NEW YORK CITY DEPARTMENT OF EDUCATION v. S.S. (S.D.N.Y. 3-17-2010): This case addressed “the allocation of financial responsibility for private school tuition for a student with a disability during the pendency of due process proceedings under the I.D.E.A.” NYC has been arguing in many cases that the district should have a right to recoup pendency payments when and if it is ultimately determined that a parent is not entitled to reimbursement. In a rather stinging decision, Judge McMahon rejects the NYC position, holding that “a school district's responsibility for funding a child's private school education continues until the moment when the child's pendency changes.” Only then does a parent become liable for the child’s private school tuition. Relying on 2nd Circuit case law (Murphy and Schutz), the Court explained that “Second Circuit case law makes it clear that a final determination in the school district's favor on the issue of FAPE does not alter the school district's financial responsibility for maintaining the student's pendency placement” reasoning that to hold otherwise would render the pendency provisions meaningless.
The Court also held that a “claim against a private school for reimbursement under IDEA by an educational agency is unprecedented and beyond the contemplation of the statute.”
