What Happens If a School is Out of Compliance with an IEP?

What Is an Individualized Education Program (IEP)?

How Is an IEP Defined Under IDEA?

An Individualized Education Program (IEP) is a special education program that aims to meet the needs of a singular student who has learning disabilities. IEPs are mandated by the Individuals with Disabilities Education Act (IDEA); they’re customizable and are built with specific objectives and supports for the student for whom the IEP is written.

What Is the Core Purpose of an IEP?

The purpose of an IEP is to effectively be a blueprint for how a child with learning disabilities should be educated. It is a detailed plan to provide structured support, with clear goals, a timeline for the completion/achievement of these goals, along with a breakdown of services, accommodations and modifications that the student requires. An IEP is meant to support students with their academic as well as their functional development.

More importantly, an IEP is a legal document through which the IDEA law ensures that children with special learning needs and eligible disabilities are able to receive free appropriate public education (FAPE).

What Are the Key Components of an IEP?

An IEP is a detailed document that is meant to include a number of key pieces of information about a student’s overall prowess/functional capacity, as well as what their goals will be, what supports/accommodations they require, etc. It is required to be collaboratively developed by a student’s school district staff (i.e. teachers, relevant administrative and services personnel), parent/guardian, and in some cases, even the students themselves.

Specifically, an IEP includes:

• The target student’s academic and functional performance, describing how the student is currently doing in school;

• Measurable goals (short- and long-term) set by the student’s IEP team; these are goals that the IEP team thinks the student can achieve within a reasonable timeframe;

• How progress towards the set goals will be monitored by school staff;

• Special education and other related services that the student might need, including any potential changes to the program to accommodate those needs;

• Supplementary aids and services, like communication devices or speech therapists, as well as support for school personnel supporting the student;

• The extent of separation from non-disabled students that the child must have, including participation in any extracurricular/non-academic activities;

• Whether the student should partake in any state or district-wide assessments, and if so, how (i.e. how might the tests be modified to accommodate the student’s needs);

• Details regarding what services are needed, when they will need to commence and how long they will last.

Who Makes Up the IEP Team?

Every IEP is required to be developed, deliberated on and then written collaboratively by a multi-disciplinary team that includes parents, teachers, school staff and mental health professionals; specifically:

• At least one general/regular education teacher and at least one special education teacher

• Related service providers (speech-learning pathologists, occupational therapists, psychologists, etc.)

• A representative of the school district who has the power to make decisions

• A qualified person who can interpret what the child’s evaluation results mean

Why Is IEP Compliance Important?

Complying with an IEP is essential for a number of reasons. Student with learning disabilities that affect their ability to receive an education cannot achieve their full potential without an IEP, as an IEP directly impacts these students’ growth and development. IEP non-compliance can, therefore, lead to students falling behind academically, socially, or emotionally.

Crucially, though, an IEP is a legal document; it is a plan of support that is legally mandated for students who need it. As such, compliance with an IEP ensures that children with special learning needs and eligible disabilities are able to receive free appropriate public education (FAPE), through appropriate support and services in the least restrictive environment (LRE) possible.

What Does IEP Non-Compliance Mean in Practice?

How Does IEP Non-Compliance Occur?

Non-compliance with an IEP can occur when:

• Promised services are delayed, reduced, or not delivered
• Accommodations are overlooked
• Implementation does not match the written IEP
• The school fails to provide what the plan requires

What Factors Contribute to IEP Non-Compliance?

Staffing Issues

When a school does not have enough staff to provide all the necessary services and accommodations needed for every IEP, there can be delays in the provision of all these supports; worse yet, insufficient staffing might even necessitate reduced/missed services for IEP students at the school. Staff shortages can also impact assessments and evaluations

Even for services that are offered, staff shortages can impact service quality due to interreferences in one-on-one student support. The latter would constitute a major non-compliance issue, as IEPs are meant to be highly individualized. Thus, if any services, or even the writing of an IEP, does not receive individual attention, a core tenet (which is also a legal requirement) for an IEP is undermined.

