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Preserving Educational Stability: Understanding the Role of Pendency in Tuition Reimbursement Cases for Students with Special Needs

Parents of children with special needs sometimes face a daunting challenge when it comes to securing appropriate educational services. Fortunately, many legal avenues exist to advocate for an appropriate education. One critical aspect that often goes unnoticed is the indispensable role of pendency in tuition reimbursement cases. In this opinion piece, we illuminate the significance of pendency and its potential to positively impact the education of special needs students.

A mother and her teen daughter meet with a special education lawyer

Disputes between parents and school districts are an unfortunate and sometimes inevitable aspect of the education of students with special needs. The pendency provisions of Federal and State law provide a valuable benefit to students and families creating security and stability, especially during ongoing and sometimes long-term differences of opinion concerning the nature of a free appropriate public education and the services necessary to serve a student’s unique needs.

Understanding Pendency

Pendency, known as “a stay-put provision” or “the maintenance of the current, or then current, educational placement,” derives its authority from the Individuals with Disabilities Education Act (IDEA) (42 U.S.C. Section 1415 (j) Maintenance of current educational placement and Section 300.518 of the Code of Federal Regulations (Child’s status during proceedings)). This vital legal concept ensures that, during disputes or legal proceedings between parents and school districts, the child remains in the last agreed upon educational placement until a resolution is reached. The concept being that at some point in the past the parties agreed to the child’s program and placement. The IDEA mandates that if the parents want the child to remain in the same program, the school district must provide or fund the program, services, and placement in that last agreed upon IEP while the current dispute is resolved. While the dispute over the school district’s proposed change in the program is ongoing, the child “stays put.” Pendency is a child’s statutory, automatic, and unconditional right to remain in the last agreed upon placement during the “pendency” of any litigation. The final, unappealed decision of an impartial hearing officer also creates pendency. Pendency serves as a safeguard, protecting the child’s educational rights and providing stability and continuity in their education.

Securing Pendency: Intrinsic Benefits

The intrinsic benefits of securing pendency in tuition reimbursement cases are far-reaching and of utmost importance. Securing pendency allows children to continue receiving their current educational services while the legal process unfolds. This continuity is essential for children with special needs, as disruptions in their educational environment, program and services can significantly impact their progress and overall well-being.

By ensuring pendency, children are provided with stability, reducing the learning loss, stress, and anxiety that may arise from potential disruptions in their education. The knowledge that they will continue to receive familiar services and support can have a profoundly positive impact on meaningful educational progress and well-being. Without pendency, children with special needs face the risk of temporary and long-term interruptions or withholding of appropriate educational services during legal proceedings. Such interruptions could lead to significant gaps in their education, impeding their progress and hindering their ability to reach their full potential.

Tuition reimbursement cases most often involve parents seeking reimbursement for placing their child in a private school or specialized program that appropriately meets their child’s unique educational needs after the school district failed to do so. Securing pendency allows children to remain in the last agreed upon educational placement while a subsequent due process case progresses, ensuring that the child receives necessary and appropriate services without imposing undue financial burden on the parents. During the subsequent litigation, the student is entitled to remain in the pendency program until the later matter is resolved.

Navigating the Process

To secure pendency in tuition reimbursement cases, several crucial steps must be followed.

Parents must initiate due process proceedings by filing a complaint with the appropriate state or local agency. This formal complaint should outline concerns, explain the inadequacy of the programs, services and school placement proposed by the district, propose the solution sought, and request an impartial hearing.

Parents must clearly express in the complaint that they are seeking pendency or the maintenance of their child’s current educational placement during the legal proceedings. Detailed information about the child’s last agreed upon placement and the services they are receiving should be included in the complaint.

Seeking guidance from knowledgeable special education lawyers is highly recommended. These professionals can navigate the complex legal process, ensuring that parents’ rights are protected and effectively advocating for the child.


Securing pendency in tuition reimbursement cases is essential for preserving uninterrupted access to appropriate educational services for children with special needs. By understanding the significance of pendency and following the necessary steps to secure it, parents provide their children with stability, continuity of education, and protection during the legal process. Collaborating with special education lawyers empowers parents to effectively advocate for an inclusive education system that addresses the unique needs of the child with special needs. Let us work together towards a future where no child is left behind in their pursuit of quality education.

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