YOUR CHILD'S IEP: PRACTICAL AND LEGAL GUIDANCE FOR PARENTS by Pamela Darr Wright, MA, MSW As parents approach an IEP meeting with representatives from their child's school, they often experience confusion about their role in the decision-making process. Since most parents are not special educators, they may believe that their input is to be minimal during the IEP process. Few parents seem to have an adequate understanding of how an IEP should actually be developed or what it should include. Parental confusion may be amplified and intensified by interpersonal interactions during the IEP meeting. The actual IEP development process, which typically involves a parent who meets with several school system representatives, is often experienced as intimidating, even by the most sophisticated parent. Uncertain of their role, parents often become passive participants in the IEP process. This passivity can lead to unfortunate consequences as educators are deprived of valuable information about the child from the people who know him best. Without information and perspective from the parent, an educational plan may be developed that is inappropriate to meet the child's needs. ADVOCACY: KNOWLEDGE IS POWER According to the U. S. Department of Education, over 2 million children (approximately 5 percent of all school children) are receiving special education services for learning disabilities. Despite the availability of excellent techniques to teach learning disabled children, many of these youngsters are failing to learn to read, write and do arithmetic at the most basic level. Tragically, only 51 percent of learning disabled youngsters actually graduate from high school. Nearly one-quarter drop out of school while others are given a certificate of completion. Knowledge is power. In order to prevent your child from becoming another "drop-out statistic", you need to know and understand your child's learning strengths and weaknesses and the steps that need to be taken to remediate your child educationally. In addition, you need to develop a thorough understanding of your rights and how to secure a free, appropriate education (FAPE) for your child. The IEP has been called the "centerpiece" of special education law. As you read this article, you will learn about the law and the regulations that have been developed in an effort to see that all children in need of special education services receive these services. You will also read about cases that have been decided around the country. These cases have had a significant impact on education law and the quality of special education services to youngsters. As you learn about the law and regulations, you will also learn how the IEP should be written. If the IEP is written appropriately, you will be able to measure your child's progress over time. In this way, you and the educators who work with your child can determine whether the educational plan is actually conferring educational benefit to your child. If your child fails to progress as expected, then you know that the educational plan is not appropriate and needs to be modified to meet your child's unique needs. LAW AND REGULATIONS The Code of Federal Regulations Section 300.346 entitled: "Content of individualized education program" states: (a) General The IEP for each child must include-- (1) A statement of the child's present levels of educational performance; (2) A statement of annual goals, including short- term instructional objectives; (3) A statement of the specific special education and related services to be provided to the child and the extent that the child will be able to participate in regular educational programs; (4) The projected dates for initiation of services and the anticipated duration of the services; and (5) Appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the short term instructional objectives are being achieved. In Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U. S. 176, 206-7 (1082), the Supreme Court stated that the individualized educational program (IEP) developed through the Act's procedures should be reasonably calculated to enable the child to receive educational benefit. The free appropriate public education (FAPE) mandated by the Act is designed for the specific needs of the child through the Individualized Educational Program (IEP) which is "a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs." Town of Burlington v. Department of Education for the Commonwealth of Massachusetts, 471 U. S. 359, 105 S. Ct, 1996, 2002 (1985). Case law lends credence to the position that a sufficient IEP is essential to a FAPE. In Romeo v. Ambach, 1984-1985 EHLR DEC. 556:488 (E.D. NY 1985) a Federal Judge in New York found an IEP adequate in which ". . . specific goals to which Glen's grade level are to be raised are listed in all areas of reading, verbal skill and math." Note: the objective measure was "goals to which Glen's grade level are to be raised . . ." (At 495) In Thornock v. Boise Independent School District #1, ___ Idaho Sup. Ct. ___, 767 P. 2d 1241, 1987-1988 EHLR DEC. 559:486 (1988), the State Supreme Court found that the school system failed to offer a student a FAPE during the school year by not preparing a sufficient IEP. The Court noted that criteria and evaluation procedures were not specified. This Court noted that "Above all else, Congress recognized that handicapped children are unique and that placement decisions must be made on an individual basis, by a multidisciplinary team, according to a variety of criteria . . . The importance of the IEP cannot be understated. It is the decision making document." (At 489) Thornock added that "(t)he EAHCA (now known as IDEA) makes clear that the fundamental prerequisite of any FAPE is a sufficient IEP. 20 U.S.C. Sec. 1401(18). The legislative history and the commentators all indicate that the procedural aspects of the EAHCA are just as important as its substantive provisions, so the concern regarding the . . . sufficiency of Gabriel's IEP is not mere quibbling." (At 489,490) In describing the school systems' IEPs, the Court stated that neither of the two proposed IEPs set ". . . forth goals, objectives and appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether 'instructional objectives are being achieved' as required by 20 U.S.C. Sec. 1401(19)." (490) "Because of the flaws in Gabriel's IEPs, the districts' failure to acknowledge the deficiencies of the IEPs it promulgated . . . we affirm the decision of the district court. Without a valid IEP, there can be no FAPE, see 20 U. S. C. Sec. 1401 (18), and therefore 34 C. F. R. Sec. 300.403(a) indicates that (private school tuition) reimbursement is appropriate." (490) Courts have given short shrift to proposals that use subjective measurements based upon observation. In fact, an IEP that was ". . . based almost solely on observation (Assessment consisted of primarily non-standardized tasks and procedures as well as structured observation. . . ). . . is violative of the EAHCA and . . .does not approach compliance with its regulations, 34 C. F. R. Code 300.532." Bonadonna v. Cooperman, 1985-1986 EHLR DEC. 557:178,183 In Bonadonna, the court found "Thus, but one procedure- -teacher evaluation--was utilized. Such procedures lacked scientific validity, in that they were not systematic, were limited to a narrow range of behavior and were not confirmed by recent test data . . . The Court finds that this method of assessment does not meet the requirements of the EAHCA, or its regulations." (At 183) The Court added that " . . . the procedural requirements of the EAHCA have been left unfulfilled; the proposed IEP may be rejected on this ground alone." (At 184) Because there are obvious sources of error inherent in subjective measurements of human behavior, the court correctly characterized teacher evaluations as inappropriate and as lacking in scientific validity. A well-intentioned teacher might try to help a child, believing that progress had been made in an area when this was not the case. At the same time, teacher evaluations are subjective processes by an individual who has a vested interest in the outcome and who is intimately involved in the process. Thus, "teacher judgments" are incapable of replication by others and will yield questionable objective information. CLARIFICATION THROUGH APPENDIX C To answer questions about the drafting of IEPs, the U. S. Department of Education in the September 29, 1992 issue of the Federal Register, Vol. 57, No. 189, published Appendix C of the special education Code of Federal Regulations (CFR). This Appendix consists of 60 questions and answers about the Purpose of the IEP and IEP Requirements and is designed to answer commonly-asked questions by parents and special educators. Appendix C stresses that "The IEP meeting(s), where parents and school personnel jointly make decisions about an educational program for a child with a disability" leads to development of "the IEP document itself . . . that has a number of purposes and functions." While "The IEP sets forth in writing a commitment of resources necessary to enable a child with a disability to receive needed special education and related services", it also ". . . serves as an evaluation device for use in determining the extent of the child's progress toward meeting the projected outcomes." THE IMPORTANCE OF OBJECTIVE CRITERIA AND EVALUATION PROCEDURES In discussing Individual Education Programs (IEPs), Appendix C emphasizes the importance of using "Appropriate objective criteria and evaluation procedures and schedules for determining, at least on an annual basis, whether the short term instructional objective are being achieved." (Sec. 300.346(a)(5)). Appendix C clearly states that the reasoning behind the need for objective (as opposed to subjective) measurements are to "provide a mechanism for determining (1) whether the anticipated outcomes for the child are being met (i.e. whether the child is progressing in the special education program) and (2) whether the placement and services are appropriate to the child's special learning needs. QUESTION 36: What should be included in the statement of the child's present levels of educational performance? ANSWER: . . . the following are some points that should be taken into account in writing this part of the IEP: . . . b. The statement should be written in objective measurable terms . . . . . . c. There should be a direct relationship between the present levels of educational performance and other components of the IEP. QUESTION 37: Why are goals and objectives required in the IEP? ANSWER: The statutory requirements for including annual goals and short term instructional objectives . . . provide a mechanism for determining (1) whether the anticipated outcomes for the child are being met (i.e. whether the child is progressing in the special education program) and (2) whether the placement and services are appropriate to the child's special learning needs. In effect, these requirements provide a way for the child's teacher(s) and parents to be able to track the child's progress in special education. QUESTION 39: What are short term instructional objectives in an IEP? ANSWER: Short term instructional objectives (also called IEP objectives) are measurable, intermediate steps between the present levels of educational performance of a child with a disability and the annual goals that are established for the child. The objectives . . . can serve as milestones for measuring progress toward meeting the goals . . . to determine the extent that the child is progressing toward those accomplishments. (Later, in an Answer to QUESTION 40 which also deals with IEP goals and objectives:) Stated another way, the goals and objectives in the IEP should focus on offsetting or reducing the problems resulting from the child's disability that interfere with learning and educational performance in school. For example, if a child with a learning disability is functioning several grades below the child's indicated ability in reading and has a specific problem with word recognition, the IEP goals and objectives would be directed toward: (1) closing the gap between the child's indicated ability and current level of functioning, and (2) helping the child increase the ability to use word attack skills effectively. According to Appendix C (Question 38), annual goals in the IEP are statements