01-013

        Petitioners appeal from an impartial hearing officer's interim decision finding that the Kildonan School was not their daughter's pendency placement during a proceeding brought to challenge the appropriateness of the student's individualized education programs (IEPs) for the 1999-2000 and 2000-01 school years. The appeal must be sustained.

        Petitioners' daughter is 18 years old, and has been classified as learning disabled by respondent's committee on special education (CSE). She began receiving special education while in the first grade. The student remained in respondent's schools until December 1998, when she was in the tenth grade. Her educational history is set forth in a prior decision, Application of the Board of Education of the Pine Plains Central School District, Appeal No. 00-072, and will not be repeated here. In January 1999, petitioners unilaterally enrolled their daughter in the Kildonan School, a private school in Amenia, New York. At their request, an impartial hearing was held to determine the appropriateness of the educational program which the Board of Education had provided to their child and to obtain an award of tuition reimbursement.

        The hearing in the prior proceeding began in November 1998, and ended in August 1999. The hearing officer failed to render a decision. In May 2000, the Board of Education commenced an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law to compel the hearing officer to render a decision. On June 12, 2000, the Commissioner ordered the hearing officer to issue a decision within ten days (Appeal of the Board of Education of the Pine Plains Central School District, 39 Ed. Dept. Rep. ______, Decision No. 14385). The hearing officer did not comply with the Commissioner's directive, and her certification as a hearing officer was subsequently annulled. Petitioners had commenced an action in the United States District Court for the Southern District of New York. Pursuant to an order of the court, respondent appointed a replacement for the hearing officer.

        On August 28, 2000, the new hearing officer rendered his decision in which he made various findings about the procedure which respondent's CSE had employed and the adequacy of the student's IEP for the 1998-99 school year. He found that respondent had not met its burden of proving that the educational program which the CSE had recommended was appropriate, and that the Kildonan School appeared to be an appropriate educational placement for the student. The hearing officer also found that the parents' claim for tuition reimbursement was supported by equitable considerations. Since the parents had met all three criteria for an award of tuition reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]), the hearing officer ordered the Board of Education to reimburse petitioners for the cost of their daughter's placement at the Kildonan School from January through June 1999.

        The Board of Education appealed from the hearing officer's decision. In my decision which was rendered on November 6, 2000, I sustained part of the Board of Education’s appeal. However, I concurred with the hearing officer's determination that the parents were entitled to an award of tuition reimbursement. In that appeal, the parents asked me to award them tuition reimbursement for the 1999-2000 school year. Their request was denied as being beyond my jurisdiction because that proceeding involved the 1998-99 school year.

        On June 2, 1999, respondent’s CSE prepared the student’s IEP for the 1999-2000 school year (Exhibit 6). The CSE recommended that petitioners’ daughter attend respondent’s Stissing Mountain High School for the eleventh grade. By letter dated August 25, 1999, the student’s mother objected to the IEP, and informed respondent’s Assistant Superintendent for Pupil Personnel Services that she would enroll the student in the Kildonan School for the 1999-2000 school year. She also requested that she be reimbursed for her daughter’s tuition at the private school. In that letter, the student’s mother did not expressly request that an impartial hearing be held (Exhibit 28). The CSE reconvened on June 5, 2000 to prepare the student’s IEP for the 2000-01 school year (Exhibit 7). It again recommended that the student attend the Stissing Mountain High School. In a letter dated August 27, 2000, the student’s mother objected to the 2000-01 IEP, and advised the Assistant Superintendent that her daughter would remain at the Kildonan School (Exhibit 3). She also requested an impartial hearing for the purpose of obtaining tuition reimbursement. Shortly thereafter, petitioners’ attorney advised respondent’s attorney that the requested hearing was for both the 1999-2000 and the 2000-01 school years (Exhibit 5).

        The hearing began on November 20, 2000. Respondent’s counsel explained that respondent would not attempt to defend the appropriateness of the IEPs which the CSE had prepared for the 1999-2000 and 2000-01 school years. However, he contended that petitioners’ claim for tuition reimbursement was barred by the fact that they had not submitted a timely request for a hearing concerning the 1999-2000 school year, and had not cooperated with the CSE in preparing the student’s IEP for the 2000-01 school year. Petitioners’ counsel asked the hearing officer to determine at the outset that the Kildonan School was the student’s pendency placement, in light of my decision in the prior proceeding. The parties agreed that the hearing officer would decide petitioners’ motion for a pendency decision without any testimony, upon a record consisting of 47 exhibits, as well as their written arguments to be submitted to the hearing officer. I note that only the 47 exhibits are included in the record of this appeal.

