01-093

       Petitioner appeals from an impartial hearing officer's interim decision regarding her son's pendency placement during a due process proceeding challenging the appropriateness of the placement recommended for her son for the 2001-02 school year. The hearing officer determined that the 12:1+1 special class operated by the district was the child's pendency placement. The appeal must be sustained.

        Petitioner's son was eight years old when the hearing began on August 23, 2001. He is functioning within the mildly mentally retarded range of cognitive abilities and has been diagnosed as having a pervasive developmental disorder (PDD) (Exhibits 51 and 52). He was reportedly classified as a preschool child with a disability in 1996 and transferred to respondent's school district in the fall of 1997, where he received special education and related services (Exhibit 53). In April 1998, as the child would be turning five years old, respondent's Committee on Special Education (CSE) met to develop his individualized education program (IEP) for the 1998-99 school year (Exhibit 1). The CSE classified him as multiply disabled and recommended that he be placed in a special class with related services. However, the child moved to a different school district for the 1998-99 school year (Exhibit 53). He returned to respondent's school district for the 1999-2000 school year and was placed in a 12:1+1 special class operated by the Oswego County Board of Cooperative Educational Services (BOCES) at respondent's Millard Hawk Primary School (Millard Hawk).

        On November 14, 2000, the CSE met for the child's triennial review and to develop an IEP for the remainder of the 2000-01 school year (Exhibit 18). The CSE again recommended that the child be placed in the 12:1+1 special class operated by BOCES at Millard Hawk. It further recommended that he receive an individual teacher assistant five times per week for a total of 360 minutes, occupational therapy, physical therapy and group speech/language therapy twice per week for 30 minutes, individual speech/language therapy three times per week for 30 minutes, and music therapy twice per week for 30 minutes with music therapy consultations once per month for 60 minutes. The November 2000 IEP was implemented through June 2001 (Transcript p. 20).

        On March 13, 2001, the CSE met to develop the child's IEP for the 2001-02 school year (Exhibit 25). It recommended that the child continue to be placed in the 12:1+1 special class at Millard Hawk operated by BOCES. Respondent Board of Education did not approve the CSE's recommendation (Exhibit 28). Rather, it remanded the matter to the CSE to review whether a similar class operated by the district would meet the program and service needs of the child. The CSE reconvened on May 15, 2001 and revised its recommendation, proposing that the child be placed in the 12:1+1 special class at Millard Hawk operated by the district (Exhibit 38). Petitioner disagreed with the CSE's recommendation and requested an impartial hearing (Exhibit 45).

        The hearing began on August 23, 2001. The first day of the hearing was limited to the issue of the child's pendency placement. The hearing officer rendered his interim decision on August 31, 2001. He found that the November 2000 IEP was the last agreed upon IEP. However, he determined that that IEP could be implemented in the district's 12:1+1 class without a change in the amount or level of educational services, without a change in the amount or frequency of the related services and without a change in the continuum of services. Finding that the child's last agreed upon IEP could be implemented by the district without any material alterations to his program, the hearing officer concluded that placing the child in the class operated by the district did not constitute a change in placement. Accordingly, he determined that the district's 12:1+1 special class was the child's pendency placement.

        Petitioner appeals from the hearing officer's decision. She claims that the hearing officer improperly found that the special class operated by the district is her son’s pendency placement. Rather, she argues that the BOCES program is the appropriate pendency placement.

        The pendency provisions of the Individuals with Disabilities Education Act (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 § 4404[4]). The pendency provision represents Congress' policy choice that all disabled children, regardless of whether their case is meritorious, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved (Drinker v. Colonial Sch. Dist., 78 F.3d 859 [3d Cir. 1996]). 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 current placement includes the IEP and the setting in which the IEP is implemented, such as a self-contained classroom, and is generally not considered to be location specific (Assistance to States for the Education of Children With Disabilities, 64 Fed. Reg. 12406, 12616 [March 12, 1999]). The term 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 parties concur that the November 2000 IEP was the last agreed upon IEP. As noted above, that IEP provided for the child to be placed in a 12:1+1 special class operated by BOCES at Millard Hawk. It further provided that the child receive an individual teacher assistant five times per week for a total of 360 minutes, occupational therapy, physical therapy and group speech/language therapy twice per week for 30 minutes, individual speech/language therapy three times per week for 30 minutes, and music therapy twice per week for 30 minutes with music therapy consultations once per month for 60 minutes. Under management needs, the IEP described the child's needs for adult support and indicated that he required constant 1:1 supervision throughout the school day because he lacked safety awareness and needed assistance with social interaction. That section further provided that the teacher assistant assignment "may be rotated on a weekly basis between two individuals." I note that this statement is not included under management needs on the IEP recommended for the child for the 2001-02 school year.

        While the parties agree that the November 2000 IEP is the last agreed upon IEP, they disagree as to whether it can be implemented in the district's class. Respondent acknowledges that the BOCES program could serve as the child's pendency placement. However, it contends that because pendency placement is not limited to a particular service provider, if the services listed on the last agreed upon IEP can be met in a comparable class operated by the district, that class could serve as the pendency placement (Application of a Child with a Disability, Appeal No. 00-030). It contends that the November 2000 IEP can be implemented in the 12:1+1 special class operated by the district, which I note is the same class it recommended for the child for the 2001-02 school year. Petitioner argues that the district's class differs from the BOCES program in the way in which the services of the teacher assistants are provided to the child. She states that in the BOCES program, two teacher assistants are rotated on a weekly basis, while in the district's program the teacher assistants are not necessarily identified with a particular student. She also claims that the district's class could not serve as her son's pendency placement because she never consented to it.

        As respondent claims that the class operated by the district can serve as the child's pendency placement, it must demonstrate that the special education and services listed in the November 2000 IEP can be implemented in that class. Respondent's director of special education testified in general terms that the child's IEP could be implemented in the 12:1+1 class operated by the district. She further testified how the teacher assistants are assigned in the classroom and indicated that they may not be assigned to the same student each day (Transcript p. 59). Respondent claims that as long as the child's IEP requirements are met, the practice of assigning teacher assistants to students is the prerogative of the teacher under whose direction the teacher assistants provide services. I agree that the assignment of teacher assistants, like methodology, is a matter better determined by the classroom teacher. However, in this case, the CSE chose to specify on the child's IEP that the assistant could be rotated on a weekly basis between two individuals. Respondent therefore must show that it can meet that requirement.

        The record shows that in the class operated by the district, teacher assistants are not assigned to specific students. There is no evidence demonstrating how the rotation system described in the November 2000 IEP could be accomplished in the district class, given the existing practice of not assigning teacher assistants to individual students. Based upon the information before me, I find that respondent has failed to demonstrate that the services of the teacher assistant, as described in the child’s last agreed upon IEP, could be implemented in the district class.

THE APPEAL IS SUSTAINED.

IT IS ORDERED THAT the hearing officer's decision is annulled;

IT IS FURTHER ORDERED that the child's pendency placement is the 12:1+1 program operated by BOCES at Millard Hawk.