General Education

Inherently, an Individualized Education Plan should include documentation of the program to be offered to the student. The IDEA requires the written IEP document to include:

“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, or on behalf of the child…(aa) to advance appropriately toward attaining the annual goals; (bb) to be involved in and make progress in the general education curriculum… and to participate in extracurricular and other nonacademic activities; and (cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described [in the IDEA].”

20 U.S.C. section 1414(d)(1)(A)(IV).

Description of special education and related services

“Special education” includes the specially designed instruction or other specialized program to be provided to the child in order to allow that child to make progress in general education, advance towards goals, and participate in activities with peers. Specially designed instruction is a hot topic, because often when discussing instruction, issues of specific curriculum or methodologies arise.

For purposes of the IEP document, the IDEA requires a specific statement of the special education to be provided to the child. While “methodology” and specific “curriculum” may be generally within the discretion of the District, if a student requires a specific program in order to receive FAPE, it may be necessary for that program to be described in the IEP document. In any event, the IEP should contain some description of what is to be provided.

Related services include those specific services that are included in a child’s program in order to meet the child’s needs and provide him/her educational benefit. If a related service is required in order for the child to receive a FAPE, it should be described in the IEP document, along with details about when and how this will be provided, as will be discussed in a future post. Related services include those services listed in the IDEA, such as speech therapy, occupational therapy, etc.

The US Department of Education has clarified that

“the amount of services to be provided must be stated in the IEP, so that the level of the agency’s commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific services, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and the implementation of the IEP.”

Appendix A to 34 C.F.R. part 300, at Q.35.

The IEP document needs to state with specificity what services will be provided to the child. Some school districts believe that if a services is just a “part of their program” it doesn’t have to be listed, but this isn’t necessarily true and does not comport with what the statute requires. If the child is to be provided APE, for example, to meet his or her needs, the IEP document should state so, even if every other child in that class also happens to be provided with APE as part of the program.

Description of supplementary aids and services

Supplementary aids and services include related services, accommodations and supports, consultative services for teachers, etc. The statute specifies that supplementary aids and services to be provided to the child or on behalf of the child should be described in the IEP document. Examples of supplementary aids and services provided on behalf of the child may include training for a teacher or aid in a particular program or about a particular disability.

The phrase “supplementary aids and services” is also referred to within the language regarding Least Restrictive Environment, and it is important therefore to remember that within the requirement for a description of supplementary aids and services, the statute specifies that such supports be provided to “be involved in and make progress in general education curriculum.” The presumption for Least Restrictive Environment requires that an IEP team consider the “full range of supplementary aids and services, that if provided would enable the child to participate in the general education environment,” before moving that child to a more restrictive setting. See Questions and Answers on the LRE Requirements, OSERS, OSEP-95-9. Therefore, when discussing this portion of the IEP’s required content, the team needs to document specifically what supports are required to ensure that the child be placed in the LRE and continue to receive an educational benefit there.

Supplementary aids and services is defined broadly as including any “aids, services and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate.” 20 U.S.C. section 1401(29). Any supplementary aids and services used to support the child in the LRE must be described in the written IEP document.

“Based on peer-reviewed research to the extent practicable”

The written IEP document includes a statement of special education and related services “based on peer-reviewed research to the extent practicable.” The only guidance as to what “to the extent practicable” means is found in the Analysis of Comments and Changes to 2006 IDEA Part B regulations:

“The phrase to the extent practicable generally means that services and supports should be based on peer reviewed research to the extent that it is possible, given the availability of peer reviewed research.”

71 Fed. Reg. 46565 (Aug. 14, 2006)

The Education Department explained that peer-reviewed research refers to “research that is reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of the field before the research is published.” Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46664 (2006).

Although the substantive issues related to instruction and services based upon peer-reviewed research, and what that means in terms of what should be provided to an individual child, is a different topic altogether, peer-reviewed research is relevant to the discussion of required content for the written IEP. Because the statute specifies that an IEP is a written document that includes a statement of special education and related services based upon peer-reviewed research to the extent practicable, the written document should in fact address whether research supports the program offered by the school district. The decision of whether to write in a specific methodology into the IEP document is an IEP team decision. However, regardless of what methodology is utilized, the IEP document itself should document that it is based upon peer reviewed research, where applicable.

