Notice
The student receives a notice of an IEP or placement which might lead to disagreement.
Challenge
Parents file a due process complaing often with legal support to formally challenge the school districts' decision
Continuation
A "stay put" provision is implemented and the student remains in their current educational setting until the dispute is resolved.
Pendency is an important legal mechanism that prevents students from suffering harm while there is an open case pending with the Board of Education. Pendency was created by the Individuals with Disabilities Education Act (IDEA) to ensure that a student’s education is disrupted as little as possible.
If you disagree with an educational program in an IEP, you have the right the challenge it by filling what is called an impartial hearing request or due process complaint. While your case is pending, you can request pendency and the impartial hearing officer or judge may grant it. Once a judge has granted your pendency request, your child’s educational program will revert back to the most recent decision or IEP.
It is important to understand what Pendency is — and what it is not. It is a temporary agreement to continue with the program that was last agreed upon. It is not a final resolution. It is not a particular program but rather an agreement to abide by the most recent agreed upon IEP, order, or program. Typically, a pendency order will remain in effect until the case is resolved, which can take months or an entire school year. Pendency is not limited to preschool or school aged children and is available to children above or below five years of age.
In a situation where you are asserting the current educational plan (or IEP) for your child amounts to a denial of Free Appropriate Public Education (FAPE), you might have to wait for a long time to have your claim adjudicated. In such a situation you may wish to have an interim solution based on the last agreed upon IEP. The benefit of doing so is that while the case is ongoing, your child will be entitled to any benefits in the last agreed upon IEP.
Rquesting a Pendency is advantageous when you have a favorable decision from a previous year. The contents of that decision would ordinarily not apply to the following year since the decision was dated for the previous year. However, if the Judge were to file a pendency order, you would be entitled to continue the terms of the decision while the case for the current year is pending. This is very important for parents to understand. Although there is a certain and expense in filing a due process complaint, once you prevail and you have a decision, you have a powerful document that you can use to request pendency for the following year.
To obtain a “pendency order,” which is known as stay-put in the Individuals with Disabilities Education Act (IDEA), you must request a due process hearing or mediation to dispute a change in your child’s special education services. You then provide the local education agency (LEA) with written notice that you have filed for this hearing or mediation. The LEA will then provide written notice to the parent explaining the proposed changes to the IEP, triggering the “stay-put” right that allows the child to remain in their previously agreed-upon educational program while the dispute is resolved.
The Law Offices of Philippe Gerschel LLC have specialists on staff to help make sure you get the best outcome for your child. We will fight to make sure your child’s IEP is right for them and work with the Board of Education to ensure it is implemented correctly.
We enjoy helping parents navigate all the complexities involved in working with the Boards of Education, and specialize in obtaining private school tuition, special education services, tutoring, and compensatory education on behalf of clients.
We have significant experience representing our IEP clients.
We handle the entire process at NO cost to you. You pay nothing out-of-pocket and we vigourously represent you to get the best outcome for your child.
Your expert for your Individual Education Plans
