The United States gives all students the right to a free appropriate public education. For K-12 students with disabilities, this right includes an Individualized Education Plan (IEP).
Understanding and navigating the IEP process can be difficult, even for families knowledgeable of the issues. Parents need to not only keep track of any changes to federal law but also Arizona law and any policy changes in their school district. Recommended best practices can shift as researchers learn more about how to support students.
Absent changes to the law or best practices, children can grow and mature. As part of this process, their needs may shift, and that includes what services, support, and accommodations they require.
IEPs are not static documents. Having an IEP does not guarantee the implementation of that IEP. If and when a child has issues in school, determining the root cause can be challenging. For families, it can be difficult to determine the best path, especially if you and your child's school district have different views on the subject.
The Lento Law Firm team works with families nationwide to plot a course forward. We help families find resolutions that focus on the individual child and their education.
What is an IEP?
At its most basic, an IEP is a written document that sets out how a school will support a student to enable them to progress with their education and reach their goals. Support can be in the form of services, accommodations, and other programs.
Much as each student is unique, each IEP should be unique to the student. IEPs should not be based on a child's disability or define a child by their disability. IEPs should also change with students, which is why schools must include transition plans for both early intervention services for children preparing to attend preschool or kindergarten and for post-high school once students turn 16.
In Arizona, the Department of Education's Exceptional Student Services (ESS) division handles all matters related to students with disabilities within the state. This includes IEPs and dispute resolution.
Federal Law
For disability rights in education, three federal laws feature prominently. While families should be familiar with the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973, for IEP purposes, the relevant law is the Individuals with Disabilities Education Act (IDEA). IDEA establishes a student's right to an IEP.
IDEA only applies to public schools and students in K-12, although it does include provisions for early intervention services for children too young to attend school. Children who are homeschooled or attend private or charter schools can still receive services and support from their local public school district.
IDEA covers individuals between the ages of 3 and 21. The caveat for the upper age limit is that IDEA no longer applies once a student graduates from high school. For those who attend college, even when they are under 21, IDEA no longer applies. This includes IEPs.
While private schools and colleges, and universities may have policies similar to those in IDEA, these policies do not have the backing of federal law. Arizona, however, does require that every public school and charter school have an ESS Program Support and Monitoring (PSM) Specialist.
States can pass laws providing more rights or services, but they cannot reduce the rights a student has under federal law. Similarly, school districts can have policies that expand on federal or state law.
Free Appropriate Public Education
All children have the right to a free appropriate public education (FAPE) in the United States. For students who have a disability, this right includes the services, support, and accommodations they need to access and benefit from that education. IEPs are part of ensuring students with disabilities receive the appropriate portion of FAPE.
Least Restrictive Environment
Least restrictive environment (LRE) is another common term that may prominently figure into IEP meetings. The idea behind LRE is that all students, including those with disabilities, should be part of the general school community and in general classrooms as much as possible.
The caveat to an LRE determination is what's best for the student. While the majority of students benefit from being part of the general school community, this is not always the case. Some students benefit from more specialized or alternative learning options.
Peoria Unified School District in Glendale, for example, operates the Sunflower School. The school only enrolls students with multiple disabilities but shares the same campus with Canyon Elementary School. For some students, a specialized or alternative school such as Sunflower may be a better option than attending a general public school.
The key with LRE is that any decision should be based on the individual student. Even if two students have the same disability, they may benefit from different school experiences. When discussing LRE with your student's school, you should make sure the focus remains on what is best for your child and not what you would prefer or what would be more convenient for the school district.
Reasonable Accommodations
When a student has a qualifying disability, schools must provide them with reasonable accommodations. These accommodations must be related to a student's disability and necessary to help a student make progress with their education.
Schools do not have to provide students with all possible accommodations. Factors such as cost and the burden an accommodation may place on other members of the school community can be considered against what a student requires. Numerous court cases have upheld the view that schools are not required to provide a student with their parents' preferred accommodations.
Accommodations should provide a student with a similar experience to other students. This means accommodations do not have to provide a student with the same or equal experience or give them an advantage over other students.
Cost to Families
When a child has a disability, schools cannot charge families any additional fees for any services a student receives as part of their IEP or from the school district. This includes early education intervention services.
The exception is if all students are charged a fee. When all students are assessed a fee, such as for a field trip or activity, a student with disabilities who participates must also pay that fee. The exception is if they don't qualify for other reasons, such as financial hardship.
If a school district does not believe your child requires a service, however, they are not required to pay for it. If you disagree with a school's decision, you should schedule a meeting. You should plan to bring documents or other evidence that shows why your child requires that service.
