Why Methodology Belongs in your Child's IEP.

Compiled by Frank Stepnowski, revised January 2005.

This article outlines the regulations which permit parents to discuss methodology at an IEP meeting. This is a continuing work in progress, which started in December 2000 and appeared in its first form in the AutismNews newsletter in January 2000. I have over the months incorporated a number of findings from my own research, as well as leads suggested by contributors to the Council of Parent Advocates and Attorney (COPAA). I thought there was a need to compile all the different authorities regarding methodology into a single framework, with appropriate references to legal authority.  Although originally directed to Illinois law, this article can apply in any State covered by IDEA.

Please remember that the Law is constantly changing and may not apply in particular instances. Do not rely on the content of this article as legal advice.


The 1999 Regulations : 'Special Education' Includes Methodology The Federal Explanation- The Department of Education comes right out and says it!  "How Best" to Educate a Child The T.H. court's interpretation; Paxton
The School District's Position The Necessity of Parental Consent OSEP supports methodology
Regulation 300.501 : Methodology can be set in the IEP Illinois State Board of Education Policies

Interpreting Congressional Records
More support The 2004 amendments to IDEA and research-validated methodologies.

Quo vadis - where to go from here?
procedural violations?
not a methodology, a "necessity"
Links to regulations
No Child Left Behind Act- December 2003 status
On December 9, 2003, the Department of Education issued a new regulation which changed the application of the Act to children with profound disabilities. SpEd lawyers are hotly debating whether this law guts the Act for children with disabilities or whether the use of the "best" in the regulation is a bonus.

August 29, 2003, Update:
Susan Etscheidt has written an article entitled: "An Analysis of Legal Hearings and Cases Related to Individualized Education Programs for Children with Autism." Research & Practice for Persons with Severe Disabilities, 2003, vol. 28, No. 2, p 51-69, copyright TASH 2003.

The author reviewed 68 cases of administrative and judicial decisions related to appropriate programs for children with autism.
She identified three primary factors:

IEP goals must be matched to evaluation data, IEP members must be qualified to develop programs, and the methodology selected must be able to assis the students in acheiving IEP goals.

Address all correspondence and requests for prints to Susan Etschadt at the Univ of N. Iowa, Cedar Falls, IA, 50614


In 1997, Congress amended the IDEA, the Individuals with Disabilities Education Act, which is the law implementing the
constitutional guarantee of equal educational rights of children with disabilities. In 1999, the Federal Department of Education issued its regulations which supply the details to implement the law. The Illinois State Board of Education issued its regulations for Illinois schools in August 2000. A State's rules cannot restrict a right protected by Federal law.

One of the most important clarifications in recent Federal law deals with methodology. As background, twenty years ago the U.S. Supreme Court issued an opinion interpreting the prior law, in which it stated that as long as the school district had a reasonable methodology leading to a student's progress, the parents could not require the school to adopt a different method. Schools often interpreted this decision to say that the parents could not discuss methodology at an IEP meeting, even when the schools had no methodology.

In 1997, Congress wrote directly into the statute that the implementation of IDEA was impeded by low expectations and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities. 20 U.S.C. sec. 1400 (c) (4). President Bush also made the same sentiments when he signed the No Child Left Behind Act in January 2002: " . . . We need to know whether the methodologies the teachers are using are working! . . ."

The 1999 Regulations: Special Education includes methodology!

The 1997 reauthorization of IDEA and the 1999 regulations eliminated the schools' misinterpretation by specifically including methodology as part of the instruction individualized for the student. The 1997 act defines "Special Education" as "Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with disabilities." 20 U.S.C. sec. 1401 (25). The 1999 regulations further defined instruction as follows:

"Sec. 300.26 Special education.

(a) General.
 (1) As used in this part, the term special education means specially designed instruction, at no cost to the
parents, to meet the unique needs of a child with a disability, including--(i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings;
(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; and
(ii) To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children." 
This section is one of the most important clarifications of the law. It means parents can discuss the content, methodology and delivery of the education, and not leave the details to the school to work out 6 months into a 9-month school year. Methodology may be more important to children with autism and language disorders than any other facet of their program. (Note, however, the definition
of "Specially designed instruction" was conspicuously omitted from the August 2000 Illinois regulations. Beware of school districts which cling to the old evasions and will not discuss methodology at the IEP meeting on the basis that the Illinois regulations are silent on the issue. Under the supremacy clause of the U.S. Constitution, State regulations cannot take away a Federal right. Insist the IEP team discuss methodology and state their reasons in writing.) To enable the definition of methodology, the 1999 Federal regulations specify:

"Sec. 300.347 Content of IEP.

(a) General. The IEP for each child with a disability must include--...

