As school administrators know, there are always interesting updates for complying with the Individuals with Disabilities Education Act (IDEA). Recent cases provide important new information for K-12 school teams to improve their special education practices to best serve students with disabilities. As school districts are well aware, the IDEA requires that school districts provide eligible students with disabilities a free appropriate public education (FAPE) in accordance with procedural and substantive requirements. This article briefly reviews some important new court decisions, and provides specific tips for districts to update practices.

Specificity of Individualized Education Program (IEP) Service Descriptions

Make IEP service descriptions as specific as possible: In Los Angeles Unified School District v. A.O., the Ninth Circuit found that a school district’s IEP failed to clearly describe the frequency and duration of a student’s services. There, the IEP offered (1) “speech therapy for thirty minutes per week in one to ten sessions per week” and (2) “audiology services for twenty minutes per month in one to five sessions per month.” The Court reasoned that although the broad frequency ranges provided significant flexibility for district providers, the program was unclear to the parents, since it might have permitted a single 30-minute speech session or 10 three-minute sessions, or anything in between. Therefore, the IEP fell short of the IDEA’s requirements.

Key Takeaways and Practical Tips

• IEPs must accurately and specifically state the projected start date for services and modifications, as well as the “anticipated frequency, location, and duration of those services and modification.”
• School teams should review IEPs to ensure they are clear to both parents and staff charged with implementing the plan.

Least Restrictive Environment (LRE) Reminders

Consider progress on goals when evaluating the LRE and not only grade-level benchmarks: In D.R. by and through R.R. v. Redondo Beach Unified School District, the Ninth Circuit addressed the IDEA requirement that districts must offer educational placement in the LRE to serve students’ IEPs. There, the parents of a student with developmental disabilities believed that their son should spend most of the school day being educated in a regular classroom with a program including specially designed instruction and a full-time one-to-one behavior aide. On the other hand, the IEP team changed the student’s placement to a special education classroom for the majority of the school day, emphasizing the need for more direct instruction to make adequate academic progress. The parents filed for due process.

The Court sided with the parents, finding that the LRE for the student was the general education setting. Relying on the IDEA’s strong preference for educating students with disabilities alongside their nondisabled peers, the Court reasoned that school officials had placed too much weight on the fact that the student was performing several grade levels below his peers; instead, the Court emphasized that grade-level performance on its own is not the appropriate benchmark for all disabled children. The Court stated that, for “children whose developmental disabilities preclude them from achieving at the same academic level as their non-disabled peers, the appropriate benchmark for measuring the academic benefits they receive is progress toward meeting the academic goals established in the child’s IEP.” Because the student was making substantial progress toward meeting the academic goals in his IEP, the placement change was not appropriate.

Key Takeaways and Practical Tips

• School teams should assess a variety of benchmarks for students’ progress, including a student’s progress toward their individualized goals rather than purely grade-level performance.
• The Court emphasized push-in rather than pull-out supports for the student to maximize time in the LRE. School teams should look for push-in service opportunities where appropriate to reduce time spent outside the general education setting.
• Placement changes should be guided by data; school teams should document a variety of strategies to support students in less restrictive settings decided through IEP meetings before IEP teams consider changing placement to a more restrictive placement.

Residential Placement and Addressing Student Behavior

Be proactive in addressing students’ behaviors that impede their learning when making FAPE offers: J.H. v. Seattle Public Schools reflects the importance of a functional behavior assessment (FBA) and a well-drafted behavior support plan or behavior intervention plan (BIP). In J.H., the student’s parents unilaterally placed the student in a private residential program and sought reimbursement. There, after a period of escalated behavior including aggression and school refusal, the District conducted a FBA and implemented a BIP toward the end of the school year to address those behaviors, which resulted in a mixed attendance record. The parents requested that the District fund residential placement and the District declined, since the District believed it could serve the student through an amended IEP. Since there were only 16 days left of school, the Court determined that there was not sufficient time for parents’ position that the BIP was insufficient to address the student’s needs. The Court therefore rejected the parents’ claim for reimbursement.

Key Takeaways and Practical Tips

• Districts must consider and make available a continuum of placements, including residential placements, at public expense. When parents unilaterally place students in private schools, districts may be responsible for reimbursing tuition if the district did not make a timely FAPE offer. If parents provide a 10-day notice of intent to place their student in a private school, take immediate steps to evaluate whether the student’s IEP provides a FAPE.
• Offer timely behavior assessments and update behavior support plans when needed. School refusal should be addressed through behavior support and services.
• To evaluate whether districts offered a FAPE to students with disability-related behavioral needs, courts evaluate whether the IEP includes (1) measurable annual goals to enable the child to be involved in and make progress in the general education curriculum; and (2) how progress toward meeting the annual goals will be measured.