The IEP Module 3

Welcome to the third module in a five-part series on the Individualized Education Program (IEP) process. The previous modules discussed recent changes in California law that affected some elements of the process, and activities required to occur before the IEP is developed.

This module addresses the process of IEP development once the IEP team is prepared to meet.

Module 4 involves a training activity using actual IEPs, to put show how the information in this series is put into practice. And Module 5 addresses some additional considerations for IEP development.

All of the Modules are archived at the Assembly Bill (AB) 114 web page at www.cde.ca.gov. Individuals seeking information on the IEP process are encouraged to consider viewing any or all of the other modules in this series.

Before we proceed, we want to point out some acronyms that commonly appear in this presentation. It is helpful to be familiar with these acronyms because they are commonly used in both written guidance among educational entities and in discussions among individuals involved in the development of Individualized Education Programs.

IDEA – Individuals with Disabilities Education Act – This is the title of the federal law that establishes the educational benefits and services to which students are entitled, and for which local educational agencies are responsible.

IEP – Individualized Education Program – The IEP describes the plan for the student’s educational program, including current performance levels, student goals, and the educational placement and other services the student will receive.

CMH – County Mental Health Agencies – These agencies were, until recently, responsible for the mental health element of services provided to eligible students. They often continue to provide services to students, although in a different context than in prior years.

LEA – Local Educational Agency – In most cases, this term refers to a local school district, but LEAs also include county offices of education, Special Education Local Plan Areas, and charter schools.

This module provides an overview of required elements of the IEP development process, particularly in light of changes to California’s structure for serving students with disabilities. Specific topics include using the concept of Educational Benefit in determining appropriate services, assuring that the student is served in the least restrictive environment appropriate, describing the services the student will receive based on recent changes in state law, and considerations in development of the initial IEP and subsequent revisions to address changing student needs.

As you may recall from Module 2, if the IEP team determines that a student is eligible to receive special education services, an IEP must be developed for the student. Each IEP is required by law to include several specific elements:

1. “Present levels of performance” describe the student’s current abilities and provide an understanding of the student’s strengths and areas in which support is needed when the IEP is written, and how the student’s disability affects the student’s access to the curriculum. Present levels of performance also establish a baseline against which the student’s progress over the term of the IEP can be measured.
2. Additionally, in each area addressed in the IEP, the IEP team must establish measureable goals to guide service providers in meeting the students needs, and to determine whether the student is making expected progress over the course of the IEP.
3. The IEP must also include a clear description of all services the student will receive, including the level and location at which instruction will be provided, and any additional services and modifications the student will receive to enable the student to progress academically. For each service, the IEP must provide details on the frequency, duration and location of the service, and any accommodations for statewide testing must be clearly described.
4. Also, any accommodations to statewide testing the student is to receive must be clearly described in the IEP.

Coherence in the IEP document is critical to ensuring that the student is properly served. Assessment data provides information about the student’s strengths, expected progress, and supports required to progress academically. The student’s present levels of performance in academics and other key areas, informed by assessment, are to be clearly described so that needed supports are identified and provided, and future performance results can be compared to current status to determine how the student is progressing. Present levels of performance assist the IEP team in identifying the student’s needs associated with the student’s disability. Measurable annual goals and objectives, based on present levels of performance and expected progress, provide the student and the IEP team the means to measure whether the student is succeeding, and whether current services and supports are effective. Services provided to the student reflect identified needs, assuring that challenges created by the disability are reasonably offset by these additional supports. A description of the student’s progress on annual goals assist the IEP team in determining that the IEP is effectively serving the student, or alternatively, assists in identifying where the student is struggling and determining appropriate changes or additions to the student’s current related services.

Federal law has established standards for determining whether a student with disabilities is receiving appropriate instruction and services to allow the student access to educational opportunity, taking into consideration whether the disabilities the student has are addressed to the extent that they don’t create barriers to the student’s access to education.

