The PEI and the Right to Inclusive Education

The PEI and the Right to Inclusive Education

Education is a fundamental right guaranteed by Brazil's Federal Constitution and by a robust set of laws below it that reaffirm the legal duty toward inclusion and equity in schools. In that context, writing an Individualized Education Plan (PEI, in Brazil) is not just good pedagogical practice. It is, in fact, a legal obligation in cases where the student has specific learning requirements.

Several rules in the national legal framework, such as the LBI (Brazil's disability rights law, Lei nº 13.146/2015), the LDB (the national education act, Lei nº 9.394/1996), Decreto nº 7.611/2011 and the Federal Constitution itself, converge on guaranteeing that the education system adapts to students' conditions and particularities, and not the other way around. In addition, Technical Note 04/2021 from the Ministry of Education reinforces that a PEI has to be written whenever the pedagogical need is identified, regardless of whether a medical report or clinical diagnosis exists.

The obligation to write a PEI is therefore grounded in the school's duty to offer adequate and individualized educational support, guaranteeing the student's full participation and development on equal terms with everyone else. It is about guaranteeing not only access to school, but staying there and learning with quality, following the principles of inclusive education that guide Brazilian legislation.

In this way, the PEI stands as an essential instrument for guaranteeing the full development of students with specific learning requirements. Even so, many institutions tie writing one to the presentation of a clinical diagnosis or medical report. That requirement, however, has no legal basis.

The Brazilian Inclusion Act (Lei nº 13.146/2015)

The LBI, in dealing with the right to education, takes a view that is sensitive to and committed to the particularity of each student. Although the legal text does not directly mention the Individualized Education Plan, its obligatory character can be inferred from the principles and provisions that make up the rule, especially those dealing with removing barriers, providing adequate support and personalizing teaching.

Article 28 of the LBI provides that it is the duty of the State, the family, the school community and society to guarantee people with disabilities a quality education, on equal terms and with equal opportunity to everyone else, taking their particularity into account. That same article, in item II, determines the need to adopt individual and collective measures of pedagogical support, according to the specific requirements of the students. It is therefore a legal basis that obliges the school to plan, follow and intervene in a targeted way to guarantee access, retention and school success.

Writing a PEI is nothing other than the pedagogical realization of those individualized measures the law requires. Through it, it is possible to define specific goals, propose strategies suited to the student's profile, follow their progress and continuously reassess practice, respecting the limitations they present while also drawing out the abilities they have.

Another essential point of the LBI is what it says about removing barriers. Article 3, item IV, defines as a “barrier” any impediment, obstacle or attitude that limits or prevents a person with a disability from participating on equal terms with everyone else. Pedagogical barriers are among them. That is, if the student cannot keep up with the regular pedagogical plan, it is the school's duty to change the approach, adjust the teaching and create alternatives to guarantee the right to learn, and that is put into practice through the PEI.

Beyond that, article 28, item V, reinforces the school's obligation to promote teacher training for serving specific educational requirements, which shows that the legislation understands these adaptations as an intrinsic part of teaching, and not as exceptions dependent on a medical report.

Finally, article 27 of the LBI recognizes that people with disabilities have the right to education throughout life, aimed at their full development, preparation for citizenship and qualification for work. That includes guaranteeing that every stage of their school trajectory is accompanied by pedagogical instruments that make sure they actually learn, and the PEI is the tool that makes such follow-up possible in a systematic, organized way with clear goals.

So, even though the LBI does not cite the PEI literally, it is impossible to comply with its provisions and guarantee the right to inclusive and equitable education without individualized planning of the kind the PEI provides. It is therefore an essential and legally required instrument whenever the student requires specific follow-up, regardless of whether a formal medical diagnosis exists.

Technical Note 04/2021 from the Ministry of Education

Technical Note 04/2021, issued by the Secretariat for Specialized Modalities of Education, deals specifically with writing the PEI and reinforces that:

“Writing the PEI is tied to the student's specific educational requirements, and not to the presentation of a clinical diagnosis.”

This technical guidance makes clear that the school's focus has to be on how the student functions in the learning process, and that pedagogical assessment is enough to ground the development of a PEI.

