00-011

        Petitioners appeal from an impartial hearing officer's decision denying their request for an interim order requiring the Board of Education to place their son in a private school pursuant to the direction of another hearing officer in a prior proceeding. The hearing officer in this proceeding, which concerns the boy's individualized education program (IEP) for the 1999-2000 school year, declined to implement the other hearing officer's decision involving the boy's IEP for the 1998-99 school year, because the Board of Education has appealed from the other hearing officer's decision to the State Review Officer. The appeal must be dismissed.

        Petitioners' son is 20 years old, and has been classified as autistic. On March 30, 1998, respondent's committee on special education (CSE) prepared the boy's IEP for the 1998-99 school year (Exhibit IHO-2). Pursuant to that IEP, petitioners' son attended a half-day special education life skills program in respondent's high school and a half-day regular education program at the Orange-Ulster BOCES VoTech Center during the 1998-99 school year.

        Petitioners met with the CSE on February 4, 1999 to discuss possible changes in their son's educational program. By letter dated March 8, 1999, petitioners requested an impartial hearing (hereinafter "hearing 1") because of the CSE's alleged refusal to add "related vocational experiences" to the boy's program, and because they objected to their son's anticipated graduation from high school in June, 1999 (Exhibit SD-3). The hearing began on April 29, 1999, and ended on August 19, 1999. In June, 1999, petitioners' son received a certificate for successfully completing a business computer technology basic office procedures program at the BOCES, and he participated in respondent's high school graduation ceremony, where he was awarded an IEP diploma (see 8 NYCRR 100.6) (Transcript, pages 70-71).

        The hearing officer in hearing 1 rendered his decision on October 19, 1999 (Exhibit P-D). He found that the Board of Education had failed to meet its burden of proving the appropriateness of the educational program and placement which it provided to the boy during the 1998-99 school year. In reaching that conclusion, the hearing officer found that respondent had failed to obtain a functional behavioral assessment on a timely basis, and had failed to respond in a timely and reasonable manner to petitioners' request for transitional services for their son. He also found that the boy had been inappropriately grouped for instructional purposes with his classmates in respondent's like skills program. As a remedy for the district's alleged failures, the hearing officer directed respondent to "participate with the placement of [the boy] into an appropriate private school for 1999-00, and award one year of compensatory education for continuation of that private school placement for 2000-01". The private school placement was to be at respondent's expense. The hearing officer also directed respondent to reconvene its CSE within 10 days "for the purpose of modifying the IEP to reflect the placement of [the boy]".

        At a meeting held on November 8, 1999, the Board of Education decided to appeal from the hearing officer's decision in hearing 1. The Board's appeal was received on December 6, 1999. The parents have answered the appeal and cross-appealed from a portion of the hearing officer's decision. The appeal and cross-appeal are pending decision at this time.

        On November 9, 1999, the CSE prepared the boy's IEP for the 1999-2000 school year. That IEP provided for the boy's return to the BOCES VoTech program, and one 45 minute class of life skills English per day (Exhibit SD-5). By letter dated November 9, 1999, petitioners requested that an impartial hearing be held to review the appropriateness of their son's IEP for the 1999-2000 school year because it did not implement the hearing officer's decision (Exhibit SD-1). That hearing (hereinafter "hearing 2") began on December 9, 1999.

        The parties agreed at the outset of hearing 2 that the hearing officer should determine what was the boy's "pendency" placement. The Individuals with Disabilities Education Act (IDEA) provides, in material part, that:

" … 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 comparable State law provision is found in Section 4404 (4) of the Education Law. A child's pendency placement is his or her then-current placement as of the moment when a due process proceeding is commenced. 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 the child's most recent [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 [9^th Cir., 1987]).

        At hearing 2, the Board of Education asserted that the boy's most recent IEP when petitioner asked for hearing 1 was the February 4, 1999 IEP, i.e., the March 30, 1998 IEP as reviewed by the CSE at meetings which were held on September 10, 1998 and February 4, 1999. Respondent contended that it had not agreed to change the boy's placement from the half-day BOCES and half-day life skills program which petitioners' son attended pursuant to that IEP during all of the 1998-99 school year. It further contended that the boy's placement had not been changed by the hearing officer's decision in hearing 1 because that decision had been appealed to the State Review Officer.

        Petitioners asserted that their son had been out of school since June, 1999. They contended that their son was convinced that he could not return to his 1998-99 placement because he had participated in various senior year activities, including the graduation ceremony in respondent's high school, and could not as the result of his disability be persuaded to return to his former placement. Petitioners asserted that the only viable option was a private school placement during the pendency of hearing 2.

        At the close of the first day of hearing 2 on December 2, 1999, the parties agreed to adjourn the hearing to wait for the hearing officer's decision regarding the boy's pendency placement. On December 31, 1999, the hearing officer rendered the decision which is the subject of this appeal. He noted that the Federal regulations implementing the 1997 amendments to the IDEA provided that in certain instances a child's pendency placement can be changed by a hearing officer's decision. The regulation in question reads as follows:

"If the decision of a hearing officer in a due process hearing conducted by the SEA [State educational agency] 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." (34 CFR 300.514 [c])

        Paragraph (a) of 34 CFR 300.514 provides that a child with a disability must remain in his or her current educational placement during the pendency of any administrative or judicial proceeding, unless the State or local agency and the child's parents agree otherwise, except as otherwise provided by paragraph (c). The hearing officer found that the provisions of 34 CFR 300.514 (c) did not apply to the hearing officer's decision in hearing 1 because administrative due process in New York State is two-tiered, involving an impartial hearing conducted at the local level and State-level review. Hearing 1 was not conducted by the New York State Education Department. Therefore, the hearing officer's decision in hearing 1 was not an agreement by the Education Department that the boy's placement should be changed. The hearing officer in hearing 2 found that the boy's last unchallenged placement was in the half-day life skills program and half-day BOCES VoTech program, and that such placement was the boy's pendency placement during hearing 2.

        Petitioners argue that the October 19, 1999 decision in hearing 1 is a final decision which represents an agreement by the State Education Department or the Board of Education and petitioners to change the boy's placement to a private school for purposes of the pendency provisions of Federal law and regulation. They ask that I annul the December 31, 1999 decision in hearing 2, and order that their son be provided with compensatory education because he has been denied access to his pendency placement, i.e., a private school. Respondent contends that the hearing officer in hearing 2 correctly applied the law to the facts, and it asks me to dismiss the petition.

        I must first note that, as petitioners assert in their memorandum of law, the pendency provision of the IDEA acts as an automatic preliminary injunction to prescribe that a school district must maintain a child in a particular placement. A pendency determination is made without regard to the relative merits of one placement over another (Zvi D. v. Ambach, supra; Abrahamson v. Hershman, 701 F. 2d 223 [1^st Cir., 1983]). While I am mindful of petitioners' concerns about returning their son to his previous placement, I must decide what his pendency placement is as a matter of law.

        An impartial hearing officer's decision is final and must be implemented unless appealed to the State Review Officer (34 CFR 300.510 [a]). The decision in hearing 1 has been appealed to the State Review Officer. Until that appeal is decided, the boy's pendency placement is determined by the provisions of 34 CFR 300.514. I concur with the hearing officer's determination in this proceeding that paragraph (c) of that regulation does not apply to the hearing officer's decision in hearing 1. There does not appear to be any factual dispute about the boy's last mutually agreed upon IEP, which was the March 30, 1998 IEP, as reviewed by the CSE at its two subsequent meetings. Therefore, I find that the boy's pendency placement is the placement provided for in that IEP.

THE APPEAL IS DISMISSED.