IEPs and School Psychs

Brace Yourselves:  IEP Season is Coming *

The IEP is a contract between a school and a parent or parents that summarizes the services to be provided to a student in order to provide him/her with a free appropriate public education.  It is THE most frequenbacktly contested document in special education litigation, since tuition reimbursement claims must be based on the parent proving (1) the school system’s IEP did not provide their child with a reasonable expectation of FAPE; and (2) that the program they provided as an alternative did meet that student’s needs appropriately.

While consensus in developing an IEP is desired, it is not required, and ultimately the school system has full responsibility for the content of the IEP.  (“We only did what the parent asked us to do” is not a reliable defense when a school placement has “gone bad.”)  Decisions are not made by majority rule, and since only the public agency representative has the authority to commit funds, final decisions are sometimes made by him or her.  Although schools have the final authority in determining the content of a child’s IEP (Unless appealed by the parent),  an IEP meeting “gone bad” is of course also not an outcome to be desired.

iep meeting funny - Google Search

FAPE in the IDEA  is defined (paraphrasing) as an education that would provide the student with a reasonable expectation of receiving more than trivial benefit; and that was provided in accordance with the procedural requirements of the IDEA.   Even when school psychologists are not involved in developing content at an IEP team meeting, they can provide substantive support in assuring that the procedural requirements are met.   School psychologists may also have a role in assuring that parents feel comfortable in expressing their concerns and  in ensuring that those concerns are heard and documented even if not always addressed to their satisfaction.  Always being nice to parents doesn’t mean always agreeing with parents.   The legal burden is met, however, by insuring that they have an equal opportunity to express their concerns, and it is always prudent to document that those concerns were heard and considered whether addressed by the IEP or not.

Lost and Tired – No one was killed at our IEP meeting yesterday…so that’s good right?:

IEP Team Membership is further defined in Section 300.321 of the 2006 Federal Regulations for the IDEA 2004.

Although there is no  federal requirement for a school psychologist to attend any IEP team meeting, he or she may be invited to interpret the instructional implications of his/her assessments; or to provide input on measurable behavioral goals as a related services provider (counseling); or even as the public agency representative at the direction of an administrator.  (Public agency representatives must be qualified to provide specially designed instruction or to supervise the provision of specially designed instruction.  Counseling is considered specially designed instruction within the context of this regulation.)

While school psychologists may be invited to (and some states may even require attendance at) an initial IEP team meeting, the 2006 FR does NOT require that someone qualified to conduct diagnositic assessments be present.

Section 300.321(a)(5) follows the language in section 614(d)(1)(B)(v) of the Act and requires the IEP Team to include an individual who can interpret the instructional implications of evaluation results. An individual who is qualified to conduct a particular assessment does not necessarily have the skills or knowledge to assist the IEP Team in determining the special education, related services, and other supports that are necessary in order for the child to receive FAPE. Therefore, we do not believe that it is necessary to require that the IEP Team also include an individual who can conduct diagnostic assessments.  p. 46670 2006 FR

As we’ve frequently observed, forms drive the process by which an IEP is written.  While OSEP has published a model form, it only contains the Congressionally mandated content as defined in Section 300.320 of the 2006 FR.  Most states have developed their own expanded model forms, which typically include much more than the bare minimum found in the previous link.   Generally blank forms used by the school system can be found in every special education teacher’s and every speech pathologist’s classroom.  For most states (the states where available for public download), we have additionally posted links to state recommended forms on our State Regulations page for the convenience of our readers.

Writing Measurable Goals
*

Section 300.320(a)(2)(i), consistent with section 614(d)(1)(A)(i)(II) of the Act, requires the IEP to include measurable annual goals. Further, § 300.320(a)(3)(i), consistent with section 614(d)(1)(A)(i)(III) of the Act, requires the IEP to include a statement of how the child’s progress toward meeting the annual goals will be measured.  p.46662, 2006 FR.

In some instances, courts have found that the failure of an IEP team to include measurable goals in a student’s IEP  in and of itself constituted a failure to provide FAPE.  School psychologists typically do not write academic goals, but they may be called upon to write measurable functional or behavioral goals based on observable behavior, especially if they will be providing counseling as a related service.

A Functional Behavioral Assessment and Behavior Intervention Plan are only required if a disabled student’s violation of the student code of conduct will result in a long term suspension or expulsion and the MDT determines that the behavior was a manifestation of the child’s disability.  Federal regulations do not require that a BIP be appended to a child’s IEP, although state regulations/policies may.   Again, forms will usually drive the process . . . for example, if your state form asks, “Does the student have behaviors that impede his learning or that of others,” and the answer is “Yes,” the IEP should/must address the issue.    In that case, the goals in the BIP would become the goals in the IEP.  (Which is one reason BIP goals should be written as if they were IEP goals.)

Nothing precludes a school system from providing FBAs or BIPs in other situations such as when Tier III interventions are being applied.   However, it is not solely this writer’s recommendation  that before functional behavior assessments are completed and behavior intervention plans are filed in the child’s permanent record or become part of the child’s IEP less burdensome interventions be applied, such as the use of learning contracts.

SMART Goals *

SMART:  Defined variously as Specific, Measurable, Attainable/Achievable/Uses Action Words, Realistic/Relevant, and Time limited.

 Positive goals focusing on the desired behavior(s) are preferred over negative goals focusing on undesirable behavior.   For example,  “Johnny will keep his hands and feet to himself four days out of five” would be preferable to “Johnny will not terrorize his classmates four days out of five.”

On-line resources containing banks of counseling goals are listed below (Although not specifically required by the federal regulations for inclusion in the IEP, the person responsible should  also be prepared to justify the goal based on assessment data used to identify PLAAFP and to discuss the strategies to be used in achieving these goals).   In school systems using computerized IEPs, there may already be a bank of measurable goals readily available.   “Bridges4Kids” Objectives bank is one example; for behavioral goals, the user would click on “Social Emotional” in the TOC.

Bridges4Kids Objectives Bank

Sonoma County, CA SELPA Bank of Social Emotional Goals

Houston ISD PowerPoint on Counseling as a Related Service:  A complete guide to identifying good candidates for counseling, developing goals based on PLAAFP, and writing measurable goals.

