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5 Things to Know About “Effective Progress” Under Massachusetts Special Education Law

One of the questions I am asked most frequently by parents who have children with special needs is what does the term “effective progress” actually mean?  Often a parent will ask me this question because they are concerned that their child is not doing well at school despite having an IEP, and yet the school district is insistent that the student is making “effective progress” and is therefore unwilling to amend the child’s IEP to add services. To answer the question of what the term “effective progress” means, it is useful to first review how “effective progress” is technically defined under Massachusetts’ law:

“Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”

This definition is helpful, but not exactly clear. The good news is that BSEA and federal court decisions have provided some additional guidance about what “effective progress” means, including the following:

1. Effective progress does not mean maximum progress. It is critical that parents are aware that school districts are not legally required to ensure that students with IEPs achieve the maximum amount of progress possible.   As the federal court has explained, the “IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.” Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F. 3d 80, 83 (1st Cir. 2004). This means that there is often going to be a discrepancy between what a parent wants for their child (i.e., the best possible program and maximum progress), and what school district legally has to provide (i.e., an adequate program with some amount of progress).

2. Effective progress must be “meaningful”. School districts do have to make sure that a student is receiving a “meaningful” benefit from their educational program.  The Supreme Court has also stated that a “merely trivial benefit” is not enough to be legally adequate.  Bd. of Educ. of the Hendrick Hudson C entral School District v. Rowley, 458 US 176, 201 (1982).  In other words, while a district does not have to ensure that a student achieves an optimal amount of progress, it does need to make sure that the student is making meaningful gains under each IEP.  One way to assess whether a student’s gains are meaningful is to determine whether the student is making progress that is commensurate with their cognitive abilities.

3. Effective progress is based upon each child’s individual learning profile.  This is one of the reasons why effective progress is so hard to define – the standard will vary for each student based upon an assessment of each student’s unique needs. “Whether an educational benefit is meaningful must be determined in the context of a student’s potential to learn.”  Lessard v. Wilton Lyndeborough Coop. School District, 518 F3d 18, 29 (1st Cir. 2008).

For example, Student A has average to above average cognitive abilities and has been diagnosed with a specific learning disability.  Since Student A has average cognitive potential, it would be reasonable to expect that she would be able to read, write and perform math around her grade level with appropriate instruction.  So effective progress in this case might be measured by assessing whether Student A is achieving meaningful gains toward grade level academic achievement.

However, Student B presents with low average cognitive abilities and developmental delays. In this case, Student B’s version of effective progress is going be different than Student A’s. Effective progress for Student B is going to be progress that is commensurate with his cognitive ability – which may mean a slower rate of progress than what the Team would expect for Student A, and may include consideration of Student B’s non-academic needs.

4. Effective progress encompasses non-academic needs.  This issue has been litigated several times, and I think it is fair to say at this point that the BSEA and the federal courts are in agreement that school districts have to make sure that special education students are making progress not just academically – but socially, emotionally, behaviorally and physically as well.  For example, in a recent ruling, the BSEA found that a school district was required to provide an IEP to a student who was meeting academic expectations yet was not making adequate progress developing appropriate social skills.  See In re Belmont Public Schools, BSEA No. 1305177. In other words, school districts cannot refuse to address a student’s non-academic needs just because the student is passing their classes and/or the MCAS.

For students on the autism spectrum in Massachusetts, the Team also has to review 8 specific non-academic areas of potential need when developing an IEP – for more on this topic see my prior post here.

5. Effective progress must be “documented”. When assessing a child’s progress, it is important for the Team to consider a variety of sources of information.  Academic grades alone, for example, are not an adequate basis for determining that a child is making progress (or for finding a child ineligible for an IEP). Similarly, parents should be wary if the only evidence of progress offered by a Team is based on subjective feedback that a student “appears” to be making progress. Objective data and assessments are an excellent way to capture a student’s performance over time, and can help to document whether or not a student is making meaningful and effective progress. 

Consideration of effective progress also reveals why the evaluation process is so important.  It is very difficult to know whether an IEP is appropriate if the Team does not have a complete understanding of the student’s learning needs. Similarly, a parent may have trouble confirming that their child is making effective progress if objective data has not been collected to assess achievement levels and progress over time.

(Originally posted by Michelle Moor – February 13, 2014)