On the Call: Bespoke Education/Methodologies

Parents want the best. The law wants appropriate. In this episode, Jeremy and Erin explore how those aren’t always the same thing and why giving in to a preferred methodology can sometimes create more problems than it solves. From music therapy to methodology myths, they break down what IDEA really requires (and what it doesn’t).  

Looking for more on this topic? Check out this earlier episode: Season 3, Episode 13 Methodology.

Jeremy and Erin are coming to you straight from the LRP National Institute in New Orleans to say thanks for listening, sharing, and cheering us on! On the Call has now topped 15,000 downloads. If you’re here at the conference, please be sure to say hello to Jeremy, Erin, and Pam!

Transcript

SPEAKER_02 0:41

And it's written this is Jeremy.

SPEAKER_00 0:44

Hi, Jeremy. I'm calling because we just had an IET meeting where the parents were very clear that they want a specific therapy included. They believe that it's crucial for their child to make progress. But our team thinks the needs that can be addressed to the services we're already offering. They're saying that if we don't include this exact service, we're denying faith.

SPEAKER_02 1:06

Okay. Well, that's a situation we see a lot. Tell me more about what you offered and how those discussions went with the parents.

SPEAKER_00 1:14

The parents want a music therapy program that they did over the summer. They think it's it helps them with some communic communication challenges. We offer a full package of related services aligned to the students' needs, and we think that speech the speech pathologist services are appropriate to address the communication challenges that we all agree are there. What should we do?

SPEAKER_02 1:42

Welcome to season four of On the Call, Ennis Britain's Special Education Law Podcast. I'm Jeremy Neff.

SPEAKER_01 1:48

And I'm Aaron Wessendorf Wortman. Let's explore today's call.

SPEAKER_02 1:55

So, Aaron, what would your music therapy soundtrack be?

SPEAKER_01 2:00

You don't even want to know. Like all the good ones.

SPEAKER_02 2:16

You skipped over ska probably.

SPEAKER_01 2:18

Yeah, I didn't do ska. I wasn't, I wasn't into that. And and insert a little bit of, not a little bit, a good bit of musical genre into that as well. So we go from, I don't know, like usher, usher, to some good fan of the opera to, I mean, just some good quality. That's my music therapy. I feel through music, to be fair. Like if my kids want me to feel, they know to put music on. Otherwise, I don't feelings.

SPEAKER_02 2:44

Back in the olden days, um, in my classroom, because as a social studies teacher, of course, that meant I coached. So I was always there after school. And uh kids would walk in. So I couldn't like play, you know, a part of the 90s music that you left out there, gangster app uh that had to be reserved for home. But I would uh have a mix of like if I was feeling good about the world, Beatles White album.

SPEAKER_01 3:06

All right.

SPEAKER_02 3:06

If I needed energized a bit, it would be uh Metallica did a great album with the San Francisco Symphony Orchestra.

SPEAKER_01 3:13

It's Craig's favorite.

SPEAKER_02 3:14

Okay, Symphony of Metallica, really good. Um, and then if I was just kind of a little bit angry, it would be uh flogging Molly.

SPEAKER_01 3:22

Oh yeah. So sorry for Molly.

SPEAKER_02 3:27

So there we go. Now, of course, we know music therapy is more than that, and there's some really cool stuff that can be done with music. So this is you know, before we get the hate mail, we're not saying that that it's not a thing or that there's not value. No. What we're exploring is Is it fape?

SPEAKER_01 3:41

Yeah. That's really I mean, is it fape? And it depends on the child. There we go. Turn it off, go.

SPEAKER_02 3:49

We're done again.

SPEAKER_01 3:50

You just you know uh this is the uh this is the part of the season where I'm just on it. It's fine. Anywho.

SPEAKER_02 3:58

Well, so is it fape? Really then comes down to um, of course, we know what fape is, the free part, and often that's where there's a little bit, but then the appropriate fight.

SPEAKER_01 4:08

Yeah.

SPEAKER_02 4:09

And so, you know, that's that's a standard we're all living under, and we know we've had um some case laws sorting it out. Of course, more recently, Andrew F. Um, but even before that.

SPEAKER_01 4:19

But how more recently is that? That's almost a decade now, Nav.

SPEAKER_02 4:22

I know.

SPEAKER_01 4:22

It's really scary. Like, well, that case just came out 2017. Yeah. What?

