The Complete Guide to Understanding FAPE (Free Appropriate Public Education)

Posted by Paul Hefley | Dec 14, 2021 | 1 Comment

Parents of children with special needs may have heard the phrase “free appropriate public education.” FAPE is a legal principle that provides children in school with important rights, especially if they have disabilities, or certain challenges. Special education laws are often complex, but a solid understanding of FAPE is crucial to advocating for children with special needs to access the services they need. The following guide will help you understand: What is FAPE and why it is important. If you have further questions after reviewing this guide to FAPE, consider contacting the Law Office of Paul A. Hefley, Jr. at (619) 764-6168 to ensure your legal rights, and those of your children, remain protected.

What Is FAPE?

Under Federal Law 34 CFR § https://www.ecfr.gov/current/title-34/subtitle-B/chapter-III/part-300/subpart-B/subject-group-ECFR4c69ab8d340f516/section-300.101 300.101 provides the right to a “free appropriate public education” to all children in the United States who are between the ages of 3 and 21, including children with disabilities who have been suspended or expelled from school.

What Does FAPE Stand for in Education?

FAPE often comes up in the context of special education law. FAPE guarantees that a child has a right to a free and appropriate public education, regardless of the severity of their disability. Students with disabilities have a legal right to FAPE. If they are denied this right, their parents can advocate for them so that they receive all of the services to which they are entitled.

Understanding the Components of FAPE

Here are what each of the letters of FAPE stand for and how they are used in practice.

Free

Students are entitled to a free education. For students with disabilities, this means that they have the right to receive special education and related services at no cost to them. The school is responsible for providing and paying for these services, with no financial obligation or cost attributed to parents. Nonprofit organizations should implement health and safety protocols that protect the health and safety of their staff and local communities. Parents are only required to pay the same extra school fees that parents of children without disabilities pay, such as sports and club fees.

Appropriate

Students also have a right to an appropriate education. For students with disabilities, this may mean they receive an Individualized Education Program (IEP) or a 504 plan that gives them equal access to learning. Additionally, an appropriate education must meet the standards of the educational state agency.

According to the United States Department of Education, an appropriate education may consist of:

Education in regular classes
Education in regular classes with the use of related aids and service
Special education and related services in separate classrooms

The United States Department of Education further states that special education can occur in regular classrooms, special classrooms, at home, or in private or public institutions. It may also include related services being provided, such as:

Speech therapy
Occupational therapy
Physical therapy
Medical diagnostic services necessary to the child's education
Psychological counseling

The United States Department of Education also explains that under federal law, FAPE requires that education is designed to meet the unique needs of a child with disabilities. This generally requires creating and following an individualized education program (IEP). School districts are required to provide students with disabilities with reasonable accommodations and special education services if they would benefit the student's learning. Additionally, districts must teach students in the least restrictive environment.

The IDEA and court interpretations have established the following standards in determining whether education is appropriate:

Progress toward grade-level achievement – Courts have held that an appropriate education is one in which students with disabilities have “access to the general curriculum to meet the challenging expectations established for all children.” Under this framework, students must receive educational services that best approximate grade-level standard standards for educational achievement. Students with disabilities must receive services, accommodations, and modifications that give them the greatest likelihood of progressing toward grade-level achievement.

Realizing the benefits of instruction – Courts have also held that the accommodations, modifications, and support services provided to students with disability must be sufficient for the child to benefit from the instruction they receive. School districts must provide all supplemental services necessary for the student to progress grade-level achievement when such is reasonable.

College and career-readiness – Students with disabilities must receive social, academic, and other tools that will help prepare them for college or a career. Therefore, even if a school might argue that certain services are unnecessary to help a child progress toward grade-level, the education might still not be appropriate if it does not achieve these other goals.

