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).