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Wednesday, July 28, 2010

Court refuses to compel district to pay for pendency placement

M.M. v. NEW YORK CITY DEPARTMENT OF EDUCATION (S.D.N.Y. 7-27-2010): Parent placed child in private school for the 2008-2009 school year and made a reimbursement claim. Parent had already prevailed at hearing on a reimbursement claim for the 2007-2008 school. The district did not appeal that decision. Thus, the parent asserted in her hearing request for 08-09 that pendency was the private school placement. The district did not contest the parent’s right to pendency reimbursement. On day one of the hearing, the DOE again did not object to the parent’s pendency request. During the hearing, the parent sought a pendency order from IHO Esther Mora. Mora noted the request but never issued an order requiring the NYCDOE to provide the parents with pendency reimbursement. Mora ultimately ruled against the parents on the reimbursement claim and further stated that "I have examined the
parties remaining contentions and find that it is unnecessary to reach them for the reason set forth above or because they are not disputed issues." The parents did not appeal the decision.

The DOE then refused to pay for the pendency placement. The parents sought payment in federal court and remarkably, the Court ruled against the parents, reasoning that the parents had not exhausted the administrative process by not appealing Mora’s failure to rule on pendency to the SRO.

This is a very harsh ruling and arguably, a gross miscarriage of justice. A party can only appeal if aggrieved by a ruling. The IHO did not rule on the pendency issue because it was not contested. The parties were in agreement as to pendency. Yet, the Court held that the parents were foreclosed from recovering due to the failure to appeal the Mora non-ruling. Bottom line, the parents don’t get paid for the pendency placment even though the district agreed with them before and during the hearing that they should get paid.

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