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It Is Back To School Time! Is Your Child's Current IEP Appropriate? Here are Some Quick Tips to Keep in Mind When Reviewing Your Child's Current IEP.

It Is Back To School Time! Is Your Child's Current IEP Appropriate? Here are Some Quick Tips to Keep in Mind When Reviewing Your Child's Current IEP.

Our office is blowing up with calls from parents this time of year. Many Parents are seeking legal advice because they are recognizing that their child has not made progress with their current Individualized Education Program (IEP). Here are some things to be aware of when reviewing your child's IEP to make sure it is appropriate and setting them up for progress. Keeping in mind that the school district's obligations do not include providing your child with the absolute best education possible, they are clearly obligated to ensure your child is making progress.

In 2017, the United States Supreme Court addressed the issue of what of FAPE is. (See Endrew F. v. Douglas County Sch. Dist. RE-1, No. 15-827 (U.S. 03/22/17). In Endrew, the Court unanimously ruled "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." (Id. 9-16). The Court went on to state that "The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." In other words, the school must implement an IEP that is reasonably calculated to remediate and, if appropriate, accommodate the child's disabilities so that the child can "make progress in the general education curriculum, commensurate with his non-disabled peers, taking into account the child's potential." The words of the Endrew Court are profound and summarized "When all is said and done, a student offered an educational program providing "merely more than de minimis" progress from year to year can hardly be said to have been offered an education at all." (Id. 14).

Identify All Areas of Need

First, you need to determine what your child's needs are. The Individuals with Disabilities Education Act (IDEA) and related laws mandate that school districts conduct thorough evaluations in all areas of need. Thus, educational evaluations should identify what your child's needs are. In addition to the information obtained from evaluations, you as the parent surely have some ideas of what your child's educational needs are. For example, does your child struggle to write legibly? Tie his or her shoes? Does he or she struggle with attention span? Is reading fluency a problem? Reading Comprehension? If so, your child's IEP should contain goals for each and every one of these problems.

IEPs generally contain a section entitled Present Levels of Performance (PLOPs). Within that section, there should be at least seven different categories: 1) Academics; 2) Communication Development; 3) Gross/Fine Motor Development; 4) Social Emotional/Behavior; 5) Vocational; 6) Adaptive/Daily Living Skills; 7) Health. Under each of these categories, there should be information related specifically to your child's current abilities. These baselines should provide the IEP team with a specific idea of where your child is functioning and what their needs are. In turn, for each identified area of need, there should be a corresponding goal in the annual goals section.

Make Sure There Are Goals for All Areas of Need

Many times when parents ask our office to review their child's IEP, we find that after reviewing the evaluations and discussing the child's needs with parents, that there are insufficient goals within the child's IEP. Not having sufficient goals will almost invariably lead to a lack of progress in all areas of need. Not only that, the lack of goals will also lead to a lack of specialized academic instruction and related services. For example, if a child has deficits in sensory processing and/or fine motor skills, and there are no goals in the child's IEP to address these deficits, there will generally not be any services to support making progress with the sensory processing and fine motor problems. Whereas, if there were goals in these areas, the child should also receive educationally related occupational therapy services to support the child's progress toward meeting those goals.

Make Sure There Are Sufficient Services to Support Meeting the Goals

If you notice your child is not meeting their annual goals and the school district is not willing to adjust your child's placement or services in order to start making progress, then you should be sure your request for increased services is documented either within the IEP itself, or otherwise in writing. If you disagree with the district's refusal to increase the amount of services, you do not have to sign your consent to the IEP. In the event there is such a disagreement, you have the right to due process and in California, you may file a due process complaint with the Office of Administrative Hearings. You should be aware, however, that school districts are obligated to provide all students with special needs with an appropriate IEP. Thus, if you do not sign your consent to the IEP, and a lot of time passes without you filing for due process, the district may file for due process against you to defend their offer of a free and appropriate public education (FAPE).

Placement Issues

Many times, we find that a parent's concern related to a lack of progress may be due to the fact that their child has remained in the same "placement" for many years without any substantial changes to their IEP. For example, when a child is placed in a special day class (SDC) at a young age and the district maintains that the SDC is the only placement they can offer. While in some cases a SDC may be appropriate year after year, it is not always the case. Under the law, a district is required to consider a continuum of placement options. Unfortunately, many times school districts fail to do so and further fail to provide appropriate related services required in addition to a SDC placement, or fail to consider a general education placement with added services.

Behavior Intervention

When a child's behavior is compromising their progress, it is important to determine the nature and severity of the behavior. If the behavior is sporadic and not necessarily interfering with progress on a daily basis, perhaps a behavior goal or two might be appropriate. However, if the child is having behaviors at school which are regularly interfering with their ability to do what is required to be successful within their program, then more serious measures must be taken. For example, if a child is engaging in serious maladaptive behaviors, school districts are required to take action to intervene.

Under California law, when a child exhibits "serious behavior problems," the district must conduct a functional analysis assessment (FAA) or functional behavior assessment (FBA) which should result in a behavior intervention plan (BIP) included within the child's IEP. (Cal. Code Regs., tit. 5, §§ 3001, subd. (g), 3052(a) & (b).)

Serious behavior problems are defined as behaviors which are self-injurious, assaultive, or cause serious property damage and other severe behavior problems that are pervasive and maladaptive for which instructional/behavioral approaches specified in the IEP are found to be ineffective. (Cal. Code Regs., tit. 5, § 3001, subd. (ab).).

An FAA is a highly prescriptive evaluation which includes the systematic observation of targeted behaviors, and their antecedents and analyzes the consequences to determine the function of the behavior, as well as the setting in which the behavior most frequently occurs. (Cal. Code Regs., tit. 5, § 3052, subd. (b).) An FAA must be conducted by, or be under the supervision of a person who has documented training in behavior analysis with an emphasis on positive behavioral interventions. The qualified assessor must gather information from three sources: direct observation, interviews with significant others, and other available data such as assessment reports and other individual records. (Cal. Code Regs., tit. 5, § 3052, subd. (b).)

The goal of the assessment is to form a hypothesis about why the student is engaging in the behavior, its function, in other words. Adopting a commonsense perspective, best practice seems to suggest some kind of FBA needs to be the foundation for all BIPs. (See, e.g., Kelseyville Unified Sch. Dist., 25 IDELR 1115 (SEA CA 1997) (appropriate BIP was based on a functional analysis assessment and addressed the student's problems).

In the absence of legal requirements, the IEP team generally will have the flexibility to design the FBA to meet professional standards, in light of the particular student's situation. But a cursory and ineffective FBA that fails to appropriately address student's ADHD behaviors will not suffice (see Ingram Indep. Sch. Dist., 35 IDELR 143 (SEA TX 2001)).

These are a few things to be aware of when reviewing your child's IEP for appropriateness. We wish all the families out there a great start to the 2017-2018 school year!

-Elizabeth Curtis, Esq.

September 8, 2017

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