The "M" word Resurfaces

IDEA’04 imposes a new requirement that the special education and related services and supplementary aids and services to be provided to the child under an IEP must be based on “peer-reviewed research to the extent practicable.” Section 614 (d)(1)(A)(i)(IV). This change raises a number of questions and potential problems. The new phrase is not defined anywhere in the law. The phrase “peer-reviewed research” may have one meaning in academic communities, but lawyers will argue over what it means in the context of special education. In its analysis of comments to the new federal regulations, OSEP declined to define the phrase “peer-reviewed research.” 71 Fed. Reg. No. 156, at page 46664 (8/14/06). The phrase “to the extent practicable” is an odd choice for statutory language; it is rare for the Congress to impose a requirement, but qualify the requirement with what may be a built in excuse for noncompliance. OSEP also declined to define the phrase “to the extent practicable” although it noted that the phrase generally means that services and supports should be based upon peer-reviewed research to the extent that it is possible given the availability of peer-reviewed research. 71 Fed. Reg. No. 156, at page 46665 (8/14/06).
The United States Supreme Court has had a long-standing admonition to hearing officers and courts that they are not to substitute their notions of preferable educational methodology for those of school personnel. In Board of Educ., etc. v. Rowley 553, IDELR 656, 458 U.S. 175, 207-208 (1982), the Court set forth the “M” word prohibition as follows:

In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States... The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child. .. In the face of such a clear statutory directive, it seems highly unlikely that Congress intended courts to overturn a State's choice of appropriate educational theories in a proceeding conducted pursuant to § 1415(e)(2).30
We previously have cautioned that courts lack the "specialized knowledge and experience" necessary to resolve "persistent and difficult questions of educational policy." (Citation omitted) We think that Congress shared that view when it passed the Act. As already demonstrated, Congress' intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.
Board of Educ., etc. v. Rowley, supra. (emphasis added)

The new statutory language, “peer-reviewed research to the extent practicable,” seems to be an invitation for hearing officers and courts to intrude into the previously forbidden arena of methodology. Parents are likely to argue that the student was denied FAPE because the methodology employed by the school in not based on peer-reviewed research. Some methodologies, like applied behavioral analysis, have a significant body of research. School officials who have chosen to ignore the provision may argue that peer-reviewed research is not practicable. A new cottage industry of expert witnesses in the field of what is not peer-reviewed research is likely to be born. OSEP has stated that a district is not required to provide the methodology with the greatest body of research in order to provide FAPE, and that there is no requirement that an IEP include specific instructional methodologies. 71 Fed. Reg. No. 156, at page 46665 (8/14/06). OSEP has not, however, provided much useful guidance. Hearing officers and courts will begin to rule upon such issues, and there will likely be a large number of cases. Districts and parents will need to become familiar with these rulings.