Wrightslaw - Section 1414 of IDEA about IEPs with Commentary by Pete Wright

20 U.S.C. § 1414 - Evaluations, Eligibility, IEPs, & Placement

The law about IEPs is in 20 U.S.C. § 1414

On this page, the text of the IDEA statute is in black.

NOTE : Our book, Wrightslaw: Special Education Law, includes the full text of the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, FERPA, and a casebook of decisions in special education cases by the U. S. Supreme Court. Reviews TOC Orders

(d) Individualized Education Programs.--

(1) Definitions.--As used in this title:

(A) Individualized education program.--The term ‘individualized education program’ or ‘IEP’ means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes--
(i) a statement of the child’s present levels of educational performance, including--
(I) how the child’s disability affects the child’s involvement and progress in the general curriculum;
or
(II) for preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities;
(ii) a statement of measurable annual goals, including benchmarks or short-term objectives, related to--
(I) meeting the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum; and
(II) meeting each of the child’s other educational needs that result from the child’s disability;

(PWDW Note: Annual goals should be measurable and should be related to the child’s unique needs to enable to the child to participate in the general curriculum. Although children are often placed in the general curriculum, they cannot read, write, spell, or do arithmetic. The child continues to fall behind and develop "emotional problems" due to frustration and failure. In these cases, the parent should insist that the school provide intensive remediation, using a one to one tutorial, to teach the child how to read, write, spell, and do arithmetic. The goal should be to increase the child’s skills so the child can really "be involved in and progress in the general curriculum."
Too often, special educators bring in scribes or note takers, instead of teaching the child to write. Or, the special educator will provide talking books instead of teaching the child how to read. Or, special educators will give calculators to children instead of teaching them to do math. In these cases, relying on "modifications" and "accommodations" causes the school to fail in their responsibility to teach children the acquisition of basic skills. Adults in the workplace do not have scribes or talking books. As an adult, the individual will not always be able to use a calculator to determine how much change they should give or receive to purchase an item. In the intense private special education schools, students do acquire these basic skills. That is the expectation of those educators. Too often, that is not the expectation of the public school educators. Instead, there is an over reliance on compensation and accommodation, rather than the acquisition of basic skills.
After the Carter case, many school districts stopped using standardized measures to evaluate progress and regression, objectively. Instead they began to use subjective teacher observations and teacher made tests. Some schools use criterion referenced material, instead of standardized, norm referenced test data. Reading may not be the actual reading score, reported as a grade equivalent, standard score, or percentile rank. Instead, the skill will be "described" with other criteria that measure gain over time, such as a specific level or series of books. The phrase "benchmarks" was included to clarify the expectation that there must be clear measures of progress or regression.
The emphasis in IDEA 97 is on measurable outcomes. Many IEPs state that "the child will have 80% success," with success "measured" by teacher observation and classwork. These goals are meaningless. Goals and objectives must be linked to the child’s present levels of performance.
You may see considerable litigation about the term "benchmarks or short term objectives." End of PWDW Note)
(iii) a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child--
(PWDW Note: Program modifications and supports for the school personnel will also be written into the IEP. Not just modifications and supports for the child! End of PWDW Note)
(I) to advance appropriately toward attaining the annual goals;
(II) to be involved and progress in the general curriculum in accordance with clause (i) and to participate in extracurricular and other nonacademic activities; and
(III) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this paragraph;
(iv) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in clause (iii);
(PWDW Note: The IEP must actually explain the extent that the child will not participate in regular classes. End of PWDW Note)
(v)(I) a statement of any individual modifications in the administration of State or districtwide assessments of student achievement that are needed in order for the child to participate in such assessment; and
(II) if the IEP Team determines that the child will not participate in a particular State or districtwide assessment of student achievement (or part of such an assessment), a statement of

(aa) why that assessment is not appropriate for the child; and
(bb) how the child will be assessed;(vi) the projected date for the beginning of the services and
modifications described in clause (iii), and the anticipated frequency, location, and duration of those services and modifications;
(vii)
(I) beginning at age 14, and updated annually, a statement of the transition service needs of the child under the applicable components of the child’s IEP that focuses on the child’s courses of study (such as participation in advanced-placement courses or a vocational education program);
(II) beginning at age 16 (or younger, if determined appropriate by the IEP Team), a statement of needed transition services for the child, including, when appropriate, a statement of the interagency responsibilities or any needed linkages; and
(III) beginning at least one year before the child reaches the age of majority under State law, a statement that the child has been informed of his or her rights under this title, if any, that will transfer to the child on reaching the age of majority under section 615(m); and

(viii) a statement of--
(I) how the child’s progress toward the annual goals described in clause (ii) will be measured; and
(II) how the child’s parents will be regularly informed (by such means as periodic report cards), at least as often as parents are informed of their nondisabled children’s progress, of--

(aa) their child’s progress toward the annual goals described in clause (ii); and
(bb) the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.

