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MEMO To: WCT Clients From: Whitted, Cleary & Takiff, LLC

Date: February 27, 2013 Re: Timeframe for Implementing an IEP

INTRODUCTION

The following memo attempts to address the issue as to the timeframe a school district has to implement an individualized educational program (“IEP”) it has developed. As part of our review, we have examined the case law both in Illinois and other jurisdictions, the relevant provisions of the Illinois School Code, its implementing regulations, and the Individuals with Disabilities Education Improvement Act and its implementing regulations. Based upon our review, we have come to the conclusion that in this jurisdiction, an IEP must be implemented within 10 days of its development; otherwise the school district may be faced with consequences. Below, please find our analysis of this issue.

ISSUES PRESENTED

The issues are two-fold:

(1) What is the timeframe in which a school district is required to implement an IEP, which is undisputed for the purposes of appropriateness, and

(2) What relief, if any, is the family entitled to for the school district’s untimely implementation of the IEP.

ANALYSIS

I. A School District Must Implement the IEP “As Soon As Possible” and within 10 Days

from the Time of the IEP’s Development in Illinois. Courts have found the issue of the appropriateness of an IEP to be distinct from the issue of a school district implementing an IEP. “To provide a [free appropriate public education (“FAPE”)] to a student with disabilities, the school district must not only develop the IEP, but it also must

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implement the IEP in accordance with its requirements.” Doe ex rel. Doe v. Hampden-Wilbraham Regional Sch. Dist., 715 F. Supp. 2d 185, 195 (D. Mass 2010) (citing 34 C.F.R. § 300.323(c)(2)). “To allow a school merely to write up an IEP without any requirement of implementation would fundamentally undermine the purposes of the IDEA.” Id. The relevant implementing regulations of the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. § 1400 et seq., states as follows:

(c) Initial IEPs; provision of services. Each public agency must ensure that—

(1) A meeting to develop an IEP for a child is conducted within 30 days of a determination that the child needs special education and related services; and (2) As soon as possible following development of the IEP, special education and related services are made available to the child in accordance with the child's IEP.

34 CFR § 300.323 (Emphasis added.) The question then arises: What did the framers mean by “as soon as possible,” and how has the term been interpreted by the courts? Several courts have tried to resolve this question, looking to the IDEIA, its implementing regulations, and the interpreting guidelines and comments.

In Hampden-Wilbraham Regional School District, the court turned to a test created in Ross

v. Ramingham Sch. Comm., 44 F. Supp. 2d 104, 111 (D. Mass. 1999), to determine whether an IEP has been implemented. 715 F. Supp. 2d at 198. In this 1999 case, the parents were not questioning the appropriateness of their child’s IEP, but rather challenging its implementation and whether the school did what it was required to do once the IEP had been written. Id. at 195. In that case, parents challenged the school district’s failure to continue to collect data and to use the methodologies stated in the approved IEP. Id. In determining whether an IEP has been “implemented”, the Ross test looks to the following: “(1) the ‘failure’ to implement must not be a ‘complete’ failure; (2) the variance from the special education and related services specified in the IEP must not deprive the student of a FAPE; and (3) the provision of special education and related services must make ‘progress’ toward the achievement of the goals stated in the IEP.” Id. at 198 (citing Ross, 44 F. Supp. 2d at 119). In Hampden, the court found that even with the lack of data collection, there was not a complete failure to implement, and that services provided to the student were “still sufficient ‘to permit [him] to benefit educationally from that instruction.” Id. at 198 (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982)). Accordingly, to find that a school district has failed to implement an IEP and provide FAPE, one would have to distinguish their case from Hampden. Arguably, in a case where the school district does not provide any services to a student during the time in between the writing of the IEP and the student’s actual placement per the IEP, this may be considered a “complete” failure to implement the IEP; further, if no services are provided in the interim, the variance from services provided in the IEP is great and may be considered a deprivation of FAPE, leaving a student without the ability to progress towards his or her goals. The court in Evans v. Evans, 818 F. Supp. 1215, 1221 (N.D. Ind. 1993) looked more specifically to the question of what was meant by “as soon as possible” in the IDEIA’s implementing federal regulations. The issue presented as stated by the Northern District of Indiana Court was as follows: “whether the lengthy delay between the development of an IEP requiring a residential placement and the actual placement in a residential facility violates [IDEIA] as

