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Application of the BOARD OF EDUCATION OF THE SHENENDEHOWA CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Ferrara Fiorenza Larrison Barrett & Reitz, P.C., attorney for petitioner, Susan T. Johns, Esq., of counsel

Young, Sommer, Ward, Ritzenberg, Wooley, Baker & Moore, LLC., attorney for respondent, Kenneth S. Ritzenberg, Esq., of counsel


          Petitioner, the Board of Education of the Shenendehowa Central School District, appeals from an impartial hearing officer's interim decision that The Adirondack School (Adirondack) is the pendency placement of respondent's child during a proceeding brought to challenge petitioner’s alleged delay in implementing the boy’s individualized education program (IEP) for the 1999-2000 school year. The hearing officer ordered petitioner to provide special services to respondent's child at Adirondack, and to transport the child to and from the school during the 1999-2000 school year. The hearing officer denied the parent’s request that petitioner be ordered to provide compensatory education to her son because the record was not fully developed to provide support for such an order. The parent cross-appeals from that portion of the hearing officer’s interim decision. She seeks compensatory education and compensation for travel during the ten school months that she transported her son to and from Adirondack. The appeal must be sustained. The cross-appeal must be dismissed.

        At the outset, I must note that my jurisdiction in appeals from the interim decisions by hearing officers is limited to pendency determinations (8 NYCRR 279.8 [c]). Therefore, I cannot accept jurisdiction over respondent’s cross-appeal from the hearing officer’s interim decision. Respondent can obtain review of the hearing officer’s decision with regard to her request for compensatory education and reimbursement for transportation in an appeal or cross-appeal from the hearing officer’s final decision.

        Respondent submitted a request for an impartial hearing on February 8, 2000. Prior to a hearing on May 17, 2000, the parties agreed that they would seek an interim decision by the hearing officer on the issue of the child’s pendency placement. At the hearing, they stipulated to the facts upon which the hearing officer would base his decision. No evidence was submitted, and no witnesses testified. The hearing officer rendered his decision upon the stipulated facts which appear in a very brief hearing transcript. The parties ask that I also rely upon those facts in making my decision in this appeal.

        The parties stipulated that respondent’s son attended the Robert C. Parker School in Wyantskill, New York from September, 1994 through June, 1999. The Robert C. Parker School is apparently a private school. The record does not reveal how or why he was enrolled in that school. While he was enrolled in that school, petitioner’s committee on special education (CSE) prepared IEPs for him, and petitioner provided a variety of services to him.

        The parties settled a dispute in the spring of 1998 by agreeing that if there was any disagreement regarding the boy’s IEP for the 1998-99 school year, petitioner would provided the same services at the same location as had been provided to him during the 1997-98 school year "as his pendency placement" (Paragraph 2 of Stipulation).

        The boy’s IEP for the 1998-99 school year provided that he would receive direct and indirect consultant teacher services for 60 minutes four times per week. The IEP also provided that he would receive 60 minutes of individual physical therapy once per week, and 60 minutes of individual counseling once per month. The school district provided the boy’s direct and indirect consultant teacher services to him at Parker through the local BOCES. The child received counseling and physical therapy through private providers at school district expense. Although the child's IEP did not indicate a need for special transportation, the school district chose to transport the child to and from Parker every day. Parker was located approximately 22 miles from the child's residence.

        On April 26, 1999, the CSE prepared the child's IEP for the 1999-2000 school year. The CSE recommended that he receive counseling for one hour per month, physical therapy for one hour per week, and that he have the benefit of testing modifications and specialized equipment. It apparently did not recommend that the child receive consultant teacher services during the 1999-2000 school year. The CSE chose to defer a recommendation regarding psychological testing for the boy. At the CSE meeting, the child's parent announced that her son would attend Adirondack during the 1999-2000 school year.

        On May 10, 1999, the chair and two other members of the CSE met with the child's parent. This group recommended that the child be independently evaluated, and that the child receive 40 minutes of resource room services five times per week. Respondent enrolled her son in Adirondack on or about September 9, 1999. Adirondack is located approximately 25 miles from the child's residence, approximately 10 miles beyond the 15 mile limit for regular transportation (Section 3635 [1] of the Education Law). The Board of Education apparently did not provide transportation to Adirondack.

        In April, May and August, 1999, the child's parent was informed that the school district was attempting to contract for special education services to be provided to the child at Adirondack or a neighboring school district. Petitioner was unable to arrange for those services to be provided at or near Adirondack. The CSE chair informed the parent that if services could not be provided at Adirondack or a neighboring school district, services would be provided to the boy at the Shenendehowa High School at a time during the school day when the child's schedule would be least impacted. The parent indicated opposition to the provision of services at Shenendehowa High School because she did not want her child's schedule to be interrupted.

        On February 8, 2000, the parent requested an impartial hearing to review the delay in implementing the 1999-2000 IEP. There was no dispute about the boy’s related services, or the additional evaluation which had been recommended for him. The hearing was scheduled for May 17, 2000. As stated previously, the parties stipulated that the only issue that would be presented before the hearing officer was whether Adirondack was the child's placement for pendency purposes.

        In his decision dated August 31, 2000, the hearing officer framed the issues to be decided as whether the pendency of Federal and State law compelled the Board of Education to provide consultant teacher services to respondent’s son at Adirondack, and whether it was required to transport him to and from that school. He found that petitioner’s offer to provide transportation to Parker during the 1998-99 school year constituted the last mutually agreed upon placement for the child. He further found that respondent's rationale in desiring services at Adirondack rather than Shenendehowa High School so that her child would not miss school was sound. He ordered petitioner to provide consultant teacher services at Adirondack and to transport the child to and from Adirondack each school day.

