Wednesday, September 3, 2008
New Hot Button Issue - IEP Implementation Part III
I've gotten a bit of flack for my previous posts concerning my reading of IDEA that an IEP should be implemented. End of discussion.
The recent caselaw requiring a material failure to implement is, in my opinion, a significant change in the law. It has always been true that a de minimis failure to implement (eg. PT provider is sick for a few weeks) generally is not a denial of FAPE. (This is where all the lawyers say, "bad facts make bad law." There is often a kernel of truth behind cliches; indeed, why would one go through a due process hearing and layers of court appeals over a few hours of PT?)
For the most part, however, courts and hearing officers have required full implementation. For the doubters, here is a sampling of some recent cases: Roxanne J v. Nevada County Human Services Agency 46 IDELR 280 (E.D.Calif 11/28/6) (Court upheld HO who found a denial of FAPE where the district failed to provide psychological services called for by an IEP) Chicago Public Sch.s Dist. No. 299 (SEA IL 2/15/6) (here the school district provided only 50% of the services required by an IEP for the student’s fourth grade year, the student was denied FAPE) Bd of Educ of New York City 46 IDELR 299 (SEA NY 11/9/6) (District denied FAPE by failing to provide a climate controlled classroom as required by the IEP); Guntersville City Bd of Educ 47 IDELR 84 (SEA Ala. 8/18/6) (Where district inconsistently implemented the student’s BIP in her IEP, FAPE was denied); Sanford Sch Dist 107 LRP 8794 (SEA Maine 10/31/6) (failure to provided reading services required by IEP is denial of FAPE); Indiana Area Sch. Dist. 45 IDELR 25 (SEA Pa. 1/19/6)(The treatment of the student by her teacher is part and parcel of an appropriate education).
It will be interesting to see where this new line of material IEP Implementation cases takes us. Let me know what you think.