The IEP As A Contractual Document
The Individualized Education Plan (“IEP”) is the cornerstone of the Individuals with Disabilities Education Act (“IDEA”). It is the document which sets forth the “free appropriate public education” your child is entitled to receive under the Act. It is not the purpose of this article to describe the IEP process, the development of an IEP or the remedies for developing an inappropriate IEP. Rather, the purpose of this article is to emphasize the importance of the IEP as a legal document and the commensurate requirement that all educational decisions be clearly set forth in the IEP.
The school district is required to provide all of the services that are specified in your child’s IEP. It is contractual to the extent that it sets forth the school district’s obligation to provide services. If it is in the IEP, it must be provided at no cost to the parent. It cannot be overstated that you must ensure that the IEP accurately sets forth, in as much detail as possible, all of the services and supports the IEP Team has agreed should be provided to your child to ensure a free appropriate public education.
Too often, parents and the IEP Team get bogged down in the details over the child’s present levels of educational performance and the wording of specific goals and objectives. While these components of the IEP are important, stamina and vigilance are necessary for later in the meeting when the specifics of service hours, service delivery, placement and extended school year services (“ESY”) are discussed.
In my experience, parents come away from an IEP Meeting feeling like they have a clear understanding of when, where, how and by whom the special education services are supposed to be delivered. But when the parent comes to me to review the IEP because the services are not being implemented as they believe they should, my review of the IEP often times reveals that the manner of the delivery of services is anything but clear.
The specificity of the delivery of special education services as they relate to the education of children with autism is particularly critical. There is great debate over treatment programs and their settings, educational methodologies, training of service providers, duration and continuity of services, biomedical issues and their relationship to education, etc. While an agreement on all of these issues may not be feasible in the development of a given IEP, the detail and manner in which they are expressed in the IEP is essential.
For example, if the IEP Team agrees that your child requires 30 hours per week of “ABA therapy,” it is critical that the IEP sets forth not only the number of hours of services per week to be provided to your child, but also that the IEP specifically states that the services are to be provided using Applied Behavior Analysis techniques (not generalized speech therapy, occupational therapy, etc.), by a person qualified and trained in the delivery of ABA (not merely a special educator, speech therapist or paraprofessional), on a 1:1 basis (not left undefined), and in a particular setting, e.g. home, separate classroom, etc. (not left undefined).
Because the education of children with autism oftentimes requires the delivery of continuous and uninterrupted services, it is important that the IEP define precisely what the IEP Team agrees to with regard to ESY. It is not enough that the ESY box is checked. If the delivery of services is to be consistent and uninterrupted, the IEP should reflect that fact. When the times comes, there will be no confusion over the nature and amount of services that should be provided during Fall, Winter, Spring and Summer breaks, and other school breaks.
Independent Hearing Officers who decide disputes between parents and school districts over the appropriateness or implementation of IEPs invariably focus their attention only on what is written in the IEP document itself. While taking notes and even tape recording the IEP Meetings are good measures to take to document the development of the IEP, rightly or wrongly the Hearing Officer will first and foremost analyze what is written in the final IEP document. He or she will assume that what is agreed to will be written into the IEP. What is taken down in notes can be interpreted differently by different people, e.g. do the notes reflect what was agreed to by the IEP Team or merely reflect the statements of what was discussed? Similar issues are raised with regard to transcripts of IEP Meetings. A Hearing Officer is reluctant to pour through pages of transcript, let alone hours of tape, to reconcile a given issue. He or she will focus instead on what the IEP says or does not say.
Whether you agree or disagree with the contents of the IEP, it is imperative that the IEP accurately sets forth the entirety of the school district’s proposed educational program and placement for your child. If you disagree with it you will know the precise nature and limits of your dispute. If you agree with it but the school district does not implement it as written, you will have a concise document that you can use to demonstrate what has been provided versus what was required to have been provided.
In developing, reviewing and finalizing an IEP, think in terms of the people not in the room reading and using it. Assess whether the IEP clearly defines what types of services will be delivered when, where and by whom. There should be no guess work. Think also in terms of a Hearing Officer reviewing it in the context of deciding an educational dispute. The IEP should accurately and precisely define the school district’s responsibilities without the aide of an explanation by the people involved in drafting it. A well defined IEP will go a long way towards avoiding any disagreements over the nature, amount and setting of the educational services provided to your child.
By Jack Robinson