Hot Button Issue: IEP Implementation - Addendum

When I do caselaw updates at conferences, I often include a topic on Hot Button Issues. IEP
Implementation is now in that category. I asked a group of special ed administrators recently, "how much of an IEP do you have to implement?" I was reassured when about all couple hundred of them said "all of it!" (I am purposefully omitting any expletives.) I'm glad that I was not the only one reading the law this way.

I then explained the Van Duyn decision. 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. (For the record, and believe me there is ALWAYS a record, I strongly disagree with this holding and I believe that it misstates the law.)

Then I reminded them that special education law is new law. 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. It is tempting to use the phrase ad naseum, but Latin isn't really my thing.

Then I told them not to worry because they do not live in the Ninth Circuit. Then I ask them again, "how much of an IEP do you have to implement?" and again they all said "all of it!" At least for now, they are right. Look for a flurry of new cases on this topic.