III. FREE APPROPRIATE PUBLIC EDUCATION (FAPE)

III. FREE APPROPRIATE PUBLIC EDUCATION (FAPE) Understanding what the law requires in terms of providing a free appropriate public education to students with disabilities is central to understanding the special education process. While the law has not changed its provisions regarding FAPE much over the years, IDEA 97 introduces new aspects to FAPE and provides States with incentives to train and employ professionals who are competent to design and provide an appropriate education to each children with disabilities. AREAS OF CHANGE The State s obligation to make available a free appropriate public education to eligible children with disabilities has been a part of the law since it was originally passed as P.L. 94-142 in 1975. IDEA 97 maintains provisions related to FAPE. Areas of change include way in which the law has strengthened States ability to make FAPE available through personnel development and has amended the focus of students educations so that their involvement in the general curriculum is required to the maximum extent appropriate (and in natural environments, for infants, toddlers with disabilities). Strengthening States ability to make FAPE available is seen in a number of the IDEA 97's provisions, including: 1. the comprehensive system of personnel development; 2. professional standards; 3. the use and training of professionals; and.1

4. state improvement plans where 75% of the funds are designated for personnel preparation. Strengthening student involvement in the general curriculum is primarily seen in changes the law has made to the contents of the IEP. This change shifts the focus of what is to be considered an appropriate education. The IDEA 97 requires that IEP Team make many decisions with respect to supporting and encouraging student performance in the general curriculum and general education classroom; this represents a new dimension for providers of FAPE to address. Similarly, the law s requirements that infants and toddlers receive their services in natural environments to the maximum extent appropriate is an area that agencies providing early intervention services must address. OVERVIEW OF FAPE For over 20 years the Federal Government has assumed a role in assisting the States and local educational agencies in the education of children with disabilities. The purpose of this assistance has been to improve educational results for such children. It has been through the enactment of the Education for All Handicapped Children Act of 1975 (P.L. 94-142), and the revisions since that time, that children with disabilities have had access to what the law calls a free appropriate public education, or FAPE. But what is FAPE? The IDEA 97's definition of FAPE is virtually unchanged from various versions of the law. This definition is as follows: (8) FREE APPROPRIATE PUBLIC EDUCATION. - The term free appropriate public education means special education and related services that- (A) (B) have been provided at public expense, under public supervision and direction, and without charge; meet the standards of the State educational agency;.2

(C) (D) include an appropriate preschool, elementary, or secondary school education in the State involved; and are provided in conformity with the individualized education program required under Section 614(d). Upon reading the definition, several things become clear about what the law requires: 1. that the special education and related services that each student with a disability receives are free (i.e., provided at no cost to the student or to his or her parents); 2. that the provision of these services is under public supervision and direction and has to meet standards of the SEA; and 3. that the services are provided in keeping with what has been decided in the IEP meeting of the student and written down in that student s individualized education program (IEP). What is not immediately clear about FAPE, but which is true nonetheless, is that for each children with a disability FAPE is different. While each student s education must be free to him or her and while a public agency provides and pays for that education, what is appropriate for one student will not be appropriate for another. A great deal pivots on the requirement of appropriate. This chapter will explore some of the ways in which appropriate is decided for each student and how the IDEA 97 supports States ability to provide an appropriate education to each student through professional standards and a comprehensive system of personnel development. It will be evident that FAPE is intertwined in all components of the law and its implementation. STATES OBLIGATION TO MAKE FAPE AVAILABLE.3

Each State education agency (SEA) must meet all the requirements of the law in order to receive the educational funding assistance from the Federal Government. One of these provisions requires that each State make a free appropriate public education available to eligible children with disabilities in the State. Section 612 sets forth conditions of State eligibility for Federal assistance. (Parts of this obligation can be found at the end of this chapter). This obligation remains much the same as in previous iterations of the law, except for the two items identified below: 1. Limitations on States obligations to serve those in prison. IDEA 97 has added a limitation regarding the States obligation to make FAPE available to children aged 18 through 21 who, before their incarceration in an adult correctional facility, were not considered as having a disability - that is, they had not been identified within the school system as having a disability - or did not have an IEP at the time. 2. FAPE must be made available to children who are suspended or expelled. This obligation to make FAPE available to children with disabilities who have been suspended or expelled relates directly to other amendments to the law brought about by IDEA 97, most notably the behavior and discipline language that was added to Section 615 (this will be discussed much more fully in the chapter on Procedural Safeguards). With this provision. SEAs and LEAs are responsible for ensuring that a student s IEP with its goals and objectives continues to be implemented in the least restrictive environment even though the student has been removed from the school. DEFINITION OF SPECIAL EDUCATION AND RELATED SERVICES The words special education and related services are key terms in the definition of free appropriate public education. How are these terms defined within the new law? Under IDEA 97, the previous definition of special education in maintained. The IDEA 97 defines special education as ;.4

... specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including- (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. [Section 602(5)]. The definition of related services is virtually the same as before. The term related services means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology, and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnosis and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. [Section 602(22)]. IDEA adds orientation and mobility services to existing list of related services. The Report (to accompany Section 717) discusses this change in some detail; these remarks are provided in the box on he next page. Report Language on Adding Orientation and Mobility Services to the List of Related Services... [T]his change is not intended to reduce or alter the scope of related services or special education services that are available to children with disabilities, but merely to emphasize the importance of orientation and mobility services. Orientation and mobility services are generally recognized to be services provided to children who are blind or have visual impairments. However, it is important to keep in mind that children with other disabilities may also need instruction in traveling around their school, or to and from school. A high school aged child with a mental disability, for example, might need to be taught how to get from class to.5

class so that he can participate in his inclusive program. The addition of orientation and mobility services to the list of identified related services is not intended to result in the denial of appropriate services for children with disabilities who do not have visual impairments or blindness. (Committee on Labor and Human Resources, 1997, p. 6) FAPE AND THE GENERAL CURRICULUM The words appropriate education are part of the term free appropriate public education. If the State is required to make an appropriate education available to a student with disability, how, then, is appropriate determined? And how has the IDEA 97 changed what educators are to consider appropriate for a student? It is useful to briefly consider how an appropriate education is determined. As will be seen in detail in other chapters, a process of discovery is necessary to define what is appropriate for each student. The process begins with an individualized evaluation, where the student s areas of strengths and weaknesses are identified in as much detail as possible. Under IDEA 97, as never before, this evaluation must also provide information relative to the student s participation in the general curriculum [Section 614(b)(2)]. Next, the IEP Team uses the evaluation data to discuss and develop an IEP for the student. Because much is now known (from evaluation) about the student, the IEP Team is able to identify appropriate goals and objectives for the student to work on throughout the year and to specify what type of special education and related services are appropriate for the student, given the goals and objectives and his or her individual needs. Also specified in the IEP is such information as how long the special services will last, where they will be provided and by whom, and how progress will be evaluated. Critical to specifying an appropriate placement for the student is identifying (and providing) the.6

supplementary aids and services the student needs in order to succeed in the educational setting. Once the IEP is written, the services listed there must be provided to the student. This, then, becomes critical to that student s appropriate education. As noted above and throughout this manual, one of the significant changes that IDEA 97 brings to the special education process is an increased emphasis upon involving the student with disabilities in the general curriculum and the general education classroom. This new emphasis shifts the focus of what is appropriate so that schools and parents must consider the general curriculum in their work on behalf of the student. Under previous versions of the law, special education and general education often ran along parallel but separate tracks, with little relation to each other; now, under IDEA, that is no longer appropriate unless the student s individual needs are such that involvement in the general curriculum is not appropriate The Committee on Labor and accompany Section 717) states that: Human Resources (1997) Report (to The majority of children identified as eligible for special education and related services are capable of participating in the general education curriculum to varying degrees with some adaptations and modifications. This provision is intended to ensure that children s special education and related services are in addition to and are affected by the general education curriculum, not separated from it. (p.20) The impact of this new emphasis upon student involvement in general education can be seen in other areas of IDEA 97 as well. For example, the new law requires that: States include children with disabilities in State and district-wide.7

assessment programs or develop alternative ways of assessing them; and States develop performance goals and indicators for students with disabilities and that the goals be consistent to the maximum degree appropriate with those standards developed for other children in the State. These new provisions are treated more fully in chapter on Appropriate Evaluation, but they are worth mentioning in relation to FAPE, because how schools make FAPE available, and what they consider FAPE to be (i.e., what they consider appropriate education) will ultimately be affected by this widening involvement of students in general education. As States establish performance standards to students with disabilities, for example, the education that these students receive must be appropriately correlated with those standards. For more in-depth information on how the law emphasizes this new area, please refer to chapters Appropriate Evaluation and on the Individualized Education Program. STATES AS QUALIFIED PROVIDERS OF FAPE In order for services and supports to be appropriate for children with disabilities, the providers of those services must be effectively prepared in terms of their knowledge, skills and attitudes. The authors of the law recognize the importance of qualified personnel to provide necessary services for students with disabilities. They also recognize there is a shortage of appropriately trained providers. Accordingly, IDEA 97 emphasizes the importance of adequately and appropriately preparing those currently in the field as well as those entering the field. Among the aspects of IDEA 97 that emphasize the development of competent and well-trained professionals are: the requirement that SEAs coordinate the existing comprehensive system of personnel development (CSPD) with the personnel section of their state improvement plan under Part D; [Section 612(a)(14)]..8

