A student's IEP goals must be clearly measurable and must address that student's unique needs arising from his / her disability. Goals are the central part of an IEP; they set standards for what the child will learn and achieve under the proposed program. Essential to a parents understanding of the child's progress and the appropriateness of the program, therefore, is how progress will be reported. The IDEA requires a statement within the written IEP document regarding this.
Specifically, the IDEA requires:
"a description of how the child's progress towards meeting the annual goals... will be measured and when periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided."
20 U.S.C. section 1414(d)(1)(A)(III).
How will progress be measured?
This is closely related to the discussion of how goals should be written so that they are measurable. The starting place for determining how progress will be measured is within the goal itself - make sure it is clear what accuracy level the child will be expected to achieve to meet the goal; include a reliability indicator, such as 3 out of 4 trials, if appropriate, and make sure that the specific skills themselves are clear.
Determining "how" progress will be measured also involves deciding how information regarding progress will be gathered. Will there be specific data collection that indicates specifically how a child performed on the skill for each trial? Will classroom work samples be sufficient to track progress on a skill? Should the teacher utilize an assessment measure to indicate the child's achievement level to determine progress? The IEP team needs to consider how information will be collected, and make sure this is clear in the IEP. Although observational information may be useful for future IEP meetings, a subjective measurement of progress should be avoided as a sole indicator whenever possible.
Examples:
Child's annual goal = read 50 new sight words from a 2nd grade high frequency word list with automaticity as measured by teacher collected samples
Progress measured by: teacher samples
Teacher indicates directly on list of high frequency words the words that student reads, and adds these up. The list itself is a record of student's progress.
Child's annual goal = remain on task for at least 10 minutes during a teacher-directed desktop assignment or activity, with no less than 2 verbal prompts in 3 out of 4 trials as measured by data collection charts.
Progress is measured by:
Data collection chart
Date: 06/12
Lesson: Math
Time on task: 6 minutes
prompts: 3
When will progress be reported?
The IEP document needs to specifically identify when "periodic reports on the progress" towards the child's annual goals will be produced and provided to parents. These periodic reports can be concurrent with the issuance of report cards, but should include specific information related to the child's specific goals. Because the IDEA now only requires short term objectives for students who are provided with alternative assessment measures, it may be difficult to quantify a child's progress towards the ultimate goal for the periodic report. If objectives are included in the IEP, the periodic report can tell parents whether or not the child has met the objective for that time period. If not, then information about how the child has progressed should still be made availalble.
Providing sufficient information within a periodic report of progress goes back to the goals itself being measurable. If the goal has a clearly measurable, objective standard that can be quantified or recorded in some way, then the child's current level on that same objective standard can be reported for a periodic report.
Example:
Child's annual goal = read 50 new sight words from a 2nd grade high frequency word list with automaticity as measured by teacher collected samples
Periodic Report for First Reporting Period
periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided
Relationship to Other Procedural Safeguards
School districts are obligated to revise a child's IEP as appropriate "to address any lack of expected progress toward the annual goals and in the general education curriculum, where appropriate." 20 U.S.C. section 1414(d)(4)(A)(ii)(1). This means that if during the time period covered by an annual IEP, the student is not making expected progress, the District should convene the team to discuss whether adjustments to the goals or the program are required. It is important that the goals themselves are clearly measurable, and that there are reporting periods clearly identified for when progress will be reported, so that if the child is not making progress, the team, including parents, are aware of this. If the IEP does not clearly establish how and when progress will be measured, the team may not be aware until the next annual IEP that the child is not making adequate progress. This may cause a loss of educational benefit, in that the District thereby did not revise the IEP as appropriate to meet the child's needs and enable him/her to meet the annual goals.
Ultimately, an important purpose of making sure that the goals are measurable and that progress is reported periodically is to ensure meaningful parent participation in the process. Parents cannot fully participate in ongoing discussions regarding their child's program or annual IEP meetings if they do not know whether or not the child is making expected progress. If parents are fully informed regarding their child's progress, or lack thereof, under the special education program being provided, they are more able to understand the appropriateness of the program being offered, and to ask for additional services or supports when needed.
Showing posts with label educational benefit. Show all posts
Showing posts with label educational benefit. Show all posts
Thursday, July 23, 2009
Wednesday, July 22, 2009
Breaking Down the IEP: Measurable Annual Goals
The IDEA requires the written IEP document to include measurable annual goals to address the child's unique needs. Goals are based upon the child's present levels of performance, and should drive the child's services. Therefore, goals are often consider the "core" of the student's IEP.
Specifcially, the IDEA requires:
"a statement of measurable annual goal, including academic and functional goals, designed to (aa) meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum; and (bb) meet each of the child's other educational needs that result from the child's disability."
20 U.S.C. section 1414(d)(1)(A)(i)(II).
What are Annual Goals?
OSEP and the Appendix to the IDEA 1999 regulations both have defined annual goals as "statements that describe what a child with a disability can reasonably be expected to accomplish within a 12-month period, in the child's special education program." Letter to Butler, 213 IDELR 118 (1988); Notice of Interpretation, Question 4, Appendix A to 34 C.F.R. part 300 (1999 regulations).
What needs should be addressed?
Proper and complete identification of a child's unique needs is key to writing good goals for the IEP. Evaluation data, input from persons working with the child, and information about what the child should be able to do at this grade level, all may be relevant when developing proposed annual goals. If the team has considered all relevant information and drafted clearly stated and sufficiently comprehensive PLOP, then identifying areas that need to be addressed in annual goals will be much easier. By definition, goals should address a child's unique needs related to the following:
(1) IEP must include both academic and functional goals
As discussed in the previous posts, IEP teams are now explicitly required to address both academic and functional areas when developing a program for the child. "Educational benefit" has long been defined as including both academic and non-academic areas. Since ultimately the IEP must be reasonably calculated to provide educational benefit to the student, it logically follows that all components of educational benefit should be considered when determining what goals are necessary, even if those areas are not strictly related to academic progress.
Academic goals relate to what the child will be expected to learn and accomplish in the coming year in the areas of reading and language arts, math, social studies and history, and science.
Functional goals related to what progress the child will be expected to make in the coming year in areas, skills and activities that are non-academic and related to the child's day to day functional skills, like behavior, communication, independent living skills, social skills, etc.
(2) "Enable the child to make progress in the general education curriculum"
The IDEA specifically states that goals must be included for each child with a disability to meet the child's needs arising from the disability in order to enable that child to make progress in general education curriculum. There is nothing in the statute that indicates that this provision only requires to students who are in a general education classroom, or to students with a certain level of general intelligence and ability, or that it does not apply if the student has a "severe" disabilty.
The decision of what progress towards general education curriculum would be appropriate is of course an individualized decision based upon factors related to that individual child. Certainly, not every child will be able to meet grade level standards. However, every child can be given the opportunity to make progress in general education curriculum appropriate to their individual strengths and needs. Because this debate is a frequent issue in IEP meetings, it has been addressed more thoroughly in a previous blog post.
(3) "Meet other educational needs that arise from the disability"
The term "educational" is broader than merely academics. Educational benefit can include both academic and non-academic areas. It is important to remember this framework when considering the need for goals to "meet each of the child's other educational needs."
Other educational needs may include speech, language or communication deficits, social skills difficulties, behavioral needs, recreation and leisure, independent living, motor skills, etc. Focus on the "big picture" of what an educational program should be accomplishing, and utilize assessment data, PLOP, and input from team members to determine what areas need to be addressed.
Remember that the IDEA says "each of the child's other educational needs," not "the most important needs." The IEP team needs to make sure that the goals are attainable and appropriate, and it therefore may not be appropriate to have a huge amount of goals. However, when the District says "we only write goals to address the most important areas," or "we have to prioritize and pick only some areas of need to address," this isn't exactly conducive with the IDEA's language. Instead, the IEP needs to include a goal for each area of educational need a child has that arises from that child's disability.
What does it mean for goals to be "measurable?"