Beyond that, the note reinforces Brazilian education's commitment to the principles of the Convention on the Rights of Persons with Disabilities, which has constitutional status.

The national education act (Lei nº 9.394/1996)

The LDB, the main rule structuring the Brazilian education system, establishes a set of principles that guarantee education as everyone's right, grounded in equal conditions for access to and retention in school, in respect for diversity and in guaranteed learning for every student.

Although the LDB also does not expressly mention the Individualized Education Plan, a systemic reading of its provisions shows that writing one is obligatory whenever it is necessary to guarantee learning for a student with specific requirements.

Article 4, item III of the LDB is clear in guaranteeing as a duty of the State the “free specialized educational support for learners with disabilities, global developmental disorders and giftedness, running across every level, stage and modality, preferably within the mainstream school system”. The presence of the term “global developmental disorders” already widens the scope of inclusive education beyond formally diagnosed disability, and the use of the word “transversal” shows that these adaptations have to be built into every pedagogical practice.

Further on, article 58, paragraph 1, establishes that there will be, when necessary, specialized support services in the mainstream school to serve the particularities of the special education group. Here, the expression “when necessary” indicates that the school itself, based on the assessment of its pedagogical teams, has both the autonomy and the duty to identify the need for individualized measures such as creating a PEI. That is, no medical report is required as a trigger, only the finding that the student has an educational requirement.

The LDB also recognizes, in article 12, item V, the responsibility of schools to “guarantee compliance with the school days and class hours established, as well as the effective learning of the students”. That reinforces that the school's focus has to be not only on attendance, but on guaranteeing the right to learn, which is often only possible through individualized planning adapted to each student's conditions.

Beyond that, article 13, items I to III, provides that teachers must take part in writing the school's pedagogical plan, write and comply with a work plan in line with that plan, and take care of student learning. That responsibility requires continuous planning, defining specific goals and strategies for individualized follow-up, which are central characteristics of a PEI.

Therefore, in light of the LDB, building an Individualized Education Plan is not a discretionary or optional act, it is a legal and pedagogical requirement whenever the student, for whatever reason, is not fully benefiting from regular teaching strategies. The PEI is the practical, planned answer to that legal obligation, because it lets the school set clear goals, follow the student's progress, continuously assess their performance and respect their individuality, their limitations and, above all, value what they are capable of.

So the LDB's commitment to a democratic, inclusive and high-quality education necessarily passes through personalized teaching when that is what it takes to guarantee that the student stays, takes part and learns meaningfully at school. In that scenario, the PEI becomes an indispensable instrument, backed not only by good pedagogical practice but by express mandates in Brazilian education law.

The right to a PEI: not always with a diagnosis, not always because of one

Continuing the reflection already built about the mistake of tying the writing of a PEI to the presentation of a medical report or clinical diagnosis, it is equally necessary to reinforce a second point that tends to create doubt and mistaken practice in schools: the fact that a student has a diagnosis, such as autism spectrum disorder, does not necessarily imply that an Individualized Education Plan is needed.

Brazilian education law, especially the LDB and the LBI, treats the right to education from the standpoint of the student's real pedagogical requirement, and not of a simple clinical classification. In other words, the focus is on the functional effect of the condition on the learning process, and not on the diagnosis itself.

Along the same lines, Technical Note 04/2021 from the Ministry of Education is explicit on this, stating that writing a PEI has to be the result of individualized pedagogical assessment, and not simply motivated by the existence of a report. That assessment has to look at school performance, the need for specific mediation, the obstacles faced in the learning environment and the kind of support the student requires in order to develop cognitively, emotionally and socially.

So it is perfectly possible that a student with a clinical diagnosis does not need a PEI. For example, a child diagnosed with level 1 autism may show good cognitive performance, enough social autonomy to take part in regular school activities and no significant impairment in their learning process. In that case the diagnosis exists, but there are no pedagogical barriers that would justify an individualized plan. The school keeps following the student, but within the general pedagogical planning of the class, with minimal adaptations if they are needed, and whenever they are useful, but without formalizing a PEI.

