IDEA: Procedure Matters

When the IDEA was last amended and re-authorized (eons ago), Congress took heed of the schools’ argument that most IEP disputes can be resolved short of a due process hearing if the parents communicate their concerns. To address this, Congress built in a thirty-day resolution period after a due process complaint is filed and before an impartial hearing is permitted to begin. Unless it is waived, parents may not go forward with their due process complaint without first participating in a resolution meeting with the school district. If the school and parents reach a mutual understanding, a resolution agreement is memorialized subject to judicial enforcement.

So, what if the District made an error in preparing the IEP sent to the parents and identified a 12:1:1 class as the special education service instead of the 15:1 class discussed by the CSE? May that error be corrected at the resolution meeting, conforming the IEP to be consistent with the CSE’s recommendation at the meeting? Not without express parental agreement according to a recent decision by the US Court of Appeals for the 2nd Circuit.

In Bd. of Educ. of the Yorktown Central School District, the school district issued an IEP in August erroneously placing the student in a 12:1:1 class at its school, although no such class existed and although such was not the recommendation at the CSE meeting. The parents unilaterally enrolled the student in a private school and filed a due process complaint to obtain tuition reimbursement. During the thirty-day resolution period, school officials met with the parents, discussed the error and followed up with a new IEP sent to the parents reflecting the intended 15:1 class. The parents, however, did not receive the newly issued IEP until the 31st day, and well after they had enrolled their child elsewhere.

The SRO and District Court appeared to agree that an IEP can be corrected during the thirty-day resolution period, but found the district’s notice to the parents of the corrected IEP to be untimely. The Court of Appeals, however, unequivocally rejected any notion that the resolution period is intended to allow schools to correct IEP deficiencies without express written agreement of the parents. It determined that the August IEP was the operative IEP and, since the 12:1:1 class did not exist, the IEP could not be implemented, resulting in the school district’s failure to offer a free appropriate public education. Parents were entitled to tuition reimbursement.

Our Takeaway; Practical Tips

1. Avoid the problem: proofread the IEP that is sent to the parents; compare it to minutes or notes of the meeting.
2. Ensure that the Prior Written Notice sent to the parents after the CSE meeting and before the IEP is implemented accurately reflects the CSE’s recommendation and sets forth the reasons for that recommendation.
3. As soon as an inaccuracy is noted, seek to amend the IEP by agreement in accordance with the process set forth in Part 200 of the Commissioner’s regulations.
4. If the inaccuracy is not noted until the parents file a due process complaint notice, promptly convene a resolution meeting and seek written parental agreement to amend the IEP to conform to the discussion at the CSE meeting, recognizing that the partial resolution may not resolve all issues.
5. Failing an agreement to amend the IEP pursuant to “3” or “4” above, convene a new CSE meeting ASAP, with proper notices, to correct the IEP. Indicate in the meeting notice that the purpose of the meeting is to correct the IEP to accurately reflect the CSE’s discussion; do not rely on IEP software’s catch all “program review”.
6. Remember, the IEP is a legal document; each word matters and procedural compliance is key. If you need guidance in navigating the often complex and confusing regulations, as interpreted by the federal courts, contact our office’s special education lawyers, Susan Johns, Jennifer Mathews and Catherine Muskin.