SRO holds that pendency can be applied retroactively

SRO 09-076: Parents sought reimbursement each year over a multi-year period. SRO rules against parent on the equities in year 1. Parents appeal to district court. Parents and district settle year 2 but agree that the settlement agreement will not be used to establish pendency. Parents submit hearing request for year 3. Hearing is delayed until spring at which time the district court rules in the parents’ favor, thus awarding reimbursement for year 1(see N.R. v. NYC). IHO determines that the district court decision establishes pendency at the private school and dates it back to the beginning of the school year including the summer. District appeals to the SRO contending that pendency should not attach until the date of the district court decision or alternatively, that it should not date back prior to submission of the hearing request. SRO Paul Kelly upheld the decision of the IHO reasoning first that although he had denied the parents year 1 claim on equitable grounds, he had ruled in the parents’ favor on prong 2; i.e. he had agreed that the parental placement was appropriate. Next, Kelly cited to the 2nd Circuit decision in Mackey which dealt with similar although not identical circumstances. The Mackey Court applied pendency retroactively. Then, without coming right out and saying it, he basically said that had he not gotten it wrong, there would have been no dispute that pendency would have been the private placement from July forward.

...but for the denial of tuition reimbursement in July 2007 and the passage of time that elapsed while the parent ultimately secured the relief she sought in District Court, the parties would have concluded that the student's "then current placement" after July 2007 was the Rebecca School while the parent pursued her claims for tuition reimbursement for the 2007-08 and 2008-09 school years.