Eligibility under the Category of Speech or Language Impairment

The category of "speech or language impairment" (commonly referred to as "SLI") accounts for the second highest numbers in terms of students served in special education. (Source: Digest of Education Statistics: 2010). A speech or language impairment is, most simply put, a disorder in the area of communication. While there are diagnostic criteria used by licensed pathologists and psychologist to diagnose a child with a Language Disorder, the eligibility criteria, like all categories, is set by the IDEA and state law and does not rely on exactly the same standards.

IDEA Definition:

IDEA defines a speech or language impairment as a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance. 34 C.F.R. section 300.8. State laws will have more specific criteria for how to determine if a child presents with such an impairment and qualifies for special education and related services.

Example of State Criteria:

In California, the Education Code sets forth the following criteria for eligibility under the category of SLI:

(c) A pupil has a language or speech disorder as defined in Section 56333 of the Education Code, and it is determined that the pupil's disorder meets one or more of the following criteria:

(1) Articulation disorder.
(A) The pupil displays reduced intelligibility or an inability to use the speech mechanism which significantly interferes with communication and attracts adverse attention. Significant interference in communication occurs when the pupil's production of single or multiple speech sounds on a developmental scale of articulation competency is below that expected for his or her chronological age or developmental level, and which adversely affects educational performance.
(B) A pupil does not meet the criteria for an articulation disorder if the sole assessed disability is an abnormal swallowing pattern.

(2) Abnormal Voice. A pupil has an abnormal voice which is characterized by persistent, defective voice quality, pitch, or loudness.

(3) Fluency Disorders. A pupil has a fluency disorder when the flow of verbal expression including rate and rhythm adversely affects communication between the pupil and listener.

(4) Language Disorder. The pupil has an expressive or receptive language disorder when he or she meets one of the following criteria:
(A) The pupil scores at least 1.5 standard deviations below the mean, or below the 7th percentile, for his or her chronological age or developmental level on two or more standardized tests in one or more of the following areas of language development: morphology, syntax, semantics, or pragmatics. When standardized tests are considered to be invalid for the specific pupil, the expected language performance level shall be determined by alternative means as specified on the assessment plan, or
(B) The pupil scores at least 1.5 standard deviations below the mean or the score is below the 7th percentile for his or her chronological age or developmental level on one or more standardized tests in one of the areas listed in subsection (A) and displays inappropriate or inadequate usage of expressive or receptive language as measured by a representative spontaneous or elicited language sample of a minimum of fifty utterances. The language sample must be recorded or transcribed and analyzed, and the results included in the assessment report. If the pupil is unable to produce this sample, the language, speech, and hearing specialist shall document why a fifty utterance sample was not obtainable and the contexts in which attempts were made to elicit the sample. When standardized tests are considered to be invalid for the specific pupil, the expected language performance level shall be determined by alternative means as specified in the assessment plan.

(Source: Title 5, California Code of Regulations, Section 3030(c))

Other states also have criteria that is based on sub-dividing this category into specific impairments that include fluency disorders, voice disorders, articulation disorders and language disorders. For a sampling, see these state's websites:

Minnesota
Wisconsin
Georgia
Oregon
Idaho

Things to keep in mind:

SLI is not just about articulation. Many school districts are good at identifying the students who strictly fall within the "articulation" category of impairment, but have more difficulty when it comes to adequately and comprehensively assessing students to identify the more subjective and complex language disorders. This is something you should look out for starting with the assessment plan itself - be proactive and make sure your school district is also looking at the broader language and communication issues including receptive language, expressive language, pragmatics / social language, etc.

Eligibility under the category of SLI versus the need for speech and language services:

Here in California, a problem that we often face is the misunderstanding amongst school district speech therapists regarding how to apply the eligibility criteria. The eligibility criteria has a lot of specificity of the criteria in terms of how far below the mean a student's scores must fall. School districts often mistakenly assert that this criteria is what must be met for a student to receive speech and language therapy as a related service. In other words, even if a student is already eligible, or is being made eligible, for special education under another category, such as Autism or SLD, a school district may say that they cannot receive speech therapy as a related service if they do not also meet the criteria for eligibility under the category of SLI. This is a mistaken analysis, as these are two entirely separate issues. One issue is whether a student is eligible under SLI as their category of eligibility. The other is whether they require speech therapy as a related services to meet their unique needs arising from their disability. Once a child is eligible for special education and related services under any category, the school district is obligated to offer and provide a program that meets their unique needs and provides them and educational benefit.

Other Resources:

The American Speech and Hearing Association (ASHA) is a go-to source of information regarding speech and language impairments and related issues. Their article about eligibility for special education can be found on their website (click here).

Eligibility under the Category of Autism / Autistic Like Behaviors

The national organization Autism Speaks reports that it is currently estimated that one in every 110 children is diagnosed with Autism, and that the prevalence rate is increasing by 10-15 percent per year. (Source: What is Autism? www.autismspeaks.org) With those numbers, leading some people to refer to an "Autism epidemic" it is no wonder that eligibility for special education under the category of Autism is sometimes a hot topic.

The IDEA definition of Autism:

Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.

34 C.F.R. section 300.8(c)(1). The IDEA also notes that students who exhibit the characteristics of Autism after age 3 can also be eligible if the other criteria is met.

State Criteria for Autism Eligibility:

State special education laws have their own specific criteria for eligibility under the Autism category. Many states have criteria that is focused not on whether there is an actual diagnosis of Autism, but whether there is the presentation of characteristics associated with Autism, and because of these needs the child requires special education and related services. Here are some examples:

California defines this category as "Autistic Like Behaviors." Just this label itself is helpful for broadening the availability of special education and related services under this category to include students who may not have an actual medical diagnosis of Autism. In California, defines Autistic Like Behaviors as follows:

A pupil exhibits any combination of the following autistic-like behaviors, to include but not limited to:
(1) An inability to use oral language for appropriate communication;
(2) A history of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction from infancy through early childhood;
(3) An obsession to maintain sameness;
(4) Extreme preoccupation with objects or inappropriate use of objects or both;
(5) Extreme resistance to controls;
(6) Displays peculiar motoric mannerisms and motility patterns.
(7) Self-stimulating, ritualistic behavior.

Title 5, California Code of Regulations, section 3030(g).

Another list, with more thorough explanations, is found in the Wisconsin education laws, which specifically require that two or more of the behaviors be exhibited:

1. The child displays difficulties or differences or both in interacting with people and events. The child may be unable to establish and maintain reciprocal relationships with people. The child may seek consistency in environmental events to the point of exhibiting rigidity in routines.

2. The child displays problems which extend beyond speech and language to other aspects of social communication, both receptively and expressively. The child’s verbal language may be absent or, if present, lacks the usual communicative form which may involve deviance or delay or both. The child may have a speech or language disorder or both in addition to communication difficulties associated with autism.

3. The child exhibits delays, arrests, or regressions in motor, sensory, social or learning skills. The child may exhibit precocious or advanced skill development, while other skills may develop at normal or extremely depressed rates. The child may not follow normal developmental patterns in the acquisition of skills.

4. The child exhibits abnormalities in the thinking process and in generalizing. The child exhibits strengths in concrete thinking while difficulties are demonstrated in abstract thinking, awareness and judgment. Perseverant thinking and impaired ability to process symbolic information may be present.

5. The child exhibits unusual, inconsistent, repetitive or unconventional responses to sounds, sights, smells, tastes, touch or movement. The child may have a visual or hearing impairment or both in addition to sensory processing difficulties associated with autism.

