[5/22/2020 – This article has been updated in light of recent caselaw on this topic.]
Let’s begin by clearing up some common misconceptions:
Pendency is not a special education program. It is a legal injunction.
You cannot request pendency at an IEP meeting. Pendency is ordered by an impartial hearing officer (an administrative law judge).
Your child is not entitled to pendency outside of the impartial hearing process.
Pendency is not only for turning-five students.
Pendency does not guarantee a specific school, classroom, or teacher, just the type of program.
In some cases you can use your pendency entitlement for a different school or provider, but not always.
Pendency does not mean a school or program is free.
So, what is pendency? Pendency is the IDEA’s (Individuals with Disabilities Education Act) way of preventing the disruption of your child’s education when the school district and the parents disagree on the special education services that are recommended in an IEP (Individual Education Program).
If you disagree with the program recommended at an IEP meeting, you probably know that you can decide to exercise your due process rights and file an impartial hearing complaint. This is where pendency comes in, solving the problem of how your child receives an education while the results of the impartial hearing process are pending.
Pendency is triggered by filing an impartial hearing complaint. It entitles your child to remain, or “stay-put,” in the program that you and the District last agreed upon. Pendency ends when a settlement agreement has been finalized, when you “withdraw,” or choose to end, your case, or when a hearing officer’s decision is rendered. If one of the parties appeals the hearing officer’s ruling, pendency continues until a final decision is rendered. This can span anywhere from a few months to the entire school year and beyond.
In New York City, many people associate pendency with the turning-five process and so-called “preschool pendency.” When pendency is triggered in a turning-five case the “stay-put” program is the preschool (CPSE) program, so the child remains in their preschool program.
But pendency is an entitlement available to preschool and school-age children. It can be used to maintain the child’s last agreed-to IEP or, when applicable, the final decision of an impartial hearing proceeding.
The most common way we see this in action is when the parent of a school-age child goes to an impartial hearing for a tuition reimbursement case and wins. Then, the impartial hearing officer’s unappealed decision becomes the “stay-put” placement. If the parent exercises their due process rights the following year, they can seek an interim order on pendency, requiring that the DOE begin funding the “stay-put” program in the manner specified in the IHO’s pendency order. This can mean that the DOE pays for it directly or that the parent is reimbursed, depending on the specifics of the case.
Parents don’t have the right to take this pendency entitlement and move it to a different school, even if that same school is similar to the original program, unless that first program is no longer available to the child. Moving pendency to a different school or provider requires demonstrating to a hearing officer that the new program is “substantially similar” to the original one.
Even when you have your pendency entitlement in place, this does not mean you’re done with your case. The lawsuit that triggered the pendency order still must be resolved in either a final settlement or a final unappealed decision (if the case goes to hearing). In NYC, either process takes a great deal of time to finalize, resulting in the majority of the year’s tuition or fees being paid by the district. The timing varies in districts outside of NYC.
There is no requirement that a private school wait for funding from the school district, which can take time to be paid out. You can still be required to pay tuition on the school’s schedule. Your pendency entitlement would then be in the form of tuition reimbursement for the portion of the year that the lawsuit is open and pending.
You might be wondering what happens if you lose at a hearing. There’s good news here too, for parents with pendency orders. When you appeal a loss, the pendency order continues and the money still flows until settlement or a judgment by the State Review Office (SRO) is finalized. The parent is not responsible for any tuition or fees already paid by the district during the settlement or hearing process even if they ultimately lose.
It is for the above reasons that, in some cases, when a family cannot reach a satisfactory settlement with the DOE and we are forced to go to hearing that it can be a mixed blessing. Impartial hearings are inherently risky, stressful, time consuming, and expensive. But a win in an impartial hearing establishes a valuable entitlement: pendency.