(B) Individualized education program team.--The term ‘individualized education program team’ or ‘IEP Team’ means a group of individuals composed of--

(i) the parents of a child with a disability;
(ii) at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment);
(iii) at least one special education teacher, or where appropriate, at least one special education provider of such child;
(iv) a representative of the local educational agency who--
(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
(II) is knowledgeable about the general curriculum; and
(III) is knowledgeable about the availability of resources of the local educational agency;
(v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi);
(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
(vii) whenever appropriate, the child with a disability.

(PWDW Note: IDEA 97 includes significant changes to IEPs. The IEP must be linked to the child’s present levels of performance. The IEP must include benchmarks and short term objectives - measurable outcomes. The IEP team must include the individuals who are listed above. If the IEP team does not include these individuals, this may be a significant procedural breach that triggers other remedies and sanctions. Parents ask about why these staff members are absent and may want to write on the IEP document that the specific individuals did not attend the IEP meeting. Schools will assert that the absence of one or more of these individuals is not material but is a "harmless error" that did not adversely affect the outcome of the IEP meeting. End PWDW Note)

(2) Requirement that program be in effect.--

(A) In general.--At the beginning of each school year, each local educational agency, State educational agency, or other State agency, as the case may be, shall have in effect, for each child with a disability in its jurisdiction, an individualized education program, as defined in paragraph (1)(A).

(B) Program for child aged 3 through 5.--In the case of a child with a disability aged 3 through 5 (or, at the discretion of the State educational agency, a 2 year-old child with a disability who will turn age 3 during the school year), an individualized family service plan that contains the material described in section 636, and that is developed in accordance with this section, may serve as the IEP of the child if using that plan as the IEP is--
(i) consistent with State policy; and
(ii) agreed to by the agency and the child’s parents.

(3) Development of IEP.--

(A) In general.--In developing each child’s IEP, the IEP Team, subject to subparagraph (C), shall consider--

(i) the strengths of the child and the concerns of the parents for enhancing the education of their child; and
(ii) the results of the initial evaluation or most recent evaluation of the child.

(PWDW Note: It is mandatory. The IEP must consider the parents concerns and the results of the most recent evaluation.)

(B) Consideration of special factors.--The IEP Team shall--
(i) in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior;

(PWDW Note: It is mandatory that the IEP team must consider positive behavioral interventions to address the child’s behavior. If this is not documented or considered by the school district, it can cause the district significant legal problems. The interventions, strategies and supports that are discussed and attempted should be logged in. Parents should document the school’s failure to consider and use such positive strategies and interventions. Parents can accomplish this by using courteous thank you letters or by developing a "Parent’s Attachment" to a proposed IEP that they prepare and distribute at the IEP meeting. End PWDW Note)

(ii) in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child’s IEP;

(iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child’s future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;

(iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child’s language and communication needs, opportunities for direct communications with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode; and

(PWDW Note: Two areas of litigation are related to this part of the statute. First, when children are hard of hearing or have cochlear implants, parents and private sector professionals often request of Auditory - Verbal Therapy, not sign language or a "Total Communication" approach that blends sign language and lip reading. The "Auditory Verbal" approach teaches listening and speaking skills. These children often need to be taught how to listen auditorily, instead of learning how to read lips and read sign language. The child needs to learn how to speak, using spoken speech, rather than using sign language and gestures.

The second area of litigation relates to the use of Applied Behavioral Analysis or Lovaas therapy to remediate children who have autism. Without intensive intervention, most of these children become very withdrawn. Until recently, many autistic children were institutionalized. The Lovaas or ABA approach is very intense. It is individualized one-to-one therapy for forty hours a week. It teaches the child how to communicate. Research by Dr. Ivar Lovaas and others shows that many autistic children can eventually enter regular public school classroom programs, with no need for special education. In the Fall of 1997, the National Institutes of Health funded several research projects about educating and remediating children who have autism. As information from these research projects is available, we should see major shifts and improvements in this area. LRP Publications recently reported that parents are prevailing in nearly seventy percent of the Lovaas ABA cases. (End of PWDW Note)

(v) consider whether the child requires assistive technology devices and services.