(3) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program, modifications or supports for school personnel that will be provided for the child--
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved and progress in the general curriculum in accordance with paragraph (a)(1) of this section and to participate in extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section."

In short: the IEP must include a statement of the special education to be provided (300.347(a)(3)), and special education is defined to
include "content, methodology or delivery of instruction." (300.26(a)(3)).

The regulations also speak in the future. The IEP must specify the methodology "to be" provided, not that a methodology must be developed. The regulations make clear that the methodology must be good enough so that the child can advance toward attaining the annual goals and to progress in the general curriculum.


The Federal Explanation- The Department of Education comes right out and says it!

Appendix A to the regulations also reiterates that the IEP must address how the child will be involved in and progress in the general school curriculum and what special education and other services and supports must be described in the IEP.
The Federal regulation 300.347 (content of an IEP) is echoed in the Illinois regulation, 23 Ill. Admin. Code 226.230(a)(7).
Methodology is also described in the commentary Department of Education filed with the Federal Regulations:

With regard to the definition of "specially designed instruction," some changes should be made. The committee reports to Pub. L. 105-17 make clear that specific day-to-day adjustments in instructional methods and approaches are not normally the sort of change that would require action by an IEP team. Requiring an IEP to include such a level of detail would be overly-prescriptive, impose considerable unnecessary administrative burden, and quite possibly be seen as encouraging disputes and litigation about rather small and unimportant changes in instruction. There is, however, a reasonable distinction to be drawn between a mode of instruction, such as cued speech, which would be the basis for the goals, objectives, and other elements of an individual student's IEP and should be reflected in that student's IEP, and a day-to-day teaching approach, i.e., a lesson plan, which would not be intended to be included in a student's IEP.

Case law recognizes that instructional methodology can be an important consideration in the context of what constitutes an appropriate education for a child with a disability. At the same time, these courts have indicated that they will not substitute a parentally-preferred methodology for sound educational programs developed by school personnel in accordance with the procedural requirements of the IDEA to meet the educational needs of an individual child with a disability.

In light of the legislative history and case law, it is clear that in developing an individualized education there are
circumstances in which the particular teaching methodology that will be used is an integral part of what is "individualized" about a student's education and, in those circumstances will need to be discussed at the IEP meeting and incorporated into the student's IEP. For example, for a child with a learning disability who has not learned to read using traditional instructional methods, an appropriate education may require some other instructional strategy.

Other students' IEPs may not need to address the instructional method to be used because specificity about methodology is not necessary to enable those students to receive an appropriate education. There is nothing in the definition of "specially designed instruction'' that would require instructional methodology to be addressed in the IEPs of students who do not need a particular instructional methodology in order to receive educational benefit.  In all cases, whether methodology would be addressed in an IEP would be an IEP team decision.

Other changes to the definition of "specially designed instruction'' are not needed. The distinction between accommodations that change the general curriculum and those that do not, as one commenter requests, would be difficult to make because of the individualized nature of these determinations. Regardless of the reasons for the accommodation or modification, it must be provided if necessary to address the special educational needs of an individual student.

Federal Register: March 12, 1999 (Volume 64, Number 48), page 12552.


How Best to Educate a Child

The 1997 IDEA and the 1999 regulations do more than say that an IEP is setting the annual goals. The IEP team, which includes the parents, must determine the how, how the child will meet those goals. The schools cannot say "leave it to the schools to figure it out as the school year elapses." The IEP must specify the modifications, supports and services, and the "Special Education," which includes methodology. Also, regulation 300.121(e) states that each State shall ensure that a free, appropriate public education is available to any individual child with a disability who needs special education and related services even the child is advancing from grade to grade.

The How is emphasized in the Q & A portion of the regulations:

Measurable annual goals, including benchmarks or short-term objectives, are critical to the strategic planning process used to develop and implement the IEP for each child with a disability. Once the IEP team has developed measurable annual goals for a child, the team (1) can develop strategies that will be most effective in realizing those goals and (2)must develop either measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable parents, students, and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the student's instructional needs. (34 CFR 300.756, Appendix A, Q1, p.100.)

Once the team develops the goals, the team develops strategies that will be most effective. Remember; the IEP team includes the parents the strategies for achieving goals are developed by the team "will be" : the strategies are developed for the coming year, not to worked out as the year unfolds the strategies must be the "most effective"

While the goals cannot be set to "maximize potential," the strategies for reaching those goals must be the most effective. By letting the IEP team develop the strategies, the regulations imply that the methodology is to be developed at the IEP team meeting. This development must include a discussion of methodology; otherwise, how can the IEP team decide what is most effective?
Compare also the language of Q&A 26, appended to the Department of Education regulations:

26. How should a public agency determine which regular education teacher and special education teacher will be members of the IEP team for a particular child with a disability?

The regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for [[Page 112]] implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child.

Again, the discussion is "how best to teach the child," and the discussion is what to do in the future.
This theme follows the U.S. Supreme Court's discussion in Rowley:

"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." Board of Education v. Rowley, 458 U.S. 176, 207-208 (1982).

Again we see: cooperation with the parents, a requirement for actually making a choice of methodologies, and choosing the "most suitable" method. This theme was repeated by the Supreme Court:

The primary vehicle for implementing these congressional goals is the individualized educational program (IEP) which the EHA mandates for each disabled child. Prepared at meetings between a representative of the local school district, the child's teacher, the parents or guardians, and whenever appropriate, the disabled child, the IEP sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. Honig v. Doe, 484 U.S. 305, 311 (1988).


The T.H. court's interpretation

The U.S. District Court for the Northern District of Illinois discussed methodology in the case of T.H. v. the Palatine School District. (N.D. Ill.) The court was without the benefit of the 1999 regulations, so the court actually read the U.S. Supreme Court precedent. The court held that the school's argument that it had the right to choose methodology was not valid since the school district had no methodology. The U.S. Supreme Court decision of Rowley could only apply if the school had chosen and implemented a methodology calculated to enable the student to make appropriate progress. The ABA-Lovaas methodology had proven successful while the school failed to articulate or implement any method. T.H. v. Palatine. (via Wrightslaw).

In Bd of Ed of Paxton-Buckley-Loda Unit School District no. 10, 184 F.Supp.2d 790, 800-01 (C.D. Ill. 2002), the court found the District violated procedural safeguards when it simply chose not to consider a methodology which would allow a regular preschool program in determining placement. Paxton (html).

In another case, the Illinois State Bd of Ed reports the hearing officer ordered ABA/DTT, but I have not read the whole text yet. footnote.

In Zachary Deal vs. Hamilton County Dept. of Educ., the Tennessee Hearing officer found that the school district's approach, which used some TEACCH but no ABA, was an inadequate methodology, and ordered the district to use the parent's choice of ABA. The district committed a procedural violation by refusing to even consider a workable methodology. A ruling that a district has committed a procedural violation is important under Rowley because it is harder to reverse than a finding that a school district has chosen a wrong methodology; courts generally give schools deference over choices of methodology.

ZDeal.html (Printable copies of the Deal decision are available from Wrightslaw and Gary Mayerson.) On December 16, 2004, the U.S. District Court for the 6th Circuit resoundedly affirmed the Deal case.

In another Gary Mayerson case, Bucks County Department of Mental Health v. De Mora, (E.D. Pa. 2002), the court found that school district had failed to offer an appropriate program. Since the school failed to provide enough trained therapists, and few therapists could be found in the community, the court ordered that the parent should be paid for the time she spent educating the child in the ABA program. For more details see http://www.wrightslaw.com/advoc/articles/autism.bucksco.aba.mayerson.htm and Gary Mayerson.

This case was affirmed by the Third Circuit in 2004:

"...we hold that under the particular circumstances of this case, where a trained service provider was not available and the parent stepped into learn and perform the duties of a trained service provider, reimbursing the parent for her time spent in providing therapy is "appropriate" relief.

Bucks County Department of Mental Health/Mental Retardation, Appellant v.Commonwealth of Pennsylvania, Department of Public Welfare; Barbara DemoraNo: 02-3919; 379 F.3d 61;2004 U.S. App. LEXIS 17231; August 18, 004  
http://caselaw.findlaw.com/data2/circs/3rd/023919p.pdf    DeMora case via Lexisone

In School Board of Henrico County, Va. v. Z.P., the court held,

Nor does the required deference to the opinions of the professional educators somehow relieve the hearing officer or the district court of the obligation to determine as a factual matter whether a given IEP is appropriate. That is, the fact-finder is not required to conclude that an IEP is appropriate simply because a teacher or other professional testifies that the IEP is appropriate. ...

Neither a state administrative hearing officer nor a reviewing court may reject an otherwise appropriate IEP because of dissatisfaction with the educational methodology proposed in the IEP. If an IEP is "reasonably calculated to enable the child to receive educational benefits," Rowley, 458 U.S. at 207, the hearing officer cannot reject it because the officer believes that a different methodology would be better for the child. See id. at 208 ("[O]nce a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.")


The School's Position

School Districts by and large assert the position that they should or can not specify the methodology in an IEP. There is no legal basis for this assertion. Schools often cite Rowley, but in that case, the school district did in fact specify a methodology; the dispute in Rowley was a disagreement over the choice of methodologies. As observed in T.H., Rowley only comes into play only when the school has implemented a methodology. Moreover, the program has to be one which is reasonably calculated to let the child progress in the regular curriculum.

