turning five

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.

It’s Becoming Harder (But Not Impossible) To Get Turning-Five Deferrals

There is no certainty when dealing with a gargantuan bureaucracy like the NYC Department of Education. Having practiced in this area for over 25 years, our firm has lived through many changes and cycles. 

A recent shift that parents need to be aware of is that “Turning Five” IEP teams are not as forthcoming as they have been in the past when it comes to issuing deferrals to attend a state-approved non-public school. 

State-approved non-public schools (such as Churchill, Parkside, Learning Spring, Hawthorne, Blue Feather, SLCD, Hallen, etc.) are private schools that appear on the NYS Commissioner of Education’s approved list to enroll classified children with IEPs. When an IEP team determines there are no appropriate public school programs for a child, they can defer the case to the Central Based Support Team (CBST) for approved private school placement. The DOE directly pays the school’s tuition and provides round-trip transportation. 

Thankfully, not much has changed for parents who need a continuation of a deferral for future years. This continues to happen with very little push back. And we continue to experience great success with families who ask for a deferral for the first time after their child has not succeeded in a public school program.

But for our turning-five families, things feel differently. In the past, IEP teams have been more willing to defer turning-five students at the first IEP meeting when those students’ parents have had acceptance letters to one of the approved non-public schools. Now, we are finding that securing a deferral often takes more than one IEP meeting.

It has long been our firm’s practice to send a lawyer with our clients to turning-five meetings when the child has been accepted to an approved non-public school in order to assist the parents in arguing for the deferral. We continue to do this. In this current climate, we have been and will continue to send our attorneys to additional IEP meetings that we may advise you to request after visiting the DOE’s placement offer. We may also recommend that you take an expert that knows your child on those visits or to one of these IEP meetings.

Our message is this: It has become much more difficult (but not impossible) to get a deferral at your first turning-five IEP meeting—expect to do a lot more work. Much depends on your child’s individual circumstances and the temperament of your IEP team. However, if you are ultimately unable to get a deferral, most of the approved non-public schools are willing to enroll your child if you pay the tuition and sue.

It’s truly shameful that the DOE is making deferrals to approved non-public schools harder to get for Turning Five families, particularly those with more modest incomes who have long relied on approved schools as a way to secure an appropriate education. This sea change is in stark contrast to the de Blasio Administration’s original campaign message about ending the so-called “Tale of Two Cities.” We encourage you to write your city representatives about this issue if it affects you and tell them your story. 

Turning 5 Workshop in Queens Tuesday, Nov. 7th by Special Ed Advocate Sarah Birnbaum

Following our two turning five talks this fall, several parents have asked if there will be any more opportunities to attend kindergarten transition workshops this year.

We will announce Skyer Law's spring workshop opportunities in the months to come, but, in the meantime, special education advocate Sarah Birnbaum is holding her final event of the year in Queens on Tuesday, cosponsored by Touro College and Queens Special Kids.

Sarah Birnbaum is at the top of her field. She is knowledgeable, passionate, and skilled at helping special needs parents understand this complicated process. It's well worth attending one of her events.

Date: Tuesday, November 7th, 6:00-8:00 pm
Location: Touro College Graduate School of Education
71-02 113th Street, Forest Hills (main floor)
RSVP: sarah@nyspecialneeds.com


Attention Parents of Children Born in 2012! (Your To-Do List Just Got Longer.)

The NYC Department of Education’s Special Education Office has sent out an important letter to parents of children who will be “turning 5” during the 2017 calendar year, and who are expected to enter kindergarten in September 2017. 

This letter clarifies that the parents of all children turning five, including those with IEPs, must apply to kindergarten through the NYC application process.  This obligation applies regardless of whether you feel that your child’s needs could ever be met in your local public school.

Applications for kindergarten are open from November 30, 2016 to January 13, 2017.  Parents can apply in one of 3 ways:

1)      Apply online at schools.nyc.gov/ApplyOnline

2)      Apply over the phone by calling 718-935-2400 (M-F, 8 am – 6 pm)

3)      Apply in person at a Family Welcome Center (see schools.nyc.gov/WelcomeCenters for locations and hours)

All families with children receiving CPSE services who have a 2012 birth date are also expected to attend a kindergarten orientation meeting. These meetings are happening all over the five boroughs beginning mid-November and running through mid-December. A full list of dates, times, and locations is posted on the DOE website.

Despite the fact that the kindergarten placement process is different for children with IEPs, this DOE letter makes it very clear that parents of children who receive special education services through the CPSE are required to participate in the NYC kindergarten application process.

If you have not received a letter on this topic from the Department of Education, it is still important to be an active participant in the kindergarten application process.  For important updates and more information regarding the transition to kindergarten for special education students, please visit schools.nyc.gov/Academics/SpecialEducation/AcrossGrades/Kindergarten.