It is important to note that these standards established in law do not call for the student to have the best of all services, but rather that the student has sufficient services to address the barriers that the student’s disabilities may present. These federal standards are based on some important principles, which are fairly basic concepts, but must be interpreted and applied based on the specific circumstances of each student.

The first of these concepts is referred to as “reasonable calculation”. When judging whether an LEA is meeting it’s responsibility to provide educational opportunity to a student with disabilities, we determine whether the student’s IEP provides the student with a “reasonable opportunity” to progress in the curriculum. If, based on the information available, the IEP team appeared to provide the student with a “reasonable opportunity” to progress academically, even if additional services may have provided a higher level of support for the student, the IEP team is deemed to have met its responsibility. In short, “reasonable opportunity to learn” does not equate to “perfect conditions for learning”.

The other concept that supports whether the LEA has met its responsibilities is that of “educational benefit”. We discuss this concept on the following slides.

The concept of ‘educational benefit” resulted from a key federal court case was ultimately decided by the Supreme Court. The case, “Board of Education vs. Rowley, considered the circumstances of a young partially-deaf student. The student, very bright and with good lip-reading skills, had been placed in a regular education classroom by the IEP team, and was provided additional services from a special tutor and a speech therapist. The dispute hinged on whether the student should also have a sign language interpreter in the classroom. Such an interpreter had been placed in the classroom for a brief trial period, but the interpreter observed that the student was able to understand the teacher without the interpreter’s help. The school administration determined that the interpreter was not needed and eliminated that service. The parents challenged that decision based on their belief that the student would understand much more of what was happening in class if an interpreter was provided. A lower court agreed, stating that the student was not receiving a “free, appropriate public education” which it defined as “an opportunity to achieve (the student’s) full potential commensurate with the opportunity provided to other children.

The case eventually reached the Supreme Court, who ruled differently, concluding that a free, appropriate public education does not guarantee any specific outcome for students, such as “achieving one’s full potential”, and that given the student’s apparent success, including performing academically better than average and advancing successfully from grade to grade, it concluded that the student was being served well, and was receiving a free and appropriate education that was resulting in an appropriate educational benefit. This quotation from the majority opinion on the case provides some of the basis for this ruling.

The Rowley decision has become the basis for the definition of what was intended by the term “free appropriate public education” and more specifically, what LEAs should be expected to provide in serving students with disabilities.

Note that this quote refers to “other items on the definitional checklist.”

The “checklist” refers to a statutory four-part definition of FREE APPROPRIATE PUBLIC EDUCATION.—The term ‘free appropriate public education’ means special education and related services that—

‘‘(A) have been provided at public expense, under public supervision and direction, and without charge;
‘‘(B) meet the standards of the State educational agency;
‘‘(C) include an appropriate preschool, elementary school, or secondary school education in the State involved;
and
‘‘(D) are provided in conformity with the individualized education program required under section 614(d).

The combination of the concepts of “educational benefit” and “reasonable calculation” provides a general guideline for LEAs in determining an appropriate level of services for students with disabilities:

Students are entitled to receive specialized instruction and related services that allow the student to make reasonable progress toward educational goals, based on the needs and strengths of the student. The IEP team’s decision as to the types of instruction and services the student receives are to be reasonably calculated to result in an appropriate level of academic success for the student, including, when appropriate, achieving passing marks and advancing from grade to grade.

Under the Rowley Standard, the expectation is not necessarily that students achieve to their maximum potential, or that they will receive instruction and services that give them the ideal conditions for academic success, but rather that instruction and services are appropriately designed, considering the individual student’s needs and strengths, to give the student a reasonable opportunity to access the curriculum and make progress toward appropriate annual academic goals.

So, to meet the Educational Benefit expectations, the IEP team needs to keep two important points in mind:

1. The elements of the student’s IEP work together toward the objective of ensuring that the student will have an opportunity to progress academically, and the combination of the student’s instructional placement and related services all contribute to that outcome; and,
2. The IEP addresses the specific needs and current levels of performance of the student, and sets appropriate performance goals based on the student’s current circumstances that will demonstrate that the student is receiving sufficient support to progress toward annual goals.

