Chapter 13 – Regulatory Requirements for Child Find, Evaluation, Parent Involvement, Least Restrictive Environment, and Free Appropriate Public Education

The Education for All Handicapped Children Act (PL 94-142), passed in 1975, outlined guidance for providing students with disabilities a public education. Today, the Individuals with Disabilities Education Act (IDEA, 2004) is the guiding foundation of special education law. This law requires states and localities to adhere to the following principles: Child find/ zero reject, nondiscriminatory evaluation, individualized education programs (IEP), free appropriate public education (FAPE), least restrictive environment (LRE), related services, parent participation, and confidentiality (Bateman & Cline, 2016). This chapter will specifically address law related to FAPE, LRE, IEPs, related services, and confidentiality. Previously, in Chapter 12, the remaining requirements were covered in detail.

The guiding principles in IDEA (2004) include the entitlement of FAPE. School divisions are required to provide FAPE throughout the Child Find and evaluation processes. When considering FAPE for a student with a disability who has not been found eligible for special education (or a Section 504 plan), timelines are crucial. In Virginia, once a referral for evaluation has been made, the school team has 65 business days to make a decision about eligibility (Virginia Department of Education, 2023). Failure to meet this timeline can be considered a violation of FAPE.

While FAPE is specific to students with disabilities, it should be noted that all children in the United States are entitled to a free education. FAPE, however, includes free special education services, to include, transportation, assessments, and instruction (Bateman & Cline, 2016). An “appropriate” education is generally defined as an education that meets an individual’s specific needs as determined through eligibility by the IEP team. This includes an appropriate education at public expense, adherence to state educational standards, and an IEP that includes the LRE. In 2017, this terminology was further defined after Endrew F. v. Douglas County School District (“Endrew”), a court case that went to the Supreme Court level. Endrew has become a landmark case, setting new precedence for FAPE. The rulings in Endrew found that the local school division did not provide an IEP that allowed the student to make progress appropriate to the child’s needs. Consequently, the ruling stated that the school division failed to provide the student with FAPE. The courts ruled that the standard for IEPs should not simply be “de minimis” (more than minor, a low standard), but instead a higher standard, with challenging educational benefits. In conclusion, the Endrew ruling stated that to meet FAPE, a school must write an IEP that includes reasonably calculated challenging objectives based on effectiveness of instruction, academic growth, grade-level proficiency, behaviors that relate to progress, and parent input (USDOE, 2017). FAPE also means that students should receive their education within their school district, but in cases where this isn’t possible, it is the responsibility of the school division to pay for the student’s education in an alternative setting. This may include out of district centers or private schools.

To determine the best setting for a student’s education, IDEA requires the IEP team to follow guidelines about the LRE. LRE requires that students who are receiving special education services be educated to the greatest extent possible with their same aged non-disabled peers. The initial consideration for LRE in a public school setting is the general education classroom, without support from a special educator or special education services. The LRE is a continuum and can include general education classrooms with special educator support, special education classrooms, or residential placements. LRE is determined at an IEP meeting based on individualized student needs. More restrictive placements should only be considered if a less restrictive environment, with supports, has not been successful. It is important to discuss the differences between programs and placement, however. Programs are the services and/ or supports a student needs to be successful and make academic and/ or behavioral progress. Placement (the LRE) is the setting in which the programs will be delivered. It is only after the student’s needs, or program, has been decided that placement should be determined. In addition, IEP teams should not make decisions about placement prior to the IEP meeting. This is called predetermination and is not aligned with IDEAs requirement to include all members of the IEP team, including parents, in decision-making. This procedural violation can result in rulings against the school because it violates procedural safeguards related to parent participation. In addition, LRE cannot be made based on the student’s disability category, the availability of services, or other issues such as budget or space. LRE, or placement decisions, must be based on a student’s individual needs as documented in the IEP.

After an IEP team completes the eligibility determination meeting, IDEA states that the school division must conduct the IEP meeting within 30 days. Virginia specifies that this is 30 calendar days (Virginia Department of Education, 2023). All IEP team members should be part of the IEP development and the plan should be based on eligibility findings. According to IDEA, an IEP must include the following components: present levels of academic achievement and functional performance (PLAAFP), measurable annual goals, a description of how goal progress will be measured and reported, a statement about the needs for special education and related services, as well as supplementary aids and services, a statement about why a student may not be in a general education classroom with non-disabled peers, necessary accommodations to include assessments, and the date, frequency, location, and duration of special education or related services. As noted in Endrew, students’ IEPs should be individually developed based on “reasonably calculated” progress. This is progress that is reasonable for the student, but also includes high expectations. The IEP serves as a legally binding contract between all members of the IEP team and should be developed with FAPE and LRE in mind. Failure to follow these procedural tenets could lead to a ruling against the school division for denying FAPE.