Relationship to Goals, General Education, and Progress

The requirement is that the IEP document special education and related services that will enable the child to make progress towards goals, participate and make progress towards general education curriculum, and be educated with and participate in activities with disabled and non-disabled peers. The IEP team must consider the goals that have been developed for the child, the child’s unique needs related to his or her disability, and the child’s needs related to how he/she will progress in general education curriculum, when determining what special education, related services, and supplementary aids and supports must be provided. To be clear, the IEP document should specify how the services, instruction and support will enable the child to meet his/ her goals and make progress towards general education curriculum.

This portion of an IEP’s required written content may be the most complicated, and the most difficult to get right. Ultimately, if the IEP team remains focused on the child’s needs, and how those needs relate to the services, instruction and supports being offered, then the document will be able to reflect clearly what will be provided and how that program provides FAPE. It is important, as with all portions of the IEP, that the District remember that ultimately, the IEP document needs to be clear enough to be understood by all of those involved in developing it and anyone potentially involved in implementing it. If sufficient details are included so that everyone can fully understand the special education and related services being offered, and parents can fully consider all aspects of the program, then a good clear IEP has been written.

In addition to special education, services and supplementary aids and supports that are provided directly to the child, as discussed in the previous report, the written IEP document also includes those supports that are provided to school personnel. These modifications and supports may be critical to the child’s ability to progress in his/her program and to the determination of the child’s least restrictive environment, and this factor should not, therefore, be glossed over by the team or in the document.

The IDEA requires the written IEP document to include:

“a statement of the program modifications or supports for school personnel that will be provided for the child (aa) to advance toward attaining the annual goals; (bb) to be involved in and make progress in the general education curriculum… and to participate in extracurricular and other nonacademic activities; and (cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described in [the IDEA].”
20 U.S.C. section 1414(d)(1)(A)(IV)

Program Modifications

Modifications generally involve changes to the program in terms of what a child is expected to produce or demonstrate within the curriculum. A change in the child’s instructional level (i.e. reducing the grade level of what is presented) or a change in the content (i.e. reducing the amount or changing what is presented) can be program modifications. Likewise, if the format or performance criteria for tests and other curriculum-based achievement measures is substantially changed, so that what is being expected / tested is actually different, that would be considered a program modifications.

Modifications can be distinguished from reasonable accommodations. Accommodations can also be important to a child’s individualized plan, but do not involve substantial alteration of what is expected in terms of performance and achievement within the curriculum. Accommodations may involve differences in how material is presented, how homework is given, how a test format looks, the setting, timing, etc. Accommodations in a classroom may involve preferential seating, repeated directions and reminders, etc, to assist the child in having an equal opportunity to learn.

Supports for School Personnel

These supports include “services that are provided to the teachers of a child with a disability to help them to more effectively work with the child.” Comments to 1999 regulations, at page 12,593. These services could include collaboration and communication with other providers or supports provided within the classroom. “Supports for school personnel could also include special training for the child’s teacher… [such training] would normally be targeted directly at assisting the teacher to meet a unique and specific need of the child, and not simply to participate in an inservice training program that is generally available within a public agency.” Comments to 1999 regulations at page 12,593.

There is a difference, therefore, in training that is provided to everyone, versus training that is provided to this particular teacher based on this particular child’s needs. However, even if the teacher is attending an inservice that is available to others, there may be an argument for having this documented in the IEP. The team needs to remain focused on the unique needs of this child, and if the teacher requires additional inservice training to meet those needs, training he/she would not require if this particular child were not to be placed in his/her classroom, then this is an appropriate part of the IEP document.

Relationship to Child’s Goals and Individual Program

Program modifications and supports for personnel that should be included in the written IEP are those that are necessary for the child to make progress towards annual goals and towards general education curriculum. The IEP team needs to consider the child’s individual goals, and how those goals will be met. Does the teacher require training, support or assistance to be able to provide the research-based specialized instruction that the team has determined to be appropraite? If so, that may need to be added to the IEP.

Relationship to General Education Curriculum and Least Restrictive Environment

The relationship between program modifications and supports for personnel to a child’s access to the general education curriculum is so important that the IDEA specifies that the general education teacher participating in the development of the IEP must be involved in the determination of such modifications and supports, as well as any supplementary aids and services provided to the child. See 34 C.F.R. section 300.324(a).

Modifications to the program may be required in order for the child to be involved in and progress in the general education curriculum, and the necessity of such modifications should not be considered evidence that general education curriculum isn’t appropriate. Rather, the IEP team needs to decide, and document, what modifications are appropriate on an individual basis so that the child can access the general education curriculum in a manner that is appropriate to his / her unique needs and learning difficulties while still allowing for progress.