An example of a situation in which a shortage of staff leads to a compliance issue: A school district faces a shortage of special education teachers due to budget constraints, leading to delays in providing one-on-one support to students with IEPs, like individualized tutoring sessions.

Failure in the Provision of Therapies or Services

The development of an IEP is a rigorous and time-consuming process that involves a lot of people. It takes a lot of meticulous deliberating and fine-tuning to determine what supports a student should be provided: what services they need, what sort of accommodations, which modifications, etc.

If after going through this process, the supports that the IEP team has finalized are not provided or are delayed, a student’s overall development and progress can be severely impacted; this, in turn, can nullify the entire purpose of their IEP.

An example of a situation in which a school fails to provide therapies or services that are part of a student’s IEP: A student’s IEP includes occupational therapy sessions twice a week to improve his fine motor skills. However, due to scheduling conflicts, the school fails to provide these sessions consistently, affecting the student’s ability to develop essential skills for everyday activities.

Incomplete IEP Implementation

Another way that IEP non-compliance can manifest is if all aspects of an IEP are not implemented; that is, compared to what’s listed in the IEP, some portions of the IEP are enacted, but a few others are not. This can constitute non-compliance because an IEP is a holistic support plan and has to be implemented in full in order to support a student with learning disabilities.

Therefore, if an IEP is not fully implemented because some services are not offered or if some accommodations (e.g. preferential seating, assistive technology, or extra testing time) are not provided, the learning experience of the student receiving the IEP can be significantly affected in a negative way.

An example of a situation where an IEP is not fully implemented: A student’s IEP includes preferential seating in the classroom to minimize distractions, but her teacher neglects to assign her an appropriate seat, leading to increased difficulty in focusing on lessons.

Additional Conditions that Commonly Lead to Implementation Failure

It is important to understand that a failure to properly and fully implement an IEP in its planned timeframe is not just a small mistake. It is a serious non-compliance issue as it represents a systemic breakdown of a legally mandated and carefully designed plan of support meant to help a student with disabilities. Such a failure denies the student the services they need to function and excel at school.

Common examples of such failure are:

• Missed therapies or services, like occupational therapy, speech therapy or behavior therapy

• Wrong placement, i.e. placing the student in a setting/classroom that does not fit with that is in their IEP; student placement is an important part of any IEP as it is meant to ensure that the student receives the least restrictive environment in their education journey.

• Improper IEP team composition and failure to involve parents; if certain occupational professionals (e.g. mental health experts) or parents are not included and consulted, the IEP can be seen to be in non-compliance; the latter in particular would be an especially egregious oversight, as IDEA mandates that parents be a key part of any student’s IEP team as they know their child the best.

• Missed timelines and delayed assessments, such that IEP meetings that are scheduled do not take place, or assessments and evaluations are delayed, which would cause an increase in the time it takes to identify the needs of special education student.
• Lack of progress monitoring or reporting the student’s progress over time; this is a legal requirement as part of an IEP support plan, and failing to do this results in non-compliance.

What Types of IEP Violations Can Occur?

When an IEP is being implemented, the following are the two broad types of failures that can occur in ensuring that an IEP student has the support that they need.

Substantive IEP Violations

Substantive violations, are the name implies, are significant oversights pertaining to the content of an IEP and a failure of the IEP implementation team to enact the content. This sort of violation tends to affect the quality and effectiveness of the services and accommodations specified in the IEP. The direct impact of substantive violation is on a student’s ability to access an appropriate education and make progress towards their academic and functional goals.

Procedural IEP Violations

Procedural violations in the implementation of an IEP are when the processes for developing, reviewing, and implementing the IEP are not properly adhered to, or perhaps at all. This can affect the rights and involvement of parents/caretakers in the decision-making process, as the legally mandated process through which parents/caretakers provide feedback, voice concerns or exercise any other right they have within the IEP writing process, is not followed.

What Are the Educational and Practical Repercussions of IEP Non-Compliance?

