Wednesday, June 21, 2017

Special Education Law 101 - Part VI #IEP

Our series providing an introduction to special education law continues.  Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment.  Last week we discussed eligibility and identification.  Today we will look at selected IEP issues.

The Individualized Educational Plan (hereafter sometimes referred to as “IEP”) is at the heart of the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et seq (hereafter sometimes referred to as the “IDEA”.) In the seminal decision of in Board of Educ., Hendrick Hudson Central Sch. Dist. v. Rowley, 455 U.S. 175, 102 S.Ct. 3034, 3038, 553 IDELR 656 (1982), the U. S. Supreme Court noted that the function of the IEP is to tailor the free and appropriate education required by the IDEA to the unique needs of the student with a disability. Similar language is used by the high court in the recent Endrew F decision.
In a subsequent decision, the Supreme Court referred to the IEP as the “primary vehicle for implementing” the congressional goals underlying the IDEA. Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 597, 559 IDELR 231 (1988).  The Supreme Court has also described the IEP as “the modus operandi of the Act,” requiring a “comprehensive statement of the needs” of a student with a disability and the “specially designed instruction and related services to be employed to meet those needs.”  Burlington Sch. Comm. v. Dept. of Educ. 471 U.S. 359, 105 S.Ct. 1996, 2002, 556 IDELR 389 (1985).  Also, the Supreme Court called the IEP Team meeting process “the central vehicle” for collaboration in the cooperative process the Act establishes between parents and school districts. Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005).

Some IEP Issues

Issues pertaining to IEPS are among the most frequent to appear in due process hearings.  Here are some fundamental points:

Issues pertaining to individualized education programs are governed by IDEA §§ 612(a)(4) and 614 (d)-(f).  See, 34 C.F.R, §§ 300.320-300.323,  300.324 – 300.328.

D.F. & D.F. ex rel N.F. v. Ramapo Cent. Sch. Dist. 105 LRP 57524 (2d Cir. 11/23/05).  The Court notes that the case raises an issue as to whether it is proper to utilize prospective or retrospective analysis of an IEP.  The court stated that an IEP is a snapshot not a retrospective. In striving for appropriateness, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, i.e., at the time the IEP was formulated.  Contrast,  MS by Simchick v. Fairfax County Sch Bd 553 F.3d 315, 51 IDELR 148 (4th Cir 1/14/09).
In a recent trend involving cases alleging failure to implement IEPs, courts have increasingly taken a stance that to be actionable, the failure to implement must have been "material." This trend follows the reasoning of the Ninth Circuit Court of Appeals in  Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/7) 

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