The School Psych Toolbox  A personal blog by a school psychologist with an IEP Behavior Goal Bank.

Although goal banks will  help keep an IEP writer from having to re-invent the wheel, they cannot possibly address every conceivable situation that arises.  How does one assess whether the goal one has drafted meets defensible standards?  Iowa has provided a clear and relatively concise but comprehensive list of standards to be considered which would be applicable both to academic and functional IEP goals.
Iowa:  Goal Page and Measurable Annual Goals

Recommended Biblioggraphy (Not for free)

Bateman, B. D., & Herr, C. M. (2006). Writing measurable IEP goals and objectives. Verona, WI: IEP Resources/Attainment Co.

Bateman, B. D., & Linden, M. E. (2006). Better IEPs: How to develop legally correct and educationally useful programs (4th ed.). Longmont, CO: Sopris West.

Kosnitsky, C. (2008). IEP goals that make a difference: An administrator’s guide to improving the process. Palm Beach Gardens, FL: LRP Publications http://www.shoplrp.com/product/p-300279.html.

Shinn, M.R., & Shinn, M.M. (2000). Writing and evaluating IEP Goals and making appropriate revisions to ensure participation and progress in general curriculum. In C. F. Telzrow and M. Tankersley (Eds.), IDEA Amendments of 1997: Practice guidelines for school-based teams (pp. 351-381). Bethesda, MD: National Association of School Psychologists.

Funny IEP Goals: Laugh Your Behind Off in 15 out of 15 Opportunities.:

Not Smart Goals

Not all behavioral goals are created equal.  Here are some examples from real IEPs that should NOT be adopted as models.

“John will not take his clothes off at school in seven out of ten opportunities.”

“S will appear to be paying attention during instruction.”

“L will control his meltdowns 7 out of 10 times.”

“Grace will stay in the classroom 4 out of 5 times.”

accommodations

Modifications/Accommodations *

Silliness isn’t confined to IEP goals; it can be found in IEP accommodations and modifications as well, e.g., “G is not allowed to get any grades before 70.”  Even accommodations that seem on the surface to be reasonable can lead to predictable problems when monitoring implementation is impossible, e.g., “G will be allowed to dictate her answers to her homework questions to her mother, who will write them down for her.”

What’s the difference between a modification and an accommodation?  OSERs  didn’t think it important to make a distinction, writing in the 2006 FR

The terms ‘‘accommodations’’ and ‘‘modifications’’ are terms of art referring to adaptations of the educational environment, the presentation of educational material, the method of response, or the educational content. They are not, however, examples of different types of ‘‘education’’ and therefore we do not believe it is appropriate to define these terms of art or to include them in new § 300.39(b) (proposed § 300.38(b)).

 Some writers do make a distinction based on the type of change being proposed; but in the Section 504 regulations, it’s not so much a matter of a  what as a who . . .  “reasonable accommodations” are what are made for people seeking employment, “modifications” are what are provided to students in order to receive a free appropriate public education.   In any event, our short answer to this question is “It just doesn’t matter.”

Other people have answered the question differently, of course — but within the context of the IDEA, it still doesn’t matter, and within the context of 504, what some might call accommodations are still called modifications.  For example, one might look at the answer to the question, “What is the difference between accommodations and modifications” posted by one on-line source.   Arguing over semantics can be a fun-time exercise, but the only question that really matters is, “Does the child need this support or service in order to receive FAPE?”  If s/he does, s/he is entitled to it, at no cost to the parent, whatever anyone wants to call “it.”

Of course, under Section 504, the question takes on a slightly different shade of grey.  Under Section 504, people in the workplace are entitled to reasonable accommodations.  In public school, however, children with disabilities are entitled to whatever modifications they need in order to receive FAPE (which under 504 is commonly described as whatever is needed to level the playing field).   So . . . whether or not one might argue a support provided under the IDEA was an accommodation, under 504 it would in a public school be considered a modification regardless.  Not that anyone really cares, unless someone was trying to apply a “reasonable accommodation” standard to a student entitled to FAPE.

Reasonable accommodation: a term used in the employment context to refer to modifications or adjustments employers make to a job application process, the work environment, the manner or circumstances under which the position held or desired is customarily performed, or that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment; this term is sometimes used incorrectly to refer to related aids and services in the elementary and secondary school context or to refer to academic adjustments, reasonable modifications, and auxiliary aids and services in the postsecondary school context   Terminology, Frequently Asked Questions about Section 504, Office for Civil Rights.

School psychologists will be called upon from time to time to make suggestions/recommendations regarding accommodations/modifications for students.  Virtually all of the states have guidance regarding testing accommodations, and state agencies can be accessed via our State Regulations web page.   Allowable accommodations will very from state to state, although most states will also have a process for submitting accommodation requests that have not been previously approved.  Almost all states, for example, say that the “read aloud” option is not allowed for reading tests.

Accommodations should be based on assessment data showing  the student in question has a documented need.  Giving every child in the class “Marks in Test Booklet” as an option is not individualized.  Giving every student diagnosed with ADHD four or five test stock accommodations (especially when the physician only suggested one) is not individualized.   Additionally, giving every child with a disability every accommodation in the state test manual for every test, even when not needed, is likely to strain school resources to the breaking point with no measurable  improvement in student performance.  Teachers should always be reminded when necessary that test accommodations on the state end of grade tests, even when not indicated as necessary by the assessment data, must still be provided in the regular classroom all year long — lest the novelty of an untried accommodation actually result in a lower end of grade score.

related services

Related Services *

The IDEA defines Related Services in Section 300.34 of the 2006 Federal Regulations.   The mandate is extensive, but it can be boiled down to every child with a disability who needs a service in order to profit from his or her special education is entitled to that service at no cost to his or her parents.   Unless it is a service that must be provided by a physician (exclusive of medical evaluations required to determine eligibility.)  That’s commonly referred to in special educational literature as whatever is needed for a child to achieve the goals in his or her IEP.

