96-092

          Petitioner appeals from an interim order¹ by an impartial hearing officer which determined that her son's "pendency placement"² during this proceeding involving the boy's placement for the 1996-97 school year was the private school which he has attended since September, 1994. The appeal must be dismissed.

        Petitioner's son, who is sixteen years old, was unilaterally placed by petitioner in the Gow School, which is a private college preparatory school located in South Wales, New York. At the time he entered the private school, the boy had been classified as learning disabled by respondent's committee on special education (CSE), which had recommended that the child remain in a self-contained special education class in respondent's middle school for the eighth grade during the 1994-95 school year. In addition to unilaterally enrolling her child in the Gow School, petitioner requested that an impartial hearing be held to review the recommendation made by respondent's CSE. She asked the hearing officer to order respondent to reimburse her for the cost of her son's placement in, and transportation to, the Gow School during the 1994-95 school year. On July 26, 1995, the hearing officer denied petitioner's request for tuition reimbursement during the 1994-95 school year, because he found that respondent had offered petitioner's son a free appropriate public education in the least restrictive environment, thereby meeting its obligation to the boy under Federal and State law. However, the hearing officer directed respondent to reimburse petitioner for the costs associated with the boy's unilateral placement at the Gow School during the summers of 1993 and 1994.

        Petitioner appealed from the hearing officer's decision regarding the 1994-95 school year. In Application of a Child with a Disability, Appeal No. 95-66, I sustained petitioner's appeal in part, upon findings that respondent had not demonstrated that the educational services recommended by its CSE were appropriate, and that petitioner had met her burden of proving that the educational services provided to the boy by the Gow School during the 1994-95 school year were appropriate, for the purpose of determining whether petitioner was entitled to the equitable remedy of tuition reimbursement. In my decision, which was rendered on November 6, 1995, after the 1994-95 school year had ended, I ordered respondent to reimburse petitioner for her expenditures for her son's tuition at the Gow School during the 1994-95 school year.

        For the 1995-96 school year, respondent's CSE recommended that petitioner's son be placed in the ninth grade of the New Paltz High School, where he was to receive special education instruction in mathematics, science, and social studies, as well as resource room services, and counseling. Petitioner chose to continue her son's enrollment in the Gow School. In December, 1995, she requested that another impartial hearing be held to review the CSE's recommendation which was reflected in her son's individualized education program for the 1995-96 school year. Petitioner indicated in her hearing request that she sought reimbursement for all of her expenditures relating to her son's placement in the Gow School during the 1995-96 school year.

        The hearing which petitioner requested began on March 18, 1996. Petitioner submitted a motion to Mr. Carl Wanderman, the impartial hearing officer, in which she sought an interim decision finding that the Gow School was her son's pendency placement during the hearing. On April 26, 1996, Mr. Wanderman rendered an interim decision denying petitioner's request, on the ground that if petitioner received that relief, i.e., an order requiring respondent to pay for the child's tuition in the Gow School, the underlying issues of the hearing would be moot. He ruled that a determination of whether petitioner was entitled to obtain the relief of tuition reimbursement had to be based upon the evidence which was yet to be presented at the hearing regarding the CSE's recommended placement for the 1995-96 school year. In other words, that petitioner's request for tuition reimbursement had to be determined after a hearing, in accordance with the criteria set forth in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985), and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

        On May 3, 1996, the parties agreed to settle their disagreement with respect to the boy's educational program and placement for the 1995-96 school year. Respondent agreed to pay the sum of $15,100 for the expense of the child's education in the Gow School during the 1995-96 school year. The parties also agreed that the CSE would meet in June, 1996, for the purpose of recommending an appropriate educational program for the boy during the 1996-97 school year. They further agreed that Mr. Wanderman would retain jurisdiction to decide any dispute which might arise from the CSE's recommendation for the 1996-97 school year.

        On or about July 2, 1996, the CSE recommended that the boy receive modified instruction in English, social studies, and science in a mixed class of disabled and non-disabled students, and modified instruction by a special education teacher in mathematics, while enrolled in the New Paltz High School during the 1996-97 school year. It further recommended that the child receive individual counseling once per week. In a letter dated August 8, 1996, petitioner informed respondent's Director of Pupil Personnel Services that she objected to the recommended placement in the New Paltz High School, and that she wished to have an impartial hearing to obtain a residential placement of her son in the Gow School for the 1996-97 school year.

        The hearing with respect to the child's placement for the 1996-97 school year began on October 8, 1996, before Mr. Wanderman. Mr. Wanderman indicated that on September 30, 1996, he had received a motion by petitioner seeking an order determining the child's pendency placement during the hearing. In her motion papers, petitioner's lay advocate argued that respondent's failure to appeal from the decision in Application of a Child with a Disability, Appeal No. 95-66 was the "equivalent" of an agreement by respondent to place the boy in the Gow School. She noted that in his April 26, 1996 interim decision, Mr. Wanderman had indicated that the Gow School was "arguably" the child's then current placement, even though he declined to order respondent to pay for the child's education at the Gow School during the 1995-96 school year. Respondent argued that pendency attached to the child's last mutually agreed upon placement, which it asserted was his public school placement during the 1993-94 school year. It asserted that it had not been ordered by the State Review Officer to place the child in the Gow School, and had never voluntarily agreed to do so. Respondent also argued that the hearing officer lacked authority to order the child's prospective placement in the Gow School, because the Gow School has not been approved by the State Education Department as a school to provide instruction to children with disabilities (see Antkowiak v. Ambach, 838 F. 2d 635 [2d Cir., 1988]).

