Ensuring the Continuation of a Free Appropriate Public Education under the Individuals with Disabilities Education Act

by Anita Castro, Consultant, Special Education Team and Patricia Williams, Assistant Director, Special Education Team

Principals and associate principals serve an important role in ensuring the continuation of a free appropriate public education (FAPE) for students with disabilities under the Individuals with Disabilities Education Act (IDEA). But what is “FAPE” and how can administrators help ensure it is provided? Has the understanding of FAPE changed since the United States Supreme Court issued their ruling in the case of Endrew F. v. Douglas County School District? This article will help answer these questions and provide resources to support your school in ensuring FAPE for your students with disabilities. 

Let’s begin with the definition.

A free appropriate public education (FAPE) means special education and related services that are provided at public expense, under public supervision and direction, and in conformity with an individualized education program (IEP). FAPE must be available to all students with disabilities ages 3 through 21 enrolled in a public school district, including students with disabilities who have been suspended or expelled from school.

What does this mean?

From your educational leadership courses, you may recall the Rowley Supreme Court case that held FAPE is achieved when an IEP is reasonably calculated to enable the child to receive educational benefit. For children fully integrated in the regular classroom, this would typically require an IEP reasona­bly calculated to enable the child to achieve passing marks and ad­vance from grade to grade. Hendrick Hudson Dist. Bd. Of Ed v Rowley see 458 U.S. at 204.

Seems simple enough; however, in applying the Rowley standard, courts disagreed over how to determine “educational benefit” and used differing standards ranging from “de minimus” to a “meaningful educational benefit.” Consequently, in March 2017, the U.S. Supreme Court clarified what was meant by “educational benefit” in the case of Endrew Fv. Douglas County School District.

The Endrew Fcourt stated that FAPE requires an IEP to be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. For most students this means an IEP designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the child’s circumstances. Endrew F, 137 S.Ct. 988,999 (2017).

What does appropriately ambitious in light of the child’s circumstances mean? 

All students with disabilities should be held to high standards and make progress towards their IEP goals and the general education curriculum. The U.S. Department of Education, Office of Special Education Programs has clarified IEP goals must be aligned with the grade-level content standards for the grade in which the student is enrolled, in order to ensure all students with disabilities are held to high expectations. 

The IEP team considers the student’s present levels of academic achievement and functional performance compared to grade-level standards, as well as the impact of the student’s disability on their involvement and progress in the general education curriculum, when developing the IEP. (See the Department of Public Instruction’s guidance on developing College and Career Ready IEPs for more information about a 5-Step process.)

While the court in Endrew F. did not specifically define “in light of the child’s circumstances,” the decision emphasized the individualized decision-making required in the IEP process and the need to ensure that every student should have the chance to meet challenging objectives. In doing so, the IEP team, which includes the child’s parents, must consider the student’s present levels of achievement, disability, and potential for growth. See US Department of Education’s FAQ

How is FAPE accomplished?

Districts must provide FAPE to each student with a disability by developinga program based on the student’s unique needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documentingthe program in the IEP, and implementing the program articulated in the IEP. Although there is no guarantee of progress, the IEP must aim to enable the student to make progress toward the student’s annual IEP goals and in the general education curriculum. 

In Wisconsin, the Department of Public Instruction promotes using the 5-Step process of CCR IEP development. The IEP team identifies which grade-level standards the student is not meeting and why, and then develops ambitious yet achievable goals to specifically address what the student needs to improve or increase in order to meet grade-level standards. Progress towards the goals is monitored on a regular basis. If the data indicates a student is not making sufficient progress, the IEP team reconvenes to analyze the new data and consider whythe student is struggling to make progress and then revise the IEP accordingly.

Is FAPE just about academic progress?

Failure to address the behavioral needs of a student through the IEP process is likely to result in a student not receiving FAPE. Under IDEA, when a student’s behavior impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. See 34 CFR § 300.324.When a student repeatedly misses instructional time due to disciplinary removals or for other behavioral related reasons, it is likely that the student’s opportunity to be involved in and make progress in the general education curriculum and toward their IEP goals has been significantly impeded. Districts must ensure FAPE by providing effective behavioral supports that allow the student to have access to and benefit from instruction. 

How long is FAPE provided?

Once a student graduates from high school with a regular high school diploma, the student is no longer eligible for special education services. Students with disabilities who have not graduated with a regular high school diploma have a right to FAPE until the age of 21.

If a student with a disability drops out of school and then re-enrolls, the district has an obligation to provide FAPE. If the student does not have a current IEP in effect, the district must provide FAPE consistent with the last IEP until an IEP team meeting is held to develop a current IEP.  A reevaluation may also be necessary.

The provision of FAPE also ends when a student is determined, through an evaluation, to no longer be a child with a disability or the parent revokes consent for special education. 

What are suggested next steps? 

  • Become familiar with the 5-Step process of CCR IEP development.
    • Review At-a-Glance documents.
    • Train staff in the 5-Step process 
      • Provide opportunities to attend Regional Special Education Network (RSN) CCR IEP trainings offered at each CESA.
      • View DPI Step Webinars.
      • Promote use of the 5-Step process during IEP development
        • Use 5-Step process chart as a visual during IEP team meetings. 
        • Use CCR IEP Discussion Toolin preparation of IEP team meetings.
        • Ensure staff have the skills and supports to implement IEPs. 
        • Ensure IEPs are implemented in regular and special education classrooms, including ensuring that positive behavior interventions are used consistently across staff members.
        • Promote data collection practices to continuously monitor progress towards the IEP goals and in the general curriculum. 
        • Celebrate progress – the small steps and giant leaps, acknowledge the hard work.
        • Conduct timely IEP team meetings to address lack of progress.
          • Avoid strategies that have not worked for the student in the past.
          • If behavioral interventions are not effective in addressing the behavioral needs of the students, reconvene the IEP team to determine whether a functional behavioral assessment may be required, and determine whether additional or different behavioral supports are necessary.
          • Promote positive communication.
            • Include special education staff in general education training, and vice versa. 
            • Include parents in training opportunities 
            • Keep lines of communication open and positive. 
            • Use resources and supports provided through ourWisconsin Special Education Mediation System (WSEMS), including IEP facilitation.
            • Lastly and most importantly, support the “I” in IEP. 
              • Develop IEPs that address the student’s unique disability-related needs. 


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