That determination is not be based on an administrator’s whim or teachers’ caprice.   PACER has a two page handout for parents in which they correctly state that it is to be determined from information gathered from an evaluation.

(OCR has a considerably more succinct definition under Section 504:  “Related services: a term used in the elementary and secondary school context to refer to developmental, corrective, and other supportive services, including psychological, counseling and medical diagnostic services and transportation.” )

OSEP has issued several letters regarding related services; to review them do a word search on this page for “related services.”

Parents may request related services that in the view of the IEP team are NOT required for the student to benefit from his special education.  Section 300.503 requires parents to receive prior notification regarding any decision to change the identification, evaluation, or educational placement of a child.   “Educational placement” is generally understood not to refer to a place but to the collection of services necessary for a child to benefit from his or her special education.    Section 6 above would also require the IEP team to provide reasons as to why the options for services proposed by the parents were rejected.

Comment: One commenter asked that the public agency be required to provide a description of all the proposals made by anyone on the IEP Team and the reasons why one proposal was chosen over another. Discussion: Section 300.503(b)(1) and (b)(2) require the prior written notice to 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. We do not believe that the change suggested by the commenter is needed because § 300.503(b)(6) and (b)(7) already require that the prior written notice include a description of the other options that the IEP Team considered, the reasons why those options were rejected, and a description of other factors that are relevant to the agency’s proposal or refusal.  p. 46691 of the 2006 FR for the IDEA 2004.

Again, those reasons should be based on information gathered from an evaluation.  If the information available to the IEP team is insufficient to make an informed decision, then it should recommend an early reevaluation that might or might not require additional testing (and written parent consent) to determine present levels of academic achievement and functional performance (PLAAFP) as required for the development of an IEP by Section 300.320 of the 2006 FR.

Another recommended handout for both parents and teachers available on-line for free:

Related Services (Parent Information Center)  The introduction to this handout begins,  ” The IEP must contain a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child. We’ve split up the discussion of each of these important elements, because there is so much to say about each. This article focuses on related services.”

For an indepth discussion of the legal issues, see Related Services Issues Under the IDEA: Key Doctrines and New Areas of Concern by Jose Martin, Attorney at Law

Although a number of states offer some guidance on related services, South Dakota has issued a particularly helpful 22 page guidance, “Special Education and Related Services.”   “The ‘Special Education and Related Services’ technical assistance guide has been updated to inform districts, teachers, organizations and, most importantly, parents about the definitions and regulations associated with the various types of related services available for individuals with needs.”

Although an IEP team’s determination that a related service was not required because it wasn’t needed for the student to meet his IEP goals might seem to end the matter, it really does not.   Although services might not, strictly speaking, be required under the IDEA (which provides funding to support those services), Section 504 protections also apply to all children identified as disabled, whether receiving special education services or not.

Typically, OCR has held that if a school system is in compliance with the IDEA, then that school system is in compliance with 504.  One notable exception has been in the area of communication.  And if a school system provides a related service under the IDEA, then it will almost certainly be in compliance with 504.

However, that is not necessarily the case if an IEP team relies too heavily on the language in the 2006 FR for the IDEA 2004 with reference to related services only being required if need to help a child profit from his special education.   That’s because Section 504 requires related services to be provided at no cost to the parents when need to receive FAPE, but the standards there are different.   34 CFR 104.33 says “Appropriate education. (1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of 104.34, 104.35, and 104.36.”  If a school system elected to provide a related service to a child with an IEP  on that basis, however, there would be no federal or state funding they could use to fund it.  This writer has never heard of that happening, and providing services to a child with a disability under BOTH an IEP and 504 Plan is generally discouraged.   (This writer therefore recommends providing related services for an IDEA identified student under an IEP even if in the opinion of the team the more appropriate standard to be applied was “he needs it to meet his needs as adequately as the needs of non handicapped persons are met.”)

The Section 504 Regulations  (34 CFR 104.35) are also quite explicit in saying that “A recipient that operates a public elementary or secondary education program or activity shall conduct an evaluation in accordance with the requirements of paragraph (b) of this section of any person who, because of handicap, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement.”

Decisions are to be based on evaluations.   Not off the cuff, baseless remarks made by school administrators or the anguished pleas of parents.   If the parent requested such an evaluation under the IDEA (or 504) to determine a child’s need for a related service, the school would have to provide that evaluation UNLESS it did not share in the parent’s belief.  In that case, it could refuse the parent request,in writing, with its reasons, and with a copy of the parents rights, including the right to appeal.  In that scenario, the parent would have the right to invoke her due process rights and to request an impartial administrative hearing.

 

exit

 

Exit Evaluations for Graduating Seniors for them to receive Accommodations in Post-Secondary Institutions *

Only the parent or the IEP team can request an evaluation under federal regulations.

The only reasons  an IEP team must request a reevaluation for a high school student would be if additional testing was needed to determine current eligibility or present levels of performance or, in the case of a three  year reevaluation, if the parent requests additional testing.  (In which case, the school system must either comply or contest the request through due process).   If they checked one reason or the other (or both) on the request form, that would end the inquiry, whether the psychologist suspected the parents had a secret agenda or not.   If neither reason was given,  and the only information provided was that the parent wanted an evaluation done for college or other outside agency,  nothing prohibits a school from authorizng the assessment, but both the practice and process should be sanctioned by the school administration since the additional assessments would be on the school’s dime, not the school psychologist’s.

Part C providers are not required to update their evaluations for Part B.  (Section 303.309 of the Part C regulations requires notification, does not require updating the testing to meet Part B requirements, and exempts Part C providers from evaluating children referred less than 45 days before their third birthday.) And OSERS made it very clear in the 2006 FR Part B Regulations that schools have no such burden to meet the needs of post secondary institutions.