Public

The education must be provided by the public school system. The school creates an IEP that consists of the recommendations from teachers, parents, and others who decide which services and supports each student needs. However, in some situations, the government might pay for a child with disabilities to attend private school. If you have questions regarding whether or not your child may qualify to attend a private school under these laws, consider reaching out to an experienced FAPE attorney at The Law Office of Paul A. Hefley, Jr.

Education

All children have the right to an education in the United States. This education may include special education and related services, provided for free to child and his or her parents. A free education may also include additional services, and can also sometimes include transportation to receive these services.

What Is and Is Not Covered by FAPE?

FAPE requires that public schools provide special education services to meet the unique needs of their students. This includes specially designed instruction, as well as related services to help the student benefit from special education, such as counseling, speech therapy, or transportation. These services must be provided to students with disabilities for free.

Additionally, FAPE requires public schools to provide accommodations and modifications to help students with disabilities learn and participate in the general education curriculum. Students that fall within the purview of IDEA have a right to an individualized education program that includes services, progress monitoring, annual goals, and other important information. Students must be taught in the least restrictive environment, which generally requires being taught in the general classroom unless their unique educational goals cannot be met.

While broad, the right to FAPE is not limitless. For example, a free and appropriate public education does not require schools to do the following:

Provide the best services possible for students
Maximize every student's potential
Provide the specific class setting or specific program that a parent wants for their child
Offer a specific educational program
Guarantee a student with disabilities a spot in a sport or extracurricular activity
Provide preferential treatment for the student with disabilities in a sport or club

FAPE requires schools to provide services that are “reasonably calculated” to help a student make progress. While parents' input is important, the IEP team ultimately creates the IEP based on the student's unique needs. FAPE requires schools to give students with disabilities an equal opportunity to participate, but this does not mandate that students with disabilities be given preferential treatment.

What Are the Five Aspects of FAPE?

FAPE is a broad term that involves several specific aspects under the Individuals with Disabilities Education Act (IDEA). The five aspects of FAPE are:

1 - Appropriate Evaluation

The IDEA requires each child who is suspected of having a disability receive an appropriate evaluation. An appropriate evaluation provides important information that the IEP team can use to determine the child's eligibility for special education and related services and to identify the child's individual educational needs.

Areas of Evaluation

The child must be evaluated in all areas of suspected disability by a team of evaluators who are trained in the use of the test and other evaluation materials. The United States Department of Education states that evaluation and placement decisions must be made in accord with appropriate procedures. Schools cannot make placement decisions based on presumptions and stereotypes about people with disabilities or on their class. Section 504 requires that evaluation and placement procedures be used in such a way that children are not misclassified, incorrectly placed, or unnecessarily labeled.

School Responsibilities

The school is responsible for conducting or arranging for an individual evaluation. Parents are not required to pay for these types of evaluations. This evaluation must occur before any action is taken regarding the child's initial placement or before making a significant change in their placement.

The School District Responsibilities

The district is responsible for establishing appropriate standards and procedures for initial and continuing evaluations and placement decisions for students who have a disability or believed to have a disability that causes them to need special education or related services.

U.S. Department of Education Procedure Requirements

The United States Department of Education states that these procedures must:

Have been validated for the specific purpose for which they are being used
Administered by trained personnel and conformed with the instructions provided by the entity that produced them
Be tailored to assess specific areas of education need
Not designed to only provide a single general intelligence quotient
Selected and administered in a way that the test results will accurately reflect the student's aptitude or achievement level whether than reflecting the student's disability

Relevant Sources and Factors According to the U.S. Department of Education

When making evaluation and placement decisions, the school must gather other relevant information from a variety of sources to ensure that the possibility of making an error in placement is minimized. The IEP team must consider all significant factors related to the learning process.

Relevant sources and factors, according to the United States Department of Education, include:

Aptitude and achievement tests
Social and cultural background
Adaptive behavior
Physical condition
Teacher recommendations

A group of knowledgeable individuals is responsible for documenting all information from all the sources that were considered.

