Quality Education for Children with Disabilities: Topic Briefs for Parents and Their Advocates

 

#5 – The Content of Individualized Education Programs (“IEPs”)

 

This topic brief discusses legal requirements concerning the content of the Individualized Education Programs required by the Individuals with Disabilities Education Act, including special options for three through five year olds.  For a discussion of the procedures schools must follow in developing IEPs, see Topic Brief #6, entitled “IEP and Placement Decisions.”

 

The Requirement of an IEP in General

            Under the Individuals with Disabilities Education Act (“IDEA”), the Individualized Education Program (“IEP”) serves as a blueprint for the special education and related services an eligible child is to receive.  An IEP must be developed for each eligible child before special education and related services begin.1

            A meeting must be held to develop a child’s first  IEP within 30 days of a decision that he or she is eligible for services under IDEA.2  Thereafter, an IEP must be in effect at the beginning of every school year.3  Failure to develop an IEP — as well as failure to follow the specific procedures set out in IDEA and the regulations for doing so — is a failure to provide a free appropriate public education.4

            Once an IEP has been developed, the school system must provide the specialized instruction and services it contains.  The IEP must be implemented as soon as possible after the IEP meeting.5  It must be accessible to all teachers and services providers who are responsible for implementing it, including the child’s regular education teachers.6  In addition, school personnel must inform each teacher and service provider of their specific responsibilities for implementing the IEP, and of the modifications, accommodations and supports included in it.7

 

IEP Content -- Requirements for All Students

            In developing the IEP, the team must consider the child’s strengths and the parents’ concerns for enhancing his or her education; the results of the initial or most recent evaluation of


the child; and the child’s performance on any state- or district-wide assessments.8  An IEP must always include the following:

•                     A statement of the child’s current level of educational performance, including how disability affects his or her progress in the general curriculum;

 

<                    This statement should describe the effect of the child's disability on both academic  and non-academic (e.g. activities of daily living, mobility, emotional, behavioral) aspects of his or her performance.  It should be written in objective, measurable terms, drawing upon evaluation results.         


 

•                     measurable annual goals, with either benchmarks or short-term objectives, addressing progress in the general curriculum and all other educational needs resulting from the child’s disability;

 

<                    Annual goals describe what the student can reasonably be expected to accomplish over the year; short-term objectives are measurable, intermediate steps towards the corresponding annual goal; and benchmarks describe the amount of progress the child is expected to have made by certain points in the year.8  Goals, objectives and benchmarks provide a basis for determining how well a child is progressing, what he or she is learning, whether the IEP needs to be revised and whether he or she is receiving an appropriate education.9  The development of specific, measurable, well-defined, meaningful goals and short-term objectives or benchmarks is crucial.

<                    All areas of need revealed by the statement of present educational performance should have corresponding annual goals and benchmarks or short-term objectives.

 

•                     an explanation of how the child’s progress towards the annual goals will be measured, and of how the child’s parents will be regularly informed of his or her progress (including being informed of whether that progress is sufficient to achieve the goals by the end of the year);

•                     a statement of the special education, related services and supplementary aids and services to be provided to the child (or on the child’s behalf), and the program modifications or supports for school personnel to be provided;

 

<                    These are all to be designed so as to permit the child to attain the annual goals, progress in the general curriculum, participate in extracurricular and other nonacademic activities, and be educated and participate with other children with and without disabilities.10

<                    an explanation of the extent, if any, to which the child will not be educated in regular education classes;

 

•                     a statement of any individual modifications the child will need in the administration of state- or district-wide assessments of student achievement;

 

<                    If the IEP team determines that a child will not participate in a particular state- or district-wide assessment, or part of an assessment, the IEP must also include a statement explaining why the particular assessment is not appropriate for the student, and how he or she will be assessed instead.11


 

•                     the projected date for the beginning of the services, modifications, etc. described in the IEP, and the anticipated frequency, location and duration of each.12

The IEP must contain a statement of all services needed by the child, not just those which are available within the school system.13 The school system then must arrange to provide all of the services included in the IEP.14

            “Special factors”:   Because of implementation problems in the past, the IDEA Amendments of 1997 expressly require IEP teams to consider and address five  “special factors,” going to particular areas of potential educational need, when designing IEPs.  These “special factors” are as follows:

•                     if a child’s behavior impedes his or her learning or the learning of others, the team must consider positive behavioral interventions, strategies and supports to address it;

•                     if a child has limited English proficiency, the team must consider the child’s language needs as they relate to the IEP;

•                     if a child is visually impaired, the team must provide for instruction in Braille and use of Braille unless the team, based upon an evaluation of the child’s skills and current and future needs, determines that this would not be appropriate;

•                     the IEP team must consider the communication needs of all children, and in the case of a child with a hearing impairment, take into account his or her opportunities for direct communication with peers and professionals in the child’s language and communication mode and academic level, including opportunities for direct instruction; and

•                     for all children, the team must consider whether the child requires assistive technology devices and services.15