A school district may state that if a child requires program modifications, rather than merely accommodations in the classroom, then it is not appropriate for that child to be in a general education classroom. This position is not consistent with the IDEA’s preference for least restrictive environment, or with the statute’s requirement that the written IEP document include a statement of program modifications that allow for the child to be involved in the general education curriculum and to be educated and participate with nondisabled peers.

Likewise, the IEP team needs to fully consider, and clearly document, supports for personnel that are required in order for the child to access general education curriculum and to access the Least Restrictive Environment. Maybe the general education teacher needs some in-service training related to the child’s disability or to behavioral strategies or communication strategies so that the child can be in the general education classroom; if the training is required specifically to meet your child’s individual needs, this in-service should be documented as a support for the personnel. Perhaps the teacher needs additional assistance in the classroom, even if the child does not individually require a 1:1 aide; if so, this support should be documented in the IEP. Even something like consultative time from the child’s related services providers may be considered an important support for the teacher and staff. It is important that the general education teacher be an active participant in these discussions, and that the IEP document clearly indicate what supports will be provided.

Although not often included within an IEP document there are related services provided for under the law that are specific to Parents. The 2006 IDEA Part B regulations made it clear that while the 2004 statute did not include these services, the Department of Education believed that retaining the parent services were necessary in order to provide parents with counseling and training necessary to support the implementation of their child’s IEP. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46573 (2006).

There are five types of related services that an IEP team may find are appropriate for parents:
1) Counseling and guidance of parents regarding hearing loss and the related service of audiology. 34 CFR 300.34(c)(1).
2) Parent counseling and training. 34 CFR 300.34 (c)(8) This includes assisting parents in understanding the special needs of their child, providing parents with information about child development, and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s IEP.
3) Planning and managing a program of psychological counseling for children and parents. 34 CFR 300.34 (c)(10).
4) Group and individual counseling with the child and family. 34 CFR 300.34 (c)(14).
5) Counseling of parents regarding speech and language impairments and the related service of speech pathology. 34 CFR 300.34(c)(15).

A parent may be eligible to receive sign language training in order to have the necessary skills to implement the child’s IEP. See 34 CFR 300.34(c)(8). Although not automatically provided to parents of a student who is deaf or who has speech deficits, it is required when an IEP team decides that such training is needed for the student to benefit from special education. See Letter to Dagley, 17 IDELR 1107 (OSEP 1991); see also Letter to Anonymous, 19 IDELR 586 (OSEP 1992).

Hearing officers have also found that a LEA has to reimburse parents for private evaluations of students finding that the assessment was required to help parents acquire the necessary skills that will allow them to support the implementation of the child’s IEP. See Hawaii Dep’t of Educ., 102 LRP 3706 (SEA HI 2000) (finding that the state education department had to reimburse parents for testing and evaluations of their child performed by a private evaluator).

Parent training can also be provided in the home setting. In re: Student with a Disability, a hearing officer determined that an IEP for an 8-year old with Autism was not sufficient because it did not include parent training. In that case the IHO cited New York state regulation that mandated parent counseling and education for the purpose of enabling parents to perform appropriate follow-up intervention activities at home for children who were classified as autistic. The IHO concluded that the evidence overwhelmingly pointed to the need for training to enable the parent to perform follow-up ABA therapy in their home. Furthermore, the IHO disagreed with the district’s position that simply informing the parent that she could come to school and observe ABA instruction was sufficient to satisfy its IDEA requirements. See In re: Student with a Disability, 102 LRP 8600 (SEA NY 2000).

Under some circumstances, transportation services are also available to parents when a student is placed at a residential placement. The IDEA does not set a minimum on the number of parents visits that a LEA is expected to fund to the residential facility. If a state or district policy on the number of trips does exist, however, it must allow for a case-by-case determination of how much visitation is necessary given the student’s unique needs. A district may be required to fund a number of visits to a placement in order for parents to participate in other related services. In New Prairie United School Corporation, the court found that the district was obligated to fund either 12 parental visits to the school annual or 12 visits home, where parental visitation allowed for parents to participate in a family therapy program and training. See New Prairie United Sch. Corp., 30 IDELR 346 (SEA IN 1999). In Aaron M. by Glen M. and Lindy M. v. Yomtoob, the court found that parents were entitled to six trips per year to son’s out-of=state residential placement in order to learn skills and strategies to work with their son. See Aaron M. by Glen M. and Lindy M. v. Yomtoob 38 IDELR 122 (N.D. Ill. 2003).

