97-082

       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 respondent’s daughter in a private school during the first half of the 1997-98 school year because the private school was the child’s "pendency placement" pursuant to 20 USC 1415 (j) and Section 4404 (4) of the Education Law. The appeal must be sustained.

        Respondent’s 16-year old daughter was initially classified by petitioner’s committee on special education (CSE) in 1988. The girl was educated in private schools, at respondent’s 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 child’s 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 [2][b][2] of the Education Law). The CSE recommended that respondent’s 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 CSE’s recommendation for the 1996-97 school year, and to obtain tuition reimbursement for the preceding school years in which he had paid for his child’s education. An impartial hearing officer dismissed respondent’s claim for tuition reimbursement for each of the school years in question, and declined to order petitioner to pay for the child’s education in the Kildonan School during the 1996-97 school year because he found that equitable considerations did not support the parent’s claim. Respondent appealed from the hearing officer’s decision, and petitioner cross-appealed from certain portions of the decision.

        On September 1, 1997, I sustained respondent’s appeal in part, and directed the board of education to reimburse respondent for his out-of-pocket expenditures for the child’s 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 [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 the child’s 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 parent’s claim.

        The record which is before me in this proceeding is extremely limited. The proceeding was apparently commenced to review the CSE’s recommendation for the child’s 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 child’s 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 year’s tuition. On or about October 17, 1997, respondent applied to the hearing officer for an interim order finding that the Kildonan School was his daughter’s pendency placement as a result of my decision in the prior proceeding, and requiring the board of education to pay for the child’s 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 parent’s application for an interim order. The board of education asserted that the child’s last mutually agreed upon placement had been in the school district’s resource room program during the 1988-89 school year, and it argued that the State Review Officer’s decision in the prior proceeding had not changed the child’s pendency placement. It also asserted that it had not agreed with the parent to a change in the child’s 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 petitioner’s 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 board’s 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 respondent’s child. In addition, he held that the Kildonan School was the child’s 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 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 questions which are presented in this appeal are: what was the child’s last mutually agreed upon placement? and was that placement superseded by respondent’s unilateral placement of her in the Kildonan School by virtue of my determination that respondent was entitled to an award of tuition reimbursement? In respondent’s 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 petitioner’s 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 child’s 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 child’s pendency placement to the Kildonan School. In that decision, I did not review the hearing officer’s determination about the appropriateness of the educational program which the CSE had recommended for the 1996-97 school year. I sustained the hearing officer’s 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 parent’s claim. In its Burlingtondecision, 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 of the child, and did not change the child’s 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][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. Although I concurred with the hearing officer’s 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 parent’s 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 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).

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 her tuition at the school during the pendency of this proceeding is hereby annulled.