New Court Decision May Impact Some Future Pendency Orders

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.

The “Calendar Year Rule” for Kindergarten Needs to Go

by Regina Skyer

On February 4, the popular online newspaper Chalkbeat published an excellent article entitled: Your child’s birth month matters: NYC students born in November and December are classified with learning disabilities at higher rates.

This article focuses on what I like to call the “Calendar Year Rule,” which requires children to begin kindergarten in September of the calendar year they turn five, regardless of their level of readiness or maturity. This means that a child born at 12:01 am on January 1st 2015 and a child born at 11:59pm on December 31st 2015 are both considered “turning five” children for 2020 and would be required to begin kindergarten in September of this year.

This inflexible policy runs counter to the consensus position of most child development experts and is not followed by the vast majority of New York City’s private schools; nor is it the policy of scarcely any other school districts in the United States. In my book about special education kindergarten transition, How To Survive Turning Five, I discuss how this policy is particularly harmful for children who have been identified with a learning delay or disability.

My friend, the esteemed Dorothy Siegel, Director and co-founder of the ASD Nest Program, favors changing the December 31st deadline. In the Chalkbeat article she says that changing the cutoff “would reduce the misery of children who are labeled something because they’re not learning at grade-level expectations, when the truth is, they’re too young to learn at that level.” I echo her sentiments.

At our firm, we handle over 100 cases each year that involve parents seeking to maintain the services on their child’s preschool IEP for one simple reason: most children with special needs are simply not ready to enter kindergarten in the calendar year they turn five.

Because of this reality, the Stay-Put (or “Pendency”) provision of the Individuals with Disabilities Education Act (IDEA) is one of the most valuable legal tools we have for a “turning-five” special needs child.

Pendency can provide another year of a preschool program and services, and facilitate the development of a more stable foundation for the school years ahead. In NYC, to use pendency, parents must challenge the kindergarten program proposed by the DOE using their due process rights. An impartial hearing officer (a judge) issues the pendency order. It is not something that can be requested at an IEP meeting. (To learn more about this topic, read Skyer Law attorney Magda Labonté-Blaise’s excellent article, “What is Pendency?” from our blog.) 

The biggest problem our firm sees with preschool pendency programs arises when families want a child to attend public school the following year. The DOE insists on placing these children in first grade, despite the reasonable position taken by parents and professionals that if a child has missed kindergarten they will not be ready for these demands. Whether to place a child coming from an “extra” year of preschool in kindergarten or first grade used to be at the discretion of the public school’s principal. However, principals are now forced to register students for first grade at the start of the year and may only move students back to kindergarten if a child is failing—and there is room in a kindergarten classroom. This is something I always warn parents about, and it’s something else that needs to be addressed. Too many families end up breaking the bank for private school tuition because of this when their children would do just fine in an appropriate kindergarten class.

It’s far past time for the city to change these archaic policies. They are not based in sound pedagogical practices or in evidence. The “Calendar Year Rule” needs to go.

Skyer Law Supports Advocates for Children in Federal Suit: 150 Cases Submitted as Evidence

The DOE Implementation Unit is not an office many people are familiar with, but our lawyers and paralegals call this office on a daily basis, trying to get them to make payments on cases where we have winning decisions or pendency orders. It is the Implementation Unit that is the final step in the payment process and is responsible for the issuing of checks for these cases.

In spite of our having a good, collegial relationship with this DOE office, delays are increasing and causing a hardship to our families, to their providers, and to schools.   

Earlier this fall,  Advocates for Children and Milbank, LLP filed a motion in federal court requesting the appointment of an Independent Special Master to address the widespread and worsening delays in the DOE’s implementation of orders. This motion is predicated on an earlier lawsuit they brought in 2003 called L.V. v. NYC Department of Education. In 2007, the DOE agreed to settle this case with the families who brought it, and to adhere to benchmarks for improving implementation, including that the DOE would implement orders within 35 days.  But today the DOE is not meeting this modest commitment over 30% of the time. 

