99-100

Petitioners appeal from an impartial hearing officer's interim decision which held that their son's pendency placement during a proceeding brought to obtain an award of tuition reimbursement for the 1999-2000 school year was in respondent's schools, rather than in the private school which the boy has attended since 1995. The appeal must be sustained.

        Petitioners' son was initially classified as learning disabled by respondent's committee on special education (CSE) in 1993, when the boy was in first grade in respondent's elementary school. In accordance with the CSE's recommendation, he received resource room services and counseling during the remainder of the 1992-93 school year, as well as the 1993-94 and 1994-95 school years. For the 1995-96 school year, the CSE recommended that the boy be placed in an "inclusion" class with a full-time assistant, additional reading instruction and counseling. Petitioners were dissatisfied with the CSE's recommendation, and placed their son in the Kildonan School, a private school in Amenia, New York. The Kildonan School serves children with reading and writing disabilities, but it has not been approved by the State Education Department as a school for children with disabilities. The child remained at Kildonan for the 1996-97 school year.

        At petitioners' request, an impartial hearing was held in the spring of 1997. Petitioners sought an award of tuition reimbursement for the 1995-96 and 1996-97 school years. The Board of Education conceded that it did not have an appropriate educational program for the child during the 1995-96 and 1996-97 school years. The hearing officer found that the Kildonan School had provided appropriate special education services to the child, and that petitioners' claim for tuition reimbursement was supported by equitable considerations. He ordered respondent to reimburse petitioners for their tuition expenditures during both school years.

        Respondent appealed from the hearing officer's decision. Its appeal was limited to the issue of whether the hearing officer had erred in rejecting the Board of Education's contention that petitioners' claim for tuition reimbursement should be barred by the equitable doctrine of laches because petitioners had unreasonably delayed in requesting an impartial hearing. In Application of a Child with a Disability, Appeal No. 97-79, I found that the Board of Education was on notice of petitioners' dissatisfaction with their son's educational program in the school district well before petitioners requested the impartial hearing, and that their requests for reimbursement were timely. On September 10, 1998 I dismissed the Board of Education's appeal.

        The Board of Education did not seek judicial review of my decision, which therefore finally determined petitioners' right to obtain tuition reimbursement for the 1995-96 and 1996-97 school years. It did reimburse petitioners for their tuition expenditures for those school years. The boy attended the Kildonan School for the 1997-98 school year. Respondent's CSE had prepared an individualized education program (IEP) for that school year, which petitioners rejected. Petitioners requested that an impartial hearing be held. In a written stipulation which is annexed to the petition in this appeal as Exhibit C, the parties agreed that petitioners would withdraw their hearing request, and that respondent would pay petitioners the sum of $15,000. The stipulation, which was agreed to in January, 1998 prior to my decision in Appeal No. 97-79, also provided that petitioners would cooperate with respondent and its CSE in the latter's annual review of the boy and preparation of his IEP for the 1998-99 school year. The stipulation did not refer to the Kildonan School, or to any placement for petitioners' son for either the 1997-98 or 1998-99 school year.

        Respondent's CSE prepared an IEP for the 1998-99 school year. Petitioners objected to that IEP, and they requested a hearing on August 14, 1998. In a stipulation dated September 15, 1998, the parties agreed that petitioners would withdraw their hearing request, and that respondent would pay them $16,500 (Exhibit D to the petition). The stipulation explicitly provided that:

"1. The District shall make reimbursement payment to the parents in the amount of sixteen thousand five hundred ($16,500) dollars based upon: the deficiencies in the District's 1998-99 IEP placement, the unilateral parental placement of the student in the Kildonan School for the 1998-1999 school year and for any and all attorneys' fees arising from this proceeding. Said payment shall be made on or before October 15, 1998.

2. The Complainants shall forebear from bringing any further administrative and/or legal proceedings against the Pawling Central School District, its Board of Education, its employees, it agents, and their successors regarding any claim pursuant to the Individuals with Disabilities Education Act (IDEA), (20 U.S.C. §1400 et seq), Article 89 of the New York State Education Law and their implementing regulations for all times past including the 1998-1999 school year regarding their son [the child's name], provided however, that this release from legal liability shall not apply to proceedings presently pending between the parties based upon tuition reimbursement claims for the unilateral parental placement of Kevin in a private school not on the State's approved school list for the 1995-1996 and 1996-1997 school year IEPs."

