Law Office of Justin Shane | Special Education Attorney
New York Special Education Attorney

Special Education News

Updates and thoughts of a special education attorney/lawyer on Special Education Law.

Recent Guidance on Present Levels of Performance and Goals

Plenty of IEPs are heavy on words, but light on substance. This is particularly true of the present levels of performance section of the IEP. The language is often drafted hastily or copied from other documents. The IDEA requires that an IEP set forth a student’s present levels of performance in four areas: (1) academic achievement, functional performance and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs. The present levels of performance section must indicate the student's specific needs in each of these areas. Beyond this, however, how can parents not trained in reviewing IEPs determine whether the present levels of performance section in their student's IEP is adequate?  

I found the United States District Court for the Eastern District of New York’s semi-recent decision in S.B. v. New York City Department of Education, No. 15-CV-1869 (E.D.N.Y. Sept. 28, 2017), helpful in answering this. The decision provides excellent instruction on the relation between the present levels of performance in a student’s IEP and the evaluations and other progress reports that are available to the CSE when it creates the IEP.

The student in S.B. had a speech and language disability and was in second grade for the school year in dispute. The CSE had five separate reports available to it prior to the student’s IEP meeting, but there was little evidence that the CSE considered the reports during the meeting. The present levels of performance section omitted material information from those reports. For instance, the IEP failed to specify several cognitive deficits highlighted in the student’s most recent neuropsychological report. The present levels of performance section also noted that the student demonstrated a good attention span, but the student’s reports noted that she was “fidgety” and “easily distracted.” Similar inconsistencies existed with respect to the student’s social functioning. The goals set forth in the IEP also failed to address these deficits. The court held that these deficiencies and omissions rendered the IEP substantively inadequate and violated the IDEA.  

The lesson from this case is that parents must be vigilant in ensuring that all relevant evaluations are considered by the CSE. Parents should compare the present levels of performance in their student’s IEP with all evaluations and progress reports to ensure all areas of need are covered and goals are included to address those needs. Additionally, parents should enforce their right to have their child evaluated each year to ensure the information in their student’s IEP is accurate and up-to-date.