        Subsequent to the issuance of the hearing officer's decision, the child began attending the Doane Stuart School in Albany, New York in September, 2000. Respondent has requested transportation to the Doane Stuart School on the ground that such school is now her son’s pendency placement. In the alternative, respondent asserts that the child is entitled to transportation pursuant to Education Law §4402 (4)(d). I must note that the statute upon which respondent relies requires a showing that a child is attending a private school for the purpose of receiving services or programs similar to special education programs which the CSE has recommended for the child. There is no factual basis in the limited record before me for making that determination (Application of a Student with a Disability, 33 Ed. Dept. Rep. 712).

        During the pendency of an impartial hearing, a child must remain in his or her current educational placement unless the child's parents and the state or local education agency agree to a different placement (20 USC §1415[j]). The child's current educational placement is the last mutually agreed upon placement at the moment an impartial hearing is requested by a parent (Application of the Board of Education, No. 97-82). The term "current education placement" refers only to the general type of educational program in which a child is placed, rather than a specific location (Concerned Parents and Citizens for the Continuing Education at Malcolm X P.S. 79 v. New York City Board of Education, 629 F. 2d 751 [2d Cir. 1980]). 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 21:48), (see also Zvi D. v. Ambach, 694 F. 2d 904 [2d Cir., 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3rd Cir., 1996]; Gregory K. v. Longview School District, 811 F. 2d 1307 [9th Cir., 1987]).

        Petitioner asserts that pendency has attached to the boy’s 1999-2000 IEP because respondent did not request a hearing until February, 2000. Since that IEP did not include either consultant teacher services or transportation, petitioner argues that it is not obligated to provide either service to respondent’s son during the pendency of this proceeding. I note that respondent was apparently not formally notified of the CSE’s recommendations for the 1999-2000 school year until November 10, 1999 (Paragraph 10 of Stipulation). In any event, petitioner asserts that respondent has not challenged the 1999-2000 IEP, but rather petitioner’s failure to implement the IEP. Respondent asserts that her son’s last agreed upon IEP was the1998-99 IEP, because the CSE failed to complete a new IEP at its April, 1999 meeting and the CSE did not include all of its required members at the May 10, 1999 meeting. Respondent also challenges petitioner’s assertion that she acquiesced to the implementation of the 1999-2000 IEP by not requesting a hearing until February, 2000.

        Upon the very limited record which is before me, I find that the boy’s last agreed upon IEP was the IEP for the 1998-99 school year. The parties have made various factual assertions in their respective memoranda of law about the validity of the action taken at the May 10, 1999 meeting to complete the boy’s IEP for the 1999-2000 school year, as well as respondent’s delay in challenging that IEP. Those assertions cannot be verified by the limited record which the parties agreed to create. However, there appears to be no dispute that both parties were in agreement about the 1998-99 IEP. Pursuant to that IEP, petitioner provided consultant teacher services to the boy at Parker. It also transported the boy to that private school, but transportation was not listed as a special education service or a related service on his IEP.

        I find that petitioner is not required to provide transportation to the boy pursuant to the pendency provisions of Federal and State law because transportation did not appear on the boy’s IEP. As noted above, a child's "then-current placement" means the special education and related services which are provided to a child pursuant to the child's IEP. In essence, respondent seeks to invoke the pendency provisions of the Individuals with Disabilities Education Act (IDEA) and its State counterpart in Article 89 of the Education Law to compel petitioner to provide a service which has not been determined to be part of the child’s special education or a related service. The boy’s entitlement to transportation is therefore not subject to the provisions of the IDEA or Article 89 of the Education Law. Instead, his claim for transportation is dependent upon the provisions of Section 3635 of the Education Law, and is beyond the scope of this proceeding ( Matter of Roslyn Union Free School District v. University of the State of New York et al., ___ AD 2d ___ [3d Dept., 2000]). Respondent’s remedy is an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law.

        As noted above, petitioner provided consultant teacher services to the boy pursuant to his 1998-99 IEP, which was his last agreed upon IEP. Therefore, I find that petitioner was obligated to continue to provide consultant teacher services. However, petitioner argues that the pendency provisions do not require it to provide special education services at the site of a private school, particularly now that the child is not attending the private school in which he was enrolled for the 1998-99 school year. Respondent argues that a change in the location of her son’s private school is irrelevant for purposes of the pendency provisions.

        Although a change in location is not necessarily a change in education placement, parents are not free to unilaterally transfer their child from one school to another with the assurance that special services will be provided by the school district at the new location (Application of a Child with a Disability, Appeal No. 97-80). Parents who unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15 [1993] (quoting School Comm. v. Department of Educ., 471 U.S. 359, 373-74, [1985]). School districts are not obligated under the IDEA or the New York Education Law to provide on-site services to disabled children who are unilaterally enrolled in private schools by their parents (Russman v. Bd. of Educ. of Watervliet, 150 F. 3d 219 [1998]; Bd. of Ed. Monroe-Woodbury CSD v. Weider et al., 72 NY 2d 174 [1988]). Although petitioner chose to provide consultant teacher services at Parker during the 1998-99 school year, the school district was not obligated to provide services at Parker or any other site selected by the parent in a subsequent school year. The stipulation in the record before me indicated that petitioner was unable to arrange for special education services to be provided at Adirondack. I have no basis for determining that it could have provided services there. I find that petitioner was not required by the pendency provisions to furnish consultant teacher services at Adirondack during the 1999-2000 school year. In doing so, I make no determination as to the appropriateness of Adirondack's program for the child. I note that there is now another appeal before me with regard to the boy’s pendency placement for the 2000-200l school year.



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

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