Laura Kaloi (Moderator):

Good evening.

Welcome to LD Talk, the Web’s first and only site devoted to expert discussions on issues concerning learning disabilities. LD Talk is a service of the National Center for Learning Disabilities (NCLD). Through LD Talk, we bring you ongoing opportunities to connect with leading experts in the LD field. Thanks for joining us!

Today we have two experts leading our discussion.

Kathleen Boundy is co-director of the Center for Law and Education (CLE) and has an extensive background in education law. An attorney with CLE for more than 20 years, Ms. Boundy has played a significant role through legislation, policy development and litigation in implementing and enforcing the rights of students with disabilities, including improved educational outcomes under the Individuals with Disabilities Education Act, as amended, and Section 504 of the Rehabilitation Act of 1973.

Candace Cortiella is founder/director of The Advocacy Institute. The mother of a young adult with learning disabilities, Ms. Cortiella has worked as a special education advocate and trained parents in special education advocacy. She serves on the professional advisory board of the National Center for Learning Disabilities, the board of directors of the Council of Parent Attorneys and Advocates (COPAA) and writes and presents regularly on issues regarding students with disabilities, the Individuals with Disabilities Education Act and No Child Left Behind.

Tonight's discussion will focus on the new provisions in the Individuals with Disabilities Education Act (IDEA 2004) regarding Individualized Education Programs (IEP).

I am Laura Kaloi, director of public policy for the National Center for Learning Disabilities, and I’ll be moderating tonight's discussion.

We have received many questions for this discussion. Today we’ll be offering replies to those questions most closely related to our discussion topic and of the broadest interest to our audience. Both of our experts have reviewed the questions submitted and will jointly discuss answering the questions posted this evening. Questions unrelated to this topic can be sent to NCLD’s Help Desk at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

Let's begin the discussion.

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Question from Debe Fults, Youth Services Program Coordinator, disAbility Resource Center:
    Until new state special education regulations are written, do the current regulations supercede Federal Statute when they provide additional protections to students? Ex: Transition planning at age 14 or younger when appropriate.

Kathleen Boundy:
    Debe:

Thanks for your question. There's much confusion about this issue, mainly because the answer is, well, confusing! I'll make several important points.

First, there is no reason to assume that your state special education statute or regulations need to be subjected to a wholesale rewriting or revision. While state law and/or regulations governing the education of students with disabilities must minimally comply with federal law, to the extent your State provides greater protection to the beneficiaries of the law, namely, students with disabilities and their parents, the state law/regulations should generally be upheld. Federal law, in this instance, the Individuals with Disabilities Education Improvement Act of 2004, that amended the IDEA Amendments of 1999, will override a stronger or more protective State law/regulation only when it is impossible to comply with the requirements of both Federal and State law, or when the State law is determined to be an obstacle to accomplishing the purpose of the Federal legislation. Neither is true in the example you mention.

You expressly reference your state regulation that (as prior federal law)requires IEP teams to undertake 'transition planning' for an eligible student with a disability at age 14 or younger, when appropriate. As long as this requirement exists under state law, it must be implemented and enforced because it provides greater rights and protection to students in your state. While the new federal statute, enacted December 3, 2004, has eliminated the requirement to initiate such planning no later than age 14, your State is under no obligation to eliminate this requirement just because it is no longer required by federal law. The state regulation is not in conflict with the federal requirement that IEP teams address provision of transition services no later than the IEP in effect upon a student's 16th birthday. Furthermore, it is possible for IEP teams in your state to comply with the federal mandate to provide transition services by age 16, while continuing to require IEP teams to undertake transition planning for eligible students on or before their 14th birthday.

I hope this answers your question. Many parents are being mislead by state departments of education that are saying they must change their stronger state laws. This is not true. Except as described above, it is a choice -- a choice that should very much involve parents.

See IDEA 04: Improving Transition Planning & Results for more information on the changes to Transition Planning in IDEA 2004.

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Question from Audrey Burke, PACES:
    Could you specify the difference between a 504 plan and an IEP. We have a school district that is moving students out of IEPs into 504 plans at an alarming rate. The school districts contends that they are the same.

Candace Cortiella:
    Candace Cortiella replies: Audrey: There is a substantial difference between a 504 plan and an IEP. And, while not all students who may be found eligible for a 504 plan are also eligible for IDEA, all IDEA-eligible students are, by virtue of the severity of their disabling condition, also covered under 504.

The difference betwen 504 and IDEA (as well as the ADA) are articulated nicely in an ERIC digest which can be found at http://ericec.org/digests/e606.html.

Another well-written comparison is available at http://www.ldonline.org/ld_indepth/legal_legislative/edlaw504.html .

It is extremely important for parents of students covered under IDEA to also understand the rights of students under Section 504. Parents often misinterpret certain issues as a violation of IDEA rights, when in fact the issue is a violation of 504 ... in other words, basic civil rights, as opposed to rights under IDEA.

It is also important that any student who has an identifiable disability who needs specialized instruction to learn to the standards expected to be attained by all, ought to demand that he/she be covered by IDEA, have an IEP to hold schools accountable, and be provided modifications in programming and assessments, as needed, as well as the procedural safeguards to which he/she is entitle to under IDEA, but not so under 504 which essentially provides students with comparable aids, benefits and services to those provided non-disabled students.

One final word about why your school district might be moving students out of IDEA eligibility into 504 eligibility: the motivating factor could be No Child Left Behind (NCLB). Under NCLB, your school and district must "disaggregate" the performance of IDEA students on the state assessments (tests) required under NCLB if the number of IDEA students meets or exceeds the minimum size for the "subgroup" set by your state. If the size of the subgroup is less than the size set by your state (known as the "n" size), then the school doesn't need to report the performance of the subgroup. This helps the school as it relates to achieving "adequate yearly progress" or "AYP" under NCLB. So, by reducing the number of IDEA students in a school, the school effectively avoids their responsibility to get IDEA students at the proficient level required by your state. For more information on the issue of subgroup size, please see my article at No Child Left Behind and Students with Learning Disabilities: Opportunities and Obstacles.

Thanks for your great question.

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Question from Anita Soost, Parent, Anderson Valley CA:
    Do I have any more or less power to insist on individualized instruction under NCLB and IDEA 04? My 13 year old son will be drafting his Transition Plan just before IDEA 04 goes into effect, and I'd like to include some tutoring in remedial math & foreign language to keep him moving forward toward college. His school has only offered him study hall. In reality, do I need to demonstrate that my son is failing to meet his IEP goals before the school would be obligated to act?

Candace Cortiella:
    Anita:

The IDEA 2004 contains some powerful new provisions regarding transition planning, which you should look to as a way to access courses of study that will help your son achieve his postsecondary goals.

Become familiar with the new requirements, particularly:

Beginning not later than the first IEP to be in effect when the child is 16, and updated annually, the IEP should include appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills, and the transition services the child needs to reach those goals.

See this article, IDEA 04: Improving Transition Planning & Results for more information and guidance on using the new transition provisions.

Good luck and thanks for being a super Mom!