(C) Requirement with respect to regular education teacher.--The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1)(A)(iii).

(PWDW Note: This is mandatory, "to the extent appropriate." The regular ed teacher shall work to develop positive behavioral interventions. Special education is not a service or program that is limited to the special ed classroom at the end or the building, or in the trailer out back, but must include the participation of the regular education teacher. Despite their expected objections, they will have to become involved. Often, after a regular education teacher truly participates in the development of an IEP, they have a personal stake in the success of the IEP and are able to perceive the child in a different, more positive light. Too many regular education teachers are unaware of the child’s intellectual and educational strengths and weaknesses. They are not aware that despite a strength in one area that may be at a 95^th percentile rank, the child’s processing speed may be at the 2^nd percentile rank. End PWDW Note)

(4) Review and revision of IEP.--

(A) In general.--The local educational agency shall ensure that, subject to subparagraph (B), the IEP Team--

(i) reviews the child’s IEP periodically, but not less than annually to determine whether the annual goals for the child are being achieved; and
(ii) revises the IEP as appropriate to address--

(I) any lack of expected progress toward the annual goals and in the general curriculum, where appropriate;
(II) the results of any reevaluation conducted under this section;
(III) information about the child provided to, or by, the parents, as described in subsection (c)(1)(B);
(IV) the child’s anticipated needs; or
(V) other matters.

(B) Requirement with respect to regular education teacher.--The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the review and revision of the IEP of the child.

(5) Failure to meet transition objectives.--If a participating agency, other than the local educational agency, fails to provide the transition services described in the IEP in accordance with paragraph (1)(A)(vii), the local educational agency shall reconvene the IEP Team to identify alternative strategies to meet the transition objectives for the child set out in that program.

(6) Children with disabilities in adult prisons.--

(A) In general.--The following requirements do not apply to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons:

(i) The requirements contained in section 612(a)(17) and paragraph (1)(A)(v) of this subsection (relating to participation of children with disabilities in general assessments).
(ii) The requirements of subclauses (I) and (II) of paragraph (1)(A)(vii) of this subsection (relating to transition planning and transition services), do not apply with respect to such children whose eligibility under this part will end, because of their age, before they will be released from prison.

(B) Additional requirement.--If a child with a disability is convicted as an adult under State law and incarcerated in an adult prison, the child’s IEP team may modify the child’s IEP or placement notwithstanding the requirements of sections 612(a)(5)(A) and 614(d)(1)(A) if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.

(e) Construction.--Nothing in this section shall be construed to require the IEP team to include information under one component of a child’s IEP that is already contained under another component of such IEP.

(f) Educational Placements.--Each local educational agency or State educational agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.

(PWDW Note about school meetings. As discussed earlier, but repeated here, parents should consider tape recording IEP meetings. If you tape record, be sure that the recorder is in full view, never hidden. Always use fresh batteries, bring extra tapes, operate the recorder in a "continuous record mode" (not voice activated), use an external microphone. Place the recorder on a book or other surface (not the table) to reduce the low frequency hum created by recorders. Practice using the recorder before the meeting. Learn how to adjust its sensitivity. Be sure you are familiar with any warning or lack of warning when the tape ends. At end of the IEP meeting, parents should transcribe the tape. This will help you participate more effectively in the IEP decision making process. You should ask lots of questions during IEP meetings, especially the 5 W’s+H+E. (Who, what, when, where, why, how, and explain.)

After IEP meetings, it is good practice to write courteous thank you letters. You can express your concerns about your child’s program, progress, etc.

Parents should assume that if they request a special education due process hearing, testimony from all school staff would be adverse to their child. Parents often hear testimony that they agreed to everything in the IEP and had never expressed any concerns about the program. Of course, the parent’s testimony is usually the opposite. Having a transcript is good protection for the parents and school officials. The process of recording and transcribing can help cause lengthy, time consuming meetings to be much more focused and efficient.

For purposes of case preparation, parents must assume that they cannot testify. Parents must have independent evidence that supports their position. Parents must also have a "paper trail" of courteous correspondence with school officials.

Parents must learn to analyze educational progress and educational regression. This means that parents must understand psychological and educational tests. See our articles about IEPs and "Understanding Tests and Measurements" at our website: https://www.wrightslaw.com/. After parents read these articles and evaluate their child’s test scores, most are astounded to learn that their child fell further behind the peer group in the area of the identified deficiency, while the child was receiving special education services! End of PWDW Note)

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