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If a Particular Methodology Plays a Critical Role in a Student’s Special Education Program, It Must Be Specified in the IEP

Sep 15, 2017 | Legal Developments and News

On September 13, 2017, the Ninth Circuit Court of Appeals held a student’s individualized education program (“IEP”) must specify the “particular methodology” required for implementing the IEP, if that methodology plays “a critical role in the student’s educational plan.”  R.E.B. v. State of Hawaii Department of Education (9th Cir. 2017) 870 F.3d 1025.


J.B. was a kindergartner who qualified for special education and related services under the eligibility category of autism and attended a small private school for students with autism and other special needs.  The LEA responsible for providing J.B. a free appropriate public education (“FAPE”) convened a meeting to develop an IEP to transition J.B. from his private school to a public school.  J.B.’s family objected to various aspects of J.B.’s proposed IEP, including the lack of transition services offered to assist J.B. in transitioning from private to public school; the failure of the LEA to provide specific information about the type, duration, and frequency of mainstreaming services and to consider the Rachel H. factors regarding mainstreaming; the lack of specificity in J.B.’s IEP regarding the qualifications of J.B.’s proposed one-to-one aide; and the LEA’s failure to specify in J.B.’s IEP that Applied Behavioral Analysis (“ABA”) would be used as a methodology.


The Ninth Circuit found in favor of J.B. on all issues except for the requirement to provide the qualifications of a one-to-one aide in a student’s IEP.

The Ninth Circuit determined the LEA should have included supplementary aids and services to ease J.B.’s transition to a public school setting.  The Court emphasized that transition services are meant not just for transitions to postsecondary opportunities, but to enable students to participate in new academic environments. J.B.’s transition from a private school to a public school for the first time was particularly apt for transition services to help offset the change in placement.  The decision also addressed specificity within an IEP in the context of mainstreaming services, the provision of one-to-one aide support, and use of a particular methodology.

Because the IEP failed to include an explanation of how much time J.B. would be ouside the regular classroom and “the anticipated frequency, location, and duration of [the special education] services and modifications” required under the IDEA, the Court determined that the vague statement in the IEP about inclusion into a general education setting not only improperly delegated the determination of placement to teachers outside the IEP process, but made the IEP too vague to be enforced and impeded J.B.’s parents’ participation in the IEP process.  In contrast, the Ninth Circuit did not find it necessary to specify the qualifications or training of the one-to-one aide because it could find no basis in the IDEA or related case law for this level of specificity for service provider qualifications.

The Ninth Circuit also held that in order to receive a FAPE, J.B.’s IEP specifically required mention of ABA services.  The Ninth Circuit observed that J.B.’s IEP team discussed ABA at length and “recognized it was integral to J.B.’s education.”  The court also noted that “ABA is widely recognized as a superior method for teaching children with autism.”  Ultimately, the Ninth Circuit held that when a particular methodology plays a “critical role” in the student’s educational plan, it must be specified in the student’s IEP.  The Ninth Circuit emphasized that mention of a particular methodology in a student’s IEP does not preclude service providers from using other methodologies within their discretion, but ensures that the integral methodology is used consistently.


Districts often state that they have discretion to select the particular educational methodology, such as a specific reading intervention program or behavioral technique, to implement a student’s IEP.  This decision indicates districts continue to have discretion to select educational methodologies, but when a particular methodology “plays a critical role” in a student’s educational plan, it must be specified in the student’s IEP.  In addition, if a particular methodology is specified in a student’s IEP, the district must utilize that methodology consistently, but is still free to utilize other methodologies at their discretion.  Districts might also see increased requests for ABA therapy based on this decision’s statement that “ABA is widely recognized as a superior method for teaching children with autism.”

As always, IEP teams should ensure that a student’s IEP is appropriately specific about the placement and services offered, including the nature and amount of mainstreaming services, and that IEP teams discuss and solicit input from parents regarding a student’s need for mainstreaming.  IEP teams should also ensure they consider whether a student requires supports when he or she is transitioning from a private to a public placement in order to receive a FAPE.  These services could include visiting the public placement and meeting the teacher, modifications to the student’s schedule or program to ease transition, and additional communication between home and school.


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