        In his interim decision dated November 8, 1996, Mr. Wanderman found that the child's last mutually agreed upon placement had been in a self-contained special education class in respondent's middle school during the 1993-94 school year. He rejected petitioner's contention that the Gow School had become the child's pendency placement when respondent did not appeal from my decision in petitioner's prior appeal. Mr. Wanderman indicated that there was a distinction between placement and reimbursement, and that he would not order respondent to pay for the child's placement in the Gow School during the 1996-97 school year, prior to receiving evidence with regard to the appropriateness of the placement which the CSE had recommended for the child.

        It is from Mr. Wanderman's decision of November 8, 1996 that petitioner appeals. She contends that the Gow School is her son's pendency placement because respondent implicitly agreed to that placement when it did not seek review of my decision ordering it to reimburse petitioner for her tuition expenditures for the Gow School for the 1994-95 school year. Respondent asserts that the Gow School is not, and cannot be, the child's pendency placement. It contends that petitioner has chosen to continue her son's placement at the Gow School, and has done so at the risk that she will obtain tuition reimbursement only if she prevails with respect to the three criteria for tuition reimbursement which were articulated by the U.S. Supreme Court in its Burlington decision.

        The Federal and State statutes read, in material part, as follows:

"Except as provided in subparagraph (B), during the pendency of any proceeding conducted pursuant to this section, unless the State or local educational agency and the parents or guardian 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 or guardian, be placed in the public school program until all such proceedings have been completed" (20 USC 1415 [e][3][A]).

"During the pendency of any proceedings 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 school, shall be placed in the public school program until all proceedings have been completed" (Section 4404 [4] of the Education Law).

        The pendency provisions are intended to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]). In its decision in School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra, the Supreme Court indicated that at least one purpose of the pendency provision was to prevent school officials from removing a child from a regular public school classroom over the parents' objection pending completion of the due process proceedings. Although parents are not precluded from unilaterally changing their child's placement during the pendency of due process proceedings, the Court noted that they do so at their own financial risk.

        The term "then current educational placement" means the child's 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 child's parents agreed, prior to the parents' request for a hearing. The U.S. Office of Education has opined that a child's then current placement would " ... generally be taken to mean current special education and related services provided in accordance with a child's most recent individualized education program (IEP)" (EHLR 211:481). (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]).

        In this instance, the last mutually agreed upon IEP for the child was prepared for the 1993-94 school year. It provided for the boy's placement in respondent's special education program. The next IEP which was prepared for him by the CSE was challenged by petitioner in the proceeding which culminated with my decision in Application of a Child with a Disability, Appeal No. 95-66. In that decision, I found that the child's IEP for the 1994-95 school year was inappropriate for him. The child's IEP for the 1995-96 school year was also challenged by petitioner, in a proceeding which was terminated by agreement of the parties. However, neither party suggests that the settlement agreement included a mutual agreement to the provisions of the IEP which the CSE had prepared for the boy. Although the CSE had prepared another IEP for the 1996-97 school year, petitioner also challenged that IEP when she initiated this proceeding.

        Notwithstanding the fact that the last mutually agreed upon placement for petitioner's child was in a public school program, the question remains whether my decision in Application of a Child with a Disability, Appeal No. 95-66, or respondent's subsequent agreement to reimburse petitioner for the cost of the boy's tuition during the 1995-96 school year affords a basis for concluding that the child's pendency placement was in the Gow School on August 8, 1996, when this proceeding commenced. In its Burlington decision, the Supreme Court briefly noted that the determination of a state appointed hearing officer that the private school in which a parent had unilaterally placed his child "...would seem to constitute agreement by the State to the change of placement" (471 U.S. 359, at 372). (see also, Susquenita School District v. Raelee S., 96 F 3d 78 [3d Cir., 1996]). However, I must point out that the sole issue before me in petitioner's prior appeal was whether petitioner was entitled to the equitable remedy of tuition reimbursement. I did not determine that the child should have been placed by respondent in the Gow School pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.), or Article 89 of the New York State Education Law, nor could I have directed respondent to prospectively place the child in an unapproved private school (Antkowiak v. Ambach, supra). Unlike the approved private school which was involved in the Burlington decision, placement of the child in the Gow School was never an option for respondent (see Section 4402 [2][a] of the Education Law).³ By definition, a free appropriate public education under the Individuals with Disabilities Education Act must meet the standards of the State educational agency (20 USC 1401 [a][18][B]). However, the Supreme Court has held that such standard does not apply to a parental placement, for the purpose of obtaining tuition reimbursement (Florence County School District Four v. Carter by Carter, supra) which highlights the difference between placing a child, and obtaining tuition reimbursement for a child's placement, under the Federal statute.

        In Zvi D. v. Ambach, supra, the Court of Appeals ruled that neither a stipulation between a board of education and a parent, by which the board of education agreed to pay for a child's private school tuition for part of one school year, nor an impartial hearing officer's decision ordering the board of education to pay for the child's tuition for all the following school year, constituted a public placement of the child to which pendency attached. The Court noted that the local CSE had never determined that the private school was an appropriate placement for the child. Neither has respondent's CSE made that determination, and as indicated above, it cannot make that determination. Although neither party has submitted a copy of the agreement by which the proceeding involving the child's placement for the 1995-96 school year was settled, it would appear to have been the parties' intent to cover tuition reimbursement for the 1995-96 school year. They reportedly agreed that the CSE would promptly make its recommendation for the 1996-97 school year. Under the circumstances, I find that the pendency provisions of Federal and State law do not require respondent to pay for the child's tuition in the Gow School for the 1996-97 school year during the pendency of this proceeding to review the recommendation by respondent's CSE for the child's placement during such school year (Application of a Child with a Disability, Appeal No. 96-83).

THE APPEAL IS DISMISSED.