History of the Law; History of the Law; FAPE; and IEPsFAPE; and IEPs

Leslie Yoder, Shawn Bromeland, Leslie Yoder, Shawn Bromeland, Randy Comfort, Randy Althoff, Randy Comfort, Randy Althoff,

Stacey DahlbyStacey Dahlby

The History of The History of Special Education LawSpecial Education Law

Chapter FourChapter Four

“ “It is doubtful that any child may succeed in It is doubtful that any child may succeed in life if he is denied the opportunity of an life if he is denied the opportunity of an education. Such an opportunity, where the education. Such an opportunity, where the state has undertaken to provide it, is a state has undertaken to provide it, is a right that must be made available to all on right that must be made available to all on equal terms.”equal terms.”

Chief Justice Earl WarrenChief Justice Earl Warren

Brown v. Board of EducationBrown v. Board of Education (1954, p.493) (1954, p.493)

Role of the schoolRole of the school

In the United States, education is viewed In the United States, education is viewed as:as: a birthrighta birthright fundamental to the creation of citizensfundamental to the creation of citizens crucial to the democratic process crucial to the democratic process

Case History ScenariosCase History Scenarios

Watson v. City of CambridgeWatson v. City of Cambridge (1893) (1893) Disabled students may be expelledDisabled students may be expelled

Beattie v. Board of EducationBeattie v. Board of Education (1919) (1919) Disabled students may be excludedDisabled students may be excluded

Department of Public Welfare v. Haas Department of Public Welfare v. Haas (1958)(1958) State not required to provide free public State not required to provide free public

education for the “feeble minded” or “mentally education for the “feeble minded” or “mentally deficient.”deficient.”

Change BeginsChange Begins

Parental AdvocacyParental Advocacy Turn of the 20th centuryTurn of the 20th century 1910- 1st White House Conference on Children1910- 1st White House Conference on Children

Intended to establish remedial programs for children Intended to establish remedial programs for children with disabilities ot special needs.with disabilities ot special needs.

Inspired trend of education rather than Inspired trend of education rather than institutionalization.institutionalization.

1910-1930 significant increase in segregated 1910-1930 significant increase in segregated classes and support services in public schoolsclasses and support services in public schools

Social & Economic FactorsSocial & Economic Factors

The Great Depression (1929-32)The Great Depression (1929-32) Increasingly heterogeneous student Increasingly heterogeneous student

populations increase social tensionpopulations increase social tension Growth of Advocacy Group Growth of Advocacy Group

1933 Cuyahoga County Ohio Society for the Retarded 1933 Cuyahoga County Ohio Society for the Retarded ChildChild

1922 Council for Exceptional Children1922 Council for Exceptional Children 1950 National Association for Retarded Citizens1950 National Association for Retarded Citizens 1974 Association for Persons with Severe Handicaps1974 Association for Persons with Severe Handicaps

Impact of the Impact of the Civil Rights MovementCivil Rights Movement

Under it’s Constitution, the US provides Under it’s Constitution, the US provides citizens with citizens with individual rightsindividual rights

These rights were not provided to all These rights were not provided to all citizens on an equal basiscitizens on an equal basis

Brown v. Board of Education Brown v. Board of Education (1954)(1954) The high court reasoned that because of the importance of The high court reasoned that because of the importance of

education in our society, the effects and consequences of racial education in our society, the effects and consequences of racial segregation essentially denied the students affected of equal segregation essentially denied the students affected of equal educational opportunities.educational opportunities.

Subsequent Equal Opportunity Subsequent Equal Opportunity CasesCases

Pennsylvania Association for Retarded Pennsylvania Association for Retarded Citizens (PARC) v. Commonwealth of Citizens (PARC) v. Commonwealth of Pennsylvania (1972)Pennsylvania (1972)

Mills v. Board of Education of the District Mills v. Board of Education of the District of Columbia (1972)of Columbia (1972)

Federal LegislationFederal Legislation

Education of Mentally Retarded Children Education of Mentally Retarded Children

Act of 1958Act of 1958 Training of Professional Personnel Act of 1959Training of Professional Personnel Act of 1959 1965- Elementary and Secondary Education 1965- Elementary and Secondary Education

ActAct Education of the Handicapped Act of 1970Education of the Handicapped Act of 1970 Rehabilitation Act of 1973 (Section 504)Rehabilitation Act of 1973 (Section 504) Education Amendments of 1974Education Amendments of 1974

Federal Legislation cont.Federal Legislation cont.