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implemented by 34 C.F.R. § 300.342(b)(2)1.” Id. This case involved a class of plaintiffs who experienced average delays of 160 to 200 days between the development of the IEP and placement. Id. at 1218. The Evans court referred to the comment section of the applicable regulation, entitled “When IEPs must be in effect,” which explained “[i]t is expected that a handicapped child's individualized education program (IEP) will be implemented immediately following the meetings under § 300.342” and that “there can be no undue delay in providing special education and related services to the child.” Id. at 1221 (Emphasis added.) The Evans court went onto state:

First, 34 C.F.R. § 300.342(b)(2) requires that an IEP must “be implemented as soon as possible following the meetings under § 300.343” (emphasis added). Second, the answer to question No. 42 states that “[i]t is expected that the special education and related services set out in a child's IEP will be provided by the agency beginning immediately after the IEP is finalized ... However, unless otherwise specified in the IEP, the IEP services must be provided as soon as possible following the meeting” (emphasis added). The only exceptions for delay are specified in § 300.342 and the answer to question No. 4 which are “when meetings occur during vacation periods or there are circumstances which require a short delay, i.e., transportation.” The regulations did not contemplate a systematic delay, and in any event allow room for only short delays, unlike the Process' 200 days average delay.

Id. at 1222 (Emphasis added.) Accordingly, the court in Evans emphasized that an IEP be implemented “immediately after the IEP is finalized”, and finding that 160 to 200 days was not meeting the requirement of implementation “as soon as possible” per the regulations. The court in that case did not further define “short delays” as a period of time that would be considered acceptable.

The Fourth Circuit in Board of Education of Montgomery County v. Brett Y., No. 97-1936, 1998 WL 390553 (4th Cir. June 26, 1998), also addressed this issue and attempted to reconcile the applicable IDEIA regulations, past interpretive guidelines, namely Appendix C, and the state law. The Fourth Circuit looked to the interpretive guidelines addressing 34 C.F.R. § 300.342 (1997) and compared it to the State of Maryland’s regulation, finding that

The interpretive guidelines state that the special education services specified in an IEP must be provided “as soon as possible” following the meeting and that “no delay is permissible.” See 34 C.F.R. Pt. 300 app. C (question 4) (1997). The Maryland regulations specifically provide that the IEP “shall be implemented as soon as possible and not more than 30 school calendar days following its development.” Md. Regs.Code tit. 13A, § 05.01.09(C) (1991). We believe that although both phrases are somewhat ambiguous, the interpretive guideline's statement that “no delay is permissible” is plainly inconsistent with the federal regulation's statement that the IEP must be implemented “as soon as possible.” Compare 34 C.F.R. Pt. 300 app. C (question 4) (1997) with 34 C.F.R. § 300.342 (1997). We believe, however, that Maryland's thirty-day period is well

1 The regulation cited was renumbered as 34 C.F.R. §300.323(c)(2), as cited earlier in the memo, and reads primarily the same way – an IEP should be implemented “as soon as possible” after its development. 2 Question No. 4 refers to Appendix C to Part 300: Notice of Interpretation was issued by the Department of Education, Office of Special Education and Rehabilitative Services in March 1994 (previously 1981, which may have been the one referenced in this case since it is a 1993 case), to provide clarification of the Federal regulations. Appendix C is attached. Evans, 818 F. Supp. at 1221 (“Appendix C to 34 CFR Part 3002 (“Notice of Interpretation”) is equally explicit about the requirement for immediate implementation of an IEP.”)

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within the federal regulations' requirement that implementation of the IEP occur “as soon as possible.”

