The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE WAPPINGERS CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Michael K. Lambert, Esq., attorney for petitioner
RosaLee Charpentier, Esq., attorney for respondent
Petitioner, the Board of Education of the Wappingers Central School District, appeals from an interim order of an impartial hearing officer which directed the board of education to pay for the education of respondents daughter in a private school during the first half of the 1997-98 school year because the private school was the childs "pendency placement" pursuant to 20 USC 1415 (j) and Section 4404 (4) of the Education Law. The appeal must be sustained.
Respondents 16-year old daughter was initially classified by petitioners committee on special education (CSE) in 1988. The girl was educated in private schools, at respondents expense, beginning with the 1989-90 school year. Just prior to the beginning of the 1996-97 school year, respondent contacted the CSE about obtaining financial assistance in maintaining his childs enrollment in the Kildonan School. The Kildonan School has not been approved by the State Education Department to provide instruction to children with disabilities. Consequently, the board of education could not have placed the child in that school (see Section 4402 [b] of the Education Law). The CSE recommended that respondents daughter be educated in ninth grade regular education classes, with resource room services and counseling, during the 1996-97 school year.
Respondent requested that an impartial hearing be held to review the CSEs recommendation for the 1996-97 school year, and to obtain tuition reimbursement for the preceding school years in which he had paid for his childs education. An impartial hearing officer dismissed respondents claim for tuition reimbursement for each of the school years in question, and declined to order petitioner to pay for the childs education in the Kildonan School during the 1996-97 school year because he found that equitable considerations did not support the parents claim. Respondent appealed from the hearing officers decision, and petitioner cross-appealed from certain portions of the decision.
On September 1, 1997, I sustained respondents appeal in part, and directed the board of education to reimburse respondent for his out-of-pocket expenditures for the childs tuition in the Kildonan School during the 1996-97 school year (Application of a Child with a Disability, Appeal No. 97-25). In that appeal, I found that respondent had met the criteria for an award of tuition reimbursement pursuant to the decisions of the U.S. Supreme Court in School Committee of the Town of Burlington v. Department of Education Massachusetts (471 U.S. 359 , and Florence County School District Four et al. v. Carter by Carter (510 U.S. 7 ). Pursuant to those decisions, a board of education may be required to pay for educational services obtained by the childs parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents claim.
The record which is before me in this proceeding is extremely limited. The proceeding was apparently commenced to review the CSEs recommendation for the childs placement during the 1997-98 school year. That recommendation is not part of the record in this appeal. In his answer to the petition, respondent asserts that the board of education has not paid for the childs tuition during the 1996-97 school year, and that the Kildonan School would not allow his daughter to return for the 1997-98 school year without payment for the prior years tuition. On or about October 17, 1997, respondent applied to the hearing officer for an interim order finding that the Kildonan School was his daughters pendency placement as a result of my decision in the prior proceeding, and requiring the board of education to pay for the childs tuition in the Kildonan School and transport her to that school during the pendency of this proceeding. On or about October 27, 1997, the board of education responded to the parents application for an interim order. The board of education asserted that the childs last mutually agreed upon placement had been in the school districts resource room program during the 1988-89 school year, and it argued that the State Review Officers decision in the prior proceeding had not changed the childs pendency placement. It also asserted that it had not agreed with the parent to a change in the childs placement.
When the hearing resumed on October 28, 1997, the hearing officer read his decision into the record. He found that even if there had been a mutually agreed upon placement for the child in petitioners schools during the 1988-89 school year, it would be inappropriate to return the child to that placement. The hearing officer directed the board of education to search for a private school in which to place the child, without prejudice to the boards right and responsibility to demonstrate at the hearing that the educational program which its CSE had recommended for the 1997-98 school year was appropriate for respondents child. In addition, he held that the Kildonan School was the childs pendency placement by virtue of my decision in the prior proceeding.
Pursuant to Federal and State law, a child with a disability must be maintained in his or her current educational placement until any due process proceeding has been completed, unless the childs parents and the school district agree upon another placement. The Federal and State statutes read, in material part, as follows:
"Except as provided in subsection (k)(7), during the pendency of any proceeding conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed" (20 USC 1415 [j]).
"During the pendency of any proceeding conducted pursuant to this section and during the initial identification, evaluation and placement procedure pursuant to this section and during the initial identification, evaluation and placement procedure pursuant to section forty-four hundred two of this article, unless the local school district and the parents or persons in parental relationship otherwise agree, the child shall remain in the then current educational placement of such child, or if applying for initial admission to a public school, shall be placed in the public school program until all proceedings have been completed" (Section 4404  of the Education Law).
Although the Federal statute was slightly amended and renumbered in 1997, it is substantially the same as its predecessor (the former 20 USC 1415 [c][A]). Its purpose is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 ). In its decision in School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra, the Supreme Court indicated that one purpose of the pendency provision was to prevent school officials from removing a child from a regular education public school classroom over the parents objection, pending completion of a due process proceeding to challenge the proposed removal of the child from that classroom. The childs parents are not precluded from changing their childs educational placement during the pendency of a due process proceeding, but the Court in Burlington indicated that the parents do so at their own financial risk.
