I couple of weeks ago I posted a short summary of how to prepare for and develop an Individualized Education Program (IEP) for your child. This post will provide you with a more detailed and comprehensive outline of how to write and develop a SMART IEP. As the school year is ending and many IEP meetings are likely to occur within the next 2-3 weeks, I hope that this outline may help you in developing a more appropriate and SMART IEP. I wish you success in developing a SMART IEP for your child for the 2014-2015 school year. If you need help, let me know.
WRITING SMART IEPs
TORIN TOGUT
togutlaw.net or togutlaw.com
PRACTICAL TIPS FOR AN IEP MEETING
The development of an IEP is not a science; it is an art. As an art form, there are many styles that can be used to reach the same design. There are a myriad of factors that may influence the ultimate shape of the IEP, to wit: geographic (rural v. urban school districts), type and severity of the child’s disability; competence, training, education and knowledge of IEP team members; need for related services such as occupational, physical and speech and language therapy; costs of implementing IEP; child’s behaviors, cooperation and involvement of parents and school officials and staff and with each other; trust between parents and school officials and staff; familiarity among the participants at the IEP meeting; school bureaucracy; transportation services; utilization of consultants; and adherence to protocol and rules by parents and educators.
The attitude of parents towards school district staff and administrators at an IEP meeting are quite varied. Importantly, it becomes far more difficult for the parties attending an IEP meeting to focus on the goal of developing an IEP if either side is stuck on the issues of the past and are unwilling to move from their respective positions.
For many parents, there is an overload of technical information presented to them at the IEP meetings. Often IEP team members fail adequately explain the technical information such as the results of a psychoeducational evaluation to the parents. For this reason, when a parents believes that he or she is not sufficiently knowledgeable about the technical aspects of special education, psychoeducational evaluations, or legal requirements of an IEP, it would behoove the parent to bring along an advocate, representation, or in some cases, an attorney to the IEP meeting.
There is a delicate strategy of how to ask pertinent questions of IEP team members at the meeting. What types of questions are more likely to place teachers, administrators, and support staff on their defensive heels and in a defensive posture? On the other hand, even the most innocent questions will cause some educators to become defensive and impede a free exchange of ideas and thoughts about what is the most appropriate educational program for the child. Defensiveness can breed hostility. The ideal is to create a climate in which both sides are open to hearing each other’s thoughts and ideas, and respect each other’s opinions.
To avoid confrontation, one strategy may be to show considerable flexibility and patience in reaching the goal of developing and implementing a written IEP. In this situation, both sides are willing to listen to each other’s opinions and are more receptive to changing their own opinions if persuaded. Accordingly, educators are more likely to respond positively to the parents’ suggestions and comments. This process will lend itself to a more creative and finely tuned document that truly reflects the individual needs of the child. Likewise, it is likely that this positive process and outcome will carry over into the school year so that any problems that may arise will be promptly and professionally addressed and remedied.
There are certainly occasions, however, when this strategy will not work. Sometimes IEP team members have made up their minds and are closed to discussing alternative educational options, strategies, and services for the child. A particular school administrator, special education director, or teacher may become a roadblock for progress toward achieving an acceptable IEP. Again, when it predictable that a parent is likely to encounter either roadblocks in the IEP process, it is often helpful to bring along an advocate, representative, or in some cases, an attorney to the IEP meeting.
For these reasons, it is best practice before the IEP meeting to determine what are your goals, as a parent, for your child and to be prepared to uncover any hidden agendas or mistrust that already exists between you and the school system staff. There is no guarantee that every IEP meeting will be successful for parents and their child. But a honest and extensive discussion concerning the strengths and weaknesses of your positions before coming into the IEP meeting will go a long way to facilitate communication and cooperation at the meeting.
It is best practice for each stakeholder in the IEP process to review all available educational records of the child before the IEP meeting. You can secure educational records from the school system by obtaining an authorization or executing an authorization for your representatives to obtain the child’s educational records.
A. Present Levels of Performance
The purpose of determining the child’s present level of performance, in part, is to find a baseline which can be compared against past, present and future school years. Most school systems will indicate a child’s present level of performance in a narrative form and provide some test scores. Narratives are useful but they do not suffice as baselines for determining where the child is currently functioning in relevant educational areas. Performance can be measured by using grades, grade levels, age equivalent scores and grade equivalent scores, percentages and standard scores. The most statistically significant and objective indicator of a child’s performance is standard scores. Grade equivalent and age equivalent scores may provide a general barometer of where the child is functioning but these scores are not generally valid and reliable indicators to determine a child’s intelligence, ability or functioning level.
