Free Appropriate Public Education WDE Technical Assistance Presentation January 2015

What is FAPE?  FAPE means special education and related services that:  Are provided at public expense, under public supervision and direction, and without charge;  Meet the standards of the SEA, including the requirements of this part; January 2015WDE TA Series 2

What is FAPE?  Include an appropriate preschool, elementary school, or secondary school education in the State involved; AND  Are provided in conformity with an individualized education program (IEP) that meets the requirements of §§ through C.F.R. § January 2015WDE TA Series 3

What is FAPE?  The practical definition of FAPE originates from the landmark Supreme Court decision in Rowley. It has been tested many times, and it remains the standard today.  In summary, FAPE is an IEP, developed consistent with the IDEA’s procedural safeguards, that is reasonably calculated to enable the student to receive educational benefit. January 2015WDE TA Series 4

What is FAPE?  In Rowley, the Supreme Court established the following two-part test that courts should use to decide the appropriateness of a student's education. Courts must ask: 1.Has the state complied with the procedures set forth in the IDEA? 2.Is the IEP, developed through the IDEA's procedures, reasonably calculated to enable the child to receive educational benefits? January 2015WDE TA Series 5

What is FAPE? The Supreme Court held that when this two-part test is satisfied, the state has complied with the obligation imposed by Congress, and the courts can require no more. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 553 IDELR 656 (U.S. 1982). January 2015WDE TA Series 6

The Standard  In Rowley, the Supreme Court made it clear that the IDEA does not require districts to provide students with disabilities with the best possible education.  Referring to the minimal level of benefits that an appropriate educational program must confer, the Supreme Court termed the state's obligation as being the provision of a "basic floor of opportunity." January 2015WDE TA Series 7

The Standard  Central to the IDEA is the requirement that local school districts develop, implement, and annually revise an IEP that is calculated to meet the eligible student's specific educational needs. Thompson R2-J Sch. Dist. v. Luke P., 50 IDELR 212 (10 th Cir. 2008), cert. denied, 110 LRP 798 (2009).  Thus, the determination of whether a FAPE has been provided turns in large part on the sufficiency of the IEP for each disabled child. Tyler V., ex rel. Desiree V.v.St.VrainValleySch.Dist.No.RE-1J, 56 IDELR 165 (D. Colo. 2011). January 2015WDE TA Series 8

The Standard  As the Tenth Circuit has noted, this standard is not onerous as "Congress did not impose upon the States any greater substantive educational standard than would be necessary to make... access meaningful... [t]he intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” January 2015WDE TA Series 9

The Standard  Congress did not guarantee children "a potential- maximizing education."  Rather, Congress sought only to require a "basic floor of opportunity" aimed at providing individualized services sufficient to provide every eligible child with "some educational benefit.” Thompson R2-J Sch. Dist. v. Luke P., 50 IDELR 212 (10 th Cir. 2008), quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 553 IDELR 656 (U.S. 1982). January 2015WDE TA Series 10

What does this mean?  FAPE must include special education.  It is individually designed for every student annually.  It is an IEP that is reasonably calculated to result in educational benefit.  It is not intended to maximize success.  It is delivered in the LRE.  It is free. January 2015WDE TA Series 11

Special Education  Special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a student.  Specially designed instruction means adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction to  Address the unique needs of the child that result from the disability; AND  Ensure access of the child to the general curriculum. 34 C.F.R. § January 2015WDE TA Series 12

Related Services  Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education. 34 C.F.R. § January 2015WDE TA Series 13

The Relationship General Curriculum Special Education supports the general curriculum Related Services wrap around and support special education January 2015WDE TA Series 14

The Relationship  A child who only needs a related services is not an eligible student under the IDEA. 34 C.F.R. §300.8(a)(2).  The IDEA's definition of "related services" expressly contemplates that a child is receiving some type of special education. Jefferson County Sch. Dist. R1 v. Elizabeth E., 60 IDELR 91 (10 th Cir. 2012). January 2015WDE TA Series 15

