Ms. M. v. Falmouth School Department

United States Court of Appeals
For the First Circuit

No. 16-1877

MS. M., individually and as parent and
legal guardian of O.M., a minor,

Plaintiff, Appellee,

v.

FALMOUTH SCHOOL DEPARTMENT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Stahl, and Barron,
Circuit Judges.

Eric R. Herlan, with whom Michael Buescher and Drummond
Woodsum & MacMahon were on brief, for appellants.
Richard L. O'Meara, with whom Rachel W. Sears and Murray,
Plumb & Murray were on brief, for appellees.

January 27, 2017
 STAHL, Circuit Judge. This case concerns a claim that

the Falmouth School Department ("Falmouth" or "School Department")

did not provide one of its students, O.M., with a "free appropriate

public education" ("FAPE") as guaranteed under the Individuals

with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.

The complaint centers on O.M.'s individualized education program

("IEP"), which constitutes the "primary vehicle" for a school's

delivery of a FAPE under the IDEA. Lessard v. Wilton Lyndeborough

Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008). O.M.'s mother,

Ms. M., asserts that her daughter's IEP specified that Falmouth

would instruct O.M. using the Specialized Program Individualizing

Reading Excellence ("SPIRE") system during her third-grade year.1

She insists that this system constituted a key provision of O.M.'s

IEP and, because Falmouth did not provide O.M. with SPIRE

instruction, the School Department therefore violated her

daughter's right to a FAPE. Falmouth, for its part, counters that

O.M.'s IEP does not mention SPIRE and that any references to it

were relegated to ancillary documents which should not be read

into the IEP or made a part of the IEP.

After an administrative hearing and a magistrate judge's

review of that hearing, the district court agreed with Ms. M. and

1SPIRE is a teacher directed, systematic, multisensory,
synthetic phonics literacy instructional program developed by
Orton-Gillingham.

- 2 -
entered judgment in her favor. However, after careful review we

reach a contrary conclusion and find that O.M.'s IEP did not

mandate that Falmouth use SPIRE, meaning the School Department

neither breached the IEP's terms nor denied O.M. a FAPE by

foregoing such instruction. Accordingly, we reverse.

I. Facts & Background

O.M., a now twelve-year-old girl diagnosed with Down

syndrome and Attention Deficit Hyperactivity Disorder, lives with

her mother, Ms. M., in Falmouth, Maine. She began attending

Falmouth Elementary School as a first grader in 2011 where, as a

student with multiple intellectual disabilities, she was eligible

for a FAPE, i.e., special education and related services structured

in compliance with the IDEA that are provided free of charge.2 Ms.

M. now challenges Falmouth's delivery of these services during

O.M.'s third-grade year (2013-2014).3

2 See 20 U.S.C. § 1401(9) (defining the term "free appropriate
education"); 20 U.S.C. § 1412(a)(1)(A) (stating that "[a] free
appropriate public education is available to all children with
disabilities residing in [a] State between the ages of 3 and 21,
inclusive"); 34 C.F.R. § 300.8(a)(1) (defining "[c]hild with a
disability" as including a child with "multiple disabilities" and
"who, by reason thereof, needs special education and related
services"); 34 C.F.R. § 300.8(c)(7) (defining "multiple
disabilities" as "concomitant impairments . . . the combination of
which causes such severe educational needs that they cannot be
accommodated in special education programs solely for one of the
impairments").
3 A state receiving federal funding under the IDEA must offer
a FAPE to every disabled child within its jurisdiction. See 20
U.S.C. § 1412(a). Here, it is uncontested that Maine is such a

- 3 -
 A. Statutory Framework

To provide an IDEA-eligible child with a FAPE, a school

district must first create an IEP for the child and then follow

its dictates. See D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d

26, 34 (1st Cir. 2012). The IEP is a "written statement for each

child with a disability that is developed, reviewed, and revised"

in accordance with the IDEA. 20 U.S.C. § 1414(d)(1)(A)(i). IEPs

are subject to both substantive and procedural requirements, which

"can flow from either federal or state law (at least to the extent

that the latter is not incompatible with the former)." Lessard,

518 F.3d at 23.

For example, on the substantive front, an IEP must be

"individually designed" to suit the needs of a particular child,

Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458

U.S. 176, 201 (1982), and must include, "at a bare minimum, the

child's present level of educational attainment, the short- and

long-term goals for his or her education, objective criteria with

which to measure progress toward those goals, and the specific

services to be offered," Lessard, 518 F.3d at 23 (citing 20 U.S.C.