The child’s level of performance should measure or define each of the educational domains such as intelligence, achievement, behavior, self-help skills, social skills, psychiatric and psychological diagnoses and disorders, if any, and other ecological information that is pertinent to the child’s performance. There may be a further discussion of a child’s strengths and weaknesses contained in the present levels of performance. See also 34 C.F.R. § 300, App. A, Question 1 (What are the major Part B IEP requirements that govern the involvement and progress of children with disabilities in the general curriculum?).
B. Annual Goals
Annual goals for a child are statements that describe what a child with a disability is expected to achieve within a school year. 34 C.F.R. § 300, App. A., Question 1. The goals should be determined from assessing the child’s present level of performance, evaluations, tests scores, grades, past performance and his or her individualized educational needs. Goals must be objective and measurable. Beware of goals that are canned, boilerplate and generalized such as “Linda will increase reading skills,” or “Carl will improve his behavior.” On the other hand, carefully drafted goals can be useful in improving a child’s educational performance. A positive example of a goal is “Rolando will self-toilet with one verbal prompt.”
C. Short Term Objectives
Short-term objectives should be linked with each of the annual goals. The short-term objectives are more specific. They are used to implement the general purpose of the annual goals. Short-term objectives should be objective and measurable. Appropriate objective criteria and evaluation procedures must be used to determine, at least on an annual basis, whether the short-term objectives are being achieved. Short term objectives can be used to measure what the child will accomplish within specific integrals of time. 34 C.F.R. § 300, App. A, Question 1.
All school systems use numerical criteria such as percentages or number of successful attempts to determine whether a short term objective has been met. For example, Jeffrey will complete a sentence correctly 3 out of 4 times. The percentages or attempts used should be based upon the child’ ability and performance. Some percentages or attempts must be successfully completed at 100%, i.e, Kelley will cross the street successfully 100% of the time. Most short term objectives should be more than 50% or else the child may simply “guess” the answer correctly. The short term objectives, if applicable, should be measured by objective criteria. For instance, Tanya will be able to identify 100 words on the Dolch reading list.
Another practical tip is to write short-term objectives that can be achieved within a relatively short period of time. For example, it is a better practice to require mastery of 85% or better for a discrete objective over a period of a few months than require mastery of 70% of a board objective that will take an entire school year to achieve. If the child achieves the objective within the projected time period, you can always request an IEP team meeting to develop new objectives.
You should usually question short-term objectives that are linked to cues or prompts. For instance, “Jamal will write two consecutive sentences with verbal prompts.” The regular use of clues and prompts may be appropriate for some children with disabilities. However, the overuse of cues and prompts can lead to “cue and prompt dependency.” The ultimate goal of special education is to assist the child to become as independent and self-sufficient as possible. A child who relies heavily upon a teacher for cues and prompts to perform a task may not learn at all, but become too dependent on signals, words, and gestures of a teacher in order to meet a short-term objective. Furthermore, overusing cues and prompts may make it more difficult for a child to generalize his or her knowledge and information from the classroom into a real world situation.
There is no established number of short-term objectives for every goal. The number of short-term objectives will vary depending on the child’s abilities, strengths and weaknesses, and annual goal. The IEP team, nevertheless, must be realistic about what the child can achieve within a specific period. It might be useful to suggest to a parent to write down some proposed annual goals and objectives before the scheduled IEP meeting. This may help focus the parents as well as the school system personnel on what the child is expected to achieve next school year. Also, if your child does not take the Georgia Alternative Assessment (GAA) and partakes in all standardized and other testing with other regular education students, the school does not have to develop short term objectives in the IEP. However, as a practical matter, most schools will develop short term objectives along with the annual goals instead of writing a dozen or more annual goals.
D. Related Services
In general, related services are those services necessary for the child with a disability to benefit from special education instruction. The term “related services” includes transportation, speech pathology and audiology, psychological services, physical and occupational therapy, recreation, counseling services, including rehabilitation counseling, and medical services for diagnostic or evaluation purposes, school health services in schools, and parent counseling and training.
