MASTERING THE IEP PROCESS

In 2004, the Individuals with Disabilities Educational Act (IDEA) was reauthorized with substantial changes and is now known as IDEA 2004.

To become an effective advocate for your child, you must understand the eight-step process that is required under IDEA.  Certain activities must be completed at each step in order to obtain and implement an appropriate Individual Education Plan (IEP) for your child.

This article describes the IEP process.  It also provides references to many different sections of IDEA 2004.  Some of these references are to parts of the United States Code (U.S.C.), which is the official publication of laws passed by Congress.  Other references are to the regulations issued by the Department of Education (C.F.R.) to help schools and parents interpret the U.S.C. in a practical way.  Both are very important parts of the law.  To learn more about the current status of this legislation, go to www.ed.gov/policy/speced/guid/idea/idea2004.html.

What You Need to Know About IEPs and IEP Meetings
http://www.wrightslaw.com/idea/art/iep.roadmap.htm

EIGHT STEPS

1. CHILD FIND

Parental Checklist:  Make a dated written request for an evaluation and IEP.

When a child appears to need special education or related services, the school district (LEA) has a legal obligation to attempt to identify the nature of the disability and accommodate the child’s need.  In IDEA this is called “Child Find.”  Child Find is meant to protect all children with disabilities, even children who are homeless, are promoted from grade to grade, attending private schools, or frequently moving from place to place.

It is the responsibility of the state to identify, locate, and evaluate all children living in the state who are in need of special education services.  This is often done through cooperation of a number of children’s services organization, medical professionals, and schools.  Parents may be referred to the Child Find system in the community if their child is suspected to need services; or a parent may request an evaluation through the local school system.  A parent, teacher, or other school official can make a referral to the child study team for evaluation.  IDEA requires that this request be made in writing.

The school district must respond with 10 days to a request for evaluation by obtaining parental consent for an assessment.  Consent for evaluation does not constitute for placement in special education if the child qualifies as a child with a disability.  If the parent withholds consent or does not make the child available for evaluation, the school district is under no obligation to continue to pursue assessment.  A child with a disability will have not protection or any right to procedural safeguards under IDEA 2004 if the parent withholds consent.

2. EVALUATION

Parental Checklist:  Sign consent for evaluation and make sure all areas of suspected disability will be evaluated.

The evaluation process begins when parental consent is signed and must be completed within 60 days unless state law provides a shorter time limit.  The initial evaluation must consist of assessments to determine if the child is a child with a disability.

and, if so, to establish the education needs of the child.  IDEA requires that a child be evaluated in all areas of suspected disability.  No single assessment tool can be used to qualify or disqualify a student as a child with a disability.

At the first Child Study Meeting (CST, sometimes called IEP or ARD) with the school, you will receive the permission for evaluation form and the assessment plan.  The LEA must provide a notice to the child’s parents describing the evaluation procedures to be used, as well as the domains that the child will be assessed in.

The procedure used for assessing the child must be compatible with the child’s suspected disability.  IDEA 2004 requires that the child be assessed in all areas related to the suspected disability, including if appropriate: health/medical; vision; hearing; social and emotional status; general intelligence; academic performance; communicative status; and motor abilities.  These eight areas of testing are known as “domains.”

For a child with pediatric bipolar disorder, CABF recommends that parents request assessment in all eight domains to ensure that all the needs of the child are accurately identified.  Some children with bipolar disorder may have severe learning disabilities while others are identified as gifted and talented; some may have communication disorders while others may have executive functioning deficits.  Some children with bipolar disorder have other co-morbid conditions that may influence the child’s ability to learn.  Researchers have found a significant percentage of children with bipolar disorder also have sensory integration deficits.  These can be addressed by an occupational therapist with sensory integration certification.

