Fast Fact Friday: Special Education Assessment Plan

A school district are required to provide notice to parents when it proposes to initiate an evaluation or re-evaluation of a special education student, pursuant to the "prior written notice" requirements of the I.D.E.A. Specific to evaluations, the notice must "describe any evaluation procedures" is proposes to conduct. 20 U.SC. section 1414(b)(1). Because of this requirement, and because of timelines and other issues that are impacted by when a parent gives consent to assess, districts must develop ways to provide the required information and obtained written consent to its proposal to assess. This is commonly referred to as a "special education assessment plan."

California law specifies:

If an assessment for the development or revision of the individualized education program is to be conducted, the parent or guardian shall be given, in writing, a proposed assessment plan...

California Education Code section 56321(a)

As assessment plan must

• Be Understandable - that is, it should be in "language easily understood by the general public" and should be provided in the native language or other mode of communication of the parent / guardian
  
• Explain the purpose of the assessments proposed
  
• Explain the areas to be assessed
• Describe / explain the types of assessments that the district proposes to conduct
• Provide information regarding procedural safeguards
  

See 34 C.F.R. section 300.503; 20 U.S.C. section 1414(b)(1); California Education Code section 56321(b)(1)-(4).

Tip of the Day: IEE Assessors

This is actually more than one tip and again this tip of the day came to me as I was reviewing a file and after speaking with an assessor last week. In this case, the Parent had requested an IEE and the District provided a list of names and the Parent picked one and the assessment was completed.

The problems started, however, when the District sent the assessor the "file" which was only a few pages of an IEP. Which brings us to the first tip:

Even if the District is paying for the assessment and has told you they will provide the assessor the file - bring all relevant paperwork with you and leave them with copies.

The next problem occurred because the assessor was not invited to the IEP. Now under the law so long as there is someone there qualified to review the assessment findings the assessor does not need to be there but tip #2:

Always at least REQUEST (in writing, of course) that the independent assessor be invited to the meeting to review their assessment.

They may say "no" but then you're in the same position as before but now if you have a question at the meeting that the district personnel can't answer you have a reason to ask for another IEP.

Specific Learning Disability - Eligibility for Special Education

Eligibility for special education and related services under the category of Specific Learning Disability (SLD) involves perhaps the most complicated rules and analysis of any category under the IDEA. The understanding and acknowledgment of what constitutes a learning disability is changing as awareness, research, and information becomes more prevalent. Not only does research about learning disabilities in general effect the understanding of eligibility, but also research and developments about evaluation procedures and interventions can have an impact.

SLD is the only category under the IDEA that has specific evaluation procedures, beyond the general requirements for special education evaluations, that attach to the determination of eligibility. These specific evaluation procedures will be more thoroughly covered in a subsequent blog post.

IDEA's Definition of SLD Eligibility Under IDEA:

"In general, the term 'specific learning disability' means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations." 20 U.S.C. section 1401(30).

The team may determine that a child has a specific learning disability IF:

"(1) the child does not achieve adequately for the child's age or to meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child's age or State-approved grade level standards:
(i) oral expression
(ii) listening comprehension
(iii) written expression
(iv) basic reading skill
(v) reading fluency skills
(vi) reading comprehension
(vii) mathematics calculation
(viii) mathematics problem solving

(2) (i) the child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in (1) above when using a process based on the child's response to scientific research-based intervention; or (ii) the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments... and

(3) the group determines that its findings are not primarily the result of
(i) a visual, hearing, or motor disability
(ii) mental retardation
(iii) emotional disturbance
(iv) cultural factors
(v) environmental or economic disadvantage; or
(vi) limited English proficiency"

34 C.F.R. section 300.309

Thus, to simplify this, under the IDEA's definition, the determination is going to be based on whether the child is not making adequate or sufficient progress relative to his/her age and to grade level standards, in one of the specified skill areas, even given appropriate learning experiences and instruction or given research-based interventions.

Role of State Laws and Regulations:

Each state individually sets forth guidelines that further explain the process for determining eligibility under the category of SLD. The IDEA states that "a state must adopt... criteria for determining whether a child has a specific learning disability..." 34 C.F.R. section 300.307(a). States are prohibited from requiring the use of the "severe discrepancy" model, must allow the use of a response to intervention model, and may allow the use of other research-based procedures. 34 C.F.R. section 300.307(a). The individual school districts are required to use the criteria adopted by the state.

Discrepancy Model:

Prior to the 2004 changes to the IDEA, the "severe discrepancy model" was the primary method utilized to determine eligibility under the category of SLD.