Id. at *9-10. Notably, the Fourth Circuit did not focus on the phrase “beginning immediately after the IEP is finalized” in the interpretive guidelines, as did the court in Evans. Rather, the Fourth Circuit found that the Maryland regulation requiring implementation not more than 30 days after the IEP’s development was in line with the federal regulation requiring implementation to be “as soon as possible.” Id. The court determined that the interpretive guideline’s provision that “no delay is permissible” was inconsistent with the regulations. Id. at *10. Accordingly, an IEP that is implemented within the 30-day timeframe, pursuant to a state regulation, would be considered in compliance with federal regulations. More recently, the Second Circuit has also approached the issue of what constitutes “as soon as possible” in D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503 (2nd Cir. 2006), stating, “Section 1414(d)does not provide a time frame for implementing an IEP after its development, but federal regulations require that an IEP be implemented “as soon as possible” after the requisite IEP meetings. 34 C.F.R. § 300.342(b)(1)(ii).” Id. at 512. In interpreting the regulation, the Second Circuit further stated, “Section 300.342(b)(1)(ii), however, requires only that IEPs be implemented ‘as soon as possible,’ not ‘immediately,’ or within 30 days, as Plaintiffs assert.” The Second Circuit stated the following in its opinion, adding further light to the interpretive guidelines:

In 1997, Congress amended various parts of the IDEA. Pub.L. No. 105–17, 111 Stat. 37. The Secretary of Education subsequently published a notice of proposed rulemaking in the Federal Register to amend certain portions of the regulations governing the IDEA. 62 Fed.Reg. 55026 (Oct. 22, 1997). The notice invited comments on the proposed regulatory changes. Id. With respect to § 300.342, several commentators stated that the terms “as soon as possible” (in the regulation itself) and “undue delay” (in the accompanying commentary) were “not meaningful” and requested that the Secretary define or clarify those terms. 64 Fed.Reg. 12406, 12579 (Mar. 12, 1999)3. Commentators also recommended that the Secretary impose an “outside timeline,” such as 15 days, for the implementation of IEPs following the meetings. Id. The Secretary declined these suggestions, stating it “would not be appropriate to add an outside timeline under § 300.342(b) for implementing IEPs, especially when there is not a specific statutory basis to do so.” Id. Nevertheless, the Secretary commented that “with very limited exceptions” IEPs “should be implemented without undue delay following the IEP meetings.” Id. The Secretary listed the following examples of “situations” that may warrant “a short delay”: (1) when the IEP meetings occur at the end of the school year or during the summer, and the IEP team determines that the child does not need special education and related services until the next school year begins[ ] or (2) when there are circumstances that require a short delay in the provision of services (e.g., finding a qualified service provider, or making transportation arrangements for the child).

Id. at 513-14 (Emphasis added.) The Second Circuit also stated, “[i]f it is determined, through the monitoring efforts of the Department, that there is a pattern o[r] practice within a given State of not 3 As part of describing the changes in Subpart C – Services, the Department of Education, in the same Federal Register, stated “Proposed § 300.301 (FAPE-methods and payments) has been amended to add a provision requiring that the State must ensure that there is no delay in implementing a child’s IEP, including any case in which the payment source for providing or paying for the special education and related services to the child is being determined.” 65 Fed. Reg. 12406, 12409 (Mar. 12, 1999).

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making services available within a reasonable period of time (e.g., within a week or two following the meetings described in § 300.343(b)), this could raise a question as to whether the State is in compliance with that provision, unless one of the exceptions noted above applies.” Id. at 514. It seems that while again “as soon as possible” was not exactly defined, the Second Circuit finding it to be a “flexible requirement,” the court took a “reasonable period of time” for implementation of the IEP to mean within a week or two, unless an exception applies. Further, the court provided factors to be considered in determining whether a delay may be considered undue. In its opinion, the court stated,

Based on this commentary, we conclude that § 300.342(b)(1)(ii) means what it says: States must implement a student's IEP “as soon as possible” after it has been developed. . . . It permits some delay between when the IEP is developed and when the IEP is implemented. It does not impose a rigid, outside time frame for implementation. Moreover, the requirement necessitates a specific inquiry into the causes of the delay. Factors to be considered include, but are not limited to: (1) the length of the delay, (2) the reasons for the delay, including the availability of the mandated educational services, and (3) the steps taken to overcome whatever obstacles have delayed prompt implementation of the IEP. Nonetheless, just because the as-soon-as-possible-requirement is flexible does not mean it lacks a breaking point.