the requirement that each State establish procedures for acquiring and disseminating knowledge on promising practices from educational research. [Section 653(c)(3)(D)(vii)]. All of the points above indicate that IDEA 97 intends to support States in being qualified providers of FAPE. Let s look at some of these activities individually, for they reveal a law that would strengthen the capacity of States to respond to the needs of students with disabilities. COMPREHENSIVE SYSTEM OF PERSONNEL DEVELOPMENT The IDEA 97, as its predecessors, requires States to have in place a comprehensive system of personnel development (CSPD) that is designed to ensure an adequate supply of qualified special education, regular education, and related services personnel [ Section 612(a)(14)]. In the past CSPD has involved public and private institutions of higher education (IHEs), representatives of individuals with disabilities, parents of children with disabilities, other advocacy organizations responsible for preparing qualified professionals. Through a State s CSPD, the State would conduct any number of activities designed to improve the supply of qualified personnel. For example, through its CSPD, a State might: assess their personnel; conduct inservice and preservice training and preparation; disseminate research findings and promote the adoption of promising practices, materials, and technology, provide technical assistance; and evaluate the effectiveness of CSPD activities. Local educational agencies had to develop local CSPD plans that were coordinated with the State s CSPD plan. States were required by law to collect information, including: the number and type of personnel employed by specialization; the number with emergency, provisional or other type of licensure; and the number and type of personnel needed. States had to have a system for collecting annual data on IHE preparation, including the number of students enrolled by specialization and number graduating by specialization with licensure or certification..9

All of these CSPD activities have contributed to States ability to make FAPE available to students with disabilities. The new law makes many changes to CSPD. The most significant of these are that: a State must have in effect a CSPD that meets the requirements of the State Improvement Plan (SIP); personnel must meet the requirements specified in the State s SIP; and an LEA now has the option of contributing to and using the State CSPD to the extent it determines appropriate. It appears that IDEA 97 moves many of the requirements regarding personnel development and professional standards from the CSPD component of the law to the SIP. SIPs, to be discussed in more detail in a moment, focus on improving student results and the effectiveness of the system primarily through personnel development. So the purpose and intent of the law remain the same, although the vehicle by which such development is accompanied has in part changed. Capacity-building has been increased at the local level. For example, the adoption of promising practices, previously a part of CSPD, is now an activity conduct through the SIPs and through subgrants (sometimes referred to as silver grants ) to LEAs for capacity building and improvement. Similarly, LEAs have the option of using the State s CSPD system or not, whereas previously their plans had to match the State s plan. IDEA 97 is concerned with improving results for students with disabilities and has moved many resources to the local level to enable LEAs to determine their own needs and strategies, and achieve those improved results. PROFESSIONAL STANDARDS Under prior versions of IDEA, each State was required to:.10

(a) ensure that personnel were appropriately and adequately trained; (b) (c) establish and maintain professional standards that its personnel had to meet; and specify the steps it intended to take to retrain or hire personnel who did meet State standards, when current personnel did not meet the highest State standard for a specific profession or discipline. The new law maintains these requirements regarding personnel standards and add two provisions: States may allow the use of paraprofessionals and assistants to assist in the provision of special education and related services under certain conditions. The paraprofessionals and assistants must be appropriately trained and supervised. States may adopt a policy that requires LEAs to make an ongoing good faith effort to recruit and hire appropriately and adequately trained personnel. However, where, for example, there are shortages of qualified personnel, States may adopt a policy to allow the recruitment and hiring of the most qualified persons available. Those persons hired, who are making satisfactory progress toward completing applicable course work, have 3 years to complete the courses to meet the State standards. Over the last ten years, the number of paraprofessionals working with children who have disabilities has grown from 105, 395 (in school year 1983-84) to 189,011 (in school year 1993-94)(U.S. Department of Education, 1996). This growth is expected to continue in the future, especially with the increased number of children with disabilities being included in general education classrooms and the provisions within IDEA 97 that permit States to use paraprofessionals..11

