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COPAA Urges Second Circuit to Uphold District Court Decision in Favor of Parents

Monday, July 22, 2019   (0 Comments)
Posted by: Jamie Anderson

COPAA filed an Amicus Curiae brief in the Second Circuit, Board of Ed. of the Yorktown Cen. Sch. Dist. v. C.S., et al., on July 15, 2019.  Jessica Salonus, Selene Almazan, Alexis Casillas, and Ellen Saideman drafted and filed the brief for COPAA.  At issue in this case is whether, after a district has failed to make an agreeable and appropriate IEP offer after the 10-Day “Notice-Period” provided for in 20 U.S.C. § 1412(a)(10)(C)(iii)(bb), it can then unilaterally alter and rehabilitate the IEP offer during the resolution period after the parents have incurred the expense of the private placement and filed for a due process hearing during the 30-day resolution period provided by 20 U.S.C. § 1415(f)(3)(B).  COPAA’s brief states it cannot, and urges the Court to affirm the district court’s ruling in favor of the student finding that the last operative IEP to be evaluated by the due process hearing officer is the IEP that was provided to the parents in response to their 10-day letter (10-Day Notice-Period) informing the district of their disagreement with the IEP and their intent to privately place their child and seek reimbursement from the district.

  

As set forth by COPAA, by the plain language of the statute itself, and as further explained by the Supreme Court in Forest Grove, the purpose of the 10-Day Notice-Period is for the LEA and parents to be able to attempt to work through their disagreement over the offer of FAPE by providing a “safe harbor” for school districts to propose “an IEP adequate to meet a child’s need” and avoid litigation altogether before the parents resort to the unilateral private placement.  Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 241-42 (2009).  Because unilateral private placements are made at the parents’ “own financial risk,” Burlington, 471 U.S. at 374, parents evaluate the financial risks they will assume based on the appropriateness of the IEP offer at the close of the 10-Day Notice-Period.  However, if parents will not know what the final offer of FAPE will be until after they have had to make the determination to enroll their child and to file for due process, they are undertaking an “overwhelming” financial risk (both for tuition and for legal representation) without having any idea what they will ultimately be challenging in the administrative hearing.

  

Moreover, COPAA explained that after expiration of the 10-Day Notice-Period, many parents will also likely have to obtain legal counsel to pursue the due process request on behalf of their child, and therefore, will either have already incurred legal fees paid by them, or their lawyer will have incurred time consulting, reviewing, and preparing the due process request. Thus, permitting school districts to amend a challenged IEP during the 30-Day Resolution Period following the due process filing would discourage the already small population of attorneys handling special education cases on contingency or reduced fee bases as it would leave attorneys unable to evaluate the viability of a case if the fundamental nature of the case could change substantially post-due process filing.  Accordingly, as set forth by COPAA in its Amicus brief, it would be inconsistent with the language of the statute and inequitable under principles of public policy to permit school districts to unilaterally amend, supplement, and rehabilitate the challenged IEP after the 10-Day Notice-Period has expired and after the parent has incurred the cost of the private placement.

 

The Appellee/student’s brief is here;

COPAA’s brief is here.


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