In 1982, the U. S. Supreme Court issued the first decision in a special education case in Board of Education v. Rowley, 458 U. S. 176. In Rowley, the Court held that school districts did not have to provide the best education for disabled students but merely had to provide services so the child received some educational benefit. Rowley established a low standard for a free appropriate public education (FAPE).
When you read the Findings and Purposes of IDEA 2004, you will see that Congress raised the bar for a free appropriate public education (FAPE).
Prepare Children to Lead Productive, Independent Lives
In Findings of IDEA 2004 (Section 1400(c)), Congress found that 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by having high expectations for such children, educating them in the regular classroom so they can meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children and be prepared to lead productive and independent adult lives, to the maximum extent possible. (Section 1400(c)(5)(A))
Prepare Children for Employment, Independent Living and Further Education
In Purposes of IDEA 2004 (Section 1400(d)), Congress describes what they intend the law to accomplish. In IDEA 2004, Congress added further education as a purpose of the law:
When Congress added further education to the Purposes of IDEA 2004, they established a new outcome for special education, an outcome that had never been identified before.
When you read in Findings that disabled children should be given the opportunity to meet the challenging expectations that have been established for all children and improve academic achievement and functional performance to the maximum extent possible (Section 1400(c)(5)(E)) and you read that one Purpose of the law is to prepare children for further education, you are looking at a new legal standard for a free appropriate public education.
As a parent or teacher, you need to understand that when Congress reauthorized IDEA 2004, they raised the bar. To meet these new legal requirements in IDEA 2004, schools will have to use research-based instruction and provide more intensive special education services.
Meet Developmental Goals & Challenging Expectations Established for Nondisabled Children to the Maximum Extent Possible
While the phrase to the maximum extent possible was included in earlier amendments to IDEA, there is significant qualitative difference in how this phrase is used in IDEA 2004. In IDEA 1997, the phrase to the maximum extent possible described the need to provide disabled children with access to the general curriculum and prepare children for life after school.
In IDEA 2004, the phrase to the maximum extent possible describes the requirements to meet the developmental goals and challenging expectations established for nondisabled children, to prepare children with disabilities to lead independent and productive adult lives, and to improve their academic achievement and functional performance.
Provide Teachers with Knowledge & Skills in Scientifically Based Instructional Practices
Congress also found that the education of children with disabilities can be made more effective if all school personnel who work with children with disabilities receive high quality, intensive professional development and training to ensure that they have the skills and knowledge necessary to improve the academic achievement and functional performance of children with disabilities, including the use of scientifically based instructional practices, to the maximum extent possible. (Section 1400(c)(5)(E))
When Congress reauthorized IDEA 2004, they specifically noted the intent to coordinate IDEA 2004 with the No Child Left Behind Act. (Section 1400(c)(5)(C)) Many definitions in IDEA 2004 come directly from NCLB, including the requirements for highly qualified teachers.
A highly qualified teacher has full State certification (no waivers), holds a license to teach, and meets the States requirements. Special educators who teach core academic subjects must meet the highly qualified teacher requirements in NCLB and must demonstrate competence in the academic subjects they teach. (Section 1401(10))
Closing the Gap
of the No Child
Left Behind Act is to ensure that all children have a fair,
equal, and significant opportunity to obtain a high quality education
and reach, at a minimum, proficiency on challenging State academic
achievement standards and State academic assessments. (20 U.S.C.
IDEA 2004 requires states to establish performance goals for children with disabilities that are the same as the states definition of adequate yearly progress under NCLB. (Section §1412(a)(15))
Attacking Low Expectations
Congress also found that implementation of the IDEA has been impeded by low expectations and an insufficient focus on applying replicable research and proven methods of teaching and learning for children with disabilities. (Section 1400(c)(5))
School personnel often assert that it is unreasonable to expect a child to achieve more than one year of academic progress in one year. School personnel assert this even more vigorously when they develop IEP goals for disabled children, goals that often reflect their low expectations.
But if a disabled child is two, three, or more academic years behind his nondisabled peers, the only way to close the gap is for the disabled child to make more than one year of academic progress in one year. When children with disabilities receive intensive instruction from teachers who are skilled in the use of scientifically based instruction, it is not unusual for these children to make more than one year of progress in an academic year.
