Special Education & Educational Standards
NHEdLaw, LLC
Scott F. Johnson, Esq.

I. Individual Education Programs (IEP)

A. IEP is the cornerstone of child's educational program.
1. Tells you what services will be provided and how often
2. Describes how disability impacts education through present levels of performance.
3. Sets goals and objectives to address each issue impacting education.
4. Lists accommodations and modifications.

II. Level of Education Required (FAPE)

A. Under the IDEA schools are required to provide a "free" and "appropriate" education. Standard is called FAPE. Under current law, FAPE is not the "best" education or an education that maximizes the student's ability. This is often referred to as the Cadillac versus Chevrolet argument.

B. The Individuals with Disabilities Education Act (IDEA) defines FAPE as:

Special education and related services that --
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d).

20 U.S.C. § 1401(c)(8).

C. Special education means

Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including-
(i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(ii) Instruction in physical education.

20 U.S.C. § 1401(c)(25)

D. Related services means

transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.

20 U.S.C. § 1401(c)(22)

E. In Hendrick v. Rowley the United States Supreme Court addressed the substantive requirements of FAPE. The Court stated that the IDEA required little by way of substantive requirements.

By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful. Indeed, Congress expressly "recognize[d] that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome." S.Rep., at 11, U.S.Code Cong. & Admin.News 1975, p. 1435. Thus, the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.

Rowley, 458 U.S. at 192.


1. IDEA provides only a "basic floor of opportunity" that is limited to access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. Rowley, 458 at 201.

2. Two part test to determine if FAPE provided:

a) Has the State complied with procedures set forth in the Act?
b) Did the child to receive educational benefit? Rowley, 458u at 206-07. (with an IEP the test is
whether the IEP is reasonably calculated to provide educational benefit)

3. "The achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 at 207 n. 28.

4. Court relied upon grades when a student is "mainstreamed" and educated in the regular education classrooms of a public school system, because it assumed that in that situation "the system itself monitors the educational progress of the child" by administering regular examinations, awarding grades, and permitting yearly advancement to higher grade levels for those children who attain an adequate knowledge of the course material. Rowley, 458 at 202.

5. Application of Rowley standard beyond mainstreamed students inconsistent by courts.

6. After Rowley, various courts have stated that the first part of the FAPE test (called procedural violations) only matters if the violations impact the student's ability to receive educational benefit, or hinder the parent's ability to meaningfully participate in the process.

7. Definition of "educational benefit" has been further developed in various court decisions. Most courts to address the issue have found that "progress" is required in order to provide educational benefit. Some courts have required that the progress the child receives be meaningful or more than de minimus.

III. Standards based Reform Movement

A. Since Rowley, the federal government and almost all of the states have enacted educational standards and assessments that establish high standards and measurements for what all students should know and be able to do.

B. Two important aspects of standards:

a. They set high standards
b. They apply to all students

C. Standards can include:

• Content standards – set forth broad descriptions of the knowledge and skills students should learn. Define the overall goals of student learning

• Proficiency standards – set forth concrete examples of what students should know and be able to do at certain stages. Describes how well student must perform to demonstrate achievement of content standards. Provide a link between content standards and assessment.

• Some states, like New Hampshire, have established "Curriculum Frameworks" that contain a mixture of content and proficiently standards.

D. Assessment measures:

• Part of standards based reform includes assessment measures to determine if students have met the standards.

• New Hampshire has a statewide assessment test given to students in the 3rd, 6th and 10th grade.

E. High expectations of standards are at odds with the Rowley's "floor of opportunity."

F. With standards, grades and advancement from grade to grade don't necessarily monitor progress.

G. Standards can provide clear, definable, and measurable goals that students must obtain.

III. IDEA requires that state standards be met in order to provide FAPE.

A. In the statute at 20 U.S.C. § 1401(8)(b).

B. Court in Rowley noted the statutory requirements were a checklist that must be met.

C. Congress amended IDEA in 1997. The amendments made important changes that incorporated
educational reforms such as content and proficiency standards and assessments measures.

1. Congress expressly stated that the amendments to IDEA were to change the focus of IDEA from process to outcomes:

This Committee believes that the critical issue now is to place greater emphasis on improving student performance and ensuring that children with disabilities receive a quality public education. Educational
achievement for children with disabilities, while improving, is still less than satisfactory.

This review and authorization of the IDEA is needed to move to the next step of providing special education and related services to children with disabilities: to improve and increase their educational achievement.

House Of Representatives Report 105-95 On Individuals with Disabilities Education Act Amendments of 1997.

