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When the System Isn’t Following The Rules

At the start of every school year (both for July and September), families encounter the usual frustrations that come with the start of a new school year. But over the past two years, some of what we are seeing has little to do with ordinary back-to-school chaos.

Across our cases, we are seeing recurring practices in NYC that are increasingly concerning: challenges to students’ pendency rights that threaten to interrupt existing educational programs; settlement offers that provide parents with virtually no meaningful reimbursement for the attorneys’ fees they incurred enforcing their children’s rights; IEPs generated from meetings that parents tell us (and evidence confirms) never occurred; and public-school placements offered without current or timely IEPs establishing what those students actually require.

Any one of these could be dismissed as an isolated problem. When the same issues begin appearing across unrelated cases, however, they deserve closer attention.

This month, we are taking a break from our usual newsletter format to discuss what we are seeing, why it matters, and what parents should be watching for.

-Ariel & Chris

Firm News

Welcome to the Firm, Mariam!

We are thrilled to welcome Mariam Mahmood Qureshi as a Partner at AZ & CB Law & Consulting and the head of our new School Law Group.

Mariam brings more than two decades of education law experience to the firm. Before joining us, she spent six years at Bond, Schoeneck & King, advising schools and educational institutions on a wide range of legal issues. Before that, Mariam spent 15 years with the New York City Department of Education’s Office of General Counsel, where she ultimately served as Director of the Special Education Legal Unit.

On a personal note, this one is particularly meaningful. Mariam was our boss at the DOE, and we have known and respected her for many years. Having the opportunity to now work together as partners feels a bit full-circle.

Mariam will lead our growing practice representing private schools on operational and education-law matters, while also bringing her extensive special education experience to our IDEA/FAPE work on behalf of families.

We could not be more excited about what Mariam brings to our team—and about this next chapter for the firm.

Learn more about Mariam →

In Your Advocacy Backpack: Recent Trends

Pendency: Fighting the Status Quo Instead of Preserving It

One of the most troubling trends we are seeing this school year involves pendency—the legal protection intended to keep a student’s educational program in place while a special education dispute is being resolved.

The concept is supposed to be simple: while the adults fight about what should happen next, the child’s education should not be disrupted.

Increasingly, however, we are finding ourselves fighting with the District over the very protection that is supposed to prevent that disruption.

When an Appeal Suddenly Means “We’re Not Paying”

In several cases, the DOE has taken the position that it will not continue funding a student’s pendency program while an appeal is pending when pendency itself is part of the dispute.

Think about what that means in practice.

A parent obtains a decision establishing or recognizing an educational program for the child. A dispute continues or an appeal is filed. Instead of maintaining the child’s program while that litigation proceeds, the DOE stops or refuses payment—potentially leaving the school, provider, and family in limbo.

Appeals can take a significant amount of time. A child cannot put school on hold while the lawyers finish litigating.

That is precisely why pendency exists.

“We’ll Pick the Public School”—But Which One?

We are also seeing the DOE rely increasingly on the argument that, even when a student has a right to a particular pendency program, the DOE retains the ability to decide where that program will be implemented.

There are circumstances in which the law permits a school district flexibility in implementing a pendency program. But that does not mean the DOE can simply say, “We could provide this in a public school,” and leave it there.

If the DOE contends that it can actually implement a child’s pendency program in a public school, our next questions are obvious:

Which school? Which classroom? Does the program actually exist? Is there a seat? Can that school provide all of the services that make up this particular child’s pendency program? And when can the child start?

Too often, the threat of a public-school pendency placement is not accompanied by an actual school placement capable of implementing the program.

A hypothetical classroom does not educate a child.

Ten Months, Twelve Months—and What Did the Hearing Officer Already Decide?

We are also seeing fights over whether pendency extends through the summer.

This is particularly concerning in cases where a prior Final Order of the Impartial Hearing Officer already addressed the issue and determined that the student required a 12-month program.

If the decision establishing the student's pendency reflects a 12-month program, the DOE should not be able to effectively rewrite that decision during a subsequent pendency dispute by funding only ten months.

For students who require 12-month programming to prevent substantial regression, summer is not an optional add-on. It is part of the educational program.

Why This Matters

Pendency was not designed to become another full-blown battle for parents to fight.

Its purpose is stability.

Special education litigation can take months—and appeals can take far longer. During that time, children continue growing, learning, regressing, progressing, and needing services every single day.

If a family must repeatedly litigate just to maintain the child's pendency program while simultaneously litigating the underlying special education dispute, an important procedural safeguard begins to lose its practical meaning.

Parents should not have to choose between personally funding an established educational program, disrupting their child's education, or starting another legal fight simply to preserve the status quo.

The adults can fight. The child's education should not have to wait.

Another troubling practice we are seeing has nothing to do with a child’s IEP or placement—but it can directly affect whether families can afford to enforce their children’s rights.

The DOE has increasingly been offering parents as little as $1,000 toward attorneys’ fees when settling special education cases.

Under the IDEA, parents who prevail in special education disputes may recover reasonable attorneys’ fees. That matters because families often must spend thousands of dollars challenging inappropriate IEPs, placements, or services while the DOE has its own attorneys available to defend those decisions.

$1,000 does not come close to covering the legal work involved in most litigated cases.

When the underlying educational dispute is resolved but the family is left responsible for most of the legal fees incurred to obtain that result, the impact goes far beyond attorneys getting paid. It becomes an access-to-justice issue.

Families who cannot afford to absorb substantial legal expenses may hesitate to challenge an inappropriate program or may be unable to retain counsel at all.

Every case is different, and reasonable fees should reflect the work actually performed. But offers that bear little relationship to the actual cost of litigation can leave families carrying the financial burden of enforcing rights their children already have under federal law.

A right that families cannot afford to enforce is a right that becomes much harder to exercise.

Over the past two school years, we have encountered cases in which parents report receiving newly generated IEPs documenting CSE meetings that, based upon objective, supported evidence, never actually took place.

In some instances, the IEP identifies a meeting date, participants, and recommendations even though the parent maintains that they did not participate in or, in some cases, even know about, a CSE meeting on that date.

We cannot speak to how or why any particular IEP was generated without a meeting, and each case must be evaluated based on its own facts and records. But the issue is serious.

An IEP is supposed to be the product of the CSE process, not a substitute for it. Parents have a legally protected role in developing their child's educational program, including the opportunity to participate meaningfully in the CSE meeting and discuss their child's needs, services, goals, and placement.

We are also seeing families receive public-school placement offers before the DOE has developed a new or timely IEP for the upcoming school year. In some cases, the placement appears to be based on an older IEP that may no longer reflect the student's current needs and is, in some cases, two or more years old.

That raises a basic question: How can a school be selected to implement a child's program before the CSE has timely determined what that program should be?

The IEP process is intended to work in a particular order. The CSE evaluates the student's current needs, develops an appropriate IEP, and the DOE then identifies a placement capable of implementing that program. A placement offer should not substitute for a timely and individualized IEP.

For parents, the takeaway is simple: a school placement letter does not cure the absence of a current IEP. If you receive a placement but your child's annual review has not occurred or you have not received an updated IEP, ask the DOE—in writing—which IEP the school is expected to implement and when the CSE intends to develop your child's program for the new school year.

🧩 Tip of the Month ✏️

If you receive an IEP following a meeting you do not remember attending, do not assume it is simply an administrative error. Review the meeting date, listed participants, recommendations, and prior written notice carefully. If something does not match what actually occurred, document your concerns in writing and request your child's educational records.

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