SPEAKER_02 4:27

Well, a lot more recent than you know, going back to the 80s for rally, which courts still do.

SPEAKER_01 4:31

They do, because it still stands even after Andrew F. But really, when we're looking at FAPE, we're talking about it's free meeting state standards and is delivered in conformity with the IEP. Right?

SPEAKER_02 4:43

I mean, that's and it's aimed at, it's achieving, it's reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.

SPEAKER_01 4:53

Not to maximize potential, not to be whatever grandma, mom, dad, aunt, uncle, guardian say, this is what we think is appropriate.

SPEAKER_02 5:03

Yeah. And potentially, depending on the child's disability, often it's not closing a gap either, which I know is a really hard thing to say, but we hear it so often in meetings. Well, we need to close the gap. Sometimes the gap isn't closing, sometimes it is inherently growing. It's just a matter of, well, what's this kid need? What are their circumstances?

SPEAKER_01 5:22

It's based on their disability. It's not saying for all, right? But it is progress, right? That's what we're designed to provide with vape. Is progress appropriate for that child? So, what I loved also, if you we recall about Andrew F. Now I know we didn't have a podcast during the Andrew F time.

SPEAKER_02 5:37

We did uh a webinar, you and I, I think with Pam, our colleague Pam Leist, I think.

SPEAKER_01 5:41

And I think that's when we really discovered how much we enjoyed talking to each other in a random room through microphones.

SPEAKER_02 5:46

Yeah, it was a lot of fun.

SPEAKER_01 5:48

But with that, what I love so much about that case was that the court very clearly said we defer to the IEP team's judgment. We are not in the schools, we are not educators, we will defer to judgment. And I love that aspect from them in what they were pursuing for that case and that child, but also setting the standard then for the rest of us.

SPEAKER_02 6:14

Yes. Yeah, absolutely. So so here we are, we're dealing with this notion of kind of the reasonableness, looking at the individualization, what's this child require? And sometimes the question turns on um whether uh a specific methodology is required. And we know that generally speaking, unless there really is good evidence that there's one way to meet this child's needs, that a specific um methodology is not required. So those decisions about methodology really are are left to the IEP team, which can be hard for parents sometimes, like the call we got, right? Uh you're a parent, you love your child, and in in so many ways, nobody knows your child better. But you know, kind of harkening back to what you were saying with the Supreme Court in the NTRF case, educators are professional educators. They have a pretty good idea also about you know how to address a particular need.

SPEAKER_01 7:07

It just sometimes also becomes complicated because while educators they're very well trained, they have a big loving heart and they know their stuff, they're also very averse to conflict. And so having the fight with a family over a preferred methodology can sometimes be difficult as well because we may know what we think is appropriate versus what is not or why something would be inappropriate. And ensuring that we are helping to communicate that effectively is also key to this. It's not just a no because I said so.

SPEAKER_02 7:40

Right. Right. And I I think in this, I'm gonna veer slightly into practical tips before we switch over to the case here. There is also um a public educator is paid kind of regardless, right? You know, it's it's not as though you're not relying on well, at least not yet. We're not relying on the customer. If we want to think of parents that way, you know, are they coming back? Um if I'm running a private school or a private therapy or something like that, there might there's slightly different motives, and I am not impugning the character of all these folks. I'm just saying that there is a um different motivation. Yeah, there's a just a greater need to ensure that a customer comes back, which can then create weird circumstances. Again, hearkening back to the call. Hey, we did this thing in you know, this private setting, maybe over the summer or whatever. Um, and they told us it was great. Well, yeah, yeah.

SPEAKER_01 8:35

Yeah, they want you to keep coming back.

SPEAKER_02 8:36

Uh-huh. Uh-huh. So there there can be some challenges there. And again, definitely not saying private providers are terrible people. I'm just saying that, you know, that that is a factor that can weigh in on this too. So I don't know. Maybe with that we switch over to the case. I think so. All right. So we've got one case here that really explores this idea of methodology selection, and it's a fresh one. Yep. Uh, we're always trying to do that here. So this is March of 2026. We've got a case out of New York, and this was appealed. It was initially a due process uh complaint, went to the state level review, and then got appealed up to the district court. And uh ultimately the question was uh among others, did the district deny FAPE by declining to include a specific related service? Here it was music therapy that was requested by the parent, and um, you know, kind of the corollary to that, whether parental preferences for services um in a private uh placement create some sort of obligation under idea. Now there was other stuff. They would have to be.