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Question from Patti Copas, mother:
    Please explain how LEAST RESTRICTIVE ENVIORNMENT can be used to my son's advantage when the regular classroom is "LRE" and is not working for him.

Kathleen Boundy:
    OK Patti, this question is a bit cryptic but maybe I can at least offer a few ideas for your consideration with this response.

You have noted that the regular classroom, which is LRE, is not working for your child and ask how this legal provision can be used to his advantage.

First, as you undoubtedly know, the statutory language of the IDEA that virtually remains unchanged in the recently amended 2004 Act, creates a presumption or a statutory preference for educating students with disabilities in regular education classrooms with their peers without disabilities. Each state and school district must ensure that "to the maximum extent appropriate, children with disabilities are to be educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."

The regulations implementing Section 504 also require that students with disabilities shall be educated with non-disabled students "to the maximum extent appropriate" and "shall be placed in the regular education program "unless it is demonstrated by the recipient that the education of the person in the regular education environment with the use of supplementary and services cannot be achieved satisfactorily."

Under IDEA, the first placement option considered for each child by the members of the placement team is the regular education classroom in the school the child would attend but for his/her disablity, with appropriate supplementary aids and services. Courts have ruled that the law "does not permit states to make mere token gestures to accommodate" students with disablities in the regular classroom; the law's "requirement for modifying and supplementing regular education is broad."

Courts have also recognized that "the decision as to whether any particular child should be educated in a regular educaton setting ...is necessarily an inquiry into the needs and abilities of one child, and does not extend to a group or category of [children with disabilities]..."

Before a school district can conclude that a child should be educated outside the regular classroom, the school district "must consider...the whole range of supplemental aids and services...which it is obligated...to make provision."

Such supports may include, but are not limited to:

>> assistance of a highly qualified special education teacher, who is especially knowledgeable and skilled in modifying curricula and providing specialized instruction tailored to the student's disability related educational needs,

>> a classroom aide who may provide one-to-one assistance,

>> use of assistive technology devices,

>> consultation services between a special educator and regular education teacher,

>> training for teaching staff about the nature and scope of a child's disability,

>> related service personnel providing OT, PT or behavioral interventions.

In light of the very strong legal duty that school districts have to assess the extent to which the student can, with appropriate support and suplementary aids and services, be educated in the regular education setting before removing him to a more restrictive setting, I wonder whether you feel that all such options have been considered and, as appropriate, implemented for your son.

In clarifying the rights of students with disabilities to receive high quality public education consistent with State education standards, Congress through the 1997 IDEA Amendments stressed the right of students with disabilities to participate fully in the general curriculum with their non-disabled peers, and to be provided real opportunities to learn through specialized instruction, supportive services, supplemental aids and benefits, including services and training for teachers to enable their students to meet, in whole or in part, the standards expected to be met by all other students. Students’ individualized education programs (IEPs) should be used as critical tools to achieve educational goals: the IEP must be shaped by evaluations of disability related educational needs and consistent with State standards, goals, objectives, and State of the art practices.

Students with disabilities must be provided the curriculum and instruction necessary to allow them to make progress toward meeting the standards set for all students. Many children with severe disabilities, including cognitive disabilities, are able to participate in at least portions of the general curriculum, when specialized instruction and related services and supplementary aids and services are provided, as needed. As you may recall, the 1999 regulations expressly added the provision that a child with a disability may not be excluded from an age appropriate regular education classroom merely because he needs modifications in the curriculum.

To the extent that a child's curricula and instruction have been modified by his respective IEP teams, they will need to be aligned with those standards (and components thereof) that encompass their supplemental educational needs, as well as with the content and performance standards (or components thereof) for all students, also modified and adapted as necessary and appropriate by their respective IEP teams.

Research has shown that students with disabilities who participate in the regular edeucation classroom are more likely to learn to higher State standards. Furthermore, States that have a higher percentage of students with disabilities in regular class 80% or more of the time (< 21% of time outside the regular class) tend to have lower discipline rates.

Remember with respect to your individual child, the ‘maximum integration’ requirement is an individualized determination. Your child’s IEP must address how your child’s disability affects his involvement and progress in the general education curriculum. His IEP must identify measurable annual goals, including academic and functional goals, designed to meet his needs resulting from his disability so as to enable him to be involved in and to make progress in the general education curriculum. The IEP must include a statement of special education and related services and supplementary aids and services, based on peer review research, to the extent practicable, to be provided your child or provided on his behalf, and a statement of modifications or supports for school personnel to be provided so the child may advance appropriately to meet the annual goals; to be involved in and to make progress in the general curriculum; to participate in extracurricular and non-academic activities; and to participate with other children with and without disabilities.

You say that your child is not making effective progress in the regular classroom and ask how to use his right to be educated to the maximum extent appropriate with his non-disabled peers to his benefit. While your son’s IEP, must, in keeping with the statutory preference, include an explanation of the extent, if any, to which the child will not participate with students without disabilities in the regular classroom, the bottom line is that the determination still must be individualized, tailored to address his disability related needs, and designed to enable him to learn. However, before conceding that he cannot be educated so as to make progress in learning to the standards or portions thereof embedded in the general curriculum, I would urge you to carefully consider whether the issue relates to his program or the location in which he is receiving services. I would question for any child with a disability who is struggling to learn, whether or not he is receiving the specialized instruction, range of related services necessary for him to benefit from that education, or the supplementary aids and services that he or his aide, or his teachers may need for him to be effectively educated in the regular classroom. A student has a right to be taught to the standards embedded in the regular education curriculum and in the regular education classroom to the maximum extent appropriate; it is not an all or nothing proposition.

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Question from Ellen Costain, Parent:
    With the elimination of short-term objectives and benchmarks in IDEA 2004, what suggestions do you have that would assist parents in monitoring progress throughout the school year? I don't want my son who is already 2-3 grade levels behind to lose another year because there was no early warning system to indicate the goals would not be accomplished.

Candace Cortiella:
    Ellen: There are several points to keep in mind regarding the elimination of short-term objectives (STOs).

First, while IDEA 2004 eliminated the requirement for each annual goal to also contain short-term objectives (except for those students taking alternate assessements for purposes of participation in statewide assessments required by NCLB), your state's special education law or regulations most likely requires STOs. Where that is the case, IEP teams will need to continue to develop STOs for each annual goal until such time as the requirement is eliminated in state law or regulation.

Second, states are free to exceed the requirements of IDEA 2004. This could include maintenance of the requirement for STOs if the state feels that they are valuable components of IEPs. Advocates in many states are working to protect several important provisions that were eliminated in IDEA 2004, including STOs. So, you might want to involve yourself in state-level efforts such as these.

Third, even if your state chooses to conform to IDEA 2004, parents still have a right to request STOs for each annual goal. This request can be aided by the next point...

Fourth, the IDEA 2004 retains the requirement for regular reporting to parents. While the new wording is somewhat different, reports are still required. Such reports should provide objective information regarding progress toward meeting the annual goal by the end of the year. When IEP teams formulate IEPs, parents should ask how the school plans to report progress and on what will reports be based.

