Frequently Asked Questions: The IEP Process and Development of the IEP Document

Volume I, Version I Frequently Asked Questions: The IEP Process and Development of the IEP Document Published by: In Collaboration with:

What procedures must be followed prior to holding an IEP Team meeting? Timelines: It is important to comply with all timelines during the IEP process, from initial referral to scheduling of the IEP Team meeting. The District has 90 calendar days after parental consent for the initial evaluation to conduct an evaluation, determine eligibility for services and, if deemed eligible, implement an IEP. Pursuant to N.J.A.C. 6A:14-3.7(a), a meeting to develop an IEP must be held within 30 calendar days of the eligibility determination. However, in accordance with N.J.A.C. 6A:14-2.3(k), meetings to determine eligibility and develop an IEP shall, if feasible, be combined. Evaluations conducted as part of an initial or reevaluation must be provided to the parents at least 10 days before a meeting to review the evaluations and discuss the student s eligibility. If the 90 day timeline for implementing a student s initial IEP occurs during the summer months (and the student is not eligible for ESY services), the IEP should be implemented on the first day of school in September. Preparing for the IEP Team meeting: Prior to conducting the IEP Team meeting, the Child Study Team should be fully prepared, which may include holding a pre-meeting or staffing to discuss evaluations and data, review current status of the student, and establish an agenda of the issues to be discussed at the IEP Team meeting. Parents do not have to be invited to preparatory or review meetings; N.J.A.C. 6A:14-2.3(l) specifically provides that preparatory activities of the CST, prior to a meeting, do not constitute a meeting requiring written notice and parental participation. But the District must provide the parents with written notice of the IEP Team meeting, indicating who the participants will be, the purpose of the meeting, and the time and location of the meeting. This notice must be provided to the parents early enough to enable their attendance. IEP Team Meeting Participants: Meetings of the IEP team shall include the following participants, per N.J.A.C. 6A:14-2.3(k): The parents; At least one general education teacher of the student, or if the student is not in general education, a teacher knowledgeable about the district s program; At least one special education teacher; One child study team member who can interpret instructional implications of evaluation results; A representative of the responsible district; At the discretion of the parents or District, other individuals who have specific expertise regarding the student; and The student, where appropriate. Volume I, Version I The IEP Process and Development of the IEP Document 2

Excusal of IEP Team member from meeting: The District may request excusal of a member of the IEP Team whose area of curriculum or related service is not being modified or discussed, so long as the parent agrees in writing and notice of the requested excusal is provided to the parents in the notice of the IEP Team meeting. A member of the IEP Team whose area of curriculum or related services is being modified or discussed may similarly be excused with written input of the member provided along with the scheduling notice, with written consent of the parents. N.J.A.C. 6A:14-2.3(k). Parental Participation: Parents are permitted to bring other individuals with knowledge or expertise regarding the student to the IEP Team meeting. The determination of whether this individual has required knowledge of the student is at the discretion of the person inviting the individual. N.J.A.C. 6A:14-2.3(k). As such, a parent s request to invite a friend, advocate, family member, medical professional or expert to the IEP Team meeting should be regularly permitted. All efforts to ensure parental participation in the IEP Team meeting shall be attempted by the District, including the use of videoconference or conference call to allow the parent to participate remotely. N.J.A.C. 6A:14-2.3(k). An IEP Team meeting may be conducted without the parents in attendance, but only after the District documents its efforts to solicit their participation, including a record of all telephone calls, copies of all correspondence, and/or visits to the parents residence. Best Practice Tips: Be sure to check the regulations (N.J.A.C. 6A:14-2.3) regarding required IEP Team meeting participants prior to sending out the scheduling notice. There are different participant requirements based on the specific needs of the student, age of the student, placement decision, and need for transition services, including representatives from a State agency (DDD, DVRS) or representatives from the student s out-of-district placement. The District invitation notice of the IEP Team meeting should specifically direct the parent to notify the CST if the parent intends to tape record the meeting or bring a family member, friend, medical professional, advocate or attorney, prior to the meeting, to ensure that the District has sufficient time to prepare. If parents request to tape record the IEP Team meeting, make sure that the District is similarly taping the meeting. If the parent is bringing an attorney, the district should, depending on the case, have their attorney present. Students shall be invited to the IEP Team meeting, where appropriate. It is recommended inviting all students at least 14 years old to participate in the meeting in order to prepare for transition services. Developing the IEP document? When developing the IEP document, it is important to tailor every section of the IEP to the individual student. Refrain from the common pitfall of cutting and pasting from the student s prior IEP, or even worse, using text from the IEP of another student. The CST should consider whether to prepare a draft IEP document prior to the IEP Team meeting. If a draft is prepared, when this document is handed to the parents during the IEP Team meeting, it should be Volume I, Version I The IEP Process and Development of the IEP Document 3