Parents and teachers must learn about the requirements of NCLB and IDEA 2004 to ensure that these legal requirements are met. Although there is no private right of action under NCLB (i.e., parents cannot sue schools when they fail to meet NCLBs requirements), the failure to meet NCLB requirements can be used as evidence that a child did not receive an appropriate education. (To learn more about No Child Left Behind and IDEA, see Wrightslaw: No Child Left Behind by Peter W. D. Wright, Pamela Darr Wright and Suzanne Whitney Heath, published by Harbor House Law Press.)
Congress found that implementation of IDEA has been impeded by the failure of schools to apply replicable research on proven methods of teaching and learning. IDEA 2004 includes numerous references to scientifically based instructional practices and research based interventions. In describing permissible uses of federal funds, IDEA 2004 includes providing professional development to special and regular education teachers who teach children with disabilities based on scientifically based research to improve educational instruction. (Section 1411(e)(2)(C)(xi))
The childs IEP must include a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable to be provided to the child. (Section 1414(d)(1)(A)(i)(IV))
In determining whether a child has a specific learning disability, IDEA 2004 describes a process by which the IEP team may use a process that determines if the child responds to scientific, research based intervention as a part of the evaluation process. (Section §1414(b)(6)(B))
This language in IDEA 2004 creates new requirements for schools to use scientific research based instructional practices and interventions that are based on accepted, peer-reviewed research, if such research exists.
School officials often refuse to write educational methodologies into the IEP. They argue that teachers should be free to use an eclectic approach to educating children with disabilities, and should not be forced to use any specific methodology.
Congress rejected this practice when they reauthorized IDEA 2004.
By including frequent references to the need to use scientific, research based instruction and interventions, Congress clarified that methodology is vitally important. By requiring the childs IEP to include a statement of special education, related services and supplementary aids and services, based on peer reviewed research (Section 1414(d)(1)(A)) Congress clarified that IEPs must include research-based methodology.
Including methodology in the childs IEP will benefit the childs parents and teachers. As participants in developing their childs IEP, parents will benefit by having input into the instructional methods used to teach their children. The teachers who implement the IEP will benefit by having guidance from a team of professionals who are familiar with the child and who have reviewed the research to determine the interventions and instructional methods that are most likely to provide the child with educational benefit.
This is a win, win situation for all especially for children who will benefit when they receive effective instruction from teachers who are trained in research-based instructional methods.
2004 eliminated short-term objectives and benchmarks for students
with disabilities, except for those students who take alternate assessments.
Short Term Objectives
The problem is reminiscent of the game Whack a Mole where one knocks one mole down, only to have another mole appear in a different location. Since Congress eliminated short-term objectives and benchmarks, this information will now have to be included in the annual goals.
Eliminating short-term objectives creates as many problems for educators as it does for parents. Short-term objectives and benchmarks are steps that measure the childs progress toward the annual goals in the IEP. When written correctly, short-term objectives provide teachers with a roadmap and a clear mechanism to evaluate the childs progress.
Academic and Functional Goals
Although short-term objectives and benchmarks were eliminated, under IDEA 2004 the IEP must include measurable annual goals, including academic and functional goals. (Section 1414(d)(1)(A)) IEP goals cannot be broad statements of what a child will accomplish in a year, but must now address the childs academic achievement and functional performance. The IEP must specifically identify all the childs needs, how the school will meet these needs, and how the school will measure the childs progress objectively.
If the IEP goals are not specific and measurable and do not include academic and functional goals, the IEP is defective and open to a challenge that it denies the child a FAPE.
Parents must be vigilant. The danger is that the IEP team will propose annual goals that are not specific and measurable, do not meet the childs academic and functional needs, and do not describe how the childs progress will be measured.
Teachers will have to work harder and think more creatively to ensure that the annual goals address all the childs educational needs and that the goals are written in clear, measurable language. If the IEP is based on the childs present levels of academic achievement and related developmental needs, addresses the childs academic and functional needs, and includes research validated instructional methods, the IEP should adequately address the childs needs under IDEA 2004.
