| Law Blog Entry # 3 (February 23, 2020): Getting Your Ducks in a Row Parents contact my office for a lot of reasons. For example, some parents have children who are transferring from the Early Intervention Program to Preschool and fear losing important services such as Applied Behavior Analysis (ABA) or related services. The same may happen when a child goes through the "turning five" process in New York City as their child transfers from preschool to kindergarten. Other parents have children who are older and even though the parents have cooperated with the school district and in many cases have paid privately for tutoring and after school services, are still not seeing a sufficient amount of progress. It is very important for parents to keep in a safe place their child's entire educational file and to show these documents to the special education attorney who is reviewing their case. If a parent does not have these documents, they need to ask the school to provide the entire educational file. Very often, there are still unanswered questions concerning why a student is not making sufficient progress at school that require additional testing and evaluations. Sometimes, it is possible to obtaining funding from the school district for these evaluations. A private evaluation frequently makes the difference between obtaining an appropriate program as opposed to being locked in to a program that does not work. It is imperative for parents who suspect that their child's educational program is not meeting their needs to act quickly to allow time to obtain necessary testing and evaluations and the opportunity to meet with the school district to discuss the results and offer an appropriate program. It is also important for parents to begin educating themselves as early as possible about their child's special education needs and the types of programs and services that are available. In these situations, time is of the essence! Law Blog Entry # 2 (February 23, 2020): Since I wrote the article on "The Power of Pendency," I have been successful in obtaining pendency orders for students who have been attending private schools pursuant to stipulations of settlement that order the school district to fund the private school as the pendency placement because it is the operative placement that is actually functioning at the time that the parent's due process complaint was filed (see Example # 3 below). This is enormously helpful to the families, the schools, and of course the students who will benefit from pendency protection which maintains the "status quo" and obligates the school districts to pay the private school tuition on an ongoing basis while the parents and the school districts litigate. | |
| Law Blog Entry # 1 (February 25, 2019): | |
THE POWER OF PENDENCY
Pendency is an important tool for protecting the rights of special needs students when the school district changes the previously agreed upon special education placement and services that the student has been receiving. If the parents disagree with all or part of the new IEP recommendation (or if the school district fails to generate an IEP at all for the next school year), they have the right to challenge and enter into litigation with the school district.
In order to initiate their challenge and to obtain pendency, parents must file a due process complaint.
Pendency maintains the status quo to ensure that the student will continue to receive the previously agreed upon special education placement and services during the course of litigation. A student's right to pendency automatically arises as of the filing of the due process complaint.
PARENTS WILL NOT RECEIVE PENDENCY PROTECTION FOR THEIR CHILD UNLESS THEY FILE A DUE PROCESS COMPLAINT EACH YEAR THAT THEY DISAGREE WITH THE SCHOOL DISTRICT'S ACTIONS.
Here are some examples of how pendency protects special education students when the school district refuses to provide them with an appropriate IEP for the upcoming school year:
Example # 1: Pendency Based Upon the Last Agreed-Upon IEP:
A preschool student with autism has been receiving 20 hours per week of SEIT services on his IEP and has been receiving these services from qualified providers of applied behavior analysis (ABA). These ABA services are helping the student make progress. Then the student goes through the "turning five" process to transition from preschool to kindergarten but the school district determines that he no longer needs or qualifies for ABA SEIT services and eliminates them altogether in favor of a 6:1:1 district 75 classroom. The parents disagree with this recommendation and file a due process complaint explaining that their child continues to need 20 hours per week of 1:1 ABA. Pendency will protect the student by ensuring that he receives 20 hours per week of ABA SEIT services and the related services that were specified on his preschool IEP during the course of litigation.
Example # 2: Pendency Based Upon an Unappealed Impartial Hearing Decision:
The parents of a student with dyslexia and ADHD won an impartial hearing and the school district was ordered to fund their child's attendance at a private school for students with learning disabilities for an entire school year. The school district does not appeal this order and pays for the private school placement. The school district then creates an IEP for the next school year that recommends a public school program that the parents do not believe will be able to meet their child's unique needs. By filing a due process complaint to challenge this recommendation, the parents will be able to invoke pendency based upon the placement that was ordered in the prior unappealed impartial hearing decision, and the school district will be required to make ongoing tuition payments to the private school during the course of litigation.
Example # 3: Pendency Based Upon the Placement that was Actually Functioning at the Time the Due Process Complaint was filed:
This one is a little tricky and school districts like the New York City Department of Education seem to have a hard time with it, but it is well worth learning especially when there exists a prior stipulation by which the school district agrees to fund a particular placement.
The school district and the parents enter into a stipulation of settlement whereby the school district agrees to pay the student's tuition at a private school for a particular school year. The school district insists on including language in the stipulation that limits its obligation to pay the tuition for only the school year in question and further states that the parents' chosen private school will not be considered the student's pendency placement in the future.
The student attends the private school at the school district's expense for the period specified in the stipulation.
Then, the parents file a due process complaint for the next school year asking again for tuition for the private school. The parents can and should argue that the private school is now their child's pendency placement because this is the placement that was actually functioning when they filed the due process complaint. This is the case despite the fact that the school district tried to avoid making the private school the pendency placement through contractual terms in the stipulation for the prior school year.
Courts have held that pendency is statutory and automatic, and cannot be limited by contractual terms because students must be protected. Thus, the private school is the pendency placement and the school district must pay the student's tuition at the private school during the course of litigation.
Normally, pendency is supposed to be automatic but the New York City Department of Education insists on obtaining a pendency order from an impartial hearing officer. Once pendency has been obtained, it protects the student until all issues in the due process complaint have been finally resolved, which means that the student is protected until a stipulation is in place or there has been a final decision on the merits of the case (which could take years).
The student attends the private school at the school district's expense for the period specified in the stipulation.
Then, the parents file a due process complaint for the next school year asking again for tuition for the private school. The parents can and should argue that the private school is now their child's pendency placement because this is the placement that was actually functioning when they filed the due process complaint. This is the case despite the fact that the school district tried to avoid making the private school the pendency placement through contractual terms in the stipulation for the prior school year.
Courts have held that pendency is statutory and automatic, and cannot be limited by contractual terms because students must be protected. Thus, the private school is the pendency placement and the school district must pay the student's tuition at the private school during the course of litigation.
Normally, pendency is supposed to be automatic but the New York City Department of Education insists on obtaining a pendency order from an impartial hearing officer. Once pendency has been obtained, it protects the student until all issues in the due process complaint have been finally resolved, which means that the student is protected until a stipulation is in place or there has been a final decision on the merits of the case (which could take years).