Impact on a Student’s Education

The most fundamental purpose of an IEP is to help a student with learning abilities to achieve the best possible education; the IEP helps ensure that the student gets the attention and tools that they need to succeed, whilst also allowing the student to grow as a person.

The only way to do this is to develop a thoroughly and rigorously written IEP, which serves as both a roadmap for how a student will receive their special education, but also a legal contract that states that it is their right for everything in an IEP to be done.

For this reason, the first major consequence in the event of IEP non-compliance is a negative impact on the student’s education. When a student does not receive all of the resources that they need/were guaranteed to receive, their academic progress is stymied and their progress is derailed. Additionally, the student’s functional development may suffer, as they might not be receiving, for example, behavior therapy, which in turn may affect their daily functioning in a negative way.

Loss of Learning Time

Schooling is a crucial time in everyone’s life. It is done in the earliest of ages in regimented settings, with carefully designed curriculums just so young people can learn and grow in a safe, structured and monitored environment, well before they have to strike out on their own as adults. Schooling years are formative and thus carry great weight in everyone’s life.

Naturally, this is also true for students with learning disabilities. However, when these students do not receive the support that they need to get their education, not only is their academic progress negatively impacted, the suffer a much greater harm as well: loss of valuable learning time.

As IEP non-compliance leads to delays in the provision of services, or missed therapies and accommodations, each individual implementation failure compounds and the loss of academic progress does as well, leaving the student at risk of being left behind their learning level. If that happens, the student might end up needing to repeat a year or work harder than they otherwise might have needed to in the following academic year to “make up” for lost progress, putting them at a disadvantage either way.

Difficulty in Progress Monitoring

In order for any IEP to be effective, it has to have concrete goals for the student that follow the SMART model:

• The goals have to be specific in what the goal is (i.e. what subject, what skill, what counts as success, etc.);

• Measurable in terms of some metric;

• Achievable by the student;

• Relevant to the student and their needs; and,

• Time-bound, in that there should be a clearly defined timeline for when a goal needs to be achieved.

It is also equally important that these goals, once thoroughly deliberated on and fine-tuned for inclusion in the IEP, should be used to monitor the student’s progress against them. Proper periodic monitoring ensures that a student’s IEP goals serve them as best as possible, whilst also ensuring that the IEP goals remain useful and relevant to the student. Progress monitoring also allows for evolving a student’s IEP goals over time.

However, if there is no periodic progress monitoring, or it is not as frequent or vigilant as an IEP specifies, the resulting non-compliance can be to the detriment of the student. This is because without progress monitoring, any problems encountered by the student in attempting their goals might not be caught, which weakens the school’s ability to evaluate the effectiveness of IEP goals. This in turn does not allow for a solution to be found, thus hampering the student’s academic and functional progress. Lack of progress monitoring can also lead to missed opportunities, in addition to an overall inaccuracy in the assessment of a student’s progress.

Student Emotional Well-Being is Affected

Since IEP non-compliance ultimately has implications for the emotional and mental well-being of a student. Non-compliance can lead to disruptions to a student’s academic progress, and these setbacks can be frustrating and demotivating. This in turn could make the student disillusioned and lose focus from the goals set in their IEP.

Lack of progress monitoring can also lead to frustration and a negative emotional impact, as the student receives less attention and their goals run risk of being not fit for them; if these goals are not updated/amended, or if other corrective actions are not taken in due time, academic and emotional outcomes for the student can suffer even more.

Effect of Compensatory Services on the School Day and Learning Environment

In cases where there is IEP non-compliance, a student could face major academic setbacks and be left behind. This results in the need for compensatory services, whereby the student might have to take extra lessons, do additional homework, etc.

This can lead to extra stress on the student’s part. Additionally, since IEP support activities must take place at school, the extra lessons that a student might need may come at the cost of free time at school, such as recess. A student’s loss of recess time in turn could affect their overall emotional well-being, since a key avenue for socialization is suddenly lost and their learning environment becomes more restrictive.

What Legal and Advocacy Consequences Can Follow IEP Non-Compliance?