            Extended School Year Services: The IEP should also indicate whether the child needs “extended school year” (ESY) services, meaning services beyond the usual length of the school year in the school system involved.  ESY services must be provided if necessary in order for a child to receive FAPE.16  For example, a child might need ESY services if  he will make insufficient progress in the general curriculum or other areas of educational need (academic or non-academic) during the standard school year, or if he or she is likely to regress over school breaks and have difficulty recovering lost skills.17  ESY services may also be required if, due to the nature and effect of the disability,  a child is at a critical developmental phase for learning certain skills.18

            Whether a student will receive ESY services must be based upon individualized consideration of his or her needs.  Schools may not limit ESY services to children with only particular kinds of disabilities, nor may they place general limits on the type, amount or duration of services to be offered.19

 

IEP Content: Additional Requirements for Older Students

            Transition planning and services:  From age 14 on, the IEP must include a statement of the student's “transition service needs,” focused on his or her course of study.20 A student’s planned course of study might include, for example, participation in advanced placement courses or a school-to-work or vocational education program.21  By age 16, and earlier if appropriate in light of the student's needs, the IEP must include the full range of needed “transition services.”22  Under IDEA, "transition services" means a coordinated set of activities for a student that promotes movement from school to post-school activities, including:

•                     Employment,

•                     Post-secondary education,

•                     Vocational training,

•                     Continuing and adult education,

•                     Adult services,

•                     Independent living, or

•                     Community participation.23

Transition services must be based upon the individual student's preferences, interests and needs, and include:

•                     Instruction,

•                     Related services,

•                     Community experiences,

•                     Development of employment and other post-school adult living objectives, and

•                     Acquisition of daily living skills and functional vocational evaluation when appropriate.24

          The school system is responsible for ensuring that each youth receives all needed transition services.  However,  particular services might be provided by other agencies, such as a state’s vocational rehabilitation agency.  In that case, the IEP must specify the role such outside entities will play.25 If an outside agency fails to provide the transition services for which it is responsible in the IEP, the school system must reconvene the IEP team and devise alternative ways to meet the student’s transition objectives.26

          Transfer of Rights:  Changes made to IDEA in 1997 address the transfer of IDEA rights regarding notice, consent, participation in educational planning, and dispute resolution from parent to child when the child reaches the age of majority under state law.27  Beginning at least one year before the student reaches the age of majority, the IEP must include a statement that the he or she has been informed of the IDEA rights that will transfer  when he or she becomes an adult.28

 

IEP Content -- Options for Three through Five Year Olds

          Under certain circumstances, school systems may provide three through five year olds with an "Individualized Family Service Plan" ("IFSP") instead of an IEP.29  Ordinarily, IFSPs are provided only for infants and toddlers (aged birth through 2) participating in early intervention services under Part C of IDEA.

          Substituting an IFSP for an IEP must be consistent with state policy, and must be agreed to by the parents.30  In addition, a school system contemplating providing an IFSP instead of an IEP must give the parents a detailed explanation of the differences between an IFSP and an IEP, and obtain informed written consent.31  For example, parents should be made aware that unlike an IEP, an IFSP need not include an early education component provided by a qualified teacher of preschool children.

          IFSPs for 3 through 5 year olds must be developed using the same procedures required for developing IEPs (see discussion below).32  IFSPs for these older children must meet the content requirements governing IFSPs under the IDEA early intervention program for infants and toddlers with disabilities.  These include, among other things,

 

•                  a statement of the child's current levels of physical, cognitive, communication, social or emotional, and adaptive development;

•                  a statement of the family's resources, priorities and concerns regarding enhancement of the child's development;

•                  a statement of the specific early intervention services needed to meet the unique needs of the child and family (including the frequency, intensity and method of service delivery);

•                  a description of the natural environments in which services will be appropriately provided;

•                  a statement of the major outcomes expected to be achieved for the child and the family, including the methods to be used for assessing progress and determining whether services or goals need to be revised;

•                  the starting dates and expected duration of each service; and

•                  the steps to be taken to transition the child to preschool or other appropriate services.33

 

NOTES

 

 


1. 34 C.F.R. §300.342(b)(1)(i); 34 C.F.R. part 300, App. A, para. 14.

2. 34 C.F.R. §300.343(b).

3. 20 U.S.C. §1414(d)(2)(A); 34 C.F.R. §300.342(a).

4. 20 U.S.C. §§1401(8)(D), 1412(a)(4); 34 C.F.R. §§300.13(d), 300.535(b); Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-207, 102 S.Ct. 3034, 3035 (1982).

5. 34 C.F.R. §300.342(b).

6. Id.

7. Id.

8. 34 C.F.R. §300.346(a)(1).

8. See 34 C.F.R. part 300, App. A, para. 1.

9. See id.

10. 20 U.S.C. §1414(d)(1)(A)(iii); 34 C.F.R. §300.347(a)(3).