When Congress eliminated the STO requirement, they stated their legislative intent as follows:

"Elimination of benchmarks and short-term objectives Current IDEA law requires that a child’s IEP must contain a statement of measurable annual goals for the child, including benchmarks or short-term objectives. Additionally, the IEP must include a statement of how the child’s progress toward the annual goals will be measured and how the child’s parents will be regularly informed of their child’s progress toward the annual goals and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.

While benchmarks and short-term objectives are thought by some to help track the child’s progress, their inclusion in IEPs contributes greatly to the paperwork burden on educators and parents, and often bears no relationship to the non-linear reality of a child’s development. Special education practice via short-term objectives too often focuses on achieving only small incremental improvements in student performance to the detriment of more effective longer range planning. Short-term objectives and benchmarks can focus too much on minor details and distract from the real purpose of special education, which is to ensure that all children and youth with disabilities achieve high educational outcomes and are prepared to participate fully in the social and economic fabric of their communities.

Both education officials and the President’s Commission on Excellence in Special Education have found that benchmarks and short-term objectives to be unnecessary and time consuming. Some teachers have commented that their lesson plans that are aligned with the district curriculum frameworks are more useful than the benchmarks and short-term objectives required by IDEA.

During the last reauthorization of IDEA in 1997, the continued value of short-term objectives was debated, and benchmarks were added. To date, States and LEAs have made minimal use of benchmarks; most do use short-term objectives, but continue to question their utility.

With all these factors in mind, the committee has revised Section 614(d)(1)(A) to eliminate the requirement for benchmarks and short-term objectives. The committee does not intend for the elimination of these requirements to lessen parental input or information, or to eliminate the need to break annual goals into instructional objectives.

In order to measure and report the students’ progress toward their annual goals, the IEP must instead contain a description of how the child’s progress toward meeting the annual goals will be measured, as well as when periodic reports on the child’s progress, such as through the use of quarterly or other periodic reports, will be provided. The committee feels that such progress reports are especially important for students whose IEPs contain non-academic goals and whose progress may not be measured easily by standardized tests or grades. These progress updates must provide parents with specific, meaningful, and understandable information on the progress children are making.

The committee expects that eliminating the requirements for benchmarks and short-term objectives will reduce unproductive paperwork and allow greater attention to be focused on the child’s annual IEP goals and on the methods of measuring progress and reporting that progress to parents in a meaningful way.

Some parents have expressed concern about losing the individualization in instruction via short-term objectives. However, individualization in practice occurs through the accommodations and modifications provisions in the IEP. The committee feels that the new language is sufficiently explicit and will yield more instructionally relevant information to be used by teachers as well as reported to parents regarding a student’s progress, and provide a clear and more appropriate accountability mechanism for monitoring and reporting progress than do short-term objectives and benchmarks.

For most students with disabilities, many of their IEP goals would likely conform to State and district wide academic content standards and progress indicators consistent with standards based reform within education and the new requirements of NCLB. IEPs would also include other goals that the IEP Team deemed appropriate for the student, such as life skills, self-advocacy, social skills, and desired post-school activities. Moreover, since parents will receive individual student reports on their child with a disability’s achievement on assessments under NCLB, they will have additional information to evaluate how well their children are doing against grade-level standards." (Senate Committee on Health, Education, Labor and Pensions Report 108-185 to accompany S. 1248)

Knowing the intent behind legislative changes can often help parents navigate the change.

Thanks for your question.

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Question from Marla Sarkozi, Parent:
    How will LD children now qualify for special education if their is no discrepency model?

Candace Cortiella:
    Marla:

Thanks for your question. While not directly related to our IEP discussion, the new language in IDEA 2004 regarding the identification of students as having a specific learning disability (SLD)is widely misunderstood, so I'll try to offer some fundamental information to promote a better understanding.

First: IDEA 2004 does not eliminate the use of ability/achievement discrepancy model as a component of SLD identification. It does, however, repeal the current requirement contained in current IDEA regulations (not the previous IDEA 97 law) that requires LEAs to substantiate the presence of a "severe disprecancy between ability and achievement" in order to find a student eligible for special education in the SLD category of IDEA. This new language doesn't preclude an LEA from using a discrepancy as part of its eligility criteria, but DOES preclude LEAs from continuing to require the absolute presence of a severe discrepancy. This would seem to not be a terribly radical move, since a recent survey of state criteria for SLD showed that fully two-thirds of states already have some sort of "override" authority that allows elibility teams to qualify a student as SLD without a severe discrepancy if there is team consensus.

It is important to note that, unlike some of the other provisions in state regulation or law that must be maintained until changed at the state level, such as short-term objectives, this new language in federal law overrides state law on this issue effective July 1, 2005.

The second new provision allows LEAs to use a process based upon a child's response to scientific, research-based intervention as part of the evaluation process for eligibility. This language doesn't permit LEAs to rely EXCLUSIVELY on such as process in the absence of other evaluation criteria, in other words, schools must still undertake a "comprehensive" evaluation of the student suspected of having SLD. For more information on "responsiveness-to-intervention" visit the Web site of the National Center on Research in Learning Disabilities.

The National Center for Learning Disabilities has developed a brief FAQ on this issue, which offers additional information and further resources.

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Laura Kaloi (Moderator):
    In addition to the resources that our expert offered on the new SLD identification issue, I encourage readers to refer to the report of the Learning Disabilities Roundtable, a consensus document of 14 national organizations containing comprehensive recommendations for the development of IDEA 04 federal regulations related to the identification and eligibility of students suspected of having a learning disability. The National Center for Learning Disabilities coordinated the work of the Roundtable. The report was submitted to the U.S. Department of Education in February 2005.

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Question from Ernie Wheeler, VT DOE Consultant,:
    Will the model IEP Form(s) include such areas as transition for students 16 years and older, EEE early childhood standards, and other varying requirements at different age levels?

Kathleen Boundy:
    The statute does direct the Secretary to issue a model IEP form, and I suspect the model will track closely the mandatory components of the IEP, which will include the transition provision you note, but it is not clear that the other components will be included.

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Question from Sharon bell, Parent:
    With the changes in "burden of proof" and interim placement for discipline cases, what happens in cases where parents and school disagree about an adequate behavior intervention plan? What if the school does not implement a plan when the parents request one, or one that provides less support than requested? If there are subsequent discipline problems that could result in removal to an alternative placement, how would this situation be handled under the new law?

Kathleen Boundy:
    Sharon,

There are at least three instances when school personnel are mandated to consider developing appropriate strategies to address the behavioral needs of a student with a disability whose behavior impedes his/her learning or that of others. First, section 614(d)(3) (B) of the 2004 amendments to IDEA expressly requires IEP teams to consider for such a child the use of positive behavioral interventions and supports, and other strategies, to address that behavior. Second, whenever a determination is made that the conduct -otherwise giving rise to a change in placement in excess of 10 school days - is a manifestation of the student's disability, the IEP team shall under sec. 615(k)(1)(F), conduct a functional behavioral assessment and implement a behavioral intervention plan for such child, provided the school district had not conducted the assessment priot to the triggering behavior. However, if a behavioral intervention plan has already been developed, the team must review the plan and modify it, as necessary, to address the behavior at issue.

