parents received the ip they sent a letter or rejecting the ip yes yes they had they had not received a written i e p there was a discussion knew what it was yes why should they don't why if they it's not satisfactory why should they reject the ip that was discussed on june th wasn't wasn't part of the letter their august letter to inform the school that they still have not received the written i did you say that's right and and what what was that and they didn't get to live very end of august the record doesn't disclose for us tonight so i don't know why the record why the vet why the ip they get which is incorrect isn't yours as bybee as at the end of the month they have a right to get the written i p before the school year starts so they've because the parents have to make a decision based on what the i p actually says right of parents have to make a decision based upon the program that's been formulated pete lays out in writing with the program is that was formulated in this case confused and they had to make a decision didn't they know i don't believe well they have to make a decision obviously but that i don't believe they're confused you agree though that the it's a little difficult to know from the outside but you agree that the the written ip that they got said parents with objects in it and what's the purpose of the writing the purpose of the writing is of people don't end up here arguing back and forth over what was said my notes say that you're not saying that you need something in writing so parents can make a decision in rolling a kid in a private schools a very expensive proposition they need to know categorically what the offer is from the school so they can know whether to put down the down payment i think the parents i would agree the parents do need go but the parents here didn't know it's not at the i h o who heard all the testimony states essentially that the parents knew what the program was there was a fifteen cone one plus one program i think we might we might dispute that might be disputed about exactly what was known at what time because although they may have been told something is just shake of his pointing out the the whole the act revolves around having a written plan that sets out what the schools offer and what plus one and i think that is not disputed i understand that the writing while we're here but the writing that was issued later has an error it's a good faith error but it's an error and that's what we get to the issue of whether that error can be corrected during the resolution period and i ask you question suppose the parents said fine twelve is good we agree with the school board have provided not provide it but that's also a matter of the record such a class is not exists but the parent knew that class did not exist this all went through an impartial hearing in which findings based upon the testimony of the parent issues and those findings are entitled to deference because they're not challenged by anyone but  do you go on to what happened in october and what the school board's position is with regard to its right in the resolution period to alter the written without the parents consent well i think with their due process complaint which they surely are you would say that could happen at any time because due process complaint doesn't have to be filed for two years right after right that happening time and so that means what you're saying is that if if these paint they had to hire a lawyer they had to deal with schooling and so on and there had then been triggered a thirty day resolution period that the school at that point would have been free to alter the resolution period based on are easy by the dicta and ari that the school is free school district is free to alter the plan even two years after the school year is over is that correct i think two years prior given the do note the ten day notice period but if they can't afford for example to bring suit and file a due process complaint till two years after that the school is then free to revise the that you just described based on whether this procedural violation deny this to the parent to fully participate in the formulation of the i p and the other standards for procedural violations established by this court and i think that that's why this case is very fact sensitive because the only is that you're not going to have a situation where the parent knows what the plan is ahead of time you know me and i could have a situation like this where the parent basically as we see it getting arguing for the parent police in this case and i want to clarify a few things about the facts one the parent gave ten day notice because tending notice is required i mean you know the parent testified and it's in the appendix for seventeen then the parent had not really made the decision yet now in forest grove the supreme court case the the school district really did nothing during the ten day period it was only at the very end of that that ship the i p l to the parent or the parent could reasonably believe that this was the school district's effort to accommodate the parent if it's at the end of the ten day period which i try to i would even go further than that the parent has the ten days the ten days or are binding on the parent but i think they could probably still make the change any time up to the point that the student actually leaves ten days is is the minimum period some some parents give notice more than ten before but i think realistically you know school district could still you know shortly before the school year starts even if it's outside the ten days come back and say hey when did they alter the erroneous twelve to the fifteen that they intended that that's really unclear in the record state review officer reviewed the record reviewed the testimony of mr rosen and reviewed the documents and concluded october t date to be the date that the ip was changed which was outside the thirty day resolution and the child was already in school oh yeah the child had been in school since early september in the end and i should note that the resolution meaning there was no effort to resolve the parents concerns the parents concerns were i've just footed the bill for a very expensive private school and i want to be reimbursed what can you do for me and the school district had no interest in talking about that as as it went down apparently mr rosen said it will fix the  and he testified apparently having consulted with counsel which he was not supposed to do which was a little bit of an issue at the start of this hearing date and he recognizes that the ip actually wasn't sent to the parent immediately after the resolution meaning but twenty days later which is after the resolution period