Pendency, also known as “stay put,” is one of the strongest protections Congress enacted in the federal IDEA statute. Normally, in the first instance, the school district has the opportunity to select the student’s pendency providers.
In what the court has characterized as a “unique” case of first impression, United States District Court Judge Vincent Briccetti has just held in one of our upstate cases that when a school district district “flatly refuses” to recognize and fulfill a disabled student’s “pendency” rights under the federal IDEA statute, the school district must then reimburse the student’s parents for the costs of the student’s pendency services during the course of any IDEA-based dispute between the school district and the student’s parents.
The dispute concerns “T.M.,” a young Cornwall boy with autism whose parents rejected the Cornwall School District’s proposed Individualized Education Plan (IEP) for the 2010-2011 school year.
When T.M.’s parents challenged Cornwall’s education plan, they invoked T.M.’s “pendency” rights to continue and maintain the services that T.M. had been receiving under Cornwall’s May 29, 2009 IEP, from service providers that Cornwall had originally approved. Cornwall, however, refused the parents’ request, claiming that T.M. “did not have any statutory pendency entitlements.”
An Impartial Hearing Officer, appointed and compensated by Cornwall to hear T.M.’s case, ruled otherwise. Because of Cornwall’s outright refusal to recognize and provide T.M.’s pendency services, the hearing officer ordered Cornwall to reimburse T.M.’s parents for the ongoing expense of maintaining T.M.’s services.
Thereafter, Cornwall took an appeal to the State Review Officer (SRO). However, even the SRO agreed that Cornwall had “unlawfully failed” to provide T.M.’s pendency services during the 2010-2011 school year case and that because of Cornwall’s outright refusal, the presiding hearing officer had properly ordered Cornwall to reimburse T.M.’s parents for the cost of maintaining his pendency services.
On a further appeal to the federal district court, and upon T.M.’s motion for a preliminary injunction, Cornwall advised the court that it was now ready to honor and acknowledge T.M.’s pendency rights, but that Cornwall was entitled to select a brand new team of service providers for T.M.! Judge Briccetti rejected Cornwall’s proposal and granted T.M.’s motion for a preliminary injunction, reasoning “… having forced the parents to secure private pendency service providers, Cornwall cannot now demand control over who will provide thependency services and where the services are to be administered.”
As a result of Judge Briccetti’s ruling, Cornwall must now reimburse T.M.’s parents for T.M.’s pendency provider costs from July 1, 2011 to the time that there is a final order in the case. The T.M. decision now stands as helpful federal court precedent to assist similarly situated families.