        On June 23, 1999, respondent's CSE reportedly prepared the boy's IEP for the 1999-2000 school year. The IEP, which is not in the record which is before me, reportedly provided for a placement in respondent's middle school. Petitioners did not accept the IEP. On August 22, 1999, they requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement for the 1999-2000 school year.

        The hearing began on September 29, 1999. In her opening statement, petitioners' attorney asked the hearing officer to issue an interim decision regarding the boy's pendency placement, for the purpose of determining respondent's financial responsibility, if any, for the boy's tuition at and transportation to the Kildonan School during the proceeding. The parties resolved the issue of transportation, and they agreed that the hearing officer should render an interim decision regarding the boy's pendency placement. It was agreed that he would do so on the basis of the facts and legal arguments which the parties would submit to him by no later than October 5, 1999. I note that the parties' submissions to the hearing officer are not part of the record before me, but the parties have annexed copies of the relevant factual documents to their pleadings.

        In his interim decision dated November 5, 1999, the hearing officer noted that pursuant to the pendency provisions of the IDEA,

" … 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]).

        The hearing officer also noted that the term "current educational placement" meant the last mutually agreed upon placement for the child as of the moment when a due process proceeding is commenced. He found that the last mutually agreed upon placement for petitioners' son was in respondent's schools during the 1994-95 school year, prior to the first of the impartial hearings requested by petitioner. The hearing officer referred to a recent amendment to the Federal regulations with regard to pendency placements. On May 11, 1999, a new 34 CFR 300.514 (c) was added to provide that:

"If the decision of a hearing officer in a due process hearing conducted by the SEA or State Review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section".

        The hearing officer concluded that the new regulation did not afford a basis for concluding that the Kildonan School had become this child's pendency placement.

        Petitioners argue that the two stipulations between the parties with respect to the payment of tuition for the 1997-98 and 1998-99 school years, respectively, must be construed as agreements to have the boy educated at the Kildonan School, thereby changing his pendency placement from respondent's schools to the Kildonan School. They contend that I should infer that there was an agreement as to placement from the fact that the stipulations did not explicitly provide that they were limited solely to paying the boy's tuition. Although the September 15, 1998 stipulation expressly referred to the boy's unilateral placement at the Kildonan School, I find that the stipulation was a financial settlement of petitioners' claims against the district with respect to a specific period of time. As such, neither that stipulation nor its predecessor may be viewed as a mutual agreement to place the boy in the private school (Application of a Child with a Disability, Appeal No. 98-25).

        Petitioners contend that the decision awarding them tuition reimbursement for the 1995-96 and 1996-97 school years constitutes an agreement by the State Education Department that the Kildonan School was an appropriate placement for the boy, and that the private school became their son's pendency placement.

        Respondent opposes petitioners' request for a finding that their son's pendency placement is in the Kildonan School. It argues that petitioners must establish their eligibility to receive an award of tuition reimbursement in accordance with the criteria set forth in the U.S. Supreme Court decisions 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). The Board of Education contends that my decision in Appeal No. 97-79 awarding petitioners the relief of tuition reimbursement in accordance with the three-pronged test which the Supreme Court established in its Burlington and Carter decisions did not involve an agreement by either the Board of Education or the New York State Education Department to change the boy's placement to the Kildonan School. Instead, it was simply a permissible remedy for rectifying a violation of the IDEA and its State counterpart, Article 89 of the Education Law, for two particular school years.