It is readily apparent why paraprofessionals can be so valuable for schools. Working under the supervision of the teacher, paraprofessionals may carry out tasks such as: performing instructional activities planned by the teacher, giving the teacher feedback on student progress, tutoring a child in a particular skill, assisting the teacher in administrating tests, and working with the teacher on plans for the next day or week. The level of responsibility a paraprofessional is given is usually determined by his or her training and experience, the caseload of the special education teacher, and the policies of the employing school district (Crutchfield, 1997, p. 16). Now that IDEA 97 has put into writing that schools may use appropriately trained paraprofessionals to help with the provision of special education and related services, schools may be able to address, in part, the shortage of professionals in special education and increase the appropriateness of the services and supports given students with disabilities. Also expected to help address personnel shortages, particularly in the related services field, is IDEA 97's provision that, when States cannot find personnel whose qualifications meet standards, States may use the most qualified individuals available. This means that, as long as the provisions of IDEA are met, States can employ individuals, through applicable course work, must meet those standards within 3 years. STATE IMPROVEMENT PLANS The State Improvement Plan or SIP, is a powerful factor in a State s ability to systematically improve the system, equip its staff with the competence and know-how needed to effectively respond to the needs of students, and improve the results for students with disabilities. Under IDEA 97, the SIP must be integrated, to the maximum extent possible, with State plan under the Elementary and Secondary Education Act of 1965 (commonly referred to as ESEA) and the Rehabilitation Act of 1973, as appropriate. The SIP must also identify those critical aspects of early intervention, general education, and special education.12

programs, (including professional development, based on an assessment of State and local needs) that must be improved to enable children with disabilities to meet the goals established by the State under Section 612(a)(16) [Section 653(b)(1)]. (The goals mentioned under Section 612(a)(16) are the same performance goals and indicators mentioned earlier in this section and described in more detail in the chapter Appropriate Evaluation.) SIPs are awarded on a competitive basis after peer review, and IDEA 97 is firm on how the funds may be used. Of interest here, in this chapter on FAPE, is that: (1) shall use not less than 75 percent of the funds it receives under the grant for any fiscal year - (A) (B) to ensure that there are sufficient regular education, special education, and related services personnel who have the skills and knowledge necessary to meet the needs of children with disabilities and developmental goals of young children; or to work with other States on common certification criteria; or (2) shall use not less than 50 percent of such funds for such purposes, if the State demonstrates to the Secretary s (of Education) satisfaction that it has the personnel described in paragraph (1)(A). (See (A) above) [Section 654(b)]. EARLY INTERVENTION AMENDMENTS and FAPE FAPE - a free appropriate public education - is not truly an appropriate term when it is applied to infants and toddlers with disabilities. Children who are infants and toddlers are not required by law to attend school, as school-aged.13

children are. For such young children, the term that is most parallel to FAPE, particularly in term of the spirit and intent of FAPE, is early intervention services. The definition of early intervention services is provided in the box below: Section 632(4) Definition of Early Intervention Services - The term early intervention services means developmental services that - (A) are provided under public supervision; (B) are provided at no cost except where Federal or State law provide for a system of payments by families, including a schedule of sliding fees; (C) are designed to meet the developmental needs of an infant or toddler with a disability in any one or more of the following areas: (i) (ii) physical development; cognitive development; (iii) communication development; (iv) social or emotional development; or (v) adaptive development; (D) meet the standards of the State in which they are provided, including the requirements of this part;.14

(E) include - (i) family training, counseling, and home visits; (ii) special instruction; (iii) speech-language pathology and audiology services; (iv) occupational therapy (v) physical therapy; (vi) psychological services; (vii) service coordination services; (vii) medical services only for diagnosis or evaluation purposes; (ix) early identification, screening, and assessment services; (x) health services necessary to enable the infant or toddler to benefit from the other early intervention services; (xi) social work services; (xii) vision services; (xiii) assistive technology devices and assistive technology services; and (xiv) transportation and related costs that are necessary to enable an infant or toddler and the infant s or toddler s family to receive another service described in this paragraph; (F) are provided by qualified personnel, including- (i) special educators; (ii) speech-language pathologists and audiologists; (iii) occupational therapists; (iv) physical therapists; (v) psychologists; (vi) social workers; (vii) nurses; (viii) nutritionists; (ix) family therapists; (x) orientation and mobility specialists; and.15