Who is entitled to FAPE?  Each State must ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.  The right to FAPE extends to students who have been suspended or expelled from school. 34 C.F.R. § January 2015WDE TA Series 16

Who is entitled to FAPE?  States that receive federal funding under the IDEA must provide all eligible students with a free appropriate public education ("FAPE").  "To provide an eligible student with a FAPE, states must develop an [Individualized Education Plan] for each qualifying student." Sytsema v. Acad. Sch. Dist. No. 20, 50 IDELR 213(10 th Cir. 2008). January 2015WDE TA Series 17

What does this mean?  All IDEA eligible students have a right to receive FAPE through an IEP.  FAPE is available to students who are academically on target, but whose education is adversely affected by disability socially, emotionally, communicatively, or functionally.  Education includes more than academics. January 2015WDE TA Series 18

FAPE & the IEP  Developing an IEP is a cooperative process. It is much more than simply completing forms.  IEPs must align with state standards and the general curriculum.  The purpose of the IEP is to improve outcomes for students with disabilities. January 2015WDE TA Series 19

The Evaluation 34 C.F.R. §§ through January 2015WDE TA Series 20 EvaluationPLAAFPGoalsServicesPlacementProgress

Initial Evaluation  The purpose of the initial evaluation is to determine:  If the child has an IDEA disability, AND  The educational needs of the child. 34 C.F.R. § (c)(2). January 2015WDE TA Series 21

Reevaluation  The purpose of the reevaluation is to determine:  Whether the child continues to have an IDEA disability, AND  The educational needs of the child. 34 C.F.R. § (a)(2). January 2015WDE TA Series 22

Evaluation Procedures  The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related service needs, whether or not commonly linked to the child’s disability. 34 C.F.R. § (c)(6).  Assessment tools and strategies provide relevant information to assist in determining the educational needs of the child. 34 C.F.R. § (c)(7). January 2015WDE TA Series 23

The PLAAFP 34 C.F.R. § (a)(1) January 2015WDE TA Series 24 EvaluationPLAAFPGoalsServicesPlacementProgress

PLAAFP  Appropriate IEPs "must contain statements concerning a disabled child's level of functioning, set forth measurable annual achievement goals, describe the services to be provided, and establish objective criteria for evaluating the child's progress." Endrew F. v. Douglas County Sch. Dist. RE 1, 64 IDELR 38 (D. Colo. 2014), quoting J.P. v. County Sch. Bd. of Hanover County, 49 IDELR 150 (4 th Cir. 2008). January 2015WDE TA Series 25

PLAAFP  A statement of the child’s present levels of academic achievement and functional performance, including –  How the child’s disability affects the child’s involvement and progress in the general education curriculum (i.e. the same curriculum as for nondisabled children), or  For preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities. 34 C.F.R. § (a)(1). January 2015WDE TA Series 26

PLAAFP  The failure to conduct a comprehensive evaluation of the student’s educational needs resulted in a finding that the IEP was inappropriate and the PLAAFP were invalid. Pinto v. District of Columbia, 64 IDELR 103 (D.D.C. 2014). January 2015WDE TA Series 27

PLAAFP  The IEP was found inadequate because goals were not based on PLAAFP.  "An IEP begins by measuring the student's present level of performance -- affectionately known as [PLAAFP] -- which provides a benchmark for measuring the student's progress toward the goals stated in the IEP.” Ravenswood City Sch. Dist. v. J.S., 59 IDELR 77 (N.D. Cal. 2012), quoting Settlegoode v. Portland Pub. Schs., 41 IDELR 9 (9 th Cir. 2004). January 2015WDE TA Series 28

PLAAFP Link to Goals  PLAAFP describes educational needs.  Several needs may be addressed by one goal.  Needs may be prioritized with a “scaffold” of needed skills before moving on to the next need.  It is not required to have a separate goal for each area or provider. 71 Federal Register January 2015WDE TA Series 29