Third, based on section 615(k)(1)(D)(ii), a student whose behavior, that is found unrelated to his disability, results in a change in placement in excess of 10 school days, and any student who is removed to an interim alternative placement for up to 45 school days for behavior relating to weapons, drugs or serious bodily injury - regardless of a finding of manifestation- must, in additon to the contiuned provision of FAPE, "receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur."

You ask what happens in cases where parents and school disagree about what constitutes an adequate behavior intervention plan? Assuming there is agreement that the child has behaviors impeding his learning or that of others, the school district has an obligation to address the behavior through the development and review of the child's IEP. Presumably any disagreement between the parents and other members of the IEP team about the adequacy of the proposed behavioral intervention plan, will be addressed as any other component of the IEP with which they parties disagree. In the case of a behavioral intervention plan -at least for a child known to have behaviors that impede learning for himself/others - it is not in either party's interest not to implement a reasonable level of programming and/or services during the resolution of the dispute. The failure to develop and implement a behavioral intervention plan for a child whose disability-related behaviors interferes with the education of self or others or might even escalate to behavior dangerous to self is irresponsible and violates both IDEA and Section 504. Any child with disability related behavioral needs is entitled to have his behavior addressed as an education matter - whether through specialized instruction, related services, supplemenatary aids or services.

To the degree that the school does not implement or inadequately implements a plan that has been developed and agreed to through the IEP process, this finding would be highly relevant evidence to the manifestation determination review if the student engages in inappropriate behavior triggering such a determination. [See Sec. 615(k)(1)(E) requiring a showing that the conduct was caused by or had a direct and substantial relationship to disability; or was the direct result of the failure to implement the IEP.]

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Question from Janice Hagan, mother:
    My son is entering 9th grade and the school personnel will not put goals in his IEP for next year, nor have they considered any transitional plans. I have asked for them, but they said that they do not put goals in IEPs for high school students. Further, they do not plan on implementing the homework modification, especially if he takes college prep courses. Can they do this? We live in Merrimack NH Thank you.

Candace Cortiella:
    Candace Cortiella replies:

Janice:

An IEP isn't an IEP without annual goals -- the required contents of an IEP are clearly spelled out in the IDEA. It states: IEPs are required to include: A statement of measurable annual goals, including academic and functional goals.

In addition, transition planning requirements are also quite clear. The IDEA 2004 states: Beginning not later than the first IEP to be in effect when the child turns 16 [note: eliminates age 14 requirements] and then updated annually thereafter, the IEP must include:

• Appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment and independent living skills, where appropriate;

• Transition services needed to assist the child in reaching those goals, including courses of study; and

• Beginning not later than one year before the child reaches the age of majority under state law, a statement that the child has been informed of the child's rights under this title, if any, that will transfer to him or her on reaching the age of majority.

Your state's STANDARDS FOR THE EDUCATION OF CHILDREN WITH DISABILITIES adopt the definition of an IEP found in Federal law. (see http://www.gencourt.state.nh.us/rules/ed1100-1300.html).

So, there would appear to be no way that your son's IEP team could escape the need to include annual goal(s) in his IEP. Any accommodations that have been included in previous IEPs and found to be effective should also be reviewed by the team and included as needed for continued success and progress

When confronted with such statements, its often a good idea for parents to ask to see the school district's written policy in support of the statement. Such a request can often help clarify issues and settle disagreements.

Lastly, you should feel free to reference both state and federal requirements regarding the content of IEPs. An overview of the IEP requirements as amended in IDEA 2004 (which become effective July 1, 2005) is available at: http://www.ideapartnership.org/documents/IEP Content.doc This document was produced by the U.S. Department of Education. Send a copy to your son's school along with a written request for clarificiation of their position regarding annual goals, transition planning and appropriate accommodations in light of the information you are furnishing.

Good luck.

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Question from Jo Ann Carino, learning specialist, The Campus School (K-6):
    I am writing from the state of Massachusetts. I work at a private school in Northampton. I've just heard that under the new IDEA law, the Child Find Provision states that public schools will now be responsible for evaluating and servicing students who attend all private schools in their district. Is this accurate? Does it apply to all states?

Candace Cortiella:
    Reply from Candace Cortiella:

Jo Ann:

IDEA 2004 contains several substantial changes regarding students placed in private schools by their parents.

Specifically, the important Child Find changes include:

>>Changes the target child find and service population from children residing in the district to children attending private schools within the district. ((Sec. 612(a)(10)(A)(i))

>>Incorporates within the statute the current regulatory requirement that a school district’s child find activities for private school children be comparable to those for public school children. (Sec. 612(a)(10)(A)(ii))

>>Incorporates within the statute the current regulatory requirement that expenditures for child find activities not be considered in determining whether a school district has met its ’proportionate share’ obligation to private school children. (Sec. 612(a)(10)(A)(ii)(IV))

>>Upgrades the regulatory requirement for consultation on child find to ’timely and meaningful’ consultation. (Sec. 612(a)(10)(A)(iii)(I))

These are just a few of the changes. The Council for American Private Education (CAPE) has put together a comprehensive analysis of all changes to IDEA pertaining to private school students, and they have also updated their IDEA Toolkit. You can access these resources at CAPE-IDEA Update

Parents and school personnel (in both public and private schools) are encouraged to become familiar with these new provisions. All provisions apply to all states.

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Question from Kseniastumpf,mother gardencity newyork:
    Is possible to make the school provide a better or more time for his reading classes or different instruction ,program for my dyslexic son in 6th grade

Candace Cortiella:
    Both the extent of specialized services and the specific program used are linked to achievement of IEP goals. Those goals should be based on adequate progress, i.e., making up for skill level that is significantly behind grade level.

If IEP goals aren't attained, the IEP team is required to adjust the child's program to reach the goals.

Often parents focus on the wrong thing...such as the amount of special education or the specific program, only to come up against resistance with school folks. Instead, focus on objective, measurable annual goals that deliver a whopping amount of progress, then hold the school to achieving those goals.

To learn more about writing good annual goals as well as ways to measure progress visit the Wrightslaw web site.

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Question from D. Buckley- Parent:
    I have a child with an IEP (classified speech-impaired) who attends a private school. The private school has decided not to invite him back to school next year because they feel they cannot meet his needs. He has attended the same private school for his entire academic career and the private school has meet his academic needs for 6 years. I suspect they cannot meet his needs because this year the private school had a change in administrator. He has never received the accomodations on is IEP but has progressed due to excellent Home-School communication. His IEP was updated this March 2005( the private school did not attend the CSE meeting) and but has not been implemented yet. The public school has stated they will provide all the accomodations he needs next year but he Head Master of the school will not give him the opportunity to stay in the school. There are other children with similar language-based IEP's he is allowing to stay in the school next year. Can a private school state that they cannot meet a student's needs prior to the Public School District implementing the IEP? Also, can they selectively decide with IEP's they will implement without a set criteria? Please advise.