The severe discrepancy model looks at whether there is a severe/significant discrepancy between a child's intellectual ability and that child's achievement in a specified academic area. Whether a discrepancy is "severe" is determined by the standard used in that district / state, and is typically based upon a difference of 1.5 standard deviations.

For example:

Child is given a general ability measure or IQ test and his/her overall ability / full scale IQ is found to be a 100.

Child is also given a standardized measure of academic achievement, and cluster scores in areas related to reading are found to be broad reading - 80, reading comprehension - 72, basic reading skills - 75.

The difference or discrepancy between ability and achievement in the area of broad reading would be 20 points, in the area of reading comprehension would be 28 points, and in the area of basic reading would be 25 points. On standardized measure wherein 100 is the mean, two and a half standard deviations is 22.5 points, so this child has a "severe discrepancy" in reading comprehension and basic reading skills.

Although states can no longer require the use of a severe discrepancy model, they can still adopt this model, and define it, as one option for school districts to utilize. Therefore, in some areas, the discrepancy model is still widely used.

It is important to note that the discrepancy model relies upon a comparison of the child's achievement academically to his/her own ability level, rather than merely to grade- or age- level expectations. However, even if a state allows for use of the discrepancy model, the state's procedures must be consistent with the definition of an SLD under the IDEA, see above. Under that definition, it is necessary to look at whether the child is achieving adequately / sufficiently to meet age or grade-level standards, not necessarily to meet expectations based upon their own IQ.

Response to Intervention Model:

Response to Intervention (RTI) is still a relatively new model in terms of special education eligibility. The idea behind RTI, though, is based in the finding that students who are provided with appropriate, research-based instructions should learn to read, write, do math, etc. This is similar to the idea behind the requirements of No Child Left Behind that students be provide with research based instructions. Basically, the IDEA's recognition of RTI as an appropriate process to take into consideration when making an eligibility determination is a recognition that there should be a determination that the child has learning difficulties even though he/she has been provided with research-based interventions within the general education setting before he/she is determined to have a disability.

The main components of an RTI program include (1) provision of scientific, research-based instruction and interventions within the general education program; (2) monitoring progress with specific measurement tools that are scientifically based; (3) adjustments to interventions and instruction provided based on the measurement of student progress.

RTI can take into consideration instructional curriculum that is already being used in the classroom, without the need for addition instruction / intervention prior to an eligibility determination. For example, if the District-wide curriculum for reading is a "research-based program," that has built-in periodic progress measurements, the consideration of RTI may look at the student's progress within that instructional program.

The District is not permitted to halt or delay the assessment timelines due to the utilization of the RTI model, as will be discussed more thoroughly in a subsequent blog post.


Stay tuned for Part 2 on this topic, which will cover Consideration of Other Factors, Specific Diagnoses vs. Eligibility, and Issues related to Highly Intelligent Students with SLD.

Breaking Down the IEP: State- and District-wide Assessments

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.

Breaking Down the IEP: Present Levels of Performance

When an IEP team is convened to discuss the program and services for a student with a disability, the school district is responsible for ensuring that a written document is created. An IEP is defined as "a written statement for each child with a disability that is developed, reviewed, and revised in accordance with [the IDEA]." 20 U.S.C. section 1414(d)(1)(A). There are specifically delineated portions of this "written statement" that make up required content for an IEP.

The first on the IDEA's list of required content is "present levels of performance;" often referred to by its acronym, "PLOP."

PLOP means:

"A statement of the child's present levels of academic achievement and functional performance, including (aa) how the child's disability affects the child's involvement and progress in the general education curriculum; (bb) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities; and (cc) for children with disabilities who take alternative assessments aligned to alternative achievement standards, a description of benchmarks or shortterm objectives."

Present levels of academic achievement

Academic achievement refers to a child's performance in academic areas, including reading and language arts, math, science, and history or social studies. This refers to what your child knows and can do at the present time as related to the core academic subjects. PLOP in academic achievement should provide the team with information about what the child's skills are. How are the child's reading and math skills as compared to the general education curriculum standards? Did your child meet his / her previous goals related to academics? What level were those goals set at, and if your child did not meet the goals, what level did he/she reach? What does your child's report card say about their performance?

Present levels of functional performance

Functional performance refers to a child's skills and achivement in areas that are "not considered academic or related to a child's academic achievement." See Commentary, Federal Register, at page 46661. Functional skills include areas such as daily living activities, motor skills and communication. Because PLOP must address both academic and functional performance, the IEP team needs to consider all areas of need arising from the child's disability when developing PLOP, regardless of if these areas directly impact academic achievement. Consider factors such as your child's ability to communicate in the classroom and with peers, your child's motor skills needs, any difficulties with organization or work habits, how your child socializes, etc. Ask the teachers for input about how your child "functions" on a day to day basis as compared to other kids his/her age.

