What information should be included in the IEP statement of “Present Levels of Performance” of achievement and functional performance?

The “Present Levels of Performance” (PLP) is the baseline by which goals and objectives are written. It also stipulates what the student knows and does not know which allows the teacher to assess student progress throughout the year.

Neither IDEA 2004 nor the 2006 regulations offer any detailed guidance on what should be addressed in the IEP statement of PLP. There was discussion in the publication of the 2006 regulations that stated:

Academic achievement generally refers to a child’s performance in academic areas (e.g., reading or language arts, math, science, and history), We believe the definition could vary depending on the child’s circumstance or situation, and therefore, we do not believe a definition of “academic achievement” should be included in these regulations.71 Fed. Reg. 46,662 (2006),

The 2006 regulations 34 CFR 300.320(a)(1)(i) requires only that the statement include disclosure of how the child’s disability “affects the child’s involvement and progress in the general education curriculum or in the case of a preschool child the statement of how the disability affects the child’s participation in appropriate activities.

With little guidance on how to appropriately complete this information, many judicial and administrative decision-makers have been asked to determine whether deficiencies in a statement of present levels of performance resulted in a denial of FAPE. One example in O’Toole by O’Toole v. Olathe District Unified School District No. 233, IDELR 177 (10th Cir. 1998), let the district off the hook. Even though the district’s statement did not relate to the student’s level of disability or explain test scores, no IDEA violations occurred because the student’s parents and teachers were fully aware of the student’s PLP.

In other cases, Pocatello School District, 18 IDELR 83 (SEA ID 1991), and Larson by Larson v. Independent School District No. 361, 40 IDELR 231 (D. Minn.2004) both indicate the student’s PLP statement were not comprehensive enough. In Larson v. Independent School District, the student was awarded 225 minutes of compensatory special education services and a private assessment. The conclusions were:

1. numeric scores were neither explained nor self-explanatory,

2. an extensive evaluation report was summarized but not attached or identified,

3. a description of performance levels in nonacademic areas that could not be

described with numeric test scores, such as social and behavioral skills were

vague, subjective and not suitable for use as a baseline to measure future

progress: and

Information Present Levels of Performance—Continued

4. a description of how the disability affected the involvement in the educational

progress was not explained.

As you can see by the court cases, a thorough explanation of PLP is expected which includes specific statements about what skills (both academic and non-academic) the student does and does not know. In other words, when writing the PLP, it should be clear enough that anyone who reads it can tell specifically where the child is functioning. It must also provide enough information to provide guidance to measure future progress.

The IEP developed by the Arkansas Department of Education indicates the following

information should be addressed when writing a PLP statement. Based on most recent evaluations and assessments, a statement should include:

the results of any State and or district-wide assessment (not applicable to preschool) academic, behavioral medical, functional, developmental, vocational and social performance) Arkansas Department of Education Special Education Required Form-Rev. July 2000 IEP- #101

What Must the Student’s IEP Team Consider Before Placement in Time-out?

There are no specific guidelines from IDEA on this issue, but an education rule from

Minnesotahas set the standard. Time-out procedures that seclude a student to a specially designated location should consider the following:

1. Specific criteria for returning the student to the routine activities and regular

education environment;

2. An evaluation to determine whether seclusion is contraindicated for psychological

purposes or health reasons;

3. Provision for the student to be continuously monitored by trained staff;

4. Adequate access to drinking water and to a bathroom for a time-out that

exceeds 15 minutes;

5. Document the length of time spent in each time-out procedure and the number

of occurrences each school day;

6. A safe environment for the student where all fixtures are tamper proof, walls and

floors are properly covered, and control switches are located immediately

outside the room;

7. An observation window or other device to permit continuous monitoring of the

pupil;

8. A space that is at least five feet by six feet or substantially equivalent to these

dimensions and be large enough to allow the student to stand, to stretch the

arms, and to lie down;

9. Be well-lighted , ventilated, adequately heated and clean; and

10. Comply with all applicable fire and safety codes.

IDEA 2008 IEP Meeting Excusal

A member of the IEP Team may be excused from attending an IEP meeting, in whole or in

part, when the meeting involves a modification to or discussion of the member's area of the

curriculum or related services if the parent and the local educational agency consent in writing

to the excusal. The excused member must submit written input into the development of

the IEP to the parent and the IEP Team prior to the meeting.

