Present Levels are the Most Critical Part of the IEP

The Present Levels are the foundation of the IEP. (The form your school uses may have each of these two levels in two separate sections). The Present Levels in all IEPs must include academic achievement and functional performance. 20 USC Sec. 1414(d)(1)(A)(i). Wrightslaw: Special Education Law, 2nd Edition p. 99. The student's Present Levels must always be accurate and up-to-date.

When the IEP fails to include accurate and up-to-date information about the child's present levels, the IEP is defective. It has no foundation.

As Mark says, the parents and their advocates are focusing their efforts on the "last pages" of the IEP. That is, they provided information to the IEP Team about goals and placemen in the Least Restrictive Environment (LRE) instead of focusing on the child's present levels of academic achievement and functional performance. They placed the cart before the horse. Until they have accurate and up-to-date Present Levels, the IEP is not educationally or legally correct.

Let's talk about the procedure that IEP Teams should follow when developing an IEP.

• First, we fill in the child's name and biographical information.
• Next, we provide information about how the child currently functions academically and in the real world.

This is where the IEP Team usually fills in the test scores and grades. However, this section is about much more than that.

The Present Levels are the most important part of the IEP. It is also the section that most parents and advocates prepare for the least. The parents' input is most important during the IEP Team's assessment of the child's present levels of performance. Only the parents know how the child functions at home, in the community, when doing homework, at work, and in the real world.

School attorney Joe Hatley says,

The present levels of performance are the foundation for everything else in the IEP. If your starting point is fundamentally flawed, then everything that comes after that is flawed, too.

Updating Present Levels

Each time the IEP Team meets, it must update the child's Present Levels.

The Katonah-Lewisboro (NY) School District failed to do this for one of its students. It simply copied the last year's "Present Levels" into the new IEP, despite information that the student made progress in all academic areas from the private placement the parents had secured the previous school year.

The Second Circuit decision found that the child's IEP "was likely to cause [the student] to regress or make only trivial advancement."

The school district's fatal flaw cost it dearly. The Court ordered it to pay the student's private placement tuition. It also had to pay the parents attorneys fees and expenses of over $156,976.00. You can read the decision here:

http://www.leagle.com/xmlResult.aspx?page=2&xmldoc=In%20FCO%2020120706055.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

To learn more about how to develop your child's Present Levels click the links below.

https://www.wrightslaw.com/howey/iep.functional.perf.htm

https://www.wrightslaw.com/howey/10tips.placement.htm

Originally published on Pat Howey's Blog, Ask the Special Education Advocate at http://spedconsulting.blogspot.com/2012/09/the-foundation-of-iep.html

Patricia Howey has supported families of children with disabilities since 1985. She has a specific learning disability and became involved in special education when her youngest child entered kindergarten. Pat has children, grandchildren, and great-grandchildren who have a variety of disabilities and she has used her experience to advocate for better special education services for several of them.

Pat is a charter member of the Council of Parent Attorneys and Advocates (COPAA), serving on its Board of Directors from 2000 through 2003. She has been a Commissioner on the Tippecanoe (County) Human Relations Committee, a graduate of Leadership Lafayette and Partners in Policymaking, and a member of the Wrightslaw Speakers Bureau. She has been on the faculty of the College of William and Mary Law School’s Institute of Special Education Advocacy since its inception in 2011.

Pat has an A.S. and a B.A. in Paralegal Studies from Saint Mary-of-the-Woods College, where she graduated magna cum laude. She is an Indiana Registered Paralegal and an affiliate member of the Indiana Bar and the American Bar Associations.

Pat began her advocacy career as a volunteer for the Task Force on Education for the Handicapped (now InSource), Indiana’s Parent Training and Information Center. In 1990, she opened her advocacy practice and served families throughout Indiana by representing them at IEP meetings, mediation, and due process hearings.

In 2017, Pat closed her advocacy practice and began working on a contract basis as a special education paralegal. Attorneys in Indiana, Texas, and California contracted with her to review documents, spot issues, draft due process complaints, prepare for hearings, and assist at hearings. In January 2019, she became an employee of the Connell Michael Kerr law firm, owned by Erin Connell, Catherine Michael, and Sonja Kerr. Her duties have now expanded to assisting with federal court cases.

"Changing the World -- One Child at at Time."

Contact Information

Patricia L. Howey, B.A., IRP
POB 117
West Point, Indiana 47992-0117
E-mail: specialedconsulting@gmail.com
Webpage: https://cmklawfirm.com/

Read more of Pat's answers to questions submitted by people just like you in Wrightslaw's Ask the Advocate section.