97-076

        Petitioner, the Board of Education of the Northeast Central School District, appeals from an interim order of an impartial hearing officer which directed petitioner to pay for the education of respondent's son in a private school during the first half of the 1997-98 school year and, if necessary, for the remainder of the school year, during the pendency of a proceeding which respondent initiated to review the appropriateness of the educational placement which petitioner's committee on special education (CSE) had recommended for that school year. The hearing officer did so because he found that the private school in which respondent had unilaterally enrolled her son had become the boy's "pendency placement" pursuant to 20 USC 1415 (j) and Section 4404 (4) of the Education Law, by virtue of my decision in Application of a Child with a Disability, Appeal No. 96-42, in which I ordered the board of education to reimburse respondent for boy's private the school tuition during the 1995-96 school year. The appeal must be sustained.

        Respondent's son, who is 17 years old, was initially classified as learning disabled by the neighboring Dover Union Free School District, in which he was an enrolled student until 1994. The child, who had attended petitioner's schools for the early elementary grades, returned to petitioner's schools in February, 1994. While in the Dover schools, the child began to receive specialized reading instruction, with the Orton-Gillingham technique. A subsequent dispute about the nature of that instructional program led to the decision in Application of a Child with a Disability, Appeal No. 93-43.

        Respondent's son returned to petitioner's schools from the Dover schools in February, 1994, when he was in the seventh grade. Petitioner's CSE recommended that the boy be enrolled in a special education class for two subjects, and that he be mainstreamed for instruction in other subjects. The boy's parent accepted the individualized education program (IEP) which the CSE prepared for him. For the 1994-95 school year, the Northeast CSE recommended that the boy remain in special education classes, but be mainstreamed "as appropriate". Respondent challenged the CSE's recommendation by requesting that an impartial hearing be held to review the recommendation. In June, 1995, the CSE recommended that the boy be enrolled in a special education class for social studies, and be mainstreamed for other subjects. That recommendation became the subject of an expanded due process hearing by agreement of the parties.

        In September, 1995, the boy was enrolled by his mother in the Kildonan School, which is a private school in Amenia, New York. The Kildonan School has not been approved by the State Education Department to provide instruction to children with disabilities, and is therefore not a school in which the board of education could have placed the boy (see Section 4402 [2][b][2] of the Education Law).

        The hearing with respect to the 1994-95 and 1995-96 school years concluded in April, 1996. While finding that there were certain deficits in the boy's IEP for the 1994-95 school year, the hearing officer declined to make a finding about the appropriateness of the IEP because that IEP had been replaced by the IEP for the 1995-96 school year. The hearing officer found that the latter IEP was also deficient, but he denied the parent's request for tuition reimbursement on the grounds that the Kildonan School was too restrictive a placement for the boy, and that equitable considerations did not support her claim for reimbursement.

        The parent appealed, and the board of education cross-appealed, from the hearing officer's decision. In Application of a Child with a Disability, Appeal No. 96-42, which was decided on September 10, 1996, I annulled the hearing officer's decision, and I directed the board of education to reimburse the child's parent for the cost of the boy's tuition in the Kildonan School for the 1995-96 school year. My decision was premised upon a finding that the boy's parent 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 [1985], and Florence County School District Four et al. v. Carter by Carter(510 U.S. 7 [1993]). Pursuant to those decisions, a board of education may be required to pay for educational services obtained by a child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. I found that the board of education had not met its burden of proving that it had offered an appropriate educational program for the 1995-96 school year because the boy's IEP did not address all of his special education needs. I further found that the boy's parent had met her burden of proving that the services provided by the Kildonan School were appropriate for the boy. In the absence of evidence of any less restrictive, yet equally effective program for the boy, I found that the private school was the least restrictive environment for him. While disagreeing with the parent's contention that it would have been inappropriate for her to attend the CSE meeting at which her son's IEP had been prepared because of pending litigation against the board of education, I nevertheless concluded that the parent's absence from that meeting did not afford a basis for concluding that equitable considerations did not support her claim for tuition reimbursement.

        During the 1996-97 school year, the parties were embroiled in a dispute about whether the boy continued to be a bona fide resident of the Northeast Central School District. The boy remained in the Kildonan School. In her answer to the petition, the boy's mother alleges that she met with the CSE several times, but the CSE did not prepare an IEP for the 1996-97 school year. The parent appealed to the Commissioner of Education from the board of education's determination that her son was not a resident of the district. On August 6, 1997, the Commissioner of Education sustained the parent's appeal (Appeal of a Student with a Disability, 37 Ed. Dept. Rep. 70). The board of education alleges in its petition that upon receipt of the Commissioner's decision, its CSE prepared the boy's IEP for the 1997-98 school year. In a letter dated September 2, 1997, the parent requested that an impartial hearing be held to review the appropriateness of her son's IEP.

        On or about September 7, 1997, respondent applied to the hearing officer for an interim order seeking the determination that the Kildonan School was her son's pendency placement as a result of my decision in the prior proceeding. She sought an order requiring the board of education to pay for the child's tuition in the Kildonan School during the pendency of this proceeding. On September 26, 1997, the impartial hearing officer in this matter determined that the Kildonan School was the child's pendency placement, and he ordered the board of education to pay for the boy's tuition in the Kildonan School for the first half of the 1997-98 school year, and if necessary, for the remainder of the 1997-98 school year. The board of education has appealed from this interim order.

        Pursuant to Federal and State law, a child with a disability must be maintained in his/her current educational placement until any due process proceeding has been completed, unless the child's 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 [4] 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][3][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 [1987]). 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 child’s parents are not precluded from changing their child’s 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 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 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 [9^th Cir., 1987]).

        The initial question presented is what was the child's last mutually agreed upon placement? In this instance, the parties have not agreed upon the boy's placement since the end of the 1993-94 school year. As noted above, the boy had been mainstreamed for instruction in all but two subjects, and he had received primary special education instruction in English and social studies during the latter part of the 1993-94 school year (see Application of a Child with a Disability, Appeal No. 96-42). In the absence of any evidence to the contrary, I find that the last mutually agreed upon placement was in petitioner's schools pursuant to the IEP which the CSE prepared on March 10, 1994.

        The next question is whether my decision in Application of a Child with a Disability, Appeal No. 96-42 changed the child’s pendency placement to the Kildonan School. In that decision, I annulled the hearing officer’s findings about the appropriateness of the educational program provided to the boy by the Kildonan School, and the least restrictive environment for the boy. In its Burlington decision, the Supreme Court briefly noted that a State-appointed hearing officer’s 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 child’s parents had violated the pendency provision by unilaterally changing their son’s placement. Nevertheless, one court has relied upon that portion of the Burlington decision to find that a unilateral private school placement became a child’s pendency placement after a State-level review panel had held that the child’s 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 officer’s decision ordering a board of education to pay for a child's private school tuition for one year did not constitute a public placement, and did not change the child's pendency placement (Zvi D. v. Ambach, supra). My finding about the appropriateness of the Kildonan School's services was made in the context of the parent's request for reimbursement in accordance with the Burlington and Carter criteria.

        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][18][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 statute’s broad grant of authority to the courts to fashion appropriate remedies pursuant to 20 USC 1415. I did not determine that the child should have been placed in the Kildonan 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 child’s tuition in the Kildonan School for the 1997-98 school year during the pendency of this proceeding to review the CSE’s 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); Application of a Child with a Disability, Appeal No. 97-82).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the interim order of the hearing officer finding that the Kildonan School was this child’s pendency placement, and requiring the board of education to pay for his tuition at the school during the pendency of this proceeding is hereby annulled.