The Importance of Documentation
and Data Collection in IEP
Implementation
Christopher P. Borreca
Thompson & Horton LLP
3200 Southwest Freeway, Suite 2000
Houston, Texas 77027
(713) 554-6740
[email protected]
IEPs -- Measuring
Progress
MEASURING PROGRESS - IEP GOALS
The IDEA requires that every IEP include a
statement of measurable annual goals, including
academic and functional goals, designed to:
o
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.
o
For children with disabilities who take
alternate assessments aligned to alternate
achievement standards, a description of
benchmarks or short-term objectives.
The IDEA at 34 CFR 300.320(a)(3) requires that
every IEP include a description of:
o
How the child's progress toward
meeting the annual goals will be measured,
and
o
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.
Because the evaluation of a student's progress is so
closely tied to the student's IEP goals, the district
must ensure that the goals included in each
student's IEP are clear and objectively measurable.
Kuszewski v. Chippewa Valley Schs., 34 IDELR 59
(E.D. Mich. 2001), aff'd, 38 IDELR 63 (6th Cir. 2003,
unpublished) (holding that measurable goals must
have "sufficiently objective criteria" for measuring
progress).
GOOD GRADES IN GENERAL
CURRICULUM AS AN
INDICATOR OF FAPE
While good grades can be evidence of compliance
with the IDEA's FAPE mandate, they do not, as a
matter of law, end an inquiry into whether a district
provided FAPE. In fact, the IDEA expressly cautions
that: "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." 34
CFR 300.101(c)(1).
A number of courts and hearing officers have held
that passing grades indicate a student's receipt of
FAPE. See Falzett v. Pocono Mountain Sch. Dist.,
44 IDELR 121 (3d Cir. 2005, unpublished) (holding
that a student's A average and above-average
scores on the Secondary School Admission Test
showed that his district offered FAPE); and Viola v.
Arlington Cent. Sch. Dist., 45 IDELR 39 (S.D.N.Y.
2006) (the student was approaching grade level in
all areas, made progress on achieving legibility with
his handwriting, and had made steady progress in
phonological awareness and auditory recall).
FAILING GRADES IN GENERAL
CURRICULUM AS AN
INDICATOR OF FAPE
See Conklin v. Anne Arundel County Bd. of Educ.,
18 IDELR 197 (4th Cir. 1991) (recognizing that some
children, due to the extent of their disabilities, will
never be able to perform at grade level and will
require several years to achieve what would be to a
nondisabled child a year's worth of progress)
STAGNANT
PERFORMANCE
SHORT-TERM
OBJECTIVES
THE 'PRESENT LEVELS OF
ACADEMIC ACHIEVEMENT AND
FUNCTIONAL PERFORMANCE'
REQUIREMENT
Each IEP must contain: "A statement of the child's
present levels of academic achievement and
functional performance, including-(i) 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
(ii) For preschool children, as appropriate, how
the disability affects the child's participation in
appropriate activities.
This section of the IEP must be all-encompassing,
so as to provide a baseline that reflects the entire
range of the child's needs, including both academic
(reading, math, communication, etc.), and
nonacademic (daily life activities, mobility, etc.)
areas. This statement should provide relevant
background information about the child's areas of
need, strengths, interests, and learning style. 34
CFR 300.324(a).
The IEP should express the PLAAFP in specific,
objectively measurable terms. While the use of test
scores is not always appropriate, test scores
accompanied by some individual analysis is
common.
•Regardless of how the IEP team expresses the
PLAAFP, it must be sure to avoid vague statements.
City of Chicago Sch. Dist. 299, 109 LRP 30902
(SEA IL 05/05/09).
ED REFUSES TO FURTHER
DEFINE 'ACADEMIC
ACHIEVEMENT' OR
'FUNCTIONAL PERFORMANCE'
DEFICIENT STATEMENTS OF
PRESENT LEVELS OF
EDUCATIONAL PERFORMANCE
DENY FAPE
If the statement does not consider the unique needs
of the child, establish a baseline for establishing
goals and monitoring progress, or allow informed
parental participation in the IEP process, then the
IEP may be found to deny FAPE. See, e.g.,
Friedman v. Vance, 24 IDELR 654 (D. Md. 1996);
and Portland Pub. Schs., 24 IDELR 1196 (SEA ME
1996). See also Conemaugh Twp. Sch. Dist., 23
IDELR 1233 (SEA PA 1996).
The complete failure to include a statement of
PLAAFP in an IEP will almost certainly result in a
denial of FAPE.
IEPs -- Miscellaneous Issues
Related to IEP Content
SPECIAL FACTORS
TRANSITION PLANNING
LRE for Students with Severe
Cognitive Disabilities
IDEA MANDATES
RELEVANT FACTORS IN
SUPPORT OF PLACEMENT IN
THE REGULAR CLASSROOM
Most court and due process decisions stemming from LRE
disputes rely on the following factors, announced by the 3d
U.S. Circuit Court of Appeals in Oberti v. Board of Education of
the Borough of Clementon School District, 19 IDELR 908 (3d
Cir. 1993), for determining whether a child with a disability can
be educated satisfactorily in a regular class with supplementary
aids and services:
 1. Whether the district has made reasonable efforts to
accommodate the child in a regular classroom.
 2. The academic and nonacademic benefits available to the
child in a regular class, with appropriate supplementary aids
and services, as compared to the benefits provided in a
special class.
 3. The possible negative effects of the inclusion of the child
on the education of the other students in the class.
