INTRODUCTION
If you are like
many parents, when you receive a telephone call or letter inviting you
to an IEP meeting, you respond with anxiety. Few parents look forward
to attending IEP meetings. You may feel anxious, confused and inadequate
at school meetings. What is your role? What do you have to offer? What
should you do? Say? Not do?
Because they are
not educators, most parents don’t understand that they have a unique
role to play in the IEP process.
Parents are the
experts on their child.
Think about it.
You spend hours every week in the company of your child. You make casual
observations about your child in hundreds of different situations. You
are emotionally connected to and attuned to your child. You notice small
but important changes in your child’s behavior and emotions that may
be overlooked by others. You have very specialized knowledge about your
child. This also helps to explain why your perspective about your child
may be quite different from that of the educators who only observe your
child in the school setting.
Why do parents feel
so anxious, inadequate and intimidated in school meetings? Most parents
seem to believe that because they are not "trained educators"—and don’t
speak "education jargon"—they have little of value to contribute to
discussions about their child’s education.
The
"Parental Role"
Perhaps we can explain
"parental role" more clearly if we change the facts to illustrate our
point.
Think back to the
last time your child was sick and you saw a doctor for medical treatment.
You provided the doctor or nurse with information about the child’s
symptoms and general health. They asked you for your observations—because
you are more familiar with your child.
Good health care
providers elicit this kind of information from parents. They do not
assume that unless parents have medical training, they have little of
value to offer! When health care professionals diagnose and treat children,
they gather information from different sources. Observations of the
child are an important source of information. The doctor’s own medical
observations and lab tests are added to the information you provide
from your own personal observations.
Do you need to be
medically trained before you have any valid or important information
to offer the doctor about your child’s health? Of course not.
Decision-Making:
Medical v. Educational
To diagnose a child’s
problem and develop a good treatment plan, doctors need more than subjective
observations. Regardless of their skill and experience, in most cases
doctors need objective information about the child. Information from
diagnostic tests provides them with objective information. When medical
specialists confront a problem, they gather information—information
from observations by themselves and others and from objective testing.
Special education
decision-making is similar to medical decision-making. The principles
are the same. Sound educational decision-making includes observations
by people who know the child well and objective information from various
tests and assessments.
In both medical
and educational situations, a child is having problems that must be
correctly identified. The Individualized Education Plan (IEP) is similar
to a medical treatment plan. The IEP includes information about the
child’s present levels of performance on various tests and measures.
The IEP also includes information about goals and objectives for the
child, specifically how educational problems will be addressed. The
IEP should also include ways for parents and educators to measure the
child’s progress toward the goals and objectives.
How
to Evaluate Progress
Now, think back
to that last time your child was sick and needed medical attention.
You left the doctor’s office with some sort of plan—and an appointment
to return for a follow-up visit. When you returned for the follow-up
visit, you were asked more questions about how your child was doing—again,
you were asked about your observations. This information helped the
doctor decide whether or not your child was responding appropriately
to treatment. If you advised that your child was not responding to the
treatment and continued to have problems, then the doctor knew that
more diagnostic work was needed and that the treatment plan may need
to be changed.
Special education
situations are similar to medical situations - except that these decisions
are made by a group of people called the IEP Team or IEP Committee.
As the parent, you are a member of the IEP team. Before the IEP Team
can develop an appropriate plan (IEP) for your child, the child’s problems
must be accurately identified and described.
To make an accurate
diagnosis, the IEP team will need to gather information from many sources.
This information will include subjective observations of the child in
various environments - including the home environment and the classroom.
The information should also include objective testing. Objective testing
needs to be done to measure the extent of the child’s problems and provide
benchmarks to measure progress or lack of progress over time.
If your child receives
special education services, you know that a new educational plan or
IEP must be developed for your child at least once a year. Why is this?
Children grow and
change rapidly. Their educational needs also change rapidly. In many
cases, the IEP needs to be revised more often than once a year. Parents
and educators can ask for a meeting to revise the IEP more often than
once a year—and new IEPs can be developed as often as necessary.
The child’s educational
plan, i.e. the IEP, should always include information from objective
testing and information provided by people—including the parents and
teachers—who observe the child frequently.
Back
to Top
WHAT
SHOULD BE IN MY CHILD’S IEP?
The IEP should accurately
describe your child’s learning problems and how these problems are going
to be dealt with.
Present
Levels of Educational Performance
One of the best
and clearest ways to describe your child’s unique problems is to include
information from the evaluations. The IEP document should contain a
statement of the child’s present levels of educational performance.
If your child has reading problems, the IEP should include reading subtest
scores. If your child has problems in math calculation, the IEP should
include the math calculation subtest scores. To help you understand
what these scores mean, you should read our article "Understanding Tests
and Measurements."
Goals
and Objectives
The IEP should also
include a statement of measurable annual goals, including benchmarks
and short- term objectives. The goals and objectives should be related
to your child’s needs that result from the disability and should enable
your child to be involved in and progress in the general curriculum.
The goals and objectives should meet other educational needs that result
from your child’s disability.
The IEP goals should
focus on reducing or eliminating the child’s problems. The short term
objectives should provide you and the teacher with ways to measure educational
progress. Are reading decoding skills being mastered? How do you know
this? An IEP should include ways for you and the teacher to objectively
measure your child’s progress or lack of progress (regression) in the
special education program.
In our work, we
see many IEPs that are not appropriate. These IEPs do not include goals
and objectives that are relevant to the child’s educational problems.
