Building a Legally Defensible IEP – It’s Like Building a Burger!

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It’s an inevitability faced by special education professionals everywhere: the need to regularly develop and revise student IEPs (Individual Education Programs) throughout the school year. Because this critical and necessary undertaking demands a considerable allocation of time, special education teachers and school administrators are often faced with a challenging yet essential question: how can we guarantee that we devote this crucial time to developing documents that are both legally defensible AND address students’ unique needs?


The IEP: A Distinctive Approach to Learning 

Succinctly, we should never categorize an IEP as a one-size-fits-all document. We cannot design IEPs to fit the student into a cookie-cutter mold, such as a pre-established program or a stale list of cut and paste instructional strategies, even while this may be more convenient and inexpensive.

To emphasize the necessity of personalization, the “I” in IEP stands for “individualized.” Legally, anything beyond this requirement violates the Individuals with Disabilities Education Improvement Act (IDEIA) and the recent Endrew decision, which indicates that school staff must design a customized IEP so that students can make meaningful educational progress in consideration of their distinctive circumstances.


Understanding the IEP Process: From Invitation to Program Designation

Fundamentally, the IEP process contains two parts: the procedural requirements and the program’s actual development.


Part I: Procedural Requirements

The procedural requirement involves the invitation and meeting process. The special education case manager must provide the invitation’s required information and distribute it within the appropriate timelines.

Within the invitation, the case manager must notate all team member names and positions and the meeting’s date and time, which the parent and school should mutually determine.

The parent must receive the invitation at least ten days before the meeting. However, with a phone call to the parent, an IEP meeting may occur in fewer than ten days. In this case, the parent must sign the invitation and indicate the appropriate response.


Assembling a Winning IEP Team: The Major Players

By law, the IEP Team must consist of these individuals:

  • The parents
  • Local Education Agency Representative
  • Regular and Special Education Teachers
  • Speech Therapist (for speech-only students, if applicable)
  • Therapist (if the student receives therapy services)

All team members must attend the meeting unless the parent approves of their absence. If excusing a team member, the parent must sign a form that specifies the member who will not be attending.

Each team member has a pivotal role in the meeting. Therefore, they must possess an extensive amount of knowledge commensurate with their roles. For example, the LEA representative must comprehensively understand the special education process and authorize the appropriate resources to address student’s needs.

Also, the Special Education Teacher and Regular Education Teacher are an indispensable component of the team. The Regular Education Teacher must fully understand how the student performs academically. Unfortunately, far too often, a Regular Education Teacher functions solely as a specialist who meets with the student weekly but has minimal knowledge of the student’s learning characteristics. I highly recommend that Regular Education Teachers also serve as team members, as they can provide essential information about students’ learning styles, strengths, and weaknesses.

The parent is another critical team member who is frequently disregarded. Arguably, parents often know their children the best among anyone else, so they have the unparalleled ability to give tailored guidance for developing goals and strategies that will most effectively address their child’s needs. Incorporating parents as partners in the educational process can drastically enhance students’ achievement to propel them to reach their maximum potential while fostering a positive relationship between the school and home. 


Part II: Building an IEP is like Building a Colossal Burger — Prepare to Feast!

Once leaders have addressed the procedural guidelines, they should direct their attention to the second half of compliance, developing the IEP itself. From experience, I’ve found that it is acceptable to present a draft at the meeting, with the expectation that the IEP will be revised and enhanced through the feedback of all team members.

While creating the initial draft, the IEP must contain each of the legally defensible skeletal information thresholds. During my time as a school administrator, I often advised teachers to approach building an IEP in much the way they would build a colossal burger.


The Lower Bun: The Foundation 

A strong foundation, or a bun, is necessary to keep a hefty burger from falling apart.

This section consists of the Present Levels of Academic Achievement and Functional Performance (PLAAF). We cannot overemphasize the rudimentary role of the PLAAF because every other section of the IEP exists upon it. A solid foundation section consists of:

  • Current assessments, which provide scores and descriptors
  • Behavioral data
  • Descriptions of learning styles
  • Summaries of strengths and weaknesses
  • Comprehensive levels of the student’s functional and transition performance
  • Related services assessments

To summarize, the strength of a legally defensible IEP arises from a solid foundation of data found within the Present Levels.


