Season 3: Episode 10: Top IEP Challenges Faced by School Teams


In this episode, Lisa Woloszynek and Miriam Pearlmutter are joined by John Moenk, our law clerk, to discuss common difficulties in preparing Individualized Education Programs (IEPs) for students with special education needs.  The IEP document reflects a school district’s legal obligation to provide qualifying students with a free appropriate public education in their least restrictive environment.  But what does that really mean?  How should a team draft IEP goals and objectives?  What exactly needs to be included in the Present Levels of Performance Section and why?  What long-term concerns should your teams be considering in determining a child’s mastery levels, data collection methods, specially-designed instruction, and ways to measure progress?

Join us for an insightful conversation about common challenges and pitfalls school teams often face in developing IEPs under special education law and regulations.

View Podcast Transcript

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Miriam: Welcome back to Class Act updates and education law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are attorneys at Walter Haverfield in Cleveland, Ohio. Every so often, we get together, we talk about the latest legal issues in education law that are relevant to school board members, administrators, teachers, just really anybody who works in school districts with children.

Lisa: Today we are going to dive into special education and look at IEPs and the top issues that we hear about from our districts. We also have with us, John Moenke. Welcome back.

John: Thanks for having me back!

Lisa: John is a third-year law student who also clerks with us and has a background in special education, and has worked as an administrator. Welcome.

John: Thank you.

Lisa: Of course, most of our audience is familiar. We’ve had episodes before regarding students with disabilities and IEPs.

Miriam: Yes, just to remind everybody, an IEP is an Individualized Education Program that lays out a child’s services and the place where those services will occur.

Lisa: Right, and keep in mind too with IEPs because they are so individualized, the things we’re going to talk about today often are very nuanced for and case specific for child to child. We’ll try to give you kind of global information, but keep in mind that you could have a very unique situation, child to child.

Miriam: Yes, you’re right. Absolutely. Some issues tend to come up again and again. John, I’m sure that you have a background as an administrator, right?

John: Yes, I was a principal of a separate facility.

Miriam: Excellent. I’m sure that in that capacity, you’ve seen many of the issues that school districts struggle with when it comes to drafting and implementing IEPs.

Lisa: Right, especially seeing IEPs from different districts.

John: Yes, we had over 20 districts. Seeing 20 different ways to write IEPs and ways to have issues with IEP’s.

Miriam: Interesting.

Lisa: Can you boil down those issues to any common areas?

John: Yes, for my experience, the four biggest would be what we call PLOPs, Present Level of Performance. Goals that are just too vague. It’s counterpoint goals that are too specific. Then ones that aren’t individualized, those were the four most common issues that we saw coming through our doors.

Lisa: Let’s kind of dive into that a little bit more. Certainly, IEPs need to be individualized and written with very measurable and specific goals, and resulting data collection that comes from that. Are levels of reference of what a district needs to be able to maintain and demonstrate to show that a student made progress and that the district provided FAPE, stems from the most recent Supreme Court decision in Endrew F., where the court outlined that that standard is going to be that districts are required to develop an IEP that’s reasonably calculated to enable a child to make progress that is appropriate for that child in light of that child’s circumstances.

Miriam: If you just want more information about Endrew F., we did cover Endrew F. in one of our earlier episodes in the first season, which is available on our website. That’s a location that you can find more information about the Endrew F. Supreme Court case.

Lisa: Right. We won’t talk about too much today, but you’re first going to have to need to know what that child’s circumstances are, which is going to rely very heavily on that district evaluation as the first component, and then we’re going to need to align that evaluation to the child’s IEP. So, what areas do we need to have goals in? Where is the child starting from, and where do they need to get to, and overall, though, we’re going to need to make sure that that’s all written in a measurable way that we really know how we’re going to collect data, and are able to collect that data and demonstrate progress and assess progress.

