Formulas and Methodology in the IEP

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Planning for the Educational and Lifetime Needs

of Individuals with Disabilities

The Law Offices of G. Emerson Dickman

25 E. Spring Valley Avenue

Maywood, NJ 07607

201-909-0404

Aptitude/Achievement Formulas and Methodology in

the IEP

Perhaps there are other more controversial topics in special education, but

these two issues often needlessly divide parents and school districts in New

Jersey. From our perspective, the answers are relatively simple: the

aptitude-achievement discrepancy model should be abolished and when a child

requires instruction outside of the typical curriculum parents are entitled

to be told what methodology the school district chooses. The articles in

this issue will address these hot topics.

In addition, we recommend attending the conference presented by on the New

Jersey Branch of the International Dyslexia Association and New Jersey

Speech-Language-Hearing Association featuring Dr. Margie Gillis - Reading

Instruction: A Vision for the Future. Additional information is available

below <> .

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APTITUDE / ACHIEVEMENT FORMULAS

Many states, New Jersey among them, equate diagnosis of a learning

disability and concomitant eligibility for services to the finding of " a

severe discrepancy between the student's current achievement and

intellectual ability... " N.J.A.C. 6A:14-3.5©12. New Jersey goes so far as

to cling to this harmful, but administratively convenient practice of the

past while turning its back on modern initiatives with promise. It might be

said that New Jersey chooses blood letting over antibiotics.

Any definition, diagnostic criterion, or prerequisite for services that

require a quantifiable manifestation of " significant difficulties " (NJCLD)

or a significant interference " with academic achievement " (DSM-IV draft)

makes failure a hallmark of the condition being described. Must someone

have a heart attack before a heard condition can be diagnosed or treated?

Of course not; the condition is intrinsic to the organ and the heart attack

is a manifestation of a heart condition that is allowed to mature because it

went undetected and untreated.

Those who have spoken against the requirement that failure be manifest

include the giants in the field of learning disabilities including Mather,

Fletcher, Fuchs, Carnine, and many others as well as the Department of

Education in both the Clinton and Bush Administrations. Such formulas have

been described as irrational, indefensible, and immoral. Recently Doug

Fuchs pointed out that the fallacy that correlation does not imply causation

(cum hoc ergo propter hoc) is inherent in this approach, when he stated that

manifestation of failure " more times than not reflects poor teaching. "

Under no circumstance should we sacrifice the welfare of the children to

which we have dedicated our lives in order to promote administrative

convenience or political gamesmanship. Such approach " prevents prevention "

(Fletcher), " requires failure " (Mather), and is " antithetical to early

intervention " (Fuchs).

We don't wait for a person with a heart condition to have a heart attack

before we provide treatment; we should not wait for a child with a learning

disability to fail before we intervene! The lifelong consequences of a

learning disability have more to do with the experience of ubiquitous

failure than with the underlying neurobiological deficit.

Emerson Dickman

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METHODOLOGY IN THE IEP

The Individuals with Disabilities Education Improvement Act (IDEA) requires

that school districts provide a free appropriate public education (FAPE) to

children that meet the delineated eligibility requirements. To provide FAPE

a school district's proposed Individualized Education Plan (IEP) must be

reasonably calculated to enable the child to receive a meaningful

educational benefit. Bd. of Ed. of Hendrick Hudson Central School District

v. Rowley, 458 U.S. 176, 206-07 (1982); T.R. v. Kingswood Township Bd. of

Ed., 205 F.3d 527, 576 (3d Cir. 2000); Ridgewood Bd. of Ed. v. N.E., 172

F.3d 238, 247 (3d Cir. 1999); Polk v. Central Susquehanna Intermediate Unit

16, 853 F.2d 171, 181 (3d Cir. 1988). Where the IEP does not provide FAPE,

the school district has violated IDEA. A school district can be found to

have failed to provide FAPE to a child if the procedural inadequacies

" significantly impeded the parents' opportunity to participate in the

decision making process regarding the provision of a free appropriate public

education. " 20 U.S.C. 1415(f)(3)(E)(ii).

The identification of methodology in the IEP is often related to remediation

of reading impairments (e.g. Orton Gillingham, , Alphabetic Phonics),

specific speech programs (e.g. PROMPT), and autism programs (e.g. ABA,

Greenspan). Sometimes the issue is which program to utilize. The

responsibility for determining which methodology to utilize to address a

student's needs is left to the local school district, in cooperation with

the parents. Rowley, 458 U.S. at 207. Case law clearly states that parents

can not demand a specific methodology where multiple methods could provide

FAPE. Courts will generally defer to school districts decisions regarding

methodology as long as the choice is " based upon an accepted, proven

methodology. " Lachman v. Illinois State Bd. of Ed., 852 F.2d 290, 297 (7th

Cir. 1988).

More often, the issue is specifically identifying the chosen method in the

IEP. Currently, New Jersey does not have precedential case law stating that

school districts must inform parents of the methodology chosen by the

district to address the student's needs; however, the IDEA implementing

regulations, the United States Department of Education, and persuasive case

law indicate that where specificity as to methodology is necessary to

provide FAPE it must be included in the IEP. In addition, this office has a

case pending before the Third Circuit,, which includes New Jersey, that

addresses if the failure to identify the method chosen in the IEP

significantly impeded the parents opportunity to participate in the

provision of FAPE. (W.R. and K.R. o/b/o H.R. v. Union Beach School

District, Case no. 10-2345)

While the choice is left to the school district, the parents must be told

the choice in order to participate in the decision making process regarding

their child's education. If the parent is not informed of the choice, how

can they possibly determine if the offered IEP provides FAPE?

The IDEA's implementing regulations specifically include methodology as what

is " special " about special education. Special education is specially

designed instruction that meets the unique needs of the child. 34 C.F.R.

300.26(a)(1). The federal regulations then define 'specially designed

instruction' as " adapting, as appropriate to the needs of an eligible child

under this part, the content, methodology, or delivery or instruction... "

34 C.F.R. 300.26(a)(3)(emphasis added).

In addition, the United States Department of Education comments to the 1999

regulations state:

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. 64

F.R. 12406, 12555 (March 12, 1999)

A California Judge put it succinctly: " While a court is ill-equipped to

second guess a district's choice of methodology, it still requires that the

district actually chose one. The district must select a methodology, present

it to the parents, and stick with it. " Yucaipa Calimesa Unified School

District, 6 ECLRP 48 p. 11, 108 LRP 32915 (CA SEA March 21, 2008)(emphasis

added).

Parents are integral members of the IEP team. To participate in any

meaningful way they must be provided the information necessary to make an

informed decision about their child's program. Identifying the method that

will be used to address their child's needs is necessary to provide FAPE.

Districts that ignore this requirement are at risk of administrative

decisions finding that the IEP did not provide FAPE.