CLOSING THE GAP: WHAT’S FAPE GOT TO DO WITH IT?
Guidance from the Office of Special Education and Rehabilitative Services
by Michael Connolly, Esq.
McAndrews Law Offices, P.C.
Most, if not all, parents of special needs students have been told by their child’s school – at least one time or another – in response to questions raised about your child’s skill level in comparison to grade-level standards, that “we’re not responsible for closing the gap;” or “it’s not reasonable to expect more than a year’s growth in a year’s time for a student without disabilities, never mind a student with special needs;” or maybe “all we are required to do is provide an appropriate program, not the best program.” I am sure many of those same parents have said to themselves (and maybe even out loud) “How can my child receive an appropriate program when he or she is falling further behind in grade-level standards.” A fair question that has often been avoided in IEP meetings across the country.
While the legal standard for determining what constitutes a Free Appropriate Public Education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”) has not changed, the United States Department of Education’s Office of Special Education and Rehabilitative Services (“OSERS”) has recently provided guidance through a ‘Dear Colleague Letter’ on what it means to provide a child with FAPE that calls into question the validity of some of the all too often familiar responses, mentioned above, to concerns over a child falling further behind grade-level requirements. As OSERS notes, research demonstrates that children with disabilities who struggle in reading and mathematics can successfully learn grade-level content and make significant academic progress when appropriate instruction, services, and supports are provided. Conversely, low expectations can lead to children with disabilities receiving less challenging instruction that reflects below grade-level content standards, and thereby not learning what they need to succeed at the grade in which they are enrolled.
The cornerstone of the IDEA is the entitlement of each eligible child to FAPE. The vehicle for providing FAPE to an eligible child is an Individualized Education Program (“IEP”), which must take into account a child’s present levels of academic achievement and functional performance, and the impact of the child’s disability on his or her involvement and progress in the general education curriculum. In order to ensure the provision of FAPE to each eligible student, the IEP must be designed to enable the student to be involved in and make progress in the general education curriculum. By general education curriculum, the IDEA is referring to the same curriculum provided to nondisabled peers at the same grade level.
As such, OSERS makes it clear that local school districts are expected to ensure that annual IEP goals are aligned with State academic content standards for the grade in which the child is enrolled. While OSERS did recognize that the performance levels of a certain “very small number” of students with significant cognitive disabilities must be measured against alternative academic achievement standards; those standards must still be clearly related to grade-level content, although they may be restricted in scope or complexity or take the form of introductory or pre-requisite skills. Moreover, in situations where a child is performing significantly below the level of the grade in which he or she is enrolled, OSERS explains that current special education regulations – as it interprets those regulations – requires IEP teams to develop goals “sufficiently ambitious to help close the gap,” which necessarily implies more than a year’s growth in a year’s time. In fact, in one example used by OSERS to illustrate implementation of its guidance, it specifically explains how it can be not only reasonable, but necessary to establish goals for a child several grade levels behind in reading to have goals with expected levels of achievement of at least 1.5 grade levels per year.
In the end, the Dear Colleague Letter doesn’t create any new regulations or change the law in anyway. The provision of FAPE has always had a lot to do with closing the educational gap; and what is considered an appropriate amount of progress – including whether or not a student is entitled to make more than a year’s progress in a year’s time – was always, and continues to be, a student-by-student determination based on that student’s individual ability and level of need. Hopefully, the recent guidance from OSERS will go a long way in understanding that for the vast majority of children with special needs, the provision of FAPE necessitates closing the educational gap between a specific skills level in comparison to grade-level standards.