New SRO finds for parent on interesting pendency claim

SRO 10-112: The child transitioned from preschool to school age. As a preschooler, the child received services from the public school in a private non-state approved private school. The child continued to attend the same private school when she became school age. The parent challenged the last CPSE recommended IEP and the first CSE recommended IEP in an impartial hearing request submitted after the end of the school year during which these IEPs were recommended. The SRO held that “the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.” Thus, the SRO ordered the district to provide SEIT and related services per pendency, rejecting the district’s argument that these services were recommended in conjunction with a 9:1:3 placement to which the parent had objected.

SRO holds that IHO exceeded authority in awarding interim relief

SRO 10-083: In what is an interesting and potentially very important case, the SRO sustained the district’s appeal of an IHO pendency decision that had ordered the provision of a 1:1 health paraprofessional for a child parentally placed in a private school. The IHO had initially determined that the child was not entitled to the 1:1 health para pursuant to pendency, but awarded same reasoning, inter alia, that the child might be precluded from attending school without the service. The SRO held that the award of interim relief was at odds with the statutory and regulatory pendency provisions. The parents argued that the award was an “equitable order” and not one based upon pendency. The SRO rejected this argument reasoning that the order was, on its face, a pendency order. The SRO cast doubt upon whether an IHO has the authority to award interim relief.

School district can not recoup pendency payments

Atlanta v. SF : In this case decided in September 2010, a Georgia court held “that parents of a child awarded private educational services because the IEP offered by the school was deemed to be inappropriate are not required to reimburse the school district for that expenditure, even if the administrative decision is later reversed.” This decision contains an overview of case law addressing this issue from other courts around the country. It is of particular interest here in New York as the New York City Board of Education has made repeated attempts to recoup pendency payments.

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.

Graduation is not necessarily the end of the story

Doe v. MARLBOROUGH PUBLIC SCHOOLS, Dist. Court, D. Massachusetts 2010:

Reimbursement and compensatory education cases live on after a child graduates. This case takes it one step further. Child had an IEP and received special education services. Parent challenged the legitimacy of the child’s graduation. The Court ruled that satisfaction of graduation requirements does not necessarily terminate a school district’s obligations under the IDEA. “ [A] school district may not properly graduate a student with disabilities if the student was not provided with FAPE as required by IDEA (e.g., a student did not receive appropriate transitional services or his IEP was not reasonably calculated to provide him educational benefit).” Pendency during such a challenge is the placement and program that the child was in at the time of the challenge.

Pendency in charter school case

ELYSIAN CHARTER SCHOOL v. BAYONNE BD. OF ED., 09-3741 (3rd Cir. 6-10-2010): This is an interesting case out of New Jersey. Parents placed their child in a charter school outside their school district. Charter schools in New Jersey have administrative control over the special education process. The charter school is responsible for development and implementation of the IEP. The charter school recommended placement in a private school for the following school year and the parents agreed. The home school district objected and requested a hearing, maintaining that they could offer the child a FAPE. The parents asserted that pendency was the private school arguing alternatively that it was the current educational placement and that they and the school (i.e. the charter school) had agreed to the placement. The Third Circuit disagreed and held that the child’s pendency placement was the charter school, the last school the child had actually attended at the time the hearing request had been submitted. The Third Circuit also reasoned that to allow the parents and the charter school to agree on the child’s pendency placement would conflict with the home district’s right under New Jersey law to object to the private school placement recommendation.

"Furlough friday" did not result in change of placement

N. D. v. STATE, 09-17543 (9th Cir. 4-5-2010): In response to a fiscal crisis, Hawaii decided to shut down its public school system on seventeen Fridays. Plaintiffs complained that this was a change of placement. They filed a hearing request and invoked stay put. Hawaii ignored the request for stay put and the parents sued. The Court held that the furlough was not violative of the IDEA stating that:

When Congress enacted the IDEA, Congress did not intend for the
IDEA to apply to system wide administrative decisions. Hawaii's
furloughs affect all public schools and all students, disabled and
non-disabled alike. An across the board reduction of school days
such as the one here does not conflict with Congress's intent of
protecting disabled children from being singled out.

Cert denied on reimbursement claim

HOUSTON SCH. DIST. v. V.P., 582 F.3d 576 (5th Cir. 2009), cert denied 3/22/10, Docket No. 09-841: The opinion in this case is rather torturous, but the upshot is that the 5th Circuit awarded year 2 of a reimbursement claim on a pendency theory. The 5th Circuit also found that the parent had prevailed on the year 2 claim for purposes of attorney fees. The Supreme Court rejected the District’s petition for review.

District can not recoup pendency payments

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.”

