Falmouth School Department v. Doe, 44 F.4th 23, 81 IDELR 151 (1st Cir. Aug. 9, 2022), is of interest on issues of free, appropriate public education and private placement in the context of a student’s severe reading disability. The ruling affirmed district court and hearing officer decisions in favor of the parents of a student who struggled with reading and writing during his entire enrollment in public school. The student began first grade at public school in fall 2016 after attending private preschool and kindergarten, but it was clear his literacy skills were at a pre-K level, and the school convened an IEP team meeting in November, found the student eligible under the IDEA, and devised an IEP in January 2017. His subsequent progress was limited, however, with greatest challenges in orthographic processing and phonological processing.

The student’s January 2018 IEP offered increased specialized instruction, and called for continuing instruction under a program called SPIRE. By June 2018, he was still reading poorly, even though he progressed to the second SPIRE level. He had taken longer to complete the first level than any other student his teacher could recall and could spell only 56 of 100 high-frequency sight words. Despite private tutoring over the summer, there was an observed regression in his reading skills. The public school’s director of special education proposed using Lindamood Bell programming (including the phoneme processing system LiPS) and Seeing Stars. But nobody told the parents of the recommendation, and the September 2018 IEP meeting did not propose any alternative program, though the IEP was amended to include audiobooks. The school at first used Wilson Foundations for the student’s third grade, even though it was not in the IEP, but then switched back to SPIRE. A private evaluation dated December 9, 2018, recommended intensive one-on-one intervention specifically with the Lindamood Bell curriculum of LiPS, followed by Shooting Stars. The parents gave this evaluation to the school in January 2019, before the expiration of the January 2018 IEP. At that time, the student had added only three sight words and was at an early first grade instructional level.

At a January 2019 IEP meeting, the parents asked for the Lindamood Bell program and Shooting Stars. The January 2019 IEP called for increased time in specialized programming and nine hours a week instruction in Shooting Stars with a teacher who had not previously taught the student and was to consult with a trainer certified in Lindamood Bell programming every other week for 50 minutes. At the January 22 meeting, the parents said they would remove the student from the public school every afternoon to receive intensive reading programming at a private school using LiPS and Shooting Stars. The public school rejected the proposal and said the student would receive specialized instruction at public school in the mornings. The parents revoked consent to the IEP services and requested a Section 504 plan. The student stayed at public school in the mornings and went to the private school in the afternoon. He made some progress in third grade but was still reading at a first-grade level. He began fourth grade in fall 2019, continuing to split his days. The parents requested placement full time at the private school, and the IEP team met again in November 2019, with the school proposing increased special education in math and behavior intervention efforts but no Lindamood Bell programming. The parents rejected the IEP and placed the student full time at the private school, Aucocisco. The public school proposed a new IEP in February 2020 that the parents did not challenge. By fall, 2020, the student was practicing reading at a third-grade level.

The hearing officer held that the public school failed to offer the student a FAPE from January 2018 to March 2019 and from September 2019 to February 2020, concluding that by January 2018 it had become clear that the SPIRE program employed by the school was not reasonably calculated to furnish the student a FAPE, and that the IEP offered in September 2019 was not sufficiently ambitious to enable the student to make appropriate progress. The hearing officer ordered compensatory education, including independent evaluation expenses and reimbursement of private school tuition and transportation. The district court agreed and affirmed.

The court of appeals rejected the school district’s argument that the hearing officer and district court mistakenly found that SPIRE did not address orthographic processing. Instead, the decision said that the evidence showed the student was in need of a program like Seeing Stars that is specifically designed to address orthographic processing. Educational agencies may choose among competing methodologies, but in this case the instruction did not meet the student’s individual and unique needs to focus on orthographic processing. The court noted the greater progress the student made when in a private school using an approach focused on orthographic processing. The court also said that the parents’ experts did not have to explicitly testify that IEPs were inadequate, when they testified to facts supporting the conclusion that the IEPs were inadequate.

The court rejected an argument based on the least restrictive environment principle, pointing out the lower court’s conclusion that the parents’ proposal for half-time in mainstream instruction at public school and half at the specialized private school they chose was not much more restrictive than the public school’s approach, and was justified by instructional needs. The court said the remedy of reimbursement for full-time placement at the private school after the parents rejected the district’s IEP should not depend on an LRE comparison, but rather on a determination that the private school offered appropriate education.

The court of appeals stressed that the lower court did not base the conclusion that the January 2018 IEP was deficient on information unavailable at the time it was devised; the post-IEP information simply reinforced the conclusion that it was deficient. The conclusion that the district’s offer of services in January 2019 was too little, too late was supported by the fact that the Lindamood Bell instruction offered was to be conducted by a teacher not certified in the program and who lacked recent experience with the program. By fall of 2019, the district offered additional specialized reading instruction to the student, but did not agree to use Lindamood Bell, and instead changed to multisensory synthetic phonics instruction. Due weight had to be afforded the hearing officer’s determination that the September 2019 IEP was not targeted to the student’s needs.

The court of appeals ruled that the tuition reimbursement order was not improper due to lack of mainstreaming at the private school, when the private school provided special education the student needed and the education enabled him to make progress. As for other issues presented in the case, the court went on to affirm the district court’s dismissal of the parents’ claims against the district for retaliation in violation of Section 504 and the Americans with Disabilities Act as well as their claim against the director of special education for retaliation in violation of the First Amendment.

The Falmouth decision may be of use to hearing officers who are looking for a thoughtful application of the Supreme Court’s decision about appropriately ambitious special education in Endrew F. v. Douglas County School District RE-1, 580 U.S. 386 (2017), in particular, an application of the FAPE principle relating to the context of reading instruction and a dispute over choices of programs. It illustrates the point that sticking with an existing program in the face of limited or no progress is not appropriate education, and that other options need to be pursued when a student does not manifest progress over time with existing services.