A recent decision from the Southern District of New York, Board of Education of Yorktown Central School District v. C.S., No. 17 CV 6542, 2019 WL 294799, 119 LRP 1767 (S.D.N.Y. Jan. 23, 2019), appeal filed, No. 19-270 (2d Cir. Jan. 29, 2019), presents issues concerning the IEP development process, resolution sessions, and the retrospective evidence approach of the Second Circuit, all of potential importance to the work of impartial hearing officers.

The case involved a 12-year-old student diagnosed with Tourette syndrome, attention deficit hyperactivity disorder, developmental coordination disorder, central processing disorder, and other conditions. In June 2016, the parent attended an IEP team meeting to develop the IEP for the student’s seventh grade year, and came away with the belief that the proposed placement would have a 15:1+1 ratio, a belief reinforced by a school visit at which teachers reiterated that the ratio would be 15:1+1. In August, the parents gave notice to the district that they disagreed with the placement and intended to enroll the child in a private school. Their letter challenged the proposed class size, among other things, and stated that they had not received a copy of the IEP. On August 30 or 31, the parents received an IEP and notice dated June 9, listing a 12:1+1 ratio for English, Math, Social Studies, and Science. It was undisputed that the district could not provide a 12:1+1 class at the beginning of next school year, and the district later said the 12:1+1 ratio on the IEP and notice was a clerical error. The parent reported that she was confused by the IEP and thought it was either a mistake or a change in the recommendation. She enrolled the student in the private school, then a filed due process complaint.

At a resolution meeting, the district said the 12:1+1 ratio on the IEP was a mistake and the IEP should have said 15:1+1, but the parent did not agree to a change in the IEP to make it read 15:1+1. About a week after the meeting, the district unilaterally changed the IEP to reflect a 15:1+1 ratio. The parent filed a second due process complaint, the two complaints were consolidated, and the impartial hearing officer (IHO), after entering the new IEP into evidence over the parent’s objection, ruled for the district, finding it had offered the student appropriate education. The State Review Officer (SRO) reversed, reasoning that there was not sufficient evidence the district had provided the later IEP during the resolution session, and so had to defend the IEP with the12:1+1 ratio, a placement it could not provide. Thus, the district failed to offer the student FAPE.

The court affirmed the SRO decision and awarded the parents tuition reimbursement. It agreed with the SRO that the operative IEP was the one with the 12:1+1 ratio. It noted that changes may be made to an IEP by the entire IEP team, including the parents, or, with the consent of the parents and the district, by an amendment. 20 U.S.C. § 1414(d)(3). A resolution session agreement must be in writing and signed by the parent and district representative. Id. § 1415(f)(1)(B)(iii). The New York regulations require prior notice to parents of changes to an IEP, as well as provision of a copy of the document amending the IEP or the entire amended IEP. 8 N.Y. Comp. Codes R. & Regs. § 200.4(g).

The court reasoned that in R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012), the Second Circuit held that testimony about services not on the written IEP is not to be considered. The district may remedy IEP deficiencies during the resolution session. However, “Here, the parties did not amend the June 2016 IEP by jointly developing a written document or legally binding agreement setting forth a resolution.” 2019 WL 294799, at *7. “The District’s failure to send the Parents a copy of the modified IEP during the resolution period is fatal to its argument that it amended the IEP.” Id. at *8. The court cited the language from R.E. about the importance of the parents’ ability to rely on the written IEP to make a decision whether to challenge it, and the importance of the parents’ ability to contribute to the IEP’s development. A proper amendment of an IEP does not undermine those rights. In this case, the parent testified she was confused when she received the IEP with the 12:1+1 ratio, and the first due process complaint “evidences the Parents’ understanding that the District was recommending a 12:1+1 class size.” Because the district concededly could not implement the operative IEP, it denied the student FAPE. The court further found that the equities favored award of tuition reimbursement. It said the parents were not under any obligation to agree to a change in the IEP at the resolution session.

A dispute over which document accurately represents the IEP team’s recommendation is hardly an unusual one for an IHO to confront. Misunderstandings, unilateral changes by staff after the IEP team meeting, and clerical errors are all possible. The problem is especially likely to arise in a situation like the one presented in this case when the district does not complete the IEP at the meeting but sends a copy of it after the meeting, if at all. Should the IHO become aware early on of a dispute between the parties as to which document accurately represents the consensus of the IEP team, the IHO, as soon as s/he becomes aware of the discrepancy, should determine the matter articulating reasons for his/her decision.  A limited hearing may be necessary to determine necessary facts to inform the IHO’s decision and the IHO may also need to weigh the federal and state regulations concerning changes to IEPs.  Failing to address the issue early can result in a confusing record and a longer than necessary hearing.