was over so he testifies there that he thinks he changed the i was only in the computer somewhere in the middle then he doesn't have a log of this he doesn't have a specific recollection he just says i think it was somewhere in the middle in the us are all said this is confusing this is unclear so the s r o took the date that actually was on the pearl written notice on the letter and said this is the day and this is consistent with the th circuit's statement and union fee smith which is a case very similar in a where the th circuit said relying on the written written documents avoids the troublesome factual issues of what the recommendation is where it's going to be and when it took place so the very correctly said we rely on the written document to anyway and therefore this is it and it should have the benefit of being able to make unilateral changes in the resolution period why is that approach wrong but st of all i don't think there's any authority supporting the idea that a school district can just making a lateral changes during a resolution are it does not say anything about you know allowed and the idea is specifically states that the real purpose of the resolution period is to resolve the parents complain and to arrive at a written agreement signed by both the school district and the parent when you say the school board can't make a unilateral change what if the school board unilaterally offers to do or do it to create a class to provide services that fit what the parents want but the parents really prefer the  the the a private school and therefore say well when i can agree to do it you tell me is the school board able to make that unilateral change you know the parents other parents in a position to to say clear i'm trying to answer it within the context of the idea because there's another provision that gives the school district the opportunity to make an offer of settlement in writing at least ten days before the start of the hearing and there are consequences for parents who reject that offer and then don't get more than that at hearing so the school district could have done their cram down in bankruptcy you can you can offer it and people have to accept  it or or take the risk yes actually actually ask you to refine that answer because i wonder about this school districts right in that period up the ten day notice period verses in a later resolution period after the filing of the due process complaint or are they are they different can the school board alter the proposed to e p unilaterally in one and not the other  concerns under the idea and the regulations for the school district and i it either has to have the consent of the parent or it has to conduct and i need and for the st time on appeal the school district is now ar my name is andrew feinstein and i'm here representing the council of parent attorneys and advocates a national organization of of special ed parents lawyers advocates fighting for the rights of students with disabilities and we're pleased that you allowed us testimony except if it's to clarify what's in the document but then there's this language that during the thirty day resolution period the district can change the i e quote without penalty  that's those are inconsistent statements that's to change without penalty unless the change of the penalty is limited to the clarifying type amendments that are provided earlier in that decision it takes us to the to the place of which all of you mentioned whether it can or can't your friend the senate didn't happen when in the thirty day period right well in this case that they're not happy with in the thirty day period why should we decide that question well i think you should not cite that question because there are a number of district courts that have used the without penalty language out of ari in order to base decisions on and i think that is out language is just inconsistent with the idea but that's not an issue in this case you can see that i think it is at issue with this and i think as you decide on the narrow grounds that it wasn't done within the thirty day period limit good crafter decided on the narrow ground rather than reach out to the broader grand if if as you say there are other cases in which this is an issue and affects the outcome then they'll percolate up here and i assume another panel will be just as accommodating and listen to you then and in those what we have is a students who are going through the educational process and as we wait to clarify the law which  proper and we're looking at the paragraph that just says without penalty without penalty haitians and it's unclear really just a paragraph and it wasn't essential to the decision whether that permitted unilateral changes in the resolution period or if it did not take account of the other method mechanisms that the statute set up for avoiding the sandbagging specter that your adversary has drawn that's right absolutely correct a couple of points to make one the law is very clear the ip has to be in place before the beginning of the school year and that was not true in this case and having the i d p written in place before beginning the school year gives the parents the no knowledge of what's being offered and buxom assess their risk and place in the child privately to allow the changes after that date put puts parents in an impossible situation can you give us any idea of how widespread  eleven cases where the without penalty language was quoted but none of them are really decisive none of them relied on it for the result only knew that the decisive decisions were made challenging i think to the extent that the dictum means that the sort of changes that can be made are clarifying explanatory the type of language from the earlier part of ari we have no problem with that you see in this case in this case the board is arguing that the change is explanatory because it simply implements by changing a number that which the parents already knew and understood the plant and that's right and are you actually has language about how the ratio is a critical decision whereas other facts such as parent training in that case were considered not substantial and what's important to note is that the whether this language in our is being relied on by school boards generally whether there's any urgency to clarifying or saying what we think it means or whether we should focus on the with whether it's not it doesn't present an urgent problem right because if you want to get into an issue about fact disputes that goes a long way i think what we have are only more relevant than when somebody might have put into computer systems well actually i don't think so because i think the ip is developed by very much we have the arguments