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

 

#6 – Individualized Education Program (“IEP”) and Placement Decisions

 

This topic brief discusses the procedures for developing Individualized Education Programs (“IEPs”) under the Individuals with Disabilities Education Act (“IDEA”), and for making placement decisions under IDEA and Section 504 of the Rehabilitation Act of 1973, with a focus on parent participation rights.  For a discussion of legal requirements regarding the content of IEPs, see topic brief #5,“The Content of IEPs.”

 

 

Introduction

            The Individuals with Disabilities Education Act (“IDEA”) sets forth extensive procedures  to be followed in determining the special education and related services that an eligible child will receive.  These include procedures for developing Individualized Education Programs (“IEPs”).  The U.S. Supreme Court has ruled that compliance with these procedures, which stress parent involvement, is an essential part of the free appropriate public education to which IDEA entitles all eligible children.1

 

IEP Development -- Requirements for All Students

            Under IDEA, the IEP must be developed at a meeting, by the IEP team.2  The team is composed of the following people:

•                     the child’s parents

•                     at least one of the child’s regular education teachers (if the child is or may be participating in the regular education environment)

•                     at least one of the child’s special education teachers or providers

•                     a representative of the school system who is knowledgeable about the general curriculum, is knowledgeable about the school system’s resources, and is qualified to provide, or supervise the provision of, specially designed instruction to meet the needs of children with disabilities

 

<                    The school system representative must have the authority to commit the school system to provide whatever services are included in the IEP, in order to ensure  that the IEP will be implemented, and not be "vetoed" by school administrators or other school officials.3

 

•                     an individual who is qualified to interpret the instructional implications of evaluation results

•                     other individuals who have knowledge or special expertise regarding the child, at the discretion of the parent or school system

 

<                    The determination of whether an individual has “knowledge or special expertise regarding the child” is made by the party inviting her, i.e. the parent or school system.4

 

•                     whenever appropriate, the student.5

            It is impermissible for school personnel to present a completed IEP to parents for their approval at the meeting.6  While school personnel may bring proposed recommendations to the meeting, as may parents, the IEP must be developed at the meeting, with parents afforded the opportunity to participate as full-fledged collaborators in designing their child's education.7  Parents must then be given a copy of the IEP, at no cost.8

            School systems are responsible for initiating IEP meetings and ensuring that parents are given a meaningful opportunity to attend and participate.9  Towards this end, school districts must schedule the meeting at a mutually convenient time and place; notify parents of the meeting far enough in advance to ensure that they will have an opportunity to attend; and include in the notice of the meeting the purpose, time and location and a list of those who will attend.10  The notice must also inform parents of their right to bring to the meeting others with knowledge or special expertise about the child,11 and be provided in the parent’s native language or other mode of communication.12

            If neither parent can attend, the school district must use other methods to ensure that parents participate in the development of the IEP, including individual or conference telephone calls.13  A meeting can be held without a parent only if school personnel cannot convince the parents that they should attend.14  Even then, the school system must first try to arrange a mutually agreeable time and place and must keep records of its efforts to secure the parents’ attendance.15  These include detailed records of telephone calls made or attempted, and the results; copies of correspondence sent to the parents, and of any responses received; and detailed records of visits made to the home or parent’s workplace, and the results.16

            To ensure meaningful participation by parents, schools must arrange for translators and sign language interpreters for parents who need them.17  The U.S. Department of Education/Office of Special Education Programs has opined that IDEA allows states or school systems to have policies prohibiting or limiting tape recording, but that any such policy must include exceptions when necessary to ensure that the parent understands the IEP or IEP process, or to implement other parental rights guaranteed by IDEA.18  In addition, in at least two cases courts have ruled that parents have the right to tape record IEP meetings.19

 

IEP Development – Additional Requirements Regarding Transition Planning and Services

            Recognizing the unique issues and concerns at stake in transition planning, IDEA requires additional measures whenever transition needs or services are to be discussed.

Parent notification:  Whenever transition needs or services are to be discussed, the written notice ordinarily provided parents prior to an IEP meeting must also explain that these issues are on the agenda.20  The notice must also inform the parent that the school will invite the student to attend, and identify any other agency that will be invited to send a representative to the meeting.21  Receipt of such notice gives parents an opportunity to think about future goals, plans and services for their child, discuss them with him or her, and ask that additional or alternate agencies be included in the meeting.

