Strategies and Legal Issues in Implementing IEPs
in Compliance with IDEA
by
Jose L. Martín, Attorney at Law
Richards Lindsay & Martín, L.L.P.
13091 Pond Springs Road, Suite 300
Austin, Texas 78729
[email protected]
Copyright © 2014, RICHARDS LINDSAY & MARTÍN, L.L.P.
The Legal Duty to Implement IEPs
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Statutory Provision—The IDEA requires that IDEA regulations require that
“[a]t the beginning of each school year, each local educational agency, State
educational agency, or other State agency, as the case may be, shall have in effect,
for each child with a disability in the agency's jurisdiction, an individualized
education program….” 20 U.S.C. §1414(d)(2)(A).
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Main Regulatory Provision—IDEA regulations require that “as soon as
possible following development of the IEP, special education and related services
are made available to the child in accordance with the child’s IEP.” 34 C.F.R.
§300.323(c).
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Availability to teachers—The child’s IEP must be “accessible” to each
teacher, related services provider, or any other service provider responsible for
its implementation. 34 C.F.R. §300.323(d)(1).
A failure to show that teachers received copies of the IEP they were
responsible for implementing can be fatal to a school’s defense of a legal
action claiming a failure to implement. In a Montana case, there was no
evidence that a school implemented a student’s numerous
accommodations, or that it provided the IEP to the responsible teachers.
Thus, there was a finding of failure to implement the IEP. In re Student
with a Disability, 111 LRP 8947 (SEA Montana 2011).
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Notification to teachers of their role—Schools must ensure that every
staffperson responsible for implementing the IEP is “informed of his or her
specific responsibilities related to implementing the child’s IEP; and the specific
accommodations, modifications, or supports that must be provided for the child
in accordance with the IEP.” 34 C.F.R. §300.323(d)(2).
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When does a failure to implement the IEP amount to a denial of FAPE?—While
the regulation appears to require that IEP services be implemented as set forth in
the IEP document, caselaw has established that the IEP does not have to be
implemented perfectly in order for the school to avoid liability. A number of
circuit courts of appeal have taken the position that only a material failure to
implement the IEP or a failure to implement a significant or essential
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component of the IEP will amount to an actual denial of FAPE.
In Gillette v. Fairland Bd. of Educ., 725 F.Supp. 343 (S.D.Ohio 1989), a
District Court held that a failure to implement portions of an IEP did not
constitute a denial of FAPE where “significant provisions” of the IEP were
implemented properly. The Fifth Circuit cited that case with approval in
the first such case to reach a court of appeal, Houston Independent Sch.
Dist. v. Bobby R., 31 IDELR 185 (5th Cir. 2000), where a students speech
therapy was not provided for some months (compensatory services were
later provided) and there was also a failure to provide some AP services
(parent declined compensatory services). The Court held that the
applicable legal standard was the following:
“[W]e conclude that to prevail on a claim under the IDEA, a party
challenging the implementation of an IEP must show more than a de
minimis failure to implement all elements of that IEP, and, instead, must
demonstrate that the school board or other authorities failed to implement
substantial or significant provisions of the IEP. This approach affords local
agencies some flexibility in implementing IEP's, but it still holds those
agencies accountable for material failures and for providing the disabled
child a meaningful educational benefit.”
Several circuit courts followed the lead of Bobby R. and adopted the Fifth
Circuit’s standard. See Neosho R-V Sch. Dist. v. Clark, 38 IDELR 61 (8th
Cir. 2003)("We cannot conclude that an IEP is reasonably calculated to
provide a free appropriate public education if there is evidence that the
school actually failed to implement an essential element of the IEP that
was necessary for the child to receive an educational benefit"); Van Duyn
v. Baker Sch. Dist., 47 IDELR 182 (9th Cir. 2007)(“A material failure to
implement an IEP violates the IDEA…. A material failure occurs when
there is more than a minor discrepancy between the services a school
provides to a disabled child and [those] required by the child's IEP.”); A.
P. v. Woodstock Bd. of Educ., 55 IDELR 61 (2nd Cir. 2010)(Failure to
provide an aide, as required in IEP, for a period of time did not amount to
a “material failure” to implement the IEP in light of student’s progress);
Sumter County Sch. Dist. 17 v. Heffernan, 56 IDELR 186 (4th Cir.
