Adam Dayan, Esq.
In SRO 10-110, SRO Bates addresses two important issues regarding pendency: (1) What effect does a stipulation of settlement between the parent and the school district have on pendency; and (2) If a student changes schools for a given school year, what effect does that have on a previous order of pendency (does pendency continue or is it a "change in placement" such that pendency is dead).
Pendency is the legal concept that allows a child to continue in his "then current placement" at the school district's expense while legal proceedings are pending. The difficulty lies in determining what constitutes the "then current placement" and to what extent can a settlement agreement impose limitations.
When a settlement agreement is limited to a specific year, the DOE will typically include language to the effect of "this agreement cannot be relied upon to establish that the school we are paying for is the 'then current placement' for purposes of future litigation." Some courts have ruled that this language is sufficient to achieve that purposes, and that is reinforced by SRO 10-110. Since the DOE used this language in its settlement agreement covering payment for Manhattan Children's Center (MCC) during the 2009-2010 school year, the SRO held that this agreement could not be the basis for saying that MCC was the "then current placement" for the 2010-2011 year.
BUT...an Impartial Hearing Officer (IHO) decision from August 2008 could be. In that decision, the IHO determined that the David Gregory School (where the child was enrolled during the 07-08 school year) was the child's then current placement. The child went to David Gregory for the 08-09 year too, but during the 09-10 school year he was enrolled in MCC. So, getting back to question #2: does the pendency carry over, or is this a "change in placement" such that the DOE has no obligation to pay for 2010-2011?
The IHO concluded that the DOE acquiesced to MCC being the then current placement for 10-11 because it had agreed to pay for the 09-10 school year while knowing very well that the child was attending MCC! According to the IHO, the DOE is therefore prevented from arguing otherwise.
Well, upon review, the SRO said "Hey, it's a bit more complicated than that." Under federal law, pendency does not require that the child remain in a particular location, and in order for there to be "a change in placement," there has to be a "fundamental change in . . . a basic element of the educational program." Bates cited to the Office of Special Education Programs which sets forth various factors that should be considered, including whether there have been changes in the child's educational program on his IEP or his opportunities to be mainstreamed. But the SRO slapped this one back down to the IHO for further consideration because, in his estimation, there was not enough information in the record for the IHO to make the determinatino that there was no fundamental change in the nature of the programs.