The Substantive part

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SPECIAL EDUCATION LAW FAPE

• PART II
• The Substantive part

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FAPE

• Procedural
• IEP Team
• Parent input/participation
• Consideration of evaluations, other information
• No predetermination
• Work toward consensus
• Where no consensus, SAU makes an offer of FAPE
• SAU implements plan in timely manner
• Substantive

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FAPE

• Rowley We hold that the state satisfies the
  FAPE requirement by providing personalized
  instruction with sufficient support services to
  permit the child to benefit educationally from
  that instruction.
• Access and benefit from their education
• Some (non-trivial or more than de minimis)
  educational benefit

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Lenn v. Portland School Committee, 998 F.2d 1083
(1st Cir. 1993)

• The IDEA does not promise perfect solutions to
  the vexing problems posed by the existence of
  learning disabilities in children and
  adolescents. The Act sets more modest goals it
  emphasizes an appropriate, rather than an ideal,
  education it requires an adequate, rather than
  an optimal, IEP. Appropriateness and adequacy
  are terms of moderation. It follows that,
  although an IEP must afford some educational
  benefit to the handicapped child, the benefit
  conferred need not reach the highest attainable
  level or even the level needed to maximize the
  child's potential.

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FAPE

• Begins (and often ends) with the IEP.
• IEP 3 parts
• Development
• Contents
• Implementation

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IEP Development

• People
• No FAPE if
• Team doesnt have people who know the student
• Team doesnt have people who know the general
  curriculum
• Team doesnt have people who know what they are
  talking about in the areas of need
• Data/Information
• No FAPE if
• Team doesnt have the necessary information
• Team doesnt use the information it has

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IEP Development

• IDEA/MUSER -- 4 basic considerations
• The strengths of the child
• The concerns of the parent for enhancing the
  education of their child
• The results of the initial or most recent
  evaluations of the child
• The academic, developmental and functional needs
  of the child

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IEP Development

• IDEA/MUSER 5 special factors
• Behavior issues positive behavioral
  interventions/supports
• LEP language needs as those needs relate to the
  IEP
• Blind/visually impaired instruction in
  Braille/use of Braille unless team determines not
  appropriate
• Communication needs and for children who are
  deaf/hard of hearing language and communication
  needs and opportunity for direct communication
  with peers and professional personnel in the
  childs language and communication mode
• Assistive technology devices and services

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IEP Contents

• 8 statutory requirements to be included in the
  IEP
• 6 pertain to preschool children with disabilities
• Core components
• Where child is
• Where Team wants child to be by end of period
  covered by IEP
• Plan for assisting the child to get from A to B

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IEP Contents

• 1. Present levels of academic and functional
  performance
• Information about how the childs disability
  impacts participation in general education
  curriculum/for preschoolers (as appropriate),
  appropriate activities
• Opportunity to describe the problems that are
  obstructing/ interfering/adversely effecting
  childs educational performance
• Includes academic areas and non academic areas
  (behavior, communication issues, mobility, daily
  life skills)
• Sources of information test scores,
  evaluations, observations (formal and informal),
  reports from people who know the child, interact
  with the child on a regular basis

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IEP Contents

• 2. Measurable annual goals
• What the child needs to be able to do to access
  and benefit from their education (general
  curriculum/appropriate activities)
• Need at least one goal for each identified area
  of need
• Goals are projections based on past
  achievement/rate of progress, present levels of
  performance, prioritization, sequencing,
  allocation of time/resources
• Goals should be written at a level that the child
  (with supports/services) has a reasonable chance
  of reaching
• Why overly-ambitious goals are bad
• Why unambitious goals are bad

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IEP Contents

• Short term objectives only for students who are
  taking alternate assessments
• The case for including objectives for
  preschoolers
• The case for not including objectives for
  preschoolers

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IEP Contents

• 3. Statement of how the childs progress toward
  meeting the annual goals will be measured and
  when periodic reports on the progress the child
  is making will be provided to parents
• Measurability matters IDEA 2004 places an
  increased emphasis on accountability, i.e.
  setting measurable goals and then actually
  measuring them!
• Measurability monitoring
• If student is not progressing at expected rate,
  IEP Team needs to meet to consider whether/what
  to do about it
• Adjusting goal v. adjusting services

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IEP Contents

• 4. Statement of the special education and related
  services and supplementary aids and services to
  be provided
• To advance appropriately toward attaining the
  annual goals
• To be involved in and make progress in the
  general curriculum/appropriate activities
• To participate in extracurricular and other
  nonacademic activities
• To be educated and participate with other
  children with disabilities and non disabled
  children

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IEP Contents

• Based on peer reviewed research to the extent
  possible
• Includes program modifications or supports for
  school personnel
• Must be based on the childs needs, not on the
  availability of the services
• Bottom line this is what the public agency is
  binding itself to deliver

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IEP Contents

• Special education
• From IDEA specially designed instruction is
  adapting, as appropriate to the needs of and
  eligible child . . . the content, methodology, or
  delivery of instruction to address the unique
  needs of the child that result from the childs
  disability, and to ensure access to the general
  curriculum, so that the child can meet the
  educational standards . . . that apply to all
  children.
• MUSER (p. 98) additional description for
  children 3-5
• Maine includes speech and language services as
  special education

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IEP Contents

• Related services assist children with
  disabilities to benefit from special education
• Include
• Audiology, counseling, parent counseling and
  training, interpreting/transliteration services,
  orientation and mobility, medical services
  (diagnostic and evaluation purposes only), OT,
  PT, psychological services, recreation,
  rehabilitation and counseling, school
  health/school nurse services, social work
  services, assistive technology, SLT,
  transportation, case management
• Cedar Rapids v. Garret F., 526 U.S. 66 (1999)

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IEP Contents

• 5. An explanation of the extent to which the
  child will not participate with non-disabled
  children in the activities described in the
  regular class and in extracurricular/non-academic
  activities
• This is the LRE statement
• Description of the childs educational placement

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IEP Contents

• 6. The projected date for the beginning of the
  services and modifications and the anticipated
  frequency, location, and duration of those
  services and modifications
• Maine must be within 30 days of determination
  of eligibility
• Maine must reconvene if unable to implement
  within 30 days of development of IEP
• Location does not mean provider

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IEP Contents

• The other 2 pieces for older children . . .
• How the child is going to participate in
  state/local assessments (accommodations,
  modifications, alternate assessment)
• Transition services at age 16 (IDEA), 14 (MUSER)

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IEP Implementation

• Must actually deliver the program described in
  the IEP
• Delivery is not required to be perfect
• Van Duyn v. Baker School District 5J, 502 F.3d
  811 (9th Cir. 2007)
• If something isnt working, must demonstrate some
  sort of response