6. The child displays marked distress over changes, insistence on following routines, and a persistent preoccupation with or attachment to objects. The child’s capacity to use objects in an age—appropriate or functional manner may be absent, arrested or delayed. The child may have difficulty displaying a range of interests or imaginative activities or both. The child may exhibit stereotyped body movements.

Wisconsin Administrative Code; PI 11.36(8).

As each state has their own criteria, it is important to identify what the applicable standard is for your state specifically. Remember that assessments should be done in all areas of suspected disability, and should provide the IEP team with enough information to make determinations of eligibility and need for special education and related services. Thus, when a school district is assessing for a possible eligibility under the category of Autism, that assessment should be looking at the applicable list of characteristics and behaviors, even if the assessor does not "diagnose" under the DSM-IV (see below).

Diagnosis versus Eligibility:

Diagnosis of Autism under the DSM-IV is different than a determination of eligibility under the category of Autism or Autistic Like Behaviors. Different standards, and sometimes different procedures, are used. Thus, if a child does not have a diagnosis by a qualified professional of Autism, this should not necessarily stand in the way of eligibility if the school district does a proper assessment. Here is a little bit more about diagnosis:

DSM-IV Criteria for Diagnosing Autism:

I. A total of six (or more) items from heading (A), (B), and (C), with at least two from (A), and one each from (B) and (C):

(A) Qualitative impairment in social interaction, as manifested by at least two of the following:

• Marked impairments in the use of multiple nonverbal behaviors such as eye-to- eye gaze, facial expression, body posture, and gestures to regulate social interaction.
• Failure to develop peer relationships appropriate to developmental level.
• A lack of spontaneous seeking to share enjoyment, interests, or achievements with other people, (e.g., by a lack of showing, bringing, or pointing out objects of interest to other people).
• A lack of social or emotional reciprocity.

(B) Qualitative impairments in communication as manifested by at least one of the following:

• Delay in or total lack of, the development of spoken language (not accompanied by an attempt to compensate through alternative modes of communication such as gesture or mime).
• In individuals with adequate speech, marked impairment in the ability to initiate or sustain a conversation with others.
• Stereotyped and repetitive use of language or idiosyncratic language.
• Lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level.

(C) Restricted repetitive and stereotyped patterns of behavior, interests and activities, as manifested by at least two of the following:

• Encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus.
• Apparently inflexible adherence to specific, nonfunctional routines or rituals.
• Stereotyped and repetitive motor mannerisms (e.g. Hand or finger flapping or twisting, or complex whole-body movements).
• Persistent preoccupation with parts of objects.

II. Delays or abnormal functioning in at least one of the following areas, with onset prior to age 3 years:

(A) Social interaction.
(B) Language is used in social communication.
(C) Symbolic or imaginative play.

III. The disturbance is not better accounted for by Rett's Disorder or Childhood Disintegrative Disorder.

Source: Diagnostic and Statistical Manual of Mental Disorders; Fourth

Qualifications to Assess:

The qualifications for being able to diagnose a child under the DSM-IV criteria and being able to assess a child for special education eligibility may be different. Generally, if a school psychologist or other assessor for the school district is using the term "diagnose" you should ask for information about their qualifications to do so, and about whether they were evaluating in order to ascertain a "diagnosis" or a disability as defined in educational criteria.

Meaning of "Adverse Effect on Educational Performance"

The IDEA requires consideration of whether the student's Autism "adversely affects educational performance." This in turn becomes something up for interpretations, and given that many states have also not clearly defined the meaning of either "adverse effect" or "educational performance," it becomes the subject of dispute between parents and school districts. The term "adverse effect" has been noted not to require evidence of a "significant impact" on educational performance in some cases, while others have noted that it requires more than "slight impact" on educational performance. The term "educational performance," which seems pretty straightforward, can actually be even more tricky. Again, this is an area where you will have to investigate your state laws to see how "educational performance" is defined.

What may be included in "educational performance?" The obvious answer is academic skills / achievement. However, it could possibly also include non-academics such as behavior, social skills, communication skills, interactions with peers, etc. If you think about this, it makes perfectly logical sense. Ask any teacher what children are expected to learn and do in class, and the list will undoubtedly include appropriate classroom behaviors and learning to get along with others. Look at your state's educational content standards, and there are likely to be ones related to communication and listening skills. Take a look at your child's report card carefully, and you'll notice "citizenship" or "effort" scores that are likely related not to what academic skills were performed, but how your child behaved and interacted in the classroom. All of these things are part of the educational environment and expectations for kids, and there is an argument to be made that this makes them part of what should be considered in "educational performance."

Removing "Mental Retardation" from Federal statutes

The U.S. House of Representatives has approved a bill (unanimously!) to strike the words "mental retardation" and "mentally retarded" from many Federal statutes, replacing those terms with the words "intellectual disability" and "individual with an intellectual disability." Read the full text of the bill here.

Within the context of special education laws, the bill will mean that wherever "mental retardation" is referred to (for example, when discussing eligibility categories), that term will be stricken and replaced with "intellectual disability." The same applies to section 504 of the Rehabilitation Act.

The law is called "Rosa's law" and is named for a child with Down Syndrome from Maryland. You can read about Rosa's story, including the inspirational testimony of her brother Nick in a hearing before representatives of the Maryland General Assembly, in this press release from Senator Barbara Mikulski's office, or in ABC News' story about the law and the family that inspired it.

This is only one step, albeit an important one, among many that will be needed to stop the R word. Changing the designation in laws may not stop the use of the R word as a derogatory slang or insult, but it is certainly a step in the right direction in terms of societal awareness.

Fast Fact Friday: Low Incidence Disability

Broadly defined, a "low incidence disability" is one in which the rate of occurrence is extremely small. California, for example, specifically defines "low incidence disability" as "a severe disabling condition with an expected incidence rate of less than one percent of the total statewide enrollment in kindergarten through grade 12." California Education Code section 56026.5.

Some examples could include:

• Blindness
• Visual Impairment
• Deafness
• Hard of hearing
• Deaf-blindness
• Severe cognitive delay
• Serious physical disability / impairment
• Significant / complex health related conditions
• Multiple disabilities
• Autism
  

In some instances, designation of "low incidence" may attach certain funding resources that are not otherwise applicable for services and equipment. Further, states may have specific data collection requirements related to students with low incidence disabilities.

Some low incidence disabilities may present unique challenges related to providing staff who are trained and qualified to assess those particular students and provide them with instruction and services. However, these students have the same right to a free appropriate public education under the I.D.E.A. as any other eligible student.

The fact that a student is categorized as having a "low incidence" disability cannot be the basis of a determination that he/she should be removed from the regular educational environment. Rather,

"the process for determining the educational placement for children with low-incidence disabilities is the same process used for determining the educational placement for all children with disabilities. That is, each child's educational placement must be determined on an individual case-by-case basis depending on each child's unique educational needs and circumstances, rather than by the child's category of disability." Comments and discussion to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46586 (2006).

Due Process Cases: Insufficiency of Complaints

When parents disagree with the IEP proposed for their child, with the denial of eligibility for special education, with evaluations conducted by the District, etc, they have the right to present a complaint to initiate "due process" in order to resolve their dispute. The 2004 amendments to IDEA added language specifying the contents of a complaint that is filed to initiate due process. Additionally, language was added that allows school districts (or the responding party) to assert that the complaint was not sufficient; i.e. that it does not include all of the required information. Hearing officers / ALJ's are charged with determining the sufficiency of the complaint. Specifically, the IDEA states that "a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets" these requirements. See 20 U.S.C. section 1415(b)(7)(B).

