00-085

        Petitioner, the Board of Education of the Shenendehowa Central School District, appeals from an impartial hearing officer's interim decision requiring petitioner to transport respondent’s son to and from the Doane Stuart School in Albany, New York during the 2000-01 school year because that school was the boy’s pendency placement. The appeal must be sustained.

        In a prior appeal, the Board of Education appealed from the hearing officer’s interim decision on August 31, 2000 finding that the Adirondack School was the student’s pendency placement for the 1999-2000 school year. The Board’s appeal was sustained on November 30, 2000 (Application of the Board of Education of the Shenendehowa Central School District, Appeal No. 00-073). Upon the very limited record in that appeal, I found that the student’s last agreed upon individualized education program (IEP) was for the 1998-99 school year, when the student had attended the Parker School in Wynantskill, New York. Since the IEP for the 1998-99 school year did not include transportation, I found that the Board of Education was not required to provide transportation under the pendency provisions of federal and state law to the student who had been unilaterally enrolled by his parent in the Adirondack School for the 1999-2000 school year. Therefore, I annulled the hearing officer’s interim decision.

        The instant appeal is from a second interim decision by the hearing officer, which he rendered on October 24, 2000. Respondent had unilaterally enrolled her son in the Doane Stuart School for the 2000-01 school year. At a hearing on September 25, 2000, the parent asserted that the Doane Stuart School had become her son’s pendency placement, and that the Board of Education should transport her son to that school. The Board of Education opposed the parent’s request for a decision compelling it to provide transportation. In his decision of October 24, 2000, the hearing officer indicated that he had based the decision upon his prior decision finding that pendency included transportation.

        When the hearing officer rendered his decision ordering the Board of Education to transport the student to the Doane Stuart School, the Board’s appeal from the earlier interim decision was pending decision. In that decision, I noted that the parent had placed her son at the Doane Stuart School and had requested transportation for him. However, there was no hearing officer’s decision with regard to that matter for me to review.

        This appeal was commenced on November 20, 2000. Petitioner contends that the hearing officer erred in finding that the pendency provisions of federal and state law compel it to transport the student to the private school selected by the parent. Both parties rely upon the limited record from the prior appeal and the transcript from the hearing on September 25, 2000.

        For the reasons indicated in my prior decision, I must find that the pendency provisions do not apply to the student’s transportation during the 2000-01 school year. The student’s last agreed upon IEP did not include transportation. There is nothing in the record before me to establish that there has been any subsequent agreement to transport the student. His entitlement, if any, to transportation must be determined pursuant to the provisions of §3635 of the New York State Education Law in an appeal to the Commissioner of Education.

THE APPEAL IS SUSTAINED.

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