What Qualifies as a Recognized Disability in Arizona?
Students must have a qualifying disability to receive an IEP. Arizona uses the same definitions as IDEA in defining a recognized disability. The following are considered recognized disabilities – and therefore qualify for an IEP – in Arizona:
- Autism
- Deaf-Blindness
- Deafness
- Developmental Delay
- Emotional Disturbance
- Hearing Impairment
- Intellectual Disability
- Multiple Disabilities
- Orthopedic Impairment
- Other Health Impairment
- Preschool Severe Delay
- Specific Learning Disability
- Speech or Language Impairment
- Traumatic Brain Injury
- Visual Impairment
If a child does not qualify under one of these categories, they are not considered to have a disability under IDEA. A school district will not have an obligation to provide the student with an IEP.
If you believe a school district erred in evaluating your child, you do not have to accept their decision. Parents should consider initially scheduling a meeting.
What is a Developmental Delay?
IDEA allows each state to define what qualifies as a developmental delay. In Arizona, a child has a developmental delay when:
- They are at least three years old but have not yet reached their tenth birthday
- The child is behind other children of the same age in at least two development categories (cognitive, physical, communication, social or emotional, or adaptive)
- Delays are determined with testing, and a delay is defined as a child is at least 1 ½ but not more than 3 deviations below the mean for other children that age.
Preschool students who are more than 3 deviations below the standard are considered to have a severe delay.
The results of testing will be considered as part of a comprehensive development assessment. This may include parent feedback and input.
If and when different assessments have different results, the team evaluating the child will determine eligibility for services based on “preponderance of the information presented.” This term means that more than 50 percent of the evidence or information leans in one direction.
State-Sponsored Schools
The Arizona Schools for the Deaf and the Blind (ASDB) are publicly-funded schools that were founded the year Arizona became a state. The state operates two schools for the deaf and one school for the blind. The Tucson campus houses both a school for the deaf and one for the blind. Students can choose to either commute to campus or live in residence halls. The second school for the deaf, located in Phoenix, only has the day school option.
In addition to these schools, ASDB operates statewide preschool programs and services and support for districts. Students need to work with their local school district to determine which programs would be best for them. If interested in attending an ASDB campus, students will need to apply for admission through their home school district.
For students with hearing or vision impairments, all of the ASDB should be provided at no cost.
School districts may also have specialized programs or schools for students with disabilities. Sunflower School mentioned above, and Mary Meredith, part of the Tucson Unified School District, are two examples of specialized schools. Scottsdale Unified School District has the SCORE Transition program to help students prepare for post-high school life, including career training.
How to Qualify for an IEP
Arizona lists ten steps for a student to qualify for an IEP.
Arizona emphasizes that a student's grades alone do not qualify or disqualify a student from receiving disability support. Students can receive good grades and still require support and accommodations. On the flip side, that a student receives poor grades does not mean they qualify for an IEP or other services and support. Regardless of grades, a student must have a qualifying disability.
The ten steps to qualify for an IEP:
- Identification
- Evaluation
- Eligibility Determination
- Declared Eligibility
- IEP Meeting Scheduled
- Initial IEP Meeting and IEP
- IEP Implementation
- Progress Measures and Reports
- IEP Review
- IEP Eligibility Reevaluation
Identification
IDEA requires each state to have policies and regulations for identifying children who might have a qualifying disability. The common term for this program is Child Find.
Child Find requires the identification of all children with disabilities. This includes children who are homeless, wards of the state, or who do not attend public schools.
Arizona requires schools to screen all children within 45 days of beginning preschool or kindergarten for potential disabilities. For children who were evaluated before beginning school, including those receiving early intervention services, additional identification and evaluation are not required.
Public school districts have the responsibility to identify children who reside in their district but attend private schools. In Arizona, children who are homeschooled are considered to attend a private school.
Charter schools, however, are responsible for identifying students with disabilities who attend their school. Charter schools have no obligation to identify children who are not enrolled in their program.
For students who transfer into a school, schools must review the student's educational history to determine if they require or already use special education services.
Evaluation and Eligibility
Once a child is identified, they must be evaluated to determine whether they have a disability. The Arizona Department of Education maintains a list of professionals who are qualified to conduct evaluations. Part of an evaluation should also include the extent to which a child is likely to need services and support.
Schools cannot require families to provide medical verification to qualify for services. Schools cannot shift their responsibilities, such as evaluation, onto families.
Arizona stresses that no single individual determines a student's eligibility for an IEP. The state also emphasizes that a student's eligibility should not be simply labeling the student with a certain disability.