To be measurable, a goal must be written clearly with sufficient information to allow an objective person to understand what skill is being addressed and exactly what should be accomplished in order for the child to reach the goal. IEP teams should be wary of goals that are vague or that contain broad generalized statements about "improving" in an area or "increasing" a skill, without specifying what that means. A goal that says that the child will "improve" in his/her skills in a specific area provides little more information than what area of need is being addressed. Ask yourself how the child will improve, how it will be demonstrated, and what specific skill is being addressed.
If the IEP team has developed clear statements of the child's PLOP, writing measurable goals will be much easier. The PLOP can be used to establish clear baselines as a "starting place" for the proposed goals. If the baseline is clear, it is easier to determine how to write an annual goal that will ensure progress and will be measurable. For example, if the PLOP indicates that the child's current fluency rate is at 50 words per minute, the IEP team has enough information to draft a goal that would be at a higher rate, and has specific enough data to make that goal measurable (i.e. the child will read at a rate of 100 words per minute).
Avoid goals that are subjective, because these will not be clearly measurable by whomever is implementing the IEP. A good point of reference is to think "if I had to take this IEP to a new school district who had not been involved in this meeting, would they know how to implement this goal and measure it?"
Examples:
Measurable Goal: Child will engage in a conversation with a peer for 5 minutes, demonstrating at least two conversational turns and remaining on topic.
Vague / Not Measurable: Child will improve conversational skills with peers.
Measurable Goal: Child will demonstrate ability to read 50 new grade level sight words with 90% accuracy in 3 out of 4 trials.
Vague / Not Measurable: Child will increase reading of sight words.
What is the relationship between goals and services, instruction & the provision of FAPE?
IEP goals should drive specialized instruction and related services. The goals establish what the child is expected to learn and accomplish within the special education program. Once the goals have set forth a roadmap for the child, the IEP team must consider what specialized instruction and related services will be required to get there.
An IEP that is found to have insufficient or inappropriate goals will in many cases be found to deny a student FAPE. This is because when the IEP goals are not based on the child's needs, the program itself likely will not be able to meet the child's needs and provide educational benefit. Goals, therefore, have vital importance to the development of an overall appropriate program for an individual child!
Specifcially, the IDEA requires:
"a statement of measurable annual goal, including academic and functional goals, designed to (aa) meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum; and (bb) meet each of the child's other educational needs that result from the child's disability."
20 U.S.C. section 1414(d)(1)(A)(i)(II).
What are Annual Goals?
OSEP and the Appendix to the IDEA 1999 regulations both have defined annual goals as "statements that describe what a child with a disability can reasonably be expected to accomplish within a 12-month period, in the child's special education program." Letter to Butler, 213 IDELR 118 (1988); Notice of Interpretation, Question 4, Appendix A to 34 C.F.R. part 300 (1999 regulations).
What needs should be addressed?
Proper and complete identification of a child's unique needs is key to writing good goals for the IEP. Evaluation data, input from persons working with the child, and information about what the child should be able to do at this grade level, all may be relevant when developing proposed annual goals. If the team has considered all relevant information and drafted clearly stated and sufficiently comprehensive PLOP, then identifying areas that need to be addressed in annual goals will be much easier. By definition, goals should address a child's unique needs related to the following:
(1) IEP must include both academic and functional goals
As discussed in the previous posts, IEP teams are now explicitly required to address both academic and functional areas when developing a program for the child. "Educational benefit" has long been defined as including both academic and non-academic areas. Since ultimately the IEP must be reasonably calculated to provide educational benefit to the student, it logically follows that all components of educational benefit should be considered when determining what goals are necessary, even if those areas are not strictly related to academic progress.
Academic goals relate to what the child will be expected to learn and accomplish in the coming year in the areas of reading and language arts, math, social studies and history, and science.
Functional goals related to what progress the child will be expected to make in the coming year in areas, skills and activities that are non-academic and related to the child's day to day functional skills, like behavior, communication, independent living skills, social skills, etc.
(2) "Enable the child to make progress in the general education curriculum"
The IDEA specifically states that goals must be included for each child with a disability to meet the child's needs arising from the disability in order to enable that child to make progress in general education curriculum. There is nothing in the statute that indicates that this provision only requires to students who are in a general education classroom, or to students with a certain level of general intelligence and ability, or that it does not apply if the student has a "severe" disabilty.
The decision of what progress towards general education curriculum would be appropriate is of course an individualized decision based upon factors related to that individual child. Certainly, not every child will be able to meet grade level standards. However, every child can be given the opportunity to make progress in general education curriculum appropriate to their individual strengths and needs. Because this debate is a frequent issue in IEP meetings, it has been addressed more thoroughly in a previous blog post.
(3) "Meet other educational needs that arise from the disability"
The term "educational" is broader than merely academics. Educational benefit can include both academic and non-academic areas. It is important to remember this framework when considering the need for goals to "meet each of the child's other educational needs."
Other educational needs may include speech, language or communication deficits, social skills difficulties, behavioral needs, recreation and leisure, independent living, motor skills, etc. Focus on the "big picture" of what an educational program should be accomplishing, and utilize assessment data, PLOP, and input from team members to determine what areas need to be addressed.
Remember that the IDEA says "each of the child's other educational needs," not "the most important needs." The IEP team needs to make sure that the goals are attainable and appropriate, and it therefore may not be appropriate to have a huge amount of goals. However, when the District says "we only write goals to address the most important areas," or "we have to prioritize and pick only some areas of need to address," this isn't exactly conducive with the IDEA's language. Instead, the IEP needs to include a goal for each area of educational need a child has that arises from that child's disability.
What does it mean for goals to be "measurable?"
To be measurable, a goal must be written clearly with sufficient information to allow an objective person to understand what skill is being addressed and exactly what should be accomplished in order for the child to reach the goal. IEP teams should be wary of goals that are vague or that contain broad generalized statements about "improving" in an area or "increasing" a skill, without specifying what that means. A goal that says that the child will "improve" in his/her skills in a specific area provides little more information than what area of need is being addressed. Ask yourself how the child will improve, how it will be demonstrated, and what specific skill is being addressed.
If the IEP team has developed clear statements of the child's PLOP, writing measurable goals will be much easier. The PLOP can be used to establish clear baselines as a "starting place" for the proposed goals. If the baseline is clear, it is easier to determine how to write an annual goal that will ensure progress and will be measurable. For example, if the PLOP indicates that the child's current fluency rate is at 50 words per minute, the IEP team has enough information to draft a goal that would be at a higher rate, and has specific enough data to make that goal measurable (i.e. the child will read at a rate of 100 words per minute).
Avoid goals that are subjective, because these will not be clearly measurable by whomever is implementing the IEP. A good point of reference is to think "if I had to take this IEP to a new school district who had not been involved in this meeting, would they know how to implement this goal and measure it?"
Examples:
Measurable Goal: Child will engage in a conversation with a peer for 5 minutes, demonstrating at least two conversational turns and remaining on topic.
Vague / Not Measurable: Child will improve conversational skills with peers.
Measurable Goal: Child will demonstrate ability to read 50 new grade level sight words with 90% accuracy in 3 out of 4 trials.
Vague / Not Measurable: Child will increase reading of sight words.
What is the relationship between goals and services, instruction & the provision of FAPE?
IEP goals should drive specialized instruction and related services. The goals establish what the child is expected to learn and accomplish within the special education program. Once the goals have set forth a roadmap for the child, the IEP team must consider what specialized instruction and related services will be required to get there.
An IEP that is found to have insufficient or inappropriate goals will in many cases be found to deny a student FAPE. This is because when the IEP goals are not based on the child's needs, the program itself likely will not be able to meet the child's needs and provide educational benefit. Goals, therefore, have vital importance to the development of an overall appropriate program for an individual child!
Thursday, July 16, 2009
Private Placements Part 3: Locate an Appropriate Unilateral Placement
In a unilateral placement case, when parents are seeking reimbursement for a private school placement, parents must demonstrate that the private placement the child is attending is "appropriate" for that child. This presents what the courts have deemed a "stringent but not impossible" task. Parents meet this burden by demonstrating that the private placement meets the child's needs and provides the child with educational benefit. Courts will look at whether the placement reasonably serves the child's individual needs.