IEP Non-Compliance Can Lead to Legal Action

As per the IDEA law, it is mandatory for school districts to provide all supports, services and accommodations outlined in an IEP for student with learning disabilities. This is what makes an IEP a legally binding document: a contract, enforced by the federal US government, between the school district on the one hand, and a child and their parents on the other.

If a school fails to provide all of the supports mentioned in a student’s IEP, parents/guardians are legally empowered to sue the school district and claim that their child’s rights were violated.

Parents Might Need to Intervene and Advocate

Parents/guardians are a vital part of any student’s IEP team. They are central to the process of documenting a student’s strengths, areas of need, their temperament and capabilities, etc. Their feedback and periodic concerns are required to be recorded by the IEP team, which is also required to meet any time that a student’s parents/guardians request one. Even the goals within an IEP have to receive approval from parents/guardians.

The role of any parent/guardian in the IEP process is, therefore, one of vigilance, context-building and constant advocacy. It follows from this that parents/guardians are left to continue to advocate for their children in the event that their child’s IEP is not compliant.

If a student’s IEP is not in compliance, the student’s parents/guardians have to intervene by filing complaints when critical therapies or services are not implemented. Meetings with school personnel, special education directors, and even filing a grievance or due process grievance with the relevant educational authorities might all be part of this.

Parental advocacy is necessary in addressing IEP implementation failures, as well as in getting remediation and corrective actions for any academic progress lost by the student or to meet the student’s needs

Remediation and Corrective Actions

If a school is non-compliant with a student’s IEP, they are, by law, obligated to correct all implementation failures and rectify any progress loss that the student suffers. This is often done by providing additional or modified services, lessons or other forms of support.

What Consequences Can Schools and Teachers Face for IEP Non-Compliance?

IEP non-compliance is complicated issue as implementation failures can happen for a number of reasons, involving different individuals. The consequences of IEP non-compliance, therefore, are also different for everyone involved. The main goal of these consequences, ultimately, is accountability and also to maintain the rights of students with disabilities.

Professional Reprimands for Minor or First-Time Incidents

If a teacher is at fault for an IEP implementation, they can be reprimanded. These are often in writing and tend to be reserved for minor or first-time violations in implementing a student’s IEP. If a school is in violation of IEP implementation, they receive similar reprimands, but from the Department of Education, whereas teachers receive reprimands from their immediate supervisors. Reprimands are meant to be a warning, and often contain language that asks the receiver to do their best to rectify whatever violation for which they were responsible.

Cases of Repetitive or Significant Non-Compliance

In cases where IEP implementation failures are constant, and not just isolated infractions, consequences for teachers are schools are stricter. These can range from public notices by the Department of Education, essentially calling out the school in question for its failure to provide legally mandated support to students in special education; or, in the case of teachers, mandatory retraining via special programs.

Legal Remedies Actions

As a last resort, or in response to egregious cases of IEP non-compliance, the law empowers parents to take legal action against the school. If parents win their case in a court of law, they can be entitled having their child receive compensatory education to make up for lost progress. Parents can also be eligible for receiving compensation of attorney’s fee, to a “reasonable amount”; the latter is determined by the court.

What Legal Remedies Protect Educational Rights in IEP Non-Compliance Cases?

What Safeguards Exist to Protect the Educational Rights of Children?

The IDEA law includes a number of clearly outlined key safeguards. These are meant to protect the educational rights of children with learning disabilities whilst also upholding the integrity of the IEP process, ensuring that children in special education receive FAPE.

These safeguards are based on three tenets:

• Promote transparency and fairness between parents and schools.

• Provide mechanisms for resolving disputes.

• Protect the rights of students with disabilities throughout the special education process.

In all, there are 10 key safeguards within IDEA:

1. Procedural safeguards notice

Parents are meant to receive a written notice of their rights within the IEP process as per IDEA as well as per the parent’s state laws. Parents should also ask for this note to be explained to them verbally so that they can make sure they understand what is written.

