Slippery Slope! Tips to Avoid IEP Missteps

1. Slippery Slope! Tips to Avoid IEP Missteps

2. Presentation Objectives • Recognize and avoid 12 of the most common IEP missteps • Target skills to build and maintain trust between schools and parents Adapted from Lake, S. (2010). Slippery slope! The IEP missteps every team must know – and how to avoid them. Danvers, MA: LRP.

3. IDEA 2004 • In the words of a principal drafter of the original special education act, Robert T. Stafford (1978), “an individualized education program (IEP) is the central part of this act” • The critical role of the IEP is to improve educational results for children with disabilities

4. What does IDEA promise? • Mandate to ensure a child with a disability receives access to a free appropriate public education (FAPE) • A written plan – the IEP

5. Meeting the Rowley Standard • In 1982, the Supreme Court interpreted the lynchpin of FAPE is • a child’s access to educational opportunity, • not the specific achievement of educational results • The two prong Rowley test for FAPE: • Has the LEA complied with procedural requirements of IDEA? • Is the IEP reasonably calculated to enable the child to receive educational benefit? Board of Education of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 553 IDELR 656 (U.S. 1982)

6. Misstep 1: Failing to Obtain Informed Parental Consent • Purpose for notice of parental consent • Parent’s involvement in identification and response to a suspected disability is encouraged and facilitated • The school district must make an adequate response to parental concerns about children who may have disabilities • Consent Requirements • Document attempts to obtain • Revocation of informed consent

7. Strategies for Compliance To Obtain Informed Parental Consent • Provide relevant information • in written form and through documented discussion in the IEP meeting • in the parents’ native language or other mode of communication • Document all efforts to obtain in writing • Develop specific forms for documentation • Fully describe disputed issues about informed consent in the IEP deliberations • Make sure parents know they can revoke consent • Follow verbal commitments with written informed consent • If the student has reached age of majority and rights are transferred, make sure the student provides informed consent

8. Misstep 2: Failing to Ensure Parents’ Meaningful Participating in the IEP Process • IDEA “imposes upon the school the duty to conduct a meaningful meeting with the appropriate parties” 18 IDELR 1019 (9th Cir. 1992) • Parents role • Notify parents with sufficient time to ensure opportunity to attend • Schedule the meeting at a mutually agreed time and place • IEP notice • Indicate purpose, time, and location • Identify all persons invited • Include required components

9. Strategies for Compliance to Ensure Parents’ Meaningful Participating in the IEP Process • Work to ensure amicable agreement about IEP scheduling • If the school elects to meet and adopt an IEP for a student without the parents’ presence, then they need to have carefully documented attempts to ensure attendance • Ensure meetings are scheduled and actually held at agreed to times • Be able to readily show that the parent is an active and effective participant in the IEP development • Attempt to resolve or mediate any communication problems • Carefully evaluate and consider all parental requests • Encourage school staff to personally contact parents early in the school year

10. Misstep 3: Predetermining IEP Services and Placement • An IDEA placement decision is a cooperative determination concerning the location where a school will implement the student’s IEP • The district is under no obligation to provide the placement requested by a parent, however must be willing to consider • Avoid predetermining prior to or outside of the IEP meeting

11. Strategies for Compliance to Avoid Predetermining IEP Services and Placement • Make sure the IEP meeting agenda refers to review a “draft” IEP and that the “draft” is marked or stamped as “draft” • Caution district staff members to avoid making any statements that could be interpreted as predetermining services or placement • Listen carefully to disagreements or concerns and allow enough time to discuss • Examine relevant documents parents may bring to the meeting and document consideration in deliberations • Make changes as appropriate to the “draft” • Involve the parents at every stage of the meeting, providing them with all necessary information to make informed decisions • Ensure the IEP team actually makes a formal, written offer of placement

12. Misstep 4: Improperly Excusing IEP Team Members • Avoid the temptation to routinely or unilaterally excuse IEP team members – especially general education teacher • Be sure to meet prior notice and agreement requirements • Review IDEA requirements

13. Strategies for Compliance to Avoid Improperly Excusing IEP Team Members • Prepare standard forms for written input, consent, and agreement • Comply with IDEA consent requirements • Document district’s reasonable efforts to obtain parental consent • Anticipate IEP issues • Avoid routine use of excusal process • Make sure parents understand they are consenting to excuse an IEP team member • Obtain excused member’s written input in advance of the meeting • Exercise caution if the parents change their mind about excusal

14. Misstep 5: Improper IEP Team Membership • Ensure proper composition of the IEP team – mandatory and permitted

15. Strategies for Compliance to Ensure Proper IEP Team Membership • Notify parents early enough to allow a reasonable and fair opportunity to attend • Ensure parental meeting notifications include the purpose, time, and location of the meeting • To extent possible, schedule meetings at mutually agreed upon time and place • Keep records of attempts to arrange a mutually agreed upon time and place • Attempt to use methods other than face to face to ensure parent participation

16. Misstep 6: Failing to Address Transition to Postsecondary Activities and Independent Living • IDEA requirements • Definition of transition services • Transition requirements • Child’s interests • Age for services • Postsecondary goals

