Implement, Implement, Implement

Under the IDEA and New York State Education Law, students classified as students with disabilities must be provided with a free appropriate public education (FAPE) in the least restrictive environment (LRE). To do this, a District committee on special education (CSE) determines if the student qualifies to be identified as a student with a disability in one of the 13 enumerated categories; if so, the CSE creates an individualized education plan (IEP), specifying the special education and related supports and services to be provided the student, based upon the student’s unique needs and abilities. Once an IEP is created, it is as binding on the District as any other legal mandate. The CSE has created the IEP; it is up to the District’s administration to ensure its implementation. In fact, failure to implement any material aspect of an IEP is generally prima facie evidence of a failure by the school district to provide a FAPE.

As stated above, there are three steps here: 1) identify the student as a student with a disability under the IDEA and New York law; 2) develop the IEP for the student; and 3) implement the IEP. The first two steps, with their own legal requirements and landmines, are typically marshalled by the CSE chairperson. The third step, however, is arguably the most important. It is up to each District employee working with the student, overseen by the building level administrators, to ensure that the special education services, supplementary supports, and modifications prescribed in the IEP are fully implemented. The New York regulations require that all staff working with the student be specifically apprised of their role in implementing the IEP. Every District should have a plan to make sure, and to document, that the required access to the IEP and information about the IEP has been given, as well as that each staff member understands his or her individual role in implementing the IEP.

Since IEPs are legal documents and must be implemented as written, any prescribed curriculum modifications must be provided. If the IEP prescribes testing accommodations, those accommodations must be offered and provided to the student. If the student has an aide or teaching assistant, it is a supplementary service which must be implemented. If any provider believes that the special education or supports required by the IEP are no longer needed, or should be increased, the IDEA requires that the change be made according to its procedures, and not unilaterally by any teacher or service provider. No teacher, provider, administrator, or other employee may unilaterally decide to stop providing a certain accommodation, modification or service on their own without a meeting – doing so is a failure to implement the student’s IEP.

Parents who feel that the student’s IEP is not being implemented fully may bring complaints against the District. Parents may file a due process complaint seeking compensatory services for the failure to implement an IEP. They may file a complaint with the New York State Education Department, Special Education Quality Assurance office. Parents also may file a complaint with the U.S. Department of Education Office for Civil Rights. In each case, the District will have to defend the claims in the complaint and, if the District has failed to implement the student’s IEP, a finding against the District will be levied and appropriate corrective action mandated

It is imperative that administrators, teachers, aides, assistants, and all other employees understand the importance of implementing IEPs as they are written and not modifying or making changes without meetings. Employees implementing IEPs should also keep records of the services, accommodations and modifications provided per the student’s IEP. We cannot prevent a parent, or anyone, from bringing a claim or filing a suit against the District, but we can try to be sure Districts are prepared to defend any such claims. If you have any questions about implementing IEPs or would like professional development related to implementing IEPs, please give us a call.