In one of our cases, the IEP for a dyslexic child with severe problems
in reading and writing, included goals to improve his "higher level
thinking skills," his "map reading skills" and his "assertiveness"—but
no goals to improve his reading and written language skills. This is
a common problem—IEP goals that sound good but don’t address the child’s
real problems in reading, writing or arithmetic.
If you take your
child to the doctor for a bad cough, you want the cough treated. You
won’t have much confidence in a doctor who ignores the cough—and gives
you a prescription for ulcer medicine!
Measuring
Progress:
Subjective Observations or Objective Testing?
Let’s return to
our medical example. Your son John complained that his throat was sore.
You see that his throat is red. His skin is hot to the touch. He is
sleepy and lethargic. These are your observations.
Based on concerns
raised by your subjective observations, you take John to the doctor.
After the examination, the doctor will add subjective observations to
yours. Objective testing will be done. When John’s temperature is measured,
it is 104. Preliminary lab work shows that John has an elevated white
count. A strep test is positive. These objective tests suggest that
John has an infection.
Based on information
from subjective observations and objective tests, the doctor develops
a treatment plan—including a course of antibiotics. Later, you and John
return—and you share your ongoing observations with the doctor. John’s
temperature returned to normal a few days ago. His throat appears normal.
These are your subjective observations.
Subjective observations
provide valuable information—but in many cases, they will not provide
sufficient evidence that John’s infection is gone. After John’s doctor
makes additional observations—she may order additional objective testing.
Why?
You cannot see disease-causing
bacteria. To test for the presence of bacteria, you must do objective
testing. Unless you get objective testing, you cannot know if John’s
infection has dissipated.
By the same token,
you will not always know that your child is acquiring skills in reading,
writing or arithmetic—unless you get objective testing of these skills.
How will you know
if the IEP plan is working? Should you rely on your subjective observations?
The teacher’s subjective observations? Or should you get additional
information from objective testing?
Is
Your Child "Really Making Progress?"
We have worked with
hundreds of families who were assured that their child was "really making
progress." Although the parents did not see evidence of this "progress,"
they placed their trust in the teachers. After their child was evaluated,
these parents were horrified to learn that their suspicions were correct—and
the professional educators were wrong.
In one of our cases,
Jay, an eight year old boy with average intelligence, received special
education services for two years -- through all of kindergarten and
first grade. Jay’s parents felt that he was not learning how to read
and write like other children his age. The regular education and special
education teachers repeatedly assured the parents that Jay was "really
making progress." The principal also told the parents that Jay was "really
making progress."
After he completed
first grade, the parents had Jay tested by a private sector diagnostician.
The results of the private testing? Jay’s abilities were in the average
to above average range. His skills in Reading and Written Language were
at the early to mid-Kindergarten level. After two years of special education,
Jay had not learned to read or write.
When teachers tell
you that your child is "making progress," that teacher is giving you
an opinion based on subjective observations. As you just saw in Jay’s
case, opinions and subjective observations may not give you accurate
information.
If you have questions
or concerns about whether your child is really making progress, you
need to get objective testing of the academic skills areas—reading,
writing, arithmetic and spelling. After you get the results of objective
testing, you will know whether or not your child is really making progress
toward the goals in the IEP.
The
IEP: The "Centerpiece" of Special Education Law
The IEP has been
called the "centerpiece" of the special education law. As you read through
this article, you will learn more about the law—and the rights that
insure that all children who need special education receive appropriate
services. You will read about cases that have been decided around the
country. Each of these cases is having an impact on the special education
system today—improving the quality of special education services for
all handicapped children—including your child.
After you learn
about the law, regulations and cases, you will know how to write an
IEP. If the IEP is written properly, you will be able to measure your
child’s progress.
We said this earlier—and
it bears repeating. If you measure your child’s progress—using objective
measures—you will know whether your child is actually learning and benefiting
from the program. If objective testing shows that your child is not
learning and progressing as expected, then you know that the educational
plan is not appropriate and your child is regressing.
If your child is
not learning and making progress—with progress measured objectively—the
IEP should be revised. (For more information about revising the IEP
if child does not make progress, see Appendix A of the Regulations).
Read our companion
article: Understanding
Tests and Measurements for the Parent and Advocate. When you
master the information in these articles, you'll be on your way to developing
good IEPs for your child.
LAW
AND REGULATIONS
The IDEA statute
was amended in June, 1997. When the Individuals with Disabilities Education
Act (IDEA) was amended, changes were made in the section about "Individualized
Educational Programs." The new federal regulations were issued in March,
1999. You will find helpful information about IEPs in the Code of Federal
Regulations (CFR) and Appendix A of the Regulations.
(NOTE: The
IDEA statute, regulations and Appendix A are in Wrightslaw:
Special Education Law. The Regulations and Appendix A are also
on the Wrightslaw site. The Regulations page is at https://www.wrightslaw.com/law/code_regs/Index_IDEA_Regs_990313.htm
Legal
Decisions
To help educate
you about IEPs and what they should include, we are including information
from actual cases. Each case was selected to illustrate specific points
about IEPs. After you read this section, you will have a clear understanding
about the law and IEPs.
Board
of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley
458 U. S. 176 (1982)
In 1982, the United
States Supreme Court issued its first special education decision in
Board of Education of the Hendrick Hudson Central School District
v. Rowley, 458 U. S. 176 (1982).
When the Supreme
Court heard her case, Amy Rowley was a first grade child who was also
deaf. Before Amy entered first grade, her parents asked that Amy be
provided with a sign language interpreter. Although Amy could lip read,
the parents asserted that an interpreter would enhance her ability to
learn.