that describe what the child can reasonably be expected to accomplish within a twelve month period . . . (and) there should be a direct relationship between the annual goals and the present levels of educational performance. Further, according to Appendix C, "The IEP for each child must include . . . appropriate objective criteria and evaluation procedures and schedules for determining . . . whether the short term instructional objectives are being achieved." As a parent, you must ask the following questions: Does my child's proposed IEP include objective criteria, evaluation procedures, and schedules to determine whether the short term instructional objectives are being achieved? Will these objective measures give me sufficient information to determine whether or not my child is receiving educational benefit from the placement? Or, will my child's progress toward meeting his or her educational objectives be measured by the subjective assessments, estimates and evaluations by the teacher? As stated in Appendix C, goals and objectives are required in the IEP to " . . . provide a mechanism for determining (1) whether the anticipated outcomes for the child are being met (i.e., whether the child is progressing in the special education program) and (2) whether the placement and services are appropriate to the child's special learning needs." Proposed IEPs should utilize objective measures of progress. In Rowley, the Supreme Court said that IEPs must be both adequate and appropriate. The Court has noted that "adequate compliance with the procedures described would assure much of what Congress wished in the way of substantive content in an IEP." When the school district fails to develop an IEP that meets the requirements of IDEA, this provides adequate grounds for holding that a district has failed to provide a student with a free appropriate public education. (James Hall v. Vance County Board of Education, 1983-1984 EHLR DEC. 555:437 (E.D. NC 1983) and EHLR DEC. 557:155, 774 F. 2d 629 (4th Cir. 1985) In Florence County School District Four v. Shannon Carter, ___ U. S. ___, (1993), a unanimous decision issued by the U. S. Supreme Court in 34 days on November 9, 1993, the public school's IEP did include objective measures in the IEP to evaluate progress. "The IEP . . . established specific goals in reading and mathematics of four months' progress for the entire school year . . . The (District) court held that the school district's proposed educational program and the achievement goals of the IEP 'were wholly inadequate' and failed to satisfy the requirements of the (special education) Act." (Page 2) OBJECTIVE MEASUREMENTS OF PROGRESS Now, let's change the facts. Your eight year old son Mike just came home from school and told you that he did not pass the President's Physical Fitness Test. Disappointed, he tells you that he wants to pass the test next year and asks you to help him. You talk with Mike's teacher about his performance on the test this year and his goal for next year. The teacher gives you Michael's test results, along with the criteria for passing the President's Physical Fitness Test for eight and nine year old children. By looking at this information, you see that while Mike did run the 100 yard dash in the specified time, he completed only 12 out of an expected 25 sit-ups and could not do any pull-ups. You and Mike now have a clear sense as to what he will need to do in order to accomplish his goal--qualifying for the President's Physical Fitness Award next year. You can devise a training plan which establishes short term objectives to help him attain his goal and which focuses on remedying his specific areas of weakness (i.e. sit-ups, pull- ups) while maintaining or improving his running ability. When Mike takes the Physical Fitness Test next year, his performance will be measured objectively. His running speed over a specified distance will be measured by an individual who uses a stopwatch. His ability to do the requisite number of sit-ups and pull-ups will be measured by counting them. Because the measurements are objective, other observers should be able to determine whether or not Mike meets the criteria for the Award. For a variety of reasons, subjective measures often fail to yield accurate information as to progress or lack of progress. Objective measures are necessary to accurately measure change--whether the area being measured is physical fitness or educational progress. To obtain a copy of Appendix C, you can contact your State Department of Education or the U. S. Department of Education. Your Member of Congress should also be able to assist you. Or you can research the issue at a local Law Library. The legal citation is September 29, 1992 issue of the Federal Register, Volume 57, Number 189. __________________________________________________________________________ By: Pamela Darr Wright, M.A., M.S.W. Licensed Clinical Social Worker 4104 E. Parham Road Richmond, Virginia 23228 (804) 755-1357 Compuserve ID#: 75116,364 Note: The author, Pamela Darr Wright has spent 25+ years working with children and families, first as a psychologist in North Carolina and later as a Licensed Clinical Social Worker in Virginia. She has worked closely with her husband, Peter W. D. Wright, Attorney, on special education legal matters. Her husband represented Shannon Carter in the November 9, 1993 U. S. Supreme Court case, Florence County School District Four v. Shannon Carter, which resulted in a unanimous decision in Shannon's favor. __________________________________________________________________________ This article may be photocopied and reproduced, without permission, so long as it is reproduced in its entirety and credit is given to Pamela Darr Wright. Copyright 1994 Pamela Darr Wright. __________________________________________________________________________ This article has been downloaded from the ADD Forum on CompuServe, and may be distributed freely as long as the contents of the file are unchanged. Because the CompuServe ADD Forum is new, we are frequently asked how to join CompuServe and get on the forum. Call 1-800-524-3388 and ask for rep #464. Outside the US/Canada call +1-614-457-0802.