This analysis is obviously fact-sensitive and varies in every single case. The "appropriateness" of the private placement is something parents need to keep in mind at every stage of this process, from deciding to disagree with the district's proposed placement, to searching for an appropriate alternative, to deciding if/when to seek reimbursement.
Things to Consider:
There are many things parents can consider when deciding on a placement. Its helpful to start out with a list of your child's unique needs as a starting place so that you can keep in mind how the different components of various options may (or may not) meet those needs. Then make a list of the things that would be required to be in a program for it to be appropriate for the child. Utilize your experts and evaluators during this stage if possible.
Examples of factors to think about include:
* Class size: does your child need a small class size with fewer peers? higher teacher:student ratio?
* Campus size / setting: does your child get overwhelmed in a large campus setting? are there safety concerns that may arise in larger settings?
* Specialized Instructional Methods: what specialized instructional programs does your child need? for example, does your child need specialized instruction for reading and is it available at this placement?
* Behavioral Components: what type of behavioral program does your child require? will class-wide behavior modification work? does your child require staff with certain training or experience to address his/her behavior?
* Social Skills Components: does your child need social skills instruction as part of a classroom curriculum component? in-the-moment training and facilitation throughout the day? does your child need access to appropriate social-models in terms of peers?
* Training of Staff: does your child require access to staff with specific training or experience working with kids with particular needs / disabilities?
Thinking about topics like these will help parents to ensure that if they are in the situation of having to choose a private alternative for placement, that placement is one that meets the child's needs so as to be considered "appropriate" when they are later seeking reimbursement.
Remember that the appropriateness of the private placement is only one factor, and only applies if the District's proposed placement is found to be inappropriate. While making a list of your child's unique needs and considering these factors when analyzing placement offers and options naturally will lead to some comparison between the District's placement and the private one, remember that comparing them is not the analysis the court will use. It is not enough simply to show that the private placement is "better," because ultimately you must show that the District's placement was not appropriate.
This analysis is obviously fact-sensitive and varies in every single case. The "appropriateness" of the private placement is something parents need to keep in mind at every stage of this process, from deciding to disagree with the district's proposed placement, to searching for an appropriate alternative, to deciding if/when to seek reimbursement.
Things to Consider:
There are many things parents can consider when deciding on a placement. Its helpful to start out with a list of your child's unique needs as a starting place so that you can keep in mind how the different components of various options may (or may not) meet those needs. Then make a list of the things that would be required to be in a program for it to be appropriate for the child. Utilize your experts and evaluators during this stage if possible.
Examples of factors to think about include:
* Class size: does your child need a small class size with fewer peers? higher teacher:student ratio?
* Campus size / setting: does your child get overwhelmed in a large campus setting? are there safety concerns that may arise in larger settings?
* Specialized Instructional Methods: what specialized instructional programs does your child need? for example, does your child need specialized instruction for reading and is it available at this placement?
* Behavioral Components: what type of behavioral program does your child require? will class-wide behavior modification work? does your child require staff with certain training or experience to address his/her behavior?
* Social Skills Components: does your child need social skills instruction as part of a classroom curriculum component? in-the-moment training and facilitation throughout the day? does your child need access to appropriate social-models in terms of peers?
* Training of Staff: does your child require access to staff with specific training or experience working with kids with particular needs / disabilities?
Thinking about topics like these will help parents to ensure that if they are in the situation of having to choose a private alternative for placement, that placement is one that meets the child's needs so as to be considered "appropriate" when they are later seeking reimbursement.
Remember that the appropriateness of the private placement is only one factor, and only applies if the District's proposed placement is found to be inappropriate. While making a list of your child's unique needs and considering these factors when analyzing placement offers and options naturally will lead to some comparison between the District's placement and the private one, remember that comparing them is not the analysis the court will use. It is not enough simply to show that the private placement is "better," because ultimately you must show that the District's placement was not appropriate.
Wednesday, July 15, 2009
Private Placements Part 2: When an alternative may be necessary
Unilateral placement cases are highly fact-specific and each case is unique. It is advisable that a parent seeking to place their child unilaterally and obtain reimbursement for the costs of that placement obtain assistance from a special education attorney or highly experienced advocate from the initial stages of this process. An attorney or advocate can assist the parent with following all of the necessary steps in the process along the way.
The previous post in this series talks about when and how a parent gives notice to the school district of their decision to place their child unilaterally at a private school. Prior to reaching the point of providing notice, parents must go through the process of determining that a private placement is necessary for their child. The case law recognizes that such a determination is made at the parents' financial risk; that is, there is no guarantee that the parent would ultimately be reimbursed. Therefore, the determination to take such a step should only be made when it is necessary, and must be done cautiously. This second part of the "private placement" blog series discusses factors and situations that may give rise to such a determination.
Parents have attempted to work with the District to find another suitable alternative
Generally, parents should not rush into a unilateral, private placement without first trying to work within the District's system to locate an appropriate alternative. This doesn't mean that every child has to necessarily "try" the District's proposed classroom before the private placement occurs. But it does mean that parents should work cooperatively with the District, attend and participate in IEP meetings, voice their concerns about placements proposed by the District, go and observe District programs when possible, and provide the District with input from private experts or independent evaluators. If the District has not been given the "opportunity" to provide the student with an appropriate program, ultimately it is likely that a judge will find that reimbursement is not appropriate.
Private placement should be considered, therefore, in situations where the parent has actively and cooperatively participated in IEPs and placement discussions and has made efforts to work with the District to secure an approrpiate publicly funded placement. Many parents only turn to a unilateral placement after visiting / observing all of the recommended placements by the District, having multiple meetings with the District about placement, voicing their concerns, etc, and then determining that there is no appropriate option within the District's alternatives and private placement is therefore necessary. To read an example of such a case, see Board of Education of the City School District of the City of New York, 39 IDELR 56 (SEA NY 2002).
The District delayed completion of or implementation of an appropriate IEP, thereby denying educational benefit
In some circumstances, the district's unjustifiable delay in completing or implementing an IEP may cause such a loss of educational benefit to the student as to support the need for a private placement and reimbursment to parents. Consider whether the district has failed to complete an IEP at all, leaving it "in limbo" such that the student has no program in place. If this has happened, parents may be faced with a choice between leaving their child with no specialized program, or unilaterally placing the child in an appropriate program and seeking reimbursement. If the issue is not development of the IEP, but implementation, it is important to look at whether the component that has not been implemented was essential to the IEP, and the lack of that component meant that the program itself was no longer appropriate. Again, parents are then faced with a difficult choice between allowing their child to continue in the inappropriate program or unilaterally placing him/her. The cases on this issue are very fact specific, so it should not be simply assumed that any time the district fails to implement the IEP, unilateral placement will be justified. Again, it would be a good idea to have an expert opinion regarding the impact of the delay or non-implementation. For examples of such cases, read Board of Educ. of Chatham Cent. Sch. Dist., 39 IDELR 144 (SEA NY 2003 and Ms. M ex rel K.M. v. Portland Sch. Comm., 39 IDELR 33 (D. Me. 2003).
Student has made no progress in the District's program
When a student has already been in a specific program offered and provided by the school district, and that program has proved to be inappropriate or ineffective, it may be time for parents to consider an alternative. This scenario necessitates looking objectively at the data and information about the child to adequately determine if there has been progress or not, and therefore usually requires an expert's opinion. If the student has been in the program / methodology, ask yourself if he/she has made little to no progress in the specific area being addressed. Also, it is important to look at what the District knew or should have been aware of with regards to the lack of progress. Is this a situation where ongoing progress reports, IEP documents and other data were demonstrating for a significant amount of time that no progress was being made, yet the district ignored such data and continued to offer the same kind of program? Or is it a situation where there was no clear data on an ongoing basis, so maybe no one was aware of the lack of progress until the child was reevaluated much later? An alternative placement may be more appropriate in a situation where not only was the district's program ineffective and inappropriate, but the district also continued to offer said program despite indication that it wasn't working. For an example of such a case, read Draper v. Atlanta Indep. Sch. System, 108 LRP 13764 (11th Circuit 2008).