clearly explained that this document is a working document and prepared solely to facilitate discussion during the IEP Team meeting. The word draft should appear on every page of the document. Consideration by the IEP Team: Strengths: At the beginning of the meeting, the school personnel and parents should discuss the student s strengths, interests, leaning styles, and the child s current performance. It is important to keep this first step of the IEP Team meeting positive, including focusing on the student s strengths. Present Levels of Performance: When developing the student s current levels of performance, include as much data as possible, including grade level performance, standardized testing information, academic and functional performance, as well as social and emotional performance in the classroom. Data is the District s most successful tool in defending a proposed program. If applicable, staff members should also speak to the student s performance during unstructured settings, such as lunch, recess, and field trips. Needs: Needs are the building blocks for the remainder of the IEP. The purpose of the IEP is to meet the unique and individual needs of the student. The IEP should address what the individual student needs are in order to participate successfully and meaningfully in school. Do not leave any blank sections in the IEP; if a section is not applicable, specifically state that it is not applicable for this student. This will guard against claims that an IEP is incomplete. Parents are important members of the IEP Team and their input, comments and concerns should be considered by the District. A District member of the IEP Team should take detailed notes of any additional parental concerns or major meeting issues to incorporate into the final IEP document. After the parents have voiced their concerns, if any, the District should explain how the proposed program addresses each concern. Best Practice Tips: For every need identified in the present levels of performance, there should be a corresponding goal, specialized instruction, related service, and/or modification/accommodation to address the need. The District should not include full evaluation reports as part of the IEP The District should not attach any documents to the IEP. If a parent submits a pre-written statement regarding their parental concerns or submits a letter from the student s private health professional during the IEP meeting, make a note in the appropriate sections of the IEP and place these documents in the student s file, but do not attach the documents to the IEP itself. The CST may also consider receiving text via email from the parents to include in the parental concerns section. But if the CST attached documents to the IEP it may be successfully argued that the IEP Team accepted same, and the District required to provide all special education and related services indicated in such documents. Volume I, Version I The IEP Process and Development of the IEP Document 4