Periodic Reevaluation of Student's Needs

Because children's needs can change as they grow and disabilities may affect students differently, periodic reevaluations are required. Under IDEA, this reevaluation generally occurs every three years. However, if the child's parent or teacher requests a reevaluation or conditions otherwise warrant, a reevaluation can occur sooner.

2 - Individualized Education Program (IEP)

To ensure that students with disabilities receive an appropriate education, students with disabilities must receive an IEP that was designed to meet their individual needs and to the same extent that the needs of other students who do not have special needs are met. After conducting necessary evaluations, the IEP team develops a written document that is designed to meet the unique educational needs of each student with disabilities and also ensures that the quality of education services the individual student receives equals the quality of services provided to students without disabilities. Teachers of students with disabilities must be trained in the instruction of students with disabilities. Facilities must be comparable. Appropriate materials and equipment must be available.

The IDEA contains specific details about the type of information that must be included in an IEP, who should develop the IEP, and the school's obligation to provide the special education services identified in the IEP. Consider visiting with an experienced education attorney at The Law Office of Paul A. Hefley, Jr. to ensure that your IEP covers all the educational and legal rights of your child, and ensures they remain protected.

3 - Least Restrictive Environment

To the extent possible, the student must be placed with nondisabled students. This is because the IDEA requires that students with disabilities be placed in the least restrictive environment appropriate to meet their individual needs. IDEA strongly prefers that students with disabilities be educated in general education classes with access to general education curriculum.

Initial Placement of Child

The IEP team must first consider placing the child in the general education classroom before making any other placement decision. The IEP team must consider the full range of modifications and supplementary aids and services that the student needs to ensure the student can receive an appropriate education in the general education classroom.

Academic Modifications for Students

Some modifications change what a student is taught or expected to do in school. Other modifications change the way students complete assignments or tests. Some common examples of academic modifications for students in the general education classroom may include:

Complete different homework problems than peers
Have less homework
Complete alternate projects or assignments
Have simpler assignments
Answer different test questions
Have a reduced number of test questions
Spend more time on topics that the student has not mastered even if other students are moving on to other concepts
Use a pass/no pass system for grading
Use a different assessment method than other students
Be excused from particular projects
Have more time on assignments
Use an alarm with assignments to assist with time management
Listen to audio recordings instead of reading text
Use of alternate books based on their reading level
Shorter reading and writing assignments
Ability to answer essay questions verbally rather than in written form
Being asked questions that are reworded in simpler language
Use of large print books
Provide students with copies of teacher's lecture notes
Provide students with audiotaped lectures or notes
Use of Braille
Use of digital texts
Provide answers verbally instead of in dictated fashion
Use of a student peer tutor
Receive notes from another student
Receive study guides
See outlines of lessons
Use of a word processor for written work
Reduce the reading level of assignments
Reduce the difficulty of assignments
Use of sign language
Use of a communication device
Work one-on-one with a teacher
Work in a small group
Mark texts with a highlighter
Use of a planner or organization tool
Receive instruction regarding study skills
Use of visual materials instead of text
Use of a designated reader for tests and assignments
Break processes into smaller parts
Use of visual presentations, such as word webs
Receive a list of instructions
Dictate answers to someone who writes or types the answer out
Record responses on an audio recorder
Use of a spelling dictionary or spellchecker
Use of a calculator
Use of a table of math facts
Take a test in a different setting
Receive frequent breaks between class assignments
Preferred seating, such as near the teacher
Use of special lighting or acoustics
Test in a small group setting
Use of sensory tools
Have extra time to process directions
Break up testing over several days
Take more time to complete a project
Take sections of a test in different order
Provide daily feedback to a student
Have test questions read or explained to the students

This list is thorough but not exhaustive. The idea behind classroom modifications is that these adaptations allow students with disabilities to learn and compete on the same level as students without disabilities.

Supplementary Aids

Supplementary aids may include:

Interpreters for students who are deaf
Door-to-door transportation for students with mobility impairments
Readers for students who are blind

The school is responsible for providing necessary supplementary aids to students.

