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From ESY to September: What Every Parent Should Know

With summer in full swing, many students are settling into their Extended School Year (ESY) programs while families begin looking ahead to September and the upcoming school year.

In this month's newsletter, we're breaking down three topics that frequently arise during the summer: Ten-Day Notices, pendency ("stay-put") rights, and what to expect after filing for due process. We hope these articles help you better understand your rights and feel more confident navigating the special education process.

As always, if you have questions about your child's unique circumstances, we're here to help.

-Ariel & Chris

Firm News

We are excited to welcome Charles Goulding, Esq. to AZ & CB Law & Consulting as our newest Associate Attorney.

Before entering the legal profession, Charlie spent three years as a middle school mathematics teacher in New York City, where he worked with students receiving special education services and gained firsthand experience implementing Individualized Education Programs (IEPs). That classroom perspective gives him a unique understanding of the educational challenges our clients and their children face.

Charlie earned his J.D. from Brooklyn Law School and has represented clients in guardianship, custody, and other family court matters, as well as civil litigation throughout New York.

His commitment to serving children extends beyond his legal career. Charlie has volunteered as a mentor with Big Brothers Big Sisters and has remained actively involved with Best Buddies International through a long-term one-on-one mentorship program.

Charlie's background as both an educator and attorney makes him a valuable addition to our growing team. We are thrilled to have him on board and look forward to the knowledge, compassion, and dedication he will bring to the families we serve.

Around the World with Chris

Partner Christopher Barnett continues his international research on special education systems around the world as he works on his next book. This summer, his travels have taken him to Portugal and Sweden, where he has been meeting with educators, policymakers, and disability advocates to better understand how different countries support students with disabilities and their families.

By exploring innovative educational models and comparing approaches across cultures, Chris hopes to identify best practices that can help inform conversations about special education here in the United States. We look forward to sharing more updates—and eventually his latest book—as his journey continues.

In Your Advocacy Backpack

What Is a Ten-Day Notice (TDN), and Why Does It Matter?

If you are considering enrolling your child in a private special education program because you believe the public school district has failed to provide an appropriate education, one of the most important steps is serving a Ten-Day Notice ("TDN").

Under the Individuals with Disabilities Education Act ("IDEA”), parents who intend to seek reimbursement from their school district for private school tuition are generally required to notify the district of their intentions at least ten business days before removing their child from the public-school placement. While there are limited exceptions, failing to provide proper notice can result in a reduction or even denial of tuition reimbursement.

A well-drafted TDN should:

• Explain why you believe the school district failed to provide your child with a Free Appropriate Public Education (“FAPE”);

• Identify the concerns with the IEP, placement, or services offered by the district;

• State that you intend to enroll (or have enrolled) your child in an appropriate private program at public expense;

• Request that the district fund the private placement or reimburse you for the costs; and

• Preserve your legal rights under the IDEA.

One point that often surprises families is that a TDN is not simply a notice that you are trying a private school. By serving a TDN, you are advising the district that you are rejecting the public program and removing your child from the public-school setting for that school year. In other words, you are not planning to return your child to the district's recommended placement during that school year while your claim is pending.

Because a TDN can have significant legal consequences, it should be carefully tailored to your child's circumstances. A generic or incomplete notice may fail to preserve important claims or adequately explain why the district denied your child a FAPE.

If you are considering a unilateral private placement, obtaining legal advice before sending a TDN can help ensure your rights are protected from the outset.

One of the strongest protections available to families under the IDEA is something called pendency, also known as "stay-put."

In simple terms, pendency means that once a special education dispute is filed, your child's educational program/placement generally stays the same until the case is resolved, unless you and the school district agree otherwise.

Think of pendency as a "pause button." It prevents a school district from changing your child's educational placement simply because you filed for due process.

For many families, pendency can be especially important after a child has already been attending a private special education school at public expense. If that private placement becomes your child's pendency placement, the district may be required to continue funding it while the litigation is pending—even if the district disagrees that the placement is appropriate for the current school year.

Pendency is not automatic simply because a child attends a private school. Whether a particular placement qualifies depends on your child's educational history and prior legal or administrative determinations. In some cases, pendency arises from an unappealed hearing decision, the district's prior agreement through the IEP to fund the placement or, in rare cases, from a settlement agreement.

Because due process cases often take months, or even longer, to resolve, pendency can provide families with stability and ensure that a child continues receiving consistent educational services while the legal issues are being decided.

Determining a child's pendency placement can be surprisingly complex, and mistakes can have significant financial consequences. Before changing your child's educational program or filing a due process complaint, it is important to understand what your child's pendency rights are and how they may affect your case.

Filing a due process complaint (“DPC”) is often the beginning of the legal process—not the end. While every case is different, understanding what to expect can make the process feel much less overwhelming.

Step 1: The Due Process Complaint Is Filed

The process begins when the parent files a DPC alleging that the school district denied the child a FAPE. The complaint identifies the legal and factual basis for the claims and explains the relief being requested, such as tuition reimbursement, compensatory education, or other services.

Step 2: The Resolution Period

In most cases, the IDEA provides for a 30-day resolution period. During this time, the district has an opportunity to resolve the dispute before the case proceeds to a hearing. In NYC, few cases are resolved through settlement discussions during this stage, and most continue through litigation.

Step 3: Pre-Hearing Conferences

If the matter is not resolved, an Impartial Hearing Officer ("IHO”) will schedule a pre-hearing conference to address procedural issues, establish deadlines, and move the case forward to hearing.

Step 4: The Hearing

The hearing functions much like a trial, although it is generally less formal than court proceedings and is usually conducted virtually. Both sides may present witnesses, introduce documents into evidence, and make legal arguments. Parents often testify about their child's educational history, while evaluators, therapists, teachers, and school staff testify about their educational needs and performance.

Depending on the complexity of the case, hearings may last a single day or be spread over several hearing dates.

Step 5: The Hearing Officer's Decision

After the hearing concludes and the parties submit any required written arguments, the Hearing Officer issues a written decision determining whether the district provided a FAPE and, if not, what relief is appropriate.

Step 6: An Appeal (If Necessary)

Either party may appeal the Hearing Officer's decision to the State Review Officer ("SRO”). In some cases, the SRO's decision may then be appealed to federal court. Currently, SRO appeal decisions are taking anywhere from eight months to one year to be issued.

Don't Forget About Pendency

While the case is pending, many students have "pendency" (or "stay-put") rights that may require the district to maintain the child's current educational placement during the litigation. Because pendency can have a significant impact on both a child's education and a family's financial obligations, it is often one of the first issues addressed after a due process complaint is filed.

Although the due process system can seem intimidating, many cases resolve before a final hearing decision is issued. Understanding the process, and obtaining experienced legal guidance early, can help families make informed decisions and protect their child's right to an appropriate education.

🧩 Tip of the Month ✏️

If your school district recommends a new placement for the upcoming school year, make every effort to tour the school before classes begin.

Pay attention to more than just the building. Observe the students, ask about classroom staffing, related services, behavior supports, communication with parents, and how the school would address your child's unique needs. Don't be afraid to ask difficult questions.

Most importantly, don't feel pressured to accept or reject the placement during the tour. Take notes, discuss your observations with your child's providers, and make an informed decision based on whether the school can actually implement your child's IEP.

A one-hour visit can provide valuable insight that isn't reflected in an IEP or school profile.

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