Reading an IEP With a Sharp Eye Part 1
When children receive special education services, these mandated services are outlined in detail on an Individualized Education Program (IEP).
The IEP packet is typically organized into three parts:
1. Prior Written Notice (Notice of Recommendation)
2. Individualized Education Program
3. Placement Letter
In Part 1, we are going to cover prior written notice and some of the sections that comprise the IEP. This is intended to help parents read the IEP for inconsistencies and potential areas that should be challenged with the school, either at an impartial hearing or in order to amend the IEP so as to ensure a quality education.
Prior Written Notice
This section of the IEP package will describe what the Committee on Special Education (CSE) has recommended, including a description of the documentation that influenced the decisions, contact personnel, etc.
For any parent who is contemplating legal action against the city, these prior written notices will typically only come into play when they misrepresent or contradict the terms of the IEP. Given this, it is important to compare the “description of action proposed or refused” and the list of the documentation that informed the CSE’s decision in the IEP.
For example, let’s suppose that a family submitted an independent evaluation by a neuropsychologist, and CSE has it on file. If CSE references it in a prior written notice, but it is not on the IEP, or vice versa, this is a point to argue. The family can say, “the CSE had this report on file and, according to the prior written notice, relied upon it in making their recommendations. Why, then, isn’t it reflected in the IEP?”
Or, in another scenario, an IEP may indicate that a decision was based on a social history interview, the report of which was never provided to the family. In this case, the parents were deprived of their right to be involved in the decision making process due to lack of access to important documents.
Simply put, the prior written notice is primarily important in terms of how it relates to the content in the IEP.
Individualized Education Program
There are multiple sections within the IEP itself, and within each, it is important for parents to be aware of areas they can challenge if the information cannot be supported properly:
Disability Classification: Parents should be sure that the classification provided is appropriate.
Present Levels of Performance: This generally includes evaluations and testing results. However, non-objective evaluative content can be challenged.
We also advise parents to be suspect of IEPs that provide ranges (e.g. “above average”) instead of percentiles, as ranges can serve to exaggerate a student’s performance, whether deliberately or otherwise.
Ensure that there is consistency across evaluation scores (with explanations of any significant or unusual disparities) and that testing has been completed within a three-year window.
Academic Achievement, Functional Performance & Learning Characteristics: It is important to determine whether the information provided is consistent and truly representative of the child’s performance and abilities.
Each section terminates with a blurb about parental concerns. It is not uncommon for this section to exclude a parent’s actual concerns in favor of quotations or cannibalized material; parents can, and should, make use of this opportunity.
Social-Emotional Development: This section is designed to describe the student’s social skills in terms of classroom performance or with peers in school. It should not be used to describe how the child functions at home or in the 1:1 testing environment of a neuropsychologist’s office.
Physical Development: Generally, this section is used to highlight any issues with ambulation, mobility, body awareness, personal safety, and/or medical concerns. This is also an area where CSE would indicate any medications the child might be taking. *Public school personnel are prohibited from encouraging parents to medicate their children — that is always a parental decision.
Management Needs: This section can often be generic and vague and is therefore an area that can be challenged. If other sections of the IEP identify any supports that are not explicitly incorporated into the management needs, I generally take the position that the DOE has not affirmatively guaranteed their implementation.
Behavior Intervention Plan (BIP): Legally speaking, students are entitled to a BIP wherever their behavior is likely to inhibit their learning (or that of their classmates). However, a CSE will not earnestly consider adding a BIP unless they have first conducted a Functional Behavioral Analysis (FBA). Because of the advance planning necessary to satisfy this prerequisite, CSEs usually only consider a BIP when a parent has insisted.
Other Supports: This section will indicate whether a student should be provided with braille materials, a hearing aid, assistive technology (e.g., a laptop for a child with significant hand-writing challenges), or other similar supports. An IEP that fails to specify that a vision-impaired child will receive braille materials is significantly defective.
Measurable Postsecondary Goals: This is required for high school students and is almost always comically vague.
Measurable Annual Goals: If these were not discussed at an IEP meeting, that’s a serious red flag. The goals should match the indicated student deficits and should use a measurement criteria that makes sense. Because IEP goals are generally “formulated” by selecting them from a drop-down list in a computer program, it is good to ask yourself whether they truly make sense for your child. I have seen more than one IEP that reads, “Student will learn to look both ways before crossing the street” with success in “4 out of 5 trials.” As you can well imagine, this would not make for a successful school year.
[There are a lot of potential issues with annual goals, and they’re really ultimately something parents should always talk to an attorney about. A good attorney should be able to devise two or three criticisms for just about every goal on a given IEP.]
The IEP is a complex document, and there are a lot of areas that can be used to challenge the DOE. In Part 2, we will continue to examine the remaining components of the IEP and discuss the Placement Letter.
As always, we encourage you to contact us with any questions you may have.
Marc Gottlieb
Partner
195 Montague Street
14th Floor
Brooklyn Heights, NY 11201
Marc@gottliebfirm.com
(646) 820-8506