Broken Promises: When Does a School's Failure to Implement an Individualized Education Program Deny a Disabled Student a Free and Appropriate Public Education?
Abstract
Broken Promises: When does a school’s failure to Implement an Individualized Education Program deny a disabled student a Free and Appropriate Public Education?
Abstract
The Individuals with Disabilities Education Act (IDEA) entitles all disabled students to a free and appropriate public education (FAPE) provided in conformity with an Individualized Education Program (IEP). Disputes over the adequacy of an IEP have generated a substantial body of caselaw, mainly considering the types of services a school must provide to offer an “appropriate” education. Due, in part, to the fact most published court opinions address substantive FAPE disputes, many commentators have analyzed the substantive definition of FAPE. This article, however, explores IEP implementation, which is an issue less frequently litigated than substantive issues, but is perhaps more relevant to educators and parents of disabled students.
Often, parents and schools agree on the elements of an IEP. They concur as to which services and supports are necessary for a child to receive an “appropriate” education. Nevertheless, sometimes a school is unable to provide the services it agreed to offer when it developed the IEP. For example, an IEP may provide that a particular student is to receive ten hours of speech therapy per month, but the school may not have a speech therapist available to provide these services. In this case, has the school denied a FAPE because it did not fully implement the IEP? What if the school provides nine hours of speech therapy per week instead of the ten hours called for in the IEP? Few courts have considered these types of questions.
This article discusses three standards that could apply to IEP implementation disputes. First, courts could apply the same standard they use to analyze substantive FAPE disputes; they could consider whether the portions of the IEP the school actually implemented offered the student an “appropriate” education. Second, courts could apply a “materiality” standard and hold that a school denies a student a FAPE only when it fails to implement “significant” portions of the IEP. Third, courts could apply a per se approach and find that any implementation failure denies a FAPE.
This article does not attempt a textual analysis or consider principles of statutory construction in seeking to identify the appropriate implementation standard. Instead, this article notes that the text of IDEA is ambiguous, and it looks to the purpose of IDEA and the common expectations and experiences of teachers and students. The article draws, in part, on the author’s six-years of experience as a special education teacher to conclude that the per se approach would offer a clear legal standard that would best effectuate the intent of IDEA, which is to ensure that each disabled student receive an appropriate education. Because schools largely control which services and supports are included in an IEP and because IDEA permits courts to narrowly limit remedies for inconsequential implementation failures, courts should apply a per se standard to implementation disputes. Ask most parents, teachers, and school administrators, “How much of an IEP does a school have to implement?” Most would answer, “all of it, of course!” This answer would be correct if courts apply the per se standard advocated here, which is consistent with the legislative intent of IDEA and the expectations of educators and parents.