ARD Committees put a lot of time and effort into drafting clear, ambitious, and supportive IEPs. We attorneys spend a lot of time training teams on drafting legally compliant IEPs, reviewing IEPs, and negotiating IEPs. But what happens next? Implementation is where the magic happens. And implementation lapses are frequently where due process and state complaints happen. Here are five tips to support consistent implementation and avoid trouble.

1. Start with a clear IEP

Maybe this should be step “zero” because it is technically prior to implementation. But having a clear IEP is the foundation needed for consistent implementation. If team members disagree about the meaning of accommodations or how to implement a goal, execution is likely to falter. So try to avoid terms that are vague or undefined, like extended time, frequent breaks, and preferential seating. And if using particular tools or practices, such as a sensory diet, prompting hierarchy, or writing rubric, consider including an explanation or attachment so everyone has a common understanding. Also, remember the “stranger test” when drafting goals: a stranger should be able to pick up the IEP and understand how to implement and measure the goal. Specifying the circumstances and mastery criteria for goals is especially important.

2. Get the IEP to all team members

This tip may seem obvious, clearly team members need access to the IEP in order to implement it, but it is worth repeating. Cases where a general education teacher did not realize they were supposed to be making accommodations or implementing a behavior plan or where a service provider did not know that the student’s minutes had changed are not uncommon. Each person who has a role in implementing the IEP needs to have the IEP and understand their role, including teacher assistants and substitutes. Ideally, have clear procedures to distribute IEPs at the beginning of the school year as well as any time you have a new student or updated IEP.

3. Plan for the unexpected

Under “normal circumstances” implementation may be going smoothly, but what happens if a teacher is absent without notice? Or if a service provider resigns? Or a global pandemic shuts down schools? Sub plans that include the accommodations and modifications needed by students with IEPs are an important first step. Preparing for less frequent and predictable contingencies can be trickier. Then a combination of good planning and a prompt response can help minimize the impact of any disruptions.

4. Document implementation

As lawyers, we have to emphasize documentation. If a parent challenges the team on implementation, how can you demonstrate compliance? Documentation is key. When the team is drafting the IEP, think ahead about how it will be implemented and documented on a day-to-day basis. Checklists, data sheets, work samples, lesson plans, service logs, progress monitoring, and schedules are a few examples to document that staff members are providing accommodations and modifications, working on goals, and providing the instruction called for on the IEP.

5. Monitor and Communicate

To be sure that implementation is consistent, regular check-ins are essential. This type of informal monitoring can be a good opportunity for a case manager or administrator to confirm not only that all team members know their responsibilities and are implementing their parts of the IEP, but that everything is going well. If some accommodations are not being implemented, is that because they are no longer needed? Or if a student is frequently missing a related service, is that a scheduling issue, a behavior issue, or something else? Catching these implementation glitches early and digging in to identify causes can help get implementation back on track. Finally, regular communication with parents about IEP implementation (not just when there is a problem) can help them understand how the IEP works in practice, build rapport and trust, and position parents to better participate and contribute in ARD meetings.

While IEP implementation is a legal requirement, remember that not all lapses result in a denial of FAPE. The IDEA requires that students receive special education and related services “in conformity with” or “in accordance with” an IEP that meets the requirements of the IDEA. Courts have interpreted these phrases to include some tolerance for minor gaps rather than requiring perfect implementation. Whether a delay or disruption results in a denial of FAPE will depend on the length of time the service or support was not provided, the importance of that service or support to the student, and any efforts the school made to mitigate or remediate the lapse.

Keep these tips in mind as you prepare for the new school year. And reach out to our Special Education Team with questions or for support to keep implementation consistent and recover from any shortfalls. Plus, once you have a great IEP and consistent implementation, what’s next? Progress monitoring. Check back for our next post!