IDEA 2004 expanded the range of educational issues that must be evaluated and the timeframe within which these evaluations must be completed. After the parent provides consent, the school must complete the initial evaluation and determine if the child is eligible for special education services within 60 days. (Section 1414(a)(1)) Interestingly, the Act does not specify whether the required consent must be in writing.
When conducting an evaluation, the school shall use a variety of assessment tools to gather relevant functional, developmental, and academic information, including information provided by the parents. (Section 1414(b)(2)) The childs academic achievement or functional performance may necessitate a reevaluation. (Section 1414(a)(2))
These references to measuring and improving the childs academic achievement and functional performance are new in IDEA 2004. The IEP team must now consider functional, developmental and academic information in developing an IEP that provides a child with a free appropriate public education (FAPE).
personnel often claim that grades and performance on IEP goals are
separate, and that academic failure does not mean that the child was
denied a FAPE. IDEA 2004 rejects this claim.
the threshold requirements for a FAPE, the school must ensure that
the child with a disability makes adequate progress in academic achievement
and functional performance, and on the IEP goals. If the childs
academic achievement and functional performance are not commensurate
with the childs progress on IEP goals, the childs IEP
needs to be revised. The parents and educators need to determine what
adjustments need to be made to the childs special education
program and IEP.
IDEA 2004 requires the school to obtain parental consent before the initial evaluation and before implementing special education services in the IEP. Although the wording of the statute changed in IDEA 2004, the substantive effect is no different for initial evaluations.
Parental Consent for the Initial Evaluation
Before conducting an initial evaluation (the first assessments requested by a school when a child is suspected of having a disability), the school must obtain parental consent. (Section 1414(a)) If the parent wants the child to receive special education services, there is no reason for the parent to deny consent for the initial evaluation unless the parent prefers to obtain evaluations from a specialist in the private sector. In that case, the parent may consent to the school doing some evaluations. For example, the parent may consent to the school conducting educational evaluations and have their independent psychologist conduct the psychological evaluation.
While IDEA 2004 requires IEP teams to review evaluations provided by the parent, the team is not required to accept the findings and recommendations in private evaluations. Private evaluations can lead to problems if they are improperly done or if the individual who conducts the evaluation does not meet state requirements. (Section 1414(b)(3))
Before scheduling an evaluation by an expert in the private sector (i.e. a child psychologist, school psychologist, neuropsychologist, or educational diagnostician), the parent should carefully review the individuals credentials. Here are some questions you need to answer:
If the parent refuses to consent to an initial evaluation by the school, the school may use mediation, resolution, or a due process hearing to obtain the evaluation. (Section 1414(a)(1)(D)(ii))
Parental Consent for Special Education & Related Services
The parent is also required to give consent for special education and related services. If the parent refuses to provide consent for services, the public school shall not provide special education and related services to the child (Section 1414(a)(1)(D)(ii)(II)) This language represents is a significant change from IDEA 1997 which required schools to seek mediation or due process to obtain parental consent for services.
This new language may create problems for parents who want their child to receive special education and related services, but disagree with part of the IEP and/or how the school plans to provide services in the IEP. The law does not prevent parents from consenting to parts of the IEP that are acceptable, while refusing consent for those parts of the IEP with which they disagree. There is some support for this approach in the IDEA 2004 statute.
IDEA 2004 maintains the stay put provisions of IDEA 1997. (Section 1415(j)) Under the stay put provision, the child can remain in the then-current educational placement and continue to receive the same services during proceedings to challenge the IEP, unless the parents and school agree otherwise. Although there is no then-current educational placement when there is a dispute between parent and school over the initial IEP, the fact that the parent and school agree on some part of the IEP creates an obligation for the school to implement those parts of the IEP to which the parent provided consent.
