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)