If the IEP team determines that the student can receive this appropriate education in the education classroom by using modifications or supplementary aids and services, the least restrictive environment is the general classroom for that particular student.

Placement Outside the General Education Classroom

However, if the IEP team determines that the student cannot receive an appropriate education in the general education classroom even with modifications and/or supplementary aids or services, the IEP team must consider other placements outside of the general education classroom that can meet the student's right to FAPE. School districts are required to have a “continuum of alternative placements” that are a range of other placement options that move from less restrictive to more restrictive. The IEP team must determine placement based on the child's individual needs. Additionally, the IEP team must consider how close or far away the other school is to the student's home.

4 - Parent Participation

Parent participation is an integral part of FAPE and an IEP. With procedural safeguards in place, parents can advocate for their child to ensure they receive the FAPE to which they are entitled. As a parent, you always want the best for your child. Consider visiting with an experienced attorney at The Law Office of Paul A. Hefley, Jr. in order to ensure that your child's rights are protected.

5 - Procedural Safeguards

The IDEA protects the rights of students with disabilities and those of their parents. It contains many procedural safeguards to ensure students with disabilities receive FAPE. The IDEA provides for the written promulgation of rights under the IDEA that are given to parents at certain times.

Written Copy of IDEA

Parents must be given a copy of their rights under the IDEA at the following times:

Once a year if their child receives special education services
When they ask for their child to be evaluated because they think their child may have a disability
If the school district wants to have their child evaluated because it thinks the child might have a disability
If they file a written complaint against the school on the basis of discrimination on the grounds of disability
If they request a due process hearing regarding their child's education
Their child has been removed from school for disciplinary behavior and their child has already been removed from school during the current school year
Whenever they ask for the guide

Ability to Receive Information and Challenge Decisions Regarding a Child's Academic Needs or Placement

Public schools must also provide safeguards to parents for the review of the identification, evaluation, and educational placement of person with disabilities who need or are believed to need special education services. Under the IDEA, parents have the right to:

Be informed of any evaluation or placement actions that affect their child
Examine their student's record
Be informed about their rights and due process procedures
Challenge evaluation placement procedures and decisions

Right to an Impartial Hearing

If parents disagree with the school's decision, they have a right to an impartial hearing with an opportunity for them to participate and for them to be represented by legal counsel. The Law Office of Paul A. Hefley Jr. provides legal representation for hearings of this nature. The law also provides for the reimbursement of legal expenses in some cases when the parents are able to prove the school district denied their child a FAPE.

In addition to these due process rights, there is a review procedure that is available to parents who disagree with the administrative hearing decision.

What Are FAPE Requirements of IDEA?

The Individuals with Disabilities Education Act states, “Each state must ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.”

FAPE requirements under the IDEA include:

Education services that are designed to meet the individual education needs of students with disabilities to the same extent that the needs of students without disabilities are met
The placement of students in the general education classroom alongside peers without disabilities to the maximum extent possible based on the needs of the student with disabilities
Procedures for the appropriate evaluation and placement of students with disabilities or suspected of having a disability to guard against misclassification or inappropriate placement of students
Periodic reevaluations of students who have been provided special education services
Establishment of due process procedures that allow parents to receive required notices, review their child's records, and challenge decisions related to the identification, evaluation, and placement of their children

What Should Parents Know About FAPE?