A court in the District of Columbia has written:

Therefore, the plaintiffs are correct in contending that the holding in Rowley is limited to cases where it is found that a child has not been denied FAPE. In cases where it is determined in administrative and/or judicial proceedings that child has been unlawfully denied FAPE, "the basic floor of opportunity" discussed in Rowley, see id at 200, must give way to the remedial necessity at hand and the provision of FAPE that is constructed to correct the results of a school system's past violations and confer the educational benefits contemplated by proper implementation of the Act in the first instance.

The plaintiffs here are not asking that Alex be provided with a level of education or educational services designed to place him on footing commensurate with non-disabled children.  Rather, we have a school system that, for more than four years, has denied Alex even the "basic floor of opportunity" discussed in Rowley, and a request that Alex be provided education to adequately compensate for this denial. Alex is a severely autistic child who has been repeatedly mis-diagnosed and mishandled by DCPS.

Liberata Diatta v. DC, slip op at 14.

The School District position also contradicts common sense. The regulations specify that the IEP should include related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program, modifications or supports. It boggles the mind that the District could take the position that it should specify the supports and modifications which may be dependent on the methodology but not specify the methodology itself.

To show the lengths a school will go, on September 8, 2002, a school attorney was telling parents the text of the repealed regulations. She quoted and cited note four of the repealed regulations that it was not anticipated that an IEP will include methodology. She never mentioned the content of the new regulations. This was three and a half years after the old regulations were replaced. (She was also from the firm that fought the TH case through three appeals.) If your school quotes "note four," just say it has been repealed, and cite the new regulations.

Schools also resist paying for ABA because the home-based program does not qualify as a State Board of Education approved school for which the State Board will reimburse the local school districts. footnote.


The Necessity of Parental Consent

The District position also conflicts with the precept of parental consent. The law is clear that parents must consent to a placement decision.  First, parents must have a say in the placement. (34 CFR 300.501(c) and Q&A 37.)
Second, Parents must consent to the provision of special education and related services. (34 CFR 300.505(a)(1)(ii).)
Third, parents must be given prior written notice of the meeting which sets the placement. (34 CFR 300.503.)
Fourth, there is no provision in the law which can override a parental refusal of a placement; the school cannot take the parents to due process if they refuse consent to a placement. (34 CFR 300.505.)

If the IEP does not specify the methodology of the placement, how can the parents consent to the placement; they would have no informed consent. Consent means that the parent has been fully informed of all relevant information. (34 CFR 300.500(b)(1).) How can the parents decide among alternatives on what may be the most important aspect of the education? Are the parents to consent to a placement under the vague assurances that the District will find some way of educating the child, ignoring all the reports submitted at the IEP meeting?

One factor in the Peters v. Rome City School District (NY Oct. 2002) was the lack of informed consent. The Parents had consented to the use of a time-out room to address behaviours -- for three minutes.  The parents were not informed that the room was a padded closet with torn padding and the smell of urine, and the boy was sometimes there for an hour at a time. The jury hit the School District for $75,000 pain and suffering.

Similarly, the Sixth Circuit in Deal found that parents needed meaningful participation:

The district court erred in assuming that merely because the Deals were present and spoke at the various IEP meetings, they were afforded adequate opportunity to participate. Participation must be more than a mere form; it must be meaningful. W.G., 960 F.2d at 1485; see also Knox County Sch., 315 F.3d at 694-95 (stating that school officials must be willing to listen to the parents and must have open minds).

Despite the protestations of the Deals, the School System never even treated a one-on-one ABA program as a viable option. Where there was no way that anything the Deals said, or any data the Deals produced, could have changed the School System's determination of appropriate services, their participation was no more than after the fact involvement. See Spielberg, 853 F.2d at 259.


More support for methodology--OSEP.

The above excerpts from the law are complete. The material which follows here is additional documentation which either supports methodology or resolves conflicts in the legislative history.

OSEP on July 25, 2000, wrote:

"Once an IEP is developed for the child, the IEP must be implemented as written and the child's placement must be based upon the IEP. 34 C.F.R sec. 300.552(b). Whether a specific instructional methodology is addressed in an IEP is the IEP team's decision. The IEP team includes the Parent and it reaches its decision by consensus.  However, school districts must ensure through the IEP process that each individual child with a disability receives a program that is designed to address his or her unique needs. 34 C.F.R. secs. 300.26
(a) and 300.300(a)(3)(ii)."

July 25, 2000.

The Department of Education has recently stated that the methodology could be stated in an individualized family service plan under Part C (34 CFR 303.344(d)) concerning early intervention programs for infants and toddlers with disabilities.

