02-002

       Petitioner appeals from an impartial hearing officer’s interim decision which held that her daughter’s pendency placement during a proceeding brought to obtain an award of tuition reimbursement for the 2000-01 school year was in respondent’s schools, rather than in the private school which the child was attending. The appeal must be sustained.

        Petitioner’s daughter was classified as a student with a learning disability in 1996 when she was in the first grade at P.S. 3. She returned to P.S. 3 for the second and third grades. For the fourth grade, during the 1998-99 school year, petitioner enrolled her daughter in the Stephen Gaynor School (Gaynor), and she has remained at Gaynor since that time.

        In June 1999, respondent’s Committee on Special Education (CSE) met to develop the student's individualized education program (IEP) for the fifth grade during the 1999-2000 school year. It recommended that she remain classified as learning disabled, and that she be placed in respondent’s Modified Instructional Services-I (MIS-I) program with speech/language therapy as a related service. In August 1999, petitioner advised respondent that she was unilaterally placing her daughter at Gaynor for the 1999-2000 school year and requested an impartial hearing seeking tuition reimbursement for that school year. The hearing was completed in April 2000, and in a decision issued on June 29, 2000, the hearing officer denied petitioner’s request for tuition reimbursement.

        Petitioner appealed from that decision, which was annulled on July 12, 2001 in Application of a Child with a Disability, Appeal No. 00-043 (Appeal No. 00-043). In that decision, I found that petitioner had met the criteria for an award of tuition reimbursement, and held that respondent should reimburse petitioner for her daughter’s tuition at Gaynor for the 1999-2000 school year. In its answer to the petition in this appeal, respondent indicated that it has commenced an action in federal court to review my decision.

        On May 16, 2000, after the hearing concerning the 1999-2000 school year was completed, but before the hearing officer rendered her decision, the CSE apparently met to develop the student’s IEP for the 2000-01 school year (November 15, 2001 Order of Pendency). The CSE recommended that the student continue to be classified as learning disabled, that she be placed in a special class setting, and that she receive speech/language therapy as a related service. Petitioner disagreed with the CSE’s recommendation, and on September 12, 2000, she requested an impartial hearing.

        A motion regarding the scheduling of the impartial hearing was heard on December 21, 2000, and the matter was scheduled for April 20, 2001. In her decision, the hearing officer indicated that April 20 was the earliest date petitioner was available. However, the hearing did not begin until October 19, 2001 due to a number of adjournments for various reasons. On that day, respondent began presenting its case, which included testimony with respect to some of the circumstances surrounding the adjournments. Petitioner did not present any testimony that day because respondent had not yet completed its case. However, in light of my decision in Appeal No. 00-043 finding that petitioner should be reimbursed for her child’s tuition at Gaynor during the 1999-2000 school year, petitioner asked the hearing officer to find that Gaynor was her daughter’s pendency placement. She also sought a determination by the hearing officer that this proceeding with respect to the child’s education during the 2000-01 school year had become moot as a result of the decision in Appeal No. 00-043. The hearing was scheduled to continue on November 19, 2001.

        On November 15, 2001, the hearing officer issued her pendency determination. She noted that petitioner had made repeated requests for adjournments, which she found to be dilatory and an attempt to thwart the administrative process and invoke the stay put provision in an effort to maintain her daughter at Gaynor based upon my decision in Appeal No. 00-043. Consequently, she indicated that she would determine the student’s pendency placement as if the hearing had proceeded as initially scheduled in April 2001 and was decided prior to the date I rendered my decision in Appeal No. 00-043. The hearing officer found that the student’s pendency placement was respondent’s public school, and that petitioner was not entitled to automatic tuition reimbursement under the pendency provisions of the Individuals with Disabilities Education Act (IDEA). She found that a justiciable issue remained, and denied petitioner’s motion to terminate the hearing as moot.

        Petitioner appeals from the hearing officer’s decision on a number of grounds. She argues that as a result of the decision in Appeal No. 00-043 regarding the 1999-2000 school year, Gaynor became her daughter’s pendency placement, and that respondent is obligated to pay her tuition at that school for the 2000-01 school year under the pendency provision of the IDEA. She also argues that the issue of the appropriateness of the program recommended for the 2000-01 is moot because the hearing was not held prior to the expiration of the 2000-01 school year and no justiciable issue remains. She also seeks a determination that even if respondent were to prevail on the merits with regard to the 2000-01 school year, petitioner should not be required to reimburse respondent for sums it paid to petitioner or Gaynor in compliance with the pendency order. Petitioner contends that the hearing officer exhibited bias by basing her decision on testimony by respondent’s witness without hearing any testimony from petitioner’s witnesses, and that the hearing officer’s bias was further evident when she failed to follow legal precedent in reaching her decision.

        Respondent raises several affirmative defenses. First, it argues that 34 C.F.R. § 300.514(c) is an ultra vires regulation, and therefore provides no authority to support petitioner's claim that Appeal No. 00-043 operates as an agreement between the state and the petitioner regarding the student’s pendency placement. An appeal to the State Review Officer (SRO) is not the appropriate forum in which to challenge the validity of federal regulations or the power of a federal agency when promulgating regulations implementing a federal statute. Pursuant to federal and state law, my jurisdiction is limited to the review of the record of an impartial hearing relating to the identification, evaluation or educational placement of a child with a disability, or the provision of a free appropriate public education (FAPE) to the child (20 U.S.C. § 1415; N.Y. Educ. Law § 4404).