In P. v. Newington Board of Education, 51 IDELR 2
(2d Cir. 2008), the 2d U.S. Circuit Court of Appeals
joined the 3d, 5th, 9th, 10th, and 11th U.S. Circuit
Courts of Appeals in adopting the two-prong test
found in Oberti v. Board of Educ. of the Borough of
Clementon Sch. Dist., 19 IDELR 908 (3d Cir. 1993),
to review placements on the LRE continuum. This
fact-specific test requires courts to consider: 1)
whether the student can be satisfactorily educated in
the general education environment with the use of
supplemental aids and services; and, if not, 2)
whether the student was mainstreamed to the
maximum extent appropriate.
PRACTICAL APPLICATIONS OF
LRE CONSIDERATIONS TO
STUDENTS WITH SEVERE
COGNITIVE DISABILITIES
When applied, the multifactor test used by courts to
determine whether regular education is an
appropriate placement for a student with disabilities
has more often than not resulted in placement in the
regular classroom with supplemental aids and
services for students with severe cognitive
disabilities.
IMPORTANCE OF ATTEMPTING
TO IMPLEMENT LRE IN
REGULAR CLASSROOM
AGE AS A FACTOR IN PLACING
STUDENTS WITH COGNITIVE
DISABILITIES
As a student with a disability matures, programmatic
concerns (in the sense of mastering the maximum
possible level of communication and self-help skills)
become more critical and may possibly outweigh the
need for socialization with nondisabled children.
Courts have upheld more restrictive placements for
students with disabilities in or nearing their final high
school years.
COST AS A FACTOR IN LRE FOR
STUDENTS WITH COGNITIVE
DISABILITIES
PRACTICAL APPLICATIONS OF
THE COST FACTOR IN LRE
ANALYSIS
SIGNIFICANCE OF
NONACADEMIC,
SOCIALIZATION BENEFITS FOR
STUDENTS WITH COGNITIVE
DISABILITIES
LRE in the Context of Disability
Categories
LRE AND STUDENTS WITH
COGNITIVE DISABILITIES
If a student is not learning from exposure to
nondisabled peers in regular education, and the
student's placement in regular education in effect
results in isolation from classmates, interaction with
peers is not likely to be considered a nonacademic
benefit weighing in favor of inclusion. On the other
hand, if a student shows some awareness and
positive reaction to nondisabled peers, this
consideration may weigh in favor of inclusion,
assuming the student can receive a meaningful
educational benefit and is not unduly disruptive in
that setting.
LRE AND STUDENTS WITH
LEARNING DISABILITIES
LRE AND STUDENTS WITH
EMOTIONAL AND BEHAVIORAL
DISABILITIES
LRE AND STUDENTS WHO ARE
DEAF
LRE AND STUDENTS WHO ARE
BLIND
LRE AND STUDENTS WITH
AUTISM
SELECTED CASES INVOLVING
DATA AND IEP PROGRESS
114 LRP 29098
Riverside Unified School District
California State Educational Agency
May 16, 2014
114 LRP 34513
District of Columbia Public Schools
District of Columbia State Educational Agency
July 8, 2014
114 LRP 44745
SILSBEE INDEPENDENT SCHOOL DISTRICT
Texas State Educational Agency
June 30, 2014
114 LRP 38482
Stillwater Independent School District #834
Minnesota State Educational Agency
June 12, 2014
114 LRP 48707
In re: Student with a Disability
Oklahoma State Educational Agency
May 23, 2014
114 LRP 29098
Riverside Unified School District
California State Educational Agency
May 16, 2014
114 LRP 34891
Independent School District No. 270, Hopkins Public
Schools
Minnesota State Educational Agency
May 16, 2014
114 LRP 45128
Springfield (OR) School District 19
Office for Civil Rights, Western Division, Seattle
(Oregon)
May 12, 2014
114 LRP 26873
Plainfield Community School Corporation
Indiana State Educational Agency
May 5, 2014
114 LRP 47356
Hillsborough County School District
Florida State Educational Agency
October 28, 2014
114 LRP 47454
Okaloosa County School District
Florida State Educational Agency
October 28, 2014
114 LRP 46711
East Central Board of Cooperative Educational Services
Colorado State Educational Agency
September 25, 2014
114 LRP 41599
Beaumont Independent School District
Texas State Educational Agency
August 28, 2014
114 LRP 38120
Lake Oswego School District 4J
Oregon State Educational Agency
August 21, 2014
114 LRP 44608
MUSCOGEE COUNTY SCHOOL DISTRICT
Georgia State Educational Agency
July 14, 2014
114 LRP 47100
Charles County Public Schools
Maryland State Educational Agency
July 10, 2014
63 IDELR 60
114 LRP 12208
East Allen County School Corporation
Indiana State Educational Agency
January 24, 2014
54 IDELR 168
110 LRP 23150
D.A., b/n/f and individually L.A., Plaintiffs, v.
HOUSTON INDEPENDENT SCHOOL DISTRICT,
Celestina MARTINEZ, and Sharon COLVIN,
Defendants
716 F. Supp. 2d 603
U.S. District Court, Southern District of Texas
August 14, 2009
65 IDELR 207
115 LRP 18582
GRANTS PASS SCHOOL DISTRICT, PlaintiffAppellant, v. STUDENT, Defendent-Appellee
U.S. District Court, Oregon
April 29, 2015
Waller Independent School District
114 LRP 50864
Texas State Educational Agency
251-SE-0613
October 27, 2014
Christopher P. Borreca
Thompson & Horton LLP
3200 Southwest Freeway, Suite 2000
Houston, Texas 77027
713-554-6740
[email protected]