Are there members of the IEP team who cannot be excused from an IEP Team meeting?

The meeting must include at least one regular education teacher of the child (if the child is,

or may be, participating in the regular education environment); at least one special education

teacher or special education provider; and at least one administrator or administrative designee.

Does a regular education teacher need to be excused from the meeting if a student

only has material or method modifications in that teacher’s area of the curriculum?

No. Such modifications as extended time on tests or shortened assignments are not considered

modifications of the curriculum.

What “written input” must the excused IEP Team member provide?

The written input must clearly identify the student’s present level of achievement and performance in the member's area of the curriculum or related services

How far in advance of the IEP meeting, must the parent be provided written input by

any excused IEP Team members?

The IDEA 2008 provides no guidance as to the time lines for providing the written input to the

parent.

What if the written input is not provided in time for prior review and consideration by

the parent?

The IEP Team member must attend the meeting.

How is the excusal from the IEP meeting documented?

Any excusal must clearly document the parent’s consent for excusal prior to the IEP meeting

and the member(s) to be excused. Copies of the written input from excused IEP Team members

must be included in the IEP document.

.

When should the request for excusal be presented to the parent?

The request may be given to the parent at any time prior to the meeting. The request for excusal

can be sent at the same time as the IEP meeting invitation.

What if the parent does not return the request for the excusal of specific IEP Team

members?

The members must attend the IEP meeting.

What if the parent does not agree to the excusal of specific IEP Team members?

The members must attend the IEP meeting.

If the parent agrees to the excusal of specific IEP Team members but does not attend

the meeting, must a new request for the excusal of specific IEP Team members be

done for the rescheduled IEP meeting?

No.

Must the request for excusal identify the members to be excused by name or by area

of curriculum or related service?

The best practice is to identify the name and area of curriculum for each member requested

to be excused.

         What Type of Letter Could be Used to Explain the 9 Week Progress Report to Parents?

Date:

Dear Parents:

Enclosed is a report on your child’s progress in meeting the Individualized Education Program

(IEP) goals and/or objectives. This report will allow you to see how your child is progressing

toward mastering the goals and/or objectives by the end of the school year.

Look at the column titled “Mastery Criteria Level”. The percentage (%) written indicates the

performance level selected at the time the IEP was developed for your child to achieve. By

comparing the percentage achieved at this grading period to previous grading and upcoming

grading periods, you can see whether or not your child is on target to meet the goals and/or

objectives in the IEP. The following is an explanation of the evaluation and quarterly review

codes:

I will be sending this report at each grading period indicating whether the goal and/or

objective is continued, discontinued, mastered or not initiated. A mastery level for each goal

and/or objective will be included. Should you have questions or concerns, please contact me.

Sincerely,

How is a Need for a Related Service Established by the IEP Team?

If the team answers, “Yes” to the following question, it is an indication that the service

under consideration probably is educationally necessary:

1. Will the absence of the service interfere with the student’s access to or participation in his or her educational program this year?

If the team answers, “Yes” to any the following questions, the service under

consideration probably is not educationally necessary:

2. Could the proposed service be addressed appropriately by the special educator or classroom teacher?

3. Could the proposed service be addressed appropriately through core school faculty or staff (e.g., school nurse, guidance counselor, librarian, teachers, administrator, bus drivers, cafeteria staff, or custodians)?

4. Has the student been benefiting from his or her educational program without the service?

5. Could the student continue to benefit from his or her educational program without the service?

6. Could the service be appropriately provided during nonschool hours? (This question is based on the 1984 U.S. Supreme Court Tatro decision)

7. Does the proposed service present any undesirable or unnecessary gaps, overlaps, or contradictions with other proposed services?