11. 20 U.S.C. §1414(d)(1)(A)(v)(II); 34 C.F.R. §300.347(5)(ii).

12. 20 U.S.C. §1414(d)(1)(A); 34 C.F.R. §300.347.  Note, however, that the IEP team of a child convicted as an adult under state law and incarcerated in an adult prison may modify the child’s IEP or placement notwithstanding the requirements of 20 U.S.C. §1414(d)(1)(A) and 34 C.F.R. §300.47  if the State has demonstrated a “bona fide security or compelling penological interest that cannot otherwise be accommodated.”  20 U.S.C. §1414(d)(6)(B); 34 C.F.R. §300.311(c).

13. See, e.g., Todd D. v. Andrews, 933 F.2d 1576, 1580-81 (11th Cir. 1991) (district court erred by ordering alteration of IEP goals so that IEP could be implemented at existing placement, rather than ordering school system to provide placement that could implement IEP as written).

14. 20 U.S.C. §1401(8)(D); 34 C.F.R. §300.350(a)(1);  34 C.F.R. part 300, Appendix A, paragraph 31.

15. 20 U.S.C. §1414(d)(3)(B); 34 C.F.R. §300.346(a)(2), (c).

16. 34 C.F.R. §300.309(a).

17. See, e.g., Johnson v. Independent School District No. 4, 921 F.2d 1022 (10th Cir. 1990), cert. denied, 500 U.S. 905, 111 S.Ct. 1685 (1991); Cordrey v. Eukert, 917 F.2d 1460 (6th Cir. 1990); Battle v. Commonwealth of Pennsylvania, 629 F.2d 269 (3rd. Cir. 1980), cert. denied, 452 U.S. 968 (1981); Reusch v. Fountain, 872 F. Supp. 1421 (D. Md. 1994); Lawyer v. Chesterfield Co. School Bd., 19 Individuals with Disabilities Education Law Report [IDELR] 904, 907 (E.D. Va. 1993).

18. Lawyer, supra.

19. 34 C.F.R. §300.309(a)(3).

20. 20 U.S.C. §1414(d)(1)(A)(vii)(I); 34 C.F.R. §300.347(b)(1).  The mandate to begin transition planning for all youth with disabilities by no later than age 14 was added to IDEA in 1997.  Previously, the law allowed schools to delay transition planning for many students until age 16.  In making this change, Congress explained that the purpose of the new provision was to supplement the existing requirements for 16-year olds, by focusing attention at an earlier age on how the student's educational program can be planned to make for a successful transition to his or her goals for life after high school.  See H. R.Report 105-95, 105th Cong., 1st Sess., at 101 (1997).

21. Two federal laws have mandated or encouraged states and school systems to create high quality vocational education and school-to-work programs for all students: the Carl D. Perkins Vocational and Applied Technology Education Act, 20 U.S.C. §2301 et seq., and the School-to-Work Opportunities Act, 20 U.S.C. §6101 et seq.  For a discussion of these laws as they affect students with disabilities, see E. L. Ordover and L. T. Annexstein, Ensuring Access, Equity and Quality for Students with Disabilities in School-to-Work Systems (1999), available from the Center for Law and Education, 1875 Connecticut Ave., N.W., Suite 510, Washington, D.C.  20009 (telephone: 202/986-3000; fax: 202/986-6648).

22. 20 U.S.C. §1414(d)(1)(A)(vii)(II); 34 C.F.R. §300.347(b)(2).  Note, however, that these requirements do not apply to youth with disabilities who are convicted as adults under state law and incarcerated in an adult prison, if their eligibility for IDEA services will end, because of age, prior to their release from prison.   20 U.S.C. §1414(d)(6)(A)(ii); 34 C.F.R. §300.311(b)(2).  The determination of whether IDEA eligibility will end (because of age) prior to release from prison must be based  upon consideration of the youth’s sentence and eligibility for early release.  34 C.F.R. §300.311(b)(2).

23. 20 U.S.C. §1401(30); 34 C.F.R. §300.29.

24. 20 U.S.C. §1401(30); 34 C.F.R. §300.29.          

25 20 U.S.C. §1414(d)(1)(A)(vii)(II); 34 C.F.R. §300.347(b)(2).

26. 20 U.S.C. §1414(d)(1)(A)(vii)(II); 34 C.F.R. §300.348(a).

27 See 20 U.S.C. §1415(m); 34 C.F.R. §300.517.

28 20 U.S.C. §1414(d)(1)(A)(vii)(III); 34 C.F.R. §300.347(c).

29 20 U.S.C. §1414(d)(2)(B); 34 C.F.R. §300.342(c) (1999).

30  Id.

31 34 C.F.R. §300.342(c)(2) (1999).

32 34 C.F.R. §300.342(c)(1) (1999).

33 20 U.S.C. §1436(d).  For the range of early intervention services required to be made available, see 20 U.S.C. §1432(4) and the early intervention regulations at 34 C.F.R. part 303.