877 914 4366
0 Items

Yes, Your Child has a Right to an IEP

Written By Geoff Nixon . October 12, 2020

How to Win an IEP & Make it Work for Your Child

Every child in the US is entitled to a free, appropriate public education.

It might give you peace of mind that your child with a learning disability has an Individualized Education Program (IEP), but this is not set-and-forget territory. An IEP is a plan for your child to make academic and functional progress.

Here’s what you need to know to secure an IEP for your child and ensure it’s a living and breathing document.

A level playing field

If your child has symptoms of APD, symptoms of dyslexia or other learning difficulties, you should read on.  This could help your child.

Every child in the US is entitled to a free, appropriate public education. That means if your child is need of special attention, she probably has the right to an IEP.

Your child’s eligibility for an IEP will be detailed in the Individuals with Disabilities Education Act (IDEA; 2006). That makes it a legal right in the US and Canada. That Act helps with creating an IEP, and ensuring it’s implemented. It does not spell out how to implement it, though (that’s often left to court judgments, also known as case law, to explain that).

The steps in developing an IEP for your child include an educational evaluation and determination on your child’s eligibility. Here are some more details:

  • Your child’s academic and functional needs should be thoroughly assessed – where are they now (baseline) and where could they be in a year with support (goals)
  • An IEP is developed to addressed every identified need and matched with yearly goals, special education and supplementary/related services (such as adjustments, accommodations and modifications where necessary).
  • Data is collected to measure progress, review and tweak the IEP.

You can find out the process here, thanks to understood.org.

So, that’s the overview. What’s your role as a parent?

Parental input into the IEP plan

As a parent, you’ll be expected to share your perspectives on your child’s needs and strengths at all stages of the IEP process – development, implementation and review.

Your role as a parent is enshrined in case law. A US Supreme Court decision (Board of Education v Rowley [1982]) emphasized that school districts should adhere to the “procedural requirements” of the IEP, particularly to have the student’s parents “meaningfully involved in the special education process.”

Researchers writing about the case more recently, say: “Special educators must ensure that a student’s parents, general educators, administrators, and special educators work together to make important educational decisions for eligible students with disabilities, from the initial evaluation to the final exit from special education.”

That spells out that parents are a key partner in the IEP process from go to whoa.

What are others’ roles in the IEP?

School staff are responsible for ensuring the IEP includes services your child needs. Meanwhile, school districts are legally obligated to create for parents a proposal detailing the services your child needs. Specialists provide input, too. All parties work together to reach a consensus about what’s needed to help your child with learning.

The elephant in the room

Has this discussion forgotten a key person? Yes! Your child with a disability.

While students with an IEP don’t have to attend IEP meetings until they turn 16, it doesn’t mean they can’t turn up and get involved. Actually, the IDEA Act says they should be engaged in their annual meetings. Your child might need assistive technology(ies) to access the meeting fully.

When students do attend their IEP meetings, they talk 3% of the time, special educators 55%, general educators 19% and a family member just 16%. That’s what a 2014 study by the Office of State Superintendents of Education found.

Researchers found that students with an IEP often have “poor self-determination skills and lack the necessary communication skills to take on a leadership role”.

“Student-led IEPs are student centered and student-directed, empowering youth to actively contribute to the planning and implementation of their own IEPs,” say the researchers.

It makes sense to gives students more ownership in the annual IEP process because it’s about their goals and needs. Consider how you can help your child have more agency in advocating for their needs with you.

However, your child’s role in the IEP annual review will depend on their age and abilities. Assistive, as well as augmentative and alternative communication technologies, can help here. They include presentation software (PowerPoint, Google Slides, Prezi), voice-to-text apps, supporting your child communication with tech-generated words/symbols, speech-generating devices or using videos.

The rules on implementation

As mentioned above, the IDEA Act doesn’t explain how the right to an IEP should be implemented. For insights, you’ll need to check the rulings of hearing officers, judges as well as state education agency staff.

To date, school districts do have some leeway in implementing IEPs. Even if the IEP isn’t followed to the letter, it’s not a violation. The courts are looking for the school to materially fail to implement an IEP. That’s when the services for a child with a disability substantially fall short of what the IEP sets down. The courts have yet to spell out the parameters of an IEP’s implementation falling materially short, though.

But, they’re getting close to it. This case before circuit judges in the United States Court of Appeal involving the Baker School District offers some insights.

“We clarify that the materiality standard does not require that the child suffer demonstrable educational harm in order to prevail.

“However, the child’s educational progress, or lack of it, maybe probative of whether there has been a significant shortfall in the services provided. For instance, if the child is not provided with the reading instruction called for and there is a shortfall in the child’s reading achievement, that would certainly tend to show that the failure to implement the IEP was material. On the other hand, if the child performed at or above the anticipated level, that would tend to show that the shortfall in instruction as not material.”

This 2007 case pivots on the issue the impact of the instruction – did it, or its omission, harm your child’s learning or not?

The tension over what represents progress

More recently – in June 2019 – a court looked at the link between the child’s attendance and behaviour problems and the IEP.

A lawyer from Special Education Solutions writing about the case says: “Moreover, said the court, many services that the student missed were due to the failure to attend school or other behavior problems. The court adopted the view of the district court that the attendance and behavior problems did not result from failure to implement the IEP, though the court emphasized that “a child’s absence from school neither relieves the school of its duties under the IDEA nor absolves the school from liability when it fails to satisfy those duties.

“Where a child’s school refusal is attributable to the school’s own failures to implement an IEP, the school cannot rely on that refusal as a hall pass to escape responsibility or as a license to give up.”

One judge dissented on part of this, though. He concluded the school had materially failed to implement the IEP despite the difficulties. He pointed to the IEP specifically requiring lesson plans be provided a week in advanced. However, over six weeks, 25 out of 30 plans were late, which “deprived the parent of enough time to review the upcoming lessons and go over them with a student”.

Material failure principles

The bottom line? The legal concept of ‘material failure’ is still fuzzy, but let these principles from Sped Solutions guide you:

  • Ask what proportion of services were provided – or not provided
  • What was the importance of the services?
  • What did your child’s academic and functional progress look like (and have measurements/metrics to back you up there), and
  • What were the practical difficulties, if any, of implementing the IEP?

As you’ve read above, you definitely can’t let your guard down as a parent of a child with a disability who has an IEP. Your school may hook into neuroscience-based programs your child can tackle online at school or at home, such as Fast ForWord, offered at Gemm Learning. You can find out here if they might be a good fit for your child’s needs to support their learning. This is software that’s helped more than three million people across the globe.

Useful links:

US Department of Education guide to IEP

Wrights Laws FAQs about IEPs

All Means All’s guide on IEP for families

IEPS across the US – state policies

Ontario’s Ministry of Education – IEP process for teachers

Comparative analysis of IEPs across Canada’s 10 provinces and three territories

The Centre for ADHD Awareness, Canada’s IEP guide including a sample IEP

Send this to a friend