        Respondent relies in part on previous decisions of the State Review Officer holding that an award of tuition reimbursement did not change a child's pendency placement (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 Board of Education of the Albion CSD and a Child with a Disability, Appeal Nos. 97-42 and 43; Application of the Board of Education of the Northeastern CSD, Appeal No. 97-76; and Application of the Board of Education of the Wappingers CSD, Appeal No. 97-82). The holding in those decisions was that a tuition award is not a determination that a student should be placed in a particular school. Those decisions were premised upon the fact that the IDEA required that each publicly placed student receive special education services which meet the standards of the State educational agency (former 20 USC 1412 [6], now 20 USC 1412 [a] [11] [A] [ii] [II]). Private schools which wish to accept publicly placed students must comply with various regulations of the State Education Department, e.g. 8 NYCRR 200.7, 200.9, 200.4, and 200.15, and be approved by the Department. Those requirements do not, however, apply to the private schools in which children have been unilaterally placed by their parents, when the parents seek to obtain an award of tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, supra; 34 CFR 300.403[c]). Therefore, the prior decisions by the State Review Officer have held that a decision by an impartial hearing officer or the State Review Officer to award tuition reimbursement to the parents of a child who has been unilaterally placed in a private school by the parents should not be construed as either a school district or State Education Department determination to place the child in that school, thereby changing the child's placement to the private school.

        The 1997 IDEA amendments did not change the wording of the IDEA pendency provisions (see former 20 USC 1415 [e] [3] [A] and present 20 USC 1415 [j]). Nevertheless, the new Federal regulations include the provision in 34 CFR 300.514 (c), which is set out above, that when the State Review official in an administrative appeal "agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents" for purposes of pendency. In its explanation for the new regulation, the U.S. Department of Education indicated that:

"Paragraph (c) is based on long-standing judicial interpretation of the Act's pendency provision that when a State hearing officer's or State review official's decision is in agreement with parents that a change in placement is appropriate, that decision constitutes an agreement by the State agency and the parents for purposes of determining the child's current placement during subsequent appeals. See e.g., Burlington School Community v. Dept. of Educ., 471 U.S. 359, 371 (1985); Susquenita School Districtv. Raelee S., 96 F. 3d 78, 84 (3^rd Cir. 1996); Clovis Unified v. Office of Administrative Hearings, 903 F. 2d 635, 641 (9^th Cir. 1990). Paragraph (c) of this section incorporates this interpretation. However, this provision does not limit either party's right to seek appropriate judicial review under § 300.512, it only shifts responsibility for maintaining the parent's proposed placement to the public agency while an appeal is pending in those instances in which the State hearing officer or State review official determines that the parent's proposed change of placement is appropriate." (Federal Register, Vol. 64, No. 48, Friday, March 12, 1999, page 12615)

        Respondent Board of Education contends that the new 34 CFR 300.514 (c) was intended to apply for the duration a school district's appeal from a specific State Review Officer's decision upholding the parents' position to the courts. It asserts that the new regulatory language does not apply at the beginning of a new proceeding to obtain tuition reimbursement, such as this proceeding. In effect, the child's pendency placement would have been the Kildonan School, if respondent had sought judicial review of the decision in Appeal No. 97-79. Since the Board of Education did not appeal from that decision, it argues that the boy's pendency placement continued to be the last mutually agreed upon placement, which occurred in 1994 when he attended respondent's schools.

        Having considered the express terms of the new 34 CFR 300.514 (c), as well as the explanation published in the Federal Register, I cannot accept respondent's argument. Although the phrase "agrees with the child's parents that a change of placement is appropriate" is not as precise as it might have been, I find that it was intended to include an award of tuition reimbursement because the three decisions which were referenced in the Federal Register explanation all involved tuition claims. Pursuant to the new regulation, a tuition reimbursement decision by the State Review Officer becomes an agreement by the State and the parents concerning the child's placement. It therefore becomes the child's last mutually agreed upon placement for purposes of pendency in a subsequent proceeding, unless the parties agree upon another placement (Murphy v. Arlington Central School District, __F. Supp 2d ___, 2000 WL 245915 [S.D.N.Y., 2000]). In this instance, the boy's last mutually agreed upon placement when petitioners initiated this proceeding was the Kildonan School, by virtue of my decision in Appeal No. 97-79. Therefore, I must depart from the previous decisions of the State Review Officer regarding pendency placements, and order that respondent pay for the boy's tuition at the Kildonan School during the pendency of the proceeding brought with respect to the 1999-2000 school year.

IT IS ORDERED that the hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for their son's tuition at the Kildonan School during the pendency of the proceeding brought concerning the boy's educational placement for the 1999-2000 school year, upon petitioners' presentation of proof of payment for such tuition.