        In her decision which was rendered on January 12, 2001, the hearing officer construed the provisions of 34 CFR 300.514(c), which became effective on May 11, 1999. The regulation, which relates to pendency placements, provides 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 rejected petitioners' argument that the Kildonan School had become their daughter's pendency placement because of my decision in the prior proceeding. She did so upon finding that my decision was limited to the 1998-99 school year. The hearing officer asserted that "nothing was said" in my decision with regard to the appropriateness of the Kildonan School for the student during the 1999-2000 school year. She concluded that the decision to award tuition reimbursement for the period from January 1999 to June 1999 did not create a pendency placement for the child with respect to the next two school years. The hearing officer also concluded that the student’s last mutually agreed upon placement had been in respondent’s high school in December 1998.

        Petitioners contends that the hearing officer erred in concluding that the Kildonan School had not become their daughter's pendency placement. They assert that the private school was found to be appropriate for the student in my decision in Application of the Board of Education of the Pine Plains Central School District, supra., and that determination is final because the Board of Education did not seek judicial review (34 CFR 300.510 [d]). Petitioners argue that the Kildonan School became their daughter's last agreed upon placement, which must be maintained during the pendency of their challenge to the student's IEPs for the 1999-2000 and 2000-01 school years in this proceeding.

        The Board of Education asserts that petitioners attempted to obtain an award of tuition reimbursement for the 1999-2000 and 2000-01 school years in the prior proceeding involving the 1998-99 school year, and that the hearing officer and the State Review Officer denied their request for such reimbursement because those two school years were not part of the prior proceeding. It further asserts that petitioners' claim for tuition reimbursement for both school years is subject to the tripartite test set forth in the Burlington decision, and that petitioners cannot obtain an award of tuition for the 2000-01 school year because they reportedly did not cooperate with respondent's CSE in obtaining information from the Kildonan School about their child's current levels of performance.

        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 student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (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 merits, and a balancing of the hardships (Zvi D.v. Ambach, 694 F. 2d 904 [2d Cir. 1982]; Drinker v. Colonial School Dist., 78 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 student'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 student'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]).

        Petitioners initially challenged the educational program which respondent had provided to their daughter by requesting an impartial hearing in the fall of 1998. The student's last agreed upon placement at that time was in respondent's high school. The final administrative determination in that proceeding was rendered on November 6, 2000. As noted above, petitioners were awarded tuition reimbursement at the Kildonan School for the period from January through June 1999. The issue presented in this appeal is what effect, if any, does my determination that petitioners were entitled to receive tuition reimbursement for that period have with respect to the student's pendency placement during a subsequent proceeding to challenge the CSE's recommendations for the student's educational program during the 1999-2000 and 2000-01 school years.

        In Application of a Child with a Disability, Appeal No. 99-100, I rejected the argument that the provisions of the new 34 CFR 300.514 (c) should be construed as applying only to the duration of a school district's appeal from an adverse determination by the State Review Officer. I noted that pursuant to the new regulation, a State Review Officer's decision to award tuition reimbursement becomes an agreement by the State and the student's parents with regard to the student's placement. It therefore becomes the student's last mutually agreed upon placement for purposes of pendency during a subsequent proceeding, unless the parties agree upon another placement (see also Murphy v. Arlington Central School District, 86 F. Supp. 2D 354 [S.D. N.Y., 2000]).

        The board of education acknowledges the holdings of the district court in Murphy and my decision in the Pawling appeal, but it asserts that they do not apply in this appeal because of what respondent asserts was an express limitation of the effect of my decision in the prior appeal involving this student. In the prior appeal, the board of education sought review of the hearing officer's decision awarding tuition reimbursement for the period from January through June 1999. In their memorandum of law responding to the board of education's petition, the parents asked that the hearing officer's remedy of a tuition reimbursement award be "expanded" to include the 1999-2000 school year. There was, however, no basis in the record which was then before me to determine whether the parents were entitled to receive an award of tuition reimbursement for the 1999-2000 school year under the Burlington criteria, so their request was denied. It does not follow that my decision upholding the hearing officer's determination to award tuition reimbursement did not change the student's pendency placement pursuant to 34 CFR 300.514 (c) with regard to a subsequent proceeding to challenge the CSE's recommendations for the student's placement during the 1999-2000 and 2000-01 school years.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that the student's pendency placement is at the Kildonan School for the duration of this due process proceeding, unless the parties agree to a different placement.