What is FAPE? Free appropriate public education, explained

Someone at the meeting says "FAPE," everyone nods, and the conversation moves on. You nod too. Then you go home wondering what it actually means and whether your child is getting it.

That's a fair question. It's a big one, too. Evaluations, eligibility, IEP goals, services and placement all exist so that your child receives FAPE. When parents and caregivers disagree with a school, it's almost always about whether the school offered it.

What is FAPE under IDEA?

The Individuals with Disabilities Education Act (IDEA) defines free appropriate public education in four parts (34 CFR 300.17). FAPE is special education and related services that:

• are provided at public expense, under public supervision and direction, and without charge;
• meet the standards of the state education agency;
• include an appropriate preschool, elementary school or secondary school education in the state;
• are provided in conformity with an IEP that meets federal requirements.

"Free" means you don't pay for the special education and related services in the IEP. "Public" means the school system provides them, or arranges and pays for them.

The last part matters most for you. It ties FAPE to the IEP. Two things decide whether your child is getting FAPE: the quality of the IEP, and whether the school actually follows it.

The obligation generally runs from age 3 through 21 (34 CFR 300.101). State law creates some exceptions for the youngest and oldest years. It continues for children who have been suspended or expelled. It ends when a student graduates with a regular high school diploma.

What "appropriate" means: the Endrew F. standard

"Appropriate" is the word that causes the most disagreement. Start with 1982. In Board of Education v. Rowley, the Supreme Court said IDEA requires an IEP reasonably calculated to enable the child to receive educational benefits. For a child in a regular classroom, that would typically mean an IEP reasonably calculated to help the child achieve passing marks and advance from grade to grade. It did not require schools to maximize a child's potential.

Years later, the appeals court that heard Endrew's case read Rowley to require a benefit only "merely more than de minimis." In other words, barely anything. In 2017, a unanimous Supreme Court rejected that reading in Endrew F. v. Douglas County School District RE-1.

The Court held that "to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." It added that a child's "educational program must be appropriately ambitious in light of his circumstances." It said "every child should have the chance to meet challenging objectives." And it called the standard "markedly more demanding than the 'merely more than de minimis' test" the lower court had used.

So what does that mean for you at the next meeting? A few things.

• The Court called an IEP a prospective judgment by school officials. It's informed by their expertise and by your input. The question is whether the plan is reasonable. A plan can be appropriate even if it doesn't work out perfectly.
• Progress is measured against your child's own circumstances. There's no single bar every child has to clear.
• The Court said a school should be able to give "a cogent and responsive explanation" for its decisions. So it's fair to ask. How are these goals and services expected to lead to real progress for your child?

FAPE under Section 504

Section 504 of the Rehabilitation Act has its own FAPE requirement in 34 CFR 104.33. A public school district must provide a free appropriate public education to each qualified student with a disability in its jurisdiction. The nature or severity of the disability doesn't change that.

The 504 definition of "appropriate" is worded differently from IDEA's. It means regular or special education and related aids and services designed to meet your child's individual educational needs. They have to meet those needs as adequately as the needs of students without disabilities are met. It also has to follow the evaluation, placement and procedural rules in the 504 regulations.

The regulation says that carrying out an IEP developed under IDEA is one way to meet this standard. Does your child have a 504 plan? The comparison of IEP vs. 504 plans shows how the two laws differ in practice.

Signs your child may not be receiving FAPE

Only a hearing officer, a state complaint investigator or a court can formally decide that a child was denied FAPE. You don't need that decision to raise a concern, though. These patterns are worth bringing to the team:

• Progress reports show little or no movement on IEP goals over several reporting periods, and the IEP hasn't been revised.
• Services written in the IEP aren't being delivered, or missed sessions aren't made up.
• Goals are copied from year to year with the same baseline.
• Your child's needs have changed (a new diagnosis, new behaviors, a big drop in grades) and the school hasn't evaluated or met to discuss it.
• Your child is often sent home, suspended or removed from class because of behavior related to the disability.
• The school has refused a request for an evaluation, a service or a placement without explaining why in writing.
• Present levels are vague, so it's hard to tell where your child started or whether the goals fit.

Seeing one of these on the list can be a hard thing to sit with. None of them proves a denial of FAPE on its own, though. Each one is a good reason to ask questions. Look at the data. Get the team back together. The guide to present levels (PLAAFP) can help you check whether the IEP starts from an accurate picture of your child.

What you can do about a FAPE concern

Most FAPE problems get solved at the IEP table. Start there. You don't need a legal argument. You need your concern in writing and the data in front of you.

1. Write down what worries you, in a sentence or two.
2. Email the school to ask for an IEP meeting.
3. Ask for the data behind your child's progress reports before that meeting.
4. If the school proposes or refuses something, ask for prior written notice so you have its decision and reasoning in writing.

Disagree with the school's evaluation? You can request an independent educational evaluation, called an IEE, at public expense (34 CFR 300.502).

If talking it through doesn't fix the problem, IDEA gives you formal options. The guide to procedural safeguards explains each one:

• Mediation, a voluntary meeting with a neutral mediator provided by the state at no cost to you.
• A state complaint to your state education agency. When the state finds a failure to provide appropriate services, it must address that failure. Corrective action can include compensatory services or monetary reimbursement (34 CFR 300.151).
• A due process complaint, which leads to a hearing before an impartial hearing officer.

For a 504 plan, you can use the district's 504 procedures. They must include an impartial hearing. You can also file a complaint with the U.S. Department of Education's Office for Civil Rights.

Every state also has at least one federally funded Parent Training and Information Center. It helps families for free. The Center for Parent Information and Resources keeps a directory of parent centers.

I'm an advocate, not an attorney. I can help you organize records, prepare for meetings and put your concerns in writing. I don't give legal advice, though. Thinking about due process or a claim for compensatory services? Talk with a special education attorney. The page on advocates vs. attorneys explains the difference.

You don't have to figure this out alone.