§ 1414(d)(1)(A), and Lenn v. Portland Sch. Comm., 998 F.2d 1083,

1086 (1st Cir. 1993)). On the procedural front, the IDEA gives,

among other things, parents of qualifying children a right to be

state and that O.M. was entitled to a FAPE during her third-grade
year at Falmouth Elementary School.

- 4 -
a part of the IEP "team," or the group of individuals charged with

formulating a child's particular IEP. 20 U.S.C. § 1414(d)(1)(B).

Other members of the IEP team can include the child's regular

special education teachers, a local education agency

representative, other individuals with relevant experience, and,

if appropriate, the child him or herself. Id.

Another procedural requirement, the so-called "Written

Prior Notice" provision, lies at the heart of this case. That

provision directs local educational agencies to issue a Written

Prior Notice to the parents of an IDEA-eligible child whenever

they "propose[]" or "refuse[]" to initiate or change how they

deliver that child's FAPE, including when they change that child's

IEP. 20 U.S.C. § 1415(b)(3). As relevant here, these notices

must include "a description of the action proposed or refused by

the agency" and "an explanation of why the agency proposes or

refuses to take the action." Id. § 1415(c)(1).

B. Origins of the Current Dispute

O.M. began her third-grade year at Falmouth Elementary

School in September 2013. At that time, O.M.'s IEP team set about

designing a new IEP that would take effect after her then-current

IEP expired in October 2013. Ms. M., who had often expressed to

Falmouth her concerns with O.M.'s literacy instruction at the

school, initially requested that the IEP team hold a meeting to

discuss her daughter's reading development in depth. Falmouth

- 5 -
hosted the meeting on October 3, 2013, after which it issued a

Written Prior Notice to Ms. M. indicating that the School

Department proposed "the introduction of a structured reading

program to [O.M.]'s IEP." Ms. M. nonetheless reiterated her

dissatisfaction with O.M.'s literacy instruction in later emails,

demanding to know whether her current reading programs were based

on scientific research, if her teachers held the requisite

instructional qualifications in those programs, and how Falmouth

proposed to measure her progress in them. See 20 U.S.C. §

1414(d)(1)(A)(iv) (noting that IEP services must be based on, to

the extent practicable, "peer-reviewed research"); 34 C.F.R. §

300.320(a)(4) (stating the same).

The IEP team met again on October 31, 2013, at which

time Falmouth proposed that O.M. be taught using a specific

structured reading program called SPIRE. In the Written Prior

Notice generated after that meeting and sent to Ms. M. on November

5, 2013, Falmouth similarly stated that it "proposed" (emphasis

ours) to provide O.M. with sixty minutes of daily SPIRE

instruction. That same day, however, Falmouth received a copy of

a special education due process hearing request filed by Ms. M.

with the Maine Department of Education. 20 U.S.C. § 1415(b)(6)

(giving child's parents a right to bring a complaint to the state's

educational agency regarding any matter relating to the child's

IEP or a school's provision of a FAPE). The hearing request

- 6 -
maintained, in part, that O.M.'s current reading program was

inappropriate under the IDEA. Ms. M. also wrote a letter, dated

November 14, 2013, to Falmouth Special Education co-directors

Polly Cowell and Gene Kucinkas identifying "several errors" in the

November 5th Written Prior Notice and stating that she had "learned

that the SPIRE program [was] not an evidenced based program, which

ma[de] it inappropriate since it [was] not researched based." To

emphasize the point, she also noted that she was "NOT in agreement

with the proposal to use [SPIRE] for [O.M.]."

In response, Mr. Kucinkas proposed that Falmouth would

retain Dr. Christopher Kaufman, a psychologist, to evaluate O.M.'s

cognitive and academic abilities and offer suggestions for the IEP

team to consider. Two days later, Falmouth sent O.M.'s new IEP,

developed after the October 31 meeting, to Ms. M.4 The IEP did

not identify or discuss the SPIRE system, and instead stated that

Falmouth would provide O.M. with eight hours and forty-five minutes

of "Specially Designed Instruction" in "Literacy & Math" per week.