2011)(“As other courts have recognized, the failure to implement a
material or significant portion of the IEP can amount to a denial of
FAPE”); See also, Van Duyn v. Baker School District: A "Material"
Improvement in Evaluating a School District's Failure to Implement
Individualized Education Programs, David G. King, NORTHWESTERN JOURNAL
OF LAW & SOCIAL POLICY (Vol. 4, Issue 2, 2009)(“At the circuit level, there is
a growing trend towards requiring that the failure to implement be a
substantive failure before it is cognizable, meaning that the nature of the
failure is evaluated in relation to the student’s IEP and the district’s
implementation”).
Recent Case Example—More recent cases tend to apply the legal analysis in
the federal court cases note above. For example in the case of Santa Fe Ind.
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Sch. Dist., 63 IDELR 207 (SEA Texas 2013), a parent’s allegations that the
school did not always notify her of missing assignments on the day they
came due, or consistently implemented preferential seating for the
student, was deemed a de minimus (minor) implementation claim that did
not support a finding of denial of FAPE. The hearing officer instead found
that the parent’s claim was that the accommodations were not
implemented in precisely the manner she wanted. But, the exact manner
of implementing the accommodations was a matter of methodology, and
within the teacher’s discretion. The schools failure, on limited occasions,
to notify the parent on the day missing assignments came due was
harmless, since the teacher provided the student an extra five days to
complete the assignments.
The Educational Benefit Interpretation—Some courts, however, interpret
Bobby R. as ultimately asking whether the IEP implementation failure
deprived the student of a FAPE. Although the analysis has been criticized,
some courts nevertheless look to whether the student received an overall
educational benefit despite a failure to implement the IEP. In Leighty v.
Laurel Sch. Dist., 46 IDELR 214 (W.D.Pa. 2006), the court scrutinized a
parent’s claim that there was a failure to implement the IEP, stating that
“generally speaking, in order to defeat an IDEA-based claim alleging that
it has failed to properly implement an IEP, a school district must
demonstrate that: (1) the failure to implement was not a "complete"
failure; (2) the variance from the special education and related services
specified in the IEP did not deprive the student of a FAPE; and (3) the
provision of special education and related services made meaningful
progress toward the achievement of the specific goals stated in the IEP.”
Thus, to some courts, even if a material portion of the IEP was not
implemented, if the student ultimately received a FAPE despite the lapse,
there is no violation of IDEA. See also Wanham v. Everett Pub. Schs., 50
IDELR 44 (D.Mass. 2008)(holding the Independent Hearing Officer did not
err in “requiring [the student] to show harm where services listed in the
IEP were not delivered”); Burke v. Amherst Sch. Dist., 51 IDELR 220
(D.N.H. 2008)(District’s failure to implement the videotaping objective did
not deprive the student of a FAPE); Falzett v. Pocono Mountain Sch. Dist., 44
IDELR 121 (3rd Cir. 2005)(holding that “substantial evidence exists in the
record to support the finding that [the school] provided [the student] with
meaningful educational benefit despite some failures”).
Some courts are more strict—Schools should be aware that a failure to
implement a substantial component of a child’s IEP may be deemed a
denial of FAPE even if the student receives educational benefit despite
such failure. See Manalansan v. Bd. of Educ. of Baltimore City, 35 IDELR
122 (D.Md. 2001)(good faith attempt to implement aide assistance
provision of IEP, where school had difficulty finding and keeping aides,
did not excuse failure to implement a significant component of the IEP).
Similarly, in Turner v. District of Columbia, 61 IDELR 126 (D.D.C. 2013),
the court ruled that a parent does not have to establish that the
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implementation failure resulted in harm to the student’s education. Thus,
although there was not significant evidence that the school’s failure to
provide special education instruction for several months caused harm to
the student, the lack of services was a material implementation failure and
thus a denial of FAPE. Specifically, the court looked at the proportion of
special education services that were not implemented in comparison to
what was received, and found that the failure to provide support in
regular classes was complete. “The total lack of special education support
within the general education environment is therefore clearly
problematic.”