2. The 1997 Amendments shifted the focus of the IDEA to one of improving teaching and learning, with a specific focus on the Individualized Education Program (IEP) as the primary tool for enhancing the child's involvement and progress in the general curriculum. The statute now expressly states:

Research, demonstration, and practice over the past 20 years in special education and related disciplines have . . . demonstrated that an effective educational system now and in the future must ...

(A) maintain high academic standards and clear performance goals for children with disabilities, consistent with the standards and expectations for all students in the educational system, and provide for appropriate and effective strategies and methods to ensure that students who are children with disabilities have maximum opportunities to achieve those standards and goals;

(B) create a system that fully addresses the needs of all students, including children with disabilities by addressing the needs of children with disabilities in carrying out educational reform activities. [Emphasis added.]

20 U.S.C. §1451(a)(5 - 6)(A-B) ("Findings and purpose" to Part D (National Activities to Improve Education of Children with Disabilities) of IDEA.)

3. Congress expressly noted that low expectations for students with disabilities have impeded the implementation of the IDEA. Congress stated that education of students with disabilities can be more effective by "having high expectations for such children and ensuring their access in the general curriculum to the maximum extent possible." 20 U.S.C. §1401(c)(4)-(5)(A).

4. The general curriculum is the curriculum available to all students. In New Hampshire it is the Curriculum Frameworks if your school has aligned its curriculum to the frameworks (which it should). See RSA 193.

5. Specific provisions of the IDEA and regulations require state standards and the general curriculum be at the forefront of educational programming for students with disabilities.

a. The definition of special education incorporates state standards by requiring specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability:

by adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.

34 C.F.R. s 300.26(b)(3)(ii).

b. Under the amended IDEA and final regulations the Individualized Education Program (IEP) for each child with a disability must include:

• A statement of the child's present levels of educational performance including how the child's disability affects the child's involvement and progress in the general curriculum;

• A statement of measurable annual goals related to 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;

• A statement of the special education and related services and supplementary aids and services necessary for the child to be involved in and progress in the general curriculum;

• A statement of the program modifications or supports for school personnel that will be provided for the child to:

• advance appropriately toward attaining the annual goals,

• be involved and progress in the general curriculum,

• participate in extra curricular and other nonacademic activities;

• and to be educated and participate with other children with disabilities and nondisabled children.

6. General State and District-wide Assessments. IDEA now requires that children with disabilities be included in general State and district-wide assessment programs. States and LEAs must:

• Provide for the participation of children with disabilities in general State and district-wide assessments - with appropriate accommodations and modifications in administration, if necessary;

• Provide for the conduct of alternate assessments not later than July 1, 2000 for children who cannot participate in the general assessment programs; and

• Make available, and report, to the public on the assessment results of disabled children, with the same frequency and in the same detail as reported on the assessment results of non-disabled children.

7. The assessment tests will help measure progress.

8. The final regulations clarify that, in developing each child's IEP, the IEP team (in addition to considering the strengths of the child and the results of evaluations) also must consider "As appropriate, the results of the child's performance on any general State or district-wide assessments." 34 C.F.R. §300.346(a)(1).

11 Steps to follow to incorporate state
standards into IEP's

1. Determine the academic areas impacted by the disability

2. Make sure the impacts are set forth in the Present Levels of Performance in the IEP along with strengths and weakness and an accurate description of your son/daughter's abilities and performance in academic and other applicable areas (i.e. social skills, behavior, attention).

3. Obtain your schools curriculum. Ask if your school's curriculum is aligned with the Curriculum Frameworks. If not, ask if the school has local content or proficiency standards.

4. Ask your school about universal curriculum design and differentiated instruction.

5. Determine if their are content and proficiency standards in the curriculum frameworks that are appropriate to use as goals and objectives

6. Determination should be made by
*Assessing individual strengths, weaknesses and needs;
*Assessing current achievement and ability
*Weighing trade offs of in diverting time from remediation towards content standards

7. Develop Goals and Objectives for each area of deficiency that enable participation in general curriculum

8. Include high, but attainable expectations in the goals and objectives. To the extent appropriate include the specific content and proficiency standards.

9. Modify or accommodate as necessary to individualize. Make modifications and accommodations consistent with the goals of having high standards and expectations.

10. IEPS must contain the services and the other goals and objectives necessary to meet the state standards (such as tutoring, one-on-one remediation, etc.).

11. Incorporate the statewide assessment test and other objective tests into the IEP to measure progress as needed.

Resources on Standards and Special Education

1. Educating One & All, Students with Disabilities and Standards-Based Reform, Committee on Goals 2000 and the Inclusion of Students with Disabilities

2. National Center on Educational Outcomes

3. McRel standards database