IEP, identified needs and tools: if they are not implemented, the constitution is violated. The case

One applicant requested that his right to benefit from the services of a communication assistant expert in the LIS language for the entire duration of school lessons and not for only eleven hours as provided for in his own region. The council believes that the appeal is well founded, because the complaint in it complains about the violation of the rules and principles in law no. 104 of 1992, which require that in the school environment full assistance is given to the disabled.

The standard
The regional administrative court for Lombardy with the sentence of 29.08.2022 N. 01952/2022 notes that Art. 3, section 2, of the law no. 104 of 1992 provides that disabled people must be guaranteed benefits determined in their favor in relation to the nature and consistency of the disability, the overall residualization of the individual capacity and the effectiveness of the rehabilitation therapies.
Regarding the school environment in particular, articles 12 and 13 of the same law n. 104 of 1992 and Art. 5 of Legislative Decree no. 66 of 2017, which also stipulates that after the intervention of the health assessment, which gives rise to the right to social services, a document called “operational profile” must be drawn up for each disabled student in preparation for the training of the Individualized. Education Plan (IEP). From the combined provisions of articles 7, section 2, lit. a) and g), and 9 section 10, of the Legislative Decree n. 66 of 2017, it appears that the IEPs are prepared and approved (provisionally until June and final, usually, no later than October) by specific Working Groups set up in each school from the team of co-owners or the class council . , with the participation of the student’s parents and specific professional figures, internal and external to the school, who interact with the class and the student himself. The working groups are supported by the multidisciplinary evaluation unit. The second section of the mentioned art. 7 of Legislative Decree no. 66 of 2017, to let. b), c) and d), then specify that the purpose of the IEP is to identify the assessment of the state of the disability, to identify the tools, strategies and methods to create a learning environment that is functional to the satisfaction of the educational needs is. of the disabled student. Especially the Lett. d) stipulates that the IEP determines the modalities of didactic support, including the proposal of the number of hours of support for the class.

The fundamental role played by the IEP
It is therefore obvious to the judges the fundamental function of the EIP carried out in the protection system of the disabled student, because this document, in addition to the extent of his needs, identifies the tools necessary to deal with them, including, as mentioned, those of school support . It is also evident that the failure or incomplete implementation of the provisions in this document, especially regarding the protective tools, actually make it impossible for the disabled student to go to school profitably, with consequent violation of the rights that be anchored. of the rules illustrated above.

The violation of school integration is unconstitutional
For the Lombardy Regional Administrative Court, the verdict is clear about the violation of the constitution. At this point, it should be noted that the violation of these rights also includes the violation of the rules and principles referred to in the articles. 3, 32, 34 and 38 of the Constitution. In this sense, the sentences of the Constitutional Court n. 215 of 1987 and no. 52 of 2000, in which the importance of the school integration of the disabled and the fundamental nature of school education was highlighted, the use of which can be ensured exclusively through specific integration and support measures, including the services of specialized Staff (see in this sense also TAR Campania Naples, Section IV, March 27, 2020, n. 1271).

If you do not guarantee every hour of school help, you risk jeopardizing the school path
The case submitted to the Board’s investigation is an emblematic example of violation of the above-mentioned rights, because, in the absence of assistance from experienced personnel in the LIS languagethe applicant is unable to see what is being communicated to him by the teachers, this circumstance makes school attendance practically useless in periods in which such assistance is not guaranteed. (…) It should also be noted that, as stated in some precedents of the section, these services must also be provided to the same extent for the following school years until the periodic updates of the IEP are carried out, must foresee their continuous indispensability for the purposes of the profitable use of school services by the needy subjects who benefit from them (see TAR Lombardia Milano, Section III, February 16, 2021, n. 431; ID. February 10, 2020, n 277; Id. July 11, 2013, No. 1802).

Guide to completing the IEP

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