Most school districts will accept an independent evaluation from a certified speech and language, occupational and physical therapist in order to qualify a child with a disability for related services. In the event of a dispute, the school district will conduct its own evaluation of the need for related services for the child.
There are two caveats about related services that may arise during an IEP meeting. First, a school district will provide related services for an eligible child but usually not at the recommended number of hours by an independent therapist. Most children who are eligible for related services will receive, for example, one hour a week of physical, occupational or speech and language therapy. At an IEP meeting, you can expect that most school districts will not budge from providing more than one hour each for any recommended therapy.
The second caveat is that some school districts will claim that the related service is medical. If a service is medical and is not for diagnostic purposes, then it is not covered under the IDEA. In this event, the school district will suggest that the parent find another source, such as Medicaid or private insurance, to pay for the proposed related service. At times, there may be a blurred line between a medically and nonmedical service. When in doubt, the answer may be found by reviewing a few cases in this area that explain the type of medical services that are not considered related services under the IDEA.
In Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 890, 104 S.Ct. 3371, 3375-76, 82 L.Ed.2d 664 (1984), the Court established the following test to determine if the related service is medical. The first inquiry is whether the service is required to assist a child with a disability to benefit from education. The second inquiry is if the service meets this definition, then it must be determined if the service is an excluded related service that is beyond diagnosis and evaluation. See also, Cedar Rapids Community Sch. Dist. v. Garrett F., 526 U.S. 66 (1998)(student’s services are not provided by a physician, but rather by a nurse, and are not medical services); Skelley v. Brookfield LaGrange Park Sch. Dist. 95, 968 F. Supp. 385, 395 (N.D. Ill. 1997)(student’s tracheotomy suctioning is not medical service and can be performed by a properly trained individual). But see Neely v. Rutherford County Schools, 68 F.3d 965 (6th Cir. 1995)(school system not required to provide a full time LPN because of amount of time needed to be devoted to student); Detsel v. Bd. of Educ., 637 F.Supp. 1022 (N.D.N.Y. 1986), aff’d, 820 F.2d 587 (2d Cir.), cert. denied, 484 U.S. 989 (1987)(school system not required to provide constant nursing services to student because of time-consuming requirement and obligation to other students).
E. Least Restrictive Environment
The terms of mainstreaming, least restrictive environment, and inclusion for a child with a disability under the IDEA do not mean the same thing. Although each of these terms have different meanings, they all relate to the issue of educational placement. The issue of educational placement for a child with a disability, is, however, one of the most debated issues that are discussed at an IEP meeting.
Some parents want their child to remain in regular education classes the entire school day. Some parents, on the other hand, want their child to remain in self-contained special education classes the entire school day. There are educators that will make recommendations for a child with a minor physical disability, no behavior problems, and age-appropriate social skills, to be placed in a self-contained classroom with very little or no social interaction with nondisabled peers. Somewhere in between these two examples lies the real battleground where inclusion differences are fought by parents and school districts.
Parents may face a barrage of excuses from the school district why a child cannot be included at all with other age-appropriate peers or cannot be included as many hours a day as the parents request. These excuses may include the child’s aberrant behaviors, the age of the child, lack of age appropriate social skills, lack of academic ability, lack of a continuum of appropriate placements, cost of hiring a paraprofessional, number of students in regular education classroom, limited sites for inclusion, lack of specialized staff, transportation, the benefits of small group settings and instruction, and that it is not in the best interest of the child to be educated in the least restrictive environment.
Suffice it to say that there is no magic incantation for placement that will work for all children. Placement, like educational programming, must be individualized. But one rule of thumb should be noted: it is more educationally beneficial for children (K-6) to be mainstreamed than adolescents (grades 10-12). Children with disabilities (K-6) readily need the exposure to nondisabled peers for socialization and learning. Thus, there should be a greater emphasis on including a younger child with a disability in as many regular education classes as reasonably possible, provided that the child will given appropriate education instruction and services in the regular classroom.
Most children with disabilities will fail in a regular education classroom unless there are adequate supports and services available for that child in that setting. A child with an attention deficit order will experience significant frustration and anxiety if there is no teacher or paraprofessional in the regular education classroom who can periodically redirect that child’s attention and concentration to the work at hand. A child with a learning disability will be lost in a regular education classroom without appropriate modifications to the child’s curriculum that are specifically tailored to meet his or her unique individual educational needs. The ability to secure appropriate supplemental aides and services in the regular classroom for a child with a disability may be your greatest challenge in advocating for the least restrictive environment for the child.