Mr. Kucinkas and Ms. M. eventually met in person on

December 13, 2013, when they agreed that Falmouth would provide

O.M. with certain educational and evaluative services. Along with

several other promises not relevant here, Falmouth agreed to have

4 The document notes that Falmouth sent the IEP to Ms. M. on
November 20, 2013, but also states that its effective start date
was November 4, 2013.

- 7 -
Drs. Kaufman and Gretchen Jefferson fully evaluate O.M.'s

educational program. Mr. Kucinkas memorialized this agreement in

a letter dated that same day. The letter, however, did not mention

the SPIRE system. Apparently satisfied that her demands had been

met, Ms. M. then voluntarily dismissed her hearing request with

prejudice on December 17, 2013.5

Despite her previous reservations and communications

with Mr. Kucinkas, Ms. M. apparently, and mistakenly, assumed that

Falmouth was providing her daughter with SPIRE instruction.

Falmouth, however, had abandoned its consideration of SPIRE after

receiving Ms. M.'s November 14th letter objecting to its use. Ms.

M. testified that she did not realize that Falmouth had made this

decision until March 28, 2014, when O.M.'s IEP team met to discuss

the results of Dr. Kaufman's and Dr. Jefferson's evaluations on

March 28, 2014.

On April 17, 2014, Ms. M. told Falmouth that O.M. would

start attending private tutoring sessions with an instructor

trained in another structured reading system called the Lindamood

Phoneme Sequencing ("LiPS") program, a step taken in accordance

with Dr. Kaufman's evaluation.6 On May 1, 2014, Falmouth

5
The magistrate judge and district judge agreed that Ms. M.
waived all her claims under the IDEA which arose between September
1, 2013 and December 17, 2013. Ms. M. does not dispute these
determinations on appeal.
6
Dr. Kaufman nonetheless observed in his evaluation that
"nothing done by [O.M.'s literacy instructor] . . . would be either

- 8 -
reconvened the IEP team to again discuss O.M.'s reading issues.

At the meeting, Falmouth declined Ms. M.'s request that it provide

O.M. with LiPS instruction and again agreed to provide O.M. with

SPIRE instruction, but not until the start of her fourth grade

year in September 2014.

C. Procedural History

Ms. M. filed another due process hearing request on June

13, 2014 in which, among many other concerns and contentions, she

chastised Falmouth for not providing her daughter with SPIRE

instruction. Falmouth's failures, she continued, amounted to an

IDEA violation because Falmouth had denied O.M. a FAPE.

The administrative officer who first heard Ms. M.'s

complaints assumed that the contents of the October 31st Written

Prior Notice were part of O.M.'s IEP, determined that the IEP

called for SPIRE instruction, and that Falmouth had thus violated

the IEP by not providing her with such instruction. He also

determined, however, that this failure constituted a procedural

violation that had not harmed O.M. in any educational sense.

Consequently, the officer denied Ms. M.'s claim and ruled that

Falmouth had provided O.M. with a FAPE. A magistrate judge, after

Ms. M.'s submission of the case for review in federal court, issued

inappropriate or significantly inconsistent with the types of
reading practice that's done for students who have reading
disorders, regardless of the nature of their disability
condition."

- 9 -
a report and recommended decision that essentially upheld this

ruling.

Following Ms. M.'s objection to the magistrate judge's

report and recommendation, the case proceeded to the district

court. Notably, Falmouth did not file an objection to any part of

the magistrate judge's report, including its conclusion that SPIRE

formed a part of O.M.'s IEP. After its de novo review of the case,

the court entered an order agreeing with the hearing officer's and

magistrate judge's findings that Falmouth's SPIRE proposal should

be read into O.M.'s IEP, noting that Ms. M.'s objection to

providing SPIRE did not justify its failure to provide it as part

of the IEP. The court disagreed, however, with their ultimate

determinations that this failure constituted a procedural, and not

a substantive, violation of her IEP and the IDEA. The court went

on to conclude that the violation was material in nature and

entered judgment for Ms. M. totaling $4,111.25, reflecting the

cost of the LiPS tutoring sessions from May 5, 2014 to August 30,

2014.

II. Discussion

Falmouth's principal argument on appeal is that the

SPIRE reading system was never a part of O.M.'s IEP because the

IEP team only mentioned its use in the Written Prior Notice

generated after the October 31st meeting, a document which

proposed, but did not promise, that the School Department would

- 10 -
provide specific educational programs to O.M. We agree, and

therefore conclude that Falmouth complied with the terms of O.M.'s

IEP and committed no IDEA violation.

