The Ironclad IEP
Or is it? Special education law blogger Jim Gerl posted today about a September 2007 case decided in the U.S. Court of Appeals for the Ninth Circuit that says that districts do not violate the IDEA unless they have "materially failed" to implement a student's individualized education program.
(The Ninth Circuit covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.)
The case involves a middle school student, Christopher Van Duyn, with severe autism. He attended school in the 2,000-student Baker, Ore., district at the time the case was brought, and his parents complained that the school did not implement his behavioral management plan and did not give agreed-upon progress reports, among other issues. Part of the problem was that the middle school did not adhere to the IEP in the same way that the student's elementary school did, the decision said.
Judge Raymond C. Fisher, writing for the majority, wrote:
Van Duyn brings to us a detailed list of complaints about the District’s variances from his IEP, arguing that the [administrative law judge] and district court were much too forgiving of the District’s failures to provide him the special instructional and support services agreed to in the IEP. Accordingly, we must decide how much leeway a school district has in implementing an IEP as it translates the plan’s provisions into action at school and in the classroom.
We hold that when a school district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the child’s IEP. A material failure occurs when there is more than a minor discrepancy between the services provided to a disabled child and those required by the IEP.
The late Warren J. Ferguson, writing in dissent, said that the "material" language devised by the court is "unworkably vague."
Instead of trying to understand how material a failure is, we must assume that the IEP team knew what it was doing when it settled on a specific educational service. Each IEP team chooses specific services with specific quantities and durations for the purpose of providing the student with [a free, appropriate public education.] If the IEP Team had thought another, lesser service would be sufficient to provide FAPE, it would have included that service in the IEP.
That makes sense to me. My first question is, who defines "minor discrepancy"? It seems to me that if an item is in an IEP, it is important enough to be implemented. This decision seems to provide an opening for more lawsuits. I look forward to seeing what else Gerl has to write about this.