01-003

       Petitioners appeal from an interim decision by an impartial hearing officer regarding their daughter’s pendency placement during a due process hearing. The hearing officer denied petitioners’ request for an order compelling respondent to continue their daughter’s placement at the First Expressions program at the Children’s Hospital of Albany Medical Center (First Expressions). The appeal must be sustained in part.

        Petitioners’ daughter is five years old. In the spring of 1997 when she was approximately 22 months old, she was diagnosed with a malignant brain tumor. Early intervention services were provided to the child through Saratoga County. After turning three in 1998, the child was classified by respondent’s Committee on Preschool Special Education (CPSE) as a preschool child with a disability and was initially placed in the Helping Hands program in Clifton Park, New York (Exhibit 4). In 1999, she had surgery and received adjuvant therapy. At a September 1999 meeting, the CPSE recommended that the child attend First Expressions for the 1999-2000 school year. It further recommended that she receive the related services of individual speech/language therapy five times per week for 30 minutes, individual occupational therapy three times per week for 45 minutes, and individual physical therapy three times per week for 30 minutes. One of the physical therapy sessions was designated to be aqua therapy. Additionally, a 1:1 aide was recommended, as was a monthly 60-minute session with a traumatic brain injury (TBI) consultant. In the spring of 2000, the child underwent surgery again, followed by radiation treatments. The CPSE met again in May 2000 to determine the child’s summer program. It recommended that she continue to attend First Expressions during July and August 2000 and receive the same services as were provided pursuant to her individualized education program (IEP) for the 1999-2000 school year.

        The child became five years old in June 2000, and was therefore eligible to enter kindergarten in September 2000. Since she had become eligible to attend kindergarten, respondent’s committee on special education (CSE) was required to recommend the child’s educational program for the 2000-01 school year. On August 16, 2000, respondent’s CSE recommended that the child be classified as a student with a TBI and placed in the Wildwood School (Wildwood) in Schenectady, New York. Wildwood has been approved by the New York State Education Department (NYSED) to provide education to children with disabilities. The CSE further recommended that the child receive the same special education and related services that she had received pursuant to her 1999-2000 IEP, with the exception of a 15-minute reduction in the length of her occupational therapy sessions (Exhibit 3). Petitioners objected to the proposed placement and requested an impartial hearing (Exhibit 1). Additionally, they asserted that their daughter should remain in the First Expressions program during the pendency of the due process proceeding.

        A hearing was held on October 13, 2000 to determine the child’s pendency placement. The parties stipulated to certain facts, including that First Expressions was approved by NYSED as a provider of preschool education. Some exhibits were entered into the record, but no witnesses testified. The hearing officer rendered his decision on November 24, 2000. He determined that the child could not remain in the First Expressions program because she was of school age and First Expressions has been approved by NYSED pursuant to N.Y. Educ. Law section 4410 to provide preschool education only. In doing so, the hearing officer relied upon the Regulations of the Commissioner of Education, which read in material part as follows:

Nothing in this subparagraph [relating to due process information to be provided to parents] shall require that a student with a disability remain in a preschool program for which he or she is no longer eligible pursuant to section 4410 of the Education Law during the pendency of any proceeding pursuant to this part.

(8 NYCRR 200.16[g][3][i]).

        The hearing officer directed the Board of Education to find and contract with a facility which could provide the educational program reflected in the child’s individualized education program (IEP) for the summer of the 1999-2000 school year.

        Petitioners appeal from the hearing officer’s decision on several grounds. They contend that the hearing officer based his decision at least in part upon a conversation he had with an attorney for First Expressions before the hearing was held. At the hearing, the hearing officer disclosed that the attorney had called him to express some concerns on behalf of her client. The hearing officer alluded to some of those concerns in his decision. I agree with petitioners that a hearing officer must base his decision solely upon the evidence in the record (Applications of a Child with a Disability and the Board of Education of the Kenmore-Tonawanda Union Free School District, Appeal Nos. 96-55 & 56; Application of a Child Suspected of Having a Disability, Appeal No. 95-52).

        Petitioners argue that the hearing officer erred in determining that section 200.16(g)(3)(i) of the Regulations of the Commissioner of Education precluded their daughter from remaining at First Expressions. They assert that their daughter should remain at First Expressions pursuant to the pendency provisions of the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq., hereinafter referred to as the IDEA), and specifically 20 U.S.C. § 1415(j), as well as its state counterpart in N.Y. Educ. Law section 4404(4).

        Although the girl became five years old in June 2000, she continued to be a preschool child with a disability through the month of August 2000 for purposes of the Education Law (N.Y. Educ. Law section 4410[1][i]). The record shows that the child received special education and related services through August 2000 as a preschool child with a disability pursuant to an IEP developed by respondent’s CPSE. The record further shows that the child’s parents had agreed to that IEP, and are not challenging any action taken by the CPSE. Their dispute was with the IEP which respondent’s CSE had prepared for their daughter’s education during the 2000-01 school year.