A. Waiver under the Federal Magistrates Act

To start, Ms. M. argues that Falmouth waived its argument

that O.M.'s IEP did not call for SPIRE instruction after it did

not object to the magistrate judge's recommended finding to the

contrary. The relevant section of the Federal Magistrates Act

states that:

Within fourteen days after being served with a copy
[of the proposed findings and recommendations of
the United States Magistrate Judge], any party may
serve and file written objections to such proposed
findings and recommendations as provided by rules
of court. A judge of the court shall make a de
novo determination of those portions of the report
or specified proposed findings or recommendations
to which objection is made. A judge of the court
may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate.

28 U.S.C. § 636(b)(1). "Absent objection . . . [a] district court

has a right to assume that [the affected party] agree[s] to the

magistrate's recommendation." Templeman v. Chris Craft Corp., 770

F.2d 245, 247 (1st Cir. 1985), cert. denied, 474 U.S. 1021 (1985).

To that effect, "only those issues fairly raised by the objections

to the magistrate's report are subject to review in the district

court and those not preserved by such objection are precluded on

- 11 -
appeal." Keating v. Sec'y of Health & Human Servs., 848 F.2d 271,

275 (1st Cir. 1988).

According to Ms. M., Falmouth had notice that its failure

to object to this aspect of the magistrate judge's recommended

decision would result in such waiver since the decision contained

a "notice" summarizing these rules and principles. Relying in

part on our decision in School Union No. 37 v. United National

Insurance Co., 617 F.3d 554 (1st Cir. 2010), Ms. M. argues that

Falmouth made a "strategic decision" to forego any challenge to

the IEP's content at the district court level and that we should

restrict our review for clear error, despite the fact that Falmouth

won under the magistrate judge's reasoning but then lost after the

district court's de novo review of the entire case. We disagree.

In School Union No. 37, a school sued its insurer after

the insurer refused to indemnify it for costs incurred while

successfully defending an IDEA case. Id. at 558. Both parties

filed cross-motions for summary judgment, after which a magistrate

judge recommended that summary judgment be granted in the insurer's

favor. Id. The magistrate judge concluded that although the

underlying IDEA litigation involved a "Wrongful Act" triggering

the school's insurance policy, the insurer properly denied the

claim because the policy excluded coverage for claims "seeking

[relief] other than money damages," which included claims for

reimbursement under the IDEA. Id. (alteration in original). The

- 12 -
school timely objected to the magistrate's recommendations, but

the insurer did not. Id. Soon after, the district court adopted

the magistrate's recommendation in full and granted the insurer's

motion for summary judgment. Id. On appeal, the insurers again

defended against the school's claims by arguing that there had

been no "Wrongful Act." Id. at 563. However, we "deem[ed the]

argument forfeited and decline[d] to address it" because the

insurer did not object to that aspect of the magistrate's

recommendation. Id. at 564.

Despite Ms. M.'s best efforts to convince us otherwise,

hers is a different case presenting different factual

circumstances which warrant a different result. Falmouth

successfully defended against Ms. M.'s claims before the hearing

officer and the magistrate judge, and therefore had no immediate

reason to appeal. The record also indicates that once Ms. M.

appealed the magistrate judge's recommendation, Falmouth did

"fairly raise" the issue when it notified the district court,

albeit in response to Ms. M.'s own objections, that it challenged

"the Magistrate's Recommended finding . . . that the failure to

provide SPIRE was an IDEA violation." The district court, as

evidenced by its "de novo determination of all matters adjudicated

by the Recommended Decision," knew of this challenge as well since

it expressly agreed with the magistrate judge that O.M.'s IEP

"specif[ied the] use of the SPIRE literacy program." Ms. M. v.

- 13 -
Falmouth Sch. Dep't, No. 2:15-CV-16-DBH, 2016 WL 3072250, at *1

(D. Me. May 31, 2016).

This conclusion also makes sense when Falmouth's

arguments are compared with those of insurer in School Union No.

37. In that case, the insurer tried to bar the school's recovery

by raising a discrete challenge to a conceptually separate

provision of the indemnification policy despite not objecting to

the magistrate judge's previous rejection of that challenge. Sch.

Union No. 37, 617 F.3d at 564. By contrast, it is far more

difficult for us to evaluate Ms. M.'s principal claim, that her

daughter did not receive a FAPE, without examining the scope and

content of O.M.'s IEP.