The Supreme Court
decided that Amy did not need a full- time sign language interpreter
at that time. They wrote that Amy was "a remarkably well-adjusted child"
who performed "better than the average child in her class and is advancing
easily from grade to grade." Although Amy was not performing as well
as she would if not for her handicap, the Court concluded that the law
did not require public schools to furnish "every special service necessary
to maximize each handicapped child’s potential."
Public schools often
use the Rowley decision to justify their refusal to provide children
with a program that does more than permit "grade to grade" advancement.
All too often, schools lower expectations for special education children,
"dummy down" the curriculum, and "socially promote" the children. Then,
they assert that because the child is progressing from grade to grade,
this proves that the child does not need more intensive services, including
remediation in reading, writing and arithmetic.
"Educational
Benefit"—How Much Is Enough?
In Rowley,
the Supreme Court wrote that the child’s individualized educational
program (IEP) should be "reasonably calculated" to enable the child
to receive "educational benefit." Since the Rowley decision was
issued in 1982, parents and school officials have often disagreed about
"educational benefit"—and how much educational benefit is "enough."
Courts have found that because children with disabilities have "unique"
needs, decisions about "how much is enough" must be made on a case by
case basis. As noted in the U.S. District Court’s opinion, (483 F. Supp
536. (S.D. NY 1980)) Amy Rowley’s standardized test scores were at the
70th to 80th percentile ranks in comparison to
her peer group. Average is at the 50th percentile rank. On
the testing, she scored two to four grade levels above her peers.
Sometimes, disagreements
about educational benefit are called "Cadillac-Chevrolet" disputes.
Remember: In Rowley, the Supreme Court ruled that children are
entitled to an appropriate education (i.e. a Chevrolet), not
the best education money can buy (a Cadillac). One Ohio Hearing Officer
wrote that the child was entitled to a Chevrolet—and the school district
gave him a lemon! (Fayetteville-Perry Sch. District, 20 IDELR
1289 (SEA OH 1994))
Hall
v. Vance County Bd. of Education
In 1983, a landmark
decision was issued in North Carolina. Later, this decision was affirmed
by the Fourth Circuit.
In Hall v. Vance
County Bd. of Education, (1983-1984 EHLR DEC. 555:437 (E.D. NC 1983),
affirmed at 774 F.2d 629, (4th. Cir. 1985)) Judge Dupree
described the situation faced by young James Hall:
James A. Hall, IV
is suffering from a severe learning disability known as dyslexia, a
neurological disorder which manifests itself as a reading disability
where the reader can neither decipher nor comprehend the symbols on
a written page. There is presently no cure for dyslexia, rather, the
leader must learn to cope with the disability and to develop alternate
methods of unscrambling the symbols.
Beginning at the
kindergarten level, James attended public school in Vance County, North
Carolina for six years.
From the beginning,
James had academic problems. The school district evaluated him and they
found that although he had good intellectual ability, his reading skills
were very poor. There was a big gap between James’ ability and his reading
skills. The school district offered an IEP that provided James with
30 minutes of small group instruction twice a week.
Think back to our
discussion of educational benefit. What do you think of this
plan—to provide James with tutoring in a small group twice a week for
30 minutes? Will this provide James with educational benefit from which
he could truly learn how to read?
In his decision,
Judge Dupree wrote that although James received special education in
his public school (the small group instruction twice a week), his academic
problems did not improve—and he developed more problems. In his decision,
the judge discussed these problems:
He was not only
developing a "school phobia" characterized by frequent absences, but
also was not mastering basic competency skills such as identifying
which restroom was for "gentlemen" of "ladies" or the ability to go
to the store to make small purchases at his mother’s request.
In May, 1980,
the end of James’ fourth grade year, James was again administered
a battery of tests. The scores of this test compare with the December,
1978 test as follows:
Thus in three semesters
of work under the IEP James had little or no grade improvement in his
primary area of deficiency and had yet to improve over one-half a year
total. However, during this time, he was promoted from the third grade
to the fourth grade and then from the fourth grade to the fifth grade.
With the new results
at hand, a new IEP was developed which employed similar procedures followed
the past three semesters. At this stage James had been subjected to
at least three sets of tests over several years all of which indicated
that he had a high overall intelligence with good mathematical skills,
yet was unable to read. With James still unable to read past the second
grade level though promoted to the fifth grade with virtually the identical
IEP which had been employed over the past three semesters, the parents,
approaching desperation, decided to enroll James in a private school
for the 1980-81 school year.
Use
Objective Tests to Measure Educational Benefit
STOP:
Re-read the above paragraphs again!
These paragraphs
are taken from the decision in James’ case. You can see that Judge Dupree
used information from educational achievement tests to measure educational
benefit. He compared James’ scores on the December 1, 1978 test and
the scores on the May 12, 1980 test after eighteen months of special
education. Comparing the test scores, the judge concluded that:
. . . in three
semesters of work under the IEP James had little or no grade improvement
in his primary area of deficiency and had yet to improve over one-half
a year total.
James’ scores on educational
achievement tests provided Judge Dupree with proof that James made little
progress in the public school program—although he "passed." In fact, although
James was passed from the third grade to the fourth grade and on to the
fifth grade, his reading skills remained at the second grade level. Passing
from grade to grade did not mean that James Hall had learned how to read.
In despair, James’
parents withdrew him from the public school program and enrolled him
in Oakland School. Oakland is a small special education school in Virginia
that specializes in providing educational remediation to children like
James—children who have learning disabilities. After James attended
Oakland for a few months, he was re-tested. The new testing showed that
his reading and spelling skills had increased by more than one grade
level.