Kathleen Boundy:
    First, though it is not expressly stated, I am going to assume that your child has been placed in the private school by the public school at public expense. This is an important distinction because assuming it is the case, your child is entitled to receive the same substantive and procedural safeguards as he would receive if he were being educated in the public school program.

This means that you are entitled to receive notice of any proposed change in your son's educational placement and that you have a right to complain and to challenge the proposed change and the proposed IEP that would be implemented elsewhwere, and to have your son "stay-put" in his last lawful placement during the pendency of your child of your complaint.

A private school, as any school, has a responsibility to acknowledge that it is incapable of continuing to provide a student with his/her right to FAPE. It is presumably an appropriate time to raise such concern prior to a child's new IEP being written. If not then, when?

However, such a proposed termination of a child's placement triggers a parent's right to receive written notice, to complain and to the other procedural safeguards available to all public school students, including "stay put."

While a private school generally has far greater discretion in making decisions about its student body than public programs, to the degree it has entered a contract with the public school program and receives federal funds under Part B of the IDEA to educate child who have been determined unable to be educated in the public school program, the private school must comply with the requirements of Part B.

Furthermore, under section 504 (of the Rehab Act) that bars recipients of federal monies from discriminating on the basis of disability, the public school cannot enter contracts with private schools that discriminate on the basis of disbility. Nor can the private school, as a recipient of tuition for a publicly placed student, discriminate on the basis of disability.

It would be necessary to obtain much more information to make any judgment about the validity of a claim for discrimination when you are dealing with individual students whose individual needs are such that they cannot be met in the public school.

I hope this information is helpful to you and is responsive to your question.

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Question from Ellen McHugh, Parent to Parent of NY State:
    I have two questions: Has anyone made an attempt to define what is a parent's "informed consent" Is ther any further news about excusing mandated members of the IEP committee? Thanks Ellen McHugh

Kathleen Boundy:
    Ellen:

As you note, the term "informed consent" that was introduced by the IDEA Amendments of 1999 and is repeated in the most recent enactment of the statute, has not been defined by statute or regulation. In response to the Department of ED's solicitation for proposed regulations, the Center for Law and Education (CLE)suggested that ED through regulation define "informed consent’ that minimally suggests an enhanced level of consent. CLE urged that ED require documentation by the agency of the parent's being "informed" and having "comprehension" of the activity for which consent is being requested in addition to the requirements set forth in the the definition of consent under current regulation 34 C.F.R. 300.500(b)(1).

Therein, ’consent’ is defined to mean that the parent has been fully informed of all information relevant to the proposed action -e.g., an initial evaluation - for which parental consent is sought, in his or her native language or other mode of communication; the parent understands and agrees in writing, unless the parent is unable to provide consent using that mode of communication, in which case, the alternative mode of communication used by the parent shall be relied upon. Furthermore, as currently defined, ’consent’ describes the activity for which consent is sought, (e.g., identifies the tests and other forms of evaluation that will be used in assessing the child’s condition and educational needs), any records and information that will be released or shared and to whom. The parent understands that the granting of consent is voluntary and may be revoked at any time prior to the event occurring.

CLE suggested that to ensure that the parent understands/comprehends the proposed action or activity (e.g., evaluation process) so as to be able to consider providing ’informed consent,’ the Department, through regulation, should require the school district to take affirmative steps to reach out to the parent, to engage the parent in discussion about the proposed action or activity (e.g., evaluation process), the implications to the child and the rights of the child, and to direct the parent to available resources. At a minimum, the Department should be required to direct school districts to refer the parent, whose informed consent is being sought, to the state Parent Training and Information Center or Community Resource Center.

I am unaware of any further developments about the implications of excusing mandated members of the IEP team. I do believe, however, that the Department will through regulation underscore the limited application of the exceptions created by the 2004 changes to IDEA. For example, this would suggest that the exception to a mandatory member's attendance, in whole or in part, is limited to a teacher or service provider whose "area of curriculum or related serivces is not being modified or discussed in the meeting" or who with written parental consent, submits input into development of the IEP in writing prior to the meeting. This limited exception precludes the mandatory representative of the school district (or other public agency charged with providing FAPE) or the child's parent from not attending the meeting. For additional tips on these new excusal provisions, please see IDEA 2004 Close Up: The Individualized Education Program (IEP)

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Question from roberta carlin,executive director american association on health and disability:
    Hello- My question involves the responsibiity of the public schools and testing. When a child has an IEP and he is up for re-evaluation and plans to attend college, is the school system obligated to provide current testing on that child. This case involves a sophomore in high school who is do to be re evaluated and the school system contends that his condition has not changed and so no further testing is necessary. Parent contends that as part of the transition plan, and since this child is going to a 4 year university, that current documentation of his testing should be available to submit with the college application. Colleges require current testing. The high school says parents need to pay privately for testing. Last testing was done in junior high school. Child has significant learning disabilities and has been coded since early grades in elementary school. Any advice would be helpful. Thanks, Roberta Carlin

Kathleen Boundy:
    Roberta:

This is a very thorny issue. Since the IDEA amendments of 1997, and now more explicitly in IDEA 2004, it is clear that schools need not evaluate if there is no question regarding continued eligiblity for special education.

That leaves students without recent evaluation information to use as documentation for accommodations in postsecondary education.

We are hopeful that the new Summary of Performance can provide some of the information that colleges require.

We'll need to wait for the IDEA 2004 federal regulations to determine that. Colleges may also need to rethink their requirements, particularly for LD students, as we move away from the discrepancy model of identification.

Stay tuned.

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Question from Kathy Dechaine, Parent:
    Are there any requirements that IEPs will need to address what course of action will be taken on how the student will meet the NCLB guidelines, time frame, and how this will bemeasured? If the child does not meet these requirements, are the schools required to provide ESY services and should this be included in the student's IEP?

Kathleen Boundy:
    Kathy:

You have asked some important questions.

In a nutshell, the Elementary and Secondary Education Act (ESEA), as reauthroized and amended by the No Child Left Behind Act (NCLB), mandates a single system of accountability for each State. Each state is required to adopt challenging state academic content and achievement standards describing what all students, including students with disabilities should know and be able to do, and how well.

Each State must establish a system of valid, reliable, multiple measures for assessing whether every student has reached "proficient" levels of mastery (as defined by the State) of the different standards adopted by the State.

Each State must publish a report card and otherwise publicly report school data, including their respective student assessment results, broken down or disaggregated by student population groups on the basis of race and ethnicity, limited English proficiency, economic disadvantage, and disability for the purposes of holding schools and school districts accountable for improved educational outcomes.

In order for all students to be proficient by the 2013, school districts and schools are expected to demonstrate that they are making Adequate Yearly Progress (AYP) based on improved student achievement, graduation rates, participation in assessment. Failure to make AYP results in sanctions or consequences.

Students with disabilities, as all other students, must be included in their State's accountability system. They are required by IDEA, section 504, and the ESEA/NCLB to participate in all State and district assessments, through the regular grade level assessment or the regular grade level assessment with accommodations, if necessary, or an alternate assessment (e.g., a portfolio)aligned with the same grade level standards expected to be met by all other non-disabled students, or for the small percentage of students who even with the best instruction are unable to deminstrate progress toward the stanadrds set for all, through an alternate assessment based on alternative standards.