Student participation: Schools must invite the student to attend any meeting at which transition services are to be discussed, and to participate in the discussion of his or her future goals and plans.22  This mandate, reflecting the importance of self-determination and empowerment, is a strong one: if the student does not attend, the school must take other steps to ensure that the student's preferences and interests are considered.23

Agency participation:  In light of the broad scope of required transition services under IDEA, the Act anticipates that outside agencies sometimes will participate with schools in providing them.24  Towards this end, the law requires that meetings to discuss transition include a representative of any other agency that is likely to be responsible for providing or paying for a transition service.25  Such agencies might include those dealing with vocational rehabilitation; employment and training; housing; specialized services for youth and adults with developmental disabilities, mental health needs, or other disabilities; and other providers relevant to the individual needs and preferences of the student.

            If an agency invited to send a representative does not do so, the school system must take other steps to obtain the participation of that agency in planning transition services.26  Once such participation is secured, the student's IEP must reflect the responsibility of each participating agency for providing particular transition services, including the school's.27  If an outside participating agency fails to provide agreed upon services, the school must act as soon as possible to hold a new meeting and develop alternative strategies for meeting the student's transition needs.28

 

Process for Placement Decisions

            Once a child's needs have been identified and appropriate services and goals developed through the IEP process, a placement capable of providing those services and achieving those goals and objectives can be selected.  Placement decisions must be individualized for each child, based upon her unique needs and abilities.  Placement decisions may not be based upon category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience.29

             Placements must be determined at least annually, must be consistent with IDEA’s presumption in favor of placement in regular education classes with appropriate supplementary aids and services, and must be based upon the IEP.30 The latter requirement means that the IEP must be developed before a placement is chosen.31  Thus it is not permissible for a school system to write an IEP to fit a placement it has already selected.

            All placements must be chosen by a group of persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.32  Parents must be part of any group that makes placement decisions.33  In order to ensure that parents have a meaningful opportunity to participate in this group, schools must notify parents of any meeting far enough in advance to ensure that they will have an opportunity to attend; schedule the meeting at a mutually agreed on time and place; notify them of the purpose, time and location of the meeting, and who will be attending; and inform them of their right to bring others with knowledge or expertise about their child with them to the meeting.34  If neither parent can participate in a meeting at which a decision relating to placement is to be made, the school system must find other ways to ensure their participation, such as individual or conference telephone calls.35  The school system must also make reasonable efforts to ensure that the parents can understand and participate in group discussions, including arranging for a translator or sign language interpreter.36  A placement decision may be made without parents’ involvement only if school personnel try, and fail, to involve them.  In that case, the school system must keep a record of its efforts, including detailed records of telephone calls made or attempted, and the results; copies of correspondence sent to the parents, and of any responses received; and detailed records of visits made to the home or parent’s workplace, and the results.37

 

Review and Revision

Periodic or annual reviews:    School districts must periodically initiate and conduct meetings to review and, if appropriate, revise a child's IEP.38  In addition, parents have the right to request an IEP meeting at any time.39  IEP review meetings should be held as often as necessary to address the child's needs.40  At least one review meeting must be held each year.41  The above-described requirements regarding IEP team members, meeting participants, meeting notice and parent participation rights apply to IEP review meetings as well.42

            Based upon its review, the IEP team must revise the IEP as needed to address:

 

•                     any lack of expected progress in the regular curriculum;

•                     any lack of expected progress towards the annual  goals in the IEP;      

•                     new evaluation results, including information provided by parents;         

•                     the student's anticipated needs; or        

•                     other matters.43

 

Revisions: Once an IEP has been developed and agreed upon, school personnel may not unilaterally change it.  In order to revise an IEP or change a placement, school systems must follow the meeting and team process described above.44  They must also give parents prior written notice of the proposed change.45  The IDEA regulations set out detailed requirements governing the content of this notice, which also must be given any time a school system proposes or refuses to initiate or change the identification, evaluation, or educational placement of a child or the provision of a free appropriate public education to a child.46*

            Parents may request an IEP or placement change, or a meeting to consider making a change, at any time.  When a school system refuses to make a change sought by a parent, it must provide the written notice described above.  Parents may challenge any refusal to modify an IEP or change a placement by invoking IDEA’s dispute resolution procedures, which include requesting a due process hearing, filing a complaint with the state education agency, seeking mediation and bringing a lawsuit.47

 

NOTES

 

 


          * For a discussion of these notice requirements, see Topic Brief #7 in this series, “Notice and Consent.”  The notice requirements themselves may be found at 20 U.S.C. §1415(c).