In some cases, there may be data and evidence that not only establishes lack of progress, but actual regression in some areas. If the child is regressing, rather than progressing, under the district's program, then parents may need to look for an alternative. In these situations, expert opinion would be critical to establish regression. Also, you should consider factors such as whether the district knew the child was regressing, how they responded, and whether they are now offering something different. Fo an example, read J.P. v. County Sch. Bd. of Hanover County, Va 46 IDELR 133 (E.D. Va. 2006).
District has offered a prospective placement that is not appropriate
Commonly, parents consider unilateral placements because of a dispute about what the district has offered prospectively. When the district's IEP and placement offer will not meet the child's needs or enable him/her to obtain educational benefit, the parents may need to consider rejecting that offer and unilaterally placing the child. Again, this is a very fact sensitive scenario, and the parents must consider the IEP offer carefully. An expert who can not only evaluate the child's unique needs, but also observe the proposed placement will most likely be necessary. It is important to look at what the child's identified unique needs are and evaluate the proposed IEP on whether or not it will meet those needs. Consider if there is a specific type of setting, for instance, that the child requires, or whether the child needs a therapuetic component to address his/her social / emotional needs. The totality of the factors will be considered in these situations to determine if the district offered FAPE, and ultimately if the parent is entitled to reimbursement for the unilateral placement. For examples of such cases, read Lamoine Sch. Comm. v. Ms. Z. ex rel N.S. 42 IDELR 172 (D. Me. 2005) and Board of Educ. of the City Sch. Dist. for the City of N.Y. 35 IDELR 28 (SEA NY 2001).
Remember that whatever situation arises that causes parents to consider a unilateral placement, parents need to be careful and consider all of the district's options before making such a decision. Consult with experts, providers and persons who know your child. It may also be necessary to consult with a special education advocate or attorney.
The next blog in this series will discuss another issue in private placement cases, which is consideration of whether the unilateral, private placement is appropriate.
The previous post in this series talks about when and how a parent gives notice to the school district of their decision to place their child unilaterally at a private school. Prior to reaching the point of providing notice, parents must go through the process of determining that a private placement is necessary for their child. The case law recognizes that such a determination is made at the parents' financial risk; that is, there is no guarantee that the parent would ultimately be reimbursed. Therefore, the determination to take such a step should only be made when it is necessary, and must be done cautiously. This second part of the "private placement" blog series discusses factors and situations that may give rise to such a determination.
Parents have attempted to work with the District to find another suitable alternative
Generally, parents should not rush into a unilateral, private placement without first trying to work within the District's system to locate an appropriate alternative. This doesn't mean that every child has to necessarily "try" the District's proposed classroom before the private placement occurs. But it does mean that parents should work cooperatively with the District, attend and participate in IEP meetings, voice their concerns about placements proposed by the District, go and observe District programs when possible, and provide the District with input from private experts or independent evaluators. If the District has not been given the "opportunity" to provide the student with an appropriate program, ultimately it is likely that a judge will find that reimbursement is not appropriate.
Private placement should be considered, therefore, in situations where the parent has actively and cooperatively participated in IEPs and placement discussions and has made efforts to work with the District to secure an approrpiate publicly funded placement. Many parents only turn to a unilateral placement after visiting / observing all of the recommended placements by the District, having multiple meetings with the District about placement, voicing their concerns, etc, and then determining that there is no appropriate option within the District's alternatives and private placement is therefore necessary. To read an example of such a case, see Board of Education of the City School District of the City of New York, 39 IDELR 56 (SEA NY 2002).
The District delayed completion of or implementation of an appropriate IEP, thereby denying educational benefit
In some circumstances, the district's unjustifiable delay in completing or implementing an IEP may cause such a loss of educational benefit to the student as to support the need for a private placement and reimbursment to parents. Consider whether the district has failed to complete an IEP at all, leaving it "in limbo" such that the student has no program in place. If this has happened, parents may be faced with a choice between leaving their child with no specialized program, or unilaterally placing the child in an appropriate program and seeking reimbursement. If the issue is not development of the IEP, but implementation, it is important to look at whether the component that has not been implemented was essential to the IEP, and the lack of that component meant that the program itself was no longer appropriate. Again, parents are then faced with a difficult choice between allowing their child to continue in the inappropriate program or unilaterally placing him/her. The cases on this issue are very fact specific, so it should not be simply assumed that any time the district fails to implement the IEP, unilateral placement will be justified. Again, it would be a good idea to have an expert opinion regarding the impact of the delay or non-implementation. For examples of such cases, read Board of Educ. of Chatham Cent. Sch. Dist., 39 IDELR 144 (SEA NY 2003 and Ms. M ex rel K.M. v. Portland Sch. Comm., 39 IDELR 33 (D. Me. 2003).
Student has made no progress in the District's program
When a student has already been in a specific program offered and provided by the school district, and that program has proved to be inappropriate or ineffective, it may be time for parents to consider an alternative. This scenario necessitates looking objectively at the data and information about the child to adequately determine if there has been progress or not, and therefore usually requires an expert's opinion. If the student has been in the program / methodology, ask yourself if he/she has made little to no progress in the specific area being addressed. Also, it is important to look at what the District knew or should have been aware of with regards to the lack of progress. Is this a situation where ongoing progress reports, IEP documents and other data were demonstrating for a significant amount of time that no progress was being made, yet the district ignored such data and continued to offer the same kind of program? Or is it a situation where there was no clear data on an ongoing basis, so maybe no one was aware of the lack of progress until the child was reevaluated much later? An alternative placement may be more appropriate in a situation where not only was the district's program ineffective and inappropriate, but the district also continued to offer said program despite indication that it wasn't working. For an example of such a case, read Draper v. Atlanta Indep. Sch. System, 108 LRP 13764 (11th Circuit 2008).
In some cases, there may be data and evidence that not only establishes lack of progress, but actual regression in some areas. If the child is regressing, rather than progressing, under the district's program, then parents may need to look for an alternative. In these situations, expert opinion would be critical to establish regression. Also, you should consider factors such as whether the district knew the child was regressing, how they responded, and whether they are now offering something different. Fo an example, read J.P. v. County Sch. Bd. of Hanover County, Va 46 IDELR 133 (E.D. Va. 2006).
District has offered a prospective placement that is not appropriate
Commonly, parents consider unilateral placements because of a dispute about what the district has offered prospectively. When the district's IEP and placement offer will not meet the child's needs or enable him/her to obtain educational benefit, the parents may need to consider rejecting that offer and unilaterally placing the child. Again, this is a very fact sensitive scenario, and the parents must consider the IEP offer carefully. An expert who can not only evaluate the child's unique needs, but also observe the proposed placement will most likely be necessary. It is important to look at what the child's identified unique needs are and evaluate the proposed IEP on whether or not it will meet those needs. Consider if there is a specific type of setting, for instance, that the child requires, or whether the child needs a therapuetic component to address his/her social / emotional needs. The totality of the factors will be considered in these situations to determine if the district offered FAPE, and ultimately if the parent is entitled to reimbursement for the unilateral placement. For examples of such cases, read Lamoine Sch. Comm. v. Ms. Z. ex rel N.S. 42 IDELR 172 (D. Me. 2005) and Board of Educ. of the City Sch. Dist. for the City of N.Y. 35 IDELR 28 (SEA NY 2001).
Remember that whatever situation arises that causes parents to consider a unilateral placement, parents need to be careful and consider all of the district's options before making such a decision. Consult with experts, providers and persons who know your child. It may also be necessary to consult with a special education advocate or attorney.
The next blog in this series will discuss another issue in private placement cases, which is consideration of whether the unilateral, private placement is appropriate.
Thursday, July 2, 2009
Civil Rights in Education
Today is the 45th Anniversary of the signing of the Civil Rights Act. Title VI prohibited discrimination on the basis of race, color or national origin in programs receiving federal financial assistance, including public schools. Ten years prior, in 1954, the Supreme Court issued its ruling in Brown vs. Board of Education, finding that "racially segregated schools are inherently unequal."
Education has been called the civil rights issue of our generation. Although we have come a long way since Brown, the Civil Rights Act, the subsequent Education of the Handicapped Act, and other legislation, there are still disparities in education that affect minorities, children living in poverty or homelessness, and children with disabilities.
