October 2007- IEP implementation:

Case of the Month: Baker School District v. Van Duyn

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IEP implementation issues are more often the subject of complaints than due process hearings. Here, the parent went the due process hearing route, arguing that the district violated the IDEA and denied the student a free appropriate public education (FAPE) by not implementing various aspects of the student's IEP.

On review, the Ninth Circuit held that "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 the services required by the child's IEP." This does not require that a child "suffer demonstrable educational harm", but "educational progress, or lack of it, may be probative of whether there has been more than a minor shortfall in the services provided."

In each instance, the court found the implementation discrepancies were not material. For example, although the middle school implemented the student's behavior plan differently than the elementary school, the IEP did not require the same implementation and the student's behavior actually improved. While the IEP did require that the student be instructed at his level, the evidence was conflicting and the court found no evidence that the student's educational progress was hindered based on any exposure to more advanced material. Also, although the middle school did not have a designated "self-contained" classroom, the district's adaptations met the "self-contained classroom" placement description based on class size, ratio and individual educational assistant support.

Note: The court is not giving districts permission to deviate from IEPs. "IEPs are clearly binding under the IDEA, and the proper course for a school that wishes to make material changes to an IEP is to reconvene the IEP team pursuant to the statute--not to decide on its own no longer to implement part or all of the IEP."

Baker School District v. Van Duyn, No. 05-35181, (9th Cir., September 6, 2007), amended opinion.

Lesson learned: Although the district ultimately prevailed on most of the issues, the case involves an IEP from the 2001-02 school year, when the student transitioned from elementary to middle school. This transition is difficult for many families, particularly those with students with disabilities. Making IEP revisions up front to address the student's needs in the middle school environment may prevent disputes down the road.