First Circuit Finds for Falmouth School District on Important Special Education Issue

In an important ruling for Maine and New Hampshire, the First Circuit Court of Appeals last week flipped an earlier federal district court decision and instead concluded that Falmouth did not violate the IEP (Indiviudalized Education Plan) when the school set aside a reading program that the parent had said she did not want. The First Circuit ruling in Ms. M. v. Falmouth School Department[1] puts an end to a longstanding case that had left many school officials shuddering when the lower court concluded that statements found in Falmouth’s Written Prior Notice to parents should be incorporated into the child’s actual IEP. The First Circuit clearly said no to this proposition, finding that Falmouth had delivered an appropriate educational program at all times being considered by the Court.


Many readers are familiar with this case, which involved a dispute over reading programs for a child in third grade with Down Syndrome and ADHD. The parent had been asking Falmouth to provide her child with a structured reading program. At the annual meeting on October 31, 2013, the student’s IEP team offered to begin using the SPIRE reading methodology with the child, even though Falmouth felt the reading program it was using was well structured and beneficial. At that same meeting, the parent presented the team with a long list of questions she wanted answered, including a request for a description of the literacy program actually being delivered to the child.

A number of things happened after this meeting. In the Written Prior Notice issued on November 5, 2013, Falmouth wrote in section one that that it “proposed” to provide 60 minutes a day of reading instruction with SPIRE. In a later section of the same Written Prior Notice, Falmouth wrote that the parent agreed with this decision. Also on November 5, 2013, the parent filed for a due process hearing challenging the adequacy of the reading program Falmouth was using with her child. On November 14, the parent wrote a long letter taking issue with the accuracy of most elements of the Written Prior Notice that Falmouth had sent out. In particular, she wrote that the SPIRE reading program was “not an evidenced based program, which ma[de] it inappropriate since it [was] not research based.”[2] She also wrote that she was “NOT in agreement with the proposal to use [SPIRE].”

Based on these statements, Falmouth did not use SPIRE with the child, and a few days after receiving the parent’s letter, Falmouth sent out the IEP – which made no mention of SPIRE and had attached to it a response to the questions the parent had read to the IEP team, including an explanation of the multifaceted reading program actually being provided to the child. Falmouth and the parent resolved the hearing request with a mediation agreement that included Falmouth agreeing to hire a number of evaluators to assess the child’s reading program and other aspects of her services.

The parent later claimed that she did not know that Falmouth was using a reading program other than SPIRE with her child. But the reading evaluation undertaken as part of the mediation made this clear to her, and the evaluator suggested that the best reading methodology for this child would likely be Lindamood Phoneme Sequencing, or LiPS. Near the end of the school year Falmouth again offered to provide the child with SPIRE, but throughout the full 3rd grade school year, the child’s special education teacher had used the same multifaceted reading program with which she had started the year. The family then requested another due process hearing, challenging the adequacy of the reading program delivered, and insisting that LiPS was better than SPIRE and should be a part of the child’s IEP. Oddly, the family also argued that Falmouth had violated the child’s IEP by failing to deliver SPIRE, the reading program that the parent did not want.

Hearing Officer and Magistrate Judge Rulings

Over Falmouth’s objections, both the administrative hearing officer, and then later a magistrate judge on appeal in the federal district court, ruled that the statement in Falmouth’s October 31 Written Prior Notice proposing that Falmouth provide SPIRE for 60 minutes a day should be read into the child’s actual IEP, and that Falmouth had therefore failed to provide an IEP service. As explained by the magistrate judge, Falmouth’s IEP for this child was vague because the service it listed was “specially designed instruction” rather than some more detailed description. This vagueness then justified, the magistrate judge wrote, reading the SPIRE methodology reference into the IEP from the Written Prior Notice.

Nevertheless, both adjudicators also concluded that this was simply a procedural error, and that it had not harmed the child at all because Falmouth in fact had provided a multifaceted reading program to the child for 60 minutes a school day and because the child had received meaningful and demonstrable benefits from that program.[3] As a result, both of these decisions came down in Falmouth’s favor.

The parents asked for a further review from the Article III federal district court judge, by this time abandoning any dispute over whether LiPS or SPIRE was a better program, and instead insisting almost exclusively that Falmouth had failed to provide a free, appropriate public education (“FAPE”) simply by virtue of having failed to use SPIRE, a methodology that the parent insisted was part of the IEP based only on its mention in the Written Prior Notice document.

At this federal district court level, however, the family met with success. The judge accepted that the reference to SPIRE in the Written Prior Notice should be read into the IEP document itself, and then found that Falmouth violated its IEP by not providing the SPIRE methodology – even though it was undisputed that Falmouth had implemented every single thing that was actually written in the IEP. Unlike at earlier levels, though, the federal district court judge ruled that this failure all by itself would be a denial of FAPE, even if the student had benefitted meaningfully from the program she actually received. Accordingly, the court ordered Falmouth to reimburse the family for the cost of private LiPS tutoring that the parent had arranged for the child. Falmouth then appealed this ruling to the First Circuit Court of Appeals in Boston, one step down from the Supreme Court.

The First Circuit Rules for Falmouth

The First Circuit overturned the ruling by the federal district court judge, and ruled completely for Falmouth. The Court began its consideration by focusing in on the actual IEP, and whether it was in any manner vague by virtue of describing the services as “specially designed instruction.” The Court found that the terminology was not vague, when considered in light of descriptions in both state and federal regulations of what “specially designed instruction” means. The Court wrote:

For instance, rules within the Maine Unified Special Education Regulations (“MUSER”) expressly categorize “Specially Designed Instruction” as a distinct type of special education service, noting that it refers to “instruction provided to children . . . by an appropriately qualified special education professional or an appropriately authorized and supervised educational technician consistent with a child’s IEP.” Me. Code R. 05-071,Ch. 101 � X.2(A)(2).[4]

The Court buttressed its conclusion by observing that the federal law “does not require schools to include specific instructional methods in an IEP,” referencing that part of the IDEA that declares that the law should not be construed to require “that additional information be included in a child’s IEP beyond what is explicitly required in this section.”[5] The Court then wrote:

Thus, the exclusion of any particular reading methodology in O.M.’s IEP appears deliberate and suggests that the IEP team intended to give Falmouth Elementary School officials a degree of flexibility when implementing O.M.’s educational program, subject to Section X.2(A)(2)’s constraints.[6]

From here, the Court moved on to explain its view of the interplay between the Written Prior Notice and the IEP document, noting that the IEP provides the general framework and is binding, whereas the Written Prior Notice adds further details, but is not binding. The Court wrote:

After viewing the IEP and Written Prior Notice requirements in tandem, it is evident that the IDEA envisions the IEP as an agreed-to general framework of a child’s educational program that provides schools with a certain degree of flexibility in accomplishing the outlined objectives, while a Written Prior Notice is meant to spell out more specific, but not binding, proposals for implementing that framework.[7]

The First Circuit is nothing if not careful. So the Court went on to observe that it may well be that an IEP could at some point be viewed as ambiguous, and in that situation a hearing officer or court might certainly look at other “extrinsic” evidence to determine what actually was meant by the ambiguous terminology. But in this case, the term “specially designed instruction” was not ambiguous, and therefore there was no need to resort to outside evidence to make sense of the IEP document.

In the end, the First Circuit ruled that the federal district court had erred in incorporating the SPIRE reading methodology from the Written Prior Notice into the IEP, and that there was no other basis for finding a FAPE violation because it was undisputed that Falmouth had implemented the entire IEP as actually written.