Reference all private and independent evaluations in the IEP by name and date and explain how these evaluations were considered by the IEP Team in making its program recommendations. Unless the District agrees with the results of the private assessment, a summary should not be included as it may appear that the District is accepting the private evaluator s conclusions. Where should special education and related services be documented in the IEP? Many aspects of a student s program must be included in the IEP, but it can be confusing to know which services should be placed where. All special education and related services required to provide the student with a free and appropriate public education should be included in the IEP. If applicable to the individual student, the IEP should include the following: Statement of special education programs; Specialized instruction Resource room Related services; Occupational Therapy Speech and Language Therapy Physical Therapy Counseling Supplementary aids and services; Prompting and redirecting student participation Assistive Technology; Assistive technology devices, including but not limited to alternative keyboards, computers, or note-taking devices, must be available to a student with a disability if required as part of the student s special education, related services or supplementary aids and services. Note that regulations allow the use of school-purchased assistive technology devices to be used in a student s home or other non-school setting if the student requires those devices in order to receive FAPE. (N.J.A.C. 6A:14-3.7(a)(9)(ii)). Statement of all program modifications; An accommodation is a change made to the teaching or testing procedures in order to provide a student with access to information and to create an opportunity to demonstrate knowledge and skills (preferential seating, extra time on tests). A modification is a change in what a student is expected to learn and/or demonstrate while the subject area remains the same as for the rest of the class (breaking down homework assignments into smaller steps). Supports for school personnel Consultation with the CST, teachers and service providers to discuss the student s progress. Professional development through educational seminars. These services are designed to allow the student: To advance appropriately toward attaining the measurable annual academic and functional goals; To be involved and progress in the general education curriculum; and To be educated and participate with other students with disabilities and nondisabled students. Volume I, Version I The IEP Process and Development of the IEP Document 5

The IEP should differentiate the services being provided to the student in the IEP, including whether the student is receiving specialized instruction or services in the general education or special education classroom. Best Practice Tips: It is important to distinguish between students eligible for services under a 504 Plan and students eligible to receive special education and related services under an IEP. No IEP shall be provided for a student without a special education program or related service. If a student s IEP only contains modifications and accommodations, consider declassifying the student and directing the student to the Section 504 Committee for eligibility consideration. Related services must be provided by appropriately certified and/or licensed professionals. Can a marked-up, working copy, draft IEP fulfill the requirement to provide parents a document at the end of the meeting? Pursuant to State regulations, signatures of all participants shall be maintained and either a copy of the IEP or written notes setting forth agreements with respect to the IEP shall be provided to the parents at the conclusion of the meeting. N.J.A.C. 6A:14-3.7(l). Even if the IEP is not finalized at the conclusion of the IEP Team meeting, the District must provide parents a document which sets forth what was discussed and agreed upon regarding the student s program. To satisfy this requirement, the District can choose to: Provide a copy of the draft IEP with handwritten changes, notes, and parental concerns and the District can then send the parents a conforming, final copy of the IEP once the handwritten changes have been made on the computer; Prepare the final IEP and provide same to parents; or Create a separate document outlining the agreements and send the final IEP to the parents at a later date. (Note that this option is not the preferred way of satisfying the regulatory requirement.) If handing the parents a final IEP at the conclusion of the meeting, the District must also review the requirements for written notice with the parents. However, the District should avoid taking any action that may be considered to be pressure or undue influence on parents to provide consent to implement the IEP at the conclusion of the IEP Team meeting. In order to receive informed consent to implement the IEP, parents must be aware of their procedural rights. Best Practice Tips: Provide the parents with a copy of the final IEP with the handwritten notes and changes that were made during the meeting. The District can then send the parents a conforming, final copy of the IEP once the handwritten changes have been made on the computer. Districts with the technological capability can make the necessary changes directly to a student s draft IEP during the IEP meeting through the use of a lap top, ipad, or other device. Therefore, a final computerized copy of the IEP can be printed and handed to the parents at the conclusion of the meeting. Volume I, Version I The IEP Process and Development of the IEP Document 6

