• Adam Dayan, Esq.

Program Recommendations and Related Services Recommendations

An issue that continues to be very hot is whether parents are entitled to related services when their children are enrolled in private schools, including when they intend to seek tuition reimbursement. On the one hand, this really shouldn't be an issue and the parents should continue to receive the services. On the other hand, school districts have been making various arguments to say that parents are not so entitled. One such argument is that the related services are specifically tailored to supplement the specific program and placement recommended by the DOE and it would be wrong for the parents to be able to separate the services from the program.


It doesn't seem like that argument has been persuasive yet the districts continue to make it. In SRO 10-112, the district tried to argue that SEIT services were not available as a pendency placement because the student had become school-aged and the related services were specifically tailored for the specific preschool placement. The SRO did not buy this argument and explained that "in order to comply with its obligation under pendency, [the district] must provide those special education and related services that are not in dispute. . . . The district has not provided a sufficient legal basis for its argument that the parents must accept either all or none of the student's previously agreed upon special education and related services. . . ." Therefore, even though the child had become school-age, he was still entitled to SEIT services (which are normally meant for pre-school-age children).


In SRO 09-125, the district attempted a similar argument. This case involved a child transitioning from preschool (CPSE from April 2009) to a school-age program (CSE IEP dated May 2009). The district said the parent could not get a "hybrid pendency placement" which would mean implementing related services from the April CPSE IEP while the child was currently placed in the program from the May CSE IEP. Again, the district is arguing for an "all or nothing" approach. The SRO (Kelly, not Bates) then used some fancy footwork to help the parents get what they were looking for. He said that the April IEP was "the last implemented non-disputed IEP" but that the parents then agreed to accept the kindergarten class and related services from the May IEP. But, he said, this should not prevent the parents from getting those other home-based services from the April IEP. Therefore, the parents were awarded the home-based services that were not accounted for in the May IEP, including SEIT services even though the child had now become school-aged.

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