Measurable Annual Goals 34 C.F.R. § (a)(2) January 2015WDE TA Series 30 EvaluationPLAAFPGoalsServicesPlacementProgress

Measurable Goals  A statement of measurable annual goals, including academic and functional goals, designed to –  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  Meet each of the child’s other educational needs that result from the child’s disability. 34 C.F.R. § (a)(2). January 2015WDE TA Series 31

Measurable Goals  The team must determine measurable annual goals based on student need that describe rigorous but reasonable targets that specify the skills to be gained by the student in one year. January 2015WDE TA Series 32

Measurable Goals  The lack of individualized planning denied a student FAPE.  The use of vague language and stock goals was sufficient to uphold a determination that the school district denied the student FAPE. Jefferson County Bd. of Ed. V. Lolita S., 64 IDELR 34 (11 th Cir. 2014). January 2015WDE TA Series 33

Measurable Goals  The IEP team need not draft IEP goals in a manner that the parents find optimal, as long as the goals are objectively measurable. Bridges v. Spartanburg County Sch. Dist. Two, 57 IDELR 128 (D.S.C. 2011). January 2015WDE TA Series 34

What does this mean?  Goals are unique for each student.  Goals must be measurable.  Goals are intended to help the student be successful in the general curriculum, or a downward extension when needed.  Goals can also address other needs that result from the student’s disability. January 2015WDE TA Series 35

Goals are not lesson plans.  Goals are intended to be written annually.  Goals are intended to address skill deficits.  It is the challenge of the IEP team to define goals in terms of a reasonable expectation of skill growth in one year.  Remember, rigorous but reasonable! January 2015WDE TA Series 36

IEP Services 34 C.F.R. § (a)(4) January 2015WDE TA Series 37 EvaluationPLAAFPGoalsServicesPlacementProgress

IEP Services  The purpose of all IEP service is to help the student be successful in the least restrictive environment (LRE) as evidenced by progress toward meeting the annual goals.  The team must determine what services the student needs in order to progress toward meeting the annual goals. January 2015WDE TA Series 38

IEP Services  Both the amount and type of services that a district is required to provide will depend on the child's identified needs.  An IEP is not defective merely because it fails to include special education services requested by the parents if those services are not necessary for the child to receive FAPE. Winkelman v. Parma City Sch. Dist., 51 IDELR 92 (6 th Cir. 2008), cert. denied, 109 LRP (2009). January 2015WDE TA Series 39

IEP Implementation  IEP services must be implemented as written!  The failure to implement a material portion of the IEP amounts to a denial of FAPE. Sumter County Sch. Dist. 17 v. Heffernan, 56 IDELR 186 (4 th Cir. 2011); A.P. v. Woodstock Bd. of Educ., 55 IDELR 61 (2 nd Cir. 2010); Van Duyn v. Baker Sch. Dist. 5J, 47 IDELR 182 (9 th Cir. 2007); Houston Indep. Sch. Dist. v. Bobby R., 31 IDELR 185 (5 th Cir. 2000), cert. denied, 111 LRP 30885, 531 U.S. 817 (2000); and Neosho R-V Sch. Dist. v. Clark, 38 IDELR 61 (8 th Cir. 2003). January 2015WDE TA Series 40

Service Provider Logs  Service providers must document IEP services.  A public agency must keep accurate records of the services provided to special education students.  “The district’s failure to produce tracking forms designed to account for all of the student’s special education classes proved fatal to its claims,” resulting in a compensatory education award. Sykes v. District of Columbia, 107 LRP (D.D.C. 2007). January 2015WDE TA Series 41

Service Provider Logs  OCR utilizes provider logs to confirm IEP implementation.  When those logs are missing or incomplete, OCR will find a violation. School Administrative Unit #9, 111 LRP (OCR 2010). January 2015WDE TA Series 42