Implementation Analysis Under §504
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Office for Civil Rights (OCR) position under §504—In the OCR investigation
of White Deer Ind. Sch. Dist., 38 IDELR 20 (OCR 2002), a school developed a
§504 plan for a student with Tourette’s, ADHD, and obsessive compulsive
disorder. It called for “examinations of reduced length,” among other
accommodations. Some of the student’s teachers did not implement the
accommodation for final exams. OCR found that the student performed well
overall, and the teachers reported that the accommodation was not required. One
worked with the student one-on-one for the test, and gave the student extra time.
An Art teacher reported that the test was simple and required no
accommodation. Another had provided the student with prior information on
the test items instead of reducing its length. OCR stated that “when a district fails
to make a modification that has been deemed necessary by [the section 504
committee],… such failure does not in and of itself constitute a denial of FAPE.”
With analysis similar to that of the Fifth Circuit in the Houston ISD v. Bobby R
case, OCR concludes that the lapse in implementation did not amount to a denial
of FAPE, pointing out the student’s consistent A-B grades over several years.
In another case, a 504 committee included an accommodation of
“modified tests” in a student’s 504 plan. The parent and staff came to
disagreement over the type of test accommodations that were to be
implemented. Archer City Ind. Sch. Dist., 40 IDELR 218 (OCR 2003). Staff
provided extra time, afterclass time, preschool time, and some
opportunities to take tests home and re-take them. Two teachers failed to
provide timely progress reports several times, due to illness and
conference attendance. OCR did not find a violation of §504.
Another district’s 504 plan for a student with ADHD contained an
accommodation requiring teachers to notify his parent when his grade
average in any class fell below 75 by e-mail. Jim Ned Cons. Ind. Sch.
District, 40 IDELR 131 (OCR 2003). The regular policy called for written
deficiency notices to be sent to parents in the middle of grading periods
when grades fall below 70. The school did not implement the
accommodation as stated in the 504 plan, although it implemented all
other accommodations and even went beyond the written plan. The high
school principal reported to OCR that the accommodation in question was
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not added because any educator believed it was necessary, but rather only
because the parent insisted on adding it. OCR held that although there
was a failure to implement the plan as written, the student was not denied
a FAPE.
Comments—The three OCR letters above appear to indicate that OCR
analyzes claims of failures to implement 504 plans similarly to federal
courts ruling on failures to implement IEPs in special education. Under
the current IDEA caselaw, failures to implement IEPs do not necessarily
constitute denials of a FAPE. The failure must be in an essential area of the
IEP in order to rise to the degree of denial of FAPE. A key fact common to
the three letters of findings summarized above is that the students did not
perform poorly academically, despite staff’s failure to implement the
plans fully. Certainly, schools should not take these cases to mean that
implementing accommodations, whether from an IEP or a §504 plan, is an
optional requirement. Any failure to implement an accommodation plan
incurs a risk of legal liability on the part of the school. And, if students do
not fare well academically during a period of non-implementation, an
OCR finding of violation of 504 or an adverse IDEA hearing decision is far
more likely.
Miscellaneous Questions and Issues in IEP Implementation
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Can lack of resources excuse a failure to implement the IEP?—The U.S.
Department of Education (USDE) has long held that lack of resources, whether of
staffing, facilities, or finances, is never an excuse for failing to provide the
required IEP services. Letter to Angelo, 213 LRP 9074 (OSEP 1988).
Practical Note—What if a resources situation arises, such as the loss of a
particular provider in an area where there will be difficulty in arranging
for an alternate provider? The only course of action for schools is to make
best efforts to arrange for a new provider. During any period of nonimplementation of a service, it may be advisable to contact the parents in
writing, convene an IEP meeting, explain the situation, and commit to
providing full compensatory services once a provider is found.
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Can staff objections excuse a school’s failure to implement the IEP?—The
USDE has indicated that objections or lack of cooperation from school staff must
be addressed by schools internally, in the same manner as other staff-agency
disagreements. Letter to Fox, 211 IDELR 26 (OSEP 1978). If the issue is not
resolved, and there is a material failure to implement an IEP, the school is
exposed to liability. Even if there is a labor pact or collective bargaining
agreement to the contrary, when an IEP team determines that a child needs a
specific service in order to receive FAPE, it must provide it. Letter to
Anonymous, 17 IDELR 391 (OSERS 1990).