SPEAKER_01 9:33

There was a lot of other stuff. You were having fun with that word too. Well, I'm reading it. You didn't tell me at the start to just start on a certain page. I so I read all the fight where the court is commenting about how parent and parents counsel are boo-hooing that the hearing officer and the SLRO and that they didn't give them a fair shake and they were biased. And so the court was having to establish what it means to really be biased for an IHO or a state level review officer, and they were not buying the argument. They're like, no, you got your opportunity, stop whining. Nobody agreed with you. That's pretty much, I mean, uh, six pages of this condensed into one sentence, right? Stop whining. Right? Just stop whining and be done.

SPEAKER_02 10:11

Yeah, and then there were other issues too, right? And and uh one of them is worth mentioning just because it emphasizes something that that we mentioned frequently. This uh we have a national, international audience. Um states can impose additional requirements as long as they don't scale back ideas. So there was a dispute that related to um class sizes, and part of that dispute turned on some state of New York laws about class sizes. Uh there was also a dispute about um transportation and medical equipment during trans. So we're not gonna address any of that. We're zeroing in on music therapy. Trevor Burrus, Jr.

SPEAKER_01 10:44

But yes, and I also saw the fight. If we do a quick description of this kiddo, right? Can I do that real quick? Is that around is that allowed? Yeah. Um we're talking about a 10-year-old who was starting the 23-24 school year. Um, diagnoses of cerebral palsy, localized related focal epilepsy, complex partial seizures, hypotonia, microcephaly, chronic lung disease, hearing and visual impairments that included myopia, optopic atrophy. Sorry, that took me a quick second just to get my brain wrapped around the English part, chronic conjunctivitis of both eyes and retinopathy of prematurity bilateral. I don't know what that part is.

SPEAKER_02 11:21

Oh, and the the child was also nonverbal and non-ambulatory.

SPEAKER_01 11:24

Used a wheelchair. Yeah. But there's so there's a lot going on. But the kid was at a school, a particular school, and it sounds like when another IEP was proposed, which is why I think the class size piece came into in in some New York guidelines, but also from the perspective of a broader audience, there was what, a six to one to one class size, six students, one teacher, one paraprofessional, right? And then in the following IEP, the school proposed a 12 to 1 to 1. And so it sounded like the school was proposing a different school or the district, right? The school system was proposing a different school for the kid because the six to one to one school system also had music therapy ingrained within its programming.

SPEAKER_02 12:10

Well, is that but is that our International Academy of the Brain private school?

SPEAKER_01 12:14

Eye brain.

SPEAKER_02 12:14

Yeah, eyeBrain.

SPEAKER_01 12:15

Um it's like a really awful English though. Eye brain.

SPEAKER_02 12:19

It sounds like something I'd see on the shelf at TJ Maxx at the back. You know, it'd be like, you know, you can dissect it or something. Oh, cool.

SPEAKER_01 12:25

Good idea. I like this.

SPEAKER_02 12:27

It might already be like copyrighted in terms of minor details.

SPEAKER_01 12:31

But the kid had a lot of pieces within his IEP, right? And so lots of services.

SPEAKER_02 12:38

Lots of needs.

SPEAKER_01 12:38

But was at a school where those needs were serviced, where the school happened to envelop within those needs. Music therapy.

SPEAKER_02 12:46

Correct. Parents liked it. They felt like it was successful, it met their child's needs. And the IEP developed by the district and proposed said, hey, we recognize all these needs, and here's how we want to serve them. Just music therapy wasn't one of those things. Well, when you look at the um related service providers, the list lines up, you know, nurses and speech pads and OTs, all that stuff. So everything lined up except for music therapy. And it sounds like the school, and sometimes it can be hard to tell how much is accomplished in testimony and how much was well documented before. It sounds like this was a blend where they did a good job explaining here's the need, here's how services is meeting that need. And they took, you know, when the parent identified, well, music therapy does, you know, checks all these boxes, you know, one through ten, schools are able to say, Oh, we check those two. Um, one through ten. Here are the ways we do it. It just happens to not be music therapy. And and that was among other things. You wonder though, if that really was the thing.