Many of the other required content components of a written IEP document are directed at how a child can and will participate in the general education curriculum and regular education environment.

To recap: PLOP must state how a child’s disability affects his/her involvement and progress in the general curriculum. Goals must be included that enable the child to be involved in and progress in general curriculum. The statement of special education and related services must include those services that are required to enable the child to progress in general education curriculum as well as to participate in activities with and be educated with non-disabled peers. Supplementary aids and services must be included that allow the child to participate in general education to the maximum extent appropriate. Even supports necessary for staff can be related to a child’s participation in general education.

After all of that effort to include components geared towards inclusion in general education, it logically follows that if a child is still unable to participate in general education to any extent, that should also be documented.

The IDEA requires that the written IEP document include:

“an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in activities[].”

20 U.S.C. section 1414(d)(1)(A)(V)

Look to your state’s education code as well, as there may be additional language requiring documentation of a child’s non-participation in general education. California law, for example, required the District to “document its rationale for placement in other than the pupil’s school and classroom in which the pupil would otherwise attend if the pupil were not handicapped. The documentation shall indicate why the pupil’s handicap prevents his or her needs from being met in a less restrictive environment even with the use of supplementary aids and services.” Title 5, California Code of Regulations, section 3042(b).

In any event, the IEP document must include at a minimum an explanation that describes the extent to which the child will not participate in a regular class and activities. This can be done a number of ways. The IEP document may include a percentage of time, that indicates for X% child will be placed in general education classes, and for X% child will be placed in a special education setting. The IEP document may list specific time periods, subjects or classes, such as “child will participate in a general education class / setting for homeroom, math, science, social studies, computers, lunch and recess; child will participate in a special education classroom for language arts and reading.” The IEP document needs to be clear so that those developing and implementing it understand how much the child is not to participate in the general education setting. It is also good practice to indicate the explanation, or justification, for removal from that setting.

The requirement refers not only to a regular classroom, but also to regular activities. Therefore, the extent to which the child will not be able to participate in regular education activities should also be documented in the IEP. This may include extracurricular and nonacademic activities in some cases, or may indicate recess, assemblies, etc.

These requirements are built into what is to be included in the IEP document in order to prompt the IEP team to fully consider LRE. If the IEP team needs to document an explanation for the child’s nonparticipation in a general education setting, the theory is that it will give more careful consideration to the determination that the child should be removed from that setting.

Remember, like all required content, this statement should give parents enough information to fully participate in the development of the IEP. Parents need to understand when, why and how a child will be removed from the least restrictive environment in order to fully consider such an option.

The terms “neighborhood school,” “school of residence,” or “home school” are often used interchangeably by school districts, parents and others. A child’s “school of residence” is the specific school site that he or she would attend if not disabled. “School of residence” is determined by a district procedure that is used to determine what school each child in the district is assigned to, usually it is determined geographically according to the address of the parents. This is the school you would enroll your child in if there wasn’t an IEP in the mix.

There is no absolute requirement that children attend their school of residence, even if they are fully included in a general education setting. The choice of appropriate placement depends on the child’s unique needs as determined by the IEP team. Some school districts have policies that require all kids with IEPs who are placed in general education to be placed in their home school. Although this may be beneficial to some kids, there are parents who have concerns about the lack of an individualized decision in these situations. On the other hand, many parents may be in a school district that does not have such a policy, but instead may have a practice of grouping kids with IEPs at particular school sites that have inclusion support and other services. Parents in those districts may be concerned about the fact that their child then cannot be included in their “neighborhood school” with kids from their community.

Ultimately, parents have to be included in any team that is making placement decisions about their child. A child’s school of residence is one placement consideration on the continuum of available options, and parents should think about the positive benefits of placement in the neighborhood school and discuss these benefits with the team.

The IDEA requires that the written IEP document include:

“a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments…; and if the IEP team determines that the child shall take alternative assessment on a particular State or districtwide assessment of student achievement, a statement of why (AA) the child cannot participate in the regular assessment; and (BB) the particular alternative assessment selected is appropriate for the child.”
20 U.S.C. section 1414(d)(1)(A)(VI)

What are state and district-wide assessments?