Id. at 514. (citing Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003) (“It is no doubt true that administrative delays, in certain circumstances, can violate the IDEA by depriving a student of his right to a ‘free appropriate public education.’”)). In contrast to the above cases, the Second Circuit declined to adhere to the notion that IEPs must be implemented “immediately” per the interpretive guidelines, or within 30 days, per New York State regulations. Rather, this court found that the federal regulation was intentionally flexible, and that some delay was permitted and should basically be evaluated for its reasonableness on a case-by-case basis.

With regard to Illinois specifically, it is arguable that a school district has only 10 days to implement an IEP. Pursuant to the applicable state regulations, found in the Illinois Administrative Code,

When an IEP has been developed or revised, the district shall provide notice in accordance with 34 CFR 300.503(b) and (c) immediately to the parents, and implementation of the IEP shall occur no later than ten days after the provision of this notice.

23 Ill. Admin. Code 226.220(a) (Emphasis added.) In Board of Education of City of Chicago v. Illinois State Board of Education, 741 F. Supp. 2d 920 (N.D. Ill. 2010), the Northern District of Illinois Court, the federal court of relevant jurisdiction, addressed the issue of whether compensatory services in an IEP are required to be implemented within ten days per the state regulation. Id. at 923. The Court recognized the applicable IDEIA federal regulation, requiring that the IEP be implemented “as soon as possible.” Id. at 924. Coinciding with the federal regulation, the Court recognized the above-mentioned provision of the Illinois Administrative Code, requiring that the “implementation of the IEP shall occur no later than ten days after [notice of action].” Id. (citing 23 Ill. Admin. Code § 226.220). The plaintiff in that case, Chicago Public Schools (“CPS”), interestingly, did “not dispute that generally IEP services must be implemented within ten days in Illinois.” Id. And, while CPS attempted to argue that the IDEIA does not require implementation of compensatory services within ten days of an IEP, the Court found that there was no distinction

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between compensatory and other services for the purposes of the Illinois regulation. Id. (“The code simply states that the implementation of the IEP shall occur within ten days of notice.”) Accordingly, the Court found that the Impartial Hearing Officer had statutory authority to demand the IEP be implemented in a “timely manner.” Id. The Court provided the following reasoning:

A FAPE by definition requires that the instruction and services “comport with the child's IEP.” As the court in B.B. v. Perry Township School Corporation reasoned, if [School District's] argument was accepted, “a school district could draft a detailed and elegant IEP, choose to ignore parts of it, and resist any remedy unless the child and his parents could show that the failures were in fact causing serious educational harm to the child.” No. 07C323 & 07C731, 2008 WL 2745094, at *10, 2008 U.S. Dist. LEXIS 53246, at *27 (S.D. Ind. July 11, 2008). The Court finds that a showing of serious educational harm was not necessary to address the procedural violation in this case. See id. (finding that “a simple procedure to correct a relatively modest (and undisputed) failure” need not turn into “a global debate about the overall success of the child's educational program”)

Id. at 924-25 (Emphasis added.) Accordingly, the Court found the IEP to not be implemented in a timely manner, the compensatory services had not been provided, a specific start date for the services had not been offered, contact information of the staff providing the services had not been shared, and the record did not include any information regarding “any practical difficulty encountered by [CPS] that would have prevented implementation . . .” Id. at 925. As such, in Illinois, it seems that the Court has upheld the requirement that an IEP be implemented within 10 days of its development and finds that timeframe to meet the federal regulation requirement of the IEP’s implementation “as soon as possible.” However, failure to comply with the deadlines established by state regulations for implementing IEPs, may not, by itself, violate the IDEIA. See D.D. ex rel. V.D. v. New York City Bd. of Educ., 480 F.3d 138, 138-39 (2nd Cir. 2006) (on petition for rehearing) (2d Cir. 2007). See also Evans, 818 F. Supp. at 1223 (“IDEA does not preempt state law if the state standards meet the minimum federal guidelines.”) It is also important to note that in this particular Illinois case, there was nearly a 7-month lapse in the implementation of the IEP at issue. Nonetheless, a strong argument may be made for the implementation of an Illinois special education student’s IEP within the ten-day time frame from the time it is developed.

