Understanding the Legal Nature of an IEP

What’s an IEP?

The IEP is essentially a written statement that allows students with disabilities to receive a free and appropriate public education designed for their individual needs. Once a student has been evaluated and found eligible for an IEP, a team of teachers , administrators and specialists will work together to create the IEP. The IEP must be customized to fit the needs of the student it’s created for, outlining special education services, goals, accommodations, modifications, supports, and any other educational needs.

IEP as a Legal Document

An IEP is a creature of statute and regulation. The Individuals with Disabilities Education Act (IDEA) mandates that an IEP be written and implemented to provide a Free Appropriate Public Education (FAPE) for children with disabilities. Consequently, the Individuals with Disabilities Education Act (IDEA) provides substantial legal foundation requiring Child Study Team meetings, parental participation, and development of an Individualized Education Program. The implementing regulations (34 C.F.R. 300.301) add the procedural requirements necessary to assure that the process provides the legally required protections. See also N.J.A.C. 6A:14-2 and N.J.A.C. 6A:14- 3. These rules should be considered when considering whether an IEP should be revised and how to make the changes to the IEP. Further, these same rules establish rights of due process if the procedural requirements are not met.

Legal Rights and Protections Afforded by an IEP

The implementation of the IEP process has given assurances that students with disabilities are afforded an opportunity to receive a Free Appropriate Public Education (FAPE) in accordance with the Supreme Court case Rowley v. Board of Education located at 458 U.S.176 (1982). This case law while important has been supplanted by the Individuals with Disabilities Education Act (IDEA) at 20 U.S.C. b 1400 et seq. which has been extensively amended and is the current statute governing special education for students with disabilities. In addition, students are protected by the provision of Section 504 of the Rehabilitation Act of 1973 as a civil right. "FAPE" as defined as "special education and related services are provided at public expense, under public supervision and direction, and without charge; meet the standards of the State educational agency, including the IDEA Provisions; include an appropriate preschool, elementary, or secondary school education in the State involved." 34 CFR § 300.101 Part B of IDEA governs the availability of educational services to students with disabilities aged 3 through 21 years. The Twenty First century amended version of Part B of IDEA can be found at 20 U.S.C. § 1412(a)(1) and states in relevant part that "To the maximum extent appropriate to the needs of the child, children with disabilities are educated with children who are non-disabled, in regular classes in the school. Special classes, separate schooling, or other removal of children with disabilities from the regular classes occurs only if the nature or severity of the disability of the child is such that education in regular classes with uses of supplementary aids and services cannot be achieved satisfactorily." 34 CFR §300.114 (a)(2). In order for students with disabilities to receive FAPE in a LRE, there are additional rights and protections that inure by virtue of the IEP. Parents of students with disabilities have procedural safeguards to protect them and their children. As defined in 34 CFR §§300.500-521. There are fifteen procedural safeguards more particularly enumerated at 34 CFR §300 504 that are available to parents. Included in this section are the right to receive written notice of the proposed change in identification, evaluation or educational placement. In addition, notice of the IEP team meeting must be provided at least 7 school days prior to the meeting. Parents have the right to be present and participate in the IEP meeting and provide consent for the provision of services. Parents can also obtain relevant educational records. More particularly, in New York State, parents can employ the potential and protections afforded to students under the Student with Disabilities Law. Those rights are set forth at NY Education l Article 89 NYS Private Education law section 4402(1)(a)-(b; legislative intent article 81 of the NY Education Law (Special Education provision. The purpose and intent of the special education law is to protect students with disabilities by requiring that schools "ensure equality in educational opportunity, to promote the maximum possible development of all pupils with physical and mental handicaps…" and insure procedural protections so that Students will not be deprived of an equal opportunity to obtain reasonable benefits from education programs. See NY Ed. L § 4401. In addition, in New York State Special Education provision of the Education Law has been further supplemented by the NY Commissioner of Education Regulation governing special education, the Regulations of the Commissioner of Education, 8 NYCRR §§200.1-7.20.

Is an IEP Legally Binding?

Whether the special education program that you have agreed to for your child with disabilities are legally binding requires some explanation of what an Individualized Education Plan ("IEP") is. The IEP is the portion of the special education program that specifies the program designed for a child with disabilities . It is a document, legally binding, in which the public education institution (school or school district) has to provide specific services to the child, according to their educational needs. Therefore, upon signing the IEP, the public education body becomes legally bound to provide the services outlined in the IEP, unless they get it approved and backed by the state as necessary.

Legal Actions for Violations of an IEP

If the school fails to provide a free appropriate public education (FAPE) as required by the IEP, the parent may pursue legal recourse against the school or the school district. However, the school must fail to implement the IEP as written before parents can file a complaint with the state educational agency or request a due process hearing (in some states both are called due process hearings). If the school is providing FAPE before calling for a due process hearing, then the complaining party should informally work out his or her issues with the school by engaging in a collaborative meeting process.
After the collaborative meeting, if the school continues to fail to implement FAPE as required by the IEP, the complaining party can pursue the following legal recourses: (1) mediation; (2) complaint system process (also known as a complaint to the state); or (3) due process hearing.
A mediation is an informal, voluntary process held by a third-party neutral that hears from both parties (school and parent) and facilitates an agreement of the IEP requirements. A complaint to the state involves the complaining party filing a complaint against the school district and the state educational agency investigating that complaint. These systems vary from state to state, so if you decide to file a complaint, request information from the state educational agency about that process before moving forward.
A due process hearing, unlike the other two options, is legally binding and judicial in nature. For example, in federal court (a district court or U.S. Court of Appeals), the "losing" party has the right to appeal the legal decision of the judge. In a due process hearing, if the administrative law judge (called a hearing officer) finds in favor of the parent, the school must take action to remedy any errors in the IEP.

Differences between IEPs and Other Legal Documents

While there are many differences between an IEP and other legal documents, we group them in two main areas: services and legal protections. Both of these areas are important, since each area contributes to how the IEP operates and exists. In the area of services, there are some subtle yet important differences in what services are available to a child who is eligible for special education services under an IEP. For instance, if a child has a Section 504 Plan, his school may be able to limit some of the services available to that child during IEP meetings. When you obtain services under an IEP, they run with the student who is entitled to them. You do not lose them your child moves schools. This is not the case with Section 504 Plans. Those plans are tied to your child’s individual school building. When you move, your child must begin the Section 504 process again and the services may not exist at the new school. In contrast, services provided as part of an IEP "follow" a student, meaning they present less interruption in services. In this way, IEP services can be more helpful and more, well, helpful. In addition, IEP services are usually more complex and can require several steps to access. Similarly , any changes to a student’s IEP must follow several steps that can confuse parents. 504 Plans, on the other hand, are much easier to access, but we find that often parents who hold a Section 504 Plan under the assumption that they are covered under the law, may need more help than they realize. An IEP is a legal document. Section 504 Plans are not. Because of this, there are important differences in how the protections part of the documents operate. This includes protections for schools, protections for parents, and protections for children. For instance, under the law a school is required to convene an IEP meeting within a specific timeframe after a parent asks for one. Further, the school is required to follow many rules into ensuring that an IEP is developed and then implemented according to law. That means there are many steps in the process a parent can use to hold a school accountable. It limits the defense a school may use to defend itself if a parent challenges the IEP process. A Section 504 Plan does not, on its face, offer these same protections. If your child has a 504 Plan, the school may force you into a cumbersome process to get the services your child needs.