John: Well, and that’s where some of the issues I was pointing out come up a lot too, is that goals that are vague, Little Johnny will complete work. What does that mean? How is that? How are you going to measure that and track that and, or too specific that some of your parents might not understand, or teachers going through different rooms, little Johnny will complete six out of five trials at 80% for three–

Miriam: Six out of five trials, wow. That sounds difficult.

John: Just ones that have too many points to hit, or my least favorite one, the ones where it’s little Johnny’s IEP, but the goal says, Chris will.

Miriam: Oh, jeez.

John : They just copy-paste it, not very individualized then.

Lisa: Right. IEP is individualized, even in its title, so we really need to make sure it’s written for that student, and we’re not just pulling from what we do with other students. Where we start with our goal, we start with present levels, so we need to know where the child’s starting from to know where we need to get them.

Miriam: Exactly.

Lisa: Let’s talk about some key areas there.

Miriam: Yes. As you said, Lisa, the child’s present levels will typically, in the beginning, start from that evaluation, start from the ETR. That’s a set of assessments that the school district has done to find out what that child’s strengths and weaknesses are. Then the present level in the IEP describes the data showing where the child is in relation to the goal that will be developed. In other words, when you are writing that goal, you need to be able to look right back at the present levels, and look at the data to drive that goal. Sometimes we do see, I think, John, like you mentioned, we do see present levels that are just irrelevant, has some other information, or is maybe outdated. Sometimes we’ll see present levels that are from a few years back. It’s not helpful at all. I think that if a school district doesn’t have a present level, there needs to be something in that section explaining that baseline data will be gathered over the next few weeks or something to that effect.

John: We always trained our intervention specialists, not only to include that, but kind of the why. We have been working with a student only for a week. This is what we were doing pairing with, because the present level is supposed to almost justify the goals and objectives. If it’s just missing or doesn’t connect to that, then it’s almost like, why put it there?

Lisa: Right. It should really be a rare occurrence that you don’t have that baseline data to get you started. We really need to make sure that goals in that present level is where you start of identifying what is the one discrete skill that you’re trying to teach and develop in that goal. You want to also be sure that you’re not encompassing too many different skills into one goal, and that present level is really where you start with that. You want to make sure we’re not just taking, say, evaluation results like a standard score, say for example, in reading, and using that to say, “Okay, they need a reading goal,” but what skills in reading do they need to develop? Do they need to develop vocabulary? Do they need to develop fluency or comprehension, and making sure too that we’re not combining too many of those skills that you also don’t know what you’re measuring or measuring those individually, because we certainly can have a student who can learn their fluency very quickly, and maybe end up at grade level with that, but still struggle with comprehension. You want to make sure you’re measuring what you mean to measure in that goal.

Miriam: I do see sometimes that whoever’s writing this goal, the intervention specialist or another individual, just, like you said, tries to cram in everything possible into that one goal, and then it’s difficult to show progress. That’s, I think, really one of the key takeaways from Endrew F., is that school districts need to write their IEPs and implement those IEPs in a way which allows the student to show progress. Of course, the goal has to be ambitious, in light of the child’s circumstances. Ambitious will mean something different for a child with a low ability level, versus a child who may be gifted in some area.

Lisa: Absolutely. One thing we see a lot too is districts get stuck in this formulaic type of development of goals and objectives where maybe they’re writing a certain percent accuracy and three out of four trials, and every single goal is written that way. You really need to make sure, one, you’re looking at, does that make sense for that goal? Number one, but number two, are you going to be able to keep progress with your data collection? What is that going to look like? How are you going to track that? Then to the point where you’re going with the ambition, is an 80% demonstration of mastery for a student reasonable.

Miriam: That might be high.

Lisa: If they’re starting from 20%, are they really realistically going to get to 80% in one year, or maybe 68% is appropriate because of that skill in that area of deficit? You’ve really got to look at the individualized student to figure that out.