If the parents provide consent to implement the IEP at the conclusion of the meeting, ensure that the District has reviewed the notice requirements and the procedural safeguards statement set forth in the IEP. What procedure must be followed after the IEP Team meeting has concluded? Implementation: Regulations provide that the IEP shall be implemented as soon as possible following the IEP Team meeting. N.J.A.C. 6A:14-3.7(a). In the case of an initial IEP, parental consent must be obtained prior to implementation. For all subsequent IEPs, the student s proposed program can be implemented after expiration of the 15 day time period set forth in N.J.A.C. 6A:14-2.3(h)(2), or sooner, if the parents agree in writing. If the District provides the parents with a final IEP at the conclusion of the meeting, as recommended above, the District can implement the proposed program 15 calendar days from the IEP meeting, or sooner if parental consent is obtained. Faculty and staff should document the student s progress and report any problems in order to identify any issues with the student s program. Specific attention should be made to progress towards goals and objectives, and data kept regarding same. In addition, individuals responsible for implementing the program should begin to collect data for the student s next annual review. Staff Responsibilities Every individual involved in providing services to the student should know and understand his or her responsibilities for implementing the IEP. This will help ensure that the student receives the services that have been proposed, including the specific modifications and accommodations the IEP Team has identified as necessary. State regulation not only requires that each teacher and provider be informed of his or her specific responsibilities with respect to the implementation of a student s IEP, but the Board must also maintain documentation that the teachers/service providers have been so informed. N.J.A.C. 6A:14-3.7(a)(3). When and how can an IEP be amended without a meeting? Changes to an IEP may be made without reconvening an IEP Team meeting with the written consent of the parents. NJAC 6A:14-3.7(d). In this instance, the parent must submit a written request for a change to the student s program, or the District must submit a written proposal to the parent. If the District agrees with the parent s request for a change, or the parent consents to the District s written proposal to amend the IEP within 15 days, the IEP is amended accordingly and a copy of the amended IEP must be provided to the parents within 15 days. If the parents do not respond or consent to the written proposal with the 15 day timeframe, the IEP cannot be amended without convening an IEP Team meeting and following all other procedural requirements. Note that an amendment pursuant to this section does not affect the requirement that the IEP Team review the IEP at a meeting annually, or more often if necessary. Volume I, Version I The IEP Process and Development of the IEP Document 7

Best Practice Tips: Do not write over previous electronic copies of IEPs; create new IEPs when changes are made so an accurate historical record of the student s program is maintained. The start date for the new services is the date the new, amended IEP is to start. The annual review requirement continues to run from the last IEP Team meeting date; amendment to the IEP does not restart or reset the annual review clock. When must the parties meet to conduct an annual review of a student s IEP? State regulations require that, annually, or more often if necessary, the IEP team shall meet to review and revise the IEP and determine the student s placement. N.J.A.C. 6A:14-3.7(i). However, neither State nor federal regulations provide guidance on when during a school year an IEP team should meet to develop a student s program. As such, there are differing viewpoints regarding whether an IEP meeting shall be scheduled on the anniversary date of the student s initial IEP ( anniversary date IEP), or in the spring to develop a program for the succeeding school year ( school year or springtime IEP). The benefits and concerns to conducting annual reviews based on an anniversary date or in the springtime are outlined below: Anniversary Date IEPs: Anniversary date annual reviews of an IEP is when a district develops an IEP that spans two school years (e.g., November 2012 to October 2013). Districts tend to determine the anniversary date based on the last annual review meeting, although districts have also utilized the initial eligibility date. Benefits: Concerns: Annual reviews are interspersed throughout the school year so that the Team workload is more easily managed. When conducting annual review IEPs based on the anniversary date, the IEP team may need to schedule an additional meeting at the conclusion of the school year to discuss the student s progress, determine eligibility for extended school year ( ESY ) services, and to appropriately plan the for the next school year. Districts must be careful to schedule each annual review meeting with sufficient lead time in order to finalize the IEP and allow the parents time to consider the IEP prior to implementation so that there will not be a gap in-between IEPs. In most cases, anniversary date IEPs span two school years, which may pose problems for Districts as the student s program must be developed for the next school year without assessing the progress the student has made in the current grade level. IEPs that span two school years may also cause complications as various sections of the IEP must indicate what services apply to the current school year and what apply to the next school year if there is a change in services during that specific time period. For example, when developing the section regarding participation in statewide testing in a November to October IEP, the District should consider not only the statewide testing administered for the current grade, but also the state assessments administered in the succeeding school year. However, in a June to May IEP, the District would only need to consider the state assessments administered at the next grade level. Similar issues are raised when it is expected that a student will change schools within the District for the next school year, Volume I, Version I The IEP Process and Development of the IEP Document 8