What does this mean?  Services must be provided consistent with the IEP.  The public agency is required to keep documentation to verify compliance with IDEA.  Service provider logs are an important piece of IEP documentation.  Without provider logs, a public agency is vulnerable to a claim that it denied FAPE. January 2015WDE TA Series 43

Placement 34 C.F.R. § January 2015WDE TA Series 44 EvaluationPLAAFPGoalsServicesPlacementProgress

Placement  Placement decisions  Must be made by a group of persons, including the parents and other persons knowledgeable about the child, interpretation of evaluation data, and placement options; AND  Must be made in conformity with the LRE provisions of IDEA. 34 C.F.R. § January 2015WDE TA Series 45

The Three “Maximums”  To the maximum extent appropriate, children with disabilities are educated with children who are nondisabled. 34 C.F.R. § (a)(2).  To the maximum extent appropriate, children with disabilities are able to participate in extracurricular activities with children who are nondisabled. 34 C.F.R. §  To the maximum extent appropriate, children with disabilities are provided supplementary aids and services to enable them to be educated with children who are nondisabled. 34 C.F.R. § January 2015WDE TA Series 46

LRE  The IDEA presumes that the first placement option considered for each child with a disability is the regular classroom in the school that the child would attend if not disabled, with appropriate supplementary aids and services to facilitate such placement.  Therefore, before a child with a disability can be placed outside of the regular education environment, the full range of supplementary aids and services that could be provided to facilitate the child’s placement in the regular classroom setting must be considered. 71 Federal Register January 2015WDE TA Series 47

January 2015WDE TA Series 48 Regular ClassesSeparate ClassesSeparate SchoolsResidential Settings Hospital or Homebound

Progress 34 C.F.R. § (a)(3) January 2015WDE TA Series 49 EvaluationPLAAFPGoalsServicesPlacementProgress

 The IDEA requires every IEP include a description of:  How the child's progress toward 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. 34 C.F.R. § (a)(3). January 2015WDE TA Series 50

Measuring Benefit  The controlling question is whether, going forward, the IEP proposed by the District was reasonably calculated to confer some educational benefit.  Past progress on the IEP goals "strongly suggests" that when a proposed IEP is modeled on prior IEPs that had succeeded in generating some progress, the proposed IEP "was reasonably calculated to continue that trend." Thompson R2-J Sch. Dist. v. Luke P., 50 IDELR 212 (10 th Cir. 2008), cert. denied, 110 LRP 798 (2009). January 2015WDE TA Series 51

Lack of Progress  If a student fails to make progress within a reasonable period of time, the district must convene the team (or revise the IEP) to address the student's lack of progress. 34 C.F.R. § (b)(2)(A).  Noting that a student's present levels of performance remained stagnant for several years, a court held a district's continuation of inadequate services will almost certainly be regarded as a denial of FAPE. District of Columbia Pub. Schs., 49 IDELR 267 (D.D.C. 2008). January 2015WDE TA Series 52

Lack of Progress When an IEP results in less than reasonable progress, or fails to provide “some educational benefit,” go back and look for the broken link. Review, restrategize, recalibrate, and revise with the IEP team. January 2015WDE TA Series 53

Comprehensive Evaluation Review and collect data to determine eligibility and educational needs. IEP Needs Based on the comprehensive evaluation, what are the educational needs of the student in all areas related to the IDEA disability? IEP Goals Does the IEP contain specific, measurable annual goals that address all of the student’s educational need? They should be ambitious yet reasonable. Services Provide IEP services designed to enable the student to attain annual IEP goals and be involved in the general curriculum. Educational Benefit IEP services must be reasonably calculated to provide nontrivial educational benefit, or FAPE. All Steps Lead to Educational Benefit

Look for additional topics in the 2015 TA Series. WDE Technical Assistance Presentation January 2015