Failure to Implement the IEP: The Third Dimension of FAPE Under the IDEA

After distinguishing the development of “failure to implement” (FTI) the individualized education program (IEP) as a third dimension beyond the procedural and substantive dimensions of FAPE (free appropriate public education) first established in Board of Education v. Rowley, this article provides a comprehensive yet concise synthesis of the three approaches to FTI. More specifically, the first section summarizes the materiality/benefit approach, which—like the two-step approach for procedural violations but on a more intertwined basis—requires both a substantial, or significant, FTI and an insufficient benefit. The second section traces the materiality-alone approach, which requires only a substantial failure. The third section demarcates the per se approach, which finds a denial of FAPE for any FTI beyond one that is clearly de minimis or negligible. After a summary overview, the final section advocates the per se approach as the appropriate policy, whether as a matter of Congressional or judicial adoption.