17. Strategies for Compliance to Address Transition to Postsecondary Activities and Independent Living • Create a formal written transition plan • Incorporate transition planning into the IEP • Develop individual transition plans • Ensure transition planning process starts and is documented at least by age 16 for each IDEA eligible child • Involve parents and students as much and as early as possible • Draft postsecondary goals that accurately reflect the goals that a child hopes to achieve • Review IEPs to make sure they identify important skills needed for transition goals • Avoid drafting generic transition plans

18. Misstep 7: Failing to Ensure Availability of a Continuum of Alternative Placements • Both the Daniel R.R. (1989) and the Oberti(1993) looked at whether a district complied with the Least Restrictive Environment (LRE) requirementand identified two prongs: • Whether the student can be educated in a regular classroom with the use of supplemental aids and services • Whether the district has mainstreamed the student to the maximum extent appropriate • The continuum of alternative placements ranges from • least (general education classroom) to • most (residential placement) restrictive environments

19. Strategies for Compliance to Ensure Availability of a Continuum of Alternative Placements • Make sure that space does not drive placement decisions • Ensure general educators believe that students with disabilties can learn content-based curriculum • Avoid predetermination of placement • Conduct regular in-service training on LRE and continuum of alternative placement issues • Avoid vague, generalized recommendations regarding LRE in the IEP

20. Misstep 8: Failing to Consider the 5 “Special Factors” • IEP teams must evaluate and consider • Behavior • Limited English proficiency • Blind/visually impaired • Deaf/hearing impaired • Assistive technology

21. Strategies for Compliance to Consider the 5 “Special Factors” • Ensure the IEP team specifically reviews all of the 5 special factors as a part of the IEP team process, with parental participation and approval, each and every time an IEP is developed, reviewed, or revised • Draft and review behavior intervention plans (BIPs) with input from an individual appropriately credentialed • For a child who is blind or visually impaired, consider instruction in and use of Braille • For deaf and hearing-impaired, consider the child’s language and communication needs

22. Misstep 9: Failing to Follow Proper Procedures for Publicly Placed Private School Students • If the district is unable or unwilling to provide FAPE in the public school, that district shall assume the cost of educating the student in a private school

23. Strategies for Compliance to Follow Proper Procedures for Publicly Placed Private School Students • Initiate and conduct a meeting to develop an IEP for a student placed in private schools • Ensure that staff knows the district remains responsible for the education of the student who is publicly placed in private school • Ensure a representative of a private school attends the IEP meeting

24. Misstep 10: Failing to Follow Requirements for Interstate and Intrastate Transfers • IDEA requirements • IEPs • Transmittal of records

25. Strategies for Compliance to Follow Requirements for Interstate and Intrastate Transfers • Ensure the district consults with the parents and provides services comparable to those in the previous district • Be familiar with intrastate and interstate IDEA requirements • Request transmittal of records

26. Misstep 11: Failing to Address a Student’s Behavioral and Emotional Needs • Address behaviors that impact the student’s education • Consider, when appropriate, when appropriate, strategies, including positive behavior interventions, strategies, and supports to address behavior

27. Strategies for Compliance to Address a Student’s Behavioral and Emotional Needs • Obtain all the behavioral information the IEP team needs • Determine if the student demonstrated behaviors that are unsafe and/or interfere with the learning environment • Carefully review the student’s academic and behavioral history • Determine if the student has been routinely removed from the general education classroom because of inappropriate behavior • Conduct or update a functional behavior assessment (FBA) • Develop a behaivor intervention plan (BIP)

28. Misstep 12: Failing to Establish and Consider Existing Evaluation Data and Present Levels of Performance • The IDEA has long required the IEP team, during initial evaluations and reevaluations to review existing data as well as present levels of academic achievement and functional performance

29. Strategies for Compliance to Establish and Consider Existing Evaluation Data and Present Levels • Ensure the IEP team fully considers all evaluation data • Ask parents their concerns • Document and discuss the implications of all results from assessments and evaluations conducted since the last IEP meeting • Analyze precisely what the student knows and is able to do • Ensure the IEP contains a summary or explanation of the data the IEP team considered, so that any reader can easily understand the IEP team’s interpretation of the data • Have the IEP team discuss what the student should know or be able to do bythe time of the annual review

30. Summary • Comply with federal and state mandates • Implement the IEP • Once an error is discovered, the best practice is to admit the mistake, promptly notify parents, and take all reasonable steps to correct • Offer compensatory education for an IEP error

31. Professional Development • Provide in-service training sessions to avoid mistakes or remedy issues • Work to build relationships with parents and include their input • Review policies, practices, and procedures to avoid IEP missteps

32. For Technical Assistance and Training Contact Special Education Solutions Region 4 Education Service Center 7145 West Tidwell Houston, TX 77092 713.744.6365 • Linda De Zell Hall, PhD • lhall@esc4.net • 713.744.6399 Jerry Klekotta gklekotta@esc4.net 713.744.6393