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.

The outcome represents significant relief for R.G.’s mother, a single parent with an extremely modest income.  R.G.’s mother had complained over time to multiple staff at R.G.’s public school that R.G. was not making meaningful progress.  In response, R.G.’s school refused to make any adjustments or offer any additional services. At the end of her rope, R.G.’s mother paid for a private evaluation and hired an autism expert (a Board Certified Behavior Analyst) to observe R.G. in his District 75 public school placement.  The DOE, however, then ignored the recommendations of R.G.’s expert. After giving the DOE written notice, R.G’s mother then placed R.G. at The Rebecca School.

The IHO went beyond merely finding that the DOE’s program for R.G. was deficient.  The IHO also found that the DOE intentionally withheld and concealed information about R.G’s speech abilities that it had a duty to disclose to R.G.’s mother.

The result in R.G. shows how valuable the “compensatory education” and “prospective funding” remedy can be for a parent without adequate financial resources.  It also underscores how vigilant parents need to be to intentional concealment situations.

In the past year, Mayerson & Associates attorneys made special education law presentations in New York, New Jersey and Florida in the context of national conferences and continuing legal education seminars.  On April 24, 2012, we argued three separate special education law appeals before the Second Circuit, the tier just before the U.S. Supreme Court. In only one of those cases were we representing the appealing party.  The resulting adjudications from these three cases are likely to be extremely important, if not landmark, decisions that will shape and define the scope of parental rights and protections for families living within the Second Circuit (New York, Connecticut and Vermont).   It was especially gratifying to see so many of our attorney colleagues make the trip to New Haven to watch the oral arguments.  Keep your fingers crossed!

Most recently, my chapter on the legal implications of Central Auditory Processing Disorder (CAPD) was accepted for publication in Auditory Processing Disorders: Assessments, Management and Treatment, Second Edition, edited by Donna Geffner and Deborah Ross-Swain.   I am now finishing a chapter tentatively entitled “Autism and the Law,” to be published in the upcoming Fourth Edition of the seminal work, Autism and Pervasive Developmental Disorders, edited by Dr. Fred Volkmar, the Chair of the Yale Child Study Team.

A client’s needs necessarily will change over time. Accordingly, as our client population ages, we are continuing to pioneer or expand into areas such as “transition” planning, bullying, compensatory education relief, residential placements and programs, housing, employment, custodial issues, and the battleground of what are “reasonable accommodations.” Simply stated, we are committed to meeting the unique and ever-changing needs of our client families.