Miriam: I think that IEP teams, sometimes get caught up in “Oh, this kid, it’s going to be so fabulous. They’re going to be at 80%, or they’re going to be doing this four to five times, nine out of ten times.” That’s great. I don’t want to discourage teams from having high expectations of students, but at the same time, sometimes those children, you need to be able to have that child be successful. Sometimes that means having a lower mastery criteria so that the child can show progress. In addition to formulating goals in a way that the child can show progress, you also want to make sure that progress reports and the data underlying those progress reports reflects that improvement. In other words, if a parent files a due process complaint saying, “This IEP is not good enough. This program that you’ve developed for my child is just not providing a free appropriate public education,” the main documents that you will need to defend your school district are progress reports, and the data underlying those progress supports so that you can show the hearing officer or the administrative law judge, whatever that person is called in your state, you’re going to need to show that person that, “Yes, this child was making progress.” Those documents are going to be so critical to defend your school district.

Lisa: Absolutely, and another piece to that is you really need to make sure that they align. Your progress report needs to report on those goals and objective exactly as you wrote the level of mastery. If you’re saying that they’re going to reach a certain percentage in four out of five trials, you need to be showing how did they perform on those five trials.

Miriam: I can’t tell you how many times I’m looking at a progress report and everything looks great. I’m also looking at the data though and the checkmarks or the notes, they do not match up to the progress report, and then I’m talking to the teacher, or the intervention specialist, and they don’t remember. They’re like, “I don’t know.”

Lisa: Keep in mind like, for example a due process complaint can be filed for two years. Your caseload as an intervention specialist as numerous students. Are you going to remember what you did a year and a half ago specifically? That’s why you really need those documents to be able to remember.

Miriam: To be clear.

Lisa: One other point I wanted to highlight too just so we don’t forget. A lot of times I see progress being pulled from grades.

Miriam: No, that’s not good.

Lisa: Be super careful with this, especially like our grades 7 to 12. I know it gets difficult especially if students are moving class to class, data collection can become difficult. Work smarter when you’re developing these, and what I mean by that is, think about what you’re doing in your services, in your specially designed instruction and your programming. What easy ways can you incorporate that data into what you’re doing on a daily and weekly basis that you can use what you already have to collect that data and don’t have to go, “Okay, now I have this IEP with five goals and they each have five objectives. Now I need to come up with 25 different ways to measure progress and figure out after the fact how I’m going to do that.” Really think backwards in what you’ll be doing to find easy ways to naturally collect that data, then you’re going to be more assured that you will collect the data and be more defensible down the road.

Miriam: I generally advise districts to keep the progress report data and the progress report results separate from your grades. I see districts mixing this in ways that just do not work. I’ll see it both ways, I’ll see a district that says, “Oh, Bobby is doing okay in his algebra 2 class, so that means he’s going to get ‘making good progress on his math goals’” which might not be related at all to algebra 2.

Lisa: That will lean me into one more little tangent. Please make sure too in your progress reports, you’re not just writing making progress, right?

Miriam: Yes.

Lisa: It actually needs to have the data, and I’m sure you’ve seen that from time to time too. All of this needs to be a data-driven decision, and you can’t be having those conversations unless you literally have those numbers and data, and if they aren’t showing progress, you need to be reconvening, you need to be talking about that, was maybe the original thought of the team too ambitious that you need to adjust it, or maybe it’s not that it was too ambitious, the child just isn’t responding to the originally planned method and the team needs to switch that up.

John: On having more detailed data and the progress reports too, also keeps the team in check in a sense. If I’m going to fill it out and I have to include the last 5 or 10 data points, there’s going to be an issue if it’s two or three weeks in between. It helps the intervention specialists and all the other teachers and aides remember, we’ve got to hit that math goal. We did math, but we didn’t do the IEP goal. Let’s make sure we get that into the fold as well.

Lisa: Right. Remember your IEP yes is for a year, but you have your regular interval reporting periods that you really need to make sure you are reasonably going to be able to gather the data you need within those shorter periods.

Miriam: If the student is not making progress, definitely, like you said, Lisa, the team should meet and talk about why that is, and if necessary, change the goal or change the criteria.

Lisa: One issue we see come up a lot with limited progress is attendance.

Miriam: Yes.