Before planning the IEP meeting, every effort should be made to include parents/guardians in the IEP meeting. Parents/ guardians should be viewed as equal partners in the process. Not only is it their right to participate in the IEP development process, but they will also provide consent for the implementation of the IEP. Specific individuals are required to attend the IEP meeting unless written permission from the parents/guardians has been obtained. These individuals include an administrator or designee, a special education teacher, a general education teacher, an individual who can interpret test results (may serve in two roles), and parents/ guardians. In some cases, students themselves should also be part of the IEP team. The Regulations Governing Special Education Programs for Children with Disabilities in Virginia (2009/2021) require that students must be invited to IEP meetings when transition planning will be discussed, regardless of the student’s age.

Failure to include required individuals denies the student a “high-quality IEP,” a provision in IDEA. While these individuals are required, other individuals may also attend, including school psychologists, school counselors, interpreters, related service providers (e.g., speech and language pathologists, occupational therapists), parent advocates, or individuals from the school division’s central office. While any individual may attend, procedurally, the school division is responsible for informing the parent/guardian about anticipated attendance prior to the meeting. It is also best practice, though not required, for the family to inform the school team of any individuals they plan to bring to the meeting. It is within a parent/ guardian’s rights to bring any individual who may have knowledge about the student or the student’s disability. This includes other family members, advocates, lawyers, or specialists.

Procedurally, parents/guardians should be informed of their rights at the beginning of the IEP meeting and parent rights and safeguards documentation should be provided to them at no cost. Ultimately, a parent/guardian must approve, or “consent,” in writing, to the decisions made in the IEP meeting. In Virginia, parental consent is required for every IEP before it can be implemented. If they don’t approve, they have the right to request another meeting, a due process hearing, or mediation. Schools should make every effort to discuss disagreements and find possible ways to compromise. The more that parents/guardians are treated as part of the team and kept informed along the way, the easier the IEP process.

During the IEP meeting, the team should discuss not only the aforementioned components, to include LRE, but also related services. Related services include transportation and supportive services that help a student access their educational program in the LRE. Specifically, in school settings, related services may include speech and language services, interpreters, therapeutic recreation, assistive technology, school nurse services, occupational therapy, or adaptive transportation. According to IDEA, a related service should address developmental, corrective, and supportive services to support the student with FAPE. Related services are individualized and designed to support students with benefits from special education. The Endrew case specifically noted that services should address all of a student’s needs. These services must be outlined in the IEP and must include start dates, frequency, duration, and location for receiving services. Given that, by law, IEPs are designed to be individualized based on student needs, frequency and duration of services should not be decided based on service provider availability. Instead, related services should hinge on student needs and should be received from providers who have applicable expertise and training. Much like the LRE decisions that occur about where a student will receive their daily instruction, LRE must also be considered when making decisions about location of related service delivery. To the greatest extent possible, these services should be provided in the general education setting, as appropriate. When not possible, the IEP team should thoroughly document why the general education setting is not appropriate for the student. Finally, as outlined in the Endrew case, services should also include evidence-based practices, to the greatest extent possible. This provision also ensures that students are making “appropriate” progress towards their annual goals.

Finally, IDEA, as well as other federal laws, include several safeguards related to confidentiality of student information. This includes personally identifiable information, access to a child’s records, and rights of parents to inspect and amend student records. Information about special education services as well as records related to a child’s special education services should only be accessed and shared with individuals who have a direct need to know the information. This may include service providers, general education teachers, or other school professionals who are working directly with the student. Outside of a few special exceptions from the state level, before personally identifiable information is released from the school division, parent/guardian permission is required.

According to IDEA, parents have the right to review any and all of their child’s educational records, they have the right to request explanations and interpretations of these records, they can request copies of records, and they can request a representative, as designated by the parent/guardian be granted access to their child’s records. When a request is made for records, it is the school division’s responsibility to respond within 45 days of the request. While schools may charge a fee for copies of records, they may not charge a fee for searching for these records. Finally, schools are required to respond to reasonable requests for interpretations or explanations of records. Should a parent/guardian make a request to have school record information amended, the school division must decide to either make or deny the amendment. If an amendment is denied, the parent/guardian may ask for a due process hearing, which will include a hearing officer who will review all the relevant information from the parent/ guardian and the school division about the complaint. In summary, all individuals working with students who receive special education services should know that legally, they are required to maintain confidentiality about their students. In addition, parents/ guardians have rights as it relates to reviewing and requesting amendments to their child’s records. All of these requirements and processes are also included in a parent’s procedural safeguards, which should be offered to parents/guardians at every IEP team meeting.