Education for All Handicapped Children Education for All Handicapped Children

Act of 1975Act of 1975 Handicapped Children’s Protection Act of 1986Handicapped Children’s Protection Act of 1986 Infants and Toddlers with Disabilities Act of Infants and Toddlers with Disabilities Act of

19861986 Individuals with Disabilities Education Act of Individuals with Disabilities Education Act of

19901990

Recent Federal InvolvementRecent Federal Involvement

IDEA Amendments of 1997IDEA Amendments of 1997 No Child Left Behind Act (2002)No Child Left Behind Act (2002) President’s Commission on Excellence in President’s Commission on Excellence in

Special EducationSpecial Education Individuals With Disabilities Act of 2004Individuals With Disabilities Act of 2004

Free Appropriate Free Appropriate Public EducationPublic Education

FAPEFAPE

Chapter 9Chapter 9

The Flow of IDEAThe Flow of IDEA

Local LevelIEP

Hearing OfficerMediation Decisions

State LevelFAPE

State StandardsState Laws/ Courts

National LevelIDEA

Federal LawsUS Supreme Court Cases

(E)ducaiton for (A)ll (H)andicapped (E)ducaiton for (A)ll (H)andicapped (C)hildren (A)ct (now IDEA) 1975(C)hildren (A)ct (now IDEA) 1975

Pre 1975: Pre 1975: ExclusionExclusion and and NeedsNeeds not met not met EAHCA provided Federal Financial Aid to states for EAHCA provided Federal Financial Aid to states for

Special EducationSpecial Education EAHCA defined that EAHCA defined that allall students have a right to Free students have a right to Free

Appropriate Public Education (FAPE)Appropriate Public Education (FAPE) States had to submit plans for to provide that all students States had to submit plans for to provide that all students

with disabilities had a FAPE right.with disabilities had a FAPE right. Goal was/is Equal Opportunity not Outcome (does not Goal was/is Equal Opportunity not Outcome (does not

guarantee success of student)guarantee success of student)

FAPE Mandate of IDEAFAPE Mandate of IDEA

4 parts define FAPE4 parts define FAPE 1. Provided at Public expense1. Provided at Public expense 2. Must Meet State Standards2. Must Meet State Standards 3. State must provide an appropriate 3. State must provide an appropriate

preschool through secondary educationpreschool through secondary education 4. Provided in conformity with an 4. Provided in conformity with an

Individualized Educational Plan (IEP)Individualized Educational Plan (IEP)

The Free and AppropriateThe Free and Appropriate FreeFree

Must provide services related to education free of Must provide services related to education free of cost.cost.

You are not allowed to NOT provide services because You are not allowed to NOT provide services because of cost.of cost.

However you can consider cost in determing servicesHowever you can consider cost in determing services Free only applies to parents, not to other providersFree only applies to parents, not to other providers

Challenges to FAPE are primarily on the “appropriate” Challenges to FAPE are primarily on the “appropriate” componentcomponent

Scenario 2Scenario 2 If its not the best, is it still reasonable?If its not the best, is it still reasonable?

School Personnel Procedural School Personnel Procedural RequirementsRequirements

School Personnel must follow procedural School Personnel must follow procedural mechanisms: mechanisms:

a) Notice to parents when plan discusseda) Notice to parents when plan discussed

b) Invitation to parents to participateb) Invitation to parents to participate

c) Parental consent prior to evaluationc) Parental consent prior to evaluation

d) Parental examination of recordsd) Parental examination of records

e) Allow for independent evaluation at public e) Allow for independent evaluation at public expense (+ mediation) if parents disagree expense (+ mediation) if parents disagree with school evaluation.with school evaluation.

Components of an IEPComponents of an IEP The IEP meeting needs to have:

Representative of the public agency (school district); Student’s teacher; Student’s parents

Required to have six components:1. Statement of student’s present educational level2. Measurable annual goals3. Statement of special education and related services4. Statement of transition services5. Date special education services begin and anticipated

duration of the services6. Appropriate objective criteria and evaluation procedures.

Scenario 3Scenario 3

Complex health issues requiring physician’s care do not Complex health issues requiring physician’s care do not qualifyqualify

Who has to pay? Are schools required to provide for Who has to pay? Are schools required to provide for medical issues? medical issues?

Irving ISD v. Tatro (1984)Irving ISD v. Tatro (1984)

““Bright Line” Test + FAPEBright Line” Test + FAPE

3 part test for related services 3 part test for related services (Irving ISD v. Tatro 1984)(Irving ISD v. Tatro 1984)

1. Must be IDEA eligible,1. Must be IDEA eligible,

2. Service must be necessary to assist the child in 2. Service must be necessary to assist the child in Special Education,Special Education,

3. Must be performed by a nurse or other qualified 3. Must be performed by a nurse or other qualified person.person.

Some challenges to this, but medical things “mostly” Some challenges to this, but medical things “mostly” qualify as related service requirement.qualify as related service requirement.