Disability advocates should always be aware of the civil rights movement as the foundation for what we now do. Following Brown vs. Board of Education, courts began to recognize that other types of segregation and seclusion also existed, and the issue of access to education became an issue for persons with disabilities. Parents began raising equal education opportunity as a right that existed for their children, who had been prevented from even attending schools because of their disabilities. In 1972, a consent order was entered in a case involving the Pennsylvania Association for Retarded Children, requiring the public school system to ensure a free public program of education and training to children with "exceptional" needs. In the same year, Mills v. Board of Education was decided in the District Court for the District of Columbia, and found that exclusion from publicly supported instruction was unconstitutional. The Mills case established a substantive entitlement to a free and suitable publicly supported education. These two cases were based upon the principle that if a public education agency undertook to educate all of the children in its area, it could not then exclude children with exceptional needs simply because they require greater resources to educate. Within these foundational cases was also established the idea of a "preference" for placement within a regular, public school placement.
Today, inclusion in a regular public school placement is still an issue of contention for many students with disabilities. The right to placement in the "least restrictive environment" is a contentious issue in many cases. Separate public schools exist where students with disabilities are placed separately from their non-disabled peers, which some argue is tantamount to segregation. On the other hand, because publicly supported education must be appropriate for the unique needs of the individual students, sometimes a separate specialized setting is required.
In the extreme, some students are still denied access to school because of the severity of their disabilities. In my own career, I have known a child whose parents' only wish was for him to be able to attend his neighborhood school, and he was never allowed to do so.
The right to equal educational opportunity and access has come a long way since 1954 for the groups of persons who have historically been denied that access. Unfortunately, on a daily basis I am reminded how far we still have to go as a society to reach the point where exclusion, discrimination, and the denial of meaningful educational benefit, be it on the basis of race, disability, or poverty, no longer exists in our schools. Only when we eliminate discrimination in schools and ensure truly equal access to a meaningful education will society as a whole move towards greater inclusion of all persons.
Education has been called the civil rights issue of our generation. Although we have come a long way since Brown, the Civil Rights Act, the subsequent Education of the Handicapped Act, and other legislation, there are still disparities in education that affect minorities, children living in poverty or homelessness, and children with disabilities.
Disability advocates should always be aware of the civil rights movement as the foundation for what we now do. Following Brown vs. Board of Education, courts began to recognize that other types of segregation and seclusion also existed, and the issue of access to education became an issue for persons with disabilities. Parents began raising equal education opportunity as a right that existed for their children, who had been prevented from even attending schools because of their disabilities. In 1972, a consent order was entered in a case involving the Pennsylvania Association for Retarded Children, requiring the public school system to ensure a free public program of education and training to children with "exceptional" needs. In the same year, Mills v. Board of Education was decided in the District Court for the District of Columbia, and found that exclusion from publicly supported instruction was unconstitutional. The Mills case established a substantive entitlement to a free and suitable publicly supported education. These two cases were based upon the principle that if a public education agency undertook to educate all of the children in its area, it could not then exclude children with exceptional needs simply because they require greater resources to educate. Within these foundational cases was also established the idea of a "preference" for placement within a regular, public school placement.
Today, inclusion in a regular public school placement is still an issue of contention for many students with disabilities. The right to placement in the "least restrictive environment" is a contentious issue in many cases. Separate public schools exist where students with disabilities are placed separately from their non-disabled peers, which some argue is tantamount to segregation. On the other hand, because publicly supported education must be appropriate for the unique needs of the individual students, sometimes a separate specialized setting is required.
In the extreme, some students are still denied access to school because of the severity of their disabilities. In my own career, I have known a child whose parents' only wish was for him to be able to attend his neighborhood school, and he was never allowed to do so.
The right to equal educational opportunity and access has come a long way since 1954 for the groups of persons who have historically been denied that access. Unfortunately, on a daily basis I am reminded how far we still have to go as a society to reach the point where exclusion, discrimination, and the denial of meaningful educational benefit, be it on the basis of race, disability, or poverty, no longer exists in our schools. Only when we eliminate discrimination in schools and ensure truly equal access to a meaningful education will society as a whole move towards greater inclusion of all persons.
Friday, June 19, 2009
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.
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.
Friday, June 12, 2009
Fast Fact Friday: Specialized Instruction
Eligibility for an IEP is contingent upon (1) the child having an identified disability under one of the eligibility categories in federal and state laws, and (2) the child requiring, by reason of that disability, special education and related services. See 34 C.F.R. section 300.8(a)(1). "Special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including (i) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (ii) instruction in physical education." See 20 U.S.C. section 1401(29); 34 C.F.R. section 300.39(a)(1). Furthermore, special education can include related services, such as speech-language pathology, if that service is considered special education rather than a related service under state standards. See 34 C.F.R. section 300.39(a)(2).
What is "specially designed instruction?"
The IDEIA defines specially designed instruction as "adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction, (i) to address the unique needs of the child that result from the child's disability; and (ii) to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of hte public agency that apply to all children." 34 C.F.R. section 300.39(b)(3).
Through the IEP process, Districts need to consider whether adaptations are needed in the content (i.e. what is being taught), or the methodology or delivery of instruction (i.e. how it is being taught) in order for the specific child's needs to be addressed and in order for that child to have access to general education curriculum. The IEP team should also consider whether the child needs "additional specialized instruction or related services" in order to make progress towards general education curriculum. See Letter to Anonymous, OSEP 2008.
"Specially designed" means designed with the specific child in mind. Specially designed instruction can include alternative methods of teaching the same curriculum to children with disabilities as to non-disabled students. It can include modified or adapted textbooks.
Under the IDEIA, special education (including specially designed instruction) should be "based on peer reviewed research to the extent practicable." 34 C.F.R. section 300.320(a)(4). In certain cases, specially designed instruction can also include specialized instructional programs, like intensive reading programs, ABA or other methodologies, etc., if these specific instructional programs are required to meet the child's unique needs and ensure access to the general curriculum.
What is "specially designed instruction?"
The IDEIA defines specially designed instruction as "adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction, (i) to address the unique needs of the child that result from the child's disability; and (ii) to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of hte public agency that apply to all children." 34 C.F.R. section 300.39(b)(3).
Through the IEP process, Districts need to consider whether adaptations are needed in the content (i.e. what is being taught), or the methodology or delivery of instruction (i.e. how it is being taught) in order for the specific child's needs to be addressed and in order for that child to have access to general education curriculum. The IEP team should also consider whether the child needs "additional specialized instruction or related services" in order to make progress towards general education curriculum. See Letter to Anonymous, OSEP 2008.
"Specially designed" means designed with the specific child in mind. Specially designed instruction can include alternative methods of teaching the same curriculum to children with disabilities as to non-disabled students. It can include modified or adapted textbooks.
Under the IDEIA, special education (including specially designed instruction) should be "based on peer reviewed research to the extent practicable." 34 C.F.R. section 300.320(a)(4). In certain cases, specially designed instruction can also include specialized instructional programs, like intensive reading programs, ABA or other methodologies, etc., if these specific instructional programs are required to meet the child's unique needs and ensure access to the general curriculum.
Tuesday, June 9, 2009
Goals Related to General Education Curriculum
I hear lots of interesting things at IEP meetings, and recently I've heard several comments on the theme of including goals in an IEP to address general education standards.
In one meeting, a district resource teacher stated that "the law prohibited the IEP team from including goals in an IEP that were based on what would be taught within the general education curriculum."
Another teacher stated that goals related to general education were never appropriate for a student who is "severely disabled."
A district administrator stated that if all of the goals were based on regular education standards, rather than below grade level, this meant that the child should be exited from his IEP because clearly he didn't need special education.
Yet another claimed that "this district doesn't write IEP goals related to Science because no one has a Science disability."
At each of these meetings, I have patiently explained that the law requires IEP goals to address a child's unique needs in order to enable that child to make progress towards and participate in general education curriculum, and that if a child is expected to reach regular standards, but will require specialized instruction or related services to do so, then it would be appropriate to have a goal in that area. More and more, I am seeing IEP teams dismiss this request and insist that IEP goals cannot be written to address regular education standards. So, I've been compiling some information about this issue during these last few weeks of "IEP season" and I wanted to share that information with you.