How the child's disability impacts involvement and progress in general education

The requirement that PLOP specifically address how the disability impacts involvement and progress in general education curriculum should be considered when developing both PLOP for academic performance and PLOP for functional performance. When considering a child's academic achievement, for example, it is important to compare this to what the child is expected to do / learn in order to make progress in general education curriculum. If your child's disability affects his / her reading skills to the extent that this impacts her progress towards general education curriculum standards, for example, this needs to be noted in the PLOP. In the areas of functional skills, any functional performance deficit that affects how the child can participate in the curriculum should be noted as such. Additionally, the IEP document should consider, as a whole, how the disability impacts involvement in general education. Does the child's disability require a specialized setting or specialized instruction that cannot be provided in general education? Does the child's disability require modifications to the general education curriculum? These are issues the team should be considering when developing PLOP.

Preschool children

There is nothing in the law that states that IEPs for preschool children do not have the same requirements for content as for other students. There is, however, a consideration in the requirement for PLOP regarding preschool children in terms of access to age appropriate activities. For preschool children, it may be the case that they are not yet being taught "general education curriculum," and there may not be specific curriculum standards that apply. Instead, there may be "readiness skills" and developmentally appropriate activities, designed to get the child ready for a Kindergarten program. The IDEA recognizes this, and requires that when appropriate, the IEP document include a statement of PLOP related to how the child's disability impacts his/her ability to be involved in age appropriate activities.

Alternative achievement standards

Prior to IDEA 2004, the IEP was required to include a statement of goals that includes objectives or benchmarks towards meeting those goals for all students with disabilities. IDEA 2004 removed this language under "goals" and instead included additional language under the provision for PLOP. Students who are assessed using "alternative measures" that are aligned to alternative achievement standards, rather than general education standards, require shortterm benchmarks in order to measure their progress towards goals. Although this is now included under PLOP, it will be fully discussed in the next blog post in this series, which addresses goals.

Importance of PLOP to the IEP process

A clear and accurate statement of a child's present levels of performance, both in academic and functional areas, is the foundation for establishing a good IEP. PLOP provides the team with a baseline from which to develop goals, consider necessary services, discuss appropriate specialized instruction, and ultimately develop a program that will meet the child's unique needs and provide educational benefit. If the PLOP is vague, inaccurate or incomplete, then the IEP will likely not address each of the child's unique needs arising from his/her disability.

A sufficient statement of the child's PLOP is also critical for meaningful parent participation. Without accurate and complete information about how a child is performing and functioning, it would be impossible for a parent to be fully informed and to meaningfully participate in discussions regarding the child's unique special education needs.

For example, in an Oregon case, the ALJ concluded that the school district denied FAPE to the student, based in part on the finding that the district repeatedly failed to report the student's current performance or issue reports that documented progress towards IEP goals. The ALJ noted that mere identification that the child had "ongoing educational difficulties" was not enough for a statement of PLOP, noting that the parent did not have enough information regarding how the PLOP was related to the child's IEP goals. The ALJ found fault with the district's "recycling" of PLOP from year to year without updating the information.
Ashland School District, 47 IDELR 82 (SEA OR 2007).

In a New Mexico case, an appeal officer found that the District had denied FAPE to a student because the parents were denied meaningful participation in the IEP process. The IEP documents failed to include a statement of the student's present levels of performance, particularly in the area of reading, and did not include adequate information to allow the parent to fully participate in the development of a program. Because the IEP lacked information about the student's PLOP, parent had an erroneous belief that he continued to require a restrictive placement in a separate facility to recieve adequate specialized instruction. Although the district "recommended" a less restrictive setting, it continued to place the child in the specialized program due to the parent's request. The judge noted that this placement was inappropriate, and that the parent only requested it because of the lack of information she was provided regarding her child's current academic performance.
Rio Rancho Pub. Schs., 40 IDELR 140 (SEA NM 2003).

How specific should PLOP be?

The statement of PLOP should be specific enough to clearly establish with sufficient detail what the child's particular needs are in each area. Vague statements are not sufficient to lay an adequate foundation for a good IEP. The child's levels of performance need to be clearly defined so that anyone reading the IEP and working with the child has sufficient information to be able to address those needs and measure progress.

