Compliance Corner – September 2023

By Cindy Soo Hoo, TAP Consultant

FAPE in the LRE as Written in the IEP! (Part 1 of 3)

If I could sum up the tenants of the Individuals with Disabilities Education Act (IDEA) in terms of how the regulations and other governing bodies protect the rights of children who are eligible for special education and related services, it would be in the title of this month’s edition of Compliance Corner.  In a nutshell, it means the necessary services and supports to be delivered in the appropriate setting(s) as a result of decisions made by a group of individuals who considered comprehensive information regarding a student’s needs.

So, in this edition, let’s consider FAPE or a Free Appropriate Public Education first.  In 2017, the U.S. Supreme Court unanimously rendered a decision in the Endrew F. v. Douglas County School District case.  The case involved an elementary student with autism whose parents believed their son was not making appropriate progress and was concerned that each subsequent Individualized Education Program (IEP) looked similar to previous IEPs.  In other words, they believed their child was not receiving a free appropriate public education.  Siding with the parents, the Supreme Court provided a new standard of FAPE by which all school districts across the United States must follow.  That standard requires school districts to develop an IEP that is reasonably calculated in order for the child to make appropriate progress in light of the child’s circumstances.   Recognizing that not every child may be advancing from grade to grade, students are still afforded an IEP that is appropriately ambitious in order for them to meet challenging objectives. 

In addition to the Supreme Court decision, the IDEA (34 CFR §300.17) defines FAPE as:

special education and related services that—

(a) Are provided at public expense, under public supervision and direction, and without   charge;

(b) Meet the standards of the SEA, including the requirements of this part;

(c) Include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of §§ 300.320 through 300.324.

So, what does that mean?  Conceivably, a free appropriate public education is what every eligible student is afforded as well as the means by which every eligible student receives it.  While the above definition applies to every eligible student, FAPE looks different for each and every student.  This is due to no two students presenting as exactly the same.  Their needs differ based on where they are currently performing, what the impact of their disability is and what services and supports may be necessary to address their deficits. 

Determining what is appropriate for each student begins with an individualized evaluation.     Information and data are collected, reviewed and analyzed by members of an Eligibility Determination Team (EDT).  This team consists of a group of professionals, the parent(s) and, if appropriate, the student.  The data describes the child’s areas of strengths as well as areas of need.  It also provides information as to how those strengths can support the student while determining how the areas of need will impact the student’s ability to access the general education curriculum.  Once eligibility has been determined, members of the student’s IEP Team work together to determine the supports, services, accommodations, etc. that are necessary in order to address the barriers that prevent the student from accessing the general education curriculum.

From here, the IEP Team determines the special education and related services that are necessary for the student to make progress.  IDEA (34 CFR §300.39) defines special education as:

(a)(1) 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.

(2) Special education includes each of the following, if the services otherwise meet the requirements of paragraph (a)(1) of this section—

(i) Speech-language pathology services, or any other related service, if the service is considered special education rather than a related service under State standards;

(ii) Travel training; and

  (iii) Vocational education.

Related services, if determined necessary in order for the student to benefit from special education, support the special education services the child is receiving.  If a child needs only a related service and not special education, that child is not eligible for special education under the IDEA.   

IDEA defines related services (34 CFR §300.34) as:

transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training.

In previous editions, we discussed the importance of developing a comprehensive section of the IEP pertaining to the current functioning levels (present levels of academic achievement and functional performance) of the student.  Without this, it would be impossible to develop an appropriate plan (goals) and would result in the inability to determine if the student is making appropriate progress (progress toward goals).  Without these comprehensive sections of the IEP, the student is likely to be denied a free appropriate public education.  It is imperative that service providers continually monitor the progress of students to ensure the students are progressing appropriately toward their IEP goals.  If not, changes may need to be made that could include a change in instruction, a change in goals or any other appropriate modifications to the student’s IEP. 

The right to a free appropriate public education is afforded to all eligible students in public schools who are between the ages of 3-21 even if the students are advancing from grade to grade, have not been retained, are making good grades, etc.  It does not apply to students who have graduated or those who are parentally placed in a private school.  When developing a child’s IEP, IEP Team members should apply the FAPE standard determined by the U.S. Supreme Court.  To this end, IEPs should be individualized based on the individual needs of each student and be developed with the expectation that the student will work toward goals that are both challenging and attainable. 

The information included herein is not intended to provide legal advice.  Should you need legal advice or guidance on any issue involving special education, please contact the appropriate person for your district.

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