Practical Note—Campus administrators with supervisory capacities over
staffpersons must quickly address staff disagreements with IEP services or
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accommodations that are leading to implementation problems. Staff must
be aware that if they fail to implement portions of IEPs for which they are
responsible, they are placing the school at risk of legal liability, as well as
risking possible adverse employment action. If needed, the school may
have to arrange for other staff to implement the IEP services or
accommodations while the issue is addressed by administration. Hearing
officers or courts do not generally care why the IEP has not been
implemented or what particular staffperson is to blame—they will find
the school in violation of IDEA if the implementation failure is material or
if it has resulted in educational harm to the student.
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Documentation of Implementation of IEP—In a due process hearing, the
parent would bear the burden of proving that there was a material failure to
implement the IEP in order to show a denial of FAPE and obtain relief. But,
schools may want to document the implementation of the IEP services and
accommodations in order to demonstrate that the IEP has been implemented
properly. In a Florida case, a district had no documentation to show that it had
provided speech therapy services and classroom accommodations to a student.
In addition, existing documentation showed the student did not receive all the
special education instruction set forth on his IEP. Since the evidence also
indicated that the student was not making progress on his IEP goals, the hearing
officer agreed with the parent that the problem was a failure of implementation
of the IEP. Lee County Sch. Dist., 114 LRP 23165 (SEA Florida 2014). Similarly,
an Indiana district had no documentation of teachers’ implementation of
accommodations calling for teacher notes to be provided to the student, as well
as allowing the student to use notes and math formulas during tests. Although
the school had sent an email survey to the teachers asking them if the
accommodations were implemented, there was no actual documentation of the
accommodations, such as copies of distributed teacher notes, notations on
teacher lesson plans, or other anecdotal notes. East Allen County Sch. Corp., 63
IDELR 60 (SEA Indiana 2014).
Practical Note—While compliance with the IEP is more important than
documenting compliance with the IEP, documentation of proper and
consistent implementation of the IEP can make or break a case,
particularly in situations where the student is not making expected
progress. Documentation of services should take place with service logs,
while documentation of accommodations can take place by means of
teacher notes, notes on lesson plans, keeping copies of modified work,
notations on calendars, or other methods. Crucially, there must be
documentation that the IEP is made available as soon as possible to staff
responsible for implementing it. If the school uses electronic means to
share IEPs, there should be electronic documentation of staff’s receipt of
the IEP.
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Is collaboration among school staff required for proper implementation of
the IEP?—A failure of staff to coordinate services and communicate regarding a
student’s progress can result in a failure to implement the IEP and a denial of
FAPE. In Houston Ind. Sch. Dist. v. V. P., 53 IDELR 1 (5th Cir. 2009), a student
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with auditory processing and speech impairments needed a variety of services in
order to receive FAPE. Key service providers, however, never discussed the
student and her progress outside of IEP team meetings, an FM loop system was
out of service for two months and was implemented by a school nurse who had
little training, other staff had only minimal training on addressing the student’s
auditory issues, and the student did not attend her required content mastery
center for more than two months. The court found that the missing services and
staff’s failure to coordinate and communicate about the child resulted in a denial
of FAPE and a resulting liability for the costs of private placement.
Practical Note—This type of problem can arise in situations where the IEP
is complex and many types of services, aids, supports, and
accommodations are being provided. At the end of IEP meetings in this
type of case, a supervisor may want to sit down with the responsible
staffpersons and list all IEP components, set deadlines for completion,
make clear who is responsible for what, and set up collaboration and
consultation schedules. The supervisor, moreover, may want to
periodically self-monitor IEP implementation with a prepared checklist, so
that problems can be identified internally, rather than by means of parent
complaints.
