impartial hearing

What is Pendency?

by Magda Labonté

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 is not site-specific. It is program specific and portable.
  • 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 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 unappealed 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.

However, this does not mean the parent will ultimately pay nothing. 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.

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.

“How Can I get ABA On My Child’s IEP?”

By Linda Goldman

When your child has benefited from Applied Behavioral Analysis (ABA), you might wonder whether the continued use of this methodology can be specifically listed as a mandate on the student’s Individualized Education Program (IEP).

Even though your child has made progress as a result of an ABA program, this does not bind the Committee on Special Education (CSE) to include ABA in the student’s IEP. This is because teaching methodology is usually a matter that is left to the teacher's discretion, and the CSE is, therefore, not necessarily required to specify it on an IEP.

There are, however, certain circumstances in which a CSE can be convinced (or, if necessary, compelled by an administrative tribunal or court), to include ABA as a mandate on the IEP. The way this is done is to present evidence that ABA is essential for the student to continue to make educational progress and that without ABA the student will regress.

Here is the kind of evidence that is helpful:

  • Recommendations from teachers, therapists and related service providers that indicate that ABA is needed for the student to continue to make progress;
  • Evaluative reports and materials that yield a clear consensus that ABA services are necessary for the student’s educational progress;
  • Documentation that other educational methodologies have been tried but were unsuccessful; and
  • Documentation of regression during a period of time in which the child did not have access to ABA services or supports.

If the school district’s IEP review team cannot, or does not, point to any evidence sufficient to counter the opinions and recommendations presented by the parents, the CSE will not be in a legally tenable position to deny a request by parents that ABA services, at least on some level, be identified and included in the IEP.

Despite what an IEP team might insinuate during your meeting about its broad powers and educational expertise, decisions regarding educational methodology or “delivery of instruction” are supposed to be made after considering your input. Some pivotal questions the school district might consider is what has worked for the child in the past; whether the child will be responsive to different educational methodologies; and whether the child will likely regress absent the use of ABA.

When preparing for an IEP meeting where educational methodology is a concern, be sure to have all relevant documents on hand. This includes all educational and psychological evaluations as well as progress reports and other data from teachers, specialists, and related service providers.

Parents should try to arrange for the participation of educational professionals who have worked with the student and who can attest to the fact that ABA instruction and support is essential for the student to make educational progress.

If the CSE ultimately refuses to mandate ABA services, parents should request that the CSE explicitly note in the IEP that the parents and professionals most familiar with the student believe, and have documented, that ABA methodology is necessary for the student to access instruction and/or function in the school setting. If applicable, you can also ask the CSE to note in the IEP that other methodologies have been tried, but have not been successful. If someone is taking written minutes for the IEP meeting, ask that your objections, reasons, and documents be noted there.

In these situations, parents may ultimately have to proceed to an Impartial Hearing to obtain a mandate for ABA services. A central issue at that hearing will be whether the parents presented uncontradicted and compelling information to the CSE that the child requires ABA in order to make meaningful educational gains appropriate to the child’s circumstances. The more documentation and evidence you have regarding this issue, the stronger your case will be.  

Register Now for “How to Survive an Impartial Hearing" on December 1st

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We are less than a month away from Skyer Law's How to Survive an Impartial Hearing conference—and there is still time to register. If you are a special education parent, clinician, therapist, teacher, school administrator, or any other person who might be called to testify at a due process impartial hearing, then this free half-day conference is for you. 

At some point in a special education student’s schooling years a family may face an impartial hearing. For the parents, as well as the educators, clinicians, therapists, and the school administrators who care about that child’s educational progress (and may be called to testify), this is often stressful news—and that’s understandable. There is a lot is on the line.

On December 1st, a distinguished group of special education lawyers from the Law Offices of Regina Skyer & Associates will demystify the impartial hearing process by staging a mock hearing of a tuition reimbursement case. We will also take time to discuss some of the critical laws and procedures and answer as many audience questions as time allows.

Coffee/juice and light refreshments will be served. Registration is required as space is limited.

When: Friday, December 1st, 8:30 AM – 1:30 PM
Where: The Forchelli Center, Brooklyn Law School, 205 State Street, Brooklyn, NY
Questions? Email ekaiser@skyerlaw.com