This places a burden on the filing party, which especially affects unrepresented parents who may be unfamiliar with the requirements and technical aspects of the process. If parents need assistance with this process, it is advisable that they seek out a special education attorney.

What information is required for a complaint to be "sufficient"?

IDEA (at 20 U.S.C. section 1415(b)(7)(A)(ii)) requires the following to be included in the complaint:

• Name of the child
• Address of the residence of the child
• Available contact information if the child is homeless
  
• Name of the school the child is attending
• The Issue / Problem presented: "Description of the nature of the problem of the child relating to such proposed initiation or change..."
• The Facts: "including facts relating to such problem..."
• The Proposed Resolution of the Problem

What is a "Notice of Insufficiency?"

Many school district attorneys now have a practice of filing a document, sometimes referred to as Notice of Insufficiency" to assert that the parents' complaint was not sufficient / does not contain all of the required information. Most often, these filings will allege that the complaint did not specify sufficient facts related to the problem, or did not clearly identify what the specific problem is.

An assertion that a complaint is not "sufficient" usually comes down to something subjective, and is not a clear-cut case of required information being totally left out. It usually involves how the information is presented / explained as to the facts, the issue or the proposed resolution.

Here are some examples of arguments we have seen regarding insufficiency of a due process complaint:

• Not enough facts to explain why the proposed IEP would not meet student's unique needs
• Issue regarding inappropriateness of goals not clear enough for District to determine what areas Parents believed were not addressed
• Issues relating to violations of procedural safeguards do not include sufficient facts to clarify basis for the allegations
  
• Proposed resolutions do not include information regarding specific amounts sought for reimbursement, compensatory hours, etc
• Proposed resolutions are not clear as to what prospective program parents are seeking

Sufficiency requirements in many states have increased exponentially the burden on parents filing for due process, and made it much more difficult for parents to go through this process unrepresented, thereby decreasing access to due process. Here in California, this has been the subject of much discussion among the parent-advocacy community. Some school district representatives have a practice of sending out a Notice of Insufficiency on every case, and we have even had one tell us she would be filing such a Notice even though she had admittedly not yet even reviewed the complaint's contents.

In at least one state, action has been taken to attempt to alleviate some of this burden. Click here to access the state of Ohio's information about a settlement agreement reached on this issue. What is informative in the "order of settlement" is the language in regards to what "sufficiency requirements" should mean:

[The IDEA] does not require a due process complaint to reach the level of sufficiency and detail of a complaint in a court of law.
That the purpose of the sufficiency requirement is to ensure that the other party will have an awareness and understanding of the issues forming the basis for the complaint, and
That due process complaints should be construed in light of Schaffer vs. Weast... and Escambia County Board of Education vs. Benton...
IHO's will be instructed that the standard in Schaffer and Escambia for reviewing the sufficiency of a due process request is a minimal pleading standard and is lower than the standard for reviewing complaints in court.

Ohio also now posts redacted copies of decisions / orders determining sufficiency of complaints, in compliance with the terms of this settlement.

What happens next?

If the responding party files a Notice of Insufficiency, the ALJ / Hearing Officer should rule on whether or not the complaint is sufficient. As stated, this often comes down to a subjective issue - it isn't usually the case that a child's name or address, for example, was left out. Therefore, the ALJ has to look at the complaint itself and determine if there is enough information in the "facts," "issues," and "resolution" to give the responding party notice of the basis for the complaint. If a complaint is not sufficient, the hearing will not go forward until a sufficient complaint is filed, meaning that either the case will be dismissed and have to be refiled, or that the filing party will be allowed by the ALJ / Hearing Officer to amend the complaint.

Can Parents file a Notice of Insufficiency?

Yes. If a school district files a request for due process, the the parent is the "responding party." The school district's complaint is also subject to sufficiency requirements in terms of what information must be included. If a parent / parent's representative believes that the information is not sufficient, he/she can also alert the ALJ / Hearing Officer and ask for a determination of sufficiency.

What about forms, etc for filing for Due Process?

The IDEA requires state educational agencies to develop "model forms to assist parents and public agencies in filing a due process complaint." 34 C.F.R. 300.509. Thus, many school districts / local educational agencies have forms that they provide parents to fill out when a parent disagrees and wishes to file for due process. The state educational agency may also provide such a form. Presumably, such a form would contain boxes or lines for each of the required areas, thereby guiding parents to ensure that all required information is included. Note that just because a school district or state agency provides a form, does not mean that a parent must utilize the form to file a request. Rather, any document that comports with the requirements under IDEA should initiate the process.

Here are some useful links to examples from various state educational agencies:

Connecticut
Illinois
Kentucky
Maine
Maryland
Michigan
Missouri
Neveda
New Jersey
Texas
Vermont

*note: the links in this list provide a sampling of state pages directly related to due process request forms. For a comprehensive list of state special education department websites in general, check out the list provided by the Council of Parent Attorneys and Advocates at this link.

Parents can seek out additional information from a special education attorney or experienced advocate, their state educational agency, or their local school district.

Related Services: Medical Services

Under the IDEA "medical services" that are eligible "related services" are those specific "services provided by a licensed physician to determine a child's medically related disability that results in the child's needs for special education and other related services." 34 CFR 300.34(c)(5). Therefore, if the medical services is necessary for diagnostic purposes it is required under the IDEA.



The Supreme Court has adopted a bright line rule on this issue as well, finding that medical services that can only be delivered by a physician are not related services and that health care support services, which can be administered by a person other than a physician are related services under the IDEA and therefore the responsibility of the school district. See Irving Independent School District v. Tatro, 555 IDELR 511 (1984), affirmed in Cedar Rapids Community School District v. Garret F. by Charlene F., 29 IDELR 966 (1999).



The Department of Education clarified in the 2006 IDEA Part B regulations that school districts are responsible for "providing services necessary to maintain the health and safety of a child while the child is in school, with breathing, nutrition, and other bodily functions (e.g., nursing services, suctioning a tracheotomy, urinary catheterization) if these services can be provided by someone who has been trained to provide the service and are not the type of services that can only be provided by a licensed physician." See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46571 (August 14, 2006). Thereofre, a medically fragile student, for example, would be eligible for health care related services that are supportive services the child needs to receive during the day in order to be able to attend school and thereby benefit from his or her education and should be noted in the child's IEP.



The Department of Education also clarified what type of medical services would not be related services. Specifically the DOE clarified that the optimization of a surgically implanted device's functioning, maintenance of the device or replacement of the device that requires the expertise of a licensed physician or an individual with specialized technical expertise beyond that typically available from school personnel (e.g., mapping of a cochlear implant) was not a related service. See id.; see also 34 CFR 300.34(b)(1). This does not limit, however, the right of the student with a surgically implanted device to receive other related services that are necessary for the child to receive a FAPE. It also does not limit the responsibility of the district to monitor and maintain devices that are need to maintain the health and safety of the child while he or she is being transported to and from school or is at school. Nor does it prevent the routine checking of a external component of a surgically implanted device to make sure it is functioning properly. See 34 CFR 300.113(b).



One related health service that a school district would likely responsible for would be vision therapy, if it was necessary to assist the child's educational needs and did not require administration by a physician. The decision about whether a student requires a related service such as vision therapy is, of course, a case-by-case determination for what is required for a FAPE.