For students on an IEP, how they participate in the state and district assessments will be made by the IEP team. The student's IEP must include a statement of any individual accommodations that are necessary to measure the academic achievement and functional performance of the child on State and district assessments.

Students with disabilities are expected to participate in the annual asessments required by NCLB on the same timeline as their age appropriate peers without disabilities. The goal is that the percentage of all students, including students with disabilities, who score at the proficient level defined by the State, will improve incrementally until 2013-14 when the goal is that all students will be proficient. [Note, a school can still make AYP even if all the subgroups fail to meet their statewide proficiency targets in math and reading (and science by 2007), if the percentage of students in the particular subgroup who fail to meet the target, decrease by 10% and makes progress on an "additional academic indicator" adopted by the State (i.e., graduation rate; promotion, attendance rates).]

It is important to understand that the determination of AYP is not individualized but based on a number of components, including a minimum "n" or size of each student subgroup that the State determines is needed to yield reliable data that can be reported so it can be compared annually.

For purposes of repsonding to your question, what is important, is that students with disabilities are required by law to participate in these state and district-wide assessments so that they too may have a basis for holding their schools and school districts accountable for improved teaching and learning so that they too may have a full and meanungful oportunitiy to attain the standards expected to be met by all other students.

IDEA defines a "free appropriate public education" or FAPE, as special eduction and related services meeting state and IDEA standards provided at public expense, with no cost to the parent or child, under public supervision, in conformity with the child's IEP. By definiton, a "FAPE" must "...meet the standards of the State educational agency...[and] include an appropriate preschool, elementary or secondary education in the State involved..."

Hence, these two specific requirements make clear that the right to FAPE includes the right to full participation in and to meanigful opportnities to learn the same regular education curriculum as non-disabled students, and once establsihed by NCLB and state laws, to meet the academic content and achievement standards established by the State for all students.

When a student with a disability is not meeting the standards expected to be met by all students then his/her IEP should address what specialized instruction and related services or supplementary aids and services are necesssary to enable the student to make meaningful progress; and whether such programming and services need to be accelerated. Especially for students who have not been effectively educated in the regular edcuation curriculum and who have deficient academic content skills or who may not have been effectively taught by "highly qualified" special education teachers, it is important to assess how the student will learn to the standards adopted by the State withiin the period of eligibility remaining or his/her expected graduation date.

The IEP should address whether a student who is not meeting the standards set for all needs extended school year services (ESY), meaning services beyond the end of the school year. Such ESY services must be provided if necessary for a student to receive FAPE. A student may require ESY services if he will make insufficient progress toward meeting the standards in the regular curriculum during the regular school year --or, if the student has identifiable academic skill deficits that will not be addressed in the regular curriculum during the next school year, or if the student is likely to regress over the summer and have difficulty recovering skills prviously taught.

The determination about ESY must be individualized and not based on a particular disability, subject area, or duration.

Today given the pressure on schools to improve educational outcomes for all students, one would expect to see summer school and after school compensatory/remedial programs provided without cost to students with disabilities by highly qualified special educators.

Remember, also, that students with disabilities, just as their non-disabled peers, can take advantage of the options that Title I schools that do not make AYP for a number of consecutive years. Specifially, transferring to another school or assessing supplemental education services (SES) such as private tutoring. The National Center for Learning Disabilities, with support from Schwab Learning, recently published Making the "No Child Left Behind Act" Work for Children Who Struggle to Learn. I recommend that you access that publication, which provides additional information on how parents can use several key provisions of NCLB to improve their child's academic performance.

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Question from Batsheva Raviv, Parent, Cupertino School District:
    I was told that I shouldn't ask in an IEP for a particular program. For example, if my daughter has a problem with reading rate, I can't ask for Great Leaps, the school should decide about the right program for her. Is it true?

Candace Cortiella:
    Under IDEA, the school is responsible for providing educational benefit to the eligible student. The "benefit" is what satisfies the "appropriate" piece of the requirement for provision of a "free, appropriate public education."

There is case law to support the school's position that it is they who decide "how" the benefit will be achieved, ie, what specific "program" will be used.

In general, parents will fare better if they stick to requests for instruction that has certain characteristics instead of a "name brand." And, equally important, is the requirement that parents demand annual goals that deliver substantial progress. The lack of educational benefit was the issue on which the Supreme Court case of Shannon Carter was decided (in favor of the student).

Lastly, there's a new provision in IDEA 2004 that requires that, to the extent practicable, special education services should be based on "peer-reviewed" research. This statement is intended to align IDEA with the NCLB requirement for instruction grounded in "scientifically-based research.

Use this new provision to your advantage when discussing the instructional program the school plans to use to achieve the prescribed amount of progress in the IEP goals.

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Question from Kathy Dechaine, Parent:
    I have two children in special education in Maine and I have never signed an IEP. Is the parent required to sign the IEP? Also, have you heard of proposed legislation that if a student has an IEP that they will be exempt from the NCLB graduation requirements?

Candace Cortiella:
    Kathy:

There is no requirement under IDEA for a parent to sign an IEP. Some states have such a requirement under their state law to document parental agreement or failure to agree with the IEP. You should check your state regulations to see if the State of Maine has such a requirement. Since you have not previously signed an IEP and have two children receiving services under an IEP, I suspect your state does not require a signature.

With respect to your second question, I am not aware of any such proposed legislation. In fact, the 2004 amendments to IDEA were to a significant degree intended to align the statute with NCLB.

Also, while there are many provisions pertaining to assessment under NCLB, there is no NCLB requirement that any student must pass a test or state assessment as a condition of graduation.

Some states are using a high school exit exam to both satisfy their testing requirements under NCLB and to make high-stakes decisions for all students, such as the awarding of a regular high school diploma.

Because of this, many parents have become confused and think that it is NCLB that requires a student to pass a test to get a diploma. These issues were discussed extensively in a LD Talk chat last December on High Stakes Testing. You can read the transcript of the High Stakes chat to become more familiar with the issues.

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Question from Jeanne mcGough, mother, Oceanside School District:
    To what extent is a school district responsible for a disabled student after receiving a high school diploma yet assessed at a level of unpreparedness to enter adult vocational training or college?

Candace Cortiella:
    Jeanne:

Hopefully, with the single system of accountability that requires each state to adopt rigorous academic content and achievement standards under ESEA/NCLB, and the increased integration of IDEA with ESEA/NCLB, the issue of social promotion or prematurely pushing out students with disabilities who have not been effectively educated will disappear.

You did not mention the age of the student; I am going to assume that he/she is not yet 22, and either elected to graduate with his/her classmates having met the minimum state and/or local school district requirements or was encouraged to leave.

The above described situation should become less common, if, as required by law, students with disabilities are effectively taught to state standards embedded in the curriculum for all students by highly qualified special education and regular education teachers and participate in state assessments aligned to the standards expected to be met. On the other hand, much depends on the rigor of the standards and whether they incorporate higher order critical thinking skills.