Judge Dupree awarded
reimbursement to James’ parents for his education at Oakland. He found
that the IEPs developed by Vance County did not provide James with an
appropriate education—an education from which the child benefited. He
also decided that James was receiving an appropriate education at Oakland
School. What facts supported Judge Dupree’s decision?
After James enrolled
at Oakland, his educational program changed. New educational testing
a few months later showed that James was learning how to read. He made
more than one year of progress after just a few months. Judge Dupree
cited the new educational scores in his decision—James was receiving
an appropriate education at Oakland School.
If your child receives
special education, then your child should have been tested with educational
achievement tests. Have you obtained a complete copy of your child’s
file? Do you have all of the actual test scores and the written narrative
that explains the scores? If you have the actual test scores, then you
can do exactly what Judge Dupree did.
First, you need
to make a list of all the different tests done on your child (most tests
are made up of several subtests). Using a highlighter, mark any of the
tests or subtests that have been given more than once. Some of the commonly
administered educational achievement tests are the Woodcock-Johnson,
the Kaufman (KTEA), the Wechsler Individual Achievement Test (WIAT)
and the Wide Range Achievement Tests (WRAT). The Wechsler Intelligence
Scale for Children, Third Edition (WISC-III) is the most commonly given
intelligence test.
Next, make a list
of repeated tests—any tests or subtests that have been given more than
once. You will be charting out subtests that are the same or similar—tests
of reading decoding skills or reading comprehension skills, math calculation
skills, and so forth.
You need to understand
that subtests or composite scores do not necessarily measure what they
seem to measure. For example, the reading score on the Wide Range Achievement
Test actually measures the child’s ability to recognize and pronounce
individual words out of context. Many refer to it as a "word recognition"
test.
On the Woodcock-Johnson
achievement tests, the reading measures may actually measure the child’s
ability to identify specific letters and words and fill in the blanks
on words that may be missing from a paragraph. A score reported as "passage
comprehension" may actually measure the child’s ability to intelligently
"guess" what the passage of text is about by recognizing some of the
words in the passage. The child may not being able to read many of these
words.
In the Gray Oral
Reading Test, the child reads a paragraph out loud. The evaluator assesses
the rate, accuracy and comprehension. This provides a more accurate,
meaningful assessment of the child’s actual reading abilities. It is
important that you understand what tests are administered and what the
tests truly measure.
Next, you need to
chart out progress—using the repeated subtest scores. After you chart
out your child’s educational scores, you will have a much clearer idea
as to whether or not your child is benefiting from the special education
program—and whether the IEP is providing an appropriate education.
Burlington
v. Dept. of Educ. for the Commonwealth of Mass.
In 1985, the Supreme
Court issued a ruling in a special education case that originated in
Massachusetts. Burlington (471 U.S. 359 (1985)) was the second
important special education case heard by the Supreme Court. In Burlington,
the Supreme Court decision addressed IEPs and what IEPs should include:
The free appropriate
public education (FAPE) mandated by the Individuals with Disabilities
Education Act (IDEA) is designed for the specific needs of the child
through the Individualized Educational Program (IEP) which is "a comprehensive
statement of the educational needs of a handicapped child and the
specially designed instruction and related services to be employed
to meet those needs."
Case law supports our
position that an adequate IEP is essential. But what is "adequate?" How
much "benefit" is enough? Let’s take a look at some more case law.
Is
the IEP "Adequate?"
In 1985, a Federal
Judge in New York found that an IEP was adequate because:
. . . specific
goals to which Glen’s grade level are to be raised are listed in all
areas of reading, verbal skill and math. Romeo v. Ambach, 1984-1985
EHLR DEC. 556:488 (E.D. NY 1985).
Parents take note:
In this case, the objective tests were changes in the child’s grade equivalent
scores. The judge in James Hall’s case also used grade equivalent scores.
Is
the IEP "Sufficient?"
In 1988, the Idaho
Supreme Court found that the Boise school system had not offered or
provided a free, appropriate education (FAPE) because they did not develop
an IEP that was "sufficient." The IEP was not "sufficient" because it
did not specify the criteria and evaluation procedures that would be
used to determine whether the IEP goals were being met. The Idaho Court
noted that:
Above all else,
Congress recognized that handicapped children are unique and that placement
decisions must be made on an individual basis, by a multidisciplinary
team, according to a variety of criteria ". . . The importance of the
IEP cannot be understated. It is the decision making document. (Thornock
v. Boise Independent School District #1, ___ Idaho Sup. Ct. ___,
767 P. 2d 1241, 1987-1988 EHLR DEC. 559:486 (1988)).
The Court found
that the two IEPs proposed by the school district were not sufficient
because they did not include " . . . goals, objectives and appropriate
objective criteria and evaluation procedures and schedules for determining,
on at least an annual basis, whether ‘instructional objectives are being
achieved’ as required by 20 U.S.C. Sec. 1401(19) . . . Because of the
flaws in Gabriel’s IEPs, the districts’ failure to acknowledge the deficiencies
of the IEPs it promulgated . . . we affirm the decision of the district
court . . . Without a valid IEP, there can be no FAPE, see 20 U. S.
C. Sec. 1401 (18), and therefore 34 C. F. R. Sec. 300.403(a) indicates
that (private school tuition) reimbursement is appropriate."
Subjective
Teacher Observations
In 1985, New Jersey
District Court Judge Sarokin reversed the decisions of two Administrative
Law Judges in a case that involved a hearing impaired child. He found
that the school district’s evaluations of Alisa fell "woefully short"
because they relied on subjective "teacher observations," not objective
or "scientific" test data:
They were based
almost solely upon observation . . . assessment consisted of primarily
non-standardized tasks and procedures . . . no scientific test results
seem to have been considered . . .Thus, but one procedure - teacher
evaluation - was utilized. Such procedures lacked scientific validity,
in that they were not systematic, were limited to a narrow range of
behavior and were not confirmed by recent test data, and thus tended
toward discriminatory evaluation, i.e., evaluation that is biased, in
this case against deaf children . . . The Court finds that this method
of assessment does not meet the requirements of the EAHCA, or its regulations.