Pendency: preschool to school age

SRO 09-125: Child was placed by the CPSE in an in school program and also received home based services. Parent agreed to the CSE’s recommended placement for kindergarden, but also sought continuation of the home based portion of the program. District cut off the home based portion. Parent sought the home based piece via pendency. IHO sided with the district; SRO reversed in favor of the parent.

Court grants TRO to enforce 504 plan

L.G. v. Port Townsend School Dist. No. 50, Slip Copy, 2009 WL 4730840, W.D.Wash.,2009: Student had a 504 plan pursuant to which the school was required to scan all written materials for use in a text to speech program. For 2009, the school advised that it would only scan certain subject matter material. The parents sought a temporary restraining order to compel the school to continue to scan all materials.
That Court recognized that a plaintiff seeking any remedy also available under the IDEA must exhaust the administrative process prior to commencing a court action. The Court rejected the district’s argument that the parent should be required to exhaust, finding instead that enforcement of a 504 plan is not relief available under the IDEA. The Court then employed a traditional TRO analysis and found that the student would suffer irreparable harm if the 504 plan was not continued. The Court ordered the district to implement the 504 plan.

This case is of interest and some significance because there is no pendency provision under §504 as there is in the IDEA. Thus, if a district proposes changes to a child’s 504 plan, those changes can ordinarily be implemented even if a parent disagrees.

Pendency in neighboring district

George A. v. Wallingford Swarthmore School Dist., 2009 WL 2837717, E.D.Pa.,2009: S resided in district A, but for many years had been placed at Strath Haven in district B. S’s 08-09 IEP placed him again in District B. In October of 2008, S was involved in an altercation and as a result, he was placed in an alternative school. The parent reluctantly agreed to this 45 day placement, but at all times thereafter sought his return to Strath Haven in District B. S’s 09-10 IEP recommended placement in a district A school. The parent filed a hearing request apparently against district B and asserted that pendency was Strath Haven. The Court agreed rejecting all district arguments including that district B was not the agency responsible for S’s education.

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.

Pendency determined by state complaint process

Millay v. Surry, 584 F. Supp. 2d 219 (D.C. Maine 2008): A Maine District Court held that a decision rendered by the State of Maine Education Department in response to a complaint filed by the parent through the complaint resolution process established the child’s pendency placement during subsequent proceedings.

Pendency does not absolve the district of obligation to develop IEP

SRO 08-026: SRO found that district was not relieved of its obligation to develop an IEP during the course of hearing. SRO Paul Kelly rejected the district's contention that it did not have to develop an IEP for the student because he was receiving services through pendency. Kelly noted that “[c]onducting CSE meetings and formulating and offering new IEPs during the course of pending litigation is not prohibited under the IDEA provided that there is adherence to pendency requirements (Letter to Watson, 48 IDELR 284 [OSEP 2007]; see Application of a Child with a Disability, Appeal No. 07-122).”

Unappealed IHO decision establishes pendency

SRO 08-009: This case is from early 2008, but is worthy of note for the proposition that an unappealed IHO decision establishes pendency during subsequent proceedings.

Summer placement is not pendency

SRO 08-107: The parent argued that the summer placement/program recommended by the district was the child’s last agreed upon placement for purposes of pendency. The IHO disagreed as did the SRO. The child’s pendency placement was the last agreed upon school year placement.

Pendency does not commence until a hearing request is submitted

08-130: Parent prevailed on a challenge to the 2006-2007 IEP and the district did not appeal the decision which was issued in September of 2007. In August of 2007, the parent submitted a notice of intent to seek reimbursement based upon disagreements with the 07-08 IEP, but the parent did not submit a hearing request until February of 2008. The IHO awarded reimbursement based upon a pendency theory. SRO Joseph Frey held that that was error. Pendency did not start until the submission of the hearing request.

This case is also notable for the tactics at hearing by the parent attorney, the IHO’s harsh rulings with respect to those tactics and the SRO’s rigid application of procedural rules to limit the parent’s challenges of the IHO rulings. The case contains an unusually good prong 1 analysis followed by a typically harsh prong 2 analysis that resulted in the usual SRO denial of reimbursement. It is unclear why Paul Kelly was not the SRO of record.

District can not recoup pendency payments

SRO 09-008, 09-010 and 08-134: Here, the SRO addresses an issue which is arising with increasing frequency, particularly in New York City cases. The SRO held that the district can not recoup payments made pursuant to pendency if it is ultimately determined that the district offered a FAPE to the student.

State Complaint process and stay put

Millay v. Surry School Dept., 584 F.Supp.2d 219 (D.Me. Oct 28, 2008): In this procedurally complex case in which the parent filed a state complaint, a due process hearing request and a federal court lawsuit, the court found that a state complaint finding in the parent’s favor constituted an agreement between the state and parent for purposes of establishing the child’s stay put placement.