Certain classifications require specific assessments to be completed as part of the evaluation process.  Examples:
For a child to quality under the Other Health Impaired (OHI) classification, a physical examination, general intelligence testing, academic assessments, and tests of vision, hearing, motor abilities, communication skills, and social and emotional functioning are required.
For a child to quality under the Severe Learning Disability (SLD) classification, all of the above are required.  Additional assessments in communication skills are required in the areas of oral expression, listening comprehension and written expression.  Academic assessments in the areas of reading skills, reading comprehension, math calculation, and math reasoning are also required.
For a child to qualify under the Severe Emotional/Behavioral Disability classification, the basic assessments for OHI classification are needed.  In addition, a comprehensive social history covering the child’s educational, family and medical history are provided.  Informal behavioral observations by team members and the current teacher, as well as various behavioral and personality assessments are also needed.

IDEA requires that an evaluation be comprehensive and measure the child not against other children but against that child’s individual potential.  Many parents of children with disabilities hear from school personnel that their child is not eligible for special education services if he or she is moving from grade to grade.  However, this is not in agreement with IDEA. Under IDEA 2004, a child suspected of being a child with a disability and in need of special education can be identified as a child with a disability even though the child is advancing from grade to grade.

3. ELIGIBILITY DETERMINATION

Parental Checklist:  Watch calendar.

After developing the evaluation plan in step 2, the school professionals will begin assessment of your child.  A variety of professionals from the school nurse to the school psychologist will be pulling your child out of class at different times to assess and evaluate the child.  IDEA requires that an IEP be developed in no more than 60 days from the date consent for evaluation was signed.  However, each state may shorten the time period.

4. ELIGIBILITY MEETING

Parental Checklist:  Attend eligibility meeting.  If eligibility not found, request a 504 plan.

After all the assessments and evaluations are completed the IEP/CST Team will schedule a meeting to review the testing data and determine eligibility for services.

A child may be found eligible in any of thirteen classifications.  If a child is found NOT eligible for services under IDEA but due to a health impairment is in need of support as a disabled American, a parent may request an accommodation plan under Section 504 of the 1973 Rehabilitation Act and the Americans with Disabilities Act.

The main difference between an IEP and a Section 504 accommodation plan concerns the definition of “appropriate.”  Under IDEA, “appropriate” means a program that is calculated to provide educational benefit.  Under Section 504, “appropriate” means an education comparable to the education provided to non-disabled students.

At this stage in the IEP process, a parent may request an Independent Educational Evaluation (IEE).

Parents have the right to obtain an independent educational evaluation of their child if they disagree with the evaluation provided by the public agency (school system, or LEA).  Upon request for the IEE, the LEA must provide to parents, without delay, information about where an independent evaluation may be obtained and the agency’s criteria for independent evaluations.  This must be provided to the parent at no cost.  If a school district does not agree with the parent’s request for an IEE, it must file a due process complaint to request a hearing to show that its evaluation is appropriate.  The LEA does have the right to ask the parent’s reason for objecting to the evaluation.  However, the parent’s explanation is not required, nor can it be used by the LEA as a reason to delay the IEE.  The parent’s reason may not be used against the parent at a due process hearing to defend the LEA’s evaluation.  

If the child is found eligible, the school will begin to develop the Individualized Education Plan (IEP) and begin providing special education services.  Some school districts will combine the eligibility meeting and writing the IEP into one meeting.  CABF advises parents to prepare and share a parent vision statement with the team for inclusion in the IEP.

5. SCHEDULING

Parental Checklist:  Parents need to decide who is needed for support at meeting.

When the IEP meeting is scheduled, IDEA requires certain procedural safeguards.  These include written notification to the parent regarding the meeting time and location, the purpose of the meeting, and who will be attending the meeting.  The parent also must be notified of the right to bring along any person that may be able to assist the parent in developing the child’s IEP.

