Adam Dayan, Esq.
Reimbursement of Payments Made by School Districts for Pendency
Under federal law, a student with a disability is allowed to stay at his/her "last agreed upon placement" while due process proceedings are pending. If the last agreed upon placement is a private school, the school district must pay for the costs of the child's education at that private school for as long as the private school is the last agreed upon placement. The question that comes up is this: Let's say the final decision in the case is in favor of the school district -- i.e., it's later determined that the district fulfilled its obligation to offer a free and appropriate public education to the child. Can the school district be reimbursed for the money that it laid out for the private school? The answer is no.
In NYC Department of Education v. S.S., the court pointed out "Congress' policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved," and ruled that the district cannot be reimbursed. This message was echoed in a recent federal court case in Georgia, Atlanta Independent School System v. S.F. These cases reinforce the idea that the pendency provisions are intended as built-in protection for children with special needs and their parents. The only way to change this would be to persuade Congress to amend the law. Until then, school districts cannot be reimbursed for payments made during pendency.