Both of these points intend the IEP team to focus on outcomes for the student, and to make placement and service decisions toward that end. This outcome-based approach is most likely to ensure that the student is appropriately served and that the school district fulfills its responsibilities under federal law. Also, using an outcomes-based approach allows for the quality of the LEA’s service and the appropriateness of the IEP to be measured in terms of how the student progresses.

These questions should be considered when developing or revising a student’s IEP. They will assist the IEP team in ensuring that the resulting IEP is designed to provide the student Educational Benefit.

Note that these questions correspond with key elements of the Educational Benefit process, including:

1. The importance of assessment information and identifying present levels of performance in determining appropriate educational placement and related services;
2. The importance of establishing specific performance goals for the student to identify areas in which progress is needed, and to determine whether intended progress is being achieved; and,
3. The focus on support for meeting specific goals when identifying the educational placement and services for the student.

If the LEA is able to accurately answer “yes” to each of the first six questions, the answer to the last question is “yes”.

The situation is more complex when a student fails to make progress. In such cases it is the subsequent actions of the IEP team that determine whether the LEA is fulfilling its responsibilities. If, for example, a student fails to make progress and the IEP team makes changes to services in areas where the student demonstrates the need for more support, that action is consistent with the concept of educational benefit. If, however, the student fails to make progress and the IEP team continues the same services and instructional context for the student, it is not reasonable to conclude that the student’s new IEP has been reasonably calculated to result in educational benefit. In instances in which the student has not made anticipated academic progress since the last IEP, the IEP team is expected to identify the area(s) in which the student has not made expected progress, determine whether the student’s progress goals are appropriate, review the types of services the student has received, and make appropriate revisions to the students goals, services, and/or educational placement to address the lack of progress and provide the student with an IEP that is likely to support the student’s academic progress based on the information now available to the IEP team.

Another important concept to address in the IEP is Least Restrictive Environment (LRE). Federal law requires that a student’s educational placement reflects LRE. As much as possible while meeting the student’s academic needs, the student should be included in regular education classes, with additional support as needed, and attend school in a location as close to the student’s home environment as can reasonably be achieved. Placement in special classes or settings should be limited to instances where the student’s academic needs cannot be met in regular settings, and residential placement should be avoided if possible. When it is determined that a student needs residential placement, the placement should be as temporary as possible, with the goal being to return the student to the home environment. This chart describes the range of LRE placements for a student on an IEP: Less restrictive environments include regular education classrooms, with support services provided in or out of those classrooms, and residence in the student’s home. More restrictive environments include either separate classrooms serving only special education students, or separate schools, such as nonpublic schools that serve only students with special needs, and residential placement. Placement in more restrictive environments is only to occur when placement in a less restrictive environment does not allow the student to receive the supports and services needed to effectively access the general curriculum.

The requirement to place a student in the LRE generally requires the LEA to have an array of placement options. Because students have differing needs and abilities, the LRE for one student would be an inappropriate placement for another. While some students may be served effectively by full inclusion in regular education classrooms and some ancillary support services, other students would not have their educational needs met in such a placement, and for them LRE might necessarily include full-time placement in a nonpublic school and residential placement for a period of time. Note that LRE is defined as being placed with non-disabled peers to the greatest extent appropriate. LRE placement, therefore, will vary from student to student, taking into consideration the student’s needs and appropriate placement based on those needs. This list represent a number of common placements that an LEA should have in its array of program options to ensure that all students have access to the LRE based on their needs and abilities.

In addition to determining where a student will be served (placement), the IEP team must determine what services the student will receive. Most students with disabilities will require additional services to support their access to academic instruction. California law provides a list of related services commonly provided to students with disabilities, and the certification or licensure requirements for individuals providing these services. When identifying in the IEP the specific services a student is to receive, IEP teams should use the service descriptions and definitions in 5 California Code of Regulations (CCR) 3065, and listed here, to ensure clarity and consistency between IEP language and state law governing provision of these services.

