What Happens if an IEP Is Out of Compliance?
What happens when an IEP is not in compliance? And to clarify, it’s what happens when the school is not complying with the IEP. What can a parent, guardian, or student do? So, there are several things. And this is the biggest misconception around IEPs: parents and guardians are not informed that they have legal remedies codified in federal and state statutes and regulations on how they can make the school comply. A couple of things that I would do in a specific order.
So first, if the school is blatantly not complying with the IEP. Maybe the student needs to get the required minutes for specific therapy, and they need to be pulled out for instruction for special education. They’re not getting accommodations and more time on tests if they’re allowed to leave the room. A big issue we’re seeing now with clients is that students are granted aid to be with them. But there are many staffing issues in multiple states where it’s hard to retain staff members at schools. So, the students are not receiving those accommodations.
They need the aid to follow them during specific times of the day that are designated in the IEP. There are a couple of examples of what’s written for the IEP. So, what can you do about this? First, I always prefer and suggest it in writing, not a phone call. That’s just my opinion. It’s better in the future if there are issues. So, in writing, either a letter to the school, or email or both to whoever the special education coordinator is, and then likely administrative staff as well, notifying them that you are aware that your child is not receiving the accommodations or the modifications outlined in their IEP. And you are putting them on notice that you are aware of this and would request that they comply.
Most of the time here, you ask for a meeting with the IEP team to determine why the school is not complying. Again, it might be a staffing issue. Let’s get creative here. If we can have an aid, how can we accommodate that student so they can still meet the goals? Now, if at this meeting or after you’ve given notice, the school is just saying there’s nothing we can do; this happens a lot, then that is not a reasonable response. But it’s good that you try to sort this out yourself first.
If the school is not complying, the parent or guardian can file a complaint with the State Board of Education. They are the ones who are going to enforce the IEP. The IEP and its requirements are federal law. But usually, the State Board of Education is the one who enforces them. So, you can ask for a hearing whenever you file the complaint. Your complaint must state all the identifying information of the school, your student, the IEP, and what they’re not complying with.
If the state finds that the school is not in compliance, there’s likely to be a hearing where they’ll hear both sides and decide. Here in Arizona, it’s through the State Board of Arizona, and we meet with the Office of Administrative Hearings. And we have an administrative law judge who would preside over those hearings. Most states are very similar to that. At that hearing, the judge would find out if they were out of compliance and could order them to comply. You can also ask for reasonable attorney’s fees if you have an attorney represent you to enforce those.
So again, parents do have legal rights. This remedy will not give you money for damages, emotional distress, or anything like that. It’s not litigation; it’s simply the State Board of Education looking at the IEP. They’re talking to the school, and there’s a hearing, and they’ll decide whether they comply. They can then order the school to comply with the IEP, and they find that the IEP meets the standard of free and appropriate education.
Again, the most significant thing parents and guardians don’t realize is that there are remedies. An IEP is a contract with the school stating what services they will provide for your student. It’s based on federal law. Sometimes states can expand on this, but federal law is the baseline of what needs to be provided and the framework of the IEP once the IEP is in place unless the team meets and decides to change the IEP. And even then, if that happens, you could still file a complaint that you disagree with the modification of the IEP. Parents do have legal rights and remedies.
I would start by trying to communicate with the school that you’re aware they’re not in compliance and that you would like them to comply. And if they don’t, you will file a complaint with the State Board of Education. You could skip this step and go straight to filing a complaint. But sometimes, if you send a letter, you can stop the process, and it’s less stressful. And you meet with their IEP team and come up with a solution.