Whether a specific methodology should be addressed in an IFSP is an IFSP team decision, and depends on the needs of the individual child. For many children, the IFS may not need to address a specific approach, because the general description of the service, e.g., "physical therapy," suffices to address the child's need.  In some cases, under the current regulations, in order to meet the child's unique needs the IFS team may consider a particular methodology or instructional approach to be integral to the design of an "individualized" program of services for the child. In such cases it would be appropriate for the IFS team to list that specific methodology on the IFS.

After an IFS has been completed and the parents consent to the provision of the identified services, the State is required to provide all services identified on the child's IFS and to ensure that those services are implemented according to the IFS. Thus, if the IFS includes a specific methodology or approach, the State would need to ensure that services are provided as stated in the child's IFS.

cite as Fed Erg vol. 67, No. 137, p. 46966. (The regulation specifically refers to "method" rather than "methodology.")
http://www.ed.gov/offices/OSERS/OSEP/Policy/1q2002pl/Wilson021202ifsp.pdf and on the same date stated:

"Parents are members of the IEP team and through the IEP process, a parent can also discuss with school officials different approaches that would appropriately meet their child's unique needs." and Special education under the IDEA is "specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability..." 20 U.S.C. 1402(25); 34 FR 300.26(a)
(1) (emphasis added). In addition, under 34 FR 300.300(a)(3)
(ii), "the services and placement needed by each child with a disability to receive a free appropriate public education must be based on the child's unique needs, and not on the child's disability." Thus, decisions regarding the provision of services that are appropriate for an individual child must be based on the child's unique needs and not on the disability category in which the child is classified. Fed Reg vol. 67, No. 137, p. 46966.


Regulation 300.501 : methodology in IEPs

You should note one other place in the regulations which mentions methodology, and that concerns meetings. The language of the statute is a little more problematic, but still consistent with the commentary above. Although sometimes used by the school districts for support of their position, the regulation actually lends support for including methodology in the IEP. The regulation reads: "Sec. 300.501 Opportunity to examine records; parent participation in meetings.

(a) General. The parents of a child with a disability must be afforded, in accordance with the procedures of Sec. 300.562-300.569,
an opportunity to--

(1) Inspect and review all education records with respect to--
(i) The identification, evaluation, and educational placement of the child and
(ii) The provision of APE to the child; and

(2) Participate in meetings with respect to --
(i) The identification, evaluation, and educational placement of the child; and
(ii) The provision of FAPE to the child.

(b) Parent participation in meetings.

(1) Each public agency shall provide notice consistent with Sec. 300.345(a)(1) and (b)(1) to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph (a)(2) of this section.
(2) A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision if those issues are not addressed in the child's IEP. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

(c) Parent involvement in placement decisions.

(1) Each public agency shall ensure that the parents of each child with a disability are members of any group that makes
decisions on the educational placement of their child."  Although the schools can have secret meetings, they cannot implement a change in methodology if methodology is addressed in the IEP.  Given the placement of the words "teaching methodology" in the context of lesson plans, and the discussion of methodology in the definitions and commentary cited above, this regulation limits the extent schools can co-opt the methodology choices. The regulation lends support for the idea expressed in the regulations' commentary that some methodology issues are so important that they need to be specified in the IEP itself. If the methodology is important enough to be in the IEP, schools cannot conduct secret "methodology meetings" to undermine the effectiveness of a method chosen by the IEP team. The topics of the informal, school-only meetings are limited to day-to-day lesson plans, coordination of services and such, and not the mode of instruction. School districts "shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child." (34 CFR 300.501(c).)

Moreover, regulation 300.501 creates support for specifying methodology in the IEP. The regulation specifically disallows schools from not only changing methods but even discussing changing methods, when those methods are included in the IEP. How can the District pretend that an IEP cannot include methodology when the regulation implies that it can? Methodology is part of the placement decision.


Interpreting Congressional Records

I include one more reference just to be complete, and to warn you that no interpretation of laws is ever simple. You may want to skip this paragraph to avoid undue complications. The 1997 Congressional Reports may be cited against the new interpretation of methodology.
The Congressional Reports are not laws, but commentary which a court can use to interpret statutes which may be unclear. The Department of Education's 1999 Regulations clarify the 1997 Congressional report. The problem language is in House Report 105-95, where the Committee stated:

"Specific day to day adjustments in instructional methods and approaches that are made by either a regular or special education teacher to assist a disabled child to achieve his or her annual goals would not normally require action by the child's IEP Team. However, if changes are contemplated in the child's measurable annual goals, benchmarks, or short term objectives, or in any of the services or program modifications, or other components described in the child's IEP, the LEA must ensure that the child's IEP Team is reconvened in a timely manner to address those changes. ...