6. WRITING THE IEP
Parental Checklist:  Provide vision statement.

CABF recommends that parents provide a written vision statement for their child and ask that it be included in the written IEP.  The parent should include in this statement any accommodations that the parent believes assist the child to succeed in the classroom.  If the IEP will change the child’s current placement, the parent may have already been asked to visit some proposed classrooms.  If the parent is unsure if a proposed change of placement is appropriate for the child and has not been given the opportunity to visit the proposed classrooms, the parent has the right to table the IEP meeting until there is an opportunity to visit and evaluate each of the recommended placements.

A parent does not have to sign the IEP document at the meeting.  A parent may request time to work out any disagreement, provide alternative solutions, or to file a request for resolution with the state education agency.  IDEA allows parents up to 10 days to sign the IEP or formally disagree with the educational plan.  If a parent does not sign the IEP, the school system is under no obligation to provide services or otherwise protect the child’s right to a Free and Appropriate Public Education (FAPE).

The development of the IEP is a team activity and the parent is an integral member of the team.  The school may develop a draft IEP to assist in optimizing an IEP meeting and provide a starting point.  The school may not demand that a parent sign an IEP that was prepared ahead of the meeting with the parent’s participation, because this would deny the parent the right to participate as a full member of the team.

Law mandates the content of the IEP.

It is important for a parent to be familiar with these requirements:

Components of an IEP

Current Level of Performance (Present Levels of Educational Performance):  This section of the IEP summarizes the evaluation results, including formal assessments, classroom evaluations, individual test results, and current classroom performance and parent and teacher observations.  This section should include a statement of the ways in which the child’s disability interferes with his or her ability to benefit from his or her education.

Annual Goals:  Goals may be academic, behavioral, social-emotional, and/or physical.  Goals must be stated in measurable terms and address those areas of the child’s disability that interfere with his or her progress in the general educational curriculum.  Goals should contain a description of how the child’s progress will be measured and when reporting on the child’s progress will be made.  IDEA requires that a parent be informed of the child’s progress towards his or her annual goals.  Progress is to be reported at the same time as report cards are issued to non-disabled students.  IDEA 2004 has eliminated the requirement of short-term objectives for each goal.

Special education and Related Services: The IEP must contain a statement of the special education and related services to be provided to the child, or on behalf of the child.  These services must be based on peer-reviewed research to the extent practicable.  This section of the IEP lists all services or modifications that will be provided to assist the child in making progress towards his or her annual goals.  It also lists those services or modifications that will enable him or her to participate and make progress in the general education curriculum.  This section must also list any accommodations, modifications, and services necessary to allow participation in extracurricular and other nonacademic activities with non-disabled children.

In this section of the IEP, a parent may want to request training in bipolar disorder for the child’s teachers.  The supplementary services or aids listed in this section can range from the use of a calculator to a scribe for written assignments.  It is vital that this section be comprehensive and complete.  The IEP must describe the service, how often, by whom and where it is to be provided.  These should be stated in writing in order to protect the child if the service is withdrawn or not provided. If the service or accommodation such as a 1-1 aide, laptop computer, modified homework, or occupational therapy is outlined in the IEP then it must be provided, even if the district is in financial difficulties.  A service cannot be withheld because of the LEA’s budgetary restrictions.  CABF offers a CD to assist educators in budgetary restrictions.  CABF offers a CD to assist educators in understanding pediatric bipolar disorder and providing appropriate accommodation to their students.

Participation with Non-disabled Students:  This section states the amount of time and extent to which a child will be participating in special education and/or regular education.

Participation in State and District-wide Tests:  Most states and districts give achievement tests.  The IEP must list what modifications the child will have in the testing situation, as well as modification in the manner of administration of the tests.  If a test is not appropriate for the child, the IEP must state why it is inappropriate.  The IEP must then specify which alternative assessment will be provided to measure the child’s progress.

Dates and Places:  This section must state the beginning and ending date for the IEP, where the services will be provided and how long they will last.

