Education Law & Disability Attorneys in Ohio

Free Appropriate Public Education ("FAPE")

The Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 subject to a few limitations mandate that children with disabilities receive a free appropriate public education ("FAPE"). According to the IDEA, FAPE means "special education and related services that"

1. have been provided at public expense, under public supervision and direction, and without charge;
2. meet the standards of the State educational agency;
3. include an appropriate preschool, elementary, or secondary school education in the State involved; and
4. are provided in conformity with the individualized education program required under [IDEA]. 20 U.S.C. § 1401(8)

Looking at the definition term by term provides more insight into its meaning.

The IDEA defines special education as "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability." 20 U.S.C. § 1401. FAPE includes related services needed by a disabled child to benefit from special education. For instance, a child might receive speech therapy, occupational therapy, physical therapy, counseling services, mobility services, transportation, and limited medical services. 20 U.S.C. § 1401(22).

Free and public have little ambiguity in their meanings. Free means that educational services will be of no extra cost to parents of qualifying children. The IDEA makes clear that children with disabilities are entitled to an education in a public school.

No clear definition of appropriate education exists. Therefore, its definition provides a source of contention for many lawsuits. The Supreme Court attempted to provide guidance stating that an appropriate education is an education "reasonably calculated to enable [a] child to achieve passing marks and advance from grade to grade." Board of Educ. v. Rowley, 458 U.S. 176, 204, 205 (1982) The Court established two questions to use to determine fulfillment of the appropriateness requirement under IDEA. The questions are:

1. Has the educational agency followed IDEA procedures?
2. Is the child's Individualized Education Plan reasonably calculated to allow the child to receive educational benefits?

IDEA procedures require the educational agency to have sought out and identified all students within its jurisdiction who have a disability who qualify for services under the IDEA.  Each identified student must be evaluated in areas of suspected disability and convene an Individualized Education Plan ("IEP") meeting. The educational agency must provide parents a meaningful opportunity to participate in the development of the IEP. The IEP developed describes the place where services are to be provided and what services are to be provided. The educational agency must provide the services in the least restrictive environment. 34 C.F.R. Reg, 300.530-534 Fulfillment with these requires satisfies the procedural requirements of Question 1 above.

In order to satisfy Question 2, IEP designs must reasonably calculate that qualified children will receive educational benefit. However, educational benefit does not mean best education. Timothy W. v. Rochester, 875 F.2d 854 (1st Cir. 1989) While the IDEA does not require the best education, it does require "meaningful" educational benefit. Some states, such as Ohio, have adopted a "more than trivial" standard to assess the meaningfulness of educational benefits. To satisfy the "more than trivial" standard courts have stated that IDEA "requires a plan likely to produce progress, not regression or trivial educational advancement" where trivial relates to the child's potential. Polk v. central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3rd Cir. 1988) For instance, some severely handicapped children may not be able to perform at grade level and the "more than trivial" standard would be satisfied with less progress than children with lesser handicaps capable of performing at grade level with appropriate services.

In summary, in order for an educational agency to satisfy the appropriateness requirement of FAPE the agency must provide a program that:

1. Fulfills IDEA's procedural requirements;
2. Provides individualized placement and services based on evaluations and observations to qualified students; and
3. Based on the child's potential provides an opportunity for meaningful educational progress.

However, even with the court guidance described above, the definition remains ambiguous. The ambiguousness of the term demonstrates the need for parental advocacy on behalf of children. Do remember that appropriate does not mean best and know that neither Section 504 nor IDEA requires the best education.

FAPE is important in the education of children, particular those with disabilities. When public agencies provide children with disabilities with FAPE, it means that they provide them with an education that is appropriate for that particular student based on his/her needs as a unique individual. What is appropriate for one student is not necessarily appropriate for another. Under FAPE, each student's accommodations need to be considered in the student's Section 504 plan or IEP. Therefore, since parents know their children best, they are uniquely qualified to advocate for their children.