New Hot Button Issue: IEP Inplementation Part I

How much of an IEP does a school district have to implement?

You may be scratching your head at this point. We were all taught that the answer is they have to implement all of it. That may be the closest thing in special education law to a solid, "hornbook law," set-in stone proposition. We all learned early on that parents and school districts could go through extreme battles over what an appropriate IEP should look like and contain, but that once they agree about the contents of an IEP, the IEP then defines the contours of FAPE.

As we have noted on this blog before, special education law is "new" law. As a rule of thumb, new law may be defined as anything that did not come over on the boat from England. Because the federal special education law came into existence in the 1970's, it qualifies as very new law. Most lawyers do not like new law. They like contracts and property law where there are clear-cut answers and they can give advice to their clients with some degree of certainty concerning what the law is. New law, on the other hand, is very unsettled. There is even a built in cycle of uncertainty with brand new laws: the statute is enacted; federal regulations are promulgated; state regs are promulgated; hearing officer decisions emerge, court decisions are handed down; the statute is reauthorized, usually with amendments to the law; new federal regs are issued ...(and this process repeats itself over and over until the last comic is standing or there is nobody left to vote off the island...)(sorry the last bit of reality TV humor is not really part of the process).

So anyway, concerning the "rule" that a district must implement all of an IEP, guess what? IEP Implementation has recently become, in our opinion, the hottest of hot button issues in special education law. This is the first part in a series on this new hot button issue.

As usual, a court decision started the ball rolling. In a two to one decision, the U. S. Circuit Court of Appeals for the Ninth Circuit held that a school district’s failure to implement an IEP must be material to constitute a violation of IDEA. Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/7). The Ninth Circuit found that minor discrepancies between the services actually provided and those specified in the IEP do not constitute a violation. A material failure occurs, the Court said, "...when the services a school provides to a disabled child fall significantly short of the services required by the child's IEP. Minor discrepancies between the services provided and the services called for by the IEP do not give rise to an IDEA violation." The majority found that failures to implement the student's behavior management plan and to present material at his level, among other allegations, were not "material failures" to implement, and therefore, there was no violation of IDEA.

Interestingly, the one dissenting judge read the statute the same way that we did. He would have found that a school district's failure to comply with the specific measures in an IEP to which it has assented is, by definition, a denial of FAPE, and, hence, a violation of the IDEA. The dissenting judge argue that IEP Teams, rather than courts, were in the best position to determine what elements are material, and therefore, require placement in an IEP.

We will have more on the hot button issue of IEP Implementation in the next installment in this series.