(Bonadonna v. Cooperman, 619 F. Supp. 975, 1985-1986 EHLR DEC.
557:178, 183 (D. NJ 1985)).
How
Should Educational Progress Be Measured?
In our work with
parents and children, we have seen hundreds of IEPs that define "progress"
by subjective teacher observations, not objective testing of the child’s
skills. As you saw in Jay’s case, serious problems often come about
when educational decisions are made on the basis of subjective observations.
These problems have grave consequences for the child.
In 1989, the New
Jersey Supreme Court awarded tuition reimbursement to parents of a child
who had dyslexia. (see Lascari v. Board of Education of the Ramapo
Indian Hills Regional High School District, 560 A.2d. 1180, EHLR
441:565, (NJ 1989)) . This is what the Court had to say about the public
school IEP:
As previously
indicated, the purpose of the IEP is to guide teachers and to insure
that the child receives the necessary education. (See 34 C.F.R. §
300.346) . . .
Without an adequately
drafted IEP, it would be difficult, if not impossible, to measure
a child’s progress, a measurement that is necessary to determine
changes to be made in the next IEP. Furthermore, an IEP that is
incapable of review denies parents the opportunity to help shape
their child’s education and hinders their ability to assure that
their child will receive the education to which he or she is entitled.
Consequently,
the shortcomings that rendered John’s program incapable of review
also rendered it inappropriate . . . [Quoting the classification
officer] ‘Equally unclear is how any goals or progress was to be
measured or decided.’ The officer continued: "All teacher remarks
are found to be subjectively based . . . [T]he goals and objectives
of the IEP for 1980-81 and the proposed plan for 1981-82 are so
vague that they were meaningless."
In 1990, a federal
court in Alabama court struck down another public school IEP. Why? The
Judge wrote:
Like Cory’s
previous IEP’s, the new plan included only broad, generic objectives
and vague methods for monitoring Cory’s progress.
(Reference to
footnote 14, as follows) For example, the first objective in Cory’s
new IEP, provided, in standard form: "The student will maintain
a/an ___% average in math on the 3rd grade level," with
"80" written in the blank space, and stated that Cory would be evaluated
by reference to his "Daily work" and "Chapter tests." (Chris
D. and Cory M. v. Montgomery County Board of Education, 753
F. Supp. 922, 17 IDELR 267, 269, 273 (M.D. Ala. 1990))
A few months later,
a Nebraska District Court upheld a public school IEP because the IEP did
contain appropriate goals and objectives. (French v. Omaha Public Schools,
766 F. Supp. 765, 17 EHLR 811, (D. Neb. 1991))
This Nebraska case
analyzes IEP goals and objectives in accordance with Appendix C. The
Court noted that the IEP included very specific test data, including
percentile ranks and grade equivalent scores to describe the child’s
present levels of performance.
In 1993, a three
judge panel in Pennsylvania reviewed a child’s IEP and found that:
The IEP did
not meet substantive requirements because, even if it conferred some
educational benefit for Hope . . . it was not individualized to meet
her social and emotional needs.
The Appeals Panel listed
the factors that Hope’s IEP lacked—including present levels of functioning,
individualized behavior modification plan, objective criteria, assessment
procedures or timeliness to determine when goals were achieved, annual
goals written for Hope rather than general ones written for all students
in the class, and related services to address Hope’s social and emotional
needs.
The IEP was written
in a general fashion for students attending LD classes and did not address
Hope’s individual disability. (Big Beaver Falls Area School District
v. Jackson, __ Pa. __, 615 A. 2d 910, 19 IDELR 371, 373 (Pa. Commw.
1993))
Shannon
Carter v. Florence County School District Four
In 1991, a federal
judge in South Carolina issued his decision in Shannon Carter’s case.
In his decision, (Shannon
Carter v. Florence County School District Four, 17 EHLR
452 (D. Ct. SC 1991)). Judge Houck wrote that:
This evaluation
[of Shannon] indicates a serious learning disability, with a variance
between Shannon’s verbal IQ and performance IQ of 36 points. Various
subtests administered . . . yielded reading ability levels from 4.7
grade level equivalency to a 6.8 level. (at 453)
Shannon suffers
from a serious and significant learning disability . . . Shannon’s
learning disability is on the severe end of the scale. According
to Shannon’s parents and Dr. Grant, Shannon also suffered from significant
emotional overlay manifested by depression, feelings of low self
worth and self-esteem. Shannon entered Trident Academy in the fall
term of 1985 as a functional illiterate. (at 453)
How did Shannon’s case
begin?
First, the school
district refused to provide Shannon with any help—they insisted that
Shannon was lazy and unmotivated and that she was "choosing" not to
read. After constant pressure from her parents and private sector experts,
Florence County finally proposed an IEP for Shannon that would increase
her reading from a 5.4 level to a 5.8 level and her mathematics from
a 6.4 level to a 6.8 level—in one year. At that time, Shannon was about
to enter 10th grade.
In his ruling for
Shannon and her parents, Judge Houck wrote that this IEP was not appropriate
for Shannon:
Even if all
of the goals of the document had been met, Shannon would continue
to fall behind her classmates at an alarming rate . . . progress of
only four months in her reading and math skills over an entire school
year ensured the program’s inadequacy from its inception.
