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Child's IEP: Practical and Legal Guidance for Parents
Pamela Darr Wright, M.A., M.S.W.
Licensed Clinical Social Worker
Peter W. D. Wright, Esq.
Should be in my child's IEP?
Guidance for Parents
to Reader: This article was written before IDEA 2004 was enacted and is based on IDEA 97. When you read the article, keep that in mind. We wrote two books about IEPs after IDEA 2004 was enacted.
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
Because they are not educators, most
parents don’t understand that they have a unique role to play in the
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.
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.
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.
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
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
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
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."
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
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
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
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
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
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.
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
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.
In our newest book,
Wrightslaw: From Emotions to Advocacy, we discuss
Tests and Measurements in Chapter 10 and 11, and "SMART IEPs"
in Chapter 12. In Chapter 12, you will learn that a "SMART IEP"
is Specific, Measurable, use Actions words such
as 'be able to,' is Realistic, and Time specific.
You will learn how to deal with an educator
who proposes an IEP objective that the child will have a better attitude
or be a better citizen. Such fuzzy terms are "states of being'
that have no place in an IEP. You will learn how to help that educator
define the terms and create observable measurable objectives using the
child's observable behavior. Without being pushy, you will help the
educator draft an appropriate objective as you use our "Five
W's+H+E" technique discussed on pages 37, 113 and 114. When
the IEP objective was drafted by the educator and meets the SMART IEP
standard, it is a win win outcome for the child, parent, and educator.
Chapter 12, about SMART IEPs,
will give you a primer / advance sneak preview of the content of our
next book Wrightslaw: SMART IEPs scheduled for release
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 1997 statute and regulations
are no longer active. The currrent reauthorization of IDEA 2004 can be found in Wrightslaw:
Special Education Law, 2nd Edition. Appendix A (IDEA 1997) can be found on the Wrightslaw site.
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.
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). The full text of the Rowley decision is
Special Education Law.
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.
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))
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
Beginning at the kindergarten level,
James attended public school in Vance County, North Carolina for six
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
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
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.
Objective Tests to Measure Educational Benefit
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
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. Sample charts and two chapters
about understanding educational and psychological tests are in Chapter
10 and 11 of Wrightslaw:
From Emotions to Advocacy.
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. The full text of Burlington is in
Special Education Law. 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.
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.
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.
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."
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"
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)).
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
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))
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
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. The full text
of Carter is in Wrightslaw:
Special Education Law.
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
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.
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.
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.
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
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
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
Skills like reading, writing and math
can and should be measured by objective testing.
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.
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.
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. The full text of Appendix A
is in Wrightslaw:
Special Education Law.
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.
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)
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 . .
Appendix A is an important tool to use
when developing a child's IEP. You can download Appendix
A from the Wrightslaw site.
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
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."
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
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.
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).
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.)
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.
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
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.
IEPs: How to Develop Legally Correct and Educationally Useful IEPs
by Barbara Bateman and Mary Anne Linden (Sopris West)
Complete IEP Guide: How to Advocate for Your Special Ed Child
by Lawrence Siegal (Nolo Press)
Instructional Objectives by Robert Mager
Instructional Results by Robert Mager.
IDEA 2004 byy Peter W. D. Wright and Pamela Darr Wright (Harbor
House Law Press)
From Emotions to Advocacy, 2nd Edition by Peter W. D. Wright
and Pamela Darr Wright (Harbor House Law Press)