II. Relief for Failure to Timely Implement IEP

The issue of what relief, if any, may be awarded to a family where a school district fails to timely implement an IEP is not clearly addressed in the case law. The standard of review is different where a parent initially accepts the IEP developed, and then later challenges the sufficiency of the school district’s implementation of the IEP. L.J. ex rel. N.N.J. v. School Bd. of Broward County, 850 F. Supp.2d 1315, 1319 (S.D. Fla. 2012). Courts have addressed complaints regarding the failure to implement IEPs using the “material failure” approach. Id. See Houston Indep. School District v. Bobby R., 200 F.3d 341, 349 (5th Cir.2000). “A party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.” Id. at 1319-20 (Emphasis added) (citing Bobby R., 200 F.3d 341, 349 (5th Cir.2000)). See also, Board of Educ. of Tp. High Sch. Dist. No. 211 v. Michael R., 2005 WL 2008919, at *14 (N.D. Ill. 2005); Sumter County School District 17 v. Heffernan ex rel. TH, 642 F.3d 478 (4th Cir. 2011) (although failure to perfectly execute the IEP does not necessarily amount to denial of FAPE, failure to implement substantial or significant provision of the IEP violates IDEA.); N.D. v. Hawaii Dept. of Education, 600 F.3d 1104 (9th Cir.2010),

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citing Van Duyn ex rel. Van Duyn v. Baker School Dist. 5J, 502 F.3d 811 (9th Cir.2007) (material failure to implement the IEP is more than a minor discrepancy between the services a school actually provides and services required under the IEP.) An IEP implementation failure, without more, does not constitute a per se denial of a FAPE or a per se violation of the IDEA. Id. at 1320 (citing.Burke v. Amherst School District, 2008 WL 5382270, *11 (D.N.H. Dec. 18, 2008); see generally Van Duyn, 502 F.3d at 821–22; Bobby R, 200 F.3d at 344–45.) The materiality approach in effect then provides school districts flexibility in implementing IEPs, yet still holding them accountable for material failures and for providing a meaningful educational benefit to the disabled child. Bobby R., 200 F.3d at 349. The L.J. court went onto state, “[t]he materiality standard does not require that the child suffer demonstrable educational harm in order to prevail in an implementation failure claim, although the child's educational progress, or lack of it, may be probative of whether there has been more than a minor shortfall in the services provided.” Id. at 1320.

The IDEIA provides that a court may “grant such relief as [it] determines is appropriate.” 20 U.S.C. § 1415(i)(2)(B). Compensatory education is granted under the IDEIA when an IEP fails to confer some educational benefit, more than de minimis, to a disabled student. ““[T]he right to compensatory education accrue[s] from the point that the school district knows or should know of the IEP's failure. That said, the disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem.” Mary T. School Dist. of Philadelphia, 575 F.3d 235, 249 (3d Cir. 2009) (citing M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 395 (3d Cir. 1996)). Pursuant to well established case law, parents also have the option to send their child to a private program and seek retroactive tuition reimbursement from the school district and state, however they “do so at their own risk.” Forest Grove Sch. Dist. v. T.A. 557 U.S. 230, 247 (2009). Further, parents challenging an IEP are entitled to reimbursement only if the school district fails to provide a FAPE and the private school unilateral placement was proper under the Act, “regardless of whether the child previously received special education or related services through the public school.” Id. Based on the foregoing, where a school district fails to timely implement a student’s IEP, resulting in a material failure to implement substantial or significant provisions of the IEP and failing to meet the Illinois 10-day time frame and the federal regulation requiring that the IEP be implemented “as soon as possible,” the district may be required to reimburse the parents for the period of deprivation of FAPE.

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