What is a pendency order?
CDC / Unsplash
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.
When would you want to consider asking a Judge to sign a Pendency Order?
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.
Another situation in which requesting a Pendency is advantageous is 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.