A new ruling regarding special education was handed down on Wednesday by the Second Circuit Court of Appeals, which governs the application of federal law in New York. This ruling pertains to one of the major provisions that parents rely on in litigation, the right to pendency. (You can read a longer explanation of pendency here.)
Most parents will not be impacted by this development, but we wanted to take a moment to explain what happened.
QUICKLY, WHAT IS PENDENCY?
In short, pendency, or “stay put,” is a parent’s right to keep the last program that their child was given by the school district or that was ordered by a judge. When a lawsuit is filed, pendency can be triggered and last until that claim is fully resolved, whether by a settlement, a final ruling in a hearing or an appeal, or simply by withdrawing the case.
For children in private schools or who receive services outside of school, this entitlement often takes the form of tuition payments or payments to service providers. These pendency payments do not have to be paid back to the school district even if the parents eventually lose or withdraw their case. For parents in this position, pendency is a great benefit for reducing financial risk and for funding the status quo during litigation.
SO WHAT CHANGED?
The case decided this week (Ventura de Paulino; Navarro Carrillo v. New York City Dep’t of Educ.) involved the question of what happens when a child leaves the private school where they have the right to pendency and instead enrolls in a “substantially similar” school — can the parents still make the district pay while their case is ongoing? The answer as of this week is: No—but with some big exceptions.
The rule has long been that “pendency is not brick and mortar” – that is, that you have the right to a kind of program or service, not a specific school, classroom, or teacher. Parents have used this flexibility to apply their pendency mandate to the school or provider that made the most sense for a child. However, this ruling now holds that parents do not have the same right (as a school district does) to move a child between schools on pendency, even if the kind of program has remained the same, and especially if it is more expensive.
If this applies to you, your attorney case manager will be in touch to discuss any possible impact and how to address it. We will continue to monitor this case and any appeals that may come from it.
In the meantime, here are answers to some general questions you may have:
DOES THIS MEAN I WILL LOSE MY CASE IF I SWITCH SCHOOLS?
No. This decision only impacts the interim funding you have while a case is pending. It has no bearing on the strength of your case for settlement or at hearing.
WHO DOES THIS NOT APPLY TO?
This ruling only applies to parents who invoke pendency funding, which many parents do not. Additionally, if your child is remaining in the same school or program as was provided under the IHO order or IEP recommendation you rely on for pendency, this decision should not impact you.
WHAT HAPPENS IF THE FIRST SCHOOL OR PROVIDER ISN’T AVAILABLE ANYMORE?
Perhaps the child has aged out and may not attend anymore, or the school will not enroll the child for some other reason, or perhaps the school has closed or a provider has moved away. A judge can’t force a private school or provider to educate a child and neither can the school district. The law says that pendency must still exist in some form. So where is it?
In its decision, the court took pains to emphasize they were not deciding this question, but noted that other courts have addressed it.
This is the situation where parents may be allowed to choose a “substantially similar” school or provider where their pendency program can be implemented, but only if the school district has not identified a suitably similar pendency program or provider on its own.
In these situations, whether or not a pendency order will be issued to immediately fund a new school or provider with a substantially similar program will be up to the impartial hearing officer assigned to your case who considers all of these facts.