and RT are separately identified related services under the IDEA

“Methodology?”

• Whether a child will be included in general education classes on a daily basis, and what support he will receive there

• “Inclusion” is an issue of Least Restrictive Environment, not methodology, and the time spent out of general education must be specified on an IEP.



Defining Methodology and Anticipating

Disputes, continued: Is Methodology part of

the IEP?

Required IEP Content• IEPs must include “A

statement of the special education and related services and supplementary aids and services based upon peer-reviewed research to the extent practicable, to be provided to the child…”20 U.S.C. 1414(d)(1)(A)((i)(IV)

Districts can, but aren’t required, to write in methodology

• Despite the fact that the IEP is required to provide for specialized instruction to meet the student’s unique needs, the District is “not required to specify methodology on an IEP.” Board of Education of New York City

• The U.S. Department of Education stated that its “position on including instructional methodology in a child’s IEP is that it is an IEP team decision.” Commentary, Federal Register pg 46665



Use other required content rules to argue for statement of methodology• Assistive Technology – even if district says

this is a methodology choice, AT devices should be written into the IEP

• Research-based instruction – if district is offering a program that is based upon research, a statement describing that program should be in the IEP

Questions Regarding Identifying and Anticipating Methodology

Disputes?

Deciphering the relationship between deference to districts

for methodology and the district’s obligations under the

IDEIA



Requirement for Research-based interventions vs.

District’s discretion to choose methodology

The IDEIA requires that IEP documents contain…

• “A statement of the special education and related services and supplementary aids and services based upon peer-reviewed research to the extent practicable, to be provided to the child…”20 U.S.C. 1414(d)(1)(A)((i)(IV)

Research based to the extent practicable…

• The phrase "to the extent practicable'' generally means that services and supports should be based on peer reviewed research to the extent that it is possible, given the availability of peer reviewed research. Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46565 (August 14, 2006).



Examples• An administrative law judge determined that a

California district offered FAPE to a 6- year- old boy with autism when it proposed the use of an eclectic program with a variety of instructional methodologies. Although the child's parents claimed the eclectic approach was not sufficiently peer- reviewed, the ALJ found the proposed methodology properly focused on the child's social communication deficits. Rocklin Unified Sch. Dist.

Procedural violations vs. District’s discretion to choose

methodology

The District has discretion but…

• It cannot predetermine methodology!• If the District refuses to implement a

methodology requested by parents, it must give prior written notice!

• It can’t have a blanket policy to refuse a specific methodology!

• It still must ensure parent’s can meaningfully participate in the IEP process!



The school district must have an “open mind” regarding methodologies

Deal ex rel. Deal v. Hamilton County Bd. of Educ., 42 IDELR 109 (6th Cir. 2004)

• District had an unofficial policy of refusing to provide 1:1 applied behavioral analysis programs because it had previously invested in another educational methodology program.

• The court concluded that policy violated the IDEA, as it meant "school system personnel thus did not have open minds and were not willing to consider the provision of such a program," despite the student's demonstrated success under the ABA program.

FAPE vs. District’s discretion

Back to the general rule…

• The methodology employed is left to the district’s discretion so long as the district provides FAPE.



• “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.” Commentary, Federal Register, pg 46665

• This applies the FAPE standard – look at what is necessary to meet the child’s needs and provide educational benefit.

Examples• An ALJ found that the student had failed to

make progress with the methodologies provided by the District during a majority of the time in question. Because the District did not provide an appropriate methodology to meet student’s needs, the student was entitled to reimbursement for privately obtained reading interventions, which had utilized an appropriate methodology. Student v. Mount Diablo

Practical Tips from the cases we’ve discussed:

• Don’t use the word “methodology.” Instead, ask for research-based interventions and services.

• Focus on the components of the program that are unique, and demonstrate that these components are necessary to meet the student’s unique needs.



More Practical Tips:

• Use the statutory language requiring research based interventions to the extent practicable

• Ask for specific information regarding peer-reviewed research for the programs offered by the District

More Tips:

• Have experts recommend a specific program, rather than parents

• Document/record when the District does not have an open mind or comes to the IEP with a predetermined offer

• Make sure IEP goals are clearly measurable so that if you “try” the District’s program, you can track progress or lack thereof.

• Questions regarding procedural issues or FAPE issues?



What Issues Exist in These Potential Methodology Disputes?

See Examples 1 and 2 of Handout




Example 1

Student is in middle school and has dyslexia. Student has significant delays in reading and is more than 2 years behind. She has been placed by the school district in a non public school that is specifically for students with learning disabilities. Her classes have approximately 12 students and all are taught by special education credentialed teachers. The teachers utilize various “strategies” throughout the school day to address learning disabilities. Reading is specifically taught during a language arts period, one period per day. In that class her teacher uses various research based programs to teach reading to the whole classroom. Student has made less than 1 years progress in the 1 year she has been in the NPS. Parents are concerned that student is getting further and further behind and they have her evaluated privately by a reading specialist. The assessor recommends an intensive 1:1 reading program for 4 hours per day, specifically, in a LindaMood Bell program. Assessor also recommends placement on a regular education campus for 2 period per day for a general education math class and general education elective. At an IEP the District refuses to implement the suggestions of the assessor, stating that they believe that the NPS remains appropriate. District psychologist states that LindaMood Bell is “too expensive” and “too restrictive” and that the District doesn’t fund it for anyone. Parents disagree with the continued offer of an NPS.




Example 2 Student is a 6th grader diagnosed with autism who was fully included up until 4th grade. Student has severe apraxia which limits his ability to communicate with his peers. While student was fully included the District failed to properly implement his IEPs and Student made little to no progress in all areas. At the end of 4th grade student was assessed. Assessor said that student’s needs were so severe they couldn’t be met in a regular school program and because he had such delays in all areas, particularly, in behavior and communication, that he needed a 1:1 program that was intensive, daily and based on ABA methodology. The assessor opined that with an intensive ABA program, for a couple of years, student would eventually gain the skills he needed to be educated around other kids. In 5th grade parents disagreed with the District’s offer of a school based program and began funding 20 hours a week of an ABA program. During this year student made at least 1 year worth of progress in all areas. At an IEP prior to 6th grade, parents requested a 30 hour per week program based purely on 1:1 ABA. The District offered 20 hours of a home based program and wanted the student to be included in a general education class in the afternoon. Parents disagreed. District did not specify whether the home based program was ABA.



methodology powerpoint - handout · methodology for students with ieps, but where is a...

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