One complication resulting in the transition in service delivery from CMH to LEAs is that, given that these entities have operated under different portions of law, terminology they use is not consistent. Some services identified in law governing CMH agencies (Title 2) are not identified in education law (IDEA, CA Title 5), or are identified differently. For example, Title 2 references “individual/group psychotherapy”. Title 5 references several services that may fit within the definition of “individual/group psychotherapy”, such as “counseling, “psychological services” and “social work services” but not “individual/group psychotherapy”. Also, while “case management” is identified as a discrete service in Title 2, the IDEA and Title 5 do not speak to “case management”. Consequently, when reviewing the services identified in a continuing special education student’s IEP, the LEA may need to change the way those services are identified to ensure that service terminology is consistent with the education law that governs IEP development.

Once appropriate related services are identified for the student, the IEP team must provide these four descriptors for each service the student will receive: 1) when the service begins; 2) frequency; 3) location; 4) duration. Each service must be provided as stated unless and until the IEP team amends the IEP at a later time. Recall from the previous slide that services must be described based on language in education law, so some services provided to students under the prior structure may need to be described differently in the student’s current IEP. Services that were bundled under a single term, such as “day treatment” or “wraparound” will need to be “unbundled” in the student’s current IEP, with each service in the bundle listed separately with the four descriptive elements provided. As with all services, those separate services are to be identified using the list of related services that appears in education law.

The concept of “bundling” services comes from programs that provide a menu of services for students, such as Day Treatment. Day Treatment is actually a set of individual services that are provided when needed. Some services may be scheduled, while others may be provided whenever the need arises. This approach conflicts with the more specific requirement that services identified in an IEP must include frequency, location, and duration in their descriptions, so the “as needed” approach is problematic when developing an IEP.

IEP language must be precise, because it establishes the specific services to which a student is entitled based on an assessment of the student’s needs. If the services to be provided to a student do not include specificity concerning frequency, location, and duration, it is difficult or impossible to determining whether the student is receiving the services intended by the IEP team.

Instead of identifying a set of services in its bundled form on an IEP, such as “Day Treatment”, the IEP team is expected to describe in some detail each of the specific services within the day treatment program, including the frequency, location and duration of each service, so that all involved in the student’s education have a clear understanding and accurate expectation of services the student will receive.

The following slides provide greater detail on how this “unbundling” process can work.

This graphic provides some guidance to LEAs for unbundling services that may previously have been identified generally as “Day Treatment”. Services noted in the left column are specific services often included in Day Treatment service plans offered by mental health agencies. Services in the right column are services identified in federal and state education law as “related services”.

LEAs are strongly encouraged to identify services based on education law, so they should refer to the right column and use the service terms noted there.

Also, in all cases the services are to be identified individually rather than using the general term “Day Treatment”. If a student’s Day Treatment program includes counseling services and recreation services for the student, and parent counseling and training for parents, each of those three services is to be identified in the IEP individually, not as a single service under the title “Day Treatment.

As a reminder, every service description is to include the duration, frequency, and location of each service, so in the example above, each of the three services need to have a clear description of the frequency, duration, and location of the service. This way, it is clear to all individuals involved in the student’s education what is to be expected concerning the provision of each service.

As with Day Treatment, it has been common in the past for IEPs to include a set of services called “wraparound”. Given that wraparound is also actually a set of services, and the set of included services may differ among providers, using the term to describe services in the IEP is not specific enough to meet federal requirements. Again, it is critical that those involved in the student’s education clearly understand the services called for in the student’s IEP, including the specific type of service(s) to be provided, and the frequency, duration, and location of each service.

The solution for unbundling wraparound services is the same as is used to unbundle day treatment services. Specific services provided under wraparound must be identified, then “translated” using the terms for related services cited in education law, then listed individually in the IEP and further defined in terms of frequency, duration and location.

This graphic provides some guidance in the process of “translating” services provided in a wraparound program into service terms identified in education law.

Note that most service terms used in wraparound (shown in the left column here) have multiple related terms in education law. In such cases it is necessary to select the term in the right column that best describes the service actually being provided to the student under the general term shown in the left column.