For example, in a New York case, the state review officer determined that the school district's IEP was inappropriate because the document did not contain sufficient details regarding the child's present levels of performance and specific special education needs. The IEP in question stated that the child had "difficulties" in motor skills and functional communication, but did not identify any specific difficulties that arose for this child. The vagueness of the statement of PLOP meant that the goals were not designed to match the student's actual needs, and therefore there was not a sufficient "foundation" for development of an appropriate program.
In re Child with a Disability, 50 IDELR 236 (SEA NY 2008)

Where information is derived from

Information contained within a statement of PLOP may come from a variety of sources, such as progress reports from previous IEP goals, report cards demonstrating a student's academic achievement in the classroom, informal observations, data collection, formal evaluations, teacher input, etc. Remember those things that the District must "consider" when developing the IEP, as discussed in the previous post. The District should take into consideration a variety of sources of input to develop PLOP that accurately, completely and specifically identifies the child's strengths and weaknesses in each area.

Parent participation in development of PLOP

Parent participation is critical to the development of a procedurally and substantively appropriate IEP, and there is nothing to support an argument that parents should not participate in the development of PLOP. As discussed in the previous post, the "concerns of the parent" are a part of what must be considered when developing the IEP. If the parent concerns are relevant to what the child's current levels of performance and achievement are, it would be appropriate for these concerns to be considered when developing PLOP. On a logical basis, it would be irrational for the District not to include relevant and accurate information provided by the parent in relation to what the child currently knows and can do.

Parents should prepare for the IEP meeting by carefully considering for themselves what the child's PLOP are in areas related to academics and functional skills. Look over information you have been provided throughout the year from your child's teachers and service providers. Make sure you have copies of any statewide or standardized testing results, report cards, progress reports, and evaluations. Make a list of what you see as important performance and achievement information from this information, and use that as a "checklist" when discussing PLOP with the IEP team.

Finally, the discussion of a child's PLOP can be a good indicator of how the remainder of the IEP team meeting is going to go. If the District is not allowing parents to actively participate and provide input, or is not giving the parents sufficient information, during this part, that may be an indication that the District is not going to have a meaningful meeting that involves everyone and develops an appropriate program. Disagreements are certainly possible regarding what a child's actual levels of performance and achievement are, a meaningful discussion of those disagreements should take place. If the parent believes that the IEP document is not accurately describing a child's needs and PLOP, it is likely that the parent also won't believe the IEP is designed to meet the child's needs. Ultimately, everyone needs to be proactive, information needs to be fully shared, and sufficient details need to be provided so that the PLOP really does lay the foundation for an appropriate program.

Breaking Down the IEP: What Must Be Considered?

An IEP is an individualized plan developed by a team of individuals to address a child's unique needs and provide for goals, services and special education to meet those needs. Because it is individualized, inherently, specific information about the individual child must be discussed and taken into consideration. This information can come from a variety of sources, including evaluation data, classroom data, parents, teachers, etc. Because the IEP is developed by a team of individuals, all of those members should have input into the development of the IEP, based on their knowledge of the child and their specific role in the process.

The IDEA includes a specific list for what the IEP team is required to take into consideration. See 20 U.S.C. section 1414(d)(3).

(i) the strengths of the child

Although the child's unique needs, i.e. deficits, are the core of what must be addressed in an IEP, it is important that the team take into consideration the child's strengths as well. An individual child's specific strengths can be very relevant in the discussion of what type of specialized instruction would work for the child, how the child can be included in general education, etc. It may not be appropriate, for example, for a child who has a strength in math skills to be in a specialized setting the entire day, rather than being included for a math class.

Remember that the "strengths of the child" should be based on that particular child, not solely on what may be considered a "strength" for that age or grade level. This is called a "relative strength."

(ii) the concerns of the parents for enhancing the education of their child

Consideration of the concerns of the parents in the development of the IEP is, in my opinion, one of the most important provisions of the IDEA. Other portions of the IDEA echo this requirement, instructing school districts to include parents in the IEP team and to include parents in any team that makes a placement decision about their child. Procedural safeguards and other requirements are all based on this central idea: that parent participation is key to the development of an appropriate IEP.

Meaningful parent participation is not just about whether the school district invites the parents to the meeting and whether the parents show up. The requirement that the "concerns of the parents for enhancing the education of their child" indicates the importance of meaningful parent participation - their concerns must actually be taken into consideration by the IEP team when the IEP is being developed.

IEP teams and school district representatives can only take into consideration parent concerns if they have an open mind about those concerns, and about any requests that the parents may make to the team and district. The IEP team should listen to the parents, and should have a meaningful discussion about any concerns raised, including how those concerns will be addressed in the IEP.

Parents should be proactive in preparing for participation in IEP meetings. Make a list of your concerns related to your child's education. Consider what concerns you have regarding your child's social skills, peer interactions, academic achievement, attention and behavior, and other areas relevant to the IEP development. Consider how those concerns relate to other data and information you have; like, for instance, if your concerns regarding your child's academic achievement are supported by findings from a recent assessment or by progress reports from the child's classroom. Finally, think about what you would like to see included in the IEP to address these areas, and whether you have any concerns about the provision of any specific instructional programs or services. These are the types of concerns that should be shared with the team in order for meaningful parent participation to occur.

