New Hot Button Issue: IEP Inplementation

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.

 
In the previous installment in this series, we discussed Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/2007). In that decision, the Ninth Circuit majority found that minor discrepancies between the services actually provided and those specified in the IEP do not constitute a violation of IDEA. To constitute a violation, a school district’s failure to implement an IEP must be material, the court ruled. 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."
 
 
This came as pretty big news to many of us, including the dissenting judge on the Ninth Circuit Court of Appeals panel, who thought that the "rule" was that a district pretty much had to implement all of an IEP. We also pointed out that "rules' in special education law generally must be written in pencil and on scratch paper and placed in a looseleaf binder.
 
 
Special education law, it seems, is new law. We don't have "hornbooks." It isn't like the lawyer's best friends- contracts and property law. Things keep changing. Nobody knows how a court is going to rule until the court rules, and occasionally, not even then.
 
 
Well, as one might well expect, Van Duyn is probably not going to be the last word here. That's where the hot button status comes in. Other courts have reached the opposite conclusion
 
 
For example, in DD by VD v. New York City Bd of Educ 465 F.3d 503, 46 IDELR 181 (2d Cir. 10/12/2006), the United States Court of Appeals for the Second Circuit was presented with the school district’s argument that partial implementation of IEPs constituted the necessary ”substantial compliance” required by IDEA. The Court rejected that argument and held that substantial compliance in IDEA pertains only to a district’s right to receive funding. The Court concluded that FAPE obligation as defined in part by the child's IEP, on the other hand, requires “compliance.” End of discussion.

 
If the Second Circuit opinion sounds a bit different to you than the holding of the Ninth Circuit, welcome to the uncertain world of special education law! If you prefer clarity of rules and centuries of precedent, you just might be a property lawyer. Forget lawyers, imagine the looks I get when I try to reconcile these types of disparate outcomes to teachers and building principals or to parents. It must be a tough time to be a professional educator or to be a parent of a child with a disability.

 


 
 

A fresh look at special education law. Jim Gerl is a consultant for a number of state education agencies, and he is a frequent speaker on special ed law topics. He has presented at many national and regional conferences, and he has given interviews for numerous publications. He's also a due process hearing officer and mediator for a number of states. Contact jimgerl@gmail.com