Under the current law, students with disabilities continue to be eligible for public education programming and services up until their 22nd birthday (or older based on state law) or their receipt of a regular high school diploma (not a GED, a certificte, or a special education diploma) whichever comes sooner.

Assuming there was no fraud involved and that the student in question did, in fact, complete his/her state and local school district requirements for graduation, it is difficult to imagine that an action can successfully be brought against the school district. Presumably the student and his parents were involved in developing the IEP, identifying the student's academic goals, determining whether or not the student participated in the regular education curriculum and participated in assessments; they likey had an opportunity to review progress reports, develop a transition plan that should have addressed the student's graduation status, and received notice of their procedural right not to terminate services.

A new requirement in IDEA 2004 may also help foster better transitioning to postsecondary life for students with disabilities. It is the requirement that schools provide IDEA students whose eligibility under IDEA terminates either due to graduation with a regular diploma or reaching the age limit with a Summary of Performance. While we are waiting for new federal regulations for IDEA 2004 which may provide additional detail on exactly what the summary of performance needs to include, here is the statutory language:

SUMMARY OF PERFORMANCE.--For a child whose eligibility under this part terminates under circumstances described in clause (i), a local educational agency shall provide the child with a summary of the child's academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child's postsecondary goals.

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Question from Pam Steel, teacher:
    Why does Florida hold back students that are already in a special education classroom? For example, if a child does not pass the third grade FCAT they repeat third grade, whether they are classified Learning Disabled or not.

Candace Cortiella:
    Reply from Candace Cortiella: Pam: While your question doesn't really pertain to today's discussion on IEPs, we would like to answer by saying that the practice of retaining students, whether they are students with disabilities, such as learning disabilies, or non-disabled students, has not been found to produce positive, long-term results for students (academic, social, etc).

The National Association of School Psychologists has published several statements and position papers on the issue of grade retention. I would encourage you to read their statement on the issue at http://www.nasponline.org/information/pospaper_graderetent.html and also search their site for additional information.

The decision that Florida has made to retain students who do not pass the state assessment may have its roots in the sactions required of Title I schools under No Child Left Behind (NCLB). And yet, NCLB states that assessment results should not be used to make any decisions, including "high stakes" decisions such as grade retention or the awarding of a regular high school diploma, for individual students.

Another possible reason for high rate of retention in addition to NCLB could be that FL has a ’high stakes’ assessment and, by holding students back in key grades, the failure rate is made more politically acceptable.

I would encourage you to further investigate the rationale for Florida's decision regarding grade retention. Other states have adopted similar policies, which also need to be investigated and questioned with regard to validatity.

Thanks for your question.

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Question from Dr. R. Hardaway:
    How can we determine the length of time a child should remain in special education classes?

Candace Cortiella:
    Dr. Hardaway:

I'm not sure if you are asking about how to go about determining the amount of special education a child might require or how to determine if a child is no longer in need of special education under the IDEA. So, I'll reply briefly to both questions.

Amount of special education services is determined via the IEP process, which should sequentially examine (1) present level of performance (PLOP)(2) annual goals based on PLOP and (3) amount of special education needed to attain the goals. Sounds simple, but it is the sequential nature of the process that results in good program development for students.

In addition to the statement of need for special educatin services based on the PLOP and annual goals, IDEA 2004 adds an important new provision that the IEP team’s choice of special education and related services be guided by peer-reviewed research whenever possible. In other words, instructional programs and other services should be supported by strong evidence of effectiveness. This is particularly important when determining instructional programs to address reading deficits, since there is a robust body of research showing the effectiveness of an array of reading programs.

Making a determination regarding a student's continuing need for special education is also a team decision and is based on the review and consideration of data resulting from a re-evaluation. There are several provisions for re-evaluation in IDEA 2004 and your state may have additional provisions. A discussion of evaluations is beyond the scope of this discussion, so I would encourage you to investigate your state's policy on the issue.

Finally, contrary to what many people are now suggesting, students with disabilities are not expected to exit from special education because they are meeting state standards for special education! Special education is not a "placement" or a "curriculum." Rather, it is in fact specialized instruction and related services that enable them to be educated effectively in the regular education curriculum with their non-disabled peers consistent with LRE.

The right to FAPE means that they are entitled to be educated so they might meet state education agency standards.

IDEA regulation at 34 C.F.R. §300.347(b) requires that the IEP address transition services and there is an express reference to ’a statement of the transition needs of the student under the applicable components of the student’s IEP that focuses on the student’s courses of study (such as participation in advanced placement courses or a vocational education program)’

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Question from Michelle Aleshire, Parent, Cedar Grove Elementary:
    Can the school base promotion/retention primarily on IEP goals? If they are passing on the report card?

Kathleen Boundy:
    A school can base a promotion or retention decision on criteria contained in a student's IEP goals if the criteria being measured is the same criteria for making promtion/retention decisions that apply to all students. As has been discussed above, research does not support retention as an effective educational policy for any students. It is, nonetheless, possible that a student who fails to meet the measurable outcomes required for promotion could nonetheless receive passing grades on their report card.

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Question from Mrs. Rachel Clouse parent of ld. student:
    Hello, My question is how do you know if a teacher or teacher's aid is qualified to work with exceptional children? Who does the checking before they are hired? If a meeting is held concerning my child,who is ld.,am I suppose to be invited?

Kathleen Boundy:
    Rachel:

The 2004 amendments to IDEA require a special education teacher to be "highly qualified" meaning that they must be fully certified in special education or have passed the state special education teaching examination and hold a license to teach special education in the state AND at a minimum have a bachelor's degree.

Special educators who are teaching core academic subjects must, consistent with the Elementary and Secondary Education Act, as amended by the No Child Left Behind Act, also be certified in the discpline in which they are teaching by the end ofthe 2005-06 school year. They are distinguished from consultative special educators who are not teaching core academic subjects (English, reading/langugae arts, math, science, foreign language, economics, civics/government, arts, history, geography). For more information, see the overview of the highly qualified teacher provisions in IDEA 2004 prepared by the U.S. Department of Education.

Another resource is available from the NEA, which produced a "flow chart" to determine if special educators are "highly qualified" under both NCLB and the IDEA 2004 amendments. The Flow Chart is available here. Appropriately trained and supervised paraprofessionals may consistent with state law, regulation or written policy, assist in the provision of special education and related services to students with disablities. Hopefully, through regulation, the Department of Education will consistent with the Elementary and Secondary Education Act/No Child Left Behind Act, distinguish between paraprofessionals providing instruction versus non-instructional services.

Parents have a right to inquire about and receive information about the qualifications of their children's teachers, service providers, and aides. Responsbility for hiring personnel who meet the definitions of "highly qualified" generally lies with the school district,namely the Superintendent or School Board. Documentation of their qualifications must be maintained and publicly reported to the State under the ESEA/NCLB and IDEA.

You also have asked whether you ought to be invited whenever a "meeting" is held by school personnel about your child who is a child with a disability. The answer to your question lies in the definition of "meeting" under 34 C.F.R. 300.501(c).