(iii) the results of the initial evaluation or most recent evaluation of the child

Evaluations are critical to the development of an appropriate IEP that truly addresses the child's unique educational needs. The IDEA specifies that to be appropriate, an evaluation or assessment must be sufficiently comprehensive to identify each of the student's unique special education and related services needs. The school district must utilize evaluation tools and strategies that are effective in

gather[ing] relevant functional, developmental and academic information... that may assist in determining... the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general educatin curriculum, or for preschool children, to participate in appropriate activities.

20 U.S.C. section 1414(b)(2)(A)

Evaluation data should be useful in determining what the child's unique needs are, what their present levels of performance (PLOP) are, what changes should be made to any specialized instruction or related services being provided, what areas need to be addressed in goals, and what supports a child may need to be involved in general education.

The IEP team is required to consider information from the evaluation of the child, including the initial evaluation or most recent reevaluation conducted by the school district. Because of this requirement, it may not be adviseable in many circumstances for parents to agree to waive triennial re-evaluations by the school district when the time arises for those evaluations. The IEP team needs current evaluation data regarding a child's unique needs, and that evaluation data is not solely for the purpose of establishing eligibility, but also for guiding the team about what the program must address in order to be approrpiate.

It is also important to note that elsewhere in the IDEA, there is a requirement that the results of any independent educational evaluation, whether funded by the school district or by parents, also be taken into consideration. 34 C.F.R. section 300.502(c) specifies that the results of an independent educational evaluation or private evaluation "must be considered... in any decision made with respect to the provsion of FAPE to the child." Since the IEP team is making decisions with regards to the provision of FAPE, the IEP team is charged with considering the independent assessment.

(iv) the academic, developmental and functional needs of the child

Ultimately, the core of what the IEP team needs to consider is the unique needs of the child, including academic, developmental and functional needs. In each of these areas, the child's unique needs must be considered in relation to how those needs affect the child's ability to access an educational benefit, with the understanding that "educational" means more than merely academic progress.

Academic needs include how your child performs in core academic subjects, and may also include how other areas affect your child's ability to learn academic skills (like attention, behavior, etc). Evaluation data and teacher input are critical for identifying and determining a child's unique needs in the area of academics. It is important to look both at relative deficits, that is areas that are deficit based on this particular child's other strengths and overall abilities, as well as more broad areas of deficit, including those areas that are deficit when compared to what the child should be expected to do at this grade or age level. In order to truly understand a child's academic needs, all of this information should be considered.

One place to look for guidance in determining your child's academic needs is your state's academic content standards or grade level curriculum standards, especially if your child's IEP states that he/she is expected to meet grade level standards. Are there areas identified as expectations for your child's grade level that he/she struggles with? What about the curriculum standards for the grade level below; are there standards that your child has not yet met or made progress towards? Although the District would not ulitmately be required to ensure that your child meet all grade level content standards, this information can still be useful as a point of discussion when identifying a child's academic needs.

Developmental needs can include areas related to child development appropriate to your child's age, such as motor skills, language and communication, cognition, and social skills. Think about the things that you tracked when your child was a toddler, the "developmental milestones." These are generally within broader areas that are under the umbrella of "developmental skills." If your child has a delay in the development of age-appropriate skills in these areas, then that may be an indication of unique need that should be considered by the IEP team.

Functional needs can include those related to deficits in skills or activities that are nonacademic, but are related to the child's ability to function in day to day life activities and routines. Functional skills are those skills, beyond academics, that a child is going to need to acquire to "make it" once he/she leaves school. Remember that one of the purposes of the IDEA is to ensure that children with disabilities are educated appropriately and thereby prepared for "further education, employment and independent living." 20 U.S.C. section 1400(d)(1). Functional skills must be developed in order to prepare students for such endeavors, and therefore need to be addressed in the IEP.

Back to the Beginning: How to Get an IEP for your Special Needs Child

If you think your child may require special education, including specialized instruction and services, within the school setting, it may feel very overwhelming to embark on the process of obtaining those services. Here is some basic information to help you understand the initial steps and get you started.

Who May Require An Individualized Education Plan?

If your child has a disability, or you suspect that he or she may have a disability, he/she may require an individualized education plan (IEP) and may be entitled to a free appropriate public education from your school district. Eligibility for special education is based on two factors: First, the child must be a student with a disability; Second, because of that disability, the child must require special education and related services.

