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Monday, March 21, 2011

Interesting failure to implement case out of D.C.

WILSON v. DISTRICT OF COLUMBIA (D.C. 3-18-2011): District recommended ESY services, but failed to arrange transportation until the program was nearly over. Thus, the child never attended. The parent brought a claim for failure to implement. The IHO found that there was "no evidence as to any educational harm that resulted from the deprivation of these services." The Court held that the IHO had applied the wrong standard; the Court held that a “material failure to implement an IEP violates the IDEA. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP.”... “The materiality standard does not require that the child suffer demonstrable educational harm in order to prevail on a failure to implement claim.” The Court then had little difficulty in finding that the fact that the child had apparently matured and made academic progress during the following school year “while fortunate, does not excuse DCPS's failure to provide a service that [the child’s] IEP team felt was "required" for his continued development. DCPS's failure to transport A.W. to the ESY program was neither a "procedural" IDEA violation, nor a "minor discrepancy" between the IEP as written and as implemented. Because DCPS almost entirely failed to provide a service that A.W.'s IEP team determined was necessary for his educational development, it denied him the education that the law requires” (citations omitted).
        That was not the end of the story, however. The Court went on to address the question of whether compensatory services were warranted. The Court concluded that “the record lacks sufficient information for it to make an informed decision as to the proper amount, if any, of compensatory education to which [the child] is entitled.” The Court denied the District’s motion for summary judgment, however, holding that “[o]nce a student has established a denial of the education guaranteed by the IDEA, the Court or the hearing officer must undertake "a fact-specific exercise of discretion" designed to identify those services that will compensate the student for that denial.…Where the record does not allow for that inquiry, remand or additional fact-finding is necessary. The Court thus remanded the case to the IHO.