As under current law, a child's IEP must include a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child. The Committee intends that, while teaching and related services methodologies or approaches are an appropriate topic for discussion and consideration by the IEP Team during IEP development or annual review, they are not expected to be written into the IEP.  Furthermore, the Committee does not intend that changing particular methods or approaches necessitates an additional meeting of the IEP Team." (House Report 105-95.)

Huh? These Congressional statements of intent may seem at variance with themselves and with the later Department regulations, but when viewed in the context of methodology as being the day-to-day adjustments, the Regulations are consistent. Program modifications and components are an IEP team's decision, but day-to-day adjustments are not. The Department of Education had the duty to interpret the statute by making regulations, and the Department determined that methodology was an appropriate item for the IEP.


More support

Another case involving methodology is Evans v. The Bd. Of Educ. of the Rhinebeck Central School Dist., 930 F. Supp. 83, 24 IDELR 338, 348 (S.D.N.Y. 1996), where the court held that the facts demonstrated "that an integrated, multi-sensory, sequential method is a necessity rather than an optimum situation." and stated "The failure to use an approach that will provide Frank with the tools to become, for example, an independent reader is alone an important reason why the District's IEP does not provide an appropriate
education." Evans via Wrightslaw.

In a related issue, OSEP has issued a letter which includes:

"If, however, an IEP team determines that it is necessary for the individual providing special education or related services to a child with a disability to have specific training, experience and/or knowledge in order of the child to receive FAPE, then it would be appropriate for the team to include those specifications in the child's IEP." OSEP, April 4, 2002. The school personnel must be trained to meet the student's individual needs.


The 2004 amendments to IDEA and research-validated methodologies Below is an excerpt from a National Center on Learning Disabilities 'net chat held on 01/12/2005 re the IDEA 2004 amendments:

Q: How should a request be worded for a child's IEP to insure that a research based program appropriate to that child's specific reading problem is used and used in the manner that the research demonstrates is most effective?

A: Dr. Stevan Kukic:

"The statute is clear that the option is for a district to use a process using scientific, research based interventions for the
identification of children as LD under IDEA 2004. The test on the IEP is three fold:

First, the process must be followed to develop the IEP.  Second, the provision of services laid out in the IEP must result in the child receiving some benefit. This is the two-fold definition of the word appropriate in the term free, appropriate, public education.  Third, there is new provision in IDEA 2004 that calls for "a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child--
(aa) to advance appropriately toward attaining the annual goals;
(bb) to be involved in and make progress in the general education curriculum in accordance with subclause (I) and to participate in extracurricular and other nonacademic activities; and
(cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this subparagraph;

Therefore, it seems to me that the test is whether the interventions suggested have a good likelihood of working with the
child in question. The likelihood clearly increases if the intervention has a strong research base with children like the
target child which is the reason for the new provision. Last, if an intervention with a strong research base is not used with fidelity, it has a great liklihood of not working! Push hard for fidelity of implementation."

Dr. Kukic is former Utah State Director of Special Education and has just completed a five year term as chair of the National Center for Learning Disabilities' Professional Advisory Board. He is currently the Vice President for Professional Services for Sopris West Educational Services. Dr. Kukic played an integral role in the development of the new IDEA 04 provisions regarding specific learning disability (SLD) eligibility.



Quo vadis

Okay, that is the legal perspective, but what does that leave you?  For Law to be Law, it must be followed. Some say that Special Education Law is not law because the written laws are not followed.  These references to statutes and regulations may sound good to a judge hearing an appeal of a due process hearing, but your goal is to get effective services for your child in the IEP. A school administrator is not likely to follow through a long list of regulations. He or she has been trained in making decisions as the administrator-on-high.

As brother Roger suggests, One strategy to obtain effective services at the IEP is to define the methodological needs precisely enough that the team has to choose your preferred "brand" of methods anyway. It is rare that a particular "brand name" can be locked into an IEP, because school folks are touchy about being "directed" to choose one product over another, even though they may have no choice at all. (That is similar to what happened in the successive appeals in the T.H. v. Palatine case. The District dragged on the proceeding with successive appeals not on the issue that they knew what to do, but only that they did not want to be told what to do.)

If you go into your IEP meeting describing what the methodology "does," you may stand a better chance of getting what
your child needs. Sticking firm on a brand name may just exasperate the school members. For example, rather than insisting on "Lovaas," get the team to agree that the child needs 40 hours per week of discrete trial training with data review, etc. They might use all the tools without using the label. In other words, rather than fight over technicalities, you might focus on what the methodology of your preference is designed to accomplish. It's a lot easier to come to agreement over function than over form.