A parent has a right to participate in meetings with respect to"

(i) The identification, evaluation, and educational placement of the child; and

(ii) The provision of FAPE to the child. 34 C.F.R 300.501(a)(2).

However, not every informal conversation about your child by school personnel does not constitute a "meeting" to which you are entitled to participate.

Under current reglation 34 C.F.R. 300.501(c)(2), "[a] meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision if those issues are not addressed in the child’s IEP. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting."

You will need to try to apply the facts that you know to this definition; I hope this information is helpful.

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Question from Mary Coleman, Developmental and Behavioral Pediatrician:
    Is Physical Education considered a related service or is it in an equivelent category to Special education with PT and OT as related services. In other words do children in speical education also have the right to a separtate physical education plan with or without adaptation and related services as needed? Can a child's only special education need be the need for special physcial education?

Kathleen Boundy:
    Mary:

By law and regulation, special education is defined as 'specially designed instruction, at no cost to the parents, to neet the unique needs of a child with a disabilitiy , including --

(A) instruction in the classroom, home, hospitals and institutions and other setting; and

(B) "instruction in physical education." Sec. 602(29).

By regulation "physical education" means the development of "(A) Physical and motor fitness; (B) Fundamental motor skills and patterns; and (C) Skills in aquatics, dance,and individual and group games and sports (including intramural and lifetime sports); and 9ncludes "special physical education, adapted physical education, movement education, and motor development." 34 C.F.R. 300.26(a)(ii).

Physical therapy and occupational therapy are expressly defined by statute as related services - meaning included as a developmental, corrective, or other supportive service as may be required to assist a child with a disability to benefit from special education. Sec. 602(26) Both OT and TT are further defined by regulation at 34 C.F.R.300.24(b)(5) and (8).

Because the definition of related services is non-exhaustive, it is also possible that "physical education" may be considered a "related service" necessary to enable a child to benefit from his/her special education program.

While a child with a disability may be provided physical education and/or adaptive physical education as part of his/her special education program [or as related services necessary to benefit from special education], provision of physical education will,as e.g., vocational education, be identified and provided through the student's IEP, and there is no requirement that the student be provided a separate physical education plan regardless of whether the PE being provided is adapted and/or any necessary related services.

Though somewhat unusual, a child's only special education need can be the sole need for specially designed instruction in physical education.

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Question from Ellen Costain:
    In view of the fact that NCLB has required schools to make Adequate Yearly Progress and the schools feel they can not do that if special educations students count in that figure I have a concern about losing the right to "stay-put" when due process complaint is filed combined the new lose wording in IDEA 2004 about removing students for behavioral infractions. My concern is that schools will remove our children for small infractions so that they don’t deflate the Adequate Yearly Progress number. Is there some way to get a behavioral manifestation consideration built into an IEP to protect our children from such an abuse by a school district?

Kathleen Boundy:
    Ellen,

I very much share your concern. The elimination of "stay-put" during the pendency of an appeal challenging the disciplinary exclusion of a student with a disability for non-weapon, drug, or dangerous behavior, is cause for significant concern.

No longer will students with disabilities be able to remain in their current educational placements when a parent challenges the factual basis of a school code violation, or a finding of "no manifestation," a proposed interim alternative education placement, or proposed provision of FAPE. Elimination of "stay-put" protection during the pendency of any appeal will result in unnecessary disruption of education for students with disabilities who are already behind their school-age peers without disabilities. Also, as you properly point out, schools, unable to demonstrate AYP for the disaggregated population of students with disabilities, may well be tempted to use disciplinary exclusion to push out these students who are struggling to succeed, so they will not be counted for AYP purposes at the school level.

It is essential that parents and advocates take steps through the evaluation, re-evaluation and IEP processes to anticipate and to mitigate against the likelihood of students with disabilities being charged with violating school codes (as applied to their peers without disabilities) for demonstrating behavior that ought to be addressed as an education matter, and thus, be considered a manifestation of disability. For students with known history of behavioral issues, consider having a functional behavioral assessment done to protect the student from unnecessary exclusion and to address the student's behavior as an educational matter. Even for students without a significant history and for whom a functional behavioral assesment may not be warranted, consider flagging in the IEP known or suspected problematic behavior [e.g., agitation; self directed anger or other inappropriate response, as use of profanity, impulsivity, explosiveness and need for cooling off].

Also, consider spelling out a process to be implemented to address the behavior before the line is crossed and a real problem develops; if, e.g., a student is likely either not to read cues or to manifest attitude that may be misinterpreted, spell out what mitigation steps should be taken, what might be expected so that inappropriate behavior does not recur. The student ought not be protrayed as someone to be feared, but the evaluation/IEP process should be utilized to explain what appropriate responses and/or interventions should be used, what has been tried, what works and what is not effective.

By parents and students, as appropriate, taking explicit affirmative steps, it is more difficult for school authorities to argue that the student's behavior is not related to the student's disability and/or not integral to his/her social, psychological and/or emotional status.

Consider spelling out a process to be followed,including contacting the parents and scheduling a meeting for the student to share insights and assume responsbility; reconvening the IEP team, identifying new, different interventions when there is any indication of behaviors that might trigger an exclusion beyond 10 school days.

Remember, the group of persons making the Manifestation Determination based on the new statutory provision must review all relevant information in the student's file, inluding but not limited to the child's IEP, any teacher observations, and any relevant information provided by the parent to determine if the conduct in question was coaused by, or had a direct and substantial relationship to the child's disability; or if the conduct was the direct result of the local educational agency's implementation of the IEP. Parents and students can add to the student's record to share documentation of positive, effective interventions, to identify effective programming and services --- all of which must be construed as relevant information when a manifestation determination is made.

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Question from jane magro, parent,:
    My child's school changed her IEP dates from 5/04 - 5/05 to 9/04 - 9/05 without consulting me first. Do I have a right to get those dates changed back?

Kathleen Boundy:
    Jane: Such a change would require informed parental consent.

Although the new 2004 amendments authorize changes to be made to IEPs without convening the Team, documentation of parental consent and agreement is critical.

This is an important issue. Thanks for bringing it up tonight.

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Laura Kaloi (Moderator):
    Our time is about up for tonight. We thank everyone who took time to send in questions and those who joined in tonight to follow the discussion. And we thank our experts who have provided an abundance of highly useful information.

I would like to invite each of you to become a member of NCLD's Legislative Action Center. As a member, you will receive regular updates on important policy activities in Washington that impact people with LD. We'll also let you know about critical issues that need your action. Our latest legislative update, dealing with important changes to NCLB assessment requirements for students with disabilities, is available here . If you would like to join our Action Center team, please join here.

Thank you for joining our discussion tonight.

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Laura Kaloi (Moderator):
    Upcoming LD Talk

Join us on Tuesday, May 24, 2005 from 3 to 4 PM EDT for our live chat with Dr. Blanche Podhajski, founded and president of the Stern Center, a nonprofit center dedicated to providing services for children and adults with learning disabilities located in Williston, VT.

Dr. Podhajski will provide information and advice on how to help struggling readers during the upcoming summer months.

Mark your calendar!

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