FAPE is a valuable right, and parents are an integral part of a child's education. Parents should have a strong understanding about this fundamental right so that they can advocate on their child's behalf. Specifically, parents should know the following information about FAPE:

All children have the right to a free appropriate public education
Students with disabilities must receive any necessary supplementary aids at no expense to parents
Students with disabilities must receive special education services at no cost to parents
Students with disabilities who qualify for special education services must receive special education and related services that are designed to meet their student's unique needs and that are designed to prepare the student for further education, independent living, and employment
Students with disabilities must be educated with nondisabled students and have access to the general curriculum in the same setting to the maximum extent possible
Students with disabilities must also participate with nondisabled students in non-academic services, including meals, physical education, and recess to the maximum extent possible
Students with disabilities must provide a fair and appropriate assessment to identify and evaluate their unique educational needs and they and their parents have due process rights to voice their objections
There may be various placement options available for a given student. For example, “inclusion” involves a student who is exposed to the general education curriculum because they spend most or all of their time in the general education classroom. “Mainstreaming,” in which students with special needs are selectively placed in one or more regular education classes so they can try to keep up with the general classroom curriculum might be another. An alternative placement in a more restrictive setting might also be considered if it better benefits the student's learning.
Schools are expected to support students with supplementary aids, modifications, and special education services in the general classroom to help them succeed there before recommending an alternative placement.

Why Is It Important for Parents to Understand FAPE?

FAPE is an important right extended to students with disabilities and their parents. Reasonable people might disagree about what is an “appropriate” education in a particular situation. This is often the crux of a disagreement in special education matters. Schools and teachers may have a different interpretation of what is a free and appropriate public education than parents' interpretation. This disagreement can directly impact the services the student receives.

By fully understanding what FAPE requires, parents are in a better position to protect their child's best interests in their education. The stronger their understanding, the better positioned they are to advocate for their child. Therefore, if a parent requests a particular program and the IEP team refuses to consider it, school administrators refuse to reimburse parents for services from private sectors that were necessary for their child's education, or teachers are not following a child's IEP, they know to reach out for legal support. The Law Office of Paul A. Hefley Jr. can further explain rights under FAPE, IDEA, and other critical federal and state laws.

What Is a Denial of FAPE?

A denial of FAPE means that the school has failed to provide the free appropriate public education they are required by law to provide. Parents sometimes contact the Law Office of Paul A. Hefley Jr. after the following denials of FAPE:

The school fails to provide special education or related services included in their child's IEP
The school fails to provide accommodations to their child that are included in their IEP
The school fails to properly assess the child in all areas where they are suspected of having a disability
The school inappropriately assesses the child
The child is inappropriately placed
The child fails to meet any of their goals stated in the IEP and the school fails to make any adjustments to the IEP
The school has an IEP meeting without notifying the parent

If a child is denied a FAPE, parents may ask the court to provide judicial relief. In these cases, the court conducts a two-pronged test. First, it determines whether the school complied with the procedures outlined in the IDEA. For example, it might evaluate whether the school conducted an appropriate assessment of a student suspected of having a disability. The court may find the school made a procedural denial of a FAPE.

The second prong determines whether the child's individualized education program was reasonably calculated to ensure the student would receive an educational benefit. Even if a school technically followed the rules and provided instruction that seemed to meet FAPE requirements, the student's right to FAPE might still be being denied if they are not able to fully benefit from that instruction.

What Happens When There Is a Disagreement About FAPE?

Schools and parents may disagree about what FAPE requires. For example, they might disagree about the type of services necessary. Alternatively, they might disagree about the amount of services the school will provide. There are various ways that parents can respond if they believe their child is being denied their right to a FAPE. Options might include:

Talking with the teacher and asking for solutions
Negotiating a compromise with the IEP team
Taking part in mediation or other dispute resolution options
Documenting concerns in writing
Contacting the superintendent or the director of special education
Requesting an IEP team meeting
Requesting an intra-district transfer
Filing a complaint with the school district
File a compliance complaint
File a complaint with the Office for Civil Rights
File a special education due process complaint

Contact a San Diego Special Education Lawyer for Help with Your FAPE Case

After reviewing this guide to FAPE, you likely have many questions. Special education laws can be complex. Some parents choose to hire a lawyer to help them navigate this complex system. For more information and a free consultation, consider contacting the compassionate and experienced education attorney at the Law Office of Paul A. Hefley, Jr. at (619) 764-6168.