That is just one strategy. But if your child's IEP seems inevitably headed to due process, you must document the proceedings. Cases have been lost where the courts found insufficient evidence of the parents' requests for services. You must document that the schools have refused to consider proven methodologies. Hopefully, however, by making the school think harder about what they are doing, the team may actually develop something that works.

The IEP is not the guarantee of results. The school must provide the services listed in the IEP, but the outcome can be uncertain. Courts differ on how realistic an IEP must be in predicting whether an individual child will actually benefit from the services listed in the IEP.

The bad news is that courts grant deference to the school's choice of methodologies. Lachman v. Illinois State Bd of Education, 852 F.2d 290, 296 (7th Cir. 1988). Reversing it is difficult. In most circuits, you will have to show that the method chosen by the school would not reasonably calculated to lead to meaningful academic progress. See School District of Wisconsin Dells v. Z.S., no. 01- 3720 (7th Cir. June 28, 2002):

"A particular Individualized Education Program, to survive administrative review, such as the one that decreed the program of home instruction challenged by Z.S.'s guardian, need only be "reasonably calculated to enable the child to receive educational benefits." Board of Education v. Rowley, supra, 458 U.S. at 206-07 (emphasis added); Patricia P. v. Board of Education, supra, 203 F.3d at 67; School Board of Collier County v. K.C., 285 F.3d 977, 982 (11th Cir. 2002); Rome School Committee v. Mrs. B., supra, 247 F.3d at 33. The administrative law judge substituted his own opinion for that of the school administrators. He thought them mistaken, and they may have been; but they were not unreasonable."


Another possibility suggested above in the Paxton and Deal cases, is to show the school committed procedural violations by failing to even consider workable methodologies. More on this trend later.

In one recent case, the parents prevailed when the hearing officer took the situation out of the Lachman-Rowley quagmire when he found that the choice of programs was not methodology at all. William Fabian v. Flossmoor School District 161, ISBE 2558 (Sept. 29, 2002,

An oral/aural approach to teaching a child with a cochlear implant is not a methodology issue, but rather what the child needs to satisfy the goal of talking. Likewise a multisensory approach to teaching a child to read is not methodology issue, but rather, what that child needs to satisfy the goal of reading [see Briere v. Fair Haven Grade School District, 948 F. Supp. 1242 1254 (D. Vt. 1996)].
In this case, Elizabeth Briere, due the intensity of her learning disabilities, required instruction utilizing a multisensory approach in order to benefit from education. If the goal is to teach a child to read, one could use a variety of different approaches such as phonics, whole language or phonographic to achieve that goal.

However, some students, such as was articulated in Briere, may need a multisensory approach, because like Elizabeth Briere, that is what the child needs to learn to read, due to his or her disability. The Briere case is analogous for this Student. If the goal for this Student is to use his cochlear implant to learn to talk, he needs a highly intensive oral/aural approach to reach this goal. The Parents sought a cochlear implant for him because they wanted their son to be able to utilize oral language as his sole means of communicating with society. For him, to be placed in a different program, would be potentially harmful in that it consumes valuable time in a narrow window of opportunity.


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Links to regulations
Full copies of the Code of Federal Regulations and the Federal Register are available from Wrightslaw, the Government Printing Office, and other places.
The Illinois regulations are at http://www.isbe.state.il.us/spec-ed/PDF/226rulesindex.pdf (Large pdf file.)
Another article discussing methodology is

TH footnote

After the parents, in TH v. Bd Ed Palatine, prevailed in their action for the ABA reimbursement in two levels of due process and the U.S. District Court, the School District (Palatine) took the State of Illinois Board of Education to the Seventh Circuit Court of Appeals, arguing:

"According to Oak Park and Palatine, the combination of Carter with 105 ILCS 5/14-7.02 leaves them in a bind: they can't get state reimbursement unless the private school has been approved, but they also can't use the lack of approval to avoid reimbursing parents for what may be a costly private placement. That may well be so, but it does not follow that the IDEA requires the state to contribute more than the amount allocated under [20 U.S.C.] sec.1411 (g). In Carter itself the Justices had this to say about the school district's contention that the Court's holding would break the bank:

'[P]ublic educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State's choice. This is IDEA's mandate, and school officials who conform to it need not worry about reimbursement claims.' "Oak Park and Palatine v. ISBE (appeal from TH v. Palatine) (7th Cir., March 24, 2000), No. 99-1589.

In other words, paying for a nonapproved school may create a financial disincentive since a State Board of Ed may not reimburse the school under the State's reimbursement formula. The State Board of Ed can keep 25% of Federal moneys which it doles out to local districts under formulae. This problem effects many students since many States lack schools experienced in the methodology appropriate for a student, leaving the alternative of forcing schools to learn the methodology themselves. Many schools are predisposed against some methodologies, will learn it poorly, or will dilute it with their own notions. The IDEA Statute does require school to have a comprehensive system of personnel development to ensure that all persons who work with the children have all the skills to meet the needs of the children. (See Dickman footnote, following.)