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Short or minor lapses in IEP implementation may not rise to the level of a
denial of FAPE—Although schools are well advised to implement IEPs to the
letter, minor lapses in IEP implementation that do not result in significant
educational harm to the student will not generally rise to the level of a denial of
FAPE. In Sarah Z. v. Menlo Park Sch. Dist., 48 IDELR 37 (N.D.Cal. 2007), a
school failed to implement behavioral support services for two weeks for a
teenager with speech impairments and behavioral problems. The court
determined that the two-week lapse in behavioral services was not significant
enough to deprive the student of a FAPE.
Similarly, in Catalan ex rel. E.C. v. District of Columbia, 47 IDELR 223
(D.D.C. 2007), although a speech therapist missed a few sessions and cut
some others short due to student fatigue, the court found there was no
denial of FAPE, as the occasional deviations from the IEP were not
significant or substantial enough to deprive the student of a meaningful
educational benefit. The court noted that other circuit courts had followed
the lead of the Fifth Circuit Court’s decision in Houston Ind. Sch. Dist. v.
Bobby R., which held that only material implementation failures rise to the
level of a denial of FAPE. “Thus, a court reviewing failure-to-implement
claims under [the IDEA] must ascertain whether the aspects of the IEP
that were not followed were ‘substantial or significant,’ or, in other words,
whether the deviations from the IEP's stated requirements were
‘material….’” Here, the court held a handful of missed speech sessions
and some others cut short due to student fatigue were neither substantial
nor significant.
Practical Note—In the Catalan case above, it proved crucial that the speech
therapist documented that some speech sessions had to be cut short due to
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student fatigue issues. If such a problem were persistent, an IEP team
meeting might be necessary in order to address the problem, such as by
breaking down sessions into shorter segments. It also helped that there
were only a handful of missed sessions due to therapist absence. Ideally,
any sessions missed due to provider issues would be made up within a
reasonable time.
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Does a student’s failure to progress mean the IEP was not properly
implemented?—Certainly that is possible. A natural outcome of material failures
to implement a proper IEP will be that students will fail to achieve mastery of
their IEP goals and/or general curriculum. But not every failure to make
expected progress means there was a failure of IEP implementation. In W.B. v.
Houston Ind. Sch. Dist., 60 IDELR 69 (S.D.Tex. 2012), the fact that a 9-year-old
with Autism was unable to perform certain academic tasks at the end of 2nd
grade that he was able to perform earlier in the year was found not to be the
result of any failure to implement the IEP. Instead, the court found there was a
significant alternate reasons for the student’s regression: the family’s move to
another state so the mother could be treated for cancer, attendance at a new
school, new teachers, new teaching methods. The student was unable to perform
two-digit subtraction at the end of 2nd grade, which was a skill a prior district’s
IEP indicated was already mastered. But, the court noted that the same
worksheets also showed the student had progressed to three-digit addition. The
District also produced evidence that students with Autism often have difficulty
generalizing skills to new settings. “Especially in light of the stressful
environmental changes encountered by this nine-years-old child during this oneyear period, the Court finds from a preponderance of the evidence that any lack
of progress in the advancement of W.B.'s education was not attributable to a
failure by Ms. Richards to implement the IEP.” See also Central Sch. Dist., 114
LRP 16957 (SEA Oregon 2014)(emergence of behavior issues was not proof that
communication components of IEP were not implemented, particularly in light
of evidence that speech-language services were provided per the IEP).
Practical Note—If a student is not making the progress that would normally
be expected, a school should take action through the IEP team process, and
should verify whether the IEP is being implemented properly. The IEP
team should attempt to ascertain the causes of the lack of expected
progress, which could include need for additional instructional services,
accommodations, related services, or supplementary aids. Or, the IEP goals
may have been cast too optimistically vis-à-vis the current evaluation data.
Depending on the team’s findings, the team should take appropriate
action. If there is a non-school reason for the lack of progress, such as
significant home or parent issues, as in the Houston ISD case above, those
potential stressors should be documented, and the team should consider
whether any IEP services could be brought to bear to assist the student in
dealing any such problems, such as through counseling services.
Additional related case—In Clark County Sch. Dist., 62 IDELR 278 (SEA
Nevada 2013), the parent of a 5-year-old with cognitive impairment
claimed that he returned home with injuries, and that the injuries were
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proof that the IEP requirement of “close supervision for safety” on the
school bus was not implemented. The hearing officer, however, found that
the school complied with the requirement by seating the student alone and
in close view of the bus driver, and by setting up a camera on the bus.