All members of the parents’ bar are experiencing these endemic delays. Our firm is working closely with Advocates for Children and supports their efforts in federal court.  As part of this, last week our lawyers provided AFC with a list identifying 150 of our most egregiously overdue cases to use as further evidence in its claims. It is our hope that this will help unclog the backlog and get our clients paid. There is no personal identifying information on this list; it is comprised of a case reference number (assigned by the DOE’s Impartial Hearing Office), the date of the order, the amount owed, and the name of the attorney from our office assigned to the case.  Our clients have no obligations regarding AFC’s court proceedings.  

We are proud to contribute to this critical effort, which we strongly believe will benefit all New Yorkers. We will keep you posted as the case develops.

What is Pendency?

[5/22/2020 – This article has been updated in light of recent caselaw on this topic.]

by Magda Labonté

Let’s begin by clearing up some common misconceptions:

• Pendency is not a special education program. It is a legal injunction.

• You cannot request pendency at an IEP meeting. Pendency is ordered by an impartial hearing officer (an administrative law judge).

• Your child is not entitled to pendency outside of the impartial hearing process.

• Pendency is not only for turning-five students.

• Pendency does not guarantee a specific school, classroom, or teacher, just the type of program.

• In some cases you can use your pendency entitlement for a different school or provider, but not always.

• Pendency does not mean a school or program is free.

So, what is pendency? Pendency is the IDEA’s (Individuals with Disabilities Education Act) way of preventing the disruption of your child’s education when the school district and the parents disagree on the special education services that are recommended in an IEP (Individual Education Program).

If you disagree with the program recommended at an IEP meeting, you probably know that you can decide to exercise your due process rights and file an impartial hearing complaint. This is where pendency comes in, solving the problem of how your child receives an education while the results of the impartial hearing process are pending.

Pendency is triggered by filing an impartial hearing complaint. It entitles your child to remain, or “stay-put,” in the program that you and the District last agreed upon. Pendency ends when a settlement agreement has been finalized, when you “withdraw,” or choose to end, your case, or when a hearing officer’s decision is rendered. If one of the parties appeals the hearing officer’s ruling, pendency continues until a final decision is rendered. This can span anywhere from a few months to the entire school year and beyond. 

In New York City, many people associate pendency with the turning-five process and so-called “preschool pendency.” When pendency is triggered in a turning-five case the “stay-put” program is the preschool (CPSE) program, so the child remains in their preschool program.

But pendency is an entitlement available to preschool and school-age children. It can be used to maintain the child’s last agreed-to IEP or, when applicable, the final decision of an impartial hearing proceeding.

The most common way we see this in action is when the parent of a school-age child goes to an impartial hearing for a tuition reimbursement case and wins. Then, the impartial hearing officer’s unappealed decision becomes the “stay-put” placement. If the parent exercises their due process rights the following year, they can seek an interim order on pendency, requiring that the DOE begin funding the “stay-put” program in the manner specified in the IHO’s pendency order. This can mean that the DOE pays for it directly or that the parent is reimbursed, depending on the specifics of the case.

Parents don’t have the right to take this pendency entitlement and move it to a different school, even if that same school is similar to the original program, unless that first program is no longer available to the child. Moving pendency to a different school or provider requires demonstrating to a hearing officer that the new program is “substantially similar” to the original one.

Even when you have your pendency entitlement in place, this does not mean you’re done with your case. The lawsuit that triggered the pendency order still must be resolved in either a final settlement or a final unappealed decision (if the case goes to hearing). In NYC, either process takes a great deal of time to finalize, resulting in the majority of the year’s tuition or fees being paid by the district. The timing varies in districts outside of NYC.

There is no requirement that a private school wait for funding from the school district, which can take time to be paid out. You can still be required to pay tuition on the school’s schedule. Your pendency entitlement would then be in the form of tuition reimbursement for the portion of the year that the lawsuit is open and pending.

You might be wondering what happens if you lose at a hearing. There’s good news here too, for parents with pendency orders. When you appeal a loss, the pendency order continues and the money still flows until settlement or a judgment by the State Review Office (SRO) is finalized. The parent is not responsible for any tuition or fees already paid by the district during the settlement or hearing process even if they ultimately lose.

It is for the above reasons that, in some cases, when a family cannot reach a satisfactory settlement with the DOE and we are forced to go to hearing that it can be a mixed blessing. Impartial hearings are inherently risky, stressful, time consuming, and expensive. But a win in an impartial hearing establishes a valuable entitlement: pendency.