WHAT IS PENDENCY?
“Pendency” is an automatic right that a parent has to force the DOE to pay for tuition for a school and services that the child was receiving as of the time the hearing was filed through duration of the legal proceedings, provided that the DOE was delivering, funding or had agreed to deliver the services. It is basically an automatic “standstill” agreement – to keep the current services and program in place until the dispute is resolved.
HOW DOES A PARENT ESTABLISH PENDENCY?
Pendency is automatic when a hearing is filed as long as there is a clear and undisputed last-agreed upon placement.You cannot obtain pendency without filing for a hearing in New York.
Pendency in private school tuition is generally created one of five ways:
The Parent is receiving funding by a CBST deferral
The Parent is receiving funding by a Nickerson Letter (a tuition voucher offered if a special education class is recommended on an IEP but not offered)
The Parent is receiving (or last received) funding by way of a Final Decision of a hearing officer, the State Review Officer or a Court
By agreement of the DOE (verbal or written) (except for a Stipulation in NYC [see below])
Substantially similar pendency can be established when a family tries to get pendency in a similar program or placement when pendency is no longer available.
DOES A STIPULATION CREATE PENDENCY?
In NYC, tuition funded by a Stipulation will not generally create pendency rights, as the DOE does not usually stipulate to pendency in a tuition stipulation. There may be exceptions. However, if there was a prior order of a hearing officer or an IEP deferral before the Stipulation, pendency may be invoked in the most recent order/IEP. In addition, in some infrequent cases, a lawyer may be able to negotiate a pendency claus.
HOW LONG DOES PENDENCY LAST?
Pendency lasts until the end of the particular case, including any appeals and district court proceedings. However, most parents who have pendency, file for pendency every year.
In New York City, there is a shortage of hearing officers and too many cases. As a result, hearings often span more than one school year.
Many families file a hearing to establish pendency and never end up completing a hearing because the school year ends and/or the DOE proposes a new IEP which supersedes the prior offer. In these cases, lawyers/advocates file for a hearing and then withdraw the hearing at the end of the year without completing the hearing and re-file for the next year. This can go on for years, and often does, until a child ages out of the system.
However, technically, pendency lasts as long as the individual case lasts, through each level of the case.
If a case ends without a final decision changing pendency, pendency – once established by an event - will remain the same in subsequent years.
EXAMPLES OF PENDENCY
Example A: A student is attending a state-approved private school program (“NPS Program”) with a Nickerson letter in Year 1 and the DOE proposes to place the child in a public school in Year 2. If a parent files a hearing, they are entitled to have the DOE fund the NPS Program as “pendency” for the duration of the hearing, appeals and any court proceeding.
Example B: A student is attending an NPS program pursuant to a CBST deferral in Year 1 and the DOE proposes to place the child in a public school in Year 2. If a parent files a hearing, they are entitled to have the DOE fund the NPS Program as “pendency” for the duration of the hearing, appeals and any court proceeding.
Example C: A student is attending an NPS program pursuant to a CBST deferral in Year 1 and the DOE proposes to place the child in a public school in Year 2, if a parent files a hearing, they are entitled to have the DOE fund the NPS Program as “pendency” for the duration of the hearing, appeals and any court proceeding.
Example D: A student is attending an NPS program pursuant to a CBST deferral in Year 1 and the DOE defers to the CBST for Year 2 but does not find an alternative school or proposes a state approved school that the parent does not accept. If a parent files a hearing, they are entitled to have the DOE fund the NPS Program as “pendency” for the duration of the hearing, appeals and any court proceeding.
Example E: A student is attending an NPS program pursuant to a CBST deferral in Year 1 and the DOE fails to issue an IEP for Year 2. If a parent files a hearing, they are entitled to have the DOE fund the NPS Program as “pendency” for the duration of the hearing, appeals and any court proceeding.
Example F: In Year 1 the DOE funds the NPS Program through CBST deferral. In year 2, the DOE proposes to move the child to a public school. The parent files a hearing protesting the change and asks for pendency based on the CBST IEP. Pendency (tuition in the NPS program) is funded for the duration of the hearing. At the end of the case, the DOE agrees that the public school is inappropriate or the hearing officer finds that the DOE’s proposal was inappropriate and finds that the NPS program was appropriate for the student. The DOE fails to offer an IEP in Year 3. The Parent files for a hearing and requests pendency. Pendency now lies in the final decision of the hearing officer, rather than the CBST IEP.
Example G: In Year 1 the DOE funds the NPS Program through CBST deferral. In year 2, the DOE proposes to move the child to a public school. The parent files a hearing protesting the change and asks for pendency based on the CBST IEP. Pendency (tuition in the NPS program) is funded for the duration of the hearing. This time, the DOE agrees to settle the case and the case is withdrawn. The DOE fails to offer an IEP in Year 3. The Parent files for a hearing and requests pendency. Pendency still lies in the CBST deferral.