1. See Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07, 102 S. Ct. 3034, 3050-51 (1982).

2. 20 U.S.C. §1414(d); 34 C.F.R. §§300.343(a), 300.344.

3. 34 C.F.R. part 300, App. A, para. 22.

4. 34 C.F.R. §300.344(c).

5. 20 U.S.C. §1414(d)(1)(B); 34 C.F.R. §§300.343, 300.344.

6. 34 C.F.R. §300.340(a) (defining "IEP," in part, as a document developed in a meeting by certain school personnel and parents) (emphasis added); 34 C.F.R. part 300, App. A, para. 32; Inquiry of Hellmuth, 16 EHLR [Education for the Handicapped Law Report] 503 (OSEP 1/30/90).

7. See 34 C.F.R. part 300, App. A, para. 32; V.W. v. Favolise, 131 F.R.D. 654, 659 (D. Conn. 1990).

8. 34 C.F.R. §300.345(f).

9. 34 C.F.R. §§300.343, 300.345.

10. 34 C.F.R. §300.345(a), (b).

11. 34 C.F.R. §300.345(b)(iii).

12. 34 C.F.R. §300.503(c).

13. 34 C.F.R. §300.345(c).

14. 34 C.F.R. §300.345(d).

15. Id.

16. Id.

17. 34 C.F.R. §300.345(e).

18. See 34 C.F.R.  Part 300, App. A, para. 21.

19. E.H. v. Tirozzi, 735 F. Supp. 53 (D. Conn. 1990); V.W. v. Favolise, 131 F.R.D. 654 (D. Conn. 1990).

20. 34 C.F.R. §300.345(b)(2), (3).

21. Id.

22. 34 C.F.R. §300.344(b)(1).

23. 34 C.F.R. §300.344(b)(2).

24. See 20 U.S.C. §1414(d)(1)(A)(vii)(II) (regarding interagency linkages).

25. 34 C.F.R. §300.344(b)(3)(i).

26. 34 C.F.R. §300.344(b)(3)(ii).

27. 20 U.S.C. §1414(d)(1)(A)(vii)(II); 34 C.F.R. §300.347(b)(2).

28. 34 C.F.R. §300.348(a).

29.  34 C.F.R. Part 300, Appendix A, para. 1.

30.  34 C.F.R. §300.552.

31.  34 C.F.R. part 300, App. A, para. 14;  Spielberg v. Henrico County Public Schools, 853 F.2d 256, 259 (4th Cir. 1988).  C.f. Todd D., supra, 933 F.2d at 1580-81 (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 capable of implementing IEP as written).

32. 34 C.F.R. §300.552(a).  The regulations implementing Section 504 of the Rehabilitation Act of 1973 also include this requirement.  See 34 C.F.R. §104.35(c)(3).

33. 20 U.S.C. §1414(f); 34 C.F.R. §300.501(c).

34. 34 C.F.R. §300.501(c)(2) (incorporating by reference  §300.345(a) through (b)(1)).

35. 34 C.F.R. §300.501(c)(3).

36. 34 C.F.R. §300.501(c)(5).

37. 34 C.F.R. §300.501(c)(4) (incorporating by reference §300.345(d)).

38. 20 U.S.C. §1414(d)(4)(A); 34 C.F.R. §300.343(c).

39. 34 C.F.R. part 300, App. A, para. 20.

40. Id.

41. 20 U.S.C. §1414(a)(5); 34 C.F.R. §300.343(d).

42. 34 C.F.R. §300.344(a).

43.  20 U.S.C. §1414(d)(4)(A); 34 C.F.R. §300.343(c).

44. 34 C.F.R. §300.343(a); 34 C.F.R. part 300, App. A, para. 20.

45. 20 U.S.C. §1415(b)(3); 34 C.F.R. §300.503.

46. 34 C.F.R. §300.504(a).

47. See 20 U.S.C. §1415(b)(6), (e), (f), (g), (i)(2); 34 C.F.R. §§300.660 - 300.662.