This article provides a synthesis of the three approaches to IEP implementation cases. More specifically, Part I summarizes the materiality/benefit approach, which-like the two-step approach for procedural violations but on a more intertwined basis-requires both a substantial non-implementation and an insufficient benefit. Part II summarizes the materiality-alone approach, which requires only a substantial failure. Part III summarizes the per se approach, which results in a denial of FAPE for any failure to implement beyond one that is clearly de minimis. Finally, Part IV provides conclusions and recommendations for IHOs in light of the incomplete precedential pattern to date. The overall purpose is to provide an objective canvassing of the pertinent case law so that IHOs make defensible decisions in IDEA failure-to-implement cases. This purpose is particularly significant for informed and independent choice in the many jurisdictions without clearly settled judicial authority.
Perry A. Zirkel and Edward T. Bauer,
The Third Dimension of FAPE Under the IDEA: IEP Implementation,
36 J. Nat’l Ass’n Admin. L. Judiciary
Available at: http://digitalcommons.pepperdine.edu/naalj/vol36/iss2/1