For example, in Dekalb County Sch. Dist., the 11th Circuit ruled that a district's IEP for a student with a visual condition, which had not manifested itself in poor educational performance, prevented him from receiving FAPE. The court upheld an order to the district to pay for the student'svision therapy services. The evidence showed the student's significant visual problems would become much worse and interfere significantly with his ability to benefit from special education without the therapy. Therefore, the district was required to provide vision therapy in order to offer the student FAPE. See Dekalb County Sch. Dist. v. M.T.V. by C.E.V. and C.T.V., 45 IDELR 30(11th Cir. 2006). In Eugene Sch. Dist., however, it was determined that a student eligible for special education with Emotional Disturbance did not require vision therapy to benefit from his education as his above-average performance in reading comprehension undermined the parent's position that he required vision therapy to make academic progress. See Eugene Sch. Dist. 4J, 35 IDELR 52 (SEA OR 2001).

Breaking Down the IEP: Frequency, Location and Duration

The IEP document must include a statement of the special education, related services and program modifications to be provided to the student. In regards to those components, the statute includes an additional requirement that designates specific details about the services that must be included.

The IDEA requires the written IEP document to include:

"the projected date for the beginning of the services and modifications... and the anticipated frequency, location and duration of those services and modifications."

20 U.S.C. section 1414(d)(1)(A)(VIII).

When will the services and modifications described in the IEP begin?

The projected start date describes when the IEP will be "in effect" for this student. In many instances, an IEP can begin to be implemented right away. However, in some instances, the IEP team may be meeting for the purposes of determining services that are to begin at a later date, for example the following school year.

In any event, the IEP document needs to specifically state when the services are to begin. The District is required to implement that IEP consistent with the start date and in a manner that does not delay the provision of FAPE to the student.

What will be the frequency and duration of the services?

This is the "how often and how much" portion of the IEP. Once services are identified as necessary for the child, the IEP team needs to determine how often the child will recieve those services and how much time will be provided for each service. This determination should be individualized, and based on the child's identified unique needs, not based on a policy or district administrative decisions. For example, how often a child should recieve speech therapy should be based on his/her unique needs in the areas of speech, language and communication, how those needs impact his/her ability to access the curriculum, how these needs impact his/her functional skills, interactions with peers, etc, and other individual factors like attention span, or how the child generalizes skills. It should not be based on a district determination that all children with this disability recieve 2 times per week of speech therapy.

Whatever the IEP team determines, the IEP document must include a statement that is specific as to the frequency and duration of the services, so that all of those involved in developing and in implementing the IEP fully understand exactly what is to be provided.

What will be the location of the services?

Location can relate to several different considerations. Location may mean whether the service is to be provided within the child's classroom setting or whether the service is to be provided in a separate setting, like a therapy room, clinic setting, or counseling office. Location may mean whether the service will be provided at the school the child attends or at a private or non-public agency's office, like the office of a private speech pathologist or occupational therapy. Finally, location may mean the actual school that the child will attend and where the child will recieve services, although this definition of location causes much debate.

The IEP document is required to specifically identify the location of the services. Although there are many different things the IEP team should consider in determining location and how it should be described, the team should avoid generalized statements like "a district school location" and try to include specific information that gives the parents and other team members enough detail to understand what is being provided.

Importance of this information

"The amount of services to be provided must be stated in the IEP so that the level of the agency's commitment of resources will be clear to the parents and other IEP team members." Appendix A to 34 C.F.R. part 300, at Q35. This required content serves the purpose of clarifying the District's implementation duties, so that all persons working with the child understand what is to be provided and at what rate. It also serves the purpose of providing parents with enough information to meaningfully participate in the development of the IEP and fully consider the appropriateness of what is being offered. A parent may agree, for example, that her child requires speech therapy, but without knowing how much speech therapy is offered, it would be impossible for the parent to know if the IEP was appropriate.

The requirement that the IEP document location of services is a cause of much debate. Location in terms of in-class versus out-of-class (or the "push-in" model versus "pull-out" model) may be debated between parents and educators. In recent years, more emphasis has been placed on providing "push-in" services within the classroom setting or other natural environments. While this model is supported by the idea of providing services in the least restrictive environment, parents often feel that their child cannot fully benefit without more individualized services outside of the classroom setting.

Location in terms of the physcial school site is also a debate. In many cases, judges have agreed with school districts that the specific school site is an administrative decision, and that therefore failure to designate the specific school is not a FAPE violation, depsite the requirement that the IEP designate the "location" of services and program modifications to be provided. In some specific cases, however, the failure to identify a specific school has been found to deny student a FAPE. See, for example, A.K. v. Alexandria City School Board, 484 F.3d 672 (4th Cir 2007).

As with any component of the IEP, if the team determines that a specific location is requried to provide the student a FAPE, then that location needs to be specifically identified. In any case, some information describing the location of the services, along with the frequency and duration of the services, must be provided to conform to the statute and allow parents to meaningfully participate in the process.

Breaking Down the IEP: Statement of Program Modifications

In addition to special education, services and supplementary aids and supports that are provided directly to the child, as discussed in the previous report, the written IEP document also includes those supports that are provided to school personnel. These modifications and supports may be critical to the child's ability to progress in his/her program and to the determination of the child's least restrictive environment, and this factor should not, therefore, be glossed over by the team or in the document.

The IDEA requires the written IEP document to include:

"a statement of the program modifications or supports for school personnel that will be provided for the child (aa) to advance toward attaining the annual goals; (bb) to be involved in and make progress in the general education curriculum... and to participate in extracurricular and other nonacademic activities; and (cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described in [the IDEA]."
20 U.S.C. section 1414(d)(1)(A)(IV)

Program Modifications

Modifications generally involve changes to the program in terms of what a child is expected to produce or demonstrate within the curriculum. A change in the child's instructional level (i.e. reducing the grade level of what is presented) or a change in the content (i.e. reducing the amount or changing what is presented) can be program modifications. Likewise, if the format or performance criteria for tests and other curriculum-based achievement measures is substantially changed, so that what is being expected / tested is actually different, that would be considered a program modifications.

Modifications can be distinguished from reasonable accommodations. Accommodations can also be important to a child's individualized plan, but do not involve substantial alteration of what is expected in terms of performance and achievement within the curriculum. Accommodations may involve differences in how material is presented, how homework is given, how a test format looks, the setting, timing, etc. Accommodations in a classroom may involve preferential seating, repeated directions and reminders, etc, to assist the child in having an equal opportunity to learn.

Supports for School Personnel

These supports include "services that are provided to the teachers of a child with a disability to help them to more effectively work with the child." Comments to 1999 regulations, at page 12,593. These services could include collaboration and communication with other providers or supports provided within the classroom. "Supports for school personnel could also include special training for the child's teacher... [such training] would normally be targeted directly at assisting the teacher to meet a unique and specific need of the child, and not simply to participate in an inservice training program that is generally available within a public agency." Comments to 1999 regulations at page 12,593.

There is a difference, therefore, in training that is provided to everyone, versus training that is provided to this particular teacher based on this particular child's needs. However, even if the teacher is attending an inservice that is available to others, there may be an argument for having this documented in the IEP. The team needs to remain focused on the unique needs of this child, and if the teacher requires additional inservice training to meet those needs, training he/she would not require if this particular child were not to be placed in his/her classroom, then this is an appropriate part of the IEP document.

Relationship to Child's Goals and Individual Program

Program modifications and supports for personnel that should be included in the written IEP are those that are necessary for the child to make progress towards annual goals and towards general education curriculum. The IEP team needs to consider the child's individual goals, and how those goals will be met. Does the teacher require training, support or assistance to be able to provide the research-based specialized instruction that the team has determined to be appropraite? If so, that may need to be added to the IEP.