Illinois 2003 footnote

Case #002632 Judge Julia Quinn Dempsey, Hearing Officer Appropriate Placement, Home Bound Instruction, Sufficiency of Services, Unilateral Placement, Content of IEP, FAPE, Methodology ISBE Synopsis: "The parents of a 10 year-old boy diagnosed with Autism requested the hearing because they were dissatisfied with the educational program being provided by the school district. The parents argued that the district's program was not challenging enough and didn't use ABA/DTT. The parents removed the child after an incident where a teacher sprayed him in the face with a cleaning substance. Neither party prevailed on all issues.

The hearing officer found that the parents were justified in their decision to remove the child following the "spraying" incident. The district was faulted in not offering the parent another placement and for not appropriately addressing the child's needs for ESSAY. It was also found that the IEP goals and objectives were appropriate but in need of much more detail on the academics. The parents were awarded reimbursement for the home program from the time the child was removed from school through the summer.
However, the district's program and IEP were found mostly appropriate with no procedural violations. The District was ordered to provide autism training to staff and to provide ABA/DTT type instruction at school for the child. Additional help in integrating the child into the classroom was also ordered.  Both parties were represented by legal counsel."

Dickman footnote

OSEP based its advice in the April 2, 2002, "Dickman" letter on the text of IDEA itself, which requires each State to have a Comprehensive System of Personnel Development to "ensure that all personnel who work with children with disabilities... have the skills and knowledge necessary to meet the needs of children with disabilities. ..." 20 USC secs. 1412(a)(14) and 1453(c)(3)(D). The text of the statute follows:

20 U.S.C. 1412(a)(14) Comprehensive system of personnel development "The State has in effect, consistent with the purposes of this chapter and with section 1435(a)(8) of this title, a comprehensive system of personnel development that is designed to ensure an adequate supply of qualified special education, regular education, and related services personnel that meets the requirements for a State improvement plan relating to personnel development in subsections (b)(2)(B) and (c)(3)(D) of section 1453 of this title." 20 U.S.C. sec 1453(c) Improvement strategies Each State improvement plan shall -
(3) describe the strategies the State will use to address the needs identified under subsection (b) of this section,

(A) how the State will change State policies and procedures to address systemic barriers to improving results for
children with disabilities;
(B) how the State will hold local educational agencies and schools accountable for educational progress of children
with disabilities;
(C) how the State will provide technical assistance to local educational agencies and schools to improve results for
children with disabilities;
(D) how the State will address the identified needs for in-service and pre-service preparation to ensure that all
personnel who work with children with disabilities (including both professional and paraprofessional personnel who provide
special education, general education, related services, or early intervention services) have the skills and knowledge
necessary to meet the needs of children with disabilities, including a description of how -
(i) the State will prepare general and special education personnel with the content knowledge and collaborative
skills needed to meet the needs of children with disabilities, including how the State will work with other States on
common certification criteria;
(ii) the State will prepare professionals and paraprofessionals in the area of early intervention with
the content knowledge and collaborative skills needed to meet the needs of infants and toddlers with disabilities;
(iii) the State will work with institutions of higher education and other entities that (on both a pre-service
and an in-service basis) prepare personnel who work with children with disabilities to ensure that those institutions and
entities develop the capacity to support quality professional development programs that meet State and local needs;
(iv) the State will work to develop collaborative agreements with other States for the joint support and
development of programs to prepare personnel for which there is not sufficient demand within a single State to justify
support or development of such a program of preparation;
(v) the State will work in collaboration with other States, particularly neighboring States, to address the lack of
uniformity and reciprocity in the credentialing of teachers and other personnel;
(vi) the State will enhance the ability of teachers and others to use strategies, such as behavioral
interventions, to address the conduct of children with disabilities that impedes the learning of children with disabilities and
(vii) the State will acquire and disseminate, to teachers, administrators, school board members, and related services
personnel, significant knowledge derived from educational research and other sources, and how the State will, when
appropriate, adopt promising practices, materials, and technology;
(viii) the State will recruit, prepare, and retain qualified personnel, including personnel with disabilities
and personnel from groups that are underrepresented in the fields of regular education, special education, and
related services;
(ix) the plan is integrated, to the maximum extent possible, with other professional development plans and
activities, including plans and activities developed and carried out under other Federal and State laws that
address personnel recruitment and training; and
(x) the State will provide for the joint training of parents and special education, related services, and
general education personnel;