Lisa: Sometimes we have students who, because of their medical condition, have issues with attendance or attendance is just an issue for other reasons. The teams need to be talking about that. One thing we do often advise districts is your goals and objectives should not be identical year to year, that’s going to be a great red flag for the student isn’t making progress and isn’t receiving FAPE. We need to also be looking at the component of attendance and receipt of those services in that analysis too.

Miriam: If a child is missing school for a significant amount of time, some districts, unfortunately, they just throw their hands up and they’re like, “Oh, well, they’re truant, so they’re not getting the services.” That’s not a good solution to decide that you’re going to be hands-off and handle this through the truancy system. Because this child has an IEP, the team should get together, and the team should talk about what the impact of these absences has been on the child on the child’s education, and if the goals are still appropriate, maybe there’s other factors going on with this child. Maybe there’s a school anxiety issue, because sometimes kids miss a period of time, and then going back into that environment is too overwhelming for them because they’ll be like, “All the teachers are going to yell at me and they’re going to say where were you and I’m just going to avoid that and not come to school again ever.” Teams need to step in and talk about what’s really going on with the child and how the services or other factors need to be changed.

Lisa: Into that anxiety component, I see a lot of districts sometimes get caught up in, “Oh, well, they just weren’t here us, so we don’t have to worry about those services”, but if that’s related to their disability and that’s keeping them from receiving FAPE, you do need to have those discussions. Does the child need some sort of transition plan, do they need some home instruction during times when they can’t make it in? Just getting them from home to school isn’t just a parent responsibility, that team may need to step in and use some strategies to help get them there.

John: Does it matter then why that kid missed?

Lisa: Yes.

John: I have two ends of the spectrum experience with one who the family just didn’t care that much to get the kid there. He was allowed to stay home, play his video games whenever he wanted, and then one with severe medical issues that miss two or three months. Does that play into the school’s responsibilities and what to do in that regard?

Lisa: Yes, great question. I think that’s where we were have been talking about things like a component, the medical component can also be a really specific piece where you are obligated. In some states, even I know Ohio has recently enacted some laws where there really are some specific truancy requirements, so you’ll need to follow those, but also not leave out that IEP team so that you’re asking those questions or the parent to even get at the core reason. That’s not always a parent. Sometimes it appears like maybe parents are just not sending the child, but really there’s something else going on that just the team hasn’t been made aware of yet.

Miriam: Let me just clarify. I don’t want to be saying that disregard truancy laws and just meet with your team. Obviously, whatever your truancy laws are in your state, you need to follow them, but what we’re saying is don’t just leave it at that. That’s the floor, but that’s not enough. Your IEP teams need to come together and talk about children for whom attendance is a concern.

Lisa: Right.

Miriam: This brings me to our next question that we receive, and that’s about providing services, implementing that IEP in different settings. School districts are required to provide a variety of services on a continuum. School districts implement IEPs in so many different settings. It can be an online program, an IEP can be implemented at home through a home instruction. Some students attend college credit plus programs, or in other states these are known as dual curriculum programming, where children are actually taking a lot of their classes at a university setting. Some school districts, of course– many school districts place children in separate facilities, facilities for children with emotional disturbances or autism-related disorders, and it can be challenging for a school district to implement IEPs in those different settings, and I think that’s where we see a lot of problems where because the child is not in a typical classroom setting, the implementation of the IEP becomes a little bit flawed.

Lisa: Absolutely. I think that definitely opens a wider range of issues that can come into play. I think these are areas where it’s really, really important that the teams are having discussions and planning for some of these potential issues in advance so that we don’t run into claims about not providing FAPE and things like that down the road. Certainly as soon as you pass on that child to another program that’s not in your immediate vision and with your control…

Miriam: Control.

Lisa: Control, right…with every decision, a lot of times districts take a hands-off approach, which really is very problematic. I’m sure in your separate facility when you were working as an administrator, you probably saw that. I’m guessing many times the separate facility was writing The IEPs for those students.

John: Yes.

