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Tool 45: “He Gets that Anyway, No Need to Write It in” - Yes There Is, and Here’s Why

THE RULE

Under the Individuals with Disabilities Education Act (IDEA), a free appropriate public education means services provided in conformity with an IEP that meets the requirements of §§ 300.320 through 300.324 (34 C.F.R. § 300.17(d)). The IEP is the instrument. What is in it is owed. What is outside it is a favor.

The rule that makes this concrete is 34 C.F.R. § 300.323(d). The district must ensure that 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 (34 C.F.R. § 300.323(d)(1)). And each of those teachers and providers must be informed of his or her specific responsibilities for implementing the IEP (34 C.F.R. § 300.323(d)(2)(i)), and of the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP (34 C.F.R. § 300.323(d)(2)(ii)).

Read the last 5 words. In accordance with the IEP. The duty to inform the substitute, the new teacher, the science teacher who joins in January - that duty attaches to what the IEP says. It does not attach to what Mrs. Alvarez has quietly been doing since October.

Two more rules put the accommodation where it belongs. The IEP must include a statement of the supplementary aids and services to be provided to the child, and the program modifications or supports for school personnel that will be provided (34 C.F.R. § 300.320(a)(4)). And an IEP must be in effect for the child at the beginning of each school year (34 C.F.R. § 300.323(a)) - the beginning, before anyone in the new building has met your child.

Writing it in does not require a whole new meeting. After the annual IEP Team meeting for a school year, the parent and the district may agree not to convene the team, and may instead develop a written document to amend or modify the current IEP (34 C.F.R. § 300.324(a)(4)(i)). If changes are made that way, the district must ensure the IEP Team is informed of them (34 C.F.R. § 300.324(a)(4)(ii)). Changes may be made by the team at a meeting, or by amending the IEP rather than redrafting the whole document (34 C.F.R. § 300.324(a)(6)). “It would take a whole meeting” is not a reason. There is a 1-page way.

And the accommodation belongs in the IEP because the child needs it, not because of the box the eligibility label sits in (34 C.F.R. § 300.304(c)(6)).

WHY IT MATTERS

The sentence sounds generous. “He gets that anyway. We don’t need to write it in.” It is usually said by a good teacher who is telling the truth about her own classroom.

The problem is that her classroom is not the child’s whole education.

Teachers leave. They take leave, they take another job, they retire in March. Substitutes arrive with a seating chart and no history. Buildings change: elementary to middle, middle to high, one district to another. Nothing about the unwritten kindness follows your child through any of those doors. The next teacher opens the IEP, because the IEP is the document the district must make accessible to him and must inform him about (34 C.F.R. § 300.323(d)). If the accommodation is not in there, he will not be told about it, and he has done nothing wrong.

The second problem is proof. An accommodation that was never written was never promised, so it was never breached. There is no notice to point to and no line to enforce. If the district later says the accommodation is unnecessary, the informal 2 years your child spent using it every day are, on paper, 2 years in which the IEP did not say he needed it.

The third problem is the child. A 12-year-old who has to ask each new adult for the thing he needs, and explain why he needs it, and be told no by some of them, learns something about asking. Writing it in takes that job off him.

There is no cost to the district in writing down what it is already doing. If the district will not write it down, ask why in writing, and keep the answer.