Relationship to General Education Curriculum and Least Restrictive Environment

The relationship between program modifications and supports for personnel to a child's access to the general education curriculum is so important that the IDEA specifies that the general education teacher participating in the development of the IEP must be involved in the determination of such modifications and supports, as well as any supplementary aids and services provided to the child. See 34 C.F.R. section 300.324(a).

Modifications to the program may be required in order for the child to be involved in and progress in the general education curriculum, and the necessity of such modifications should not be considered evidence that general education curriculum isn't appropriate. Rather, the IEP team needs to decide, and document, what modifications are appropriate on an individual basis so that the child can access the general education curriculum in a manner that is appropriate to his / her unique needs and learning difficulties while still allowing for progress.

A school district may state that if a child requires program modifications, rather than merely accommodations in the classroom, then it is not appropriate for that child to be in a general education classroom. This position is not consistent with the IDEA's preference for least restrictive environment, or with the statute's requirement that the written IEP document include a statement of program modifications that allow for the child to be involved in the general education curriculum and to be educated and participate with nondisabled peers.

Likewise, the IEP team needs to fully consider, and clearly document, supports for personnel that are required in order for the child to access general education curriculum and to access the Least Restrictive Environment. Maybe the general education teacher needs some in-service training related to the child's disability or to behavioral strategies or communication strategies so that the child can be in the general education classroom; if the training is required specifically to meet your child's individual needs, this in-service should be documented as a support for the personnel. Perhaps the teacher needs additional assistance in the classroom, even if the child does not individually require a 1:1 aide; if so, this support should be documented in the IEP. Even something like consultative time from the child's related services providers may be considered an important support for the teacher and staff. It is important that the general education teacher be an active participant in these discussions, and that the IEP document clearly indicate what supports will be provided.

Breaking Down the IEP: Statement of Special Education and Related Services

Inherently, an Individualized Education Plan should include documentation of the program to be offered to the student. The IDEA requires the written IEP document to include:

"a statement of the special education and related services and supplementary aids and services based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child...(aa) to advance appropriately toward attaining the annual goals; (bb) to be involved in and make progress in the general education curriculum... and to participate in extracurricular and other nonacademic activities; and (cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described [in the IDEA]."

20 U.S.C. section 1414(d)(1)(A)(IV).

Description of special education and related services

"Special education" includes the specially designed instruction or other specialized program to be provided to the child in order to allow that child to make progress in general education, advance towards goals, and participate in activities with peers. Specially designed instruction is a hot topic, because often when discussing instruction, issues of specific curriculum or methodologies arise.

For purposes of the IEP document, the IDEA requires a specific statement of the special education to be provided to the child. While "methodology" and specific "curriculum" may be generally within the discretion of the District, if a student requires a specific program in order to receive FAPE, it may be necessary for that program to be described in the IEP document. In any event, the IEP should contain some description of what is to be provided.

Related services include those specific services that are included in a child's program in order to meet the child's needs and provide him/her educational benefit. If a related service is required in order for the child to receive a FAPE, it should be described in the IEP document, along with details about when and how this will be provided, as will be discussed in a future post. Related services include those services listed in the IDEA, such as speech therapy, occupational therapy, etc.

The US Department of Education has clarified that

"the amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific services, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and the implementation of the IEP."

Appendix A to 34 C.F.R. part 300, at Q.35.

The IEP document needs to state with specificity what services will be provided to the child. Some school districts believe that if a services is just a "part of their program" it doesn't have to be listed, but this isn't necessarily true and does not comport with what the statute requires. If the child is to be provided APE, for example, to meet his or her needs, the IEP document should state so, even if every other child in that class also happens to be provided with APE as part of the program.

Description of supplementary aids and services

Supplementary aids and services include related services, accommodations and supports, consultative services for teachers, etc. The statute specifies that supplementary aids and services to be provided to the child or on behalf of the child should be described in the IEP document. Examples of supplementary aids and services provided on behalf of the child may include training for a teacher or aid in a particular program or about a particular disability.

The phrase "supplementary aids and services" is also referred to within the language regarding Least Restrictive Environment, and it is important therefore to remember that within the requirement for a description of supplementary aids and services, the statute specifies that such supports be provided to "be involved in and make progress in general education curriculum." The presumption for Least Restrictive Environment requires that an IEP team consider the "full range of supplementary aids and services, that if provided would enable the child to participate in the general education environment," before moving that child to a more restrictive setting. See Questions and Answers on the LRE Requirements, OSERS, OSEP-95-9. Therefore, when discussing this portion of the IEP's required content, the team needs to document specifically what supports are required to ensure that the child be placed in the LRE and continue to receive an educational benefit there.

Supplementary aids and services is defined broadly as including any "aids, services and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate." 20 U.S.C. section 1401(29). Any supplementary aids and services used to support the child in the LRE must be described in the written IEP document.

"Based on peer-reviewed research to the extent practicable"

The written IEP document includes a statement of special education and related services "based on peer-reviewed research to the extent practicable." The only guidance as to what "to the extent practicable" means is found in the Analysis of Comments and Changes to 2006 IDEA Part B regulations:

"The phrase to the extent practicable generally means that services and supports should be based on peer reviewed research to the extent that it is possible, given the availability of peer reviewed research."

71 Fed. Reg. 46565 (Aug. 14, 2006)

The Education Department explained that peer-reviewed research refers to "research that is reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of the field before the research is published." Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46664 (2006).

Although the substantive issues related to instruction and services based upon peer-reviewed research, and what that means in terms of what should be provided to an individual child, is a different topic altogether, peer-reviewed research is relevant to the discussion of required content for the written IEP. Because the statute specifies that an IEP is a written document that includes a statement of special education and related services based upon peer-reviewed research to the extent practicable, the written document should in fact address whether research supports the program offered by the school district. The decision of whether to write in a specific methodology into the IEP document is an IEP team decision. However, regardless of what methodology is utilized, the IEP document itself should document that it is based upon peer reviewed research, where applicable.

Relationship to Goals, General Education, and Progress

The requirement is that the IEP document special education and related services that will enable the child to make progress towards goals, participate and make progress towards general education curriculum, and be educated with and participate in activities with disabled and non-disabled peers. The IEP team must consider the goals that have been developed for the child, the child's unique needs related to his or her disability, and the child's needs related to how he/she will progress in general education curriculum, when determining what special education, related services, and supplementary aids and supports must be provided. To be clear, the IEP document should specify how the services, instruction and support will enable the child to meet his/ her goals and make progress towards general education curriculum.


This portion of an IEP's required written content may be the most complicated, and the most difficult to get right. Ultimately, if the IEP team remains focused on the child's needs, and how those needs relate to the services, instruction and supports being offered, then the document will be able to reflect clearly what will be provided and how that program provides FAPE. It is important, as with all portions of the IEP, that the District remember that ultimately, the IEP document needs to be clear enough to be understood by all of those involved in developing it and anyone potentially involved in implementing it. If sufficient details are included so that everyone can fully understand the special education and related services being offered, and parents can fully consider all aspects of the program, then a good clear IEP has been written.

Related Services: Counseling

Under the IDEA Counseling is a related service, defined as services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. See CFR 300.34(c)(2).