Lisa: We’ve really got to remind districts, you’re the one responsible when you’re placing these students at another placement, whether it is home instruction or it is a separate facility, you’re not just handing them off, you’re still the one responsible for that free appropriate public education and what is happening in those places. Really, I like to see districts take charge of really being the ones to develop those, certainly with the input, for example, from the separate facility.

Miriam: Right. In other words, if you have placed a child through the IEP process to a separate facility, where they’re supposed to be getting this instruction, this training, especially designed services and instruction, and then they’re not, they’re for whatever reason that facility is not working for the child, then the parent can come back and say, “Oh, look.” That creates a complicated situation. The parent could file due process complaint and say, “My child didn’t make progress.” Then the school district says, “Oh, well, it’s not really our problem. That was that other facility’s problem, it was that other school’s problem.” Like Lisa just said, really, the school district is obligated to provide a free and appropriate public education. Your district will be on the line for somebody else’s gaps or flaws or mistakes and that’s why the school district should still continue being involved, provided that the child is placed through the IEP process in that facility.

John: At the opposite side of that is, when things go really well at the other facility, getting that student back into the district in a successful way, and then having the district involved being part of that team and …

Miriam: Transitioning back.

John: …staying in, yeah, that transition back and what that looks like, most third party providers are going to do what it takes to make sure that transition is successful. Maybe the kid starts at the district for homeroom then comes for a month, then first period day back, half day back and just–

Lisa: That placement is not going to be kind of all or nothing.

John: It’s just easier to do stuff like that, though, when the district is involved from day one, and being part of that team.

Lisa: Right. I often hear a lot from districts, “well, once we send them there, we can’t control what they do”. It’s really important that you look at what your contracts are with other facilities and things like that, where you can get a little better control. Perhaps you include provisions in there of what progress reports will look like, what documentation you’re going to be getting, and on what regular interval so that you don’t end up a year or two down the road going, “Well, they never provided me any data. I didn’t know he wasn’t making progress.” You don’t want to be in that kind of situation.

Miriam: If you have a contract where you’re paying this outside facility to provide the services, you want to make sure that your contract reflects the level of control that you need to make sure the child receives a free and appropriate public education.

Lisa: One of the other continuum placements you mentioned earlier was home instruction. We see some pitfalls in that area too, districts being formulaic about it. We want to make sure it’s not just, “Okay, this student needs home instruction, so this is the specific hours we offer, and those are the only options.” You want to make sure that it’s still individualized for that student. You’re also going to want to make sure that that’s specially designed instruction is still individualized. Do they need more time in math because that’s their key area of disability? What are those services need to look like? What are the related services need to look like?

Miriam: Absolutely. Home instruction is probably one of the top areas where school districts are formulaic in what they provide. “Oh, this is what we do for home instruction, you just get half an hour a day” or whatever it is, and that individual piece is lost. That can be a real problem when children have IEP’s that needs to be serviced through the home instruction process for whatever reason that is.

Lisa: All this conversation really is talking about the child’s least restrictive environment, which we know districts are responsible for providing FAPE within that environment. I’d like to dive into this a little bit more for our students, perhaps with more severe cognitive delays.

Miriam: Just to remind our audience, again, the IEP lays out not only what services are provided, but also where the services will be provided, what location and who are the other individuals there, or is this going to be mainstreaming in a regular classroom? Is this going to be a separate facility? Is this going to be a one-on-one in a home environment? That’s what we call LRE, the least restrictive environment.

Lisa: You’re absolutely right, we really have to delineate both, and I think it’s really important the districts, again, are having these conversations, this teams talking about the child’s needs, and again, really focusing on that individualized component. Keeping in mind too, that we do have some court decisions out there that speak to what LRE needs to look like, speak to that you can’t just move a child to a more restrictive environment, when they can still benefit and need to be with their peers more often. We do in the Sixth Circuit have had a recent decision that outlines some of the factors for that. Our districts need to be aware of what some of those decisions are too in weighing the benefits of one environment over another.

