MS. M., individually and as parent and legal guardian of O.M., a minor, Plaintiff, Appellee,
FALMOUTH SCHOOL DEPARTMENT, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE[Hon. D. Brock Hornby, U.S. District Judge]
R. Herlan, with whom Michael Buescher and Drummond Woodsum
& MacMahon were on brief, for appellants.
Richard L. O'Meara, with whom Rachel W. Sears and Murray,
Plumb & Murray were on brief, for appellees.
Lynch, Stahl, and Barron, Circuit Judges.
case concerns a claim that the Falmouth School Department
("Falmouth" or "School Department") did
not provide one of its students, O.M., with a "free
appropriate public education" ("FAPE") as
guaranteed under the Individuals with Disabilities Education
Act ("IDEA"), 20 U.S.C. § 1400 et
seq. The complaint centers on O.M.'s individualized
education program ("IEP"), which constitutes the
"primary vehicle" for a school's delivery of a
FAPE under the IDEA. Lessard v. Wilton Lyndeborough Coop.
Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008). O.M.'s
mother, Ms. M., asserts that her daughter's IEP specified
that Falmouth would instruct O.M. using the Specialized
Program Individualizing Reading Excellence
("SPIRE") system during her third-grade
year.She insists that this system constituted a
key provision of O.M.'s IEP and, because Falmouth did not
provide O.M. with SPIRE instruction, the School Department
therefore violated her daughter's right to a FAPE.
Falmouth, for its part, counters that O.M.'s IEP does not
mention SPIRE and that any references to it were relegated to
ancillary documents which should not be read into the IEP or
made a part of the IEP.
an administrative hearing and a magistrate judge's review
of that hearing, the district court agreed with Ms. M. and
entered judgment in her favor. However, after careful review
we reach a contrary conclusion and find that O.M.'s IEP
did not mandate that Falmouth use SPIRE, meaning the School
Department neither breached the IEP's terms nor denied
O.M. a FAPE by foregoing such instruction. Accordingly, we
Facts & Background
now twelve-year-old girl diagnosed with Down syndrome and
Attention Deficit Hyperactivity Disorder, lives with her
mother, Ms. M., in Falmouth, Maine. She began attending
Falmouth Elementary School as a first grader in 2011 where,
as a student with multiple intellectual disabilities, she was
eligible for a FAPE, i.e., special education and related
services structured in compliance with the IDEA that are
provided free of charge. Ms. M. now challenges Falmouth's
delivery of these services during O.M.'s third-grade year
provide an IDEA-eligible child with a FAPE, a school district
must first create an IEP for the child and then follow its
dictates. See D.B. ex rel. Elizabeth B. v. Esposito,
675 F.3d 26, 34 (1st Cir. 2012). The IEP is a "written
statement for each child with a disability that is developed,
reviewed, and revised" in accordance with the IDEA. 20
U.S.C. § 1414(d)(1)(A)(i). IEPs are subject to both
substantive and procedural requirements, which "can flow
from either federal or state law (at least to the extent that
the latter is not incompatible with the former)."
Lessard, 518 F.3d at 23.
example, on the substantive front, an IEP must be
"individually designed" to suit the needs of a
particular child, Bd. of Educ. of Hendrick Hudson Cent.
Sch. Dist. v. Rowley, 458 U.S. 176, 201 (1982), and must
include, "at a bare minimum, the child's present
level of educational attainment, the short- and long-term
goals for his or her education, objective criteria with which
to measure progress toward those goals, and the specific
services to be offered, " Lessard, 518 F.3d at
23 (citing 20 U.S.C. § 1414(d)(1)(A), and Lenn v.
Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.
1993)). On the procedural front, the IDEA gives, among other
things, parents of qualifying children a right to be a part
of the IEP "team, " or the group of individuals
charged with formulating a child's particular IEP. 20
U.S.C. § 1414(d)(1)(B). Other members of the IEP team
can include the child's regular special education
teachers, a local education agency representative, other
individuals with relevant experience, and, if appropriate,
the child him or herself. Id.
procedural requirement, the so-called "Written Prior
Notice" provision, lies at the heart of this case. That
provision directs local educational agencies to issue a
Written Prior Notice to the parents of an IDEA-eligible child
whenever they "propose" or "refuse"
to initiate or change how they deliver that child's FAPE,
including when they change that child's IEP. 20 U.S.C.
§ 1415(b)(3). As relevant here, these notices must
include "a description of the action proposed or refused
by the agency" and "an explanation of why the
agency proposes or refuses to take the action."
Id. § 1415(c)(1).
Origins of the Current Dispute
began her third-grade year at Falmouth Elementary School in
September 2013. At that time, O.M.'s IEP team set about
designing a new IEP that would take effect after her
then-current IEP expired in October 2013. Ms. M., who had
often expressed to Falmouth her concerns with O.M.'s
literacy instruction at the school, initially requested that
the IEP team hold a meeting to discuss her daughter's
reading development in depth. Falmouth hosted the meeting on
October 3, 2013, after which it issued a Written Prior Notice
to Ms. M. indicating that the School Department proposed
"the introduction of a structured reading program to
[O.M.]'s IEP." Ms. M. nonetheless reiterated her
dissatisfaction with O.M.'s literacy instruction in later
emails, demanding to know whether her current reading
programs were based on scientific research, if her teachers
held the requisite instructional qualifications in those
programs, and how Falmouth proposed to measure her progress
in them. See 20 U.S.C. § 1414(d)(1)(A)(iv)
(noting that IEP services must be based on, to the extent
practicable, "peer-reviewed research"); 34 C.F.R.
§ 300.320(a)(4) (stating the same).
team met again on October 31, 2013, at which time Falmouth
proposed that O.M. be taught using a specific structured
reading program called SPIRE. In the Written Prior Notice
generated after that meeting and sent to Ms. M. on November
5, 2013, Falmouth similarly stated that it
"proposed" (emphasis ours) to provide O.M.
with sixty minutes of daily SPIRE instruction. That same day,
however, Falmouth received a copy of a special education due
process hearing request filed by Ms. M. with the Maine
Department of Education. 20 U.S.C. § 1415(b)(6) (giving
child's parents a right to bring a complaint to the
state's educational agency regarding any matter relating
to the child's IEP or a school's provision of a
FAPE). The hearing request maintained, in part, that
O.M.'s current reading program was inappropriate under
the IDEA. Ms. M. also wrote a letter, dated November 14,
2013, to Falmouth Special Education co-directors Polly Cowell
and Gene Kucinkas identifying "several errors" in
the November 5th Written Prior Notice and stating that she
had "learned that the SPIRE program [was] not an
evidenced based program, which ma[de] it inappropriate since
it [was] not researched based." To emphasize the point,
she also noted that she was "NOT in agreement with the
proposal to use [SPIRE] for [O.M.]."
response, Mr. Kucinkas proposed that Falmouth would retain
Dr. Christopher Kaufman, a psychologist, to evaluate
O.M.'s cognitive and academic abilities and offer
suggestions for the IEP team to consider. Two days later,
Falmouth sent O.M.'s new IEP, developed after the October
31 meeting, to Ms. M. The IEP did not identify or discuss the
SPIRE system, and instead stated that Falmouth would provide
O.M. with eight ...