Related services include psychological counseling when it is required for a student to receive FAPE. See 34 CFR 300.34(c)(10). A school district, however, may be required to provide psychological counseling services even in situations where counseling is not needed primarily for educational purposes. In Doe v. Anring, the court found that psychotherapy and group therapy were required to assist the student to benefit from special education and were therefore "related services" under federal law. See Doe v. Anrig, 558 IDELR 278 (D. Mass. 1987).

If a student has emotional and behavioral disorders they may be entitled to receiving counseling services for therapeutic as well as educational benefit. If a student is emotionally or behaviorally disturbed, the connection between improving emotional difficulties, coping skills or social skills and increasing a student's ability to benefit from special education is fairly clear. In Sacramento City Unified School District, the student in question had intellectual abilities in the high average range but his classroom performance was below his ability. He displayed little to no behavior issues within the confines of the structured classroom setting but out of the classroom his behaviors included physical abuse of other children. The court found that he qualified for special education and related services, including counseling. See Sacramento City Unified School District, 509 IDELR 171 (SEA CA 1987).

Psychotherapy can either be a related service or a medical service, for which the LEA would not be responsible. The distinction is drawn based on the identity of the provide and the relation of the therapy to the child's educational needs. Typically, services that can only be provided by a psychiatrist are classified as medical services. If the psychotherapy services can be provided by other professionals, such as social workers, psychologists or guidance counselors, then those services will be considered related services if they are required to assist a child benefit from his or her special education.

Fast Fact Friday: Core Academic Subjects

The IDEA refers to the No Child Left Behind for a definition of the term "core academic subjects." See 20 U.S.C. section 1401(4). No Child Left Behind provides the following definition:

CORE ACADEMIC SUBJECTS- The term core academic subjects' means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography.

20 U.S.C. section 7801.

The relevance of defining core academic subjects is that under the IDEA and NCLB, a special education teacher who teaches core academic subjects to students with disabilities must be "highly qualified" in the subject he/she teaches. To meet the requirements, the teacher must be "highly qualified" as a special education teacher, meaning that he/she meets the certification, education and licensing requirements under the IDEA and state law, plus meet the requirements to be considered "highly qualified" in the subjects themselves. This does not apply to teachers who are exclusively teaching students who are assessed using alternative achievement standards.

Special education teachers in self-contained classroom settings may be teaching multiple subjects to their students. The IDEA addresses this situation by setting specific standards relevant to any special education teacher who teaches two or more core academic subjects exclusively to students with disabilities. Those teachers meet applicable standards if they either (i) meet the requirements of NCLB for highly qualified teachers; (ii) for teachers who are "not new," demonstrate competence in all of the core academic subjects in which the teacher teaches in the same manner; or (iii) for teachers who are new and are "highly qualified" in math, language arts or science, demonstrate competence in other core academic subjects in which the teacher teaches. 20 U.S.C. section 1401 (10)(D).

Students with disabilities need to learn and progress in core academic subjects, and the purpose of incorporating these requirements into the IDEA was to ensure that students with disabilities have the same right to competent, qualified instruction in the core academics as their non-disabled peers.

Breaking Down the IEP: Present Levels of Performance

When an IEP team is convened to discuss the program and services for a student with a disability, the school district is responsible for ensuring that a written document is created. An IEP is defined as "a written statement for each child with a disability that is developed, reviewed, and revised in accordance with [the IDEA]." 20 U.S.C. section 1414(d)(1)(A). There are specifically delineated portions of this "written statement" that make up required content for an IEP.

The first on the IDEA's list of required content is "present levels of performance;" often referred to by its acronym, "PLOP."

PLOP means:

"A statement of the child's present levels of academic achievement and functional performance, including (aa) how the child's disability affects the child's involvement and progress in the general education curriculum; (bb) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities; and (cc) for children with disabilities who take alternative assessments aligned to alternative achievement standards, a description of benchmarks or shortterm objectives."

Present levels of academic achievement

Academic achievement refers to a child's performance in academic areas, including reading and language arts, math, science, and history or social studies. This refers to what your child knows and can do at the present time as related to the core academic subjects. PLOP in academic achievement should provide the team with information about what the child's skills are. How are the child's reading and math skills as compared to the general education curriculum standards? Did your child meet his / her previous goals related to academics? What level were those goals set at, and if your child did not meet the goals, what level did he/she reach? What does your child's report card say about their performance?

Present levels of functional performance

Functional performance refers to a child's skills and achivement in areas that are "not considered academic or related to a child's academic achievement." See Commentary, Federal Register, at page 46661. Functional skills include areas such as daily living activities, motor skills and communication. Because PLOP must address both academic and functional performance, the IEP team needs to consider all areas of need arising from the child's disability when developing PLOP, regardless of if these areas directly impact academic achievement. Consider factors such as your child's ability to communicate in the classroom and with peers, your child's motor skills needs, any difficulties with organization or work habits, how your child socializes, etc. Ask the teachers for input about how your child "functions" on a day to day basis as compared to other kids his/her age.

How the child's disability impacts involvement and progress in general education

The requirement that PLOP specifically address how the disability impacts involvement and progress in general education curriculum should be considered when developing both PLOP for academic performance and PLOP for functional performance. When considering a child's academic achievement, for example, it is important to compare this to what the child is expected to do / learn in order to make progress in general education curriculum. If your child's disability affects his / her reading skills to the extent that this impacts her progress towards general education curriculum standards, for example, this needs to be noted in the PLOP. In the areas of functional skills, any functional performance deficit that affects how the child can participate in the curriculum should be noted as such. Additionally, the IEP document should consider, as a whole, how the disability impacts involvement in general education. Does the child's disability require a specialized setting or specialized instruction that cannot be provided in general education? Does the child's disability require modifications to the general education curriculum? These are issues the team should be considering when developing PLOP.

Preschool children

There is nothing in the law that states that IEPs for preschool children do not have the same requirements for content as for other students. There is, however, a consideration in the requirement for PLOP regarding preschool children in terms of access to age appropriate activities. For preschool children, it may be the case that they are not yet being taught "general education curriculum," and there may not be specific curriculum standards that apply. Instead, there may be "readiness skills" and developmentally appropriate activities, designed to get the child ready for a Kindergarten program. The IDEA recognizes this, and requires that when appropriate, the IEP document include a statement of PLOP related to how the child's disability impacts his/her ability to be involved in age appropriate activities.

Alternative achievement standards

Prior to IDEA 2004, the IEP was required to include a statement of goals that includes objectives or benchmarks towards meeting those goals for all students with disabilities. IDEA 2004 removed this language under "goals" and instead included additional language under the provision for PLOP. Students who are assessed using "alternative measures" that are aligned to alternative achievement standards, rather than general education standards, require shortterm benchmarks in order to measure their progress towards goals. Although this is now included under PLOP, it will be fully discussed in the next blog post in this series, which addresses goals.

Importance of PLOP to the IEP process

A clear and accurate statement of a child's present levels of performance, both in academic and functional areas, is the foundation for establishing a good IEP. PLOP provides the team with a baseline from which to develop goals, consider necessary services, discuss appropriate specialized instruction, and ultimately develop a program that will meet the child's unique needs and provide educational benefit. If the PLOP is vague, inaccurate or incomplete, then the IEP will likely not address each of the child's unique needs arising from his/her disability.

A sufficient statement of the child's PLOP is also critical for meaningful parent participation. Without accurate and complete information about how a child is performing and functioning, it would be impossible for a parent to be fully informed and to meaningfully participate in discussions regarding the child's unique special education needs.