Parents may suspect that their child requires an IEP based on many different factors. You should follow up on these suspicions and request an evaluation and IEP (see below) if your child is struggling in school (academically, behaviorally, socially, etc) because of difficulties that you believe may be related to a disability. Maybe your child already has a diagnosed disability from his pediatrician, a specialist, or a psychologist; if you believe that diagnosed disability is impacting him/her educationally, you need to obtain an evaluation and IEP from your school district. Many parents start this process not knowing what disability their child has, but knowing that their child is experiencing difficulties and "failures" in the school setting that don't make sense, or aren't explained by other factors. Ultimately, you as a parent need to follow your instincts, and request the evaluation if you think that a special education program may be required.

How Do You Get the Process Started?

If you suspect that your child may have a disability and may require special education, the first step is to request that your local school district conduct an evaluation. You should make this request in writing. Although it is certainly appropriate for you to verbally discuss your concerns with your child's teachers or other staff, you should not trust that doing so will mean that your child will be referred for an evaluation. Make a very specific request in writing and make sure it gets to the appropriate person at your child's school, and at the school district if necessary. The school staff should be able to tell you exactly who handles these requests so that you can address your letter to the appropriate person.

Your letter should state clearly that you are requesting a comprehensive evaluation in order to determine eligibility for special education and related services. If your child has a diagnosed disability already, it would be a good idea to state this in the letter. Otherwise, you can state what your concerns are that cause you to believe an IEP is required.

Example:

Dear Ms. Administrator:

I am writing in to request an evaluation for special education and related services for my child, Daughter. Daughter is a student in the Local School District and currently attends Local School. Her date of birth is XX/XX/XX, and she is currently in the Xrd Grade.

I am concerned about Daughter's ongoing struggles in school. Although Daughter is smart and capable of learning, she seems to be having a difficult time learning to read, and is falling further and further behind. She is also having a difficult time paying attention, and her teachers have noticed that she is not always on task. Daughter's pediatrician has suggested that she be evaluated for a learning disability. I believe that Local School District needs to conduct a comprehensive evaluation in order to determine her possible eligibility for special education and her unique needs. Thereafter, I am requesting an IEP team meeting to be convened as soon as possible to review the results of the evaluation and to discuss an appropriate plan to address Daughter's educational needs.

I can be reached at 000-000-0000. I look forward to working with you in order to obtain help for Daughter.

Sincerely,
Mother

What are the Next Steps?

After you have formally requested an evaluation and an IEP, the school district cannot simply ignore that request. They will need to respond to you and initiating the evaluation process. If the school district ignores the request and does nothing, you can file a Compliance Complaint with your state educational agency.

Different states have different rules in regards to how the evaluation process commences. In California, for example, after the school district recieves a request for an evaluation, it must produce a proposed assessment plan within 15 days. That assessment plan will need to provide the parent with information regarding what areas will be assessed and what assessment measures will be utilized.

After the parent provides consent for the assessment, the school district will need to conduct the evaluations and convene an IEP meeting within the applicable timelies (60 days, for the most part) to review the results. The evaluations conducted by the school district must be conducted by a multidisciplinary team, and must cover all areas of suspected disability, including health and development, vision, hearing, motor skills, language, academics, general intelligence, self-help skills, orientation and mobility, career and vocational skills, social / emotional status, and communication. See 20 U.S.C. section 1414(b). The evaluation also must be sufficiently comprehensive to identify each of the student's unique special education and related services needs. Ultimately, the evaluation needs to provide enough information to the IEP team not only to determine whether the child is eligible, but also to be useful in developing an appropriate program to meet the child's needs.

What Happens at the Initial IEP Meeting?

The District must convene an "IEP team" to review the findings of the evauation. This team includes parents, a special education teacher, a regular education teacher, a district representative or school administrator, and the persons who conducted the assessment or persons who are qualified to interpret the results of the assessment. Parents may invite other persons with specific knowledge about their child or about special education, like a friend, relative, doctor, tutor, therapist, or advocate.

The IEP team as a whole should review the results of the assessment, the findings, and the recommendations. The team should then consider any applicable eligibility categories, and whether, based on the assessment results and other data presented, the child meets any category. The team should also consider whether the child "requires special education and related services."

Remember that parents are a part of the IEP team, and can and should express their opinion regarding eligibility as well as any other concerns that they have regarding their child's education!

If the IEP team determines that the child is eligible for special education, the next step is the development of an Individualized Education Plan, to include goals and objectives to enable the child to make progress and to meet her unique needs, modifications and accommodations necessary to allow the child to access curriculum, and appropriate and necessary related services and specialized instruction to address the child's needs and enable them to recieve benefit from his/her educational program.