A lot can be written and discussed about the topic of state-wide and district-wide assessments, especially in regards to “high stakes testing.” Because this blog post is focused on what is required content in the IEP related to such assessments, only a brief overview is provided: State-wide assessments are standardized measures utilized by school districts throughout the state to determine a child’s academic achievement within a particular grade level. These assessments are determined by state law or the state department of education, and are utilized to measure a school’s performance. Some states mandate specific tests that are used as part of the determination of whether a child moves from grade to grade, or whether a student earns a diploma. Because performance on these tests has such an impact, these tests are referred to as “high-stakes testing.” District-wide assessments are standardized measures utilized within a local education agency / school district, as determined by district policy. These measures may be given at the end of the year, or periodically throughout the year. Sometimes, they are directly tied to the curriculum a school district is using. Periodic or yearly district-wide assessments are used for a variety of reasons, such as determining a child’s progress, determining which students require intervention within the general education program, etc.

What individually appropriate accommodations are necessary and how should they be documented?

The IEP document must include individually appropriate accommodations based on the particular student’s unique needs that are necessary on district-wide or state-wide testing. Accommodations should be those which the child needs in order to have an equal opportunity to participate in the assessment, and so that the assessment measures the child’s academic achievement with minimal impact by that child’s disability. If, for example, a child is extremely distracted in a large group setting, a separate testing area may be necessary.

The IEP document should be specific about these accommodations, avoiding generic language that is not easily interpretted by anyone reviewing and implementing the accommodations. It should specifically spell out what accommodations are needed and how those accommodations will be provided / implemented.

Will accommodations affect how the tests are normed or graded?

Another issue that could be discussed in length, but will only be discussed for purposes of this post briefly, is the issue of how accommodations affect the norming or grading of an assessment measure. This is a question that parents should ask during an IEP team’s discussion of accommodations. Accommodations that seriously change what is actually being measured are actually modifications, and these may mean that the test is not “normed” or even that it is not reported for purposes of the school district’s accountability reporting. If you want to see what your child knows as compared to same-grade peers, normed assessments may give you a good indication, assuming that appropriate accommodations have been given to give your child a fair chance. In any event, this is a discussion that impacts the parents ability to fully participate and understand what accommodations are appropriate, and so this discussion should be held when the IEP team is determining what to document about accommodations.

What are alternative assessments and how are they to be documented in the IEP?

Alternative assessments are related to the provision of alternative curriculum standards that are modified, rather than based upon grade level curriculum standards. If a child is recieving alternative curriculum rather than general education curriculum with modifications, accommodations and supports, then the IEP team may determine that the child should participate in alternative assessment measures, rather than the standardized district-wide or state-wide testing. Again, this is an issue that can and should be discussed in length elsewhere. For purposes of this blog, it is important for IEP participants to understand what should and must be documented with regards to this issue.

The IEP document must include a statement of why the student cannot participate in the regular district-wide or state-wide assessment. This statement should be specific to the child and based on the individual child’s unique needs, rather than a generic statement. A statement, for example, that “because of Child’s autism, the statewide testing is not appropriate,” is not a clear statement of why the child cannot participate. This statement would seem to indicate that no child with autism could participate, which is certainly not the case for any disability. Therefore, the statement should include specific information regarding that particular child, and why the child cannot participate. Specific information will be useful down the line because as the child’s needs change and he/she makes progress, it will be easier to reevaluate whether the regular standardized measure is now appropriate.

The IEP document also must specify what particular alternative assessment was selected and why that particular alternative assessment is appropriate for that specific student. Again, this statement should be based on the child’s individual needs, rather than generic language about an assessment measure. It is interesting to consider that the IDEA requires such a statement, given that most districts utilize one alternative assessment measure that is used for all students who cannot participate in regular testing. The language of the required content in regards to alternative assessments implies that the IEP team is to make an individualized determination and to document a clear explanation of how that determination was based on the child’s individual needs.

The IEP document must include a statement of the special education, related services and program modifications to be provided to the student. In regards to those components, the statute includes an additional requirement that designates specific details about the services that must be included.

The IDEA requires the written IEP document to include:

“the projected date for the beginning of the services and modifications… and the anticipated frequency, location and duration of those services and modifications.”

20 U.S.C. section 1414(d)(1)(A)(VIII).

When will the services and modifications described in the IEP begin?

The projected start date describes when the IEP will be “in effect” for this student. In many instances, an IEP can begin to be implemented right away. However, in some instances, the IEP team may be meeting for the purposes of determining services that are to begin at a later date, for example the following school year.

In any event, the IEP document needs to specifically state when the services are to begin. The District is required to implement that IEP consistent with the start date and in a manner that does not delay the provision of FAPE to the student.