What does IDEA say about this?
The IEP document must include a statement of measurable annual goals designed to meet the child's unique needs that result from the child's disability, to enable the child to be involved in and make progress in the general education curriculum. See 34 C.F.R. section 300.320(a)(2).
In Appendix A to Part 300, at Question 4, the Office of Education stated that a public agency is not required to include in an IEP annual goals that relate to areas of general curriculum if the child's disability does not affect the child's ability to be involved in and progress towards the general curriculum in that area.
Nowhere in the law is there a statement that a child's IEP cannot or should not include goals related to the general education curriculum. Further, there is no disclaimer stating that the requirement that goals be included to enable the child to be involved in and make progress in the general educaiton curriculum does not apply if the child is severely disabled.
When should the IEP address general education curriculum standards?
An IEP should include goals for areas related to the general education curriculum if the student requires special education or related services in order to make progress or participate in that specific area.
Remember that the IDEA defines special education as specially designed instruction to meet the unique needs of the child. Specially designed instruction is defined as adapting as approrpiate to the needs of the child, the content, methodology or delivery of instruction to address the unique needs of the child that result from the child's disability and to ensure access of the child to the general curriculum so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children. 34 C.F.R. section 300.39(a)&(b).
Look at your state's or district's expected standards for each grade level. (Click here for California Content Standards). Each state has content standards for each grade level that define what students are expected to learn in each academic content area. The question is not whether the ultimate goal is for your child to reach the same level at the end of the school year as the other students; the question is whether your child's disability impacts his/her ability to reach that level. If it does, then it may be appropriate to include a goal for that skill. Look to current evaluation data to determine what areas of the curriculum may be affected by your child's disability.
Start addressing this in the Present Levels of Performance (PLOP), and use that information to determine if a goal is needed. The IEP's statement of PLOP must include the student's present levels of academic achievement and functional performance including how the student's disability affects the student's involvement and progress in the general education curriculum. 34 C.F.R. section 300.320(a)(1). For each area under PLOP, there should be a statement of how the student is currently performing as related to the grade level expectations based upon the content standards. This information can come from a variety of sources, including assessment data, classroom records, standardized testing, teacher input, progress reports, etc. Look at the PLOP to determine where there are areas where there is a "gap" between the grade level expectations and the child's functioning level.
What is the importance of including general education expectations in the IEP?
There is a preference in law and policy for including students with disabilities to the maximum extent possible in the regular education setting. Addressing general education curriculum expectations for students with disabilities, however, goes beyond the LRE debate. This issue is about the underlying goal of the IDEA to end the practice of "lowering expectations" for students with disabilities. Its about the ultimate goal of ensuring that students are educated in such a way that they are prepared for the world when they leave high school.
The IDEA "findings" state that "the education of children with disabilities can be made more effective by... having high expectations for such children and ensuring their access to the general curriculum to the maximum extent possible, in order to meet the developmental goals and the challenging expectations that have been established for all children and... be prepared to lead productive and independent adult lives..." 20 U.S.C. section 1400(c).
No Child Left Behind reiterates this finding, noting that its purpose is to "ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging state academic achievement standards and state academic assessments." It goes on to indicate that this purpose can be achieved by "meeting the educational needs of low-achieving students, including students with disabilities." 20 U.S.C. section 6301.
Reflect on these considerations as you consider the appropriateness of IEP goals related to general education curriculum. A district team member once told me that the only way she would write an IEP goal related to a grade level math standard for a particular student was if the expectation was reduced from learning 30 numbers (as stated in the standard) to learning 15 numbers. When this kind of determination is made arbitrarily because of a misguided belief that grade level goals are not permissible, rather than based on any information about the child's actual levels of functioning, it is not conducive with meeting the purposes of the IDEA. Certainly, an arbitrary assumption that simply because a child is disabled, he could not possibly be expected to reach the grade level standard, is not "having high expectations for such children."
Ultimately, the most important thing to remember is the "I" in "IEP." The IEP must be individualized for the specific child based on his/her specific unique needs, strengths and levels of functioning, and considering information regarding how that child's specific disability affects his/her ability to progress in and participate in the general curriculum. The IEP must ensure that the child is able to make progress and receive a meaningful educational benefit. We should all be wary whenever we are told that "this district doesn't write those goals" or that inclusion of general education standards would "never be appropriate." Ultimately, whether the IEP should include a goal that is related to a general education content standard is an IEP team decision, and should be based on the specific scenario rather than any preconceived notions about the issue.
In one meeting, a district resource teacher stated that "the law prohibited the IEP team from including goals in an IEP that were based on what would be taught within the general education curriculum."
Another teacher stated that goals related to general education were never appropriate for a student who is "severely disabled."
A district administrator stated that if all of the goals were based on regular education standards, rather than below grade level, this meant that the child should be exited from his IEP because clearly he didn't need special education.
Yet another claimed that "this district doesn't write IEP goals related to Science because no one has a Science disability."
At each of these meetings, I have patiently explained that the law requires IEP goals to address a child's unique needs in order to enable that child to make progress towards and participate in general education curriculum, and that if a child is expected to reach regular standards, but will require specialized instruction or related services to do so, then it would be appropriate to have a goal in that area. More and more, I am seeing IEP teams dismiss this request and insist that IEP goals cannot be written to address regular education standards. So, I've been compiling some information about this issue during these last few weeks of "IEP season" and I wanted to share that information with you.
What does IDEA say about this?
The IEP document must include a statement of measurable annual goals designed to meet the child's unique needs that result from the child's disability, to enable the child to be involved in and make progress in the general education curriculum. See 34 C.F.R. section 300.320(a)(2).
In Appendix A to Part 300, at Question 4, the Office of Education stated that a public agency is not required to include in an IEP annual goals that relate to areas of general curriculum if the child's disability does not affect the child's ability to be involved in and progress towards the general curriculum in that area.
Nowhere in the law is there a statement that a child's IEP cannot or should not include goals related to the general education curriculum. Further, there is no disclaimer stating that the requirement that goals be included to enable the child to be involved in and make progress in the general educaiton curriculum does not apply if the child is severely disabled.
When should the IEP address general education curriculum standards?
An IEP should include goals for areas related to the general education curriculum if the student requires special education or related services in order to make progress or participate in that specific area.
Remember that the IDEA defines special education as specially designed instruction to meet the unique needs of the child. Specially designed instruction is defined as adapting as approrpiate to the needs of the child, the content, methodology or delivery of instruction to address the unique needs of the child that result from the child's disability and to ensure access of the child to the general curriculum so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children. 34 C.F.R. section 300.39(a)&(b).
Look at your state's or district's expected standards for each grade level. (Click here for California Content Standards). Each state has content standards for each grade level that define what students are expected to learn in each academic content area. The question is not whether the ultimate goal is for your child to reach the same level at the end of the school year as the other students; the question is whether your child's disability impacts his/her ability to reach that level. If it does, then it may be appropriate to include a goal for that skill. Look to current evaluation data to determine what areas of the curriculum may be affected by your child's disability.
Start addressing this in the Present Levels of Performance (PLOP), and use that information to determine if a goal is needed. The IEP's statement of PLOP must include the student's present levels of academic achievement and functional performance including how the student's disability affects the student's involvement and progress in the general education curriculum. 34 C.F.R. section 300.320(a)(1). For each area under PLOP, there should be a statement of how the student is currently performing as related to the grade level expectations based upon the content standards. This information can come from a variety of sources, including assessment data, classroom records, standardized testing, teacher input, progress reports, etc. Look at the PLOP to determine where there are areas where there is a "gap" between the grade level expectations and the child's functioning level.
What is the importance of including general education expectations in the IEP?
There is a preference in law and policy for including students with disabilities to the maximum extent possible in the regular education setting. Addressing general education curriculum expectations for students with disabilities, however, goes beyond the LRE debate. This issue is about the underlying goal of the IDEA to end the practice of "lowering expectations" for students with disabilities. Its about the ultimate goal of ensuring that students are educated in such a way that they are prepared for the world when they leave high school.