Initial IEP Meeting
Once a student is determined to be eligible for services and support, a district must schedule an initial IEP Meeting. The purpose of an IEP is not about putting a student into a certain category but should instead focus on meeting a student's “unique needs and preparing] them for further education, employment, and independent living.”
While parents or guardians are not required to attend an IEP meeting, schools have an obligation to schedule the meeting at a “mutually agreed on time and place.” Schools, however, may limit meetings to normal school hours and do not have to provide an evening or weekend option.
IEPs should include not only the support, services, and accommodations a student requires but also measurable annual goals. These discussions should clarify how long and how often a student will receive services and support. In some cases, IEP meetings may include placement discussions, including at specialized schools such as ASDB.
Transitions
For toddlers in early intervention programs, parents should schedule a meeting for the transition to preschool. A child should have an IEP by their third birthday. Depending on a child's specific disability, further assessments may be required when they begin school.
For students who are 16 years of age, IEP Meetings should include a discussion about their career or school plans after high school. A transition plan must be included in the student's IEP.
Implementation and Progress
Having an IEP is not enough. An IEP must be implemented, and schools should inform parents of the student's progress.
A 2021 decision from the Ninth Circuit stated that a student does not need to meet all grade-level goals or IEP goals. Rather, the focus is on whether a student is making “meaningful progress” toward those goals. Arizona falls under the Ninth Circuit's jurisdiction, meaning this case does affect the state and how school districts may measure progress.
IEP Review
IEPs must be reviewed annually.
Families may also request revisions at any point in the year, and school districts must convene a meeting within 45 days. If a parent or guardian believes an IEP is no longer supporting their child, they should schedule a meeting to determine what changes are needed to an IEP.
Ahead of this meeting, parents should also confirm that the school is implementing the current IEP. In some cases, lack of or improper implementation may be the issue rather than the IEP document.
Eligibility Reevaluation
Every three years, school districts must reevaluate students with disabilities to determine if the disability still exists and if they still require support and services.
Reevaluations are not mandatory and may be skipped if the family and the school district agree reevaluation is not necessary. They may also occur more often than every three years but not more than once a year, except if families and the school district agree a reevaluation is necessary.
Reevaluations may not require any additional assessments. IEP teams may review existing data when determining if a student still has a disability and still requires services and support.
If parents disagree with a reevaluation decision, they should first contact the school district to discuss why the decision was made or what additional assessments or evaluations are needed.
Dispute Resolution
Throughout the IEP process, families have options for contesting a school district's decision. The general recommendation is, to begin with an informal meeting with the school district to discuss the decision and ask questions.
Challenging a school district's decision can be stressful, especially if a school district's decision denies your child of needed support. Throughout the process of challenging a school's decision, parents and guardians should keep the end goal in mind: Providing their child with the best possible education and creating a supportive environment.
When you do dispute a decision, one advantage of working with an attorney advisor is that they can help you determine the best option for your situation. Attorney advisors can help families make logic-based decisions that keep the focus on their students rather than the dispute.
Contesting Evaluations
A school district may deny that your child needs evaluation for a disability. After evaluation, they may conclude that they do not believe your child has a qualifying disability.
Schools must inform parents, in writing, of these decisions. The written notice must include the reasons for the school district's decision. Parents and guardians may contest this decision via mediation or a due process hearing.
Facilitated IEP
These voluntary meetings are considered an early resolution option. The goal is to craft a collaborative, student-focused IEP.
Mediation
Mediation can involve any aspect of IDEA or implementation of IDEA. The goal is to work with a trained mediator to minimize the adversarial nature of the U.S. legal system and instead focus on finding a resolution.
State Complaint
Anyone can file a state complaint. A state complaint is best when someone has reason to believe or suspect that a school district is violating IDEA.
Due Process
The most formal of the dispute resolution options, due process hearings, can relate to any matter involving disability rights in education from initial evaluation to placement and implementation. Due process hearings have a two-year statute of limitations, and appeals can be filed in state or federal court within 35 days of the decision.
Protect Your Child's Right to an Effective IEP
Issues with your student's IEP can occur at any time in the process. Schools may deny your child needs support. An IEP may not be adequately crafted to support your student and their goals. Schools may fail to implement or revise an IEP.
Parents and guardians are often the best-equipped adults to know a child and their strengths and weaknesses. This knowledge can be crucial in crafting an effective IEP. More than that, you may be the best advocate your child can have in this process.
The Lento Law Firm knows the importance of education for all children. We work with families from school districts, large and small, urban and rural, to help them find solutions to IEP issues. Contact us online or at (888) 535-3686.