Writing a PEI when it is not necessary can even be counterproductive: it creates undue paperwork, diverts resources and attention from other students who genuinely require systematic follow-up, and creates a false sense that the mere existence of the plan resolves every question of inclusion.

In short, it can be concluded that it is not the diagnosis that determines the need for a PEI, but the pedagogical analysis of how that student functions in the school context. In the same way, the absence of a diagnosis does not prevent writing a PEI when the requirements are evident.

Building a genuinely inclusive school means moving past reductionist, purely medical models and adopting an approach centered on the person, on their particularity and on the concrete paths that promote their right to learn. The PEI is an extremely useful and necessary tool, but only when used with judgment, pedagogical grounding and technical basis.

Opinion CNE/CP 50/2023 and what it contributes to understanding the PEI

Opinion 50/2023, issued by the full council of the National Education Council, represents an important milestone in the debate about inclusive education in Brazil. Although this type of opinion, by its legal nature, is not binding, meaning it creates no direct legal obligations, it exercises significant interpretive and guiding influence over public education policy and pedagogical practice in the country.​

Regarding the PEI, Opinion 50/2023 offers fundamental guidance in reaffirming that writing this instrument has to be motivated by specific pedagogical requirements, and not by the mere existence or absence of a clinical diagnosis. It converges with the guidance of Technical Note 04/2021 and reaffirms the principles already established in the LDB, the LBI and the Convention on the Rights of Persons with Disabilities, which has constitutional force.​

Its relevance became even more solid with its ratification by the Ministry of Education, formalized through a decision published in the official gazette on 13 November 2024. Ratification gives the opinion official status as national guidance, reinforcing its role as a technical and pedagogical parameter for school systems and institutions. Although it still has no force of law, it now forms part of the ministry's advisory normative body, which makes it a legitimate and authorized reference in interpreting and applying inclusive policy.​

Beyond that, Opinion 50/2023 highlights the active role of schools in building inclusive educational contexts, emphasizing that the PEI is not a privilege, it is a pedagogical requirement when the student meets barriers to learning in the common curriculum. The document therefore values the pedagogical autonomy of institutions to identify, plan and carry out individualized teaching strategies that guarantee every student's right to learn.​

Therefore, even though it is not a legally binding instrument, Opinion 50/2023, now ratified by the ministry, takes on a central role as technical and pedagogical guidance for making the right to inclusive education real. Its importance lies in building an education grounded in evidence, guided by principles of equity and centered on students' real requirements, contributing to fairer, more effective and more humane practice in Brazilian schools.

The school as a space of pedagogical responsibility

The PEI is an instrument of individualized pedagogical planning and practice and has to be written on the basis of observing, assessing and analyzing the student's real requirements.

Requiring a medical report as a prerequisite for a PEI limits the right to inclusive education, which runs against constitutional principles, the LBI, the LDB and the specific regulations of the Ministry of Education.

It is therefore the duty of schools, with legal backing, to act pedagogically and responsively, adopting measures that guarantee the full development of every student, according to what they require and what they are capable of.

References

BRASIL. Constituição da República Federativa do Brasil de 1988. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed: 25 Apr. 2025.

BRASIL. Lei nº 9.394, de 20 de dezembro de 1996. Establishes the guidelines and bases of national education. Available at: https://www.planalto.gov.br/ccivil_03/leis/l9394.htm. Accessed: 25 Apr. 2025.

BRASIL. Lei nº 13.146, de 6 de julho de 2015. Institutes the Brazilian Inclusion Act. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13146.htm. Accessed: 25 Apr. 2025.

BRASIL. Ministério da Educação. Nota Técnica nº 04/2021/SEMESP/MEC. Available at: https://www.gov.br/mec/pt-br/assuntos/notas-tecnicas. Accessed: 25 Apr. 2025.

CONSELHO NACIONAL DE EDUCAÇÃO. Parecer CNE/CP nº 50/2023. Available at: https://www.in.gov.br/en/web/dou/-/despacho-de-homologacao-526148488. Accessed: 25 Apr. 2025.

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