Transition Services:  Beginning no later than the first IEP in effect when the child turns 16, the IEP must address the child’s post-secondary needs.  The IEP must include appropriate, measurable post-secondary goals based upon age-appropriate transition assessments.  The goals should be related to training, education, employment and (where appropriate) independent living skills.  Transition services may include courses of study and skill development needed to assist the child in reaching his or her transition goals.  If the child will need services as an adult, the parent should begin referrals to the appropriate agencies prior to the time the child leaves high school.

Age of Majority:  One year prior to children reaching the age of majority the IEP must include a statement that he or she has been informed of his or her rights under Part B of the Act.  The IEP must state that the rights will be transferred to the child on reaching the age of majority.

CABF recommends that parents of children who will NOT graduate prior to their 18th birthday request that they retain educational rights of their children until graduation.  Most states have a document that the student and parent must sign.  This must be completed 365 days prior to the child turning 18.

7. PROGRESS REPORTS

Parental Checklist:  Parent needs to request reporting frequency.

The IEP must state the frequency and manner of reporting the child’s progress towards annual goals.  A parent can request to be notified of a child’s progress weekly, monthly, or quarterly, however, the school is not required to comply.  The parent can ask to be notified by email, phone, or meeting.

8. RE-EVALUATION

Parental Checklist:  Parent may initiate a new request.

At least once a year the IEP team will come together, review the student’s progress, and revise the IEP.

Every three years a child must be reevaluated for services.

This evaluation is often called the “triennial.”  Its purpose is to verify that the child continues to be “a child with a disability” within the meaning of IDEA and to establish the child’s current educational needs.  This reevaluation can occur more often if the child’s needs drastically change, or if the parent and LEA agree that a reevaluation is necessary to ensure that the child is receiving FAPE.

AT THE IEP MEETING

IDEA specifically defines the members of the IEP team as follows:

• Parent or guardian
• At least one regular education teacher
• At least one special education teacher
• School district representative authorized to commit resources (usually the Principal, Director of Special Education, or Special Education Coordinator)
• Individual able to interpret evaluations, such as a school psychologist
• At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate
• The child (as appropriate)
• Any other individual invited by the parent or the school who has knowledge or special expertise about the child

Attendance of IEP Team Members at the IEP Meeting:  A member of the IEP team is not required to attend an IEP meeting, in whole or in part, if the parent of a child with a disability and the school district agree, in writing, that the attendance of the member is not necessary because the member’s area of the curriculum or related service is not being modified or discussed in the meeting.

Even if the IEP team member’s area of curriculum or related service is involved, the team member can still be excused from the meeting in whole or part if the parent and the school district consent to the excusal in writing.  Prior to the IEP meeting, any excused member must submit, to the parent and the IEP team, written input towards the development or modification of the IEP.

PARENT PARTCIPATION

The LEA is responsible to ensure that one or both parents of a child with a disability are present at each EIP meeting or afforded the opportunity to participate.  The LEA must send notice of the meeting early enough to ensure that the parents will have an opportunity to attend.  The LEA should attempt to schedule the meeting at a mutually agreed upon time and place.  The school district is required to provide written notification to the parent of the purpose, time and location of the meeting, as well as who will be attending the IEP meeting.  If neither parent can attend the meeting in person, the school must use other methods to ensure parent participation, including telephone conference calls.    A school district may conduct an IEP meeting without a parent in attendance if the LEA is unable to convince the parent to attend the meeting and has documented its attempts to arrange a mutually agreed on time and place.  A parent must be provided a copy of the child’s IEP at no cost to the parent.

Each LEA is required to have an IEP to be at the beginning of each school year for each child with a disability within the LEA.  Teachers, related service providers and others responsible for the implementation of the child’s IEP must be provided access to the child’s IEP.

Each LEA is required to have an IEP to be at the beginning of each school year for each child with a disability within the LEA.  Teachers, related service providers and others responsible for the implementation of the child’s IEP must be provided access to the child’s IEP.

