Legal Implications of Failing to Uphold an IEP: What Educators and Families Should Be Aware Of

The Significance of an IEP

Educational authorities are tasked with evaluating students for special needs and developing the best possible plan to meet the needs of those students. An Individualized Education Program (IEP) is a fundamental part of that process. It is designed to provide children with a disability the tools they need to be successful in the public education system.
An IEP is a comprehensive educational document aimed at meeting the unique educational needs of a child. It is developed when an evaluation teams identifies that a child has a disability that impacts his/her educational participation.
The ultimate purpose of an IEP is to promote the academic progress of the child in relation to his/her peers. In order to do this, the IEP team goes beyond identifying the diagnosis, but develop learning goals that are based on the information we know about that disability. Portions of testing are designed to show how this disability affects the academic progress of the child. The IEP team uses this information to predict the child’s academic growth over the course of a year. This information is then used to develop annual goals for the child . These goals are intended to bring the child’s academic performance up from where he/she is performing now, to where he/she will be performing with appropriate supports and strategies in place.
The IEP team determines the amount and type of supports the child requires to make progress in the classroom. These services range from speech therapy to one-on-one paraeducator support to access to 504 accommodations. The key to effective programming is early implementation. The sooner a child is able to access these supports, the better positioned a child will be to make academic progress and realize their personal potential.
The IEP is a legal document. Once a school has determined that a child is eligible for special education services, the school has a legal responsibility to provide appropriate services and tools that a child requires to be successful. The law mandates that the school "provide a free appropriate public education" (FAPE) to children with disabilities. If the IEP team has identified specialized, individualized instruction, supports, therapies or other accommodations that are needed to provide a FAPE to the child, these services must be in place before the child’s re-evaluation and next IEP team meeting.

Federal Regulations for an IEP

Several federal laws, such as the Individuals with Disabilities Education Act (IDEA), require that students with disabilities have an IEP. Under IDEA, any child between the ages of 3 and 21 is eligible for educational services if they meet IDEAs definition of disability. The Office of Special Education Programs (OSEP) is responsible for enforcing IDEA.

Failure to Adhere to an IEP: Potential Legal Outcomes

When a school district fails to implement an IEP, a child may not be getting the services to which he or she is entitled under the law. And when that happens, parents may have an avenue to correct that by filing a complaint at the state level with the state’s department of education or by filing a complaint under the Individuals with Disabilities Education Act ("IDEA"). These complaints are fairly intense and require a lot of information to be appended to them. In short, doing so will take up a large chunk of your time. Because of this, I recommend that you first directly communicate with the school district and see if a resolution cannot be obtained that way.
If that fails, and there is a clear case that the school district is not implementing a key part of the IEP, you can file a complaint with your state education agency. The Department of Education or Division for Special Education for your state will investigate the complaint and issue a written response within a given period of time (e.g. 60 days from the date of filing). The response will include the fact of whether or not the complaint is upheld and whether or not corrective action will be ordered. That is, the agency will order local education agencies (LEAs, such as school districts) to correct the failure to implement the IEP. This action does not, however, constitute monetary or compensatory damages for students, so it is important to note that this is not a form of legal recourse against the school district.
Another option that you as parents may have when school districts do not implement IEPs is to file a due process complaint. Such a complaint filed under IDEA will result in a resolution meeting. Sometimes these meetings help parents work out a solution with the school district. Other times, however, they will result in a due process hearing, which will be held before an administrative hearing officer. Due process hearings are similar to traditional court hearings, with both sides presenting evidence. A complaint can also be brought in state court based on a violation of state special education laws.

Effects on Students and Families

When an IEP is not followed, the student is the first to suffer. The IEP documents what special education services and support the child is entitled to, and when the school fails to implement all aspects of the IEP, in their time and intensity as required, this can affect a student’s educational progress. When we think about these failures and violations, it is helpful to keep in mind that a parent will not be satisfied with the school "making up" the missed services at a later date. Services you missed last month or last year are not coming back, and are not helping you now. Put another way, services delivered at a later date cannot compensate for services that should have been delivered at an earlier date. The only time when it is possible "make up" IEP services to equal what was supposed to be provided is when the amount of service was later than it should have been. For example, if a school provided one hour of discrete trial instruction (DTI) when the IEP said the child should have three hours of DTI, the school should provide three hours going forward until the one hour of services missed is made up.
The consequences of not following an IEP go beyond academics. A child’s emotional and social well-being can be affected when the IEP is not implemented. Children on IEPs have disabilities that can make them more vulnerable than other students, and when those students go without their special education supports and services, they can suffer. For example, a failure to implement a behavioral plan can result in suspension or even expulsion from school. Even if the IEP includes a behavior plan, implementation is key. Schools must monitor and track behavior, provide behavioral interventions and responses consistently, and collect data to analyze whether the interventions are working. Burn-out can occur for students who repeatedly experience the school failing to implement comprehensive behavioral plans.

