When Are Teachers Supposed to Get Their Students’ IEP Copies?

Once in awhile, I’ll run across something familiar, the language of which just hadn’t resonated with me until that moment. I was doing some legal research recently and experienced one of those times.

EC 56347 provides the legal requirement that the public schools in California must give Individualized Education Program (IEP) copies to a special education student’s educators before the student arrives in their instructional settings. I can’t tell you how many kids I’ve served whose teachers still hadn’t seen their IEPs after school had been in session for 30, 45, or 60 days.

Sometimes it was that they didn’t know the kids were on IEPs because no one told them or gave them IEP copies. Other times, they knew some of their kids were in special education, but no one was ever given IEP copies, so they didn’t know they were supposed to expect them. Other times, they got the IEPs, but didn’t have time to deal with them, threw them in a drawer, and forgot about them. By the time the first report cards of the school year came out, these kids were train wrecks.

Moreover, this section of the regulations requires that staffs always have access to IEPs, know and understand their content, and know which parts of the IEP they are responsible for implementing, as well as how to implement those parts. Specifically, it reads:

A local educational agency, prior to the placement of the individual with exceptional needs, shall ensure that the regular teacher or teachers, the special education teacher or teachers, and other persons who provide special education, related services, or both to the individual with exceptional needs have access to the pupil’s individualized education program, shall be knowledgeable of the content of the individualized education program, and shall be informed of his or her specific responsibilities related to implementing a pupil’s individualized education program and the specific accommodations, modifications and supports that shall be provided for the pupil in accordance with the individualized education program, pursuant to Section 300.323(d) of Title 34 of the Code of Federal Regulations. A copy of each individualized education program shall be maintained at each schoolsite where the pupil is enrolled. Service providers from other agencies who provide instruction or a related service to the individual off the schoolsite shall be provided a copy of the individualized education program. All individualized education programs shall be maintained in accordance with state and federal pupil record confidentiality laws.
(Amended by Stats. 2007, Ch. 56, Sec. 51. Effective January 1, 2008.)

This State regulation provides procedural accountability for situations such as when an IEP sits in a special education department filing cabinet without a special education student’s general education teachers knowing anything about it or the accommodations they are supposed to be providing in their classrooms to that child. The federal regulations are not as exactly precise.

34 CFR Sec. 300.323(d) states:

Accessibility of child’s IEP to teachers and others. Each public agency must ensure that—

(1) The child’s IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation; and

(2) Each teacher and provider described in paragraph (d)(1) of this section is informed of—(i) His or her specific responsibilities related to implementing the child’s IEP; and(ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.

One would think these requirements are rather implied in the first place, but without a procedural requirement to enforce, it would become a nuanced matter of substantive appropriateness to be argued in due process rather than a cut-and-dried, yes/no matter of procedural compliance. Given that this is a State level mandate exclusive to California, I rather suspect that what this looks like from State to State is a hodge-podge of fairly variant regulations, with the barest basically repeating the language of the federal regulations.

I’m not disappointed that my students in California have a little richer language to fall back on, but even the federal regulations can be sufficient when staffs working with a student have no idea what his/her instructional, communication, behavioral, or socialization needs are. There is no excuse for IEPs to be written simply as a matter of compliance on paper, then filed away while students receive cookie-cutter, one-size-fits-all services that fail to address their individual needs.

The whole point of special education is to individualize the instruction to the unique needs of the student with special needs. You can’t do that with one-size-fits-all programming. The IEPs tell you how the program is supposed to be individualized for each special education student, which is going to be different from one learner to the next.

As inefficient and inconvenient as this may sound to the school district’s accounting department, this is supposed to be how it works. Because this is supposed to be how it works, budgetary considerations cannot be lawfully used to make programming decisions for special education students in the IEP process. IEPs must be based on the individual needs of the student and nothing more. They are also legally enforceable documents.

A special education student’s actual education must be rendered in conformity with his/her IEP (see 34 CFR Sec. 300.317(d)). When IEP documents aren’t taken seriously by school site staff – and it happens; I’ve seen it – the whole point of special education pretty much goes out the window.

People in public education who treat IEPs as a pesky administrative inconvenience also tend to have no idea how to individualize instruction or understand why it’s necessary. They are also usually the first to resort to disciplinary measures rather than positive behavioral interventions. They appear to be of a particular ilk that rather reminds me of Donald Trump.

The push for high quality teachers in education has meant a push towards the application of science in the delivery of education. This isn’t just in special education; it’s in all domains of public education. While innovation obviously isn’t happening everywhere, it’s not like it isn’t happening at all. There are public schools out there that are doing the work to apply the science, take data, and further develop evidence-based practices.

Following an IEP as described by the regulations and in conformity with scientific method pretty much guarantees measurability and valid data collection. A highly qualified teacher would expect there to be a measurable strategy in place for a student with exceptional needs as a matter of professional common sense, even if he/she was unaware of the special education legal requirements. The fact that the law requires for some form of enforceable documentation that describes what everybody is supposed to be doing just reinforces the importance of the IEP document.