The term "then current education placement" means the childs last mutually agreed upon placement at the moment when a due process proceeding is commenced. Implicit in the concept of a pendency placement is the requirement that a school district must continue to finance an educational placement which it made, and to which the childs parents agreed, prior to the parents request for a hearing. The U.S. Office of Education has opined that a childs then current placement would " generally be taken to mean current special education and related services provided in accordance with a childs most recent individualized education program (IEP)" (EHLR 21:481), (see also Zvi D. v. Ambach, 694 F. 2d 904 [2d Cir., 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir., 1996]; Gregory K. v. Longview School District, 811 F. 2d 1307 [9th Cir., 1987]).
The questions which are presented in this appeal are: what was the childs last mutually agreed upon placement? and was that placement superseded by respondents unilateral placement of her in the Kildonan School by virtue of my determination that respondent was entitled to an award of tuition reimbursement? In respondents previous appeal, the record revealed that the child was enrolled in a local parochial school when she was referred to the CSE near the end of the 1987-88 school year. The CSE made its initial recommendation to classify the child, and to provide her with special education in November, 1988. At that time, the child was enrolled in the first grade of petitioners Oak Grove Elementary School. The CSE recommended that the child remain in her regular education class, with two hours of resource room services per day. Pursuant to both Federal and State regulations, parental consent is required for an initial special education placement, including resource room services (34 CFR 300.504 [b][ii]; 8 NYCRR 200.5 [b]). This child received resource room services during the remainder of the 1988-89 school year. Her parent has not alleged that she received those services without her parents consent. Respondent did not have contact with the CSE again until the 1996-97 school year. At least through the completion of the prior proceeding involving these parties, I find that the childs last mutually agreed upon placement was in a regular education public school placement with resource room services.
The next question is whether my decision in Application of a Child with a Disability, Appeal No. 97-25 changed the childs pendency placement to the Kildonan School. In that decision, I did not review the hearing officers determination about the appropriateness of the educational program which the CSE had recommended for the 1996-97 school year. I sustained the hearing officers finding with respect to the appropriateness of the educational services provided to the child by the Kildonan School, but annulled his finding that equitable considerations did not support the parents claim. In its Burlington decision, the Supreme Court briefly noted that a State-appointed hearing officers determination that the private school in which a child had been unilaterally placed by his parents provided an adequate educational program " would seem to constitute agreement by the State to the change of placement" (471 U.S. 359, at 372). That observation was made in the context of determining whether the childs parents had violated the pendency provision by unilaterally changing their sons placement. Nevertheless, one court has relied upon that portion of the Burlington decision to find that a unilateral private school placement became a childs pendency placement after a State-level review panel had held that the childs parents were entitled to an award of tuition reimbursement for that placement (Susquenita School District v. Raelee S., 96 F. 3d 78 [3d Cir.,1996]). However, the United States Court of Appeals for the Second Circuit had previously held that an impartial hearing officers decision ordering a board of education to pay for a childs private school tuition for one year did not constitute a public placement of the child, and did not change the childs pendency placement (Zvi D. v. Ambach, supra).
By definition, the free appropriate public education which a board of education must provide to each child with a disability must meet the standards of the State educational agency (20 USC 1401 [a][B]). However, the Supreme Court has held that a unilateral parental placement need not meet those standards in order for the parents to obtain an award of tuition reimbursement (Florence County School District Four v. Carter by Carter, supra), which illustrates the difference between placing a child in an educational setting pursuant to the statute, and obtaining an award of tuition reimbursement under the statutes broad grant of authority to the courts to fashion appropriate remedies pursuant to 20 USC 1415. Although I concurred with the hearing officers determination in Appeal No. 97-25 that the educational services which the parent had obtained for his daughter at the Kildonan School for the 1996-97 school year were appropriate for her, I did so in the context of the parents request for an award of tuition reimbursement. I did not determine that the child should have been placed in that school, nor could I have directed the board of education to place her in an unapproved school. Therefore, I find that the pendency provisions of Federal and State law do not require the board of education to pay for this childs tuition in the Kildonan School for the 1997-98 school year during the pendency of this proceeding to review the CSEs recommended placement for that school year (Application of a Child with a Disability, Appeal No. 96-83; Application of a Child with a Disability, Appeal No. 96-92; Applications of the Bd. of Ed. of the Albion CSD and a Child with a Disability, Appeal Nos. 97-42 and 43).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the interim order of the hearing officer finding that the Kildonan School was this childs pendency placement, and requiring the board of education to pay for her tuition at the school during the pendency of this proceeding is hereby annulled.
|Dated:||Albany, New York||__________________________|
|December 12, 1997||FRANK MUÑOZ|