On March 3, 2021, the United States Court of Appeals for the Second Circuit made clear that the Individuals with Disabilities Education Act (IDEA) does not permit school districts to unilaterally amend an IEP during the thirty-day resolution period that follows a parent’s filing of a due process complaint.
We know that when parents contest that a school district provided a free and appropriate public education (FAPE) for their child, they have the option of placing their child in a private placement and seeking tuition reimbursement from the school district. As the first step in this process, parents must provide the district ten days’ prior written notice of their intention to do so. If parents fail to provide this ten days’ notice, they risk having the reimbursement amount reduced or denied by a hearing officer. The ten days’ notice requirement allows the district time to reassess the IEP and cure any potential deficiencies, thus minimizing its potential exposure. If the parents and the district cannot resolve the parents’ concern during the ten-day notice period and the parents proceed to enroll the student in a private school, the parents may then seek reimbursement by filing a due process complaint. Once a due process complaint has been filed, a district has thirty days from the filing of the due process complaint to resolve the complaint, known as the “resolution period.”
In Board of Education of Yorktown Central School District v. C.S., the district prepared an IEP for the student’s seventh-grade year. The IEP stated that the student would be placed in a twelve-person class, although the parents were verbally informed that the student would be in a fifteen-person class because the middle school did not have twelve-person classes. The parents rejected the IEP and notified the district that they intended to place the student in a private school. The district did not contact the parents during the ten-day notice period. The parents filed their due process complaint, alleging that the district failed to provide the student with FAPE and highlighting a fundamental contradiction in the IEP: the IEP provided that the student would be in a twelve-person class, while school personnel told them the seventh-grade classes contain fifteen students.
During the thirty-day resolution period that followed, the parents and the district attended a resolution session but were unable to reach a settlement. The district then sent the parents a unilaterally amended IEP that clarified the student would be placed in a fifteen-person class. Upon receipt of the amended IEP (which the parents alleged was received outside the thirty-day period), the parents amended their due process complaint to allege that the student was denied FAPE because 1) the initial IEP offered a program—a twelve-person class—that the district was incapable of implementing in the middle school; and 2) to the extent the amended IEP was operative, a fifteen person class was too large to provide the student FAPE.
The Second Circuit rejected the district’s argument that a school district can unilaterally amend an IEP during the thirty-day resolution period and rely on such an amended IEP in the due process hearing that follows. The Court noted that the district could have met with the parents during the ten-day notice period, at which point the error in the IEP could have been addressed. The district did not do this, and the parents were entitled to rely on the initial IEP as written when they decided to place the student in a private placement. The Court emphasized that if the district had offered to amend the IEP during the ten-day notice period, a court or hearing officer would have been empowered to consider that fact and reduce or deny reimbursement accordingly. Ultimately, the Court concluded that the student was denied FAPE because the initial IEP offered a program—a twelve-person class—that the district was incapable of implementing. The Court made no finding as to whether a fifteen-person class would have offered the student FAPE because it concluded that the district had no right to unilaterally amend the IEP during the resolution period. Thus, the Second Circuit affirmed the District Court’s order that the school district provide that parents with full tuition reimbursement for the student’s private school placement for the seventh-grade year.
In this case, the hearing officer determined that a fifteen-student class offered the student FAPE. Nevertheless, because the District erroneously initially offered a twelve-person class in the IEP and did not correct the mistake until it unilaterally did so during the thirty-day resolution period, the district was required to pay the full cost of tuition for the private school placement. This high-priced error highlights the importance of attention to detail during the IEP drafting process. A thorough review of the IEP before it is finalized is crucial to preventing costly mistakes. Further, when a district receives a ten-day notice of unilateral placement, it should immediately review the IEP at issue in order to determine appropriate next steps.