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Tuesday, August 5, 2008

Pendency when a child is transitioning from preschool to Kindergarden

It is not unusual for a school district to radically reduce a child’s services or even declassify the child upon entering kindergarden. For a child who has been receiving services as a preschooler, the parent can request a hearing and assert the right to pendency. The SRO in appeal number 01-023 stated that

[t]he pendency provisions apply even when a child is transitioning from preschool to a school-age program (Application of a Child with a Disability, Appeal No. 96-48; Application of a Child with a Disability, Appeal No. 00-037; Application of a Disability, Appeal No. 01-003). Pendency protects against a unilateral change in a child’s placement, such as a material alteration of a student’s educational program. It does not mean that a child must remain in a particular site or location (Application of the Board of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F. 2d at 904 [2d Cir. 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir. 1996]).

Note that this does not mean that the child must remain in the preschool program, but rather that the district is obligated to continue the program prescribed in the IEP in a school age environment. If the child is school age eligible, but not of compulsory school age, the child may be able to continue in the preschool environment if the program is certified for school age kids.

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