Discussion: We do not believe that the regulations should require public agencies to conduct evaluations for children to meet the entrance or eligibility requirements of another institution or agency because to do so would impose a significant cost on public agencies that is not required by the Act. While the requirements for secondary transition are intended to help parents and schools assist children with disabilities transition beyond high school, section 614(c)(5) in the Act does not require a public agency to assess a child with a disability to determine the child’s eligibility to be considered a child with a disability in another agency, such as a vocational rehabilitation program, or a college or other postsecondary setting. The Act also does not require LEAs to provide the postsecondary services that may be included in the summary of the child’s academic achievement and functional performance. We believe it would impose costs on public agencies not contemplated by the Act to include such requirements in the regulations. It would be inconsistent with the Act to require public agencies to conduct evaluations for children who are exiting the school system because they exceed the age for eligibility under State law. Section 300.305(e)(2), consistent with section 614(c)(5)(B)(i) of the Act, is clear that an evaluation in accordance with §§ 300.304 through 300.311 is not required before the termination of a child’s eligibility under the Act due to graduation from secondary school with a regular diploma or due to exceeding the age eligibility for FAPE under State law  p. 46644, 2006 FR

Even if an IEP team and school psychologist did everything that would be required for an initial placement for a graduating Senior, that’s no guarantee that the psychological qiyks meet the university’s requirements or the student’s need for documentation.   OCR also says the parent (or adult student graduate) is responsible for meeting those requirements for children identified under Section 504.  That doesn’t mean that schools cannot or should not be of assistance, but in schools using an MTSS model based on response to intervention, doing the types of testing required by a college or university could become excessively burdensome.   Some examples of various institutional requirements can be found at the following links:

College Board Requirements
Educational Testing Services Documentation Guide

Some random examples of college requirements (provided mainly to show how they are similar/dissimilar)

Smith

Nova Documentation Disability Guidelines

St. John Fisher

Rutgers

Heartland AEA 11, one of the founders of the problem solving model,  for example, has a policy that explicitly states that they will do no additional testing for ANY outside agency.  That doesn’t mean they won’t help; but they greatly restrict the amount of help they will provide.

Heartland AEA staff will always help with requests for information by gathering a child’s existing educational information. However, they may not always have the information the outside agency is requesting. Heartland AEA, as an intermediate educational unit, is responsible for providing educational assessments for the purpose of instructional planning, intervention and progress monitoring. Collecting assessment data for educational decisions for all children is our responsibility. New assessment information will be generated only if there is a need to answer educationally related questions or for educational decision-making. Heartland AEA employs the problem-solving approach to design, implement and monitor interventions so many of the tests used to make clinical or medical determinations are rarely, if ever, used. Heartland AEA staff does not conduct evaluations to determine eligibility for other agencies.

Of course schools do have legal obligations with respect to transition, just not to provide an updated psychological for every graduating Senior.   Transition goals, for example.

Section 300.305(e)(3), consistent with section 614(c)(5)(B)(ii) of the Act, states that the summary required when a child graduates with a regular diploma or exceeds the age eligibility under State law must include information about the child’s academic achievement and functional performance, as well as recommendations on how to assist the child in meeting the child’s postsecondary goals. The Act does not otherwise specify the information that must be included in the summary and we do not believe that the regulations should include a list of required information. Rather, we believe that State and local officials should have the flexibility to determine the appropriate content in a child’s summary, based on the child’s individual needs and postsecondary goals.   2006 FR

IEPs and Case Law *

In 1982, the United States Supreme Court in Board of Education v. Rowley, cited the Education of the Handicapped Act in defining an appropriate public education as

According to the definitions contained in the Act, a “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child “to benefit” from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State’s educational standards, approximate the grade levels used in the State’s regular education, and comport with the child’s IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a “free appropriate public education” as defined by the Act.

The Supreme Court went on to say

Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the State’s regular education, and must comport with the child’s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.

As was reported in the introduction, in virtually every tuition reimbursement and compensatory education case, parent attorneys have  had the burden of showing either (1) the IEP was not formulated in accordance with the requirements of the Act or (2) it was not reasonably calculated to provide the student with passing grades and to pass from grade to grade.  A search of the case law reported in Guy’s Log for 2014, 2015, and 2016 will show that these continue to be the bedrock principles most frequently litigated.  Also, while some attorneys may continue to argue the relevance of Rowley in today’s world, the federal circuit courts continue to cite Rowley as binding precedent.

Since the requirements of the Act include providing parents with the opportunity to participate in the development of the IEP, procedural violations, particularly violations that precluded a parent from meaningful participation, are much more likely to be fatal to a school’s case than other procedural lapses, such as timeline violations.  For an example of a case where failing to provide the parents with an ample opportunity to participate proved fatal, see the landmark case of Doug C. v. Hawaii, Ninth Circuit, 2013.

The substantive requirement requiring a reasonable expectation of benefit has also been addressed many times by the courts and is generally understood to be “meaningful” or “non-trivial” benefit.  See the section on Caselaw below.

Although a school system’s lack of resources is not determinative in deciding what services must be offered based on a child’s needs, if a school system offers a service, it needs to be sure it either has or provides the resources to provide that service.  Failure to provide services written into an IEP has also been the basis for multiple lawsuits.   Although generally beyond the scope of a school psychologist’s responsibilities, writing an IEP that (1) is appropriately individualized and (2) is actually going to be implemented sometimes requires an understanding that FAPE does not require maximizing a child’s opportunities to learn.  Sometimes the Ford rather than the Cadillac will provide meaningful if not maximum benefit. Of course,  that doesn’t mean just any old Ford will  suffice.

1911 Ford Model T Torpedo Runabout:

Or that every Cadillac will offer more substance than glitz.

Actually  talking about Fords and Cadillacs at an IEP team meeting, however,  does not always evoke a positive parental response.

If you're dealing with an ADHD kid, your emotions may feel out of control sometimes. Get some tips now in Keeping it Cool : Don’t Take it Personally:

The legal standard is that:

In all cases, placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience.  p 466588 2006 FR.

Putting it another way, if an IEP team determines that a child needs assistive technology (e.g., a CCTV for a visually impaired student) or an infrequently required related service for a multi-handicapped child (e.g., someone qualified to nourish the student with a feeding tube), it also needs to consider where or how it will acquire that technology or staff.

