96-064

         Petitioners appeal from an interim decision by an impartial hearing officer with regard to the pendency placement¹ of petitioners' daughter during the hearing in this proceeding which they initiated to obtain review of a recommendation by respondent's committee on special education (CSE) for the child's educational program during the 1996-97 school year. The appeal must be sustained.

        The child in this proceeding, who is seven years old, has reportedly been diagnosed as having cerebral palsy. She is reportedly unable to communicate verbally, and uses a wheelchair for mobility. The girl has been classified as orthopedically impaired. Her classification is not at issue in this proceeding.

        During the 1995-96 school year, the child was enrolled in a regular education second grade classroom in the Weedsport Elementary School. She reportedly received six hours of direct and one hour of indirect consultant teacher services (See 8 NYCRR 200.1 [l]), per week. The child also received speech/language therapy, physical therapy, and occupational therapy, pursuant to her individualized education program (IEP). As described by her special education and regular education teachers at the hearing, the child's placement appears to have been an "inclusion" placement, in which the child was expected to achieve her IEP goals, rather than to master all of the second grade curriculum. The parties dispute the extent to which she successfully completed her IEP annual goals, as well as the second grade curriculum. However, the resolution of that dispute is not relevant in determining the pendency placement issue.

        The CSE conducted the child's annual review on May 14, 1996. For the 1996-97 school year, the CSE recommended that petitioners' daughter receive primary instruction for reading, writing, and mathematics in special education for six hours per week. I must note that at the hearing in this proceeding, as well as in its argument in this appeal, respondent suggests that the child's special education instruction in these three subjects might not necessarily be given in a separate special education class, notwithstanding the fact that the child's IEP for the 1996-97 school year indicated that the child would receive "15:1 Reading/Writing/Math 6 hours/week." Respondent's suggestion that the primary difference between the 1995-96 and the 1996-97 instructional programs was the replacement of consultant teacher services with a 15:1 education program (paragraph 8 of the answer) suggests that it does not fully understand that a consultant teacher may provide direct instruction to one or more students at a time in a regular classroom (8 NYCRR 200.1 [1][1]). There would be no need to refer to 15:1 special education instruction in the IEP, unless the CSE intended that the child receive such instruction in a self-contained class. In any event, the remainder of the child's instruction in those and other subjects was to have been provided in a regular education third grade class, although the child's IEP does not specify her grade level. The CSE also recommended that the child continue to receive speech/language therapy, physical therapy, and occupational therapy during the 1996-97 school year. In addition, it recommended that she receive speech/language therapy and physical therapy during the summer of 1996.

        Petitioners reportedly filed two requests for hearings with respondent. Neither request is in the record which is before me. In one request, petitioners reportedly challenged the CSE's failure to recommend that their daughter receive instruction on a 12-month basis, i.e., instruction in addition to the related services which the CSE did recommend that she receive during the summer. In their other hearing request, petitioners reportedly challenged the appropriateness of their child's educational program during the 1996-97 school year.

        At the hearing which was held on August 15, 1996 the parties agreed that the hearing officer should initially address the issue of the child's pendency placement. They provided him with extensive documentary evidence as background evidence. The child's consultant teacher and her second grade teacher testified about the child's placement during the 1995-96 school year. The second grade teacher testified that she had provided primary instruction to the child in social studies and science with only some modification to the child's homework assignments. She further testified that she provided information about the second grade curriculum to the consultant teacher, who developed lessons and established instructional objectives for the child in reading, writing, and mathematics. The consultant teacher testified that she instructed the child in those subjects, in the second grade classroom and an adjoining coat room.

        In his decision, which was dated August 25, 1996, the hearing officer noted that the issue was whether the child should be enrolled in a regular education third grade class with consultant teacher and related services, as petitioners urged, or whether she should remain in a regular education second grade class with consultant teacher and related services, as respondent urged. The hearing officer held that the pendency provisions of the Federal and State statutes should be read literally. He found that the child's pendency placement during this proceeding to review her IEP for the 1996-97 school year was in the second grade classroom with the educational program from her 1995-96 IEP.

        Respondent asserts that petitioners have withdrawn their daughter from the Weedsport Public Schools, and it argues that the issue of the child's pendency placement is therefore moot. While not denying respondent's assertion, petitioners argue that this appeal is not moot. They contend that they are entitled to challenge the hearing officer's decision, notwithstanding their decision to remove the child, at least temporarily, from respondent's schools (See Essen v. Board of Education of the Ithaca City School District et al., 24 IDELR 30, [U.S. D.C. N.D. N.Y., 1996]; Hiller v. Brunswick CSD, 687 F. Supp. 735 [N.D. N.Y., 1988]). I agree with petitioners. Although they have temporarily removed their daughter from respondent's schools, they are seeking to have the question of the child's educational placement for the 1996-97 school year resolved. Under the circumstances, this appeal with regard to the child's pendency placement during the proceeding to review the CSE's recommendation for that school year is not moot (Application of a Handicapped Child, 25 Ed. Dept. Rep. 63; Application of a Child with a Disability, Appeal No. 94-23).

        20 USC 1415 (e)(3)(A), and its State counterpart, Section 4404 (4) of the Education Law, define a child's pendency placement as his or her "then current educational placement." A child's then current educational placement is the child's last mutually agreed upon placement when a due process proceeding is commenced. The United States Office of Education has opined that a child's current placement would "generally be taken to mean current education and related services provided in accordance with a child's most recent [IEP]" (EHLR 211:481). In general, a board of education must provide the child with each of the required components of the child's last agreed upon IEP, in order to satisfy the pendency requirement (Application of a Child with a Disability, Appeal No. 95-5). In this instance, the last agreed upon IEP is the child's IEP for the 1995-96 school year, during which she was in the second grade. However, it does not follow that she must remain in the second grade during the pendency of the proceeding brought by her parents to challenge the CSE's recommendation for her educational program during the 1996-97 school year. I note that neither the 1995-96 nor the 1996-97 IEP specifies the child's grade level in respondent's regular education program. As noted above, the term "current education placement" refers only to the general type of educational program in which a child is placed, rather than a specific location (Concerned Parents and Citizens for the Continuing Education at Malcolm X P.S. 79 v. New York City Board of Education, 629 F. 2d 751 [2d Cir., 1980). A change in grade level, where the elements of the child's special education program remain the same, would not be a change in the child's then current education placement during the pendency of a due process proceeding (Application of the Board of Education of the Garden City UFSD, 21 Ed. Dept. Rep. 326).

        In this instance, there is no evidence to suggest that the child's advancement to the third grade with her chronological peers would be harmful to her or her peers. Indeed, her special education and second grade teachers during the 1995-96 school year recommended that she be advanced to the third grade. The parties dispute the manner in which her special education instruction will be provided. During the pendency of the due process proceeding to resolve that dispute, there is no reason why the child should be held back in the second grade. Rather, she should be advanced to the third grade. The pendency provisions of the Federal and State law would apply to any changes in the substance of her special education program, which would mean that respondent should continue to provide the same amount of consultant teacher services to her during the pendency of this proceeding as it did during the 1995-96 school year.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;

IT IS FURTHER ORDERED that respondent shall place the child in a regular education third grade class in accordance with the tenor of this decision, during the pendency of the proceeding to review the CSE's recommendation for the 1996-97 school year.