There appears
no doubt, then, that the Carters were entitled to withdraw their
child from the public school because of its failure to provide a
FAPE. (at 455)
The school district
appealed the District Court decision to the United States Court of Appeals
for the Fourth Circuit. After the school district lost, they appealed
to the United States Supreme Court. In a unanimous decision issued just
thirty-four days after oral argument, the Supreme Court affirmed the lower
court rulings and ordered that Shannon’s parents be reimbursed for her
private school education at Trident Academy.
Alex
Gerstmyer v. Howard County Public Schools
After the Supreme
Court issued the decision in Carter, an interesting case arose in Columbia,
Maryland. This case involved Alex Gerstmyer, a 6 year old child who
also had dyslexia. Although Alex had "red flag" problems in Kindergarten,
the staff at Alex’s school waited before testing him—they thought that
he might "grow out of his problems."
When Alex began
first grade, he had still not been evaluated. There was no IEP in place
for him. Alex quickly realized that he was different from the other
children—he was not learning how to read. At home, he was distraught
and said that he was "stupid." His alarmed parents had him evaluated
by a private sector psychologist—this testing confirmed that Alex had
dyslexia.
Later in the Fall,
the public school did propose an IEP. The parents felt that the IEP
was vague and did not provide Alex with the help he needed to overcome
his dyslexia. Alex was becoming more upset by the day—saying that he
was stupid and didn’t want to live. Presented with an inadequate IEP
for their son, his parents removed him from the public school program
and placed him into a Montessori school (non- special education school)
and asked for tuition assistance. (Gerstmyer
v. Howard County Public Schools, 850 F. Supp. 361, 20 IDELR
1327 (D. MD 1994)
In his decision,
Judge Motz described the public school IEP as ". . . nothing more than
a collection of forms prepared for other students stating only general
goals and not at all tailored to Alex’s special needs."
Because the IEP
was not tailored to Alex’s unique needs as a child with dyslexia, Judge
Motz awarded Alex’ parents reimbursement for their son’s education at
the Montessori school.
Evans
v. Board of Educ. of Rhinebeck Cent. Sch. Dist.
An excellent and
frequently quoted case about IEPs comes from New York — and involves
another child with dyslexia.
In Evans
v. Board of Educ. of Rhinebeck Cent. Sch. Dist.,930 F. Supp.
83, 24 IDELR 338, (S.D. N.Y. 1996), Judge Parker overturned earlier
administrative rulings and awarded Frank’s parent with reimbursement
for his tuition at The Kildonan School. In his decision, Judge Parker
discussed dyslexia and the educational techniques used to treat this
condition. Quoting Appendix C of the Code of Federal Regulations, he
discussed the problems of vague IEPs where the child’s progress cannot
be measured objectively:
[The IEP] .
. . wholly failed to identify his particular areas of deficit and
was based on information that was at least ten months old, I still
find that the IEPs did not adequately set forth strategies for evaluating
progress, in violation of 20 U.S.C. § 1401(a)(19) and 34
C.F.R. § 300.346(a)(2). The Act’s requirement of periodic
and individualized assessments of each handicapped child evinces a
recognition that children develop quickly and that a placement decision
that may have been appropriate a year ago may no longer be appropriate
today.
Appendix C defines
"short term instructional objectives" as "measurable, intermediate
steps between a handicapped child’s present level of educational
performance and the annual goals that are established for the child."
The objectives are to "serve as milestones for measuring progress
toward meeting the [annual] goals." They "provide a mechanism for
determining . . . whether the child is progressing in the special
education program . . . and whether the placement and services are
appropriate to the child’s special learning needs. In effect, these
requirements provide a way for the child’s teacher(s) and parents
to be able to track the child’s progress in special education."
34 C.F.R. Chapter 3, Appendix C, question 37.
The IEPs include
only broad, generic objectives and vague, subjective methods for
monitoring Frank’s progress. For example, the first goal in Frank’s
October 1994 IEP provided that he would be evaluated on the listed
objectives by reference to "teacher observation" and "80% accuracy."
With reference to the second goal, the October 1994 IEP provided
that Frank would be evaluated by "teacher observation" and "80%
success."
Although the
IEP repeatedly incants these phrases—"teacher observation," "80%
success"—because there is little indication of what Frank’s level
of success was when the IEP was written, it fails to specify strategies
for adequately evaluating Frank’s academic progress and determining
which teaching methods are effective and which need to be revised
. . . with regard to the June 1994 IEP, which used the same mantra
to a large extent, that it did not set forth measurable criteria
to assess progress. (at IDELR 345,346)
Top
of Page
PRACTICAL
GUIDANCE FOR PARENTS
What do these cases
mean to you—a typical, average parent—a parent who gets a knot in your
stomach when you think about going to an IEP meeting?
First, you know
that the IEP should include ways for you to measure your child’s progress
in special education—and that this progress should be measured objectively.
You saw that Judge
Dupree charted out James Hall’s educational achievement test scores
to measure the boy’s progress in the public school special education
program. After he charted out James’ scores, the judge realized that
James’ test scores had not improved much in his weak academic areas—especially
reading.
James’ failure to
make progress—as shown by the educational achievement tests—proved that
the public school program was not appropriate. After James transferred
to Oakland School, his test scores rose. This improvement showed that
James was receiving an appropriate education at Oakland School.
In Shannon Carter’s
case, Florence County proposed an IEP where, after a full year of special
education, Shannon would make just four months of progress in reading
and mathematics. Judge Houck wrote that this goal was "wholly inadequate."