An example of a landmark case where the court ruled in favor of the parents of a cFollow the IEP!: hild whose behavioral problems resulted from the school’s failure to follow the IEP can be reviewed by clicking on Oberti v. Clementon, Third Circuit, 1993.  The principles expressed in Oberti became law of the land when incorporated into the 1999 Federal Regulations, that is, if a violation of the student code of conduct was the result of a failure to implement the IEP, then the student may not be suspended for more than ten consecutive days or expelled.

 

A landmark example of a failure to provide non trivial benefits case that reached the Supreme Court is Peter Wright’s 1993 Supreme Court case in Florence Cty v. Carter.   The  Supreme Court case centered on whether prior state approval was required for a private placement to be regarded as appropriate.  (Short answer:  No.)    The federal District Court  of South Carolina had already determined in 1991  that the services offered this student would not have provided her with an expectation of non trivial benefit.

A small sampling including five other representative cases from Wrightslaw.com are listed below with links to the decisions.   Annotations are also from Wrightslaw.
Burlington Sch. Committee v. Mass. Bd. of Ed., 471 U. S. 359 (1985). Decision clarifies procedural safeguards, parent role in educational decision-making; tuition reimbursement for private placement; child’s placement during dispute about FAPE.

Amanda C. v. Clark County Sch. Dist. and Nevada Dept. of Ed, U. S. Court of Appeals for Ninth Circuit issues strong decision for child with autism. Court cites research about ABA/Lovaas treatment; describes purposes of the IDEA; IEPs and procedural safeguards.

Evans v. Rhinebeck New York tuition reimbursement case; judge discusses components of an appropriate IEP for a child with dyslexia; vague subjective IEP goals and objectives.

H. v. PalatineDecision focuses on an appropriate program for a young child with autism; includes excellent discussion of vague subjective IEP goals and objectives. (in pdf) 

Kanawha v. Michael M. Court analyzes”appropriate” in the context of Rowley; discussed educational benefit; provided guidelines to determine if an IEP is appropriate. Kanawha v. Michael M. is one of Pete’s favorite cases “not because it has great precedence, but because it does an excellent job of describing difficulties in the legal definition of ‘appropriate’and how to use ‘appropriate’in developing an IEP.”

 

OSEP Letters Regarding IEPs from 2004 *

OSEP has published a number of Topic Brief and video clips on the subject. Particularly recommended is the Q and A found in Topic Briefs at the bottom of this page.

There is no legal requirement to explain the IEP process to a parent beyond what has already been provided in the Parents’ Rights Handbook provided by your school system unless, of course, the parent doesn’t speak English or is unable to read and understand the printed rights.  However, should an extra explanation be required, the Center for Parent Information and Resources (CPIR) provides a  0n-line download that is comparatively free of jargon called The Short and Sweet IEP Overview.  Peter Wright (Wrightslaw.com) has a page of links, designed for parents, but also potentially relevant for special educators (including school psychologists) on Individualized Education Programs including FAQs, pop-ups, and checklists.

Probably the most significant change in IEP development over the past year has been an increased emphasis on  aligning  IEP goals with grade level academic standards.  That was already implied in the 2006 FR but not explicit.  “Therefore, an IEP that focuses on ensuring that the child is involved in the general education curriculum will necessarily be aligned with the State’s content standards.” p. 46662, 2006 FR.

The passage of  the Every Student Succeeds Act of 2015 strengthened the mandate.  There is a real danger (“real” in the sense that misunderstandings about this have landed school systems in court) that some special educators will interpret this as meaning that they can provide every child with the same mass produced IEP.    IEPs must still be individualized to address each child’s unique needs.  For a fairly recent example of that see our October 13, 2014 posting of Jefferson Cty. v. Lolita, Eleventh Circuit.

Eligibility Groups determine whether or not a child should be entitled under the IDEA.  However, when an evaluation has been completed, and a child is found ineligible because he or she does not require specially designed instruction (special education), it may be that the student has a disability requiring related services and/or  modifications in the general education classroom.   Disqualification for IDEA services does NOT mean that a child is also ineligible for services under Section 504.   Even when the evaluation has been to determine whether a child has a specific learning disability, and the Eligibility Group determines that student does not qualify, that same student may qualify as having a specific learning disorder (DSM 5), dyslexia, dysgraphia, or dyscalculia . . . any one of which would trigger 504 consideration.  For a full discussion of this question with relevant links, click on  Section 1.1  of our Q and A page.    Also see the 504, ADA, and OCR page.

Another indirect way of assessing the importance of IEPs in the Special Education process is by looking at the number of OSEP Letters on the Topic since 1997 –  72 in all.   Because of changes in the IDEA 2004 and implementing regulations, we’ll only address some of those published since then of which there was still a total of 37 reported.  Most of those letters are summarized with links below.  (For a complete listing of all the letters, the reader may do an independent PAttan Search of OSEP Letters.  OSEP Letters by law are not legally binding,  but they are their interpretation of the regulations they wrote within the context of the specific facts presented.   Therefore while they are not determinative in deciding how a court will rule given another set of facts, they may be persuasive in determining the standards to be applied.

Letter to Carroll, November 3, 2004.  The parents were asking that OSEP overturn a school’s placement decision placing their child with younger children instead of with age appropriate children.  Their response:  “While, in general, building or classroom assignment issues, including grade level assignments, may be matters that are governed by other State or local criteria and decision-making mechanisms, those determinations must be made consistent with a child’s IEP or placement. Based on the information provided in your inquiry, it appears that the issue of grade level assignment for this student is a longstanding one. Should the current dispute not be resolved informally, and the parents exercise their right to initiate a due process hearing under 34 CFR §§300.506-300.514, the hearing officer would have jurisdiction to decide whether, under the particular facts and circumstances, the grade and classroom assignment issue relates to the identification, evaluation, educational placement, or provision of FAPE to this student.”  In short, while retention decisions made by schools without the involvement of an IEP team are consistent with the regulations, parents may still appeal, and a hearing officer may still make a final determination.