SPEAKER_01 13:46

I don't know. I mean, it could have been, it could have just been where they hang their hat, hung their hat, whatever. But I thought what was really interesting is when they had the was it the school psych who was on the stand, because the parents are alleging, based on the school psych's testimony, that this school, the school system, never gives music therapy. They were predetermining. Her testimony said she never. And the court went on and on, and we're like, wait a minute, there is nothing that says that this was a district-wide policy. What the oh, you can hear my paper flipping. I'm sorry, Jeremy's gonna get so mad at me here. Um, but it was just that look, she said I had never recommended it. I don't know what my peers do, but I had never recommended it because there are other ways of serving the kid. And it was wonderful in how she did it. So well done to that school psych and probably also give some credit counsel who probably trained her very specifically.

SPEAKER_02 14:42

Well, probably, but I mean, also probably they they cringed a little bit when I think that one of the direct quotes where she said something to the effect of, I would not typically recommend that. Like, oh, I don't want to say typical. That that sounds a little predetermined-ish. And the court's like, oh no, that doesn't mean that at all. You just have to have an open mind.

SPEAKER_01 15:00

Loved the whole what half a page or so that the court went on about being not predetermining. Open mind. You're allowed to come in with pre-formed thoughts so long as you're able to make certain, take certain suggestions from parents, take certain changes. They didn't even document what those changes were, right? In an IEP meeting. Most of the time, you and I read cases like this, and the court will go out of their way, or the IHO will, to say, look, they had an open mind, see what the other changes are that the school did. They didn't do that here.

SPEAKER_02 15:31

Well, I wonder if uh the court also noted that this concern about predetermination wasn't raised properly below. Yeah. So maybe it was sort of like, hey, we're just gonna make sure it's really clear, we're not worried about this in case this is appealed further. Uh, but we don't even think we should have to talk about this. So I wonder if that factors in.

SPEAKER_01 15:48

Maybe. And I did love their other quote. Sorry, my last one, and then I'll be over it. A professional disagreement is not an IDEA violation. I mean, to the point of we avoid conflict as educators, right? It isn't to pick your, it is to pick your battles. It isn't to have every battle. But if there's a battle that needs to be had, that professional disagreement is okay. We can live in not being happy with one another at an IEP table so long as we are still meeting a kid's needs appropriately in light of their circumstances.

SPEAKER_02 16:20

Yeah. Yeah. Well, so the dispute here then goes back to the family, then said, Well, we reject this. We're giving you 10-day notice, we're unilaterally placing our kid back in IBrain and making sure we get this music therapy. Um, the court looked at it again, putting aside some of the issues that we're not discussing today. The court said, and this is quoting the court, the key question is whether the IEP was reasonably calculated to enable the child to receive educational benefits, not whether it provided every special service necessary to maximize each handicapped child's potential. And in saying that, the court was hearkening back to Rally.

SPEAKER_01 16:56

Yeah.

SPEAKER_02 16:57

Uh, which was interesting to me, um, because uh this is um very much not a Rally kid. Like Rally really stands for you're just progressing through the normal curriculum. But I think the court really liked the way that was described by the Supreme Court there. The court also um, you know, pointed out that um you know, when you're looking at whether an IEP is adequate, you don't need to replicate uh a private special education program. Instead, what you need to do is make sure you're addressing the identified needs, which again, you know, spoiler alert, the court said definitely was done here through just other services. So uh end result, uh again, quoting the court, the idea guarantees each student an appropriate education, but not everything that might be thought desirable by loving parents. Another really good quote. And I and I like it not just because that's legally true, but because it frames things correctly. Because, you know, most of the time when there's one of these disputes, it's not that the parents want to be a pain in the neck. They love their kid, they see something that seems right, that maybe it does light up their kid, and they're like, and I want this thing. Yep. Um, so I I like the idea of of you know really assuming positive and and and appropriate intentions on the part of the parent, but to your point, yeah, not being afraid to have a fight.

SPEAKER_01 18:13

Correct.

SPEAKER_02 18:14

Yeah.

SPEAKER_01 18:14

I liked it. It's I think it was a nod from the court after they spent so many pages maybe going after the parent and the parents' counsel about being whiners. I I do think it was nice to reframe, like, let's get out the the the junk out of the way and let's really focus on what is appropriate here and acknowledging that m vast majority of the cases, I mean truly vast majority, are about loving parents who want what's best for their kid. IDEA is not about what's best.

