New Q&A on FAPE issued following Supreme Court decision

The Office of Special Education and Rehabilitative Services (OSERS) announced this month its release of a Question and Answer (Q&A) document addressing the Endrew F. decision. OSERS is issuing this Q&A document to provide parents and other stakeholders information on the issues addressed in Endrew F. and the impact of the Court’s decision on the implementation of IDEA.

The Q&A explains the case and provides a summary of the Court’s final decision and prior case law addressing the FAPE standard. The document also explains how FAPE is currently defined, clarifies the standard for determining FAPE and addresses how this ruling can support children with disabilities.

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Comments that Parents Hear: “Your child is too smart to have an IEP.”

Fact: Intelligence has no bearing on disability or need. Even individuals with genius level IQs can have a disability that affects their ability to access the curriculum.

A student with a disability and “high cognition” can have needs (organizational skills, homework completion, social skills, counseling, and classroom behavior, etc.) that need to be addressed through special education and related services.

IDEA does not require schools to help a child reach their potential. However, OSEP does say that the school should “consider information about outside or extra learning support provided to the child”.  This would include support the family is providing directly or through tutors, assistive technology, related service providers or information on the amount of time the child spends studying and doing homework.

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Comments that Parents Hear: “We place all children with Autism here.”

The IDEA regulations put an emphasis on students being served at their home campus. Courts, hearing officers, and the Office of Civil Rights (OCR) have allowed schools to place some groups of students with disabilities on one or more campuses with non-disabled students rather than on every campus.

However, the law and regulations put a priority on the concept of students being educated with their peers and in the general education classroom to the extent possible. There also must be a “continuum of alternative placements” within the school.  Also a child with a disability is not to be “removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.”

Parents should ask for the rationale for this practice and if exceptions are made and under what circumstances. Chances are the district has made exceptions for specific students. The parent could then discuss at least an exception for part of the day. Placement decisions are to be individualized and should be reviewed periodically. One size fits all models are not individualized. Circumstances/needs could have changed so that the student could be returned to the home campus at least part of the day.

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Access to the General Education Curriculum

Access to the general education curriculum is about ensuring that all students with disabilities have access to be involved in and show progress in the general curriculum through curricular/instructional adaptations in the least restrictive environment (LRE).

The Texas Education Agency (TEA) and ESC 20 have developed the Progress in the General Curriculum Network (PGC).  The PGC Network has developed documents on Standards-Based Individualized Education Program (IEP), Least Restrictive Environment (LRE), Specially Designed Instruction (SDI), and Grading/Progress Monitoring.  The goal of the PGC Network is to increase results for students with disabilities. This includes:

  • An increase in state assessment proficiency rates in reading and mathematics for students with disabilities;
  • An increase of students with disabilities served in general education; and
  • A decrease of students with disabilities served outside of general education classrooms.

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“Since your child just moved here, there is no reason to review the IEP.”

It’s time for another of Chuck’s Comments that Parents Hear posts!

How should you respond if the school says: “Since your child just moved here, there is no reason to review the IEP. We will just transfer the old goals to our new forms.”

Recall the Law

The regulations differentiate between a student who has transferred within the state and one who transferred from another state.

If the student came from another school within the same state, the new school “in consultation with the parents” must provide FAPE (Free Appropriate Public Education) to the child (including services comparable to those described in the child’s IEP from the previous public agency), until the new public agency either (1) Adopts the child’s IEP from the previous public agency; or (2) Develops, adopts, and implements a new IEP that meets the applicable requirements in 300.320 through 300.324.” 300.323(e)

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Who Won Endrew F?

I got an email from a reporter last week asking a fascinating question: did parents or school districts win in the Endrew F decision by the US Supreme Court? You can read the entire high court decision here. Also our previous posts concerning the case are available here and here.

The reporter noted that it seems that parent groups are hailing the decision as a victory for them while at the same time school district groups are saying that they are already providing educational benefit at the level required by this decision. You can see the apparent discrepancy in this story by PBS on whether the decision is a game-changer for special ed.

So who won…well the answer is not very clear. I’m going to give you my analysis, but I’d love to hear your opinion as well. Who won and why?

For the parties to the actual case, the matter was remanded to the Tenth Circuit. This means that there will be further court proceedings before we know who prevailed in this case.

For purposes of special education law, however, the answer is a little foggy. School districts clearly won to the extent that the Supremes did not overturn Rowley. In fact the decision does not even mention the battle between some benefit vs. meaningful benefit that the earlier pleadings and argument seemed to involve. So Rowley is still good law.

On the other hand, parents clearly won to the extent that the high court required more benefit than the more than trivial or de minimis standard used by the Tenth Circuit Court of Appeals. To provide FAPE, a school district has to do better than that. The unanimous Supreme Court held that the standard is “markedly more demanding” than the standard used below.

However, school districts clearly won to the extent that the court rejected the potential maximizing standard that was previously rejected by Rowley. The Court refused to require an IEP that lead to self-sufficiency, academic success, and the ability to contribute to society. The Court rejected the argument that opportunity equal to that received by non-disabled students is necessary. In this regard, the Court mentioned that the Congress had amended IDEA a number of times since 1982 and yet never overruled Rowley so that it was good law still. Potential maximization arguments that had been rejected in Rowley continue to be rejected. So an IEP must be reasonable not ideal.

Nonetheless, parents clearly won to the extent that the court made FAPE turn on the individual circumstances of the child. The Court stated, “The goals may differ, but every child should have the chance to meet challenging objectives…” Rather than develop a bright line rule, the Court adopted an individualized fact specific approach.

OK so everybody won. Or at least you can see why they all believe that they won.

The real answer to the question will turn on how hearing officers and courts apply the new standard to actual fact patterns.  The new standard requires that an IEP must be reasonable given the unique circumstances of the child with a disability. In other words, the IEP must be reasonably calculated to enable a child to make progress in light of his own individual circumstances. Students fully integrated in general education classrooms will be expected to make passing grades and advance from grade to grade. Other special education students may not need to make grade level success to receive FAPE as the standard for them is somewhat lower. 

Hearing officers and courts will follow the Supreme Court’s instruction and apply the revised standard on a case by case basis. They will engage in a fact-specific analysis involving the unique circumstances of the child with a disability. To some extent, what is “reasonable” is in the eye of the beholder.

So how will hearing officers and courts apply the newly clarified FAPE standard? Stay tuned.