FAPEFAPE ““Rowley” two part test:Rowley” two part test:

1. Has the school complied with the procedures of the 1. Has the school complied with the procedures of the Act? (Procedural)Act? (Procedural)

2. Is the IEP reasonably calculated for student 2. Is the IEP reasonably calculated for student success? (Substantive)success? (Substantive)

Students do not have a right to the “best possible” Students do not have a right to the “best possible” education, education,

Technical/procedural errors do not equate to FAPE Technical/procedural errors do not equate to FAPE violationviolation

Measurable harm must be done to as a result of Measurable harm must be done to as a result of mistakesmistakes

Scenario Scenario

Is this substantive or procedural in nature?Is this substantive or procedural in nature?

On the 25th Anniversary of the On the 25th Anniversary of the IDEAIDEA

“…“…we know that education is the key to we know that education is the key to our children’s future…. IDEA…insures our children’s future…. IDEA…insures that all children with disabilities have that all children with disabilities have access to a free appropriate public access to a free appropriate public education.”education.”

President Bill ClintonPresident Bill ClintonNovember 29, 2000November 29, 2000

The Individualized The Individualized Education ProgramEducation Program

Purposes, IEP Mandate, IEP Purposes, IEP Mandate, IEP Development, Substantive Development, Substantive Requirements, LitigationRequirements, Litigation

The Individualized Education The Individualized Education Program (IEP)Program (IEP)

““The importance of the IEP [should not] be understated…[it is] the The importance of the IEP [should not] be understated…[it is] the

fundamental prerequisite of any FAPE.”fundamental prerequisite of any FAPE.” Justice Huntley, Thorndock v. Boise Justice Huntley, Thorndock v. Boise

I.S.D. (1988, p. 1246)I.S.D. (1988, p. 1246)

The IEP: keystone of IDEA The IEP: keystone of IDEA (Honig v. Doe, 1988)(Honig v. Doe, 1988)

All aspects of special education program directed & All aspects of special education program directed & monitored throughout IEP processmonitored throughout IEP process Goals, placement, services, evaluation & measurementGoals, placement, services, evaluation & measurement

The IEP process develops & formalizes the FAPE for a The IEP process develops & formalizes the FAPE for a student with disabilitiesstudent with disabilities

Both procedural & substantive requirementsBoth procedural & substantive requirements

Procedural RequirementsProcedural Requirements

1.1. Provide notice to parentsProvide notice to parents

2.2. Adhere to state mandated timelinesAdhere to state mandated timelines

3.3. Involve parents in education. decision makingInvolve parents in education. decision making

4.4. Conduct complete & individual. EvaluationsConduct complete & individual. Evaluations

5.5. Ensure necessary members attendEnsure necessary members attend

6.6. Include all appropriate contentInclude all appropriate content

7.7. Ensure IEP implemented as writtenEnsure IEP implemented as written

Substantive RequirementsSubstantive Requirements

1.1. Thoroughly assess academic & Thoroughly assess academic & functional needsfunctional needs

2.2. Base goals on those needsBase goals on those needs3.3. Write goals: complete, appropriate, Write goals: complete, appropriate,

measurablemeasurable4.4. Provide services: effective, research-Provide services: effective, research-

basedbased5.5. Monitor progress & update as neededMonitor progress & update as needed

“Meaningful educational benefit”

PurposesPurposes CommunicationCommunication ManagementManagement AccountabilityAccountability Compliance and MonitoringCompliance and Monitoring EvaluationEvaluation

The IEP Mandate

School personnel & parents work together to develop a program that will result in meaningful educational benefit. It must be individualized & in effect before provision of services. Both a process and a written document.