What Happens if The District Says No?

If the school district determines that the child is not eligible for special education, you have the right to disagree with this determination. If you do not believe that the district's evaluation was appropriate, accurate, adequate or sufficient, you also have the right to disagree with the evaluation, and to seek an indepedent educational evaluation at district expense. An independent evaluation can be critical to provide more comprehensive information to support a determination that the child is in fact eligible. You can ask that the school district reconvene the IEP team at a later date to review the results of an independent evaluation and determine eligibility.

If you are disagreeing with the eligibility determination, you should make this clear in writing and base it on your concerns. You may need to seek assistance for a special education attorney or advocate to dispute the school district's determination if you need to file for a due process hearing or mediation.

IDEA Fairness Restoration Act

In 2006, the Supreme Court issued a decision in Arlington Central School District vs Murphy finding that parents who were prevailing parties in a due process hearing or subsequent litigation were barred from recovering expert witness fees. Around the same time period, the Supreme Court issued a decision in another case that clarified the burden of proof in special education disputes; a ruling that has subsequently placed that burden onto parents in almost all cases arising under the IDEA.

The Unfairness Problem

School Districts can spend tax dollars to employ and hire experts to provide testimony in due process hearings and litigation. School Districts use their resources to fund psychologists, specialists, technical experts, etc to provide testimony related to programs, placements, services, assessment findings, and a child's unique needs.

Most parents don't have the resources to access expert witnesses and bear that financial burden. Experts are necessary to be able to have a fair change at prevailing in a due process hearing and litigation! If the School District is putting on testimony by psychologists and specialists, and the parents are unable to, it will be extremely difficult for parents to meet their burden of proof.

This makes due process unfair and often not affordable. Advocates and Attorneys see this problem in real life on a daily basis. We see parents who are watching their child struggle and fail in a program that is not appropriate, with insufficient services, or without proper supports in the classroom. The school district has psychologists and specialists who are "backing" the program. Parents need access to experts who can testify about what services and programs are required to meet those students' unique needs. We see kids who are completely denied eligibility for services. Parents cannot possibly challenge that determination without an expert who can testify about the child's diagnosis and how it impacts their ability to access their education. We see kids who are on their way to expulsion, and school district "experts" who claim that their behavior was not related to their disability. Parents need the ability to utilize experts to testify as to how and why the behavior is a manifestation of the disability.

If the due process proceedings under the IDEA are not affordable, and therefore not accessible, then parents are denied their rights and children are ultimately denied a FAPE. The underlying IEP process and decision-making regarding a child's program becomes more and more unfair and one sided, because the parents' right and ability to challenge the IEP and the school district's decisions becomes meaningless.

The Solution?

The IDEA Fairness Restoration Act seeks to override the Supreme Court's ruling in Murphy, and thereby restore the ability of parents who prevail in due process or litigation to be reimbursed for expert witness fees incurred during the process.

The Act will level the playing field for parents, enabling them to have a fair chance in a meaningful process to seek a remedy when a child is denied FAPE by the school district.

For more information about the act, including the full text and a brochure, check out http://www.copaa.org/news/IFRA_intro_2009.html. Over 185 disability organizations support the IDEA Fairness Restoration Act, which is a bipartisan bill. You can also read more about it at http://www.wrightslaw.com/nltr/09/nl.0630.htm

What you can do

Call your congressperson and ask them to support the IDEA Fairness Restoration Act. July 9th is the national call in day! You can call your representative and tell them why the Act is important, and why it needs to pass to ensure that parents have meaningful access to due process procedures.

Find out who your congressperson is and how to reach them directly at www.house.gov. You can also call the switchboard at 202-224-3121 and ask to speak to your congressperson. Remember to ask for the Education Aide in order to speak to a person who is interested in this issue! Leave a message, and call back, if you need to!

Fast Fact Friday: Recreational Therapy

Recreational Therapy is a related service under the IDEIA, and it includes "(i)assessment of leisure function; (ii) therapeutic recreation services; (iii) recreation programs in school and communities; and (iv) leisure education." 20 U.S.C. section 1401(26)(a); 34 C.F.R. section 300.34(b)(11). State statutes and regulations define RT more specifically.