If you want to consent to part of the IEP, here are some suggestions:
Think about how you want to resolve your dispute or disagreement with the school. IDEA 2004 includes additional procedures to resolve disputes. (See Tip #10) As a parent, you need to understand that the school is under no obligation to seek resolution of the dispute and is actually prohibited from doing so under IDEA 2004. (Section 1414(a)(1)(D)(ii)(II))
Congress changed IDEA 2004 to allow members of the IEP team to be excused from attending IEP meetings, even when their area of the curriculum or related service will be discussed. As a parent, you do not have to consent to this. Before a team member can be excused, the individual must submit a written report to the IEP team and the parent must consent in writing. (Section 1414(d)(1)(C))
The demands placed on a teachers time are great. In the end, the time spent developing a comprehensive IEP that addresses the childs unique needs will save time. More important, input from all the childs teachers will benefit the child. Regardless of whether the parent consents to a regular education teacher being excused from an IEP meeting, the law still requires that at least one regular education teacher attend the meeting.
If the child receives any educational services in a regular education class or may receive educational services in a regular education class, the regular education teacher(s) should attend the IEP meeting. Although the law only requires one teacher to attend, all regular education teachers with whom the child has or will have contact should attend the IEP meetings. If the childs teachers do not attend an IEP meeting, it is likely that important information will be missed or overlooked. Without input from the childs teachers, other members of the IEP team, including the receiving teachers, will not understand the childs unique needs and how to address these needs.
should not consent to team members being excused from IEP meetings
unless the circumstances are exceptional. If a team members
area will be discussed, the teacher or related services provider needs
to attend the meeting to provide information and answer any questions
The three-year IEP was the dumbest idea Congress came up with when they reauthorized IDEA 2004. Determining a childs unique academic, developmental and functional needs, developing measurable annual goals, determining how these goals will be met, how the childs progress will be measured, and how the parents will be advised of their childs progress at regular intervals is difficult enough when only done once a year.
Anyone who thinks that parents and school personnel can develop an IEP that will meet a disabled childs needs for three years is ignorant about child development and education. Fortunately, three year IEPs are a pilot program that will be available in no more than 15 states. (Section 1414(d)(5)) If your state submits a proposal and is approved for the three year IEP pilot program, the IEP team must obtain your consent before they develop a three-year IEP. Do not grant consent.
Find out if your state was approved for the IEP pilot program. If your state was approved for the pilot program, you need to double-check the beginning and ending dates on any IEP for your child. Before you sign consent to implement your childs IEP, make sure the IEP has an ending date that is no longer than twelve months after the IEP was developed.
You are not limited to one IEP meeting a year. Parents and teachers can request an IEP meeting to review and revise the childs IEP more often than once a year. IDEA 2004 provides that the IEP team shall revise the IEP to address:
IDEA 2004 permits the school to suspend a disabled child from the current program or place the child into an interim program for up to 10 days if the child violates a code of student conduct. (Section 1415(k)(1)(A))
If the school wants to suspend the child for longer than 10 days, they must convene an IEP meeting to determine whether the childs behavior is a manifestation of the childs disability. If the school concludes that the childs behavior was not a manifestation of the disability, the school can discipline the child in the same way and to the same extent that a nondisabled student can be disciplined. (Section 1415(k)(1)(C))
Congress also made it easier for the school to determine that the childs behavior is not a manifestation by eliminating key elements of the manifestation determination process in IDEA 1997. IDEA 2004 does not require the IEP team to determine whether the childs IEP and placement are appropriate. IDEA 2004 only requires the IEP team to determine whether the childs behavior was caused by or had a direct and substantial relationship to the childs disability or whether the behavior was the direct result of the local education agencys failure to implement the IEP. (Section 1415(k)(1)(E))
This means the school could provide a child with an inappropriate special education program and placement, and could expel the child from school. There are several strategies you can use to ensure that the school does not use behavior problems as a way to deprive your child of an appropriate education.
IDEA 2004 still requires school districts to provide a free appropriate public education to all children with disabilities, including children who have been suspended or expelled from school. (Section 1414(k)(1)(D) and Section 1412(a)(1))
If the school places your child into an alternate setting, you must diligently investigate whether or not the childs IEP is being fully implemented. If the IEP is not being implemented, you may force its implementation through the dispute resolution procedures in the law. One strategy is to challenge the IEP teams determination that the behavior was not a manifestation of the childs disability. Parents must only request a due process hearing if they are prepared and have a valid claim. (See Tip #10).
attempt to argue that the IEP and/or placement were not appropriate
as the reason for the behavior being a manifestation, you may be met
by a claim from the school district that your action was frivolous.