There was no evidence establishing when and how the student was
injured. Even if there was proof that the injuries occurred on the bus, “the
fact that the student suffered injuries does not prove close supervision was
not provided.” In addition, the injuries appeared minor, and the court
noted that more harm was probably occasioned the student by removing
him from school for a lengthy period of time.
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Implementation of behavioral components of an IEP —Escalation of
student behaviors can sometimes lead to claims that the school has failed to
implement IEP components designed to address behavior, such as behavior
intervention plans (BIPs). In Mesa County Valley Sch. Dist. 51, 113 LRP 33665
(SEA Colorado 2013), a 9th-grader with significant processing impairments and
behavior problems became agitated and volatile with transitioning from class to
class. After several aggressive incidents, the team revised his BIP accordingly.
Despite detailed BIP strategies, the principal and special education teacher could
not de-escalate an incident where the student was hitting windows with an air
pump for 20 minutes. When the district recommended placement in a
therapeutic day program, the parent initiated legal action, claiming that the
school failed to follow the BIP. The administrative law judge concluded,
however, that the parent did not prove that the school failed to implement the
student’s IEP “with fidelity and in good faith.” The problem was not a failure to
implement the BIP, or any lack of experience or credentials, but rather the
student’s inability to navigate this regular high school campus environment. The
proposed day program, moreover, would substantially decrease the number of
transitions the student would have to negotiate, which was a significant trigger
for behavioral outbursts.
Comment—Schools should note with caution, however, that a failure to
implement a student’s BIP, when behavior is a preeminent component of
the student’s educational needs, can lead to findings of denial of FAPE.
See, e.g. Mr. & Mrs. C. v. Maine Sch. Admin. Dist. No. 6, 49 IDELR 36 (D.Me.
2007)(“The 2006-07 IEP, as amended in April 2006, transparently elevated
one goal—achievement of KC's behavioral objectives—to a position of
preeminence, making clear that other IEP objectives were to yield if need
be”).
Practical Note—If a BIP has been developed and put into place in the IEP,
but problems behaviors persist, special education staff should first check
to verify consistent implementation of the BIP. Sometimes, a briefing and
Q&A session with teachers and other implementers can improve the
results of the BIP. If not, it may be time to return to an IEP meeting to
revise the BIP with updated data and additional or new ideas.
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Implementation of paraprofessional assistance—Claims of failure to
implement the IEP can arise with respect to IEP provisions calling for
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paraprofessional or aide assistance, as in the case of Manalansan v. Bd. of Educ.
of Baltimore City, 35 IDELR 122 (D.Md. 2001), where a school district failed to
consistently provide aide assistance as required in the student’s IEP. Although
the school argued that it made best efforts to implement the aide assistance, it
encountered difficulty in finding and maintaining aides that would be punctual
and consistent. The court held that the school’s good faith efforts did not
discharge its duty to implement that important aspect of the student’s IEP. In a
case where the IEP initially called for the parents’ privately provided aide to
assist the student at school, however, the court held that the school’s change in
the choice of aide was not a failure to implement the IEP, since even if the private
aide was required under the IEP, the change to a district aide was not a material
breach of the IEP. Slama v. Independent Sch. Dist. No. 2580, 39 IDELR 3
(D.Minn. 2003)(“While we understand the Plaintiffs' abundant good faith in
seeking the assignment, as a PCA, of one in whom they had great trust, the fact
remains that no parent of a public school child—whether the child is disabled or
not—is entitled to select every component of the child's education”).
Note—The Manalansan case, cited above, also stands for the proposition
that while the provision of aide assistance may be an important part of the
IEP, and thus mandatory, the student is not guaranteed any particular aide
as part of implementing that IEP component.
Practical Note—Many times, the IEP document is not sufficiently precise in
describing with specificity the role of the aide—what assistance they will
provide, at what times, in which settings, how intensive, what purpose,
etc. The more the IEP specifies the support, the less probability of disputes
over its implementation. In situations where staffing issues are creating an
implementation problem, the campus should attempt to arrange for
substitute assistance while a permanent aide can be found.