What will be the frequency and duration of the services?

This is the “how often and how much” portion of the IEP. Once services are identified as necessary for the child, the IEP team needs to determine how often the child will recieve those services and how much time will be provided for each service. This determination should be individualized, and based on the child’s identified unique needs, not based on a policy or district administrative decisions. For example, how often a child should recieve speech therapy should be based on his/her unique needs in the areas of speech, language and communication, how those needs impact his/her ability to access the curriculum, how these needs impact his/her functional skills, interactions with peers, etc, and other individual factors like attention span, or how the child generalizes skills. It should not be based on a district determination that all children with this disability recieve 2 times per week of speech therapy.

Whatever the IEP team determines, the IEP document must include a statement that is specific as to the frequency and duration of the services, so that all of those involved in developing and in implementing the IEP fully understand exactly what is to be provided.

What will be the location of the services?

Location can relate to several different considerations. Location may mean whether the service is to be provided within the child’s classroom setting or whether the service is to be provided in a separate setting, like a therapy room, clinic setting, or counseling office. Location may mean whether the service will be provided at the school the child attends or at a private or non-public agency’s office, like the office of a private speech pathologist or occupational therapy. Finally, location may mean the actual school that the child will attend and where the child will recieve services, although this definition of location causes much debate.

The IEP document is required to specifically identify the location of the services. Although there are many different things the IEP team should consider in determining location and how it should be described, the team should avoid generalized statements like “a district school location” and try to include specific information that gives the parents and other team members enough detail to understand what is being provided.

Importance of this information

“The amount of services to be provided must be stated in the IEP so that the level of the agency’s commitment of resources will be clear to the parents and other IEP team members.” Appendix A to 34 C.F.R. part 300, at Q35. This required content serves the purpose of clarifying the District’s implementation duties, so that all persons working with the child understand what is to be provided and at what rate. It also serves the purpose of providing parents with enough information to meaningfully participate in the development of the IEP and fully consider the appropriateness of what is being offered. A parent may agree, for example, that her child requires speech therapy, but without knowing how much speech therapy is offered, it would be impossible for the parent to know if the IEP was appropriate.

The requirement that the IEP document location of services is a cause of much debate. Location in terms of in-class versus out-of-class (or the “push-in” model versus “pull-out” model) may be debated between parents and educators. In recent years, more emphasis has been placed on providing “push-in” services within the classroom setting or other natural environments. While this model is supported by the idea of providing services in the least restrictive environment, parents often feel that their child cannot fully benefit without more individualized services outside of the classroom setting.

Location in terms of the physcial school site is also a debate. In many cases, judges have agreed with school districts that the specific school site is an administrative decision, and that therefore failure to designate the specific school is not a FAPE violation, depsite the requirement that the IEP designate the “location” of services and program modifications to be provided. In some specific cases, however, the failure to identify a specific school has been found to deny student a FAPE. See, for example, A.K. v. Alexandria City School Board, 484 F.3d 672 (4th Cir 2007).

As with any component of the IEP, if the team determines that a specific location is requried to provide the student a FAPE, then that location needs to be specifically identified. In any case, some information describing the location of the services, along with the frequency and duration of the services, must be provided to conform to the statute and allow parents to meaningfully participate in the process.

Under the IDEA “medical services” that are eligible “related services” are those specific “services provided by a licensed physician to determine a child’s medically related disability that results in the child’s needs for special education and other related services.” 34 CFR 300.34(c)(5). Therefore, if the medical services is necessary for diagnostic purposes it is required under the IDEA.

The Supreme Court has adopted a bright line rule on this issue as well, finding that medical services that can only be delivered by a physician are not related services and that health care support services, which can be administered by a person other than a physician are related services under the IDEA and therefore the responsibility of the school district. See Irving Independent School District v. Tatro, 555 IDELR 511 (1984), affirmed in Cedar Rapids Community School District v. Garret F. by Charlene F., 29 IDELR 966 (1999).

The Department of Education clarified in the 2006 IDEA Part B regulations that school districts are responsible for “providing services necessary to maintain the health and safety of a child while the child is in school, with breathing, nutrition, and other bodily functions (e.g., nursing services, suctioning a tracheotomy, urinary catheterization) if these services can be provided by someone who has been trained to provide the service and are not the type of services that can only be provided by a licensed physician.” See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46571 (August 14, 2006). Thereofre, a medically fragile student, for example, would be eligible for health care related services that are supportive services the child needs to receive during the day in order to be able to attend school and thereby benefit from his or her education and should be noted in the child’s IEP.

