When a failure to provide peer reviewed special education services turns into a failure to provide a free and appropriate education (FAPE)
By Tyler S St Cyr, M.S, CAGS
A school has a legal duty to provide special education programming that has been peer reviewed, but a school is also free to choose the teaching methodology it uses. This means parents have a right to expect that what the school is proposing is an educational practice that has been studied and evaluated, rather than a hodgepodge of loose ends. It also means that educators have some leeway, in terms of choosing how they will service specific learning needs. But where exactly is this dividing line between a school’s choice of educational methodology and the parent’s right to expect special education services that have been supported by research?
The Individuals with Disabilities Education Act (IDEA) requires “a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable”. 20 USC 1414 (d)(1)(A)(i)(IV). As the underlined text indicates, exceptions always exist. One exception is when a school is trying to service a learning problem where there is limited methodological data. An example is when a school is trying to service just one aspect of a really unique learning need, such as an executive functioning weakness in a hearing-impaired student. While oodles of pedagogical research exist regarding each of those areas independently, it is unlikely that much peer reviewed programming exists specifically for special education interventions oriented toward hearing impaired students with cognitive weaknesses in executive functioning. Of course, the uniqueness of a learning problem does not absolve the district from providing effective services. The district is still bound to implement an IEP that is “reasonably calculated to afford meaningful progress” as set out in Bd. of Educ. v. Rowley, 458 U.S. 176 (1982), but a school’s methodology not being peer reviewed is not, in itself a FAPE deprivation. A school may be relieved of this requirement if it uses an unresearched method that has credence in professional circles and is carried out by qualified specialists. The United States Court of Appeals for the Ninth Circuit held that even though the autism program that the Rocklin School District was proposing was not peer reviewed; it did not deprive the student of FAPE because the methodology had been recognized as a “best practice” in the field of autism. Joshua A. v. Rocklin Unified School District, 559 F.3d 1036 (9th Cir. 2009).
A fair question is whether a school has failed to provide FAPE if its services are not peer reviewed. The answer is sometimes: If a student is not making IEP progress or the IEP does not address all areas of need, the parent may have a strong claim that the school deprived the student of FAPE. If the student is making progress, the IEP services are robust and are provided by qualified specialists, it is unlikely that a hearing officer or court would find a FAPE violation. As discussed in EdLaw Soup’s past article, The Anatomy of a Special Education Due Process Claim, a FAPE violation must have both procedural and substantive deprivations. Most courts view IDEA’s peer review requirement, as a procedural violation. This means that a parent would need to show that the school’s failure to implement peer reviewed special education programming, at least in part, caused some educational harm.
If you find yourself disagreeing with your child’s special education programming ask yourself:
1. Has the school’s methodology been peer reviewed?
a. If so, take some time and research whether it was designed specifically for kids with the same learning problems as your child. A good starting point is the What Works Clearinghouse. This is a web site run by the United States Department of Education that catalogues thousands of educational programs used by schools.
i. If the services have been peer reviewed it is important to determine how well the school is implementing it, from day to day.
b. If it has not, do more research to determine whether there are other programs/practices that have been peer reviewed for students with similar needs.
2. If the program has been peer reviewed, does it provide the level of intensity that matches your child’s needs?
a. Sometimes school districts will offer IEP services that are well founded in research, but are ineffective because they are mismatched to the student's needs. Just like wearing a rain jacket during a snowstorm. They are both designed to keep you dry, but only one is meant to keep you warm and dry.
3. Are you satisfied with your student’s IEP progress?
a. Remember, under the Supreme Court’s Rowley decision, the child isn’t guaranteed a program that will help her/him make maximum progress, but the progress does need to be more than trivial.
4. If the student is making progress even though the program has not been peer reviewed, it is likely that the school has a decent argument that FAPE is being provided and that its methodology is the result of untested but professionally accepted best practices.
a. CAUTION! The concept of special education progress is very subjective. Just because a student is receiving passing grades does not necessarily mean s/he is making progress.
5. If the student is not making progress, and the school is not using an educational methodology that has been peer reviewed, it is quite possible that the school is not providing FAPE and may be violating IDEA.