Letter to Louis Geigerman, November 3, 2004.  The question was when is a related service required in order for a child to receive FAPE?  Response:  ” Part B would not require an IEP team to include occupational therapy or physical therapy, or any other related service in a child’s IEP based on a parental request for those services, unless the IEP team determines that the services are required to assist the child to benefit from special education. Parents can utilize Part B’s due process procedures at 34 CFR §§300.506-300.514 if they disagree.”  Just because a parent comes in with an IEE saying a child needs a service does not automatically mean the school must provide it.

Letter to Wilson, December 15, 2004.  This letter also represents a departure from long-standing advice from OSEP, which has always said that if a child has an IEP, then s/he isn’t entitled to or need a 504 Plan.   In this letter OSEP says that if a child needs an accommodation to benefit from his her IEP, it must be included in the IEP (and a 504 Plan would not not be needed.  “However, if a student is found ineligible for services under Part B of IDEA, but is found qualified to receive services under Section 504 and Title II, the accommodation could be included on the student’s Section 504 plan. Please note that the Section 504 regulation at 34 CFR §104.33(b)(2) also provides that implementation of an IEP developed in accordance with the IDEA is one means of meeting the Section 504 free appropriate public education standard set out at 34 CFR §104.33(b)(1). Thus, many school districts utilize IEPs for their Section 504 students. “   Just because something is usually/almost always true does not mean it is always true.

Letter to Serwecki, February 28, 2005.  Serwecki wanted to attend an IEP team meeting as the father’s representative, as the father was barred from attending by a Protective Order.  The mother said “No.”  School agreed.  What to do?  OSEP said to consult with a local attorney.  This writer’s advice:  first get a copy of the Protective Order to see what rights were and were not taken away from the father.

Letter to Wilson, April 12, 2005.  Question:  If we’re involved in an administrative hearing with a parent, do we still have to have an annual IEP meeting?  Short answer:  Yes, even though stay put would still apply.

Letter to Cox, November 14, 2005. In this letter, OSEP corrects a mistake and clarifies a position.”In light of the concern raised in your letter, we have reviewed the Notice, and we concur with you that the Part B regulations authorize school personnel to make the determinations permitted under 34 CFR §300.530(h), and do not require that those decisions be made by the IEP team.”  This also represented a fundamental change in OSEP’s position that while schools had the unilateral authority under the Act to make changes in placement under the specified conditions, those changes still had to be made within the context of an IEP team meeting.

Letter to Caplan, March 17, 2008.  Summary.   When must the school invite a representative from an agency involved in transition?  “The decision of whether it would be appropriate to invite other agencies rests with the public agency and the parents or the child who has reached the age of majority, provided that the parents or the child who has reached the age of majority consents to the invitation. If the parent or the child who has reached the age of majority refuses to consent to invite a representative of a participating agency that is likely to he responsible for providing or paying for transition services, to a child’s IEP Team meeting where transition will he considered, conducted in accordance with 34 CFR §300.320(h), the public agency may not invite a representative of that agency to attend the child’s IEP Team meeting.”  Is parental consent required? “Accordingly, a public agency still must obtain the consent of the parents or the child who has reached the age of majority before inviting other agency representatives to transition IEP Team meetings conducted in accordance with 34 CFR §300.320(b) even though the public agency lacks the authority to compel the participation of other agency representatives at transition IEP Team meetings. ”

Letter to Redacted, March 17, 2008.  This Q and A seemed like a no-brainer.  Q: If a school places a preschool child into a private school to receive FAPE, must it pay for it?  A.  Yes.

Letter to Gray, March 17, 2008.  Topic:  Getting consents for people from transition agencies.  Q. How often is consent required for an outside rep to attend an IEP transition meeting?  A.  Every time.  Q.  What information must be included?  A.  The information required in Section 300.9. Q.  What responsibility do the people in the agencies have to see that consent has been obtained?  A.  None.

Letter to Redacted, March 31, 2008.  The question here was whether the parents must be informed as to who was coming to an IEP team meeting and, if the school invited an attorney without informing them, they could ask the attorney to leave.   OSEP replied that while they advised schools to provide the names and positions of whomever was coming, federal regulations would be satisified if only the positions were listed.   Attorneys are not required members of the IEP team, so the parent could ask that the meeting be rescheduled so the school could provide appropriate prior notice OR (if the school did not want to reschedule) the school could elect to dismiss the attorney from the team.

Letter to Redacted, June 3, 2008.   The question, abbreviated, was whether an IEP team needed to document a severe discrepancy in every academic area served before adding it to the IEP?  The short answer from OSEP was “No.”  (See letter for expanded policy statement and rationale.)

Letter to Redcated, December 11, 2008.  The question was whether a parent could ask for a due process hearing about a past (not current) IEP or about an IEP to which they had  agreed.  OSEP’s answer was that they could not file a complaint about anything that had happened more than two years before they had become aware of the problem, unless  they were delayed in knowing about the action because the school system had misrepresented the situation  to them.  With respect to the second question, there is nothing in the 2006 FR requiring a parent to agree to an IEP . . . hence no impediment would exist just because they had  agreed.

Letter to Redacted, January 10, 2010.  Several questions about IEEs, Q and A’s summarized:   Q.  Is parent consent required for the school to get an IEE? A.  OSEP didn’t really answer the question but said that if consent was required, and the parent refused consent, the school could legitimately deny reimbursement for the evaluation.  Q.  Must the person who conducted the IEE be at the Eligibility Group Mtg.  A.  No. The letter went on to address California law regarding the transmission of protocols to the school system.   In this writer’s opinion, the author of this particular letter fundamnetally understood the meaning and intent of the law, as well as the application of Fair Use iDoctrine n this circumstance.  The advice herein is inconsistent with at least one publisher’s advisory as well.

Letter to Richards, January 7, 2010.  The question was whether or not the chairperson of an IEP team could override the group’s consensus.  OSEP repeated some of the language used by OSERS in the 1997 FR, but it did not definitively address the question. Answer:  “The IEP Team meeting serves as a communication vehicle between parents and school personnel and enables them, as equal participants, to make joint informed decisions regarding the services that are necessary to meet the unique needs of the child. The IEP team should work towards a general agreement, but the public agency is ultimately responsible for ensuring the IEP includes the services that the child needs in order to receive a free appropriate public education (FAPE). It is not appropriate to make IEP decisions based on a majority vote.

