Procedural Rights- When is a Procedural Violation a Denial of FAPE?
According to the law, a procedural violation causes a denial of FAPE if it impedes the child’s right to a FAPE, significantly impedes the parent’s ability to participate in the IEP process, or causes the child a deprivation of educational benefits.
For example, if there is a 60-day timeline to hold an IEP after returning an assessment plan, and if the meeting is held on the 61st day, there may not be a denial of FAPE. Even though technically speaking, it was a procedural violation, a
one day delay in holding the IEP team meeting would probably not impede the child’s right to a FAPE, would not significantly impair the parent’s right to participate in the IEP process, nor cause a deprivation of an educational benefit to the child.
But let’s say it took four or five months for the district to conduct the assessments and hold the IEP meeting when they were supposed to do it within 60 days. In that case, there may very well be a denial of FAPE. The child potentially lost
several months of services during the time period where the IEP meeting was held and the time period in which it should have been held.
What about the failure to implement the IEP? When does that rise to a level of a denial of FAPE?
In order to constitute a denial of FAPE, the failure to implement must be more than just a minor discrepancy between what was in the IEP and what was actually implemented. It must be a material failure to implement.
For example, let’s say a speech language professional missed one session with a child because the professional was ill. Is that a failure to implement resulting in a denial of FAPE? Probably not. A one session loss of service was probably not a material failure.
However, if the Speech person quits and months go by with no speech services, the parent has a strong argument that the failure to implement rose to a denial of FAPE because the child did not receive several sessions of service.
In that situation, the school district should either hire a new speech therapist, or contract with a private company to supply a therapist until the district can hire a replacement.
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