When additional information is needed concerning any of the services noted in the right column, LEAs and IEP team members are encouraged to access the definitions established in California regulations for these services.

Title 5 Section 3065 includes a list of identified related services, the specific definition of each service, and types of certification or licensure that authorize individuals to provide these services. When struggling to identify the specific service from the right column that best describes the services being provided to the student in the category in the left column, it may be helpful to review the definition of each service from the right column as it is described in Title 5 Section 3065.

Given that fact that the assessment process and service terminology used are changing with the transition of mental health service responsibilities from CMH to LEAs, the IEP team may identify a need to change one or more of the services the student has been receiving.

It is important to be aware of requirements and conditions that pertain to changing the IEP. First, changes to services must be based on new information about the student, such as changes in the student’s progress, or newly identified needs. Also, changes must be clearly reflected in IEP revisions, and only upon approval by the IEP team. If the service is not changing, including service type, duration, and frequency, but the LEA will be providing the service through a different provider, the IEP does not need to be formally amended unless it states the specific provider providing the services. However, LEAs are encouraged to provide prior written notice to the parent/guardian when the service provider changes.

In cases in which the change in services involves more than just a change of service provider, the formal IEP revision process is required, including changes to the language defining the service and approval of the change by the IEP team.

There are legal requirements that apply in most cases when changes are being made to a student’s IEP. First, some changes may only be made if new information is available to the IEP team that justifies the change. That information is described in the center of this chart. If the change relates to goals or services for the student, for example, that change must be based on progress information or new assessment information that justifies the change.

Specific actions by the IEP team are often also required when a change is made. Those actions are described in the right column of this chart. For example, if the IEP team is changing the goals, services, or placement for a student, a full IEP team meeting is required, as well as prior written notice to the parent or guardian.

On the other hand, if the LEA is changing the service provider for the student, but there is no change in the actual service, its frequency or duration, then no basis for the change or action by the IEP team is technically required. However, the CDE does recommend that the parent or guardian is notified when any change to the student’s services is made, even if it is only a change of service providers.

Review each of these questions and consider a response based on the information we have reviewed. We will discuss the answers in a minute.

Answers:

1. In order to ensure that specific legal requirements are fulfilled and that the IEP is designed to provide Educational Benefit.
2. ED Ben is individualized instruction designed to provide students the opportunity to benefit from special education and related services. To achieve this outcome, IEPs are designed based on present levels of performance, goals, placements, services, and progress to ensure that the student’s program is reasonably calculated to result in appropriate educational progress.
3. The least restrictive environment.
4. Date related service begins, frequency, duration, location, and date service concludes.
5. No. Each specific service needs to be described individually.
6. Yes changes can be made based on progress and new assessment data, but the decision to change services must be approved by the student’s IEP team, and the IEP must be amended to reflect the decision of the team.

This has been the third of five modules on the IEP process and related activities, many of which have been affected by changes in California law. This module is designed to be viewed on its own, or in combination with any or all of the other modules in this series.

The fourth module will include training related to IEP development and review using concepts we have discussed in the first three modules. The training will include using actual IEPs to consider the quality of IEP language concerning present levels of performance, assessment results, goals and service descriptions, the alignment of all of these elements, and their effectiveness in providing Educational Benefit. Viewers will be instructed to download training materials, then they will be led through a set of exercises intended to provide a practical understanding of the concepts addressed in this series.

We encourage you to consider viewing the fourth module (and the others in this series) to address additional professional learning needs of your group.

Other modules include: Module 1 – Changes to special education service provision resulting from the passage of AB 114; Module 2 – Requirements for LEAs, from Child Find to the IEP Team meeting; and Module 5 – Additional Considerations for IEP Development.

For more information on a variety of issues related to the passage of Assembly Bill 114, please visit the AB 114 web page on the California Department of Education website. For other information about California Public Schools, visit the CDE home page.

Here are several additional resources that provide more detailed information on the subjects addressed in this series.