For example, in an Oregon case, the ALJ concluded that the school district denied FAPE to the student, based in part on the finding that the district repeatedly failed to report the student's current performance or issue reports that documented progress towards IEP goals. The ALJ noted that mere identification that the child had "ongoing educational difficulties" was not enough for a statement of PLOP, noting that the parent did not have enough information regarding how the PLOP was related to the child's IEP goals. The ALJ found fault with the district's "recycling" of PLOP from year to year without updating the information.
Ashland School District, 47 IDELR 82 (SEA OR 2007).

In a New Mexico case, an appeal officer found that the District had denied FAPE to a student because the parents were denied meaningful participation in the IEP process. The IEP documents failed to include a statement of the student's present levels of performance, particularly in the area of reading, and did not include adequate information to allow the parent to fully participate in the development of a program. Because the IEP lacked information about the student's PLOP, parent had an erroneous belief that he continued to require a restrictive placement in a separate facility to recieve adequate specialized instruction. Although the district "recommended" a less restrictive setting, it continued to place the child in the specialized program due to the parent's request. The judge noted that this placement was inappropriate, and that the parent only requested it because of the lack of information she was provided regarding her child's current academic performance.
Rio Rancho Pub. Schs., 40 IDELR 140 (SEA NM 2003).

How specific should PLOP be?

The statement of PLOP should be specific enough to clearly establish with sufficient detail what the child's particular needs are in each area. Vague statements are not sufficient to lay an adequate foundation for a good IEP. The child's levels of performance need to be clearly defined so that anyone reading the IEP and working with the child has sufficient information to be able to address those needs and measure progress.

For example, in a New York case, the state review officer determined that the school district's IEP was inappropriate because the document did not contain sufficient details regarding the child's present levels of performance and specific special education needs. The IEP in question stated that the child had "difficulties" in motor skills and functional communication, but did not identify any specific difficulties that arose for this child. The vagueness of the statement of PLOP meant that the goals were not designed to match the student's actual needs, and therefore there was not a sufficient "foundation" for development of an appropriate program.
In re Child with a Disability, 50 IDELR 236 (SEA NY 2008)

Where information is derived from

Information contained within a statement of PLOP may come from a variety of sources, such as progress reports from previous IEP goals, report cards demonstrating a student's academic achievement in the classroom, informal observations, data collection, formal evaluations, teacher input, etc. Remember those things that the District must "consider" when developing the IEP, as discussed in the previous post. The District should take into consideration a variety of sources of input to develop PLOP that accurately, completely and specifically identifies the child's strengths and weaknesses in each area.

Parent participation in development of PLOP

Parent participation is critical to the development of a procedurally and substantively appropriate IEP, and there is nothing to support an argument that parents should not participate in the development of PLOP. As discussed in the previous post, the "concerns of the parent" are a part of what must be considered when developing the IEP. If the parent concerns are relevant to what the child's current levels of performance and achievement are, it would be appropriate for these concerns to be considered when developing PLOP. On a logical basis, it would be irrational for the District not to include relevant and accurate information provided by the parent in relation to what the child currently knows and can do.

Parents should prepare for the IEP meeting by carefully considering for themselves what the child's PLOP are in areas related to academics and functional skills. Look over information you have been provided throughout the year from your child's teachers and service providers. Make sure you have copies of any statewide or standardized testing results, report cards, progress reports, and evaluations. Make a list of what you see as important performance and achievement information from this information, and use that as a "checklist" when discussing PLOP with the IEP team.

Finally, the discussion of a child's PLOP can be a good indicator of how the remainder of the IEP team meeting is going to go. If the District is not allowing parents to actively participate and provide input, or is not giving the parents sufficient information, during this part, that may be an indication that the District is not going to have a meaningful meeting that involves everyone and develops an appropriate program. Disagreements are certainly possible regarding what a child's actual levels of performance and achievement are, a meaningful discussion of those disagreements should take place. If the parent believes that the IEP document is not accurately describing a child's needs and PLOP, it is likely that the parent also won't believe the IEP is designed to meet the child's needs. Ultimately, everyone needs to be proactive, information needs to be fully shared, and sufficient details need to be provided so that the PLOP really does lay the foundation for an appropriate program.

Fast Fact Friday: Who is a "Parent" Under IDEA

The IDEA defines "parent" as:

(A) a natural, adoptive or foster parent of the child (unless a foster parent is prohibited by State law from serving as a parent);
(B) a guardian (but not the State if the child is a ward of the State);
(C) an individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or
(D) [] an individual assigned under either [section 1415(b)(2) or section 1439(a)(5)] to be a surrogate parent.

20 U.S.C. section 1401(23)

What happens when the parents are divorced?

If the parents of the child are divorced, both parents are considered a "parent" under the IDEA and have all of the parental rights established by the IDEA's procedural safeguards, unless a court order or state law specifies otherwise. The IDEA specifically allows for a judicial decree or court order to identify the person who is to act as the parent of the child and to make educational decisions on the part of the child. 34 C.F.R. section 300.30(b). If divorced parents both maintain shared legal and physical custody, each may be able to make educational decisions. If, however, a divorced parent does not have legal or physical custody, they may not be entitled to participate in the educational process. The siutation can be unclear in circumstances where parents share legal custody but not physical custody, or the other way around.

The best scenario would be for parents to ensure that the educational rights pertaining to the child are specified in a divorce agreement or addressed by the Court in its order.

What happens when the parents are unknown?

Section 1415(b)(2) includes a requirement that the local education agency establish procedures to protect the rights of the special education student "whenever the parents of the child are not known, the agency cannot after reasonable efforts locate the parents, or the child is a ward of the State." In these circumstances, the agency must assign a surrogate to act as the parent. School districts must establish a method for determining whether the child requires a surrogate and for assigning a surrogate parent. See 34 C.F.R. section 300.519. The surrogate cannot be an employee of the school district or any other agency involved in the education of the child, and must have "knowledge and skills that ensure adequate representation of the child."

Two circumstances are specifically addressed further: First, if the child is a ward of the State, the statute specifies that the surrogate may be appointed by the Judge overseeing the child's care. Second, if the child is an unaccompanied homeless youth, the school district is specifically responsible for appointing the surrogate. See 20 U.S.C. section 1415(b)(2).

Parents, including surrogate parents under the IDEA, or a divorced parent with legal and physical custody, have rights and responsibilities as determined by the procedural safeguards of the IDEA, and must be included and involved in all matters related to the identification, evaluation, placement and provision of FAPE to the child.

Related Service: Assistive Technology

When people first think of assistive technology they think of the actual devices that a student uses in the classroom - ranging from a laptop computer to a pencil grip. But some devices requires that the student's IEP actually include a direct service in order for them to access those devices.



Under the IDEA assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. See 20 U.S.C. 1401(2); 34 CFR 300.6. As with other services if the student is identified as needing special education and related services they are entitled to an individual evaluation for possible assistive technology devices. See Maynard Sch. Dist., 20 IDELR 394 (SEA AR 1993).

As with other services, it is the IEP team that makes the determination about whether a child requires either AT devices or services in order to receive a FAPE. See 34 CFR 300.324(a)(2)(v); see also Letter to Anonymous, 24 IDELR 854 (OSEP 1996). If the team determines that a student with a disability requires a device or service to receive a FAPE the District is obligated to provide that device or service. OSEP has stated that when a child requires AT the IEP document must include a specific statement of such AT devices or services. See Letter to Anonymous, 18 IDELR 627 (OSEP 1991).