The Department of Education also clarified what type of medical services would not be related services. Specifically the DOE clarified that the optimization of a surgically implanted device’s functioning, maintenance of the device or replacement of the device that requires the expertise of a licensed physician or an individual with specialized technical expertise beyond that typically available from school personnel (e.g., mapping of a cochlear implant) was not a related service. See id.; see also 34 CFR 300.34(b)(1). This does not limit, however, the right of the student with a surgically implanted device to receive other related services that are necessary for the child to receive a FAPE. It also does not limit the responsibility of the district to monitor and maintain devices that are need to maintain the health and safety of the child while he or she is being transported to and from school or is at school. Nor does it prevent the routine checking of a external component of a surgically implanted device to make sure it is functioning properly. See 34 CFR 300.113(b).

One related health service that a school district would likely responsible for would be vision therapy, if it was necessary to assist the child’s educational needs and did not require administration by a physician. The decision about whether a student requires a related service such as vision therapy is, of course, a case-by-case determination for what is required for a FAPE.

For example, in Dekalb County Sch. Dist., the 11th Circuit ruled that a district’s IEP for a student with a visual condition, which had not manifested itself in poor educational performance, prevented him from receiving FAPE. The court upheld an order to the district to pay for the student’svision therapy services. The evidence showed the student’s significant visual problems would become much worse and interfere significantly with his ability to benefit from special education without the therapy. Therefore, the district was required to provide vision therapy in order to offer the student FAPE. See Dekalb County Sch. Dist. v. M.T.V. by C.E.V. and C.T.V., 45 IDELR 30(11th Cir. 2006). In Eugene Sch. Dist., however, it was determined that a student eligible for special education with Emotional Disturbance did not require vision therapy to benefit from his education as his above-average performance in reading comprehension undermined the parent’s position that he required vision therapy to make academic progress. See Eugene Sch. Dist. 4J, 35 IDELR 52 (SEA OR 2001).

With the start of school looming in the not-so-distant future it’s time to get prepared for those IEP meetings – you know the ones you requested at the end of the school year and will be happening sooner than you know it once school is back in session. So here’s some pointers for what you can expect when you’re expecting an IEP and what to avoid.

Preemptive Strikes

If you requested an IEP at the end of the school year the District may have already scheduled an IEP or may be contacting you shortly to do so. As with many IEPs the District may only schedule a few hours for the meeting. If you think the meeting is going to take longer or, especially in this scenario, the IEP is to review reports from the school district, which you have not received a copy of yet, make a request for two IEP dates. As soon as school starts, if not sooner, send a follow-up letter requesting a second IEP date in the event that the meeting does not finish in the allotted time – indicate that if you have a chance to review the District’s reports ahead of time then you likely won’t need the second meeting. This will have one of two results: 1) the district will make sure you get the reports ahead of time; or 2) they won’t be shocked when you ask to have more time to review the reports and come back a week later to finish the IEP. (Well in all honesty there is a third option where someone moans and whines about coming back again to finish the IEP – in that circumstance let them know that you value their time but you did indicate that you would need the reports ahead of time so they should really talk to the person in charge.)

Another issue that you may need to take a stand on before the meeting even happens is attendance of IEP members. Under the law required IEP team members need to be present or have been excused ahead of time. Required members include the core team members as well as anyone who may have done an assessment, for example. Many a time a school district will wait until the meeting to give you a form to sign to have the member leave or just say they have to leave. If you think you need all the members there the whole time or there is someone in particular whose input you think is necessary – let the district know in writing beforehand that you expect that person or persons to be in attendance the whole time or -again – they can schedule another meeting the following week to ensure full audience/IEP team member participation.

What Not to Say and How Not to Say It

I have clients ask me all the time what they shouldn’t say at an IEP meeting. Generally speaking you should feel free to share any information you think is important about your child.

What you should not say is that you want what is “best” for your child. That’s the most dreaded four letter word a client could say. As harsh as it may be and even if the district members of the IEP team freely toss it around,your student is not entitled to the “best” and therefore don’t ask for it. And if you say it once you can’t take it back – someone, somewhere at some point will remember that. (If only there was a citronella collar for parents that would spray them in the face every time they said “best” like with a barking dog.)

