Question: Help! Our child's IEP team refused to include functional goals in the last IEP. When we said we would have to request another IEP meeting to resolve this issue, they agreed to include a few functional goals. I am afraid this will happen again. What can I do?

Answer: Since history tends to repeat itself, you are wise to think this may happen again. Write a polite thank you letter that describes what you requested, what you were told about not including functional goals in the IEP, and what the school finally agreed to provide. Your letter should include relevant information about your child's unique needs and your concerns. To learn more about this strategy, read Preparing for IEP Meetings: Providing Information & Sharing Concerns.

You need to learn the new legal requirements for present levels of functional performance and functional goals in IEPs. Do not assume that your child's IEP team is knowledgeable about these requirements.

The requirements about using present levels of functional performance to develop functional goals in the IEPs of all children with disabilities (below) are in IDEA 2004, the federal special education regulations, and the Commentary. Find Answers to Your Questions in the Commentary

You will find the requirements for using present levels of functional performance to develop functional goals on pages 99 and 245 of Wrightslaw: Special Education Law, 2nd Edition.

Note: Wrightslaw: Special Education Law, 2nd Edition includes the IDEA statute, the federal special education regulations, cross-references to the Commentary; Section 504, NCLB, FERPA, the McKinney-Vento Homeless Act; decisions in special education cases from the U. S. Supreme Court; references and resources.

Wrightslaw: Special Education Law, 2nd Edition is available as a print book and as a print book and e-book combo. If you have the e-book, you can easily search for a specific term or phrase. How to search the e-book.

Q: What does the word "functional" mean, as used in "functional performance" and "functional goals"?

Functional means nonacademic, as in “routine activities of everyday living.” This clarification should help IEP Teams understand that the purpose of the IEP is to prepare children with disabilities for life after school. this should also help the school understand that teaching children how to "function" in the world is just as important as teaching academic skills.

"It is not necessary to include a definition of "functional" in these regulations because we believe it is a term that is generally understood to refer to skills or activities that are not considered academic or related to a child’s academic achievement. Instead, "functional" is often used in the context of routine activities of everyday living." (Commentary in the Federal Register, page 46661)

Q: Why don’t the regulations include examples of how functional skills?

The Commentary clarifies that the child's IEP should be based on the child's individual and unique needs. The IEP describes what the school will provide, given the child's unique needs for specific functional skills.

"We do not believe it is necessary to include examples of functional skills in the regulations because the range of functional skills is as varied as the individual needs of children with disabilities." (Commentary in the Federal Register, page 46661)

Q: What are examples of how functional skills are measured?

In order to measure the child’s present levels of functional skills, the school must evaluate these skills. While the regulations allow the school to determine what types of evaluation procedures they will use, the evaluation procedures must meet the same standards as other evaluations administered by the the school.

"We also decline to include examples of how functional skills are measured because this is a decision that is best left to public agencies, based on the needs of their children. However, it should be noted that the evaluation procedures used to measure a child’s functional skills must meet the same standards as all other evaluation procedures, consistent with § 300.304(c)(1)." (Commentary in the Federal Register, page 46661)

What does the word "appropriate" mean when used to refer to a child’s participation in "appropriate" activities? (Regulation § 300.320(a)(1)(ii))

This clarification emphasizes the need to focus on the unique needs of the child. An “appropriate” goal or activity for one child may be completely inappropriate for another child. Children are like snowflakes; no two are alike.

"The word "appropriate" in these regulations does not have a different meaning from its common usage. Generally, the word "appropriate" is used to mean "suitable" or "fitting" for a particular person, condition, occasion, or place. (Commentary in the Federal Register, page 46661)

Must all IEPs have a functional performance statement or functional annual goals?

Yes. This is required by law, regardless of whether the ultimate goal of the IEP is to teach the child functional skills or academic skills.

"Section 1414(d)(1)(A)(i)(I) of the Act requires an IEP to include a statement of the child’s present levels of academic achievement and functional performance." (Commentary in the Federal Register, page 46662)

Find Answers to Your Questions in the Wrightslaw: Special Education Law E-book

We opened Wrightslaw: Special Education Law E-book in Adobe Reader and searched for these three terms: functional performance, functional skills and functional goals. [Click Edit - then Search or Find]

"Functional performance" was used 28 times, including:

In Findings and Purposes, page 47

In Prohibition on mandatory medication, pages 84 and 225

In Reevaluations, pages 95 and p 240

In Evaluations before a change in eligibility (and the requirement that the school provide the child with a summary of academic achievement and functional performance if the child is no longer eligible because of graduation with a regular diploma or the child ages out of special ed), pages 98 and 240

In Requirements for IEPs, pages 99 and 245

In Requirements for the statement of individual appropriate accommodations to measure the child's academic achievement and functional performance on state and district testing, pages 100 and 246.

We found the terms "functional skills" and "functional goals" five times.

