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Tuesday, May 19, 2015

Special Education Law 101 - Part VI, #IEP

From Jim Gerl's Special Education Law Blog

By Jim Gerl, Esq.
May 14, 2015

Our series providing an introduction to special education law continues. Previous posts have introduced two basic concepts underlying IDEA, free and appropriate education (FAPE), and least restrictive environment (LRE). Last week we discussed eligibility and identification. Today, we will look at selected IEP issues.

The Individualized Educational Plan (hereafter sometimes referred to as “IEP”) is at the heart of the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et seq (hereafter sometimes referred to as the “IDEA”.)

In the seminal decision in Board of Education, Hendrick Hudson Central School District v. Rowley, 455 U.S. 175, 102 S.Ct. 3034, 3038, 553 IDELR 656 (1982), the U. S. Supreme Court noted that the function of the IEP is to tailor the free and appropriate education required by the IDEA to the unique needs of the student with a disability.

In a subsequent decision, the Supreme Court referred to the IEP as the “primary vehicle for implementing” the congressional goals underlying the IDEA.
Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 597, 559 IDELR 231 (1988).

The Supreme Court has also described the IEP as “the modus operandi of the Act,” requiring a “comprehensive statement of the needs” of a student with a disability and the “specially designed instruction and related services to be employed to meet those needs.” Burlington School Committee v. Department of Education,
471 U.S. 359, 105 S.Ct. 1996, 2002, 556 IDELR 389 (1985).

More recently, the Supreme Court called the IEP Team meeting process “the central vehicle” for collaboration in the cooperative process the Act establishes between parents and school districts. Schaffer v. Weast,
546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005).

Some IEP Issues

Issues pertaining to IEPS are among the most frequent to appear in due process hearings. Here are some fundamental points:


Issues pertaining to individualized education programs are governed by IDEA §§ 612(a)(4) and 614 (d)-(f). See, 34 C.F.R, §§ 300.320-300.323, 300.324 – 300.328.



Other Notable Cases

D.F. & D.F. ex rel N.F. v. Ramapo Central School District 105 LRP 57524 (2nd Circuit, 11/23/05).

The Court notes that the case raises an issue as to whether it is proper to utilize prospective or retrospective analysis of an IEP. The court stated that an IEP is a snapshot, not a retrospective. In striving for appropriateness, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, i.e., at the time the IEP was formulated. Contrast, MS by Simchick v. Fairfax County School Board, 553 F.3d 315, 51 IDELR 148 (4th Circuit, 1/14/09).

In a recent trend involving cases alleging failure to implement IEPs, courts have increasingly taken a stance that to be actionable, the failure to implement must have been "material." This trend follows the reasoning of the Ninth Circuit Court of Appeals in Van Duyn ex rel Van Duyn v. Baker School District,

5J 481 F.3d 770, 47 IDELR 182 (9th Circuit, 4/3/07)

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