As with other areas of special education a parent can not unilaterally determine the device or service but rather the team makes a determination about what is appropriate. If there is a dispute, however, parents have the ability to present evidence that the preferred device or services is appropriate and the district's proposed device or service is not. Furthermore, while the cost of a device is a relevant in determining what AT devices or services to provide it cannot be the determining factor. See Greenwood County Sch. Dist., 52 IDELR 355 (SEA CA 1992). A school district, however, has no obligation to pay for AT services if there is an alternate funding source, such as private insurance or Medicaid.

Typically an AT service is linked to a particular AT device that an IEP team has determined is appropriate for a student. For example, if an IEP team determines that a student requires an augmentative communication device in order to benefit from his or her education then the district may need to provide direct instruction in that device to the student and/or training to other instructors and service providers on that particular device. On the other hand, if an IEP team determines that a student requires access to a computer in the classroom the student may not require an AT service to access that device.

Fast Fact Friday: Nonacademic Services and Extracurricular Activities

What are Nonacademic Services and Extracurricular Activities?
IDEA specifies that these services / activities may include "counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities and employment of students, including both employment by the public agency and assistance in making outside employment available." 34 C.F.R. 300.107(b).

Extracurricular activities are basically those activities that school age kids participate in beyond the classroom setting, like sports, clubs, etc.

Mandate for Equal Opportunity:
IDEA 2004 states that "each public agency must take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child's IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities." 34 C.F.R. 300.107(a).

Under Section 504, Districts are required to provide nonacademic services and athletics in the manner necessary so as to afford students with disabilities an equal opportunity for participation in such services and activities. 34 C.F.R. 104.37(a)(1). Failure to ensure equal opportunity could give rise to a claim of discrimination under this Act.

What should the IEP team do?
IDEA 2004 broadened the definition of supplementary supports and services by specifying that such aids, supports and services are provided not only in the regular classroom setting and other education-related settings, but also within extracurricular and non-academic settings. 34 C.F.R. 300.42. This means that the IEP team must consider what supports may be necessary to ensure that the child has the ability to participate in the same extracurricular activities as are available to his/her non-disabled peers. For example, the student may need 1:1 assistance and support to attend club meetings or other activities; or require accommodations / modifications within the program.

Related Service: Transportation

Under the law transportation is a related service akin to services such as speech and language, OT, PT, and counseling. See 20 U.S.C. 1401(a)(22). A school district is required to offer transportation services if it is required to assist the child with a disability to benefit from special education. See 34 CFR 300.24(15)(a).

Transportation includes: (1) travel to and from and between schools; (2) travel in and around school buildings; and (3) specialized equipment, such as special or adapted buses, lifts, and ramps, if required to provide special transportation for a child with a disability. See 34 CFR 300.24(b)(15).

Is my student entitled to transportation?

If a school district provides transportation to general education students then it must provide transportation to special education students to any program to which it assigns a special education student. That is a district can not discriminate against students with disabilities by not providing them with transportation services. However, if a school district, does not provide transportation to the general education students then it must decide on an individualized basis whether or not a student requires transportation as a related service in order to receive a FAPE. A school district must ensure that they consider the IDEA's LRE mandate in making transportation decisions.

Should my student's IEP include transportation?

If the student qualifies for transportation as a related service then the IEP should clearly explain the transportation. If a student is capable of using the same transportation services as a student without a disability the IDEA does not require transportation to be listed as a related service in the IEP. See Letter to Hamilton, 25 IDELR 520 (OSEP 1996).

The IEP team should also take into consideration other factors when offering transportation in order to assure that the IEP offers a FAPE. For instance the team should consider if the student requires specialized equipment such as a special or adapted vehicle, a lift, a ramp, seat restraints, security devices, such as a harness or vest, a car seat, air-conditioning and/or tinted windows.

The IEP team should also consider whether it is appropriate for personnel to assist the student. If the student requires personalized services within the classroom, then it would be appropriate for the IEP team to consider whether the student required personal assistance while being transported.

A school district should also consider whether a change in policy is necessary to accommodate a student with a disability, such as allowing a student with diabetes to have a snack on a bus.

Where will my child be transported to and from?

It depends on what is appropriate for the student. A student may be picked up from a bus stop if it is appropriate but if their disability prevents them from being at the bus stop then home to school transportation may be appropriate. For example, if the student does not understand potential safety hazards then it may not be appropriate for the student to be picked up at a bus stop.

A school district will also be obligated to transport a student for an extracurricular or nonacademic activity if it is related to the student's IEP goals and objectives.

How much time should a student be on a bus?

Neither the IDEA or Section 504 specifically address the appropriate length of bus rides for students with disabilities. In general, a school district must consider the length of a bus ride, proximity of student's home to placement and overall impact on the student. Some states regulate the length of a bus ride by establishing a maximum amount of time a student may be on a bus. Excessive travel time can result in a denial of FAPE as excessive daily commuting to a placement may suggest the need for a residential placement. What constitutes an excessive amount of time, once again, depends on the student, his or her disability, overall health condition and norms for the region. A general rule, however, is that the student's daily commute should not greatly exceed one hour each way. See e.g., Bonadonna v. Cooperman, 557 IDELR 178 (D.N.J. 1985); Covington Community Sch. Corp, 18 IDELR 180 (SEA IN 1991); Kanawho County (WV) Pub. Sch., 16 IDELR 450 (OCR 1987).

Furthermore, a school district should not shorten the school day to accommodate bus schedules for a special education student. See Palm Beach County (FL) Sch. Dist., 31 IDELR 37 (OCR 1998); Jim Thorpe (PA) area Sch. Dist., 20 IDELR 78; Lincoln County (NC) Sch. Dist., 17 IDELR 1052 (OCR 1991). Students with disabilities must be given a comparable length of school day and week as non-disabled students, unless there is a compelling specific reason.

There may be other factors to take into consideration when determining the specifics of transportation as a related service for your student - if you need more help contact a special education attorney in your area.

Fast Fact Friday: Age of Eligibility

Age Range Covered:
IDEA 2004 specifies that FAPE must be made available to all children residing in the state between the ages of 3 and 21 inclusive.
34 C.F.R. 300.101(a).

Eligibility At Age 3:
School Districts are required to make FAPE available to children with disabilities by no later than the child's third birthday. 34 C.F.R. 300.101(b). The law specifies that the IEP must be "in effect for the child by that date," meaning that assessments to determine eligibility and an IEP meeting to develop goals, services, placement, etc, should be held prior to the third birthday.

If the child turns three during the summer months, IDEA allows for the IEP team to determine the date upon which the IEP will begin. 34 C.F.R. 300.101(b). However, this should be read in conjunction with the requirement that an IEP be in place at the start of the school year for each child with a disability residing within the district. 34 C.F.R. 300.323(a).

Eligibility To Age 21:
States are permitted to decide how to determine the end date for eligibility for a 21 year old. Some states may cut off eligibility as of the date that a child turns 21. Others may determine that eligibility goes until the end of the semester or school year in which the child turns 21. Still others may determine that the child would remain eligible throughout their 21st year (i.e. until they turn 22).

Keep in mind that being age-eligible is not the same thing as an automatic determination that the child still requires special education and related services. There are other factors used to determine the end of a child's special education program for students beyond "school age," such as graduation from high school with a diploma or certificate of completion, an IEP team determination that the goals have been met and services are no longer required, etc.

A New Series: Related Services

Coming next week . . . we will be starting a series on related services. Each post will explore a different related service and issues specifically related to that service.

First up will be transportation so check back next week to learn more. If anyone has a related service they would like to know more about please leave a comment and we will do our best to find out more about it or share what we already know.

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.