IEP DevelopmentIEP Development The IEP Planning ProcessThe IEP Planning Process

Referral, consent, assessment, IEP team Referral, consent, assessment, IEP team appointed, IEP developed, placementappointed, IEP developed, placement

The IEP Team-Required ParticipantsThe IEP Team-Required Participants Student’s parents, special education teacher, Student’s parents, special education teacher,

general education teacher, one who can interpret general education teacher, one who can interpret evaluation results, child when appropriate, evaluation results, child when appropriate, representative of educational agencyrepresentative of educational agency

A. supervise provision of special educationA. supervise provision of special education B. knowledgeable about general curriculumB. knowledgeable about general curriculum C. knowledgeable about availability of resourcesC. knowledgeable about availability of resources

IEP DevelopmentIEP Development

The IEP Team-Discretionary The IEP Team-Discretionary ParticipantsParticipants

Related service providers, one with Related service providers, one with expertise in assistive technology, expertise in assistive technology, representative of agency of transition representative of agency of transition services, others who have knowledge of a services, others who have knowledge of a student or disability, Part C provider if student or disability, Part C provider if eligible for Part Celigible for Part C

Eight Components Required Eight Components Required in the IEPin the IEP

1.1. Present Level of PerformancePresent Level of Performance Describes learner’s functioning Describes learner’s functioning

2.2. Measurable Goals and Benchmarks/Short-Term ObjectivesMeasurable Goals and Benchmarks/Short-Term Objectives Goals address skill/behavior to change, direction, & outcomeGoals address skill/behavior to change, direction, & outcome

Example: Tommy will improve his understanding of problem-solving Example: Tommy will improve his understanding of problem-solving strategies from emerging to an adult prompted level.strategies from emerging to an adult prompted level.

Objectives are the steps leading to attainment of the goalObjectives are the steps leading to attainment of the goal Example: When given a probe sheet with 50 two-digit addition facts, Example: When given a probe sheet with 50 two-digit addition facts,

Tommy will write the answers with 95% accuracy in 2 of 3 trials.Tommy will write the answers with 95% accuracy in 2 of 3 trials.

Components ContinuedComponents Continued

3. Special Education and Related Services and 3. Special Education and Related Services and Supplementary Aids and ServicesSupplementary Aids and Services Special education & related services records the type of services Special education & related services records the type of services

delivered including location, amount, and frequencydelivered including location, amount, and frequency

Supplemental aids & services are defined as supports provided Supplemental aids & services are defined as supports provided in reg education classes in reg education classes

Ex; specialized equipment, assistive technology devices, specialized Ex; specialized equipment, assistive technology devices, specialized transportation, modifications to discipline policies, extended time, etc.transportation, modifications to discipline policies, extended time, etc.

Components ContinuedComponents Continued

4. Extent to Which Students Will Not Participate in the General 4. Extent to Which Students Will Not Participate in the General Education ClassroomEducation Classroom

Describes student’s ability or inability to participate in general education Describes student’s ability or inability to participate in general education program and justifies teams decision program and justifies teams decision

5. Student’s Participation in State- or District-Wide Assessment5. Student’s Participation in State- or District-Wide Assessment Why assessment is not appropriate along with alternative assessmentWhy assessment is not appropriate along with alternative assessment

6. Projected Date of Initiation and Anticipated Duration6. Projected Date of Initiation and Anticipated Duration

Components ContinuedComponents Continued

7. Transition Services Needed7. Transition Services Needed In MN must address by age 14 or grade 9In MN must address by age 14 or grade 9 Focus on Post-Secondary ActivitiesFocus on Post-Secondary Activities Address employment, post-secondary education & training, community Address employment, post-secondary education & training, community

participation, recreation leisure, home living/daily livingparticipation, recreation leisure, home living/daily living

8. How Student’s Progress Toward Goals Will Be Measured8. How Student’s Progress Toward Goals Will Be Measured Parents must be informed about student’s progress as often as parents of Parents must be informed about student’s progress as often as parents of

children without disabilities.children without disabilities. Progress ReportsProgress Reports

IEP Special ConsiderationsIEP Special Considerations

Positive Behavior Support PlansPositive Behavior Support Plans Student with Limited English ProficiencyStudent with Limited English Proficiency Blind or Visual Impairment NeedsBlind or Visual Impairment Needs Student with Deaf and Hard of Hearing Student with Deaf and Hard of Hearing

NeedsNeeds Assistive Technology NeedsAssistive Technology Needs Placement DecisionPlacement Decision

Parental ParticipationParental Participation

1997 Amendments of IDEA strengthened role1997 Amendments of IDEA strengthened role

School must provide adequate noticeSchool must provide adequate notice

If parents are unwilling to respond or participate school If parents are unwilling to respond or participate school should collect documentationshould collect documentation

Reviewing & Communicating the Reviewing & Communicating the Requirements of an IEPRequirements of an IEP

Reviews Must Be Conducted if:Reviews Must Be Conducted if: Lack of progressLack of progress Re-evaluation need to be consideredRe-evaluation need to be considered Parents provide additional informationParents provide additional information Needs are anticipated to changeNeeds are anticipated to change

Requirements must be communicated with Requirements must be communicated with teachers working with a student on a IEPteachers working with a student on a IEP