SPEAKER_02 18:39

Correct. Yeah.

SPEAKER_01 18:41

So let's go practical pointers now, right?

SPEAKER_02 18:43

All right. So what did we learn from this case? I mean, number one for me, um, anchoring the services that we describe in an IEP to the needs of the child, not to any particular like uh designer label or program name and not to parent requests. So we always have to come back to that evaluation. What do we know this child's needs are? How are we addressing those needs? And being really explicit.

SPEAKER_01 19:06

Well, and I think also with that, just because you're at a place, uh a certain placement with a kiddo via their IEP doesn't mean you're quote unquote stuck there forever. So just because you have those extras, you are able to extract yourself from that so long as you're going back to your point that you just made, that we are tying it based on needs. Those extras were an extra of that school. The musical therapy. I mean, heck, you and I get requests for equine therapies, right? All of those people are.

SPEAKER_02 19:36

Say its name, hypotherapy. I just love the name.

SPEAKER_01 19:40

But it's I can't hypotherapy reminds me of a hippo, not you just want to go visit uh Fritz and Fiona. Yes, I do uh in any event. But I think it is you can extract yourself. And the extras are just that, they're not designed to be fake from a school perspective. And there is a process in doing that, so long as staff can also feel comfortable enough in stepping into uncomfortability, to professional disagreement, and knowing that is an acceptable place to be and having an IEP meeting.

SPEAKER_02 20:13

Yeah. And and I think along those lines, um, kind of tying all this together is is um the way we frame things, the terminology that we use from the get-go, not just in a moment of uh challenge, uh, but all along having our people understand we do need to be careful not to use the B word best. Uh we do use the best. Different B word, sorry, different B word I was thinking of.

SPEAKER_01 20:36

Also, don't use that other book.

SPEAKER_02 20:37

Don't use that one either. Um, you know, be careful not to talk about maximizing and things like that. And really, I know it feels weird, but be careful. Generally, we shouldn't be talking about closing the gap. We really need to always come back with real discipline to talk of it in terms of appropriateness and always tying that appropriateness to the individual child, not to a generic child, not to a child that we would all love to be working with. But this kid, these needs that we've all identified, um, you know, keeping it focused that way is going to help these discussions. Um, the sooner we we kind of make that part of our culture, the easier it is to move these discussions in the right direction. Because what we're doing is we're agreeing then. Yeah. Instead of fighting about best versus something that's not quite best, because guess what? You're dealing with a parent. They always want what's best. Of course. A loving parent wants that. Instead of that, you're saying, oh, you know, we all recognize that, you know, uh going back to the collar, there's a communication need here. Yeah. And we want to make sure we're addressing that. And then, you know, something that you've shared with us parents is this music therapy. We've talked as a team about uh that we agree with those needs, and here are some other ways that we see addressing that. So we're agreeing, we're starting from that place of agreement and then talking about services.

SPEAKER_01 21:54

But then also not being afraid if we're gonna go beyond that, if we're not seeing progress for how we have proposed to meet those needs, we better be prepared to look at other options for how to meet those student that student's needs based on the lack of progress. So it might mean we might need to put music therapy back on that table in the future if the way that we propose to meet the communication needs via speech services or whomever else is not getting done what we want to get done with a student.

SPEAKER_02 22:24

Perfect. Could couldn't end it better. So so maybe we should just end it. Uh so let's let's go back to the collar then. Uh the key takeaway is that parental preference, standing on its own, doesn't Drive the IEP. The team as a whole is obligated to come up with a program, and the school district ultimately is required to offer a program that's reasonably calculated for appropriate progress in light of that child's unique needs. So it doesn't need to mirror a private program, a summer program that was really cool and fun, or adopt any specific methodology except in highly unusual circumstances they exist where that's the only way to offer faith. Otherwise, though, we just need to clearly document the thinking of the team that links those services that are being offered to the needs of that individual child and explains the reasoning.

SPEAKER_01 23:15

When you do that well, you're not just defending decisions, you're showing thoughtful, individualized planning that idea actually does require.com.

SPEAKER_02 23:59

A quick note this podcast is intended to be used for general information only and is not legal advice. If you have a specific question, please consult an attorney.

SPEAKER_01 24:09

We are looking forward to being on the call with you again soon.