Adam Dayan, Esq.
"Substantially Similar" for Pendency Purposes
Parents considering transitioning their child from one school placement to another school placement should be familiar with the concept of pendency and the "substantially similar" standard in situations where the prior placement was funded by the parents' local school district (District).
Two instances in which the "substantially similar" standard could become relevant are as follows: (1) pursuant to an Individualized Education Program (IEP) a child was previously funded at a state-approved nonpublic school (NPS) and parents are transitioning their child to a different NPS or an independent private school for which they are seeking funding; (2) pursuant to an impartial hearing officer's (IHO) Findings of Fact and Decision (FOFD) the child's placement was determined to be a particular school placement for which funding was ordered and now the parents are transitioning their child to a different placement for which they are seeking funding.
Parents initially may balk at the idea of changing their child's placement and/or having to initiate litigation in order to secure funding, which always involves a certain amount of risk. Prevailing case law, however, sets forth that if the child's new placement is "substantially similar" to the previous placement, the District is required to maintain the child in the new placement during the pendency of legal proceedings. This is a powerful legal mechanism for parents who have identified an appropriate new placement but do not have the means to lay out the tuition owed. It is also very helpful to schools that would like to accept students who are the right fit for their program but would have difficulty waiting for a final outcome of the case before starting to receive funding from the District.
Through pendency, if the new placement is determined to be substantially similar to the previous one, the District will be required to make tuition payments to the new placement retroactive to the date of the filing of the due process complaint (DPC) through the conclusion of the legal proceedings. This makes it possible for parents to enroll their child in the new school placement with the security of knowing that the tuition will be funded during the interim regardless of the final outcome of the case on the merits.
Recent federal court cases address the substantially similar standard under pendency. For example, in Navarro Carillo v. NYCDOE, 384 F.Supp.3d 441 (S.D.N.Y. 2019), the student was placed at iHope, an independent private school for children with brain and injuries or disorders for the 2017-2018 school year. An IHO determined that iHope was the student's appropriate placement for the 2017-2018 school year. Subsequently, for the 2018-2019 school year, the parents decided to enroll their child in a different but similar school, iBrain, and sought pendency for iBrain. I won't go into the full administrative history of the case here; however, I will note that the case made its way to federal court and the U.S. District Court for the Southern District of New York concluded that, based on the substantial similarity between iHope and iBrain, the District had an obligation to fund iBrain during the duration of the legal proceedings pursuant to pendency.
This issue was addressed in other federal court cases as well. See Abrams v. Carranza, 2019 WL 2385561 (S.D.N.Y. 2019); Soria v. NYCDOE2019 WL 3715057 (S.D.N.Y. 2019). I am not going to discuss those cases in depth here. However, I will note that in Soria it was made clear that the fact that parents unilaterally moved the student (as opposed to being forced to do so due to the prior program shutting down, for example) was not a relevant consideration. It was also made clear that parents must present sufficient evidence to demonstrate that the two schools being considered are substantially similar. Considerations for the "substantially similar" analysis might include the type of school, the size of the classrooms, the type of curriculum, the credentials of the teachers, the student's daily schedule, and the related services and supports provided. For more about related services considerations in this context see Angamarca v. NYCDOE, 2019 WL 3034912 (S.D.N.Y. 2019).
The overarching point here is that if a student was previously enrolled in a program funded by the District, whether pursuant to an IEP or FOFD, just because the parents are transitioning their child to a new school placement does not mean that the stream of funding from the District will be cut off. As illustrated above, if the new school placement is substantially similar to the old school placement, parents may be entitled to continue receiving funding for the new placement during the pendency of their legal proceedings until a final decision is reached regardless of the final outcome of the case.