Our reasoning is also consistent with the Federal

Magistrate Act's general purpose, which "is to relieve courts of

unnecessary work." Borden v. Sec'y of Health & Human Servs., 836

F.2d 4, 6 (1st Cir. 1987) (quoting Park Motor Mart, Inc. v. Ford

Motor Co., 616 F.2d 603, 605 (1st Cir. 1980)). Though the Act's

waiver rule usually furthers that purpose by narrowing the number

of issues between parties before a case gets to the district court,

the rationale for applying the rule on appeal "dissipate[s]" once

the district court, as it did in this case, considers and reviews

the purportedly waived argument. Patterson v. Mintzes, 717 F.2d

284, 286 (6th Cir. 1983).

- 14 -
 We also recognize that a strict application of the waiver

rule in cases like this one would lead to rather harsh results for

appellants. Unlike in School Union No. 37, where the district

court adopted every aspect of the magistrate judge's

recommendation, the district court in this case only adopted part

of the magistrate's recommendation and disagreed with its end

conclusion. Given this drastic change in outcome, the prudence of

applying the waiver rule "dissipates" at an even more rapid rate.

See McCarthy v. Manson, 714 F.2d 234, 237 n.2 (2d Cir. 1983) ("If

the magistrate's decision is rejected or substantially modified,

the parties may object to all or part of that judgment and hence

preserve specific issues for appeal.").

For these reasons, we conclude that Falmouth "fairly

raised" its argument disputing SPIRE's presence in O.M.'s IEP for

the district court's consideration and has not waived its arguments

to that effect on appeal.

B. The IEP's Content

Turning to the merits, we must decide whether O.M.'s IEP

specifically called for SPIRE instruction. Ms. M. characterizes

this as a question of fact, and claims the district court's

affirmative answer to this question is therefore subject to clear

error review. However, the district court ultimately determined

that SPIRE was in the IEP only after it considered two predicate

questions of law -- whether the term "Specially Designed

- 15 -
Instruction" is ambiguous and, assuming the term is ambiguous,

whether a fact finder may resort to extrinsic evidence to resolve

that ambiguity. Accordingly, we review both of these questions de

novo. Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st Cir.

2016).

Tackling these questions in order, we first note the

IDEA requires that each qualifying child's IEP contain a "statement

of the special education and related services and supplementary

aids and services, based on peer-reviewed research to the extent

practicable, to be provided to the child." 20 U.S.C. §

1414(d)(1)(A)(i)(IV). Though the "statement" in O.M.'s particular

IEP, which indicated that she would receive "Specially Designed

Instruction" in reading and math, appears vague in the abstract,

its precise meaning is made clear when viewed alongside

complementary sections of the IDEA, Maine-specific rules and

regulations carrying out the state's IDEA obligations, and other

sources of regulatory guidance. See Auer v. Robbins, 519 U.S.

452, 462 (1997) (explaining that courts may look to the agency's

interpretation of its own regulations when interpreting a statute

and its implementing regulations).

For instance, rules within the Maine Unified Special

Education Regulations ("MUSER") expressly categorize "Specially

Designed Instruction" as a distinct type of special education

service, noting that it refers to "instruction provided to children

- 16 -
. . . by an appropriately qualified special education professional

or an appropriately authorized and supervised educational

technician consistent with a child's IEP." Me. Code R. 05-071,

Ch. 101 § X.2(A)(2). At the same time, the IDEA does not require

schools to include specific instructional methods in an IEP. See

20 U.S.C. § 1414(d)(1)(A)(ii)(I) (stating that the IDEA shall not

be construed to require "that additional information be included

in a child's IEP beyond what is explicitly required in this

section"). While it is the U.S. Department of Education's

"longstanding position" to allow IEP teams to address specific

instructional methods in IEPs, there is no requirement that they

do so. See 71 Fed. Reg. 46,540, 46,665 (Aug. 14, 2006) ("There is

nothing in the Act that requires an IEP to include specific

instructional methodologies. Therefore, consistent with [the

IDEA], we cannot interpret . . . the Act to require that all

elements of a program provided to a child be included in an IEP.").

Thus, the exclusion of any particular reading methodology in O.M.'s

IEP appears deliberate and suggests that the IEP team intended to

give Falmouth Elementary School officials a degree of flexibility

when implementing O.M.'s educational program, subject to Section

X.2(A)(2)'s constraints.

