It's All About that FAPE!

It's All About that FAPE
Multi ethnic group of children playing together.

It's All About that FAPE!

CAHELP eNews | September 2019 | Issue #10

A Free Appropriate Public Education, or FAPE, is a federally protected educational right for all children with disabilities between the ages of 3 and 21. Did you know there are two parts to FAPE? There are procedural requirements and substantive requirements in the Individuals with Disabilities Education Act (IDEA) and both parts must be satisfied for each child with a disability to receive FAPE.

Procedural Requirements

Procedural requirements are those rights imposed by Part B of the IDEA. They include:

  • Notices to Parents (parent rights/procedural safeguards)
  • Parent Participation
  • Access to Educational Records
  • Confidentiality
  • Informed Parental Consent
  • Prior Written Notice (PWN)
  • Understandable Language (documentation translation, including Braille)
  • Independent Educational Evaluation (IEE)
  • Stay-Put Rights
  • Dispute Resolution

Substantive Requirements

Substantive requirements are a bit trickier; there is no neat list for an LEA to follow. Instead, Federal law says:

  • “FAPE means special education and related services that are provided at public expense”
  • (FAPE) must meet the standards of the State Educational Agency (SEA)
  • (FAPE) includes preschool through secondary school, and
  • (FAPE) is provided in conformity with an individualized education program (IEP). [34 C.F.R. § 300.17(a-d)]

This code language is not exactly an easy-to-follow set of instructions, so this is where legal precedent comes in and court rulings shape how these substantive requirements look in the IEPs of students with disabilities. In 2017, the US Supreme Court issued a unanimous ruling that provided a standard for Local Educational Agencies (LEAs) to test whether the program offered through a student’s IEP meets the IDEA substantive requirement. [Endrew F. v. Douglas County School District Re-1, 137 S. Ct. 988 (2017)] The Court said: “To meet its substantive obligation under the IDEA a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

While the Supreme Court ruling in Endrew F. did not give an exact template of how FAPE should be written into a student’s IEP, it did give some much-needed clarification to the 35 year-old Rowley decision and it provided the guidance LEAs need in order to meet the IDEA substantive requirement.

To meet the Endrew F. standard, an LEA should use the professional knowledge, training, and skills of its personnel and service providers, along with parent input and staff observation, and be mindful of each child’s unique abilities and challenges when designing a unique program of special education services and supports that would allow the student to make progress in light of his or her circumstances. Remember, no two students with the same disability will have exactly the same abilities and challenges; their IEPs should be as unique as the students themselves.

It’s All About That FAPE: Tips and Good Stuff to Know

TIP: Avoid a procedural violation resulting from records requests. This is a common complaint issue, and it is easily avoided by responding to records requests in a timely manner as the Education Code requires. [EC § 56504]

TIP: Avoid a FAPE violation resulting from allowing an IEP to implement placement and services to remain unsigned for an excessive amount of time. Make and document good-faith efforts to meet, discuss parent concerns, and get a signature, but the IDEA is clear that the LEA’s recourse is to timely file Due Process rather than allow the IEP to stay unsigned.

TIP: There should only be one offer of FAPE in an IEP. Multiple offers of this combination of supports/services OR that combination of supports/services in an IEP is not considered to be an offer of FAPE at all, and creates a legal requirement where each offer must be defended on its own.