California, for example, defines RT as including:
(a) Therapeutic recreation services, which are those specialized instructional programs designed to assist pupils in becoming as independent as possible in leisure activities, and when possible and appropriate, facilitate the pupil's integration into regular recreation programs;
(b) Recreation programs in schools and the community which are those programs that emphasize the use of leisure activity in the teaching of academic, social and daily living skills; and the provision of nonacademic and extracurricular leisure activities and the utilization of community recreation programs and facilities;
(c) Leisure education programs which are those specific programs designed to prepare the pupil for optimum independent participation in appropriate leisure activities, including teaching social skills necessary to engage in leisure activities, and developing awareness of personal and community leisure resources.
Title 5, California Code of Regulations, section 3051.15

Recreation and leisure can be areas of unique special education and related services needs for a student with a disability. These needs must be taken into consideration when developing the student's IEP. An RT assessment can be conducted by a Certified Therapeutic Recreation Specialist (CTRS), and should address how the student's functioning in the areas of physical, cognitive and social / emotional affect his/her ability to appropriately access leisure and recreational activities. Appropriate access to a leisure activity does not just mean playing the game - it means being able to understand the purpose of engaging in recreational activities with peers, understand how to choose what leisure activities give you enjoyment, and understand the rules (both official and "social" rules) of participation.

"A recreational therapist utilizes a wide range of activity and community based interventions and techniques to improve the physical, cognitive, emotional, social and leisure needs of their clients. Recreational therapists assist clients to develop skills, knowledge and behaviors for daily living and community involvement. The therapist works with the client and their family to incorporate specific interests and community resources into therapy to achieve optimal outcomes that transfer to their real life situation." (From Frequently Asked Questions, American Therapeutic Recreation Association)

"Educational benefit" includes areas of non-academics! Remember that the ultimate goal of special education is to provide the appropriate instruction and services so that a student can become an independent member of society, to the extent possible. Skills related to the ability to socialize appropriately, work in groups, communicate effectively, etc, are important parts of educational benefit. The ability to access the community, including for recreation and leisure activities, is also important for students to learn.

Examples of situations where RT services may be appropriate:

Students whose unique needs include social skills deficits, such that they have an inability to access recreation and leisure independently. Students with autism spectrum disorders, for example, may have a difficult time understanding how to choose what activity to participate in, how to join a game, and how to utilize appropriate social skills to interact with others during leisure time.

Students who are in the "transition plan" phase of their educational program. Students who will be transitioning to adult life may need some specialized instruction to help them learn about how to independently access leisure and recreational activities in their community.

Manifestation Determinations: Suspensions and Special Education Students

If your special education student gets suspended from school they have certain rights that a general education student may not have.

First, a special education student can be suspended or removed to an alternative placement for up to 10 school days for the entire school year due to a violation of student conduct. If your child is suspended for more than that or the district is attempting to move him to an alternative placement for more than 10 days then the district must first hold a manifestation determination meeting within 10 days of the decision to move the student. To review so far - the district can decide that they want to suspend for more than 10 days or even decide that they want to move your student but they can NOT actually do it until they conduct a manifestation determination meeting.

What is a manifestation determination? It could be like an IEP or it could be more like an expulsion hearing - depending on your district. Under the law the district, parents, and all relevant members of the IEP team review all relevant information in the students file, including their IEP, relevant observations, and information provided by parents to determine whether the conduct in question was caused by or had a direct and substantial relationship to the child's disability or if it was the direct result of the district's failure to implement the IEP. If either of these apply then the violation was a manifestation of the child's disability. If neither of these apply then it was NOT a manifestation of the child's disability and the suspension or move to an alternative placement goes forward UNLESS you appeal the result by requesting a hearing. If your child is removed to an alternative setting the district is still required to provide him with a FAPE.

If the violation is a manifestation of my student's disability what happens next? The IEP team must then conduct a functional behavioral assessment and implement a behavioral intervention plan or if a behavior intervention plan was already developed they must review the plan and modify it to address the behavior. The child also gets to stay at his or her current placement unless the parents and the district agree to a change in placement.

Are there circumstances where this doesn't apply? Of course there is. The district can remove the student to an interim alternative educational setting for not more than 45 days regardless of whether or not the violation was related to the student's disability in the following circumstances: 1) the student carried or possessed a weapon on school premises or a school function; 2) the student knowingly possesses or used illegal drugs or sold or solicited the sale of a controlled substance while at school or at school function; or 3) has inflicted serious bodily injury upon another person while at school or at a school function. The interim setting is still determined by the IEP team.

What if my child is not eligible for special education? In that circumstance they may still be protected if the district had knowledge that the child was a child with a disability before the behavior occurred. The district will be deemed to have such knowledge if the parent expressed their concern in writing that the student was in need of special education, if they requested an evaluation or if the teacher of the child or other personnel expressed specific concerns about the behavior to the director of special education or other personnel.

Can the school call the police? The laws that govern special education students do not do prohibit the district from reporting a crime to the appropriate authorities or prevent law enforcement or judicial authorities from exercising their responsibilities.