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Ms. M. v. Falmouth School Department

United States Court of Appeals, First Circuit

January 27, 2017

MS. M., individually and as parent and legal guardian of O.M., a minor, Plaintiff, Appellee,


          Eric 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.

          Before Lynch, Stahl, and Barron, Circuit Judges.

          STAHL, Circuit Judge.

         This 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.[1]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.

         After 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 reverse.

         I. Facts & Background

         O.M., a 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.[2] Ms. M. now challenges Falmouth's delivery of these services during O.M.'s third-grade year (2013-2014).[3]

         A. Statutory Framework

         To 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.

         For 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.

         Another 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).

         B. Origins of the Current Dispute

         O.M. 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).

         The IEP 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.]."

         In 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.[4] The IEP did not identify or discuss the SPIRE system, and instead stated that Falmouth would provide O.M. with eight ...

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