Addressing Failure-to-Implement Claims

The pandemic will likely exacerbate legal challenges related to IEPs in special education.

Topics: Special Education

When the COVID-19 pandemic initially shut down schools nationwide in March 2020, many educators immediately shifted instruction to online learning. And for the majority of schools, that strategy continued into the 2020–2021 school year.

That so many could pivot to an entirely new learning modality is a credit to school leaders and educators. Making the shift to online learning wasn’t easy, especially for those delivering and receiving special education. Many facets of special education favor in-person instruction or face-to-face contact.

As we start the new school year and the pandemic recedes further in our rearview mirrors, you’ll hear a lot of talk about how schools should make up for educational experiences that students with disabilities might have missed or that were impossible to replicate through online learning.

You might even hear rumblings about potential legal action from parents for alleged educational shortcomings or for the “failure to implement” portions of a student’s individualized education plan (IEP) in the 2020–2021 school year.

This article offers guidance should you confront a failure-to-implement claim, and it outlines steps that might help you avoid legal claims and reduce your school’s risk by addressing any potential shortcomings that might have occurred.

What Failure Looks Like

Spoiler alert: Not every failure to implement a portion of an IEP represents a viable legal claim. At the extreme, parents might file a claim alleging that the school district failed to implement an IEP. The term speaks for itself: Parents argue that the school district failed to execute its end of the bargain, and therefore the child is owed something.

Such claims are easy to make, but the bar for success is high. Jurisdictions typically require parents to demonstrate that there was a material breach to the IEP that denied the child a free, appropriate public education—the touchstone of special education law.

Put another way, the missing services or programs must be more than a minor shortfall and instead violate significant provisions of the IEP. If a child made progress even when some services weren’t implemented, it might be evidence that no material breach of the IEP occurred.

The typical remedy for a failure-to-implement claim is compensatory services: The school district provides some level of services—and not necessarily an exact match for the services lost—to get the child back on track.

Heading Off Failure

You don’t have to wait for a threat of being sued for failure to implement to take action. I strongly advise educational leaders to take a proactive approach, if you haven’t done so already.

As students return to school, be sure that all of your teachers and special educators tune in to see how their students are doing. Ask yourself this question early and often: Are students making progress, especially in the areas designated to be addressed by an IEP?

Remember, parents are part of the IEP team.

If not, might this be explained by services or programming that were interrupted or missed due to the pandemic in the last school year? The closer the link between programming delivered and services missed, the stronger the case is for a material breach.

I suspect that the vast majority of students with IEPs—even those who might have missed some services because of the pandemic—are going to be OK, and that’s a credit to the amazing work and commitment of public school principals. But if there are gaps that can be explained by a lapse in services during the pandemic, think about ways to remediate those with additional services or programming in this school year.

Collaborate and Listen

Protective parents will view any services missed as a fatal breach of an IEP. To address such situations and minimize the chances that they escalate, listen and find common ground whenever possible. This is simultaneously solid practice and risk reduction.

Remember, parents are part of the IEP team. They have valuable information that must be considered. The law and regulations covering special education envision a collaborative process. You might find some relatively easy solutions to a failure-to-implement claim that benefit the child and satisfy the parents.

Note that federal and state guidance continues to evolve on this matter. Hopefully, any regulations that emerge between the time I write this and the time you read it surpass the wisdom of the federal guidance that asked school leaders to make their “best effort” in delivering special education services in 2020. Seek out and review any updates.

No matter what that guidance says, the advice to be proactive and collaborate is solid and should be a general rule of thumb when considering special education services. Building a collaborative process with parents not only ensures compliance with the law and reduces risk, but it also might lead to insights that enhance the delivery of special education.

Mark Paige is associate professor of public policy at the University of Massachusetts Dartmouth, a former school law attorney, and a board member of the Education Law Association.