        Subdivision (g) of section 200.16 of the Regulations of the Commissioner of Education specifies the information relating to pendency placements that must be included in the notice of due process rights which a CPSE, rather than a CSE, must provide to the parent of a preschool child with a disability. I find that the hearing officer’s reliance upon the provisions of 8 NYCRR 200.16(g)(3)(i) was misplaced (Application of a Child with a Disability, Appeal No. 94-33). Having reached this conclusion, I need not address petitioners’ other challenges to the hearing officer’s application of section 200.16(g)(3)(i). Similarly, having determined that the child is no longer a preschool child with a disability as defined in state regulation, it is not necessary that I address the issues raised by petitioners relating to mandatory school age.

        The pendency provisions of the IDEA and the New York State Education Law require that a child remain in his or her then current placement, unless the child’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. § 1415[j]; N.Y. Educ. Law section 4404[4]). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]; Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]).

        Under the IDEA, the inquiry focuses on identifying the child’s then current educational placement (Zvi D., 694 F.2d at 906). Although not defined by statute, the term "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Application of a Child with a Disability, Appeal No. 97-80). The U.S. Department 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 [IEP]" (Letter to Baugh, EHLR 211:481; see also Drinker, 78 F.3d at 867; Gregory K. v. Longview School Dist., 811 F.2d 1307 [9th Cir. 1987]).

        The parties concur that the child’s IEP for the 1999-2000 school year was the last agreed upon IEP. The child received special education and related services at First Expressions pursuant to that IEP, which is not in the record. At the hearing, the parties stipulated that the services set forth on the child’s IEP for July and August 2000 were identical to the services set forth on the 1999-2000 IEP (Transcript p. 7). The IEP for the summer which is in the record (Exhibit 3) is arguably the last agreed upon IEP.

        Petitioners concede that pendency does not necessarily mean that the child must remain at the same grade level (Application of a Child with a Disability, Appeal No. 96-64), or at the same program site (Letter to Fisher, 21 IDELR 992), but they argue that their daughter’s last agreed upon IEP includes site specific elements unique to and inherently connected with the program at First Expressions. They assert that the proximity to and affiliation with Children’s Hospital are required elements of their child’s educational program because of the uniqueness of her medical condition. Petitioners note that their daughter’s treating physicians and teachers agree that she should remain at First Expressions. Additionally, petitioners have expressed concern about their daughter’s ability to transition so soon after surgery and her summer radiation treatments. The record before me is extremely limited and does not afford a basis for addressing the issues which petitioners have raised. In any event, those assertions go to the merits of First Expressions’ program which is beyond the scope of a pendency determination. The issue before me is what was this child’s then current educational placement when her parents requested an impartial hearing. In order to make that determination, I must examine the child’s IEP for the summer of 2000.

        The IEP indicates that the child was to be placed in an "Approved SED Program" for 2.5 hours per day and receive various related services. Under the heading of "SERVICE PROVIDER", the IEP lists First Expressions and one other provider. I note that section 200.16(d)(3)(i) of the Regulations of the Commissioner of Education requires the CPSE to identify on a child’s IEP " an appropriate program and/or service selected from the lists of preschool programs and services established pursuant to section 4410 of the Education Law." Individual preschool education programs are approved by the Commissioner of Education pursuant to N.Y. Educ. Law section 4410(9), and names of those programs are then furnished to school districts. I am not persuaded that the mere reference to First Expressions in the IEP affords a basis for concluding that the child must continue to receive services from that program. As noted above, the term "then current placement" does not refer to a specific site or location at which a child’s educational program is provided. However, that is not dispositive of this appeal.

        When pendency protection is invoked, the child must continue to receive the special education and related services which are listed on the child’s last agreed upon IEP. In this instance, that is the child’s IEP for the summer of 2000. It’s entirely possible that the child’s IEP services could be provided by another facility. The question before me is whether there is evidence in the record to afford a basis for concluding that petitioners’ daughter could receive the special education and related services which are listed in her summer of 2000 IEP at Wildwood during the pendency of this due process proceeding to challenge her IEP for the 2000-01 school year. The parties’ attorneys did not stipulate that the IEP service could be provided by Wildwood. No documentary or testimonial evidence was adduced at the hearing regarding this issue. Similarly, there is nothing in their respective pleadings which would allow me to conclude that the child’s program could be provided by Wildwood. Therefore, I must remand the matter back to the hearing officer to obtain sufficient evidence for him to determine the child’s pendency placement in accordance with the tenor of this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

IT IS FURTHER ORDERED that the hearing officer shall require the parties to submit sufficient evidence to afford a basis for him to determine the child’s pendency placement.