You met, you documented, you collected data and have an IEP that you feel hopeful about. Then, it’s not being followed.
It’s a common parent complaint. Your school, teacher or IEP team is not following the IEP. In non-compliance. Whatever the reason, your IEP is not being followed.
Here are some steps that you can take and I’ve sort of listed them in order of how you should proceed, though some may overlap.
For the purposes of this post, I am assuming that the IEP is appropriate and sufficient.
I have written 100s of posts addressing how to get a sufficient IEP.
My school is not following the IEP!
Again, I wrote these steps thinking incrementally. I would start with the first one and work my way through the list until the situation was resolved.
Legal Consequences of not following an IEP
Here’s where I get to be the wet blanket. Please don’t get your hopes up about this. The legal consequences of not following an IEP are a slap on the wrist at best. Some sanctions that schools may face include:
- Owing you (the family) a compensatory education fund or compensatory services for services that are not provide. In most instances, this will require that you file for IEP due process, so it’s no small feat to get this.
- Most state compliance complaints are a nothing-burger. The state agency may issue a reprimand, tell them to “do better” and may order staff training.
- If you file an Office of Civil Rights complaint, the complaint is investigated and determined to be in your favor, the most common remedy is “training” for school personnel.
A teacher or therapist may be reprimanded professionally by her supervisor.
A school or individual person may receive a public reprimand from the Deparment of Education.
If the Office of Civil Rights finds in your favor, usually the most they will do is order the school to hold training for staff.
This is tough to swallow, particularly if your situation is egregious. But please don’t dwell on it. Life isn’t always fair.
Screams of “But she wasn’t following the IEP, that’s ILLEGAL!” is not going to do anything except get everyone more emotional. It’s incredibly frustrating, but there is very little repercussion for schools who do not follow IEPs.
All the more reason parents need to become more involved in citizen lobbying for our kids. The system is quite broken.
Can a teacher be fired for not following an IEP?
Sure. That’s going to depend on the contract that the school district has with the teachers’ union, the personnel policy and a lot more.
It’s not something you can seek as a parent, unless it’s a particularly horrific case that involves abuse or something. I’m not in the practice of advising parents to fight battles they cannot win, so I would not advise you to pursue this in most situations.
Can I sue a school for not following the IEP?
No, not really. If you were to file a lawsuit, most judges will throw out the case if you have not gone through Due Process first.
You can file for Due Process for the school district or LEA not providing FAPE. Due process is a costly process–both financially and emotionally. I’m not saying it’s not warranted in many situations, but parents definitely need to do a cost/benefit analysis on this.
Our court system does not want to be bogged down with IEP disputes, which is why the Due Process system was set up. Most of the time, people who work in the field–from both sides of the IEP table, do not use the phrase “sue” when it comes to due process.
Can you sue a teacher for not following an IEP?
Not usually. And again, it’s not by philosophy to advise parents to fight battles they cannot win. In 99.9% of cases, this is a battle you cannot win.
Focus on what you can do, and what your real options are, for teachers who are not following an IEP.
What to do for IEP non-compliance.
- Make sure you are documenting everything. Make sure that everything is clearly defined in the IEP as far as the number of hours, minutes, when, where, who, etc. If he is to be pulled out of class for tests, they may say, “He’s not asking so we weren’t doing it.” Ok, so add in a self-advocacy IEP goal. But in the meantime, it is the staff’s responsibility to prompt him to leave. I’ve seen a lot of IEPs that state things like, “Jacob will have access to the resource room for testing.” That’s vague. And when asked, how do you prove that he didn’t have access? Reword it to “Teacher will prompt Jacob to go to the resource room for testing.”
- Keep your communication factual and professional. Be specific. “Today he said he had an algebra test. Per his IEP he is to go to a quiet room to do testing, but that has not been happening.” Stay child focused. Word your sentences carefully. Instead of finger-pointing and saying, “You are not doing this and this and this,” keep it focused on what the student is or is not receiving. “Per his IEP, he is to be receiving A, B and C and he reports that this has not been happening.”
- Request IEP meeting if necessary. If the documentation alone does not prompt them to follow the IEP, it’s time to request a meeting. Submit a parent concerns letter for the IEP meeting and state all of your concerns. At this IEP meeting, I wish to discuss….my son says he has not been receiving…and I want to see what we can do to make this happen consistently.” Bring all your documentation to the meeting.
- Find an advocate. At this point in the process, parents are angry and frustrated. Your child may be regressing, he might be getting repeatedly suspended. At best, they are stagnating because they are not receiving services. Find an advocate to attend with you for a more objective set of eyes and more people on Team You.
- Call your state Protection and Advocacy group for Disabilities. These groups are horribly underfunded and their efficacy varies greatly. But, you don’t know until you try. Call and ask them if they have special education advocates. If not, ask them if you know where you can find one. Ask them about the state complaint process. Ask what they can do to assist you.
- Find a support/parent group for your child’s disability. Whether it be your local Arc or Decoding Dyslexia or whoever. Poke around online and find a local group. There is strength in numbers. You might find new ideas, validation (which can be worth a lot!) or enough people to start a class action suit.
- File a state complaint. I have filed state “Professional educator misconduct complaints” before in my state. Note that this is pretty extreme and should be for extreme measures. Different states offer different kinds of complaints.
- Call your state’s Department of Education. A simple internet search will get you this information. Call them, tell your story, ask what suggestions they have.
- Call the Office of Civil Rights-file a complaint. If your child is in a protected class (disability, minority) ask yourself these questions: Is he being treated differently than his non-disabled peers? Is he being denied FAPE (Free and Appropriate Education, as defined by IDEA)? Do I think he/she is being discriminated against based on race or disability? Then file a complaint!
- Hire an attorney. You’ve been working at this, it’s still not being followed and your child is regressing. Find a special education attorney and ask about comp ed-compensatory education.
- Call your politicians. Look online for your state legislature. See who chairs various committees (like education) and who represents you. Call or stop in your local office and tell your story, ask what they can do. It may be nothing more than an email or phone call, but might be enough.
- Path of least resistance. I don’t judge. Not everyone can fight every fight. Not everyone has as much fight in them as the next guy. Sometimes you just want it over. You never know what another parent is going through–divorce, family deaths, illness, job loss. It happens. And you might just not have the mental energy to fight IEP battles right now. Some other choices are: moving to a different district, homeschooling, paying privately for a private school or outside services. Lots of choices out there, you have to do what is right for you and your family right now. And don’t let the naysayers get you.
Weigh all the options, make your decisions and sleep well, my friend. Remember, the IEP lifestyle is a marathon, not a sprint. We’re all in this for the long haul.
Final thoughts: I never, ever recommend that parents contact the media for solutions or to expose a problem. Not everyone in society thinks the way we think or views it from our shoes. I’ve seen stories backfire and the child is viewed as a troublemaker, the parents viewed as entitled whiners and so on.
You never know how someone is going to view this and they make take the school’s side and say, “Heck yeah! Expel that kid!” If you do talk with the media, be very specific and careful before it prints or airs. It can be life changing and not necessarily in a good way.