(xi) pediatricians and other physicians; (G) to the maximum extent appropriate, are provided in natural environments, including the home, and community settings in which children without disability participate; and (H) are provided in conformity with an individualized family service plan adopted in accordance with section 636. The definition of early intervention services shows strong parallels to the main elements of the definition of FAPE, including that early intervention services: are provided under public supervision, are provided at no cost (unless Federal or State law allows for a system of payments by families), meet the standards of the State, and are provided in conformity with an individualized family service plan. Thus, aspects of services for infants and toddlers with disabilities are appropriate to discuss under this chapter on FAPE. NATURAL ENVIRONMENTS As did its predecessors, IDEA 97 emphasizes that the provision of early intervention services and supports to infants and toddlers with disabilities will enhance their physical, cognitive, social/emotional, and communicative development. It is believed that early intervention services will reduce the.16

educational costs to society and minimize the need for special education and related services when the children reach school age. (Early intervention services are covered in the law under Part H, which will become Part C on July 1, 1998.) Children perform best and are most comfortable in familiar surroundings. Therefore, IDEA 97 requires that, to the maximum extent possible, each intervention services be provided in an environment that is natural for the child. The assessment process as well as the provision of services should occur in this natural environment. The precise language is provided below: Section 635(a)(16) The new law requires that the State have policies and procedures that are consistent with Section 636(d)(5)- (A) (B) to the maximum extentpossible, early intervention services are provided in natural environments; and the provision of early intervention services for any infant or toddler occurs in a setting other than a natural environment only when early intervention cannot be achieved satisfactorily for the infant or toddler in a natural environment. TRANSITION TO PRESCHOOL The new law also encourages the continuity of care and services at all transitional periods. Therefore, for those children with disabilities who are transitioning into the preschool programs from early intervention programs, the individual family service plan (IFSP) may continue to be used. (B) Program For Child Aged 3 Through 5.- In the case of a child with disability aged 3 through 5 (or at the discretion of the State educational agency, a.17

2 year-old child with disability who will turn age 3 during the school year), an individualized family service plan that contains the materials described in section 636, and that is developed in accordance with the section, may serve as the IEP of the child if using that plan as the IEP is - (i) (ii) consistent with the State policy; and agreed to by the agency and the child s parents. [Section 614(d)(2)(B)]. The same concern with continuity in the education and care of the young child is seen in the law s new requirement that LEAs be part of the team that plans a young child s transition from early intervention to preschool services. (9) Transition From Part C To Preschool Programs. - Children participating in the early intervention programs assisted under Part C, and who will participate in preschool programs assisted under this part, experience a smooth and effective transition to those preschool programs in a manner consistent with section 637(a)(8). By the third birthday of such a child, an individualized education program or, if consistent with sections 614(d)(2)(B) and 636(d), an individualized family service plan, has been developed and is being implemented for the child. The local educational agency will participate in transition planning conferences arranged by the designated lead agency under section 637(a)(B). [Section 612(a)(9)]. PERSONNEL DEVELOPMENT There is a shortage of personnel in the provision of early intervention services. IDEA 97, then, brings changes to Part C that are quite similar to those brought to Part B with respect to professional standards and personnel development. As in Part B of the law, the State may allow paraprofessionals and assistants who are appropriately trained and supervised to assist in providing early intervention services to infants and toddlers. The State must also take steps to retrain and hire personnel that meet appropriate professional standards..18

SUMMARY The past twenty years have seen major changes in the lives of children, youth, and adults with disabilities. Over the years, the Federal Government has supported programs, services, research, and training to State to assist them in providing free appropriate public education for children with disabilities, age 3 through 21. Under IDEA 97, the Government has sought to strengthen States ability to make FAPE available to children with disabilities by strengthening professional standards and ensuring personnel development. The law has also broadened the focus of what constitutes an appropriate education to include an emphasis upon the general curriculum, a shift that will surely bring improved results for children served under IDEA. SECTION 612. STATE ELIGIBILITY (a) In General. - A State is eligible for assistance under this part for a fiscal year if the State demonstrates to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets each of the following conditions: (1) - (A) (B) In General. - A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school. Limitation. - The obligation to make a free appropriate public education available to all children with disabilities does not apply with respect to children: (i) (ii) age 3 through 5 and 16 through 21 in a State to the extent that its application to those children would be inconsistent with state law or practice, or the order of any court, respecting the provision of public education to children in those age ranges; and age 18 through 21 to the extent that State law does not require that special education and related services under this part be provided to children with disabilities who, in the educational placement prior to their incarceration in an adult correctional.19

facility: (I) were not actually identified as being a child with a disability under section 602(3) of this Act; or (II) did not have an individualized education program under this part. [Section 612 (a)(1)].20