Miriam: I think our audience mostly knows, that mainstreaming that the law prefers mainstreaming students with disabilities. The general idea is that students with disabilities do better when they’re exposed to their typical peers. They get to see those interactions and role modeling of appropriate behaviors. This is the assumption children do better when being mainstreamed. Sometimes that creates challenges for districts in mainstreaming students with significant disabilities. In the Sixth Circuit, different areas of the country handle the mainstreaming discussion slightly differently. In our area in the Sixth Circuit, which encompasses Ohio, Michigan, Kentucky and Tennessee, the Sixth Circuit has clarified recently that a district can move a child out of the general education setting only in very specific circumstances. It’s pretty rigid, I would say, only if a student will not receive any benefit from the general education placement from the mainstream classroom, or any benefits of the general education placement would be far outweighed by the benefits of the special education placement, or if the student’s behavior is destructive, will disrupt the general education classroom. For example, we have many situations where a child is just really, let’s say they have low cognitive skills, and they’re in 9th grade, and then the challenge for school districts is how to figure out how you’re going to have this 9th grader with really low level cognitive skills, intellectual disability, how are you going to meaningfully mainstream them in a high school social studies class in a way that is not just perfunctory, but it’s actually meaningful?

John: One thing that’s gaining traction right now is like a sliding schedule. These high schoolers, it is easier in 1st grade, 2nd grade, because the mental and physical age gap is not as drastic. As you get into high school, you’re seeing more of those pullout rooms, specialized programs, things like that. But you still want to, as you already mentioned, all the benefits of mainstreaming, they’re sliding in when possible. It used to be called push in, but it was more rigid and very set. This is more, maybe Little Johnny never goes to math class, but today in math class, they’re playing a game or watching a movie, why can’t he join there then? It’s finding those moments for that and encouraging that.

Lisa: Kind of finding ways to have flexible programming, I would say. The other thing that you alluded to, Miriam, earlier, is there is a split in this, that criteria across the country. If you’re in another state, you certainly want to know what your state’s criteria are, and certainly that can develop through the courts as we move forward, but it is really important that you’re weighing all of that and not just jumping to, this is the program we offer. The students have to fit into that mold.

Miriam: I know we’re going to finish up really quickly, but we just have one more common question that we get, and it’s about language barriers.

John: The question is, a parent claim she doesn’t understand English and wants everything translated, IEP, ETR, all special ed documents, even any notices that a teacher would send home. Are they required to translate everything?

Miriam: We get this question a lot.

Lisa: This is going to go beyond just IDEA requirements. Now we’re invoking some other laws that are out there like Title VI, that we do need to be providing information to parents in the language that they can understand. You are going to have to translate some documents, especially key documents. I think that guidance has been very clear, like your procedural safeguards in your state should be available in various languages. Also policies, procedures, programming, those things you’re going to have to translate. Also like PR ones, if they’re giving a parent notice about something that’s happening, a parent needs to be able to read that in their language that they understand. This also invokes the provision of when you need a translator for some meetings. I know we’ve had some experiences with that lately. The translators–

Miriam: I just want to clarify that. The Office for Civil Rights will require school districts to translate all essential documents, including just really anything related to the policies, procedures, registration, enrollment, and then separately from that, or I should say, in addition to that, there are regulations, special education regulations that specifically know that prior written notices need to be in a parent’s native language. That’s another important component. If you’re sending a private notice home, which you should be doing after every IEP meeting, make sure that you have that translated into the parent’s native language.

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Lisa: Absolutely. Well, time to wrap up, but thank you for joining us again, John.

John: Thanks for having me back.

Lisa: Touching on some of these really key IEP issues that we really see on a very regular basis.

Miriam: Next time we’ll talk about functional behavior assessments and behavior intervention plans, all kind of behavior management issues. In the meantime, please rate us favorably on Itunes and Stitcher, wherever you get your podcast. Send us some mail. We love fan mail. Have a great day.

Lisa: Thanks for joining us. Thanks for listening.

The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.