2. Parent participation

IDEA mandates that every parent be allowed to be actively involved in their child’s IEP process. This includes being part of the IEP team itself, attending all IEP meetings and providing feedback/noting concerns on every element of the IEP.

3. Access to educational records

The law also entitles parents full access to their child’s school records as well as an explanation of these records, if the parents ask for one. Parents can even ask for records to be corrected, if they feel corrections are needed.

4. Confidentiality of information

IDEA mandates that all schools keep the records of their students confidential, with few exceptions. This includes details like personal information, the child’s name, address, social security number etc.

5. Informed consent (or parental consent)

Before any child is formally evaluated for, for example, IEP eligibility, the school conducting the evaluation has to explain why the evaluation is happening, what it entails and how the results will be used. Following this explanation, the school must obtain consent from the student’s parents to continue with the evaluation, which, if received, would constitute “informed consent.”

6. Prior written notice

In addition to informed consent, schools are legally mandated to provide a Prior Written Notice whenever they propose or refuse to evaluate a child, change the child’s IEP or educational placement, or implement or deny specific services. The notice must include an explanation of the school’s decision, the data used, and the options considered.

7. Understandable language

When providing special education services mandated by IDEA, each school district in the US is obligated to communicate, in writing, using language that is comprehensible to the student’s parents. This could mean simple, non-jargon vernacular, but usually entails the use of the parent’s native language. In cases where the parents themselves have special needs, all written notices to parents have to take these needs into account; for example, parents who cannot see must be given notices written in Braille.

8. Independent educational evaluation (IEE)

If any parents disagree with their child’s evaluation, they have a right to register this disagreement in writing and to request an independent education evaluation. Parents can even apply to have the school district pay for this evaluation.

9. “Stay put” rights

If a student’s IEP is being changed, and the student’s parents object these changes, parents are entitled to keep their child in the school, with the pre-change IEP arrangements, until a solution can be worked out.

10. Dispute resolution options

The IDEA law provides a number of dispute resolution measures in cases where parents disagree with or object to how their child’s special education is being implemented. These include:

• Talking to the school directly

• Using mediation, where a neutral third party helps you and the school try to resolve a dispute.

• Submitting a written complaint, with the state if the school is violating IDEA or with the Office for Civil Rights (OCR) at the U.S. Department of Justice if the parents believe there’s discrimination against their child.

How Should Parents Address IEP Non-Compliance Step by Step?

IEP non-compliance is a serious issue; in the event that there is one, the matter has to be handled proactively and as per a certain procedure. The key elements throughout this process, which is detailed in the sections below, are: patience, clear communication and documenting everything.

What Should Parents Do First When They Notice Non-Compliance?

Given the potential severity of IEP non-compliance, it is important that parents take the time to ascertain whether the failures that have occurred in the implementation of their child’s IEP even warrant significant escalation. In other words, parents should make sure to find out if the failure was a minor or first-time failure, or even an incidental one (e.g. a delay in services caused by an unexpected scheduling issue).

For the above reason, in event of any delay in services or other implementation failures, parents should first reach out to their child’s IEP case manager. This should be done in writing, with the parents’ concerns clearly outlined, so that the case manager can have an understanding of what the issue is and how it could be addressed.

Why Should Parents Submit a Written Request?

In cases where issues in the implementation of an IEP persist, or if there is repetitive non-compliance, parents should write a detailed complaint to the school district. This complaint should note the particulars of the implementation failures in full.

The purpose of this complaint is to formally not the IEP non-compliance taking place and to put forth the parents’ concerns, whilst giving the school the opportunity to rectify failures on their part. Doing this not only clarifies the areas of IEP non-compliance, but also formally documents failures as well as parents’ concerns for posterity.

For this reason, it is vital that, as soon as the IEP process begins, parents keep a written record or everything: a log of missed services or accommodations, emails or notes from teachers and providers and perhaps even contact service providers directly for clarification. This keeps a trail of documentation in the parents’ possession that could then serve them in advocating for their child.

When Should Parents Escalate the Matter?