The IDEA "findings" state that "the education of children with disabilities can be made more effective by... having high expectations for such children and ensuring their access to the general curriculum to the maximum extent possible, in order to meet the developmental goals and the challenging expectations that have been established for all children and... be prepared to lead productive and independent adult lives..." 20 U.S.C. section 1400(c).
No Child Left Behind reiterates this finding, noting that its purpose is to "ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging state academic achievement standards and state academic assessments." It goes on to indicate that this purpose can be achieved by "meeting the educational needs of low-achieving students, including students with disabilities." 20 U.S.C. section 6301.
Reflect on these considerations as you consider the appropriateness of IEP goals related to general education curriculum. A district team member once told me that the only way she would write an IEP goal related to a grade level math standard for a particular student was if the expectation was reduced from learning 30 numbers (as stated in the standard) to learning 15 numbers. When this kind of determination is made arbitrarily because of a misguided belief that grade level goals are not permissible, rather than based on any information about the child's actual levels of functioning, it is not conducive with meeting the purposes of the IDEA. Certainly, an arbitrary assumption that simply because a child is disabled, he could not possibly be expected to reach the grade level standard, is not "having high expectations for such children."
Ultimately, the most important thing to remember is the "I" in "IEP." The IEP must be individualized for the specific child based on his/her specific unique needs, strengths and levels of functioning, and considering information regarding how that child's specific disability affects his/her ability to progress in and participate in the general curriculum. The IEP must ensure that the child is able to make progress and receive a meaningful educational benefit. We should all be wary whenever we are told that "this district doesn't write those goals" or that inclusion of general education standards would "never be appropriate." Ultimately, whether the IEP should include a goal that is related to a general education content standard is an IEP team decision, and should be based on the specific scenario rather than any preconceived notions about the issue.
Tuesday, June 2, 2009
Budget Cuts, Summer School, and Your Kid's IEP
On May 28th Los Angeles Unified School District became one of many districts across the country to announce that it was cancelling summer school due to budget cuts. Students who would normally be able to attend enrichment programs or intervention programs to address reading or math deficits will be denied such opportunities this year, and most likely next year. LAUSD's cuts mean that only credit-replacement classes for high school students (at a limited number of campuses) will be offered as "regular education summer school."
LAUSD will still of course be offering Extended School Year ("ESY") programs for students whose IEPs include such a program. ESY is mandated in the federal regulations and in California special education laws, so while summer school can be "cancelled," ESY cannot. However, Districts across the country are "limiting" ESY, and more and more parents are hearing for that a program is not available, ESY would not be appropriate, or their child does not require it. We are hearing from parents that say the District checked off a box that says the student "does not require ESY" without even discussing it, or that say that Districts are suddenly making it very difficult for students to "qualify" for ESY.
Here are some ways the budget cuts and summer school cancellations could affect your special needs child:
1) If your child is in an inclusion program (general education) during the regular school year, the District may not have a similar setting available during the summer because regular summer school has been cancelled.
* This is probably the biggest way that parents are going to see a direct impact of the cancellation of summer school. If the school district is only offering SDC's over the summer, and your child is typically in a general education setting, it may not be appropriate for him/her to attend the district's ESY program.
* The lack of an appropriate ESY setting isn't the end of the discussion, however. The IEP team needs to first consider whether the student requires ESY. If the student requires ESY to prevent regression in skills, then the IEP team needs to look at what should be offered and what will be appropriate. Deciding a student doesn't qualify because the District's program isn't appropriate is putting the cart before the horse, so to speak.
* If the District agrees that the student requires ESY, but admits it has no appropriate setting to offer, then the District is in a difficult position. You may be able to locate a private regular education program for summer school that will provide the continuation of stucture and interaction with peers that your child requires, and you may then be able to advocate for the District to fund such a setting.
* Furthermore, just because the District's placement option doesn't work for your child does not mean that the child is entitled to nothing over the summer. Look at the specific areas in which your child may regress, and see if he/she requires continuation of related services, even if he/she is not attending a summer school classroom setting. Speech therapy, occupational therapy, etc can be available even if the student does not attend ESY.
2) If your district has limited ESY participation by applying a difficult "standard," you may have a difficult time demonstrating the need for a summer program.
* The typical standard is California cases is that ESY must be provided if the student requires instruction / services during the summer in order to prevent regression that is beyond what a typical student would experience during the break from school. Another possible standard include looking at the nature and severity of the disability, for example considering the fact that a student with autism may need a continuity of structured participation in a classroom setting.
* School districts are applying a more stenuous analysis for the "regression/recoupment" standard. Parents may be faced with IEP teams that say there is "no proof" that the child will regress more than what is typical, or may use indications that the child is meeting IEP goals during the regular school year as indication that ESY is not needed.
* Parents are going to need to come to the IEP meetings armed with information and recommendations to assist them in advocating for ESY. Does your child have an extremely difficult time transitioning to new environments? Argue that this is an indication that the nature of his / her disability requires continuity of services during the summer, and that without ESY the transition to the following school year will cause serious regression. How did your child do after winter break? Previous summer breaks? Use this information as support for ESY this year. Remember that educational benefit is about more than academics, it encompasses "nonacademic" areas like social skills, behavior, etc, and these areas may be good focal points for articulating how your child will regress if not provided appropriate ESY support.
Finally, in general parents should anticipate that this may be happening to their child, and review the IEP document before school gets out. Unfortunately, you may find that the IEP already says your child is not eligible, or the previous IEP may not even speak to ESY. If you need to call another meeting to discuss ESY, now is the time to do it in order to ensure that this issue is brought up before it is too late for this summer.
LAUSD will still of course be offering Extended School Year ("ESY") programs for students whose IEPs include such a program. ESY is mandated in the federal regulations and in California special education laws, so while summer school can be "cancelled," ESY cannot. However, Districts across the country are "limiting" ESY, and more and more parents are hearing for that a program is not available, ESY would not be appropriate, or their child does not require it. We are hearing from parents that say the District checked off a box that says the student "does not require ESY" without even discussing it, or that say that Districts are suddenly making it very difficult for students to "qualify" for ESY.
Here are some ways the budget cuts and summer school cancellations could affect your special needs child:
1) If your child is in an inclusion program (general education) during the regular school year, the District may not have a similar setting available during the summer because regular summer school has been cancelled.
* This is probably the biggest way that parents are going to see a direct impact of the cancellation of summer school. If the school district is only offering SDC's over the summer, and your child is typically in a general education setting, it may not be appropriate for him/her to attend the district's ESY program.
* The lack of an appropriate ESY setting isn't the end of the discussion, however. The IEP team needs to first consider whether the student requires ESY. If the student requires ESY to prevent regression in skills, then the IEP team needs to look at what should be offered and what will be appropriate. Deciding a student doesn't qualify because the District's program isn't appropriate is putting the cart before the horse, so to speak.
* If the District agrees that the student requires ESY, but admits it has no appropriate setting to offer, then the District is in a difficult position. You may be able to locate a private regular education program for summer school that will provide the continuation of stucture and interaction with peers that your child requires, and you may then be able to advocate for the District to fund such a setting.
* Furthermore, just because the District's placement option doesn't work for your child does not mean that the child is entitled to nothing over the summer. Look at the specific areas in which your child may regress, and see if he/she requires continuation of related services, even if he/she is not attending a summer school classroom setting. Speech therapy, occupational therapy, etc can be available even if the student does not attend ESY.
2) If your district has limited ESY participation by applying a difficult "standard," you may have a difficult time demonstrating the need for a summer program.
* The typical standard is California cases is that ESY must be provided if the student requires instruction / services during the summer in order to prevent regression that is beyond what a typical student would experience during the break from school. Another possible standard include looking at the nature and severity of the disability, for example considering the fact that a student with autism may need a continuity of structured participation in a classroom setting.
* School districts are applying a more stenuous analysis for the "regression/recoupment" standard. Parents may be faced with IEP teams that say there is "no proof" that the child will regress more than what is typical, or may use indications that the child is meeting IEP goals during the regular school year as indication that ESY is not needed.
