KingSpry USDOE Issues New Q&A on What Constitutes FAPE

U.S. Department of Education Issues New Q&A on What Constitutes FAPE

Dr. Kathleen Conn

Posted on December 18th, 2017
by Dr. Kathleen Conn

On December 7, 2017 the U.S. Department of Education issued a document titled “Questions and Answers (Q&A) on U.S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1.” The document originated from the Office of Special Education and Rehabilitative Services (OSERS), which invites public comments.

The Q&A attempts to explain to parents and stakeholders the issues addressed in the Endrew F. decision, and the impact of the decision on implementation of the IDEA’s requirement of a free appropriate public education (FAPE) for children with disabilities.

The High Court decided Endrew F., a unanimous ruling by eight sitting Justices, on March 22, 2017. The ruling, authored by Chief Justice John Roberts, overturned the Tenth Circuit’s definition of FAPE as an educational program calculated to provide “merely more than de minimis” educational benefit.

The new standard for judging the sufficiency of the provision of FAPE enunciated in Endrew F. was that an individualized education program (IEP) must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” and “every child should have the chance to meet challenging objectives.”

The decision was both widely lauded as imposing a new, higher standard for what constitutes FAPE, and equally widely criticized as providing no meaningful substantive guidance because the decision explains the “appropriate” language of FAPE in the same term, “appropriate.” Although subsequent decisions in the Third Circuit have suggested that the Endrew F. standard is likely similar to the standard of meaningful progress used in the Third Circuit for many years.

“Reasonably calculated,” states the Q&A, requires a “prospective judgment” on the part of the IEP team, based on their personal expertise, and the child’s demonstrated performance and potential, as well as the views of the child’s parents. The IEP team must consider the effectiveness of prior services and supports and address the child’s behaviors that may interfere with the child’s educational progress.

However, the Q&A notes that “reasonably calculated to ensure … progress” does not mean that the IEP must be ideal. Individualized decision-making is especially important as the IEP team establishes annual goals, both academic and functional goals, so that the objectives challenge the individual child. The state’s academic content goals, the Q&A states, must guide the IEP team for most children, but alternate academic standards may be devised for the most severely cognitively disabled children as long as they are aligned with the state academic standards.

The IEP team may meet periodically during the school year to examine whether IEP goals are being met. If a child is not making progress, the IEP must be revised to add additional supports that may get the student to make progress. IEP teams must also consider behavioral needs of the individual child so that those needs do not impede the child’s educational progress.

Placement in the regular classroom may not be appropriate for every child with a disability. A continuum of placements must be considered and made available, according to the Q&A. Importantly, the Endrew F. decision did not change any of parents’ procedural due process rights.

Bottom Line for Schools

When attempting to discuss what IEP teams should do differently as a result of the Endrew F. decision, the Q&A adds little new. Nevertheless, the Q&A should be required reading for Special Education professionals. The Q&A repeats that each child must make appropriate progress in light of the child’s individual circumstances. One thing that the Q&A does include is a note that IEP teams, in addition to reviewing services and supports for each child, should also provide “supports for school personnel.” This is a point often overlooked and, even in the Q&A, appears in a “to-do” list that deserves more emphasis. IEP teams often focus solely on the child’s needs, and forget the potential stresses on school personnel who must deliver the individualized services and supports they mandate to assist staff in helping the student.

The Q&A provides the following key points for IEP teams in terms of what they should look at in determining if the IEP is reasonably calculated to provide appropriate progress:

  • Use their professional judgment as educators
  • Look at the child’s progress to date and what services have been used in getting the child to make that progress
  • Review the child’s behaviors that may be impacting progress
  • If the IEP is not working, revise it to add additional supports and/or services to help the child make progress.

The Q&A is available by clicking here.

 

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.