The rights of a parent include:

• The right to participate in all meetings with respect to identification, evaluation and educational placement of child
• The right to written notice before any change in the child’s placement, initiation or change in identification, evaluation or placement
• The right to mediation
• The right to present a formal complaint or due process
• The right to a hearing if a due process complaint cannot be resolved

ABOUT DUE PROCESS
WHAT IS IT?
A Due Process complaint is similar to a court proceeding.  It is a legal proceeding to enforce a child’s right to a Free and Appropriate Public education (FAPE) under IDEA.  CABP strongly urges parents to retain an attorney with experience in special education matters if they are not successful in obtaining FAPE through collaborative means.

Under IDEA, parents have a number of rights that ensure that the public schools provide appropriate services to all children with disabilities.  At times, the school and a parent may be at odds as to what educational services are appropriate.

How to Avoid Due Process:  The best way to avoid having to use IDEA procedural safeguards, due process hearings, or mediation is to ensure that the IEP is written in precise, clear language.  An example:

Jeff needs to have a multi-sensory educational program.  It is important that the IEP clearly identifies this need and names a specific program or type of program that will be used to address that need.  If the IEP is not specific, a parent may have difficulty determining if there is a factual discrepancy or a legal violation concerning the terms of the IEP.

To demonstrate the difference, let’s look at three accommodation statements addressing the student’s need for a multi-sensory educational approach:

• Jeff will be provided a multi-sensory approach by the teacher to address his learning deficits.
• The teacher will use visual, auditory and kinesthetic activities to reduce Jeff’s learning deficit.
• Jeff will be provided a multi-sensory approach such as Slingerland to address his learning deficits.

All three examples are an attempt to provide Jeff with an appropriate accommodation.  The first two examples are vague and open to interpretation as to whether a particular accommodation meets the child’s need.  In writing the IEP, it is vital that all goals and services are clearly identified and specific so that no area is left open to interpretation.  The clearer the language used in the IEP, the less likely a due process complaint will be necessary.

WHEN IS IT NECESSARY
IDEA provides parents the right to resolve disputes using a Due Process Complaint (a procedure for filing a complaint in respect to identification, evaluation, placement or provision of FAPE.)

A due process complaint must be filed within 2 years of the date the parent or LEA allege a violation occurred unless state law specifies a different time.

The complaint can be handled either through mediation or through the hearing process.  If the hearing process is used, a resolution session must occur prior to hearing.

A parent has the right to file a due process complaint, agree to mediation, or continue on to a hearing or court proceeding if an agreement cannot be reached through mediation.

In mediation, the parent and a representative for the school district meet with a third party, who is the mediator. Mediation is a completely voluntary for both parties and cannot be used to delay a parent’s right to file a due process complaint.

The mediator is a neutral party and is present to help the two sides reach a compromise or consensus.  The mediator has no authority to impose a ruling, but is there to assist with communication.  If an agreement is reached at mediation, the parties will execute a legally binding agreement setting forth the changes to the child’s educational program and how they will be implemented.  This agreement is then enforceable in any State court or district court in the United States.  If an agreement cannot be reached, the parent has the right to an impartial due process hearing.

The parent must forward a copy of the written due process complain to the LEA and to the SEA.  The content of the complaint is very specific under IDEA 2004.  Once again, CABF does not recommend that parents attempt to handle their own due process proceeding.  CABP urges parents to contact an attorney experienced  in special education matters if it appears a due process proceeding may be needed.

DISCLAIMER
CABF recommends that parents try to work collaboratively with their child’s school to address the child’s educational needs.  However, there are times when parents and schools cannot agree concerning the programs and services a child needs.  There may be many reasons why a parent’s advocacy efforts may not result in an appropriate education for the child.  In those instances, CABF strongly urges you to contact an attorney who is experienced in handling special education matters.  CABF does not recommend that a parent attempt to handle adversarial proceedings (such as due process hearings) without an attorney.  This program is not intended to offer legal advice or detailed instruction in the law.  CABF does not offer legal advice and this program will not teach you how to act as your own attorney.