If reaching out to the case manager or even the school does not yield satisfactory results, or even an appropriate response, parents of an IEP-receiving student can further escalate. They can do this by reaching out to the case manager’s supervisor, the administrative designee from the last IEP meeting that took place for their child’s IEP or the parents could speak with their child’s special education teacher or principal. If the issue persists, the school district’s special education director can be involved.

Overall, the goal of escalation is to seek intervention when immediate action is not taken by the first line of relevant parties.

When Should a Non-Compliance Complaint Be Filed?

If after the initial complaint and escalation IEP non-compliance issues persist, parents still have recourse. They can file a non-compliance complaint with their relevant state agency, which is possible since persistent IEP non-compliance, without corrective actions, is a violation of IDEA and a child’s right to FAPE. The process for filing the complaint, required information, investigation procedures, and potential corrective actions should be followed as per state regulations.

Alternatively, parents can also file a due process complaint, which Initiates a legal proceeding before an Impartial Hearing Officer (IHO), who can order remedies such as compensatory education or tuition reimbursement.

Parents can also request makeup sessions or compensatory education from the DOE. This requires showing how much service was missed and how it impacted progress.

How Can Lost Services Be Replaced?

Once parents have had the opportunity to formally covey the occurrence of IEP non-compliance, the process of finding recourse ultimately has to end with a verdict by the relevant authorities on how the non-compliance will be compensated.

For this, parents have to discuss with the school staff and their child’s IEP team just how the missed/delayed services or accommodations will be made up. This could take the form of services being provided to the child on weekends, or during summer/winter vacation periods, etc. Until this is agreed upon, existing services that the child is receiving can be doubled.

If the parents choose to obtain services from private providers, they can seek reimbursement for out-of-pocket costs for these services from the school; for this reason, parents should make sure to keep track of all costs (receipts, bills, etc) for any and all private services, as part of their documenting of everything in an IEP process.

How Can a Special Education Attorney Help?

The IEP process as a whole can be very overwhelming: from first learning how to get an IEP for a child, to them constantly being involved and monitoring the process. To then also be responsible for advocating for your child, especially when registering formal written complaints in the event of IEP non-compliance, can be a lot for most parents to manage.

For this reason, parents should consider relying on a special education attorney in cases of IEP non-compliance. These attorneys are professionals who can guide parents through the entire complaint process and ensure that their rights as well as the rights of their child are protected by:

• Explaining procedural safeguards to parents and how they apply to their situation.

• Reviewing school records and communications and identifying violations.

• Representing parents in mediation, state complaints, or due process hearings.

• Advocating for appropriate remedies, such as compensatory education or corrective action.

How Can Schools, Parents, and Educators Work Together to Ensure IEP Compliance?

A Collaborative Approach Necessary

The process of developing and implementing an IEP is a rigorous but collaborative one. Parents have to work and cooperate with various professionals and experts to determine the best support plan for their child’s needs. Parents play a vital role as they know their child the best and are their child’s biggest advocates. However, educators and administrators are also part of the solution, and not just a potential source of problems. Learning to work together, as a team, ultimately serves the need of every IEP-receiving student the best.

Effective Communication Improves Compliance

At every point of the IEP process, from development to implementation, clear and effective communication is key. Keeping open communication lines helps to identify issues early and also encourages timely intervention to solve any issues. Clear communication is also, ultimately, parents’ biggest recourse in advocating for their child’s special education rights.

Proactive Measures Can Prevent IEP Implementation Failures

The measures that can help prevent IEP implementation failures/non-compliance issues are measures that are the same as developing a good and effective IEP, which are:

• Setting good goals using the SMART method
• Collecting and thoroughly documenting data on the student’s baseline
• Regularly monitoring and report progress regularly
• Training all school staff properly
• Ensuring proper IEP team composition
• Strengthening parental engagement

Prevention Supports a Positive and Inclusive Learning Environment

By actively working towards prevention, an IEP team can reduce service disruptions, support student progress and encourages inclusive school practices, whilst improves school accountability in the IEP process.