such as from elementary school to middle school or middle school to high school. When entering special education programs and/or related services in an IEP that spans two school years, the District must clearly state the programs and services provided for both the current year and for the next year. Since state reporting is always based on a school year, data in anniversary date IEPs must be entered in such a way to ensure that the state reports can be generated accurately within the correct school year. School Year or Springtime IEPs: Springtime Annual Reviews of an IEP is when a district develops an IEP in the spring for the next school year. Benefits: Concerns: Data entry in school year IEPs is simpler in that Districts do not have to be concerned about developing a program that spans two school years. Meetings held in the spring allow the IEP team to review the progress made during the school year, determine eligibility for ESY services, and appropriately plan for the next school year. As such, there are fewer IEP meetings since the end of the year is a natural time to more accurately plan and change IEP services. State reporting is more straight forward since the only data entered into the IEP is for the one school year. Districts must be careful to schedule all annual review meetings by June to ensure that there is an IEP in place for the beginning of the next school year. Annual reviews for all students eligible for special education and related services need to be scheduled during the last few months of the school year which requires more organization in scheduling by the District and a more concentrated workload for the Child Study Team and other staff members. Districts who schedule a majority of annual reviews during the spring tend to have more independently running teams that have a lot of preliminary communication with parents that allow for a more efficient annual review meeting. Districts choosing to adopt a springtime IEP schedule can do so by holding two IEP meetings during a student s first year of eligibility for special education and related services. For example, if a student is deemed eligible for special education and related services and an initial IEP is developed in October; the IEP team should schedule a second meeting toward the end of that school year and conduct an annual review of the student s program, and every student s program, every spring thereafter. Although the IDEA requires the IEP Team to review a student s IEP at least once a year, the Team may review and revise the IEP more often if necessary. Either the parents or the school can ask to hold an IEP Team meeting to revise the student's IEP. For example, the student may not be making progress toward his or her IEP goals, and his or her teacher or parents may become concerned. On the other hand, the student may have met most or all of the goals in the IEP, and new ones need to be written. In either case, the IEP Team would meet to revise the IEP. Volume I, Version I The IEP Process and Development of the IEP Document 9

Best Practice Tips: When possible, annual review IEP meetings should be scheduled toward the end of the school year, allowing Districts to assess the student s progress after a full year in a continual program; plan for ESY services, and develop a school year IEP. Assess the student s performance continually throughout the school year; waiting until the next IEP Team meeting, one year later, to determine whether goals have been met is too late. Goals and objectives can be removed or amended if met during the year, or altered if the student is not progressing at the expected pace. The District should deal with any problems as soon as they arise and not wait until the next annual review to address a student s lack of progress during the school year. Volume I, Version I The IEP Process and Development of the IEP Document 10

IEP Direct-New Jersey is pleased to provide this whitepaper as part of our commitment to supporting Special Education compliance and best practices in New Jersey. Published by: IEP Direct-New Jersey is a best-of-class Special Education software solution that has a positive return on investment by: increasing staff productivity, maximizing aid and reimbursement, supporting shared services, enhancing compliance, fostering best practices, improving the quality of IEPs, and reducing the cost of unnecessary litigation. IEP Direct is a state-specific and fully-web based solution which was developed with the input of a panel of Directors of Special Services from across New Jersey. www.iepdirectnj.com 800.766.1822 In Collaboration with: Comegno Law Group provides sophisticated counsel to Boards of Education, Educational Services Commissions, and Charter Schools that face heightened exposure from litigation and need help navigating complex state and federal law and regulation. Group members have decades of practice experience and are recognized as national leaders in this practice. www.comegnolaw.com 888.313.4332 Volume I, Version I The IEP Process and Development of the IEP Document 11