To learn about the new requirements for using present levels of functional performance to develop functional goals in IEPs, see pages 99 and 245 in Wrightslaw: Special Education Law, 2nd Edition. Learn more about Wrightslaw: Special Education Law, 2nd Edition. Order the book

Check Your Version of Adobe Reader!

Most readers will use Adobe Reader to read and search the e-book. You need to have the most recent version of Adobe Reader software in your computer. To get the latest updates or download the most recent version of Adobe Reader, go to http://www.adobe.com/products/acrobat/readstep2.html

Find Answers to Your Questions in the Commentary

When the Department of Education published the IDEA 2004 regulations, they also published an “Analysis of Comments and Changes” (Commentary) to the regulations. The Commentary in the Federal Register begins at page 46547 and continues through page 46743.

The Commentary provides definitions and discussions of legal terms in the IDEA 2004 statute and regulations, and often clarifies the “plain meaning” of a term. If you are doing legal research or looking for the answer to a specific question, the Commentary is an invaluable resource. You can download the full text of the Commentary as one document or as eight smaller files on different topics from
https://www.wrightslaw.com/idea/commentary.htm

More IDEA 2004 & IEP Resources

Legal Requirements of IEPs, Wrightslaw WebEx Training CD-ROM (1.25 hr training)

IDEA 2004: What You Need to Know About IEPs for Children with Behavior Problems - IDEA 2004 and the special education regulations include specific requirements for IEPs of children whose behavior impedes their learning or the learning of other children, including training teachers to use positive behavioral interventions and strategies.

IDEA 2004: IEPs, Highly Qualified Teachers & Research Based Instruction Learn about new language in IDEA 2004 that is designed to ensure that children with disabilities are taught by highly qualified teachers and receive research based instruction. This article includes new requirements for personnel training, IEPs, and scientifically based instruction.

IDEA 2004: What You Need to Know About IEPs & IEP Meetings - How did IEPs change under IDEA 2004? What does the law say about developing, reviewing and revising IEPs? Who may be excused from IEP meetings, when, how? When can the child's IEP be changed without an IEP meeting? What services must be provided when a child transfers to a district in the same state? A different state? What are “multi-year IEPs”?

IDEA 2004: What You Need to Know About IEP Team Members & IEP Team Attendance - Learn about IEP team members and IEP team attendance, when team members may be excused from a meeting, and what parents and the school district must do before a team member may be excused.

10 Tips: How to Use IDEA 2004 to Improve Education for Children with Disabilities - Parent attorney Wayne Steedman explains how IDEA 2004 creates a higher standard for a free, appropriate public education and how parents can use NCLB to obtain a better IEP for their children. Learn how to include research based methodology in the IEP and ensure how to that the IEP goals are comprehensive, specific -- and measurable. Wayne advises you about pitfalls to avoid and offers advice about how you can resolve disputes without resorting to a due process hearing - and what you should do if you cannot resolve your dispute.

Meet Pat Howey

Patricia Howey has supported families of children with disabilities since 1985. She has a specific learning disability and became involved in special education when her youngest child entered kindergarten. Pat has children, grandchildren, and great-grandchildren who have a variety of disabilities and she has used her experience to advocate for better special education services for several of them.

Pat is a charter member of the Council of Parent Attorneys and Advocates (COPAA), serving on its Board of Directors from 2000 through 2003. She has been a Commissioner on the Tippecanoe (County) Human Relations Committee, a graduate of Leadership Lafayette and Partners in Policymaking, and a member of the Wrightslaw Speakers Bureau. She has been on the faculty of the College of William and Mary Law School’s Institute of Special Education Advocacy since its inception in 2011.

Pat has an A.S. and a B.A. in Paralegal Studies from Saint Mary-of-the-Woods College, where she graduated magna cum laude. She is an Indiana Registered Paralegal and an affiliate member of the Indiana Bar and the American Bar Associations.

Pat began her advocacy career as a volunteer for the Task Force on Education for the Handicapped (now InSource), Indiana’s Parent Training and Information Center. In 1990, she opened her advocacy practice and served families throughout Indiana by representing them at IEP meetings, mediation, and due process hearings.

In 2017, Pat closed her advocacy practice and began working on a contract basis as a special education paralegal. Attorneys in Indiana, Texas, and California contracted with her to review documents, spot issues, draft due process complaints, prepare for hearings, and assist at hearings. In January 2019, she became an employee of the Connell Michael Kerr law firm, owned by Erin Connell, Catherine Michael, and Sonja Kerr. Her duties have now expanded to assisting with federal court cases.

"Changing the World -- One Child at at Time."

Contact Information

Patricia L. Howey, B.A., IRP
POB 117
West Point, Indiana 47992-0117
E-mail: specialedconsulting@gmail.com
Webpage: https://cmklawfirm.com/

Created: 12/11/06
Revised: 07/15/19

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