Finally, there is legal guidance for determining the least restrictive environment for a child with a disability. In this federal circuit(Alabama, Georgia and Florida),a court will (1) compare the benefits a child with a disability will receive in the regular classroom with supplemental aides and services with the benefits received in more restrictive classroom setting; (2) consider the effect the presence of a child with disability will have on other children in the regular education classroom; and (3) consider the cost of supplemental aides and services necessary to achieve a satisfactory education in the regular classroom. Greer v. Rome City Sch. Dist., 950 F.2d 688, 697 (11th Cir. 1991), opinion withdrawn, 956 F.2d 1025 (11th Cir. 1992), opinion reinstated, in part, 967 F.2d 470 (11th Cir.), reh. denied, 974 F.2d 173 (11th Cir. 1992).
Finally, you may want to use the No Child Left Behind Act and Georgia’s use of the CRCTs as leverage for placing your child in the least restrictive environment. The No Child Left Behind Act requires that all schools and school systems “Annual Yearly Progress” for all students. Georgia uses the CRCTs as a standard to show Annual Yearly Progress. The CRCT will be phased out in the 204-2015 school year and another criterion referenced test will be used. For now, CRCTs are used for 3, 5, and 8 grades to determine eligibility for promotion. Georgia currently allows only 1% of all special education students to opt-out of the criterion referenced tests. The best way for a special education student to pass these tests is to be placed in the regular education curriculum. This standard encourages schools to place more students with disabilities in the general curriculum so that they can pass the CRCTs and demonstrate that these students are making Annual Yearly Progress.
F. Extended School Year
The debate over extended school year services seems almost as arduous and protracted as the history of this litigation in Georgia. Georgia Assoc. of Retarded Citizens v. McDaniel, 511 F. Supp. 1263 (N.D. Ga. 1981), aff’d 716 F.2d 1565 (11th Cir. 1983), vacated and remanded on other grounds, 468 U.S. 1213 (1984), modified, 740 F.2d 902 (11th Cir.), cert. denied, 469 U.S. 1228 (1985). Now more than seventeen years since the district court supposedly settled the controversy about extended school year services (EYS), there are still many parents in Georgia who complain that their school district has failed to consider their child for EYS. Why is this happening?
One possible explanation is that school districts often do not have EYS programs for eligible children. Rather than admit that there are no programs available for eligible children with disabilities, the school districts will simply find that the child does not meet the criteria for EYS, or that there are insufficient resources in the community to provide such services. For instance, school districts will use the regression-recoupment standard to disqualify a child with a disability from EYS. How this works is that unless parents can prove that their child will severely regress during the summer months and then prove their child will take a prolonged period to recoup the educational benefits of the prior school year, the child will be found ineligible for EYS. Many parents do not have a clue how to prove regression-recoupment for their child. School districts rarely collect data to support the parent’s argument that their child will severely regress during the summer and then have difficulty recouping their educational benefits from the prior school year.
Another possible explanation that many eligible children with disabilities do not receive EYS programming is bureaucratic incompetence. Many school districts do not have a written policy for determining whether a child is eligible for EYS. Many school districts wait until the end of May or the beginning of June before convening an IEP meeting, and then inform the parents their child does not qualify for EYS. At this juncture, it is too late to challenge the school district’s determination. The school districts will also claim that the parents must show that their child will regress this summer. How are parents suppose to prove regression if they have to wait until after the summer before their child has actually experienced regression? In other words, the child has to show harm before the school is willing to consider EYS. But the next school year brings the same catch-22 for parents because there must be a new determination that their child will suffer regression and have difficulty recouping educational benefits.
The school districts that do offer EYS to parents will propose that the child attend a summer camp for children with disabilities or attend some other abbreviated summer program that is more attuned to the educational needs of regular education students. Parents are rarely offered an EYS program that is individually tailored to meet the child’s unique educational needs under an IEP. For many parents, to secure a four week EYS program for 2-3 hours a day is quite an accomplishment. Yet for most parents, it almost seems pointless to even request EYS because of the procedural and substantive barriers placed before them.