Pertinent Cases and Legal Established Laws

Case studies and legal precedents involving IEP non-compliance are important because they can provide insight into how the law is interpreted and enforced when an IEP in not followed. Litigation surrounding the non-implementation of an IEP has occurred in a variety of contexts. The following case studies provide examples of notable cases and rulings that schools must be aware of when developing and implementing IEPs.
In Parents say there is no consequence for failure to implement IEPs (November 1997), the Virginia Supreme Court ruled that the Arlington County School Board must reimburse the parents of a child with autism for costs transported their son to a private school rather than his home public schools. The Court held that the parents were entitled to reimbursement because the child needed extensive therapy and the public schools could not provide it. This case illustrates that when appropriate education and services are not provided, the consequences can result in costly litigation.
In Mark R. Doe v. Taylor Independent School District, 964 F.2d 455 (5th Cir. 1992), the Fifth Circuit Court of Appeals considered an appeal by a deaf child alleging that a violation of his rights under the Education for Handicapped Act (EHA) had occurred when a school failed to provide him with adequate vocational training. The plaintiff’s father filed suit against the school district alleging violations of Section 504 of the Rehabilitation Act of 1973 and the EHA. Mark’s father sought damages against the school district for tuition for Mark’s chosen school and a private expert’s educational support services. The Court held that the plaintiff failed to state a claim under the EHA and stated that the only relief that the plaintiff could seek altogether in court was prospective injunctive relief. Although this case , ultimately, may not have had a favorable outcome for the plaintiff, the fact that the Fifth Circuit made a ruling in this case illustrates the importance of knowing that damages are available through court litigation.
The United States Department of Justice filed a settlement agreement in J.G. and D.Z. v Eatontown Board of Education (2006). Under the settlement agreement, the Eatontown, New Jersey Board of Education agreed to review the IEPs of two children for whom the parents object to the educational placement deems to be inappropriate. The parents feel that the district failed to provide an appropriate IEP for their children and as an alternative they placed their children in a private facility where they paid tuition. The parents then seek reimbursement from the district, as well as compensatory education in the form of individualized tutoring. In this case the parents sought to have their IEPs enforced in a civil suit, but the United States Department of Justice intervened on behalf of the plaintiffs. The United States Department of Justice made the schools agree to reimburse the parents for tuitions, and to review IEPs to provide appropriate educational services.

Means of Compliance

Strategies for Ensuring IEP Compliance
To ensure compliance with IEPs, schools must make the implementation of IEPs a priority at all levels. School administrators need to communicate the importance of the proper implementation of IEPs to teachers and other school staff. This can be accomplished, in part, through staff trainings and inservice workshops. Staff trainings should emphasize the importance of communicating with parents regarding how an IEP is being implemented, respond to parents’ questions or concerns, and notify parents of any changes in the implementation of, or compliance with, an IEP.
The first step for school administrators is to design and, in some cases, revise their protocols for dealing with IEP implementation issues. These protocols should ensure that any hiccups in the implementation of an IEP are corrected as quickly as possible, whether the hiccup is due to a change in the educational program, a failure to implement an IEP provision, or a change in the student’s needs or eligibility for special education services.
Next, all IEP team members must be trained on those protocols. This means that school administrators need to work with the special education director to develop IEP compliance training for all teachers, administrators, case managers, and other staff involved with implementing IEPs. School administrators should then schedule periodic trainings throughout the school year to keep IEP compliance in the forefront of their teachers’ minds. These trainings should also assign specific responsibilities to teachers and other staff members in order to get everyone involved in the IEP compliance process. In addition, each IEP team member should be given at least one person to whom they can report any questions or concerns so that nothing falls through the cracks.
When informing teachers about IEP compliance and implementation, they need to understand that the requirements of the IEP and the protocols that have been developed may be followed strictly. Parents should be informed when an IEP change is contemplated or requested so that steps can be taken to ensure compliance with the IEP and to avoid litigation, mediation, or state complaints.

Helpful Resources and Tools for Parents and Teachers

For parents and advocates looking for more information on IEPs, the National Association of State Directors of Special Education ("NASDSE") is an excellent resource for articles, workshops, webinars and other information. Most information is targeted at administrators, but the resources are available to all.
Two of our favorite NASDSE resources are The Parent’s Guide to Special Education and Understanding the Individuals with Disabilities Education Act (IDEA). The Parent’s Guide is an 8-page fact sheet that provides an overview of rights under IDEA. It is downloadable – a great tool for parents to review quickly to answer basic questions and educate themselves on IDEA .
A Parent’s Guide to Special Education is downloadable in English and Spanish.
Understanding IDEA is a 14-page booklet that is a little more in-depth than the Parent’s Guide. The booklet is also downloadable and in plain language – well worth the read for many parents, particularly when used as a corollary to the Guide.
Understanding the Individuals with Disabilities Education Act (IDEA) – English
Understanding the Individuals with Disabilities Education Act (IDEA) – Spanish
Other resources that may be helpful include:
National Down Syndrome Society
Autism Speaks
Center for Parent Information and Resources
You can also find us on Facebook and Twitter @edlawyer.