    The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. It is notappropriate to make IEP decisions based upon a majority “vote.” If the team cannot reach consensus, the public agency must provide the parents 

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with prior written notice of the agency’s proposals or refusals, or both, regarding the child’s educational program, and the parents have the right to seek resolution of any disagreements by initiatingan impartial due process hearing   1999 FR

 

If the team cannot reach agreement, the public agency must determine the appropriate services and provide the parents with prior written notice of the agency’s determinations regarding the child’s educational program and of the parents’ right to seek resolution of any disagreements by initiating an impartial due process hearing or filing a State complaint.”  Their assertion that the IEP is not to be based on a majority vote does imply however that their short answer is “Yes, s/he can.”  However, just as a cautionary note, there has been at least one court case where a judge ruled that if a school system always used “majority rules” to make its decisions,it could not, in just one case, change its own rules.

Letter to Irby, February 12, 2o10.  May an IEP provide a child with extra reading time by denying him state mandated physical education?  Two key passages.  “In general, it would be inappropriate for the IEP Team to deny children with disabilities the opportunity to participate in State mandated physical education instruction for the sole purpose of providing them with additional reading instruction. The IEP Team should consider additional strategies and scheduling, such as an extended school day or extended school year, if the child requires such instruction in order to receive a free appropriate public education. ”  And “Students with disabilities who can participate in the regular physical education with or without supplementary aides, services and other supports must be provided an equal opportunity to meet this State requirement.”

Letter to Brousaides, January 1o, 2o1o.  Question:   Must  provide written documentation that the services, modifications, and accommodations in a child’s IEP?  A.   It would be up to the state.  Federal Regulations would not explicitly require it.

Letter to Rangel-Diaz, April 25, 2011.  In this situation, a school system was prohibiting related service personnel from attending IEP team meetings even when requested by parents, telling them instead to provide written reports.  Was that okay?  In the 1999 final regulations, OSEP had written (Question 30 of Appendix A) that if the evaluation indicated a need for a related service the school could meet its obligations either by having that provider (1) attend the meeting or (2) providing a written recommendation concerning the nature, frequency, and amount of service to be provided ro the child.    In this letter, OSEP qualified that statement by saying that if the related service provider had been designated as a required member of the team (e.g., a speech pathologist listed as the special education provider), then he or she could only be excused if both parties agreed in writing.   Otherwise, OSEP said that there was nothing in the FR that would require the school to make that person available; nor is there anything in the 2006 FR that would compel the school system to make an employee available because a parent requested he or she be there.   While this writer would recommend a thorough reading of this letter by any school psychologist caught between an employer who has not invited him to a meeting and parent who has invited him, the simplest and most effective course of action would be for that school psychologist to inform his or her supervisor and seek administrative approval of the request.

Letter to Koscielniak, December 19,2011.  Question:   Is it appropriate for a school to unilaterally dismiss a child from speech therapy just because s/he has plateaued?  ASHA does not provide specific eligibiity/dismissal guidelines for educational settings but it would be up to the IEP team to decide, what ASHA’s guidelines were.  And of course if a child is dismissed from a service and the parents disagree, they have administrative remedies available  including a request for mediation of for a due process hearing.

Letter to Reyes, April 11, 2012.  What are considered to be timely evaluations? OSERS repeats that federal criteria, which allows states to either (1) use the 60 days from consent to evaluation or (2) to set its own timelines.    It said however that there was no provision in the federal regs for extensions because of breaks or summer vacations.  Then it went on to say, “The Office of Special Education Programs recognizes that conducting evaluation activities during extended breaks, such as the typical school’s summer vacation, can be challenging for school districts, particularly if fewer staff members are available. Nevertheless, the IDEA contemplates that the initial evaluation of a child suspected of having a disability not be unreasonably delayed so that eligible children with disabilities are not denied a FAPE.”  Of course, courts have generally held that minor timeline violations have NOT resulted in a denial of FAPE, so . . . state administrative requirements not withstanding . . . there is a bit more flexibility in this answer than meets the eye.

Letter to Eig, April 23, 2012.  The attorney in this letter was alleging that a school system had violated Part B with respect to providing mediation.  This letter reinforces OSEP’s policy of not commenting directly on substantive complaints.  They do however list in great detail the actual requirements of Part B and the reader is referred back to the letter if the topic should become relevant.  (For most school psychologists, the actions discussed would generally be above their pay grade.)

Letter to Chambers, May 9, 2012.  If a district is providing services needed by a child with a disability through general education, does that mean he or she does not need special education?  OSERS replied, “The fact that some of those services may also be considered ‘best teaching practices’ or ‘part of the district’s regular education program’ does not preclude those services from meeting the definition of “special education” or “related services” and being included in the child’s IEP. The LEA must provide a child with a disability specially designed instruction that addresses the unique needs of the child that result from the child’s disability, and ensures access by the child to the general curriculum, even if that type of instruction is being provided to other children, with or without disabilities, in the child’s classroom, grade, or building.”  They went on to say, “OSEP recognizes that classrooms across the country are changing as the field of special education responds to innovative practices and increasingly flexible methods of teaching. While the needs of many learners can be met using such methods, they do not replace the need of a child with a disability for unique, individualized instruction that responds to his or her disability and enables the child to meet the educational standards within the jurisdiction of the public agency that apply to all children. ”  This writer suggests that if the school did not want to write them up as specially designed instruction in an IEP, it could also write them up as necessary services in a 504 Plan.

Letter to Ackerhalt, September 6, 2012.  This attorney was questioning a district policy that said that all related services would begin on the third week of school rather than the first week for all students.  OSEP wrote, “On a caseby-case basis, the IEP Team may determine that the individual needs of the child require that the start date of a related service should occur the first week of school or after the beginning of the school year. Therefore, a policy that mandates that related services for all children with disabilities will begin at a specific time after the beginning of the school year (e.g., the third week of the school year) would not be consistent with the IDEA and its implementing regulations at 34 CFR §§300.320-300.324.”