        Respondent also claims that affording the student pendency protection is inconsistent with the IDEA’s statutory purpose and legislative intent. It argues that pendency protection is meaningful and necessary only in circumstances where a school district actually has the power to unilaterally change or alter an educational placement, and that it is virtually inapplicable to students who have been unilaterally placed in private schools by their parents. It contends that where a student has been unilaterally placed by her parents, there is nothing from which that student needs pendency protection. I find no support for this argument. There is no language in the pendency provisions of federal or state law excluding from pendency protection students who have been unilaterally placed in a private school by their parents. In fact, courts have consistently applied the pendency provision in such circumstances (See Zvi D.v. Ambach, 694 F.2d 904 [2d Cir. 1982]; Board of Educ. v. Schutz, 137 F. Supp. 2d 83 [N.D.N.Y. 2001]; Murphy v. Arlington Cent. Sch. Dist., 86 F. Supp. 2d 354 [S.D.N.Y. 2000]). As noted above, 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]). I find that neither the purpose of the pendency provision nor the purpose of the IDEA, which is to ensure that every child receive a FAPE, is advanced by requiring parents, who have succeeded in obtaining a ruling that a proposed IEP is inadequate, to front the funds for continued private education (Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78 [3d Cir. 1996]).

        I find that Gaynor is the child’s pendency placement, and that respondent is required to pay for the child’s tuition at Gaynor during the pendency of these proceedings. The IDEA provides, in relevant part, that during the pendency of any proceedings relating to the identification, evaluation or placement of the child, unless the state or local educational agency and the parent or guardian otherwise agree, the child shall remain in her then current educational placement (20 U.S.C. § 1415[j]). 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 (Drinker v. Colonial Sch. Dist., 78 F.3d 859 [3d Cir. 1996]; Zvi D., 694 F.2d 904). The purpose of the pendency or "stay-put" provision is to protect the student during a challenge to a change in the student’s placement (Murphy, 86 F. Supp. 2d 354, 357).

        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 a due process proceeding is commenced (Application of a Child with a Disability, Appeal No. 97-80). However, pursuant to 34 C.F.R. § 300.514(c) if the decision of the SRO agrees with the child’s parents that a change of placement is appropriate, such placement must be treated as an agreement between the state or local agency and the parents for the purposes of pendency (Schutz, 137 F. Supp. 2d 83).

        When this proceeding was commenced by petitioner’s request for a hearing in September 2000, the student’s last mutually agreed upon placement was in a resource room program at respondent’s P.S. 3. However, I subsequently determined in July 2001, before the hearing in this proceeding was held, that Gaynor had provided an appropriate program to the child for the 1999-2000 school year and that petitioner was entitled to tuition reimbursement for that year. Pursuant to 34 C.F.R. § 300.514(c), my decision becomes an agreement between the state and the parent concerning the child’s placement for purposes of the IDEA pendency provisions.

        As noted above, respondent commenced an action in November 2001 to review the decision in Appeal No. 00-043 in federal court. Consequently, no final determination on the merits has yet been made concerning the issues raised at the hearing for the 1999-2000 school year. However, the fact that the Board of Education has exercised its right to seek judicial review of my decision in Appeal No. 00-043 does not alter the automatic injunctive effect of that decision with respect to changing the child’s pendency placement. That effect is not limited solely to ongoing litigation with respect to the parent’s claim for tuition reimbursement for the 1999-2000 school year. It also applies during subsequent due process proceedings about the child’s education in succeeding school years, until a new placement is established by either an agreement of the parties, a determination by a SRO, or by a court (Murphy, 86 F. Supp. 2d at 368).

        Generally, a school district’s duty to pay for a child’s stay put costs begins on the date the SRO renders his decision (Murphy, 86 F. Supp. 2d at 366). The question that this appeal presents is what, if any, retroactive effect is to be given to the decision in Appeal No. 00-043, which was rendered after the 2000-01 school year had ended but before the due process hearing about that year was held. The IDEA pendency provisions are intended to provide stability in a student’s placement that the parties have agreed was appropriate or the SRO or a court has determined was appropriate, during the period when there are due process proceedings with respect to a different placement. In this instance, I have found that Gaynor was appropriate for this child during the 1999-2000 school year in determining that petitioner should receive tuition reimbursement for that school year. In the instant appeal, I am not asked to, nor do I make, any finding with respect to the appropriateness of Gaynor for the child during the 2000-01 school year. Instead, I find that Gaynor was the child’s pendency placement during the 2000-01 school year, and that respondent is consequently obliged to pay for the child’s tuition for that reason (Schutz, 137 F. Supp 2d 83, 91). Having found that Gaynor was the child’s pendency placement during the 2000-01 school year, I do not reach petitioner’s claim of alleged bias on the part of the hearing officer.

        Petitioner also asserts that the pending impartial hearing is moot. She argues that any decision regarding the appropriateness of respondent’s program for the 2000-01 school year could not and would not affect what respondent offered her daughter because that year is now over, and therefore there is no longer a justiciable issue for the hearing officer to consider. I disagree. Petitioner has challenged the 2000-01 IEP developed by respondent’s CSE, and as a remedy is seeking tuition reimbursement. The student’s pendency placement is an entirely independent determination based upon the last agreed upon placement and does not decide the issue of the appropriate placement for the 2000-01 school year (Murphy, 86 F. Supp. 2d at 357, 359, 361). Moreover, the question of the appropriateness of the child’s current educational placement and the tuition reimbursement implications thereof remain justiciable issues because they survive the natural expiration of the school year. I therefore find that my determination regarding the student's pendency placement does not render moot the issues concerning the appropriateness of the student’s placement for the 2000-01 school year.

        Finally, petitioner requests that I find that in the event she does not prevail in the pending impartial hearing, she is not liable for repayment of any tuition payments made by respondent as a result of my pendency determination. I find that it is premature to address this issue because petitioner’s request for tuition reimbursement has not yet been decided by the hearing officer.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that the Gaynor was the child’s pendency placement during the 2000-01 school year, and that respondent was financially responsible for her tuition at such school.