           Can a Special Education Student be Given a Failing Grade?

Failing grades are frequently considered an indicator that the district has failed to provide a student with a free appropriate education at public expense.

 In Board of Education of Hendrick Hudson School District v. Rowley, 458 US 176, 204 (1982) the Supreme Court observed that an IEP must be "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade."

One can anticipate that parents and student advocates will construe a failing grade as indicative of a student's failure to meet their IEP objectives. Therefore, if an educator dispenses a failing grade for any reason other than a student's failure to meet their IEP goals and objectives, it is incumbent upon that educator to provide an explanation in the accompanying progress report. Absent such, school districts are exposed to the rational argument that failing grades are indicative of the IEP's failure rather than the student's failure.

What is the Educational Benefit Process?

“Within the Board of Education v. Rowley decision, the threshold used was the provision of sufficient supportive services to permit the child to benefit from the instruction. Instruction should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade."

—from the opinion issued by Justice William H. Rehnquist

When a child has a disability that directly interferes with his or her ability to learn, instruction is specially designed to address that child’s unique needs. An educational benefit process is completed to determine if that instruction ensures the child has access to the general education curriculum so that he or she has the opportunity to meet the educational goals and standards that apply to all children.  Steps should be taken by the regular or special education teacher before assigning a student the grade of “F” for failure to perform in the classroom.

A conference should be scheduled by the teacher assigning the grade when a student is in danger of receiving a failing grade (F). The timeline of the conference should be scheduled in a reasonable time that would allow the student to make progress in the general curriculum and also on goals in the IEP.

The committee members of the conference should be the teacher assigning the grade, counselor, parents, student (if applicable), and principal/designee.

Documentation must be provided that “Instructional Modifications, Supplemental Aids, and Supports” on the student’s IEP have been implemented. The teacher assigning the grade must have a sampling of class work and documentation of the implementation of modifications for review by the committee.

The committee should discuss any problems with attitude, motivation, attendance as well as academic skills. Determine why the student is failing; incomplete assignments, failing tests, missing tests, etc.

Review the student’s IEP and determine if any additional modifications are needed.

According to IDEA 2004, “In making changes to a child’s IEP after the annual IEP Team meeting for a school year, the parent of a child with a disability and the public agency may agree not to convene an IEP Team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the child’s current IEP” “If changes are made to the child’s IEP, the public agency must ensure that the child’s IEP Team is informed of those changes”

If the student continues to fail after other strategies and modifications have been attempted, a special education separate programming conference should be held to discuss if changes should be made to the student’s IEP. 

Is it Permissible for a Parent to Videotape or Audiotape an IEP or Other Special Education Conference?

Neither IDEA nor the special education regulations address the issue of recording a special education conference. However, there are several areas where it has been addressed.  OSEP position letter to Letter to Anonymous, 40 IDELR 70 (OSEP 2003) states that a meeting may be recorded to the extent the state or local public agency allows. However, if the state or local agency does not allow the recordings, they must make an exception if the recoding of the meeting is necessary to understand the IEP or IEP process. Furthermore, any recording maintained by the public agency is an education record defined under FERPA.

In IDEA 2004, the 2006 regulations at 34 CFR 300.321 (e) requires school districts to take whatever steps needed to ensure the parent understands the proceedings at the meeting.  Federal District Court Case, E.H. v. Tirozzi, 16 IDELR 787 (16 EHLR 787) (D. Conn. 1990, states the broad mandate of IDEA 2004 includes a parents right to record the meeting.

Do the Parents of a Student with a Disability Retain the Right to Attend and Sign all Paperwork at Special Education Conferences When the Student Reaches the Age of Majority at Age 18?

When a student reaches the age of majority, state and federal law transfers all the procedural safeguards under IDEA including the right to attend an IEP conference to the student. However, IDEA does not require states to transfer that right if the student has been declared incompetent by the court under such law.

When those rights are transferred, districts must ensure that the student receives the same opportunity to participate in IEP conferences as the parent. Parents may also attend at the discretion of the student or district.