The Meat: Goals and Objectives 

Information from the PLAAF guides the development of annual goals and short-term objectives, constituting the hamburger’s meat. A thick patty provides a meaty base that offers stability and structure for the rest of the burger’s toppings. Similarly, the assessment scores serve as the baseline data for goals and objectives to document growth when compared with progress monitoring scores. 

Regrettably, I have seen goals written within the IEP that aren’t referenced in the present levels and contain no baselines, which may cause legal challenges and instability in the program. When constructing measurable goals and objectives, it’s critical to ensure that they include these three components:

  • The condition
  • The student’s observable behavior
  • The percentage of achievement required to master given opportunities

Progress monitoring, which depends on these goals, must contain multiple data points (the acceptable number is ten or above) to evaluate the student’s progress fairly. If the data shows that the student is making inconsistent or no progress, dated notations should reflect interventions implemented to address the child’s uneven or minimal progress.


The Cheese: Specially Designed Instruction 

Next comes the cheese, which represents specially designed instruction. Just as you would select the cheese that best complemented the burger, specially designed instruction must consider the student’s learning styles, strengths, and needs as they correspond with the appropriate programs, learning strategies, and accommodations to meet the student’s goals.

When completing this section, it’s important to remember that specially designed instruction is highly individualized, so to reiterate, one size does not fit all. Often, I have viewed IEPs where the goals and specially designed instruction sections have been copied and pasted from one student to the next. This violates regulations and triggers alarms concerning legal defensibility. 


The Veggies: The Transition Area 

Next come the veggies, which represent the transition area. Adding lettuce, tomatoes, and pickles can enhance and improve a burger’s flavoring. Similarly, the transition area focuses on improving academic and functional achievement to enhance and improve a student’s opportunities after education.

For students of transition age, the Present Levels must include information and current assessments related to their functioning level pertaining to post-secondary outcomes. The developed goals and objectives must meet post-secondary education or job readiness outcomes.

Accommodations, adaptations, and any necessary related services must address transition plans within the IEP. As the student progresses throughout secondary school, the focus becomes even more centered on this.


The Condiments: Related Services

Adding condiments to the burger equates to related services. If the burger requires more seasoning, you can add as much (or as little) ketchup, mustard, barbecue sauce, or mayonnaise as is needed.

Similarly, the IEP team must address if students’ individualized needs require related services to reach their goals. It’s crucial to indicate that the need for related services must include comprehensive information in the present levels section, goals and objectives, and specially designed instruction for each related service.  Also, it must clearly state the frequency, duration, location, and need for individual or group sessions.

The team must also determine if a student is eligible for extended school year services (ESY).  If so, goals and supporting data to reflect the need for ESY should be added to the related services section as well.


The Top Bun: Program Designation  

After the toppings have been added, capping the burger is the final step of assembling a complete, ready-to-eat entree. The same is true for program designation, which is the ultimate step to “cap” the process of developing an IEP.

From the information obtained in evaluation reports and current teacher assessments, the team must carefully consider the type of support program and percentage of instructional time (Itinerant, Resource, Supplemental, or Full-Time) required to specifically accommodate the student’s most prevalent needs. In addition to encompassing learning support, the program can also address students’ emotional concerns.


Legally Defensible IEPs: The Foundation of Promoting Student Growth 

For school leaders and special education decision-makers, it is imperative to develop and enforce an IEP-building protocol that effectively addresses students’ distinct needs while also remaining legally defensible. Consistency is not only critical, but necessary, as weakness in even one section could place a school in a precarious position regarding compliance with the (earlier noted) Endrew decision.


How to ensure this? In conjunction with periodic document checks, IEP team members can be strongly empowered through professional development training, which can assist schools with producing IEPs that are both legally defensible and successfully implementable.


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Ann Marie Geissel

Ann Marie Geissel, M.Ed., ABD

Therapy Source National Special Education Director

Ann Marie has 30+ years of special education experience, as a teacher, principal, special education supervisor, and special education director within urban, suburban school districts and charter schools. Her background and qualifications make her well-positioned to assist Therapy Source’s education clients with compliance monitoring and daily operation. Ann Marie holds a Bachelor of Arts in Special Education from LaSalle University and a Master of Education in Special Education from Arcadia University. Additionally, she has been certified as a principal and special education advisor–and possesses a Letter of Eligibility for Superintendent–through Temple University’s and Widener University’s Doctoral Programs in Educational Administration.

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