May 26, 2020
Dear Friends:
We hope you enjoyed Memorial Day weekend and wanted to update you with some important information before the end of the 2019-2020 school year.
The Limits of Pendency Protection
Mayerson & Associates has successfully litigated hundreds of pendency applications. While pendency continues to be an unconditional and automatic protection that preserves the existing status quo, the Second Circuit's decision earlier this month in Ventura de Paulino v. NYCDOE shows that as valuable as pendency is, it has its limits. In that case, the student's parents, represented by other counsel, made the decision to transfer their child to a different school setting. The parents argued that the new school was "substantially similar" to the student's prior school and sought to invoke pendency as a mechanism to have the new school funded while the due process proceeding was pending. Based on the above facts, the Second Circuit held that pendency protection would not be extended to cover the parents' personal decision to move their child to a different school.
The Second Circuit's decision was predicated on an unusual fact pattern that most parents will never face. In contrast, in one of our cases, a student's pendency was rooted in his AMAC ABA-based program. Unfortunately, AMAC filed for bankruptcy and closed its doors. Accordingly, and in contrast to the facts presented in the Ventura case, our clients had no choice but to find another educational program and placement. The student was transferred to the Keswell School. Our firm then made a pendency application, arguing that the Keswell School's ABA program was substantially similar to the student's prior program at AMAC (i.e. the program that went bankrupt). Our pendency application was granted and the DOE was directed to fund the student's tuition at the Keswell School while the matter was pending.
We carefully analyze each student's pendency entitlements at the time that we file for due process. A section of our due process demands is reserved for a description of the student's pendency entitlements, and how those entitlements arose. Please call if you have any questions regarding this important statutory protection.
IEP Meetings and Evaluations:
IEP meetings and evaluations are taking place remotely. Accordingly, please do not assume your child's IEP meeting or evaluation date has been canceled. Be aware that DOE is contacting many of our families and schools directly via email and skipping the customary practice of sending notifications by regular mail.
The DOE has announced that students in all grades with 12-month IEPs will participate in remote summer programming from Wednesday, July 1–Thursday, August 13.
If you have a meeting or scheduled evaluation, or if you receive any communication from the DOE, please contact our office to discuss next steps. Next steps might include helping you communicate with the DOE about your consent and availability to participate at meetings telephonically, to coordinate and share any necessary reports, or if you're asked to attend a virtual tour.
Settlements and Hearings:
Our offices is regularly reaching out to the DOE about your child's matter. While the DOE has recently furloughed many of its contract attorneys, hearings continue to be scheduled and are proceeding telephonically. Settlements, as always, require Comptroller approval. The advent of remote teaching has brought with it additional questions to be answered. Not every case can be settled. Some matters will need to go to hearing. If you have a scheduled hearing, please remain in close contact with your attorney regarding next steps.
Reimbursements:
While we are encountering some additional COVID-19 related delays, our firm is receiving reimbursements/funding from the DOE. Please continue to provide all the requested documentation to Eric as soon as possible.
Documentation:
Please continue to keep us apprised of any communications received from the DOE or your school district and forward us copies of any documents you receive. For students with an FBA or BIP, many schools are updating their student's programs to reflect remote learning. If your child has a BIP as part of their IEP and your school has provided you with an updated BIP, please direct it to our office.
Relocation:
If your family has temporarily relocated, please let us know. With Governor Cuomo's announcement that he is extending his authority on the NY on PAUSE order, some families are giving thought to what life and their child's education program might look like living outside of the five boroughs on a more permanent basis. If your family is considering even a temporary move outside of New York City, please call us. We have valuable information that can help guide your search and have successfully represented many families living in Westchester County, in NJ, and out on Long Island.
We hope this information is helpful. If you have any questions, please call or email us.
Best wishes to everyone.