The Fourth Circuit wrote that "a goal of four months’ progress over
a period of more than one year was rather modest for a student such
as Shannon and was unlikely to permit her to advance from grade to grade
with passing marks."
And in Frank Z.’s
case, Judge Parker’s decision shows that he was distressed to see that
Frank’s "progress" was being measured by subjective teacher observations.
School districts
often propose IEPs where the child’s progress is measured by subjective
"teacher observation" and "teacher made tests." "Teacher observation"
does not measure a child’s progress adequately.
Skills like reading,
writing and math can and should be measured by objective testing.
"You
Can’t Fail Special Ed!"
In many cases, kind,
well-meaning teachers work hard to teach their students. Teachers may
believe that your child is "really making progress" when this is not
the case. You saw how this affected Jay. After two years of special
education, Jay had not learned how to read or write. Yet, Jay’s teachers
sincerely believed that he was "really making progress."
Teacher assessments
of a child’s progress are subjective assessments by a person who has
a strong personal and emotional interest in the outcome.
"My
Child is Receiving Passing Grades"
Your child is receiving
passing grades - or good grades. As a parent, can’t you rely on grades
to advise you about your child’s progress?
In 1994, the Department
of Education released the results of studies about grading practices
in public schools. What did they learn?
The average grade
in middle school English and Math is a "B." Most middle school children
receive grades of "C" or higher in English and Math.
Grade inflation
is a serious problem. Parents cannot assume that "passing grades" shows
that their child is making real academic progress. You must see that
your child’s progress is measured objectively. When you compare the
results of objective testing over time, you will know whether your child
is making measurable progress toward his IEP goals.
Appendix
A: A Powerful Tool for Parents
In March, 1999,
Appendix A replaced Appendix C. Appendix A includes 40 Questions and
Answers about IEPs. In Appendix A, you'll find answers to questions
about what your child's IEP should include, how the IEP should be developed,
when the IEP should be revised, and clarification of the parental role.
Let’s take a look
at some of the Questions from Appendix A.
What
is the parent's role in the IEP process?
"The parents of
a child with a disability are expected to be equal participants along
with school personnel, in developing, reviewing, and revising the IEP
of their child. This role is an active role in which the parents
(1) provide critical
information regarding the strengths of their child and express their
concerns for enhancing the education of their child;
(2) participate
in discussions about the child's needs for special education and related
services and supplementary aids and services; and
(3) join with the
other participants in deciding how the child will be involved and progress
in the general curriculum and participate in State and district-wide
assessments, and what services the agency will provide to the child
and in what setting. (Question 5)
What
must be included in the IEP?
Present Levels
of Educational Performance
"Section 300.347(a)(1)
requires that the IEP for each child with a disability include: "a statement
of the child's present levels of educational performance, including
(i) how the child's disability affects the child's involvement and progress
in the general curriculum . . ."
Measurable Annual
Goals, Including Benchmarks or Short-Term Objectives
"As noted above,
each annual goal must include either short-term objectives or benchmarks.
The purpose of both s to enable a child's teacher(s), parents, and others
. . . to guage, at intermediate times during the year, how well the
child is progressing toward achievement of the annual goal.
"The revised statute
and regulations also provide that . . . IEP teams may develop benchmarks,
which can be thought of as describing the amount of progress the child
is expected to make within specificed segments of the year . . . benchmarks
establish expected performance levels that allow for regular checks
of progress . . . " (Question 1)
Must
the school inform parents about their child educational progress?
"Yes. [The law and
regulations] include a number of provisions to help ensure that parents
are . . . informed abut their child's educational progress .
. . "
"First, parents
will be informed regarding their child's present levels of educational
performance through the development of the IEP (Section 300.347(a)(1)
"Further, Sec. 300.347(a)(7)
sets forth new requirements for regularly informing parents about their
child's educational progress, as regularly as parents of nondisabled
children are informed of their child's progress. This section requires
that the IEP include:
A statement of --
(i) How
the child's progress toward the annual goals will be measured;
and
(ii) How the child's parents will be regularly informed (by such means
as periodic report cards), at least as often as parents are informed
of their nondisabled children's progress of --
(A) their child's progress toward the annual goals; and
(B) The extent to which that progress is sufficient to enable
the child to achieve the goals by the end of the year."
"Finally, the parents, as part of the IEP team, will participate at
least once every 12 months in a review of their child's educational
progress. (Question 10)
The
IEP Must Be Revised If Child Does Not Make "Expected Progress"
The school "must
initiate and conduct meetings periodically, but at least once every
twelve months, to review each child's IEP, in order to determine whether
the annual goals are being achieved, and to revise the IEP, as appropriate,
to address:
(1)
Any lack of expected progress toward the annual goals and in the general
curriculum . . .(Question 20)
Appendix
A
Appendix A is an
important tool to use when developing a child's IEP. You can download
Appendix A from the Wrightslaw site at
https://www.wrightslaw.com/law/code_regs/IDEARegs_AppendixA.htm
You can also get
Appendix A and other resources at The National Information Center
for Children and Youth with Disabilities (NICHCY): http://www.nichcy.org/
Get a complete list
of the special education publications from NICHCY.
How
to Develop an IEP That Measures Your Child’s Progress Objectively
You say—"I’m still
confused. The IEPs that have been developed for my child don’t include
objective measures of progress. How can they be written differently?
How will I know whether he is actually making progress?"
Change the facts.
Assume that you have an 8 year old son named Mike. Mike is upset - he
didn’t pass the President’s Physical Fitness Test. Mike tells you that
he wants to pass the test next year. He asks you to help.
