Date Published: Dec 31, 2009
Source: 
Buffalo Public Interest Law Journal
Authors: 
David Ferster
Volume: 
28
Page Numbers: 
71-104

This article advocates that cases regarding IEP implementation should be decided through a 'per se' approach, thus requiring that all aspects of the IEP are followed. To do otherwise denies a student of a free and appropriate public education.

 

    "IDEA has generated considerable litigation over what constitutes a FAPE. Disputes over the adequacy of an IEP are relatively common; parents and schools often disagree over which services and supports are necessary for a disabled student to receive an "appropriate" education." (p.76)

 

    "IEP implementation litigation is uncommon. Few courts have addressed whether IDEA's requirement schools offer a FAPE "in conformity" with an IEP means that schools must provide services in complete conformity, or merely substantial conformity, with the IEP. Three analyses have been suggested; courts could apply the traditional Rowley standard to such cases and ask whether the student gained educational benefit from the IEP as it was implemented; they could apply a materiality standard and find substantial implementation failures deny FAPE, but de minimis failures do not; or they could apply a per se standard and find all implementation failures deny a FAPE.

     This article suggests the per se standard is consistent with the purpose of IDEA, to ensure that each disabled student gain meaningful educational benefit from their IEP." (p.103)

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