Which is why it blows my mind that we still have entire campuses, if not entire school districts, that have cultivated a culture of apathy around the IEP process and the documentation requirement. They are more preoccupied with whether they used the right form than the program the form is supposed to describe or the student for whom the program is written.

They think they’ve done their jobs because there is an IEP … somewhere. But, they don’t use it as a living document and a guide to the delivery of instruction. They think satisfying the paperwork requirement alone keeps them out of hot water.

From the perspective of those who actively enforce special education law, these kinds of campuses are generally full of low-hanging fruit for procedural complaints and due process claims alleging a failure to implement an IEP as written. Very often, when these violations occur, it’s because teachers and support staff haven’t been given copies of students’ IEPs, don’t know where the IEPs are kept (or the IEPs are kept in a locked cabinet or computer program to which they have no access), and have no idea that they are supposed to be doing anything special for their students on IEPs.

For those of us who only rely on the legal system when appeals to common sense and human decency fail, it’s absolutely mortifying to attend IEP meetings on these campuses. Documents meant to serve constructive purposes end up doing so only as evidence to be given to investigators and/or judges.

The one method of data collection research has shown to be the most effective and valid in education has turned out to be, not surprisingly, the methods employed by practitioners of Applied Behavioral Analysis (ABA). This instructional methodology became common in the public school context primarily for the purpose of providing specialized instruction to students with autism.

ABA is a science that applies to all living things, not just students with autism. To that end, it strictly relies on the application of scientific method. When ABA data collection methods are used as a model for all the types of measurement that need to occur in a student’s special education program, particularly with respect to measurable annual goals, the reliability of that data becomes impeccable.

There comes with ABA an approach called “fidelity checking” that takes data on staffs’ implementation of the plan in addition to the performance data taken on the student’s participation in the plan. That way, if there is a problem and the student isn’t learning, and the plan has been implemented as written, then the problem is clearly the design of the plan.

If the plan hasn’t been implemented as written, then there’s no way to know what is exactly responsible for any program failures. If there are design issues, they will be masked by the implementation failures and you’ll have to first get everybody to implement the plan as written like they should have in the first place and give it some time until you have enough data to determine if correcting the implementation failure fixed the problem or if it appears the program design is responsible. That eats up valuable time during which educational benefit can be lost; this could potentially become an actionable claim the student would have against his/her education agency.

At that point, you not only have a procedural violation on your hands, you’ve got evidence of lost educational benefit and, thus, credible allegations of substantive harm. That’s a viable due process claim against the public education agency.

I have no idea why some education agency administrators either fail to see that they are walking their public education agencies right into this kind of a mess or just don’t care. They will treat any parent request as unreasonable without a credible explanation as to why. It’s amazing what they will put in a Prior Written Notice.

My point, here, isn’t to spur conflict, but to point out where it can occur so it can be prevented. Parents need to know that some schools, or even entire school districts, can fail to take the IEP process seriously, which can hurt their children. But, because these are matters of procedure, parents can file compliance complaints with their State’s Department of Education purely on the matter of the rules being broken without getting into substantive things, like teaching methodology or other more nuanced arguments that are more suited for due process.

Just by complaining about the rules that aren’t being followed, the State can Order the school to comply with the law or risk direct State involvement. This will usually fix a lot of the substantive problems that might also be going on because the IEP wasn’t being implemented as written.

If staffs are not being given access to the IEP documents as a matter of policy, a State complaint should effect a systemic change in that policy that fixes the problem for everybody. I’ve seen State education agencies order staff training, people having to sign off that they read a memo that told them what to do so they can’t say they didn’t know if they ever mess up again in the future, and other interesting methods of effecting systemic improvements.

The States don’t want to have to take over mismanaged school districts, but they have to if their federal special education dollars for the whole State are at risk because a particular school district keeps messing up. Ordering local education agencies to clean up their acts is an effort to prevent the loss of federal special education dollars to the whole State, not just the offending education agency.

The language of the Individuals with Disabilities Education Act (IDEA) holds the entire State accountable for the provision of a Free and Appropriate Public Education (FAPE). The IDEA requires a commitment to FAPE at the State level or it’s no dinero. Not that you see anybody getting into that kind of trouble very often. Clearly, enforcement remains a challenge.

Right now, the enforcement of special education law generally falls on the shoulders of parents who file complaints or take their local education agencies to due process. Very few parents have the resolve and financial resources to take on these battles, so very little enforcement actually happens.

But, as more highly qualified teachers and experts enter public education with scientific training, it’s only a matter of time before scientific method and common sense prevail over old-school politics. Parents and educators stuck in a broken system just need to keep pushing for common sense and ethics. The complaint system exists if you need it and, unfortunately, some of you do.

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