Making Sure The IEP Is Carried Out

Congress recognized we had taken for granted for the past 25 years that our child's Section 504 plan or their IDEA IEP would be carried out. What they learned was that few personnel other than a specific related service person (for example doing OT twice a week) paid any attention to the IEP.

Congress changed that with a strong requirement that all school personnel who will be involved in any way in carrying out the IEP (teaching, providing services, carrying out discipline, measuring success, communicating with parents, doing re-evaluations, etc.) will receive directions in how to implement the IEP. 34 C.F.R. 300, Appendix
A, Q&A 26.

Failure of staff to implement the IEP as written could lead to legal liability for those staff. In Padilla v. Sch. Dist. No 1, 29 IDELR 870 (D. CO 1999) the court stated "Adhering to a student s IEP is a clearly established right such that
if a reasonable person does not follow a student s IEP, one would understand that she is violating that right." The court stated further that those individuals -- the behavior specialist, the director of special education, the student's teacher and the aide -- would have no immunity against the lawsuit, and the court stated that damages in that situation were especially suitable.

The Padilla court would allow lawsuits for damages against these individual staff members. When one looks to the plain language of 20 U.S.C. 1415(1), one can recognize that individual liability suits are available. This subsection effectively granted an individual cause of action. In doing this, section 1415 specifically references other federal statutes in which suits against individuals are allowed. Congress made no attempt to distinguish an IDEA action from those other federal statutes in which relief is permitted and the Court has no reason to conclude otherwise.

School personnel, who are instructed what they are to do to carry out the IEP and who violate those instructions, should not be surprised to be named as defendants in lawsuits seeking money damages.

One common problem in school personnel compliance with the IEP is carrying out the methodology that is required to make the IEP successful, instead of just doing what they do for everyone else.

In Board of Education v. Rowley, 458 U.S. 176, at 207 (1982), the U. S. Supreme Court made clear that methodology must be determined at the IEP meeting. The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child. The Supreme Court continues in that discussion to note that the IDEA requires under the Comprehensive System of Personnel Development that the state can acquire virtually any methodology needed. So methodology is on the table and when the determination is made what method is most suitable the staff will be instructed to carry it out.

The fact that methodology must be discussed and determined at the IEP meeting is made clear in the IDEA 1999 Regulations, as well. 34 C.F.R. 300.26(a)(3) defines specially designed instruction as adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction.

So the teacher(s) has to be directed in what methodology is to be used. It is absolutely unthinkable that, if your child has a reading problem, they will simply get the reading approach that is used by whatever teacher the computer assigns for next year. The evaluation must indicate HOW the child with a disability must be approached given the nature of that disability.

If the instructional personnel are not qualified to carry out the methodology, then the IEP must specify how they are to be trained by the time the IEP is implemented. The administrative representative at the IEP must assure that the IEP is carried out.

The Supreme Court in Rowley says that the IEP must be "individualized," "tailored," and "specially designed" to meet the "unique needs" of your one child. So once you understand the unique needs of the child, the educational method most suited to meet those needs must be used.So the IEP committee must discuss methodology.

Second, with the Comprehensive System of Personnel Development, the IEP committee can, and must, acquire and disseminate any promising educational practice that is needed to meet the unique needs of your child.

The final step with the IEP, and it is a continuing step throughout the year, is measurement of progress.

The beginning of this process is the setting of baselines of need in every area in which your student has a problem -- their reading level which is several grade levels below, dealing with oral homework assignments, the social/emotional overlay that has built up from the past failures, and so forth. These baselines must be stated in concrete terms that are measurable and that would be clear to anyone reading them.

The next step in effective measurement is to state, very concretely, exactly where you expect your child to be at the end of the school year that this IEP addresses.

The next step is to break down each of these goals into quarters (assuming your written reports from the school will be each nine weeks) so that progress can be stated to you in a way that you can clearly tell if sufficient progress is being made.

If sufficient progress is not being made, one issue to be revisited is whether the school is using the method most suitable to your child s needs. If, for example, your child is below grade level in reading then you should have a goal increasing your child more than one grade level during the next year of instruction. If you suggested one method and the school said no, we'll use whatever the assigned teacher uses, then the parent probably temporarily loses that round.

You can protest through the impartial hearing or mediation procedure but that may take awhile. However, because of the requirement of measurement, within nine weeks you will know whether your child is progressing satisfactorily.
If they are not, then the school district's choice of methodology is not "most suitable" and you should demand, in writing, a meeting of the IEP committee to choose the required metholology.

If your school is not truthfully and accurately providing you with quarterly measurement, then you are being deprived of one of the most important procedural and substantive safeguards in the 1997 IDEA Amendments. Write your school district and ask them to provide you, in writing, the procedures they have adopted to implement this very important new change.

Write and ask for a copy of the IEP form that is being used by your school district since these changes became law to be sure that this measurement section is being implemented.

Write your school and ask for a copy of their in-service training materials by which the school district trained all staff in this important new responsibility.

You might have to write into the IEP your role as a parent in measuring progress. Many of the problems that are being addressed will be seen by you outside the classroom and you can measure success.

What about Section 504 plans? The Section 504 regulations provide that an individualized plan must be developed and that the IEP is one way of meeting that requirement, so you can argue that you are entitled to the same reporting on measurement on a Section 504 plan as under the IDEA.

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