Construing the term in this way is also consistent with

the inherent design of the IDEA. The statute, for instance, refers

to the IEP as the agreement embodied by the final, formal written

- 17 -
document and not, as Ms. M.'s argument implies, any tentative

agreement reached by the IEP team. 20 U.S.C. § 1414(d)(1)(A)(i)

(stating that "[t]he term . . . 'IEP' means a written statement"

(emphasis added)); 34 C.F.R. § 300.324(a)(4)(i) (stating that any

change or modification to a child's IEP should be made via a

"written document" (emphasis added)).

The IEP document differs, for instance, from the Written

Prior Notice, which the statute identifies as "a description of

the action[s] proposed . . . by the [school and educational

agency]." 20 U.S.C. § 1415(c)(1)(A). As opposed to the IEP, which

is meant to present "a clear record of what placements and

educational services were offered," C.G. ex rel. A.S. v. Five Town

Cnty. Sch. Dist., 513 F.3d 279, 285 (1st Cir. 2008), the Written

Prior Notice serves to protect parents' rights under the IDEA by

enabling them to contribute to the IEP development process and to

later make informed decisions regarding whether to challenge an

educational agency's discretionary choices in a later due process

hearing, see, e.g., M.B. ex rel. Berns v. Hamilton Se. Schs., 668

F.3d 851, 861 (7th Cir. 2011); J.W. ex rel. J.E.W. v. Fresno

Unified Sch. Dist., 626 F.3d 431, 459 (9th Cir. 2010).7

7See also Me. Code R. 05-071, Ch. 101 § VI.2.I (noting that
if the IEP team cannot reach a consensus on the IEP's terms, the
local school department "must provide the parents with a prior
written notice of the school's proposals or refusals, or both,
regarding their child's educational program, and the parents have
the right to seek resolution of any disagreements by initiating an

- 18 -
 After viewing the IEP and Written Prior Notice

requirements in tandem, it is evident that the IDEA envisions the

IEP as an agreed-to general framework of a child's educational

program that provides schools with a certain degree of flexibility

in accomplishing the outlined objectives, while a Written Prior

Notice is meant to spell out more specific, but not binding,

proposals for implementing that framework.

We do not mean to suggest that a fact finder cannot or

should not resort to extrinsic evidence to determine the meaning

of an IEP term that is actually ambiguous. However, we need not

now identify what makes an IEP term ambiguous or whether a fact

finder should look to extrinsic evidence when encountering such an

ambiguity.8 Rather, we simply hold that in light of the statutory

and regulatory background relevant to this case, the meaning of

the term "Specially Designed Instruction" is clear enough such

that our interpretive task does not require us to resort to other

extrinsic evidence.9

impartial due process hearing or a State complaint
investigation").
8 For example, it is unnecessary for us to determine what role
Ms. M.'s November 14th letter, which noted her objections to the
SPIRE program, should play in our analysis.
9 In light of our finding that the IEP is not ambiguous, the
Second Circuit's recent decision in A.M. v. New York City Dep't of
Educ., ___ F.3d ___, 2017 WL 83384 (2d Cir., Jan. 10, 2017) is
irrelevant to our analysis.

- 19 -
 III. Conclusion

Since we hold that O.M.'s IEP did not specify that she

was to receive SPIRE instruction during her third-grade year, and

because Ms. M. does not contend that Falmouth violated her

daughter's IEP in any other way, it necessarily follows that

Falmouth did not breach the IEP's terms and thus did not violate

O.M.'s right to a FAPE. Accordingly, we REVERSE the district

court's determination that Falmouth violated O.M.'s IEP and VACATE

the accompanying damages award. Each party shall bear its own

costs.10

10 Section 1415 of Title 20 allows prevailing defendants in
IDEA cases to recover fees from the parent or the attorney of a
parent in certain rare circumstances. For instance, a prevailing
school district may recover attorney's fees against the parent's
attorney where the complaint is “frivolous, unreasonable, or
without foundation.” 20 U.S.C. § 1415(i)(3)(B)(i)(II).
Attorney's fees may also be awarded against a parent or their
attorney “if the parent's complaint or subsequent cause of action
was presented for any improper purpose.” Id.
§ 1415(i)(3)(B)(i)(III). Falmouth has not asked that we invoke
these provisions. In the absence of any argument to that effect,
we therefore decline to apply them to this case.

- 20 -