Parents can certainly argue that the IEP and/or placement are not
appropriate. You should also include claims that the behavior for
which the child is being disciplined was caused by or had a direct
and substantial relationship to the childs disability, and/or
that the childs misbehavior was the direct result of the schools
failure to implement the IEP, if these claims are valid and you have
support for them.
hearings should be your last resort, after you have attempted all
other methods to resolve your dispute. Due process hearings are often
an expensive and lengthy process. There are few absolutes in the law,
and perhaps even fewer absolutes in the context of special education
Try to resolve your dispute through IEP meetings, mediation, and/or the Resolution Session before you request a due process hearing.
Parents and schools can attempt to resolve their dispute through mediation. Mediation is a confidential process that allows parties to resolve disputes without litigation. The mediator helps the parties express their views and positions and understand the others view and positions. Before entering into mediation, you need to understand your rights and the law. When you mediate, your goals are to resolve the problems and protect the parent-school relationship.
If the dispute is resolved in mediation, IDEA 2004 requires the parties to execute a legally binding agreement that sets forth the terms of the resolution. (Section 1415(e)(2)(F))
IDEA 2004 includes a new mandatory resolution session that provides the parties with an opportunity to resolve their dispute before the due process hearing. (Section 1415(f)(1)(B))
The school district must send the relevant member or members of the IEP team who have knowledge about the facts in the parents complaint and a school district representative who has decision-making authority. The school board attorney may not attend the Resolution Session unless an attorney accompanies the parent. The parents and school district may waive the Resolution Session or use the mediation process. If the school district has not resolved the complaint to the parents satisfaction within 30 days of receiving the complaint, the due process hearing can be held. (Section 1415(f)(1)(B)(ii))
Due Process Hearings
If your attempts to resolve your dispute have been unsuccessful, you may decide to request a due process hearing. Consult with an attorney who is knowledgeable about this area of law first. Many of the pretrial procedures and timelines for due process hearings are new in IDEA 2004. These pretrial procedures are technical and cumbersome.
IDEA 2004 includes other disincentives for parents who file for due process. If the parents claim is found to be frivolous, unreasonable, or without foundation, the parents attorney can be held liable for the school districts attorneys fees. (Section 1415(i)(3)(B)) If the parents complaint was filed for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation, the parents can be held liable for the school districts attorneys fees.
only envisioned shifting the school districts attorneys
fees to parents or their attorneys in extraordinary cases. This fee
shifting statutory language closely follows Rule 11 of the Federal
Rules of Civil Procedure and a case from the U. S. Supreme Court (Christiansburg
Garment Co. v. EEOC, 434 U.S. 412 (1978)). Cases in which a plaintiff
is forced to pay a defendants attorneys under Rule 11 or the
Christiansburg standard are rare. (See IDEA
2004: Rule 11 and Attorneys Fees by Pete Wright)
Parents should not be deterred from requesting a due process hearing out of fear that they may have to pay the schools attorneys fees, if they are filing in good faith and have a valid claim.
You should avoid a due process hearing if possible. The best way to avoid a due process hearing is to prepare for a due process hearing as soon as you realize that you have a disagreement or dispute with the school about your childs special education program.
have a well-organized case and a clear, simple theme, you will be
in a stronger position if you need to request a due process hearing.
IDEA 2004 at Wrightslaw
IDEA 2004 at Wrightslaw will help you find answers to your questions. How the site is currently organized:
Wrightslaw: Special Education Law, 2nd Edition (ISBN: 978-1-892320-16-2, 456 pages,
IDEA 2004 (Out of Print)
Wrightslaw: IDEA 2004 is available as a print book, an e-book - or both.
publication (168 pages, 8 1/2" x 11", perfect
About the Author
Steedman is a partner in the law firm of Callegary
& Steedman, P.A. His practice is devoted primarily to the
representation of children with disabilities. He has represented his
clients in administrative due process hearings and state and federal
more about Wrightslaw
Last updated: 05/10/16
Copyright © 1998-2016, Peter W. D. Wright and Pamela Darr
Wright. All rights reserved.
Copyright © 1998-2016, Peter W. D. Wright and Pamela Darr Wright. All rights reserved.