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PROCEDURAL AND SUBSTANTIVE REQUIREMENTS OF AN IEP 1

Kevin Quinn
University of New England
EDU 720: Special Education Law
Module 5: IEP Development
Procedural and Substantive Requirements of an IEP
November 26, 2017
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Procedural requirements outline the rules and the laws that govern the process of how an

IEP needs to be developed, while the substantive requirements define the rights of those involved

in the process and the actual contents of the IEP. When developing an IEP, educators need to

keep in mind that mistakes that can occur in either of these two areas can be viewed as a denial

of FAPE.

For example, parental participation in the development of an IEP is a procedural

requirement. Parents need to be given sufficient notice of testing, placement, their rights in the

PPT process, and resources that are going to be implemented in their child’s IEP. While it is

possible to have a draft of an IEP prior to the PPT meeting, it is not recommended because

having a preliminary draft of an IEP, even if it is just suggested items, “inhibits a full discussion

of the child’s needs” (71 Fed Reg. 46678 as cited in Weatherly, 2008, p. 4). If suggestions are

made prior to the PPT in draft form, the child’s parents should also be given a copy of proposal

so that they are “better able to engage in a full discussion of the proposals for the IEP” (71 Fed

Reg. 46678 as cited in Weatherly,). A common procedural mistake is a pre-determined

placement prior to a PPT; this is a violation of IDEA. However, it is not a violation of the IDEA

to have “informal or unscheduled conversations involving public agency personnel and

conversations on issues such as teaching methodology, lesson plans, or coordination of service

provision (34 C.F.R. § 300.501(b)(3) as cited in Weatherly, 2008). Moreover, the

recommendations that are made during a PPT need to be conveyed with sufficient clarity and

finality so the “parents have a clear understanding of the level of commitment of services on the

part of the school system” (Weatherly, 2008, p. 6).

Those present at the PPT need to include, the parents, a regular education teacher, a

special education teacher, a representative of the public agency qualified to oversee the
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instruction of a student with a disability, and may contain any other individual who has special

expertise regarding the child or related services, and, depending on the age of the individual, the

child. Under IDEA, parents are “entitled to bring with them ‘other individuals who have

knowledge or special expertise regarding the child’” (34 C.F.R. § 300.321 as cited in Weatherly,

2008, p. 12). An LEA (Local Education Agency) representative needs to be present at the

meeting, and can be any of the individuals previously mentioned. This person must be

knowledgeable of the school or district’s resources and have the authority to commit to these

resources. This representative needs to also be aware that IEP recommendations need to be made

on the basis of the student’s need and not on the availability or cost of services (Weatherly,

2008).

While not making a recommendation due to the unavailability or cost of the service

would constitute a procedural violation, the failure to make a recommendation based upon

adequate evaluations would be a substantive violation. Therefore, it is critical to “obtain all

records and demand current evaluations” when making determinations about special education

services (Weatherly, 2008, p.13). According to IDEA, “present levels of academic achievement

and functional performance include data from objective tests, including ‘criterion-referenced

tests, standard achievement tests, diagnostic tests, or any combination of the above’”(Appendix

A, Question 1 of the 1999 Regulations for IDEA 97 as cited in Center for Parent Information and

Resources, 2017, p. 5). Failure to access a student could be considered a denial of a FAPE and

similarly, failing to respond to a parent’s request for an IEE (Independent Educational

Evaluation) in a timely manner would be a violation of IDEA.

Furthermore, it is a substantive requirement that the annual goals set forth in a student’s

IEP need to be measurable and measurable means one should be able to count or observe it”
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(Center for Parent Information and Resources, 2017). In Penn Trafford Sch. Dist. v. C.F. (2006),

it was determined that the IEP’s short-term instructional goals were not specific enough and

there were no identifiable measurable annual goals. The IEP also did not contain a behavior plan

even though the student had a series of recorded behavioral issues (W.D. Penn. 2006 as cited in

Weatherly, 2008). Under IDEA, when a student exhibits behavior that impedes their learning or

the learning of others, behavioral interventions and strategies implemented need to be

documented. However, all of this does not mean that IEP’s are not expected to be so detailed

that they account for the day-to-day activities of the child.

In addition to clear and measurable goals and objectives, documentation of “options

considered on the continuum of alternative placements” need to be clearly communicated if less

restrictive placements are rejected (Weatherly, 2008, p. 15). A violation of a child’s FAPE could

result if it is not clearly documented or agreed upon as to why a student was educated outside of

the regular education classroom with supplementary aids. In other words, a self-contained

environment should not be the starting point on the LRE continuum for placement.

Substantive requirements also pertain to items in the IEP such as offering an extended

school year services if deemed appropriate, and measurable postsecondary goals and transition

services for students 16 years and older. However, by far the most serious substantive oversight

that can occur is the failure to implement a student’s IEP once it has been created (Weatherly,

2008). IDEA requires that each person responsible for implementing a student’s IEP is informed

and the accommodations, modifications, and services the child is to receive are provided.
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References

Center for Parent Information and Resources. (2017). All about the iep. Retrieved from:

http://www.parentcenterhub.org/repository/iep/

Weatherly, J. J. (2008, Nov. 7). IEP disasters: Common procedural and substantive mistakes to

avoid. Nebraska/Kansas Regional Special Education Conference. Retrieved from

http://www.therashare.net/files/KSDEIEPDisasters.pdf.

Wright, P. and Wright, P. (2006). Smart IEPs. Wrightslaw: From emotions to advocacy - The

special education survival guide. Harbor House Law Press. Retrieved from

http://www.fetaweb.com/03/ch12.smartieps.pdf.

Yell, M. L. (2016). Law and Special Education, The 4th Edition. [Chegg]. Retrieved from

https://ereader.chegg.com/#/books/9780134035925/