Also don’t yell at the IEP team. I realize that this is emotional and that now that you can’t say you want what is best you’re feeling a little frustrated and that someone may be looking at you like you asked for your child to take a shuttle to the moon instead of an extra half hour of speech but above all else it is best if you keep your cool. Why? Well for starters every member of the team may not remember why you yelled but they will remember that you did and that can hurt your creditability later on if you need to go the next level (such as a due process hearing). Second, if you do decide to litigate a matter you don’t want the impression that it was done for any other purpose other than to get what is appropriate for your child, and not to retaliate against the school district. Which brings us to a whole other list of things not to say – that you will make them pay, that you will sue someone personally, etc. Basically, you need to be the Mother Theresa, Gandhi, Dalai Lama, Martin Luther King of the IEP team. Find a way to get your point across and still get along with everyone or at least be civil.

Finally, know when it is best to say nothing at all. If the district is digging themselves a shallow grave – let them do it. This is probably the hardest part of any IEP meeting and can probably best be demonstrated with a real-life example. If you are tape recording an IEP meeting and several members of the team indicate that they don’t have the power to make a decision in this matter and that you will need to speak to someone at the “district’ (which apparently they are not a part of), just ask for clarification (”So, just to clarify you can’t offer my student a NPS, speech and language, etc.”) and when they affirm it is best to be quiet at this point. Why? Well, if you’ve been paying attention you would know that this is clearly a big no-no on the part of the IEP team and someone at the “district” may be more willing to be cooperative after you share this snippet of information.

Don’t Sign Anything

I’ve said this before (I’m sure) but don’t sign anything at the meeting that you haven’t fully had the chance to read – and this goes for more than the IEP itself. What could they possibly ask you to sign, you ask, well here are a few: an invitation to the IEP meeting (that you never received), an assessment plan (for an assessment they will be presenting that you never agreed to or participated in), or an excusal of IEP team members (who you want there). Note that most of these are items that you had to agree to before the IEP meeting, not once you are sitting there ready to go.

My Favorite Thing To Say

And no it is not supercalifragilisticexpialidocious. It may, however, make you sound precocious. Anyway, I have found it is a way to disagree with what someone is saying and yet make them feel in control of the situation. Here’s the setup: An IEP team member is rattling off about how your child does not need some related service, let’s say speech and language. You, however, have their own report which indicates that the student has needs in the area of pragmatics. What to say: “Correct me if I’m wrong, but couldn’t a speech therapist address pragmatics, and doesn’t your report indicate that is an area of concern?” And now what can they say? The trick, of course, is to not ever say anything that is wrong and therefore never be corrected.

If after reading this you are under the impression that these types of scenarios could never happen – then it is likely you’re a first-timer or early on in the process and would benefit from learning about what is legally mandated to be in an IEP. You should then see the posts labeled “Breaking Down the IEP” – a series of posts that walks you through the nuts and bolts of what goes in an IEP. The most beneficial thing a parent (or teacher, or any other IEP participant) can do is to educate themselves about IEPs, special education programs, and the rights and responsibilities of parents and districts. The more you know, the better you can advocate for your child!

There are certain circumstances where a Parent of a student with special needs may decide to place their child in a private placement even if they believe the school district is providing an appropriate placement.

A parentally-placed private school child with a disability is, under the law a child “with disabilities enrolled by their parents in private, including religous schools or facilities that meet the definition of elementary school or secondary school,” who have not been referred to that placement by the LEA. See 34 CFR 300.130. When you have privately placed your student, generally speaking, you are not entitled to services for that student.

School districts do, however, have an obligation to allocate some special education funds to parentally-placed private school children. If the school district decides to provide a student with any services they must develop an individual services plan, which describes the specific special education and related services to be provided to each private school student. See 34 CFR 300.132(b). These service plans are to be developed, reviewed, and revised consistent with the procedures governing IEPs. See 34 CFR 300.137(c)(1). In preparing service plans and providing services, the district must consult with private school representatives. See 34 CFR 300.137(c)(2). In particular, the district must ensure that a representative of the private school attends these meetings, or in the alternative, uses other methods to secure the involvement of such individuals such as individual or conference phone calls.

IEPs are generally more comprehensive than the more limited services plans developed for parentally placed private school children with disabilities designated to receive services. A services plan should reflect only the services offered to a parentally placed private school child with a disability designated to receive services and must, to the extent appropriate, meet the IEP content requirements or, when appropriate, for children aged three through five, the IFSP requirements as to the services that are to be provided. See Questions and Answers on Serving Children with Disabilities Placed by Their Parents at Private Schools, 106 LRP 57733 (OSEP 2006).