You learn that there
are specific criteria that children must meet to pass the President’s
Physical Fitness Test. The children's performance on various activities
is measured objectively. You check Mike's scores. Mike ran the 50 yard
dash in the specified time, completed 12 (out of an expected 25) sit-ups,
and performed no pull-ups.
Now, you and Mike
know what he will need to do to accomplish his goal and qualify for
the President’s Physical Fitness Award. You help him develop a training
plan that includes short term objectives that focus on remedying his
areas of weakness (i.e. sit-ups, pull-ups) while maintaining or improving
his running ability.
When Mike takes
the President’s Physical Fitness Test, his performance on the various
tests is measured objectively. His running speed over a specific distance
is be measured with a stopwatch. His ability to do the required sit-ups
and pull-ups is measured by counting them. Because these measurements
are objective, anyone who observes this testing will know if Mike meets
the criteria for the Award.
Kevin
and Keyboarding
Let's look at an
IEP goal where progress toward the goal is measured subjectively and
objectively.
Our IEP goal says
that "Kevin will learn keyboarding [or typing] skills."
If Kevin’s progress
toward this goal is measured subjectively, his IEP may state that Kevin’s
progress toward learning keyboarding or typing will be determined by
"Teacher Judgment" or "Teacher Observation" or "Teacher - made Tests"
with a score of "80%" as the criteria for success.
If the IEP is written
properly, measuring progress objectively, the IEP may say "By the end
of the first semester, Kevin will touch-type a passage of text 15 words
per minute with not more than 5 errors on a 5 minute test. By the end
of this academic year, Kevin will touch type a passage of text for 5
minutes at 35 words per minute with not more than 5 errors."
Megan
and Reading
Let's look at Megan
who is having trouble learning to read. Megan is in the fifth grade.
According to educational achievement tests, her reading decoding skills
are at the beginning second grade level. Megan’s parents request special
education services to remediate their daughter’s reading problems. How
will her parents know if Megan is benefiting from the special education
program?
If Megan is being
appropriately educated, her test scores in reading will begin to improve
as she goes through the process of remediation. An appropriately written
IEP should indicate that after a year of remediation, Megan will make
progress toward closing the gap between her ability and her problems
in reading, and that her educational progress will be measured objectively
with educational achievement tests.
The IEP may state
that after a year of specialized instruction "Megan will be reading
at the 4th grade level as measured by her scores on the Reading
subtests of the Woodcock-Johnson Achievement Test." During the next
year, Megan’s IEP should include more goals in reading—with the ultimate
goal of closing the gap between Megan’s ability and her reading skills.
Parents can use
percentile ranks in the IEPs, instead of grade equivalent scores.
Let’s assume that
Megan’s reading test scores show that she is reading at the bottom 10th
percentile, when compared to other children her age. After a year of
appropriate special education, Megan probably will not be reading at
the 50th percentile level (i.e. the "average" level for children
her age). An objective may state that after a year of special education,
"Megan will be reading at the 25th percentile level" If Megan
moves to the 25th percentile level in reading, she be making
progress toward closing the gap.
Although Megan’s
reading skills are still below average, you see that she is making steady
progress. Megan’s progress in reading is being measured objectively
with standardized tests. Her progress is reported with numbers that
can be compared over time.
First
Steps
List your child’s
weaknesses, i.e., writing, arithmetic, spelling, typing, etc. Next,
list your child’s present levels of performance in objective measurable
terms. For example :
Present Levels:
My child reads a passage of text orally at the XYZ grade equivalent
level as measured by the Gray Oral Reading Test (GORT).
or
My child is
reading a passage of text orally at the XYZ percent level as measured
by the GORT.
These examples apply
to all disabilities—learning disabilities, autism, speech language deficits,
mental retardation, cerebral palsy. You need to know specifically where
the child's deficits are, what skills are deficient, what behavior needs
to be changed.
The starting point
should be observable and measurable percentile ranks, grade equivalents,
age equivalents or standard scores. Where should this skill be in one
year later? Use objective measurable terms, not subjective terms.
Write down a goal
that your child should achieve after one year of an appropriate special
education. (Special education should be designed to remediate
the child’s weaknesses.)
Sample
Goal
By May 15, [one
year later], my child will be able to read a passage of text orally
at the XYZ [insert the appropriate increased level here] grade equivalent
level as measured by the GORT.
or
By May 15, [one
year later], my child will be able to read a passage of text orally
at the XYZ [insert the appropriate increased level here] percent
level as measured by the GORT.
Now, you have an objective
measurable starting point and ending point, using norm referenced data.
How do you get from Point A to Point B?
Your map from Point
A to Point B includes short term objectives and/or benchmarks. To learn
more about appropriate goals, objectives and benchmarks, you need to
read publications about your child’s specific disability. As you become
more knowledgeable, you'll learn how to write objectives and benchmarks
that lead to the annual goal.
Your
Child’s IEP Should Measure Learning—Objectively
Learning is change.
Changes in academic skills can be measured objectively. Your child’s
test scores are like a series of photographs—they show that the child
is learning and acquiring new skills or knowledge.
Remember: Change
can and should be measured objectively—whether the area being measured
is physical fitness, strep throats—or educational progress.
Resources:
Better
IEPs: How to Develop Legally Correct and Educationally Useful IEPs
by Barbara Bateman and Mary Anne Linden (Sopris West)
The
Complete IEP Guide: How to Advocate for Your Special Ed Child
by Lawrence Siegal (Nolo Press)
Preparing
Instructional Objectives by Robert Mager
Measuring
Instructional Results by Robert Mager.
Wrightslaw:
Special Education Law by Peter W. D. Wright and Pamela Darr
Wright (Harbor House Law Press)