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Implementation of Extended School Year (ESY) Services—Since most state
regulations require ESY for students who are likely to experience substantial
regression without summer programming, failures to provide ESY services
required under the IEP will be found to constitute a denial of FAPE, as in the
case of Shank v. Howard Road Academy, 51 IDELR 151 (D.D.C. 2008), where a
school “forgot” to submit the required forms to ensure that a student received
ESY services as set forth in his IEP. The court found that the implementation
failure was material, and thus rose to the level of a denial of FAPE. It noted that
the IEP team itself had documented that the need for ESY was “critical.” It
therefore ordered compensatory services to be provided to the student.
Practical Note—Here, the problem was basic and bureaucratic: forms
necessary to ensure that a student would be assigned to ESY were not
completed. The system was such, apparently, that the student could not
be made to receive the services without the forms being completed by a
certain timeline. This type of system inflexibility can set up districts for
implementation lapses, thus giving rise to a need for a verification
counter-system to ensure that all students with ESY on their IEPs in fact
are signed up to receive them.
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Implementation of Related Services—Although it is not uncommon for
schools to not provide related services the first couple of weeks in the school
year, such a practice can be legally problematic, as shown in the case of R.A.-G.
v. Buffalo City Sch. Dist. Bd. of Educ., 61 IDELR 164 (W.D.N.Y. 2013), aff’d 63
IDELR 152 (2nd Cir. 2014). There, a parent of a New York student sought a class
action to end the District’s practice of not providing related services the first two
weeks of the school year. The court found that the case met the requirements for
class certification, since the practice applied to all special education students
receiving related services.
Additional related case—The fact that a New York district had in place a
back-up system in case its own related services providers were unable to
provide services helped it defend a claim of failure to implement related
services. F.L. v. New York City Dept. of Educ., 62 IDELR 191 (2nd Cir.
2014). The parent unilaterally removed the student to a private facility,
claiming the District had a history of problems providing needed services.
The court held that the parent’s claims with regard to the District’s
problems in meeting related services obligations to other students was at
best speculative with respect to her own child, and did not suffice to prove
there was a denial of FAPE. The court thus denied reimbursement for the
private placement.
Practical Note—Because they tend to be discrete pull-out services, a lapse
in related services tends to be quickly noticed by parents. Thus, sessions
missed due to provider issues should be made up within a reasonable
time, and the parent should be informed of that fact. On another point, the
Buffalo case above makes clear that there is no rule relieving districts of
their obligations to provide IEP related services at the start of the school
year. Some schools list related services in terms of sessions per semester or
year, so that there can be some flexibility in implementation if sessions are
missed the first two weeks of school, for example. Check with your state
education agency for guidance on what their expectations are in this
regard, and what practices can help with this problem.
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Implementation of Auditory Impairment (AI) Services—In M.S. v. Utah
School for the Deaf and Blind, 114 LRP 37736 (D.Utah 2014), instructors
inconsistently implemented the communication system of a student with hearing
loss, Autism, and ID. Those inconsistencies in the student’s object cues, together
with a teacher’s unilateral decision to discontinue the use of an FM trainer, a
failure to use tactile signing, and a failure to provide consistency in the
communication system across environments, amounted to a material failure to
implement the IEP. The changes in object cues interfered with the student’s
ability to communicate and receive information. “While some deference should
be given to teachers, the IEP is created by a team of individuals with various
areas of expertise and requires the classroom teacher to implement the
components, even the ones that the teacher may not agree with or care to
implement….” The court thus found a denial of FAPE, and ordered
compensatory education services.
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Practical Note—Here, the implementation lapses and failures were many.
Teachers must understand that they cannot unilaterally discontinue the
use of a device, an accommodation, or a supplementary aid, without IEP
team approval. Beyond constituting a lapse in IEP implementation, such
actions can risk claims that the school is infringing on the parents’ right to
meaningfully participate in the development of the IEP. Staff should be
trained that if they encounter problems with existing IEP services, devices,
or supplementary aids, they should contact a special education
representative, discuss the problem, and decide whether an IEP team
meeting may be necessary, rather than taking unilateral action that
essentially changes the IEP.
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