* Parents are going to need to come to the IEP meetings armed with information and recommendations to assist them in advocating for ESY. Does your child have an extremely difficult time transitioning to new environments? Argue that this is an indication that the nature of his / her disability requires continuity of services during the summer, and that without ESY the transition to the following school year will cause serious regression. How did your child do after winter break? Previous summer breaks? Use this information as support for ESY this year. Remember that educational benefit is about more than academics, it encompasses "nonacademic" areas like social skills, behavior, etc, and these areas may be good focal points for articulating how your child will regress if not provided appropriate ESY support.
Finally, in general parents should anticipate that this may be happening to their child, and review the IEP document before school gets out. Unfortunately, you may find that the IEP already says your child is not eligible, or the previous IEP may not even speak to ESY. If you need to call another meeting to discuss ESY, now is the time to do it in order to ensure that this issue is brought up before it is too late for this summer.
Friday, May 1, 2009
So what is a NPS anyways?
A Non-Public School ("NPS") is a privately operated, publicly funded school that specializes in providing educational services for students with needs so exceptional they cannot be met in a public school setting. (cacfs.org)
Can my child go to a NPS?
The decision to place a child in a NPS is an IEP team decision. In making a placement determination, the local education agency ("LEA") must ensure that a continuum of program options is available to meet the needs of your child. Thus, when a school district is making its offer to your child, it must consider all or any combination of the following:
Once your child is enrolled in a NPS, that NPS must provide all services specified in the IEP, unless the NPS and LEA agree otherwise.
NPS & the least restrictive environment ("LRE")
A frequently used phrase in special education is least restrictive environment.
Under the IDEIA, LRE is: "to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and . . . removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. 1412(a)(5)(A).
Because NPS placement generally means that your child will not be educated with non-disabled peers, the IEP team should take into consideration your child's right to be educated in the LRE before placing him/her in a NPS. In accordance with the IDEIA and LRE, a NPS is appropriate if even with the use of supplementary aides and services, the student will not be able to access an educational benefit in the regular education environment.
Therefore, if you are at an IEP meeting and placement options are being discussed, and the resource, SDC and other supplementary aides/services available within the District are not appropriate to meet your child's unique needs and provide him/her with an educational benefit, then the appropriateness of a NPS should be discussed.
Can my child go to a NPS?
The decision to place a child in a NPS is an IEP team decision. In making a placement determination, the local education agency ("LEA") must ensure that a continuum of program options is available to meet the needs of your child. Thus, when a school district is making its offer to your child, it must consider all or any combination of the following:
- Regular Education
- Resource Specialist Program ("RSP")
- Designated Instruction and Services ("DIS")
- Special Day Classes ("SDC")
- Nonpublic, nonsectarian school ("NPS")
- State Special schools
- Instruction in other settings
- Itinerant instruction
- Instruction using telecommunication and instruction in the home, in hospitals and in other institutions
Once your child is enrolled in a NPS, that NPS must provide all services specified in the IEP, unless the NPS and LEA agree otherwise.
NPS & the least restrictive environment ("LRE")
A frequently used phrase in special education is least restrictive environment.
Under the IDEIA, LRE is: "to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and . . . removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. 1412(a)(5)(A).
Because NPS placement generally means that your child will not be educated with non-disabled peers, the IEP team should take into consideration your child's right to be educated in the LRE before placing him/her in a NPS. In accordance with the IDEIA and LRE, a NPS is appropriate if even with the use of supplementary aides and services, the student will not be able to access an educational benefit in the regular education environment.
Therefore, if you are at an IEP meeting and placement options are being discussed, and the resource, SDC and other supplementary aides/services available within the District are not appropriate to meet your child's unique needs and provide him/her with an educational benefit, then the appropriateness of a NPS should be discussed.
Friday, April 17, 2009
What About Methodology?
Methodology is a hot topic in cases, IEP meetings and discussions all across the country. With a plethora of programs available, emphasis on research, and an influx of stimulus package money intended to be used for programs and curriculum, the timing is ripe for more and more methodology disputes to emerge. We see these issues come up everyday, in situations ranging from parents who initially come to us because they want a specific methodology to due process cases involving school districts pretermining methodology. Mandy and I have given two presentations specifically on this topic recently.
Parents think of methodology in terms of programs and curriculum choices. Examples of particular "methodologies" are Applied Behavioral Analysis (ABA) or Discrete Trial Training (DTT) for students with autism, Lindamood Bell, Orton-Gillingham or the Wilson method for students with reading deficits. The list could go on and on. With a focus on research based interventions in not only IDEIA but also in No Child Left Behind, there are new programs or "methodologies" emerging all the time.
Here are some thoughts and ideas on these issues:
Methodology disputes arise when the disagreement is in regards to two or more options that could each appropriately meet the child's unique needs. As advocates and attorneys, we can go a long way towards dealing with these disputes simply by learning to anticipate and recognize when a school district is going to claim that the issue is solely related to methodology. School districts are given discretion in these cases, and are generally permitted to choose what methodology to employ, so long as the method chosen provides the student a free appropriate public education (FAPE). Anticipating these disputes and reframing the issue as being focused on FAPE, rather than a choice among programs, from the very beginning, is an excellent advocacy strategy.
Asking questions about the methodology choice can be very useful. The IEP team should be able to discuss what research exists to support the use of a particular program, who is trained to implement the program, and why a program was chosen over other methods. There may be perfectly valid justifications for a school district's choice, but parents need to understand that information in order to meaningfully participate in the IEP process.
Even though school districts have discretion in choices of methodology, that does not mean that procedural requirements under the law don't apply! School districts are not permitted to predetermine methodology for a particular student before an IEP discussion about the student's unique needs. They are also not permitted to have a blanket policy to refuse specific methodologies or programs.
Finally, remember that everyone needs to keep an open mind in these cases. Often both parents and school districts have very strong opinions about what will or won't work for a particular child. School districts could prevent a lot of these cases from being litigated if they would simply listen with an open mind to what parents and their experts are saying about the program and the child's unique needs. Parents should also keep an open mind about possible programs and about how those programs may possibly benefit their child. Not only might this result in preventing the dispute from ever arising, but it will also go a long way to helping the parents present their case down the line if in fact it results in litigation.
Parents think of methodology in terms of programs and curriculum choices. Examples of particular "methodologies" are Applied Behavioral Analysis (ABA) or Discrete Trial Training (DTT) for students with autism, Lindamood Bell, Orton-Gillingham or the Wilson method for students with reading deficits. The list could go on and on. With a focus on research based interventions in not only IDEIA but also in No Child Left Behind, there are new programs or "methodologies" emerging all the time.
Here are some thoughts and ideas on these issues:
Methodology disputes arise when the disagreement is in regards to two or more options that could each appropriately meet the child's unique needs. As advocates and attorneys, we can go a long way towards dealing with these disputes simply by learning to anticipate and recognize when a school district is going to claim that the issue is solely related to methodology. School districts are given discretion in these cases, and are generally permitted to choose what methodology to employ, so long as the method chosen provides the student a free appropriate public education (FAPE). Anticipating these disputes and reframing the issue as being focused on FAPE, rather than a choice among programs, from the very beginning, is an excellent advocacy strategy.
Asking questions about the methodology choice can be very useful. The IEP team should be able to discuss what research exists to support the use of a particular program, who is trained to implement the program, and why a program was chosen over other methods. There may be perfectly valid justifications for a school district's choice, but parents need to understand that information in order to meaningfully participate in the IEP process.
Even though school districts have discretion in choices of methodology, that does not mean that procedural requirements under the law don't apply! School districts are not permitted to predetermine methodology for a particular student before an IEP discussion about the student's unique needs. They are also not permitted to have a blanket policy to refuse specific methodologies or programs.
Finally, remember that everyone needs to keep an open mind in these cases. Often both parents and school districts have very strong opinions about what will or won't work for a particular child. School districts could prevent a lot of these cases from being litigated if they would simply listen with an open mind to what parents and their experts are saying about the program and the child's unique needs. Parents should also keep an open mind about possible programs and about how those programs may possibly benefit their child. Not only might this result in preventing the dispute from ever arising, but it will also go a long way to helping the parents present their case down the line if in fact it results in litigation.
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