Letter to Northrup, May 21, 2013.  A school in Maine was requiring parents to provide written notice of any concerns they might have three days before an IEP team meeting, apparently based on a previous OSEP letter saying that it would not be unreasonable for schools to require written reports to be made available at least three days before an IEP team meeting.  OSEP concluded by writing, “It may be helpful for parents to raise concerns to the IEP Team prior to the meeting, particularly if resolving the concern would require extensive research or attendance at the meeting by a person who would not otherwise be in attendance. However, we believe that it would be inconsistent with the intent and requirements of the IDEA for an LEA to adopt a blanket policy requiring parents to provide a written copy of their concerns to the IEP Team three days before an IEP meeting in order to have their concerns addressed at that meeting.”  The letter re evaluations and reports from OSEP was inapplicable.

Letter to Breton, September 24, 2013.   This follow up to the Northrup letter was in response to a query from the Director of Special Services, State of Maine.  She reported that the district was only requesting that written statements of concern be presented three days before the meeting, NOT that all concerns had to be in writing at the meeting.   OSEP’s response remained unchanged.  Districts may establish reasonable criteria regarding IEEs.  NOT about how parents express their concerns.  It did say, however, that if the parents wanted a written response that it would be reasonable for the district to take some time in formulating that response.  It concluded, ” However, the IDEA does not permit a public agency to establish criteria for parental participation in an IEP Team meeting. Therefore, we maintain that it would be inconsistent with the intent and requirements of the IDEA for a local educational agency to adopt a blanket policy requiring parents to provide a written copy of their concerns to the IEP Team three days before an IEP Team meeting in order to have their concerns addressed at that meeting.”

Letter to Kelly, October 23, 2013.  A high school did not provide physical education for its general education students.   The question was whether it had to provide it for children with disabilities if it was in their IEP.  The OSEP response cited a Letter to Tymeson and quoting from it wrote, ” Section 300.108(a) does not relieve schools of the duty to provide physical education to those students who have unique needs requiring physical education and have IEPs setting out physical education as part of that student’s special education and related service.”  They concluded by saying that the same analysis in Tymeson also applied to high school students.  (Link to Tymeson provided above.)

Letter to Savit, February 10, 2014.  An attorney questioned the policy of a public school system barring advocates and attorneys from observing in classrooms when children were present. OSEP replied that the IDEA does not provide third parties with the right to observe in classrooms but that state regulations might provide such a right.  The attorney then asked if schools could bar parents from recording meetings.   OSEP’s reply was “An SEA [State educational agency] or public agency has the option to require, prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings. If a State or public agency has a policy that limits or prohibits the use of recording devices at IEP meetings, that policy must provide for exceptions if they are necessary to ensure that the parent understands the IEP or the IEP process, or to implement other parental rights guaranteed under Part B.”  The same guidance, they said, also applied to Resolution Meetings.

Letter to Savit, January 19, 2016.  Key Words:  IEP team meetings, criteria for IEEs.  Also audio and video recordings.  With respect to the latter issue, OSEP quoted Appendix A of the 1999 regualtions, wherein they said that state and local educational agencies could set their own policies, but that they must be enforced uniformly and exceptions must be allowed if need to ensure parents understand the IEP or IEP process.  With respect to qualifications, OSEP quoted the 2006 FR, in which OSERS wrote “[A] public agency may establish qualifications that require an IEE examiner to hold or be eligible to hold a particular license when a public agency requires the same licensure for its own staff conducting the same types of evaluations. However, the agency is prohibited from imposing other conditions or timelines related to obtaining an IEE at public expense. 34 CFR §300.502(e)(2). In short, the IEE must meet the same criteria as the evaluation performed by examiners of the public agency, unless those criteria would result in the denial of an IEE to a parent. For example, children suspected of having a particular disability may require evaluations performed by clinical psychologists who would not meet the qualifications the State educational agency (SEA) requires for school psychologists to be licensed by the SEA.”

Letter to Andel, February 17, 2016.    Key Words:   Parent right to have an attorney at an IEP team meeting.   OSEP concluded this letter by strongly discouraging either party from bringing an attorney to an IEP team    If a parent brings an attorney to an IEP team meeting without telling the school first, the school and either meet or postpone the meeting until it can have its attorney present.  It would not be proper to tell the parent it will meet only if they dismiss their attorney.

Letter to Anonymous, March 3, 2016.   Letter said that NY may have regulation allowing boards to change IEP as long as change not made unilaterally; that IEPs must be developed within 30 days after eligibility determined; that hearing officers names and case numbers should not be redacted from hearing decisions when presented to the public; that a state may impose a requirement for a doctor’s prescription for a related service as long as (1) no cost is incurred by the parent and (2) the requirement does not result in an unnecessary delay in the child receiving services required for him or her to receive FAPE.

Recent Policy Letters *

Letter to Colleague, October 23, 2015.  “The purpose of this letter is to clarify that there is nothing in the IDEA that would prohibit the use of the terms dyslexia, dyscalculia, and dysgraphia in IDEA evaluation, eligibility determinations, or IEP documents.”

Letter to Colleage, November 14, 2015. “Based on the interpretation of “general education curriculum” set forth in this letter, we expect annual IEP goals to be aligned with State academic content standards for the grade in which a child is enrolled. This alignment, however, must guide but not replace the individualized decision-making required in the IEP process.5 In fact, the IDEA’s focus on the individual needs of each child with a disability is an essential consideration when IEP Teams are writing annual goals that are aligned with State academic content standards for the Yep, this describes the state standardized test I'm getting ready to administer next week to a T.: grade in which a child is enrolled so that the child can advance appropriately toward attaining those goals during the annual period covered by the IEP. In developing an IEP, the IEP Team must consider how a child’s specific disability impacts his or her ability to advance appropriately toward attaining his or her annual goals that are aligned with applicable State content standards during the period covered by the IEP. For example, the child’s IEP Team may consider the special education instruction that has been provided to the child, the child’s previous rate of academic growth, and whether the child is on track to achieve grade-level proficiency within the year.”

Training Materials *

IEP Curriculum Module