The failure of many school district to provide an adequate EYS program for children with disabilities continues to pose an almost insuperable obstacle for parents at IEP meetings. It is important, nevertheless, to require the school district to consider the child with a disability for an EYS program, if appropriate, and take steps necessary to secure this right if it is denied. Children and adolescents whose disabilities are more severe are usually better candidates for EYS programs than children whose disabilities are mild. Thus, a child with severe mental retardation, or specific learning disability, or autism, might be a better case to argue for EYS programming.
Remember that the IDEA provides guidance for IEP teams to determine eligibility for EYS. A school system cannot limit EYS to particular categories of disability or unilaterally limit the type, amount, or duration of those services.
G. Individualized Transition Plan (ITP)
One of the most overlooked areas of an IEP is transition planning and services. For a child with a disability who reaches age (16), the development of an appropriate individualized transition plan is critical. This is why the school district must include a statement of needed transition services in the IEP beginning no later than age 16, or younger when deemed appropriate.
The IDEA defines “transition services” as a coordinated set of activities for a student with a disability that –
(A) are designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supportive employment), continuing and adult education, adult services, independent living, or community participation;
(B) are based upon the individual student’s needs, taking into account the student’s preferences and interests; and
(C) include instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.
20 U.S.C. § 1401(34).
Just like an IEP, there is no standard format for an individualized transition plan (ITP). An ITP must, however, contain a coordinated set of activities, and an outcome-oriented process that promotes movement from school to postschool activities. The failure to comply with this requirement will result in violation of the IDEA. See Yankton School Dist. v. Schramm, 900 F. Supp. 1182 (D.S.D. 1995), aff’d as mod. 93 F.3d 1369 (8th Cir. 1996).
In determining transition services for a child with a disability, it is important for the parents and child to have realistic and obtainable postschool objectives. One means of accomplishing this objective is to assess carefully the child’s individualized transition needs. A transition assessment, formal and informal assessment, functional assessment, portfolio assessment and rehabilitative assessment should all be considered in assessing aild’s individualized transition needs.
Transition goals may include employment, living arrangements, recreation and community living skills, and transportation resources. For each goal, there should be projected date for achievement and whether it should be completed before or after graduation. There should also be a listing of all private and public agencies that will work toward these goals and the person(s) responsible for ensuring that the goal is achieved.
As the child with a disability nears graduation, adult service agencies should increase involvement with the student. The high school should begin transferring pertinent information to the responsible agencies. In the final year of the child’s eligibility for special education, there should be final plans for transition from school to work, post-secondary education, or other obtainable goals for the child.
Unless the child with a disability has an adequate and appropriate transition plan, there is a substantial probability that the child will become unemployable and more dependent upon care givers and family members after leaving high school. A smooth transition from school to post-school activities, however, will help ensure greater independence for the child in work and community living.
H. Implementation of the IEP
It is satisfying to develop an IEP that is agreed upon by the parents and school district. Yet, this is not the end of the process. An IEP must be reviewed at least annually, but there may be bumps and hitches in the road that occur periodically during the school year. Most of these problems can be resolved relatively quickly and without much fanfare.
It is recommended that parents are regularly informed of their child’s educational progress. This can occur weekly, monthly or quarterly. Parents can meet with the child’s teachers periodically to discuss any unusual problems or just to receive an update of how well their child is doing in school. Periodic updates will also assist the parent in determining whether the child is achieving the short-term objectives on the IEP. If there are serious problems relating to the child’s educational progress, a parent can request that the school district convene an IEP meeting to discuss and resolve those problems.
evaluation, hospitalization, or a myriad of other possibilities. Monitoring and implementation of the IEP, therefore, is a very important aspect of ensuring that the child receives a free appropriate public education.
CONCLUSION
Parents that are well informed and knowledgeable about their child’s disability and individualized needs will be more likely to achieve appropriate special service for their child at an IEP meeting. At the IEP meeting, the road map for the child’s future is developed. This map is drawn by parents, educators, professionals, administrators, and other stakeholders in the process. This map should mirror the individualized educational needs of the child with a disability, rather than the boilerplate plans of school staff. The creation of an IEP each year for a child with a disability is seemingly an endless task. The reward, nevertheless, is the feeling of gratitude and hope that the quality of a child’s life will be vastly improved as a result of your advocacy efforts.
