02-023

        Petitioners appeal pursuant to 8 NYCRR 279.8(c) from an impartial hearing officer’s interim decision determining the student’s pendency placement during this due process proceeding. The hearing officer found that the issue of the student’s pendency placement for the 2000-01 school year was moot, and declined to determine the student’s pendency placement for the 2001-02 school year. Petitioners request that the Kildonan School (Kildonan) be declared to be their son’s pendency placement from the 2000-01 school year through the duration of this proceeding, and that respondent be required to pay for the placement. The appeal must be sustained in part.

        Petitioners’ son, who was 16 years old at the time of this hearing, has been diagnosed with dyslexia and classified as learning disabled. The student was enrolled in public schools with special services from grades kindergarten through the beginning of sixth grade. In sixth grade he began to have increasing academic difficulties, so his parents had him evaluated by a private neuropsychologist, who diagnosed him with dyslexia and recommended that he needed to be enrolled in a private school that uses the Orton-Gillian approach to teaching dyslexics. In December 1998 petitioner and his family moved to the Arlington Central School District (district). On January 8, 1999, petitioners enrolled their son in Kildonan, a private school specializing in teaching children with dyslexia. Kildonan is not on the list of state-approved special education schools. On January 12, 1999, petitioners notified the district of their recent residence change and referred their son to the district’s Committee on Special Education (CSE).

        On June 21, 1999 the CSE developed an individualized educational plan (IEP) for the child for the 1999-2000 school year which recommended placement in the public school system in special education classes for most of the school day. On August 28, 1999, petitioners objected to the IEP, and notified the district of their intention to re-enroll their son at Kildonan for the 1999-2000 school year, and requested an impartial hearing seeking tuition reimbursement for that year.

        During the proceedings on the 1999-2000 claim, petitioners continued to enroll their son at Kildonan for the 2000-01 and 2001-02 school years. Prior to each school year they sent a letter to the district objecting to the 2000-01 and 2001-02 IEPs as inappropriate for essentially the same reasons (Exhibit PA, PB). In both letters, petitioners notified the district that they would be placing their son in Kildonan and seeking tuition reimbursement, and "reserve[d] the right" to request an impartial hearing on both IEPs, pending the final State Review Officer’s decision on the 1999-2000 claim (Exhibits PA, PB).

        The hearing officer ultimately found that the district’s IEP for the 1999-2000 school year was appropriate and denied reimbursement. Petitioners appealed from his decision. On November 15, 2001, I annulled the hearing officer’s decision upon finding that the district’s IEP was not appropriate on procedural grounds, and that Kildonan’s program was appropriate. The district was ordered to reimburse petitioners for the 1999-2000 school year. The school district sought judicial review of my decision. On November 14, 2002, the U.S. District Court for the Southern District of New York sustained my decision and upheld the award of tuition for the 1999-2000 school year (Arlington Cent.Sch.Dist. v D.K. and K.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]). There is no evidence in the record of any further appeal on the 1999-2000 claim.

        Three days after my decision was rendered, on November 18, 2001, petitioners formally requested a hearing on both the 2000-01 and 2001-02 IEPs (Exhibit PD). The new hearing convened on January 18, 2002, whereupon petitioners immediately asked the hearing officer for an interim ruling declaring Kildonan the child’s pendency placement from the 2000-01 school year through the duration of this proceeding, and requiring the district to pay tuition costs for that same time period. In his interim decision on February 1, 2002, the hearing officer found that, since the 2000-01 school year was over, the question of pendency for that school year was moot, and that he had no jurisdiction over petitioners’ claim for tuition reimbursement for the completed school year of 2000-01. In addition, he declined to reach the issue of the child’s pendency placement for the current 2001-02 school year, stating simply that the parents’ claims relating to the IEP for the 2001-2002 school year would be determined upon a complete record.

        Petitioners seek a determination that Kildonan is their son’s pendency placement during this proceeding, requiring the district to pay for his placement from August 28, 2000, through the pendency of this proceeding. Respondent claims that the petitioners’ request concerning the student’s placement for the 2000-01 school year is barred by laches, and that Kildonan is not the student’s pendency placement for purposes of the current proceeding involving the 2001-02 school year.

        Initially, I must note that my jurisdiction to review the hearing officer’s interim decision is limited to the issue of pendency. The question of whether petitioners’ request for tuition reimbursement for the 2000-2001 school year is barred by laches is not properly before me at this time. Laches is an equitable doctrine that may be considered in determining whether equitable considerations support petitioners’ claim for an award of tuition reimbursement (Application of a Child with a Disability, Appeal No. 95-28).

        I find that the hearing officer erred in finding that, because the school year had ended, that the child’s placement in the 2000-01 school year was moot. The mootness doctrine requires that an actual controversy exist at all stages of litigation (Bd. of Educ. of Pawling Cent. Sch. Dist. v Schutz, 290 F.3d 476 [2nd Cir. 2002]). The end of the school year for which an IEP was intended does not necessarily render moot a challenge to that IEP, where the conduct complained of is capable of repetition (De Vries v. Spillane, 853 F. 2d 264 [4th Cir. 1988]; Daniel R. v. E. Paso Indep. School Dist., 874 F. 2d 1036 [5th Cir. 1989]), or there is a continuing controversy between the parties (Application of a Child with a Disability, Appeal No. 95-78; Application of a Child with a Disability, Appeal No. 94-23; Application of a Child with a Disability, Appeal No. 94-21).

        Even though the 2000-01 school year is over, the parties are still in disagreement over who was responsible for the child’s tuition costs at Kildonan for that year. The question of the child’s pendency placement for 2000-01 school year is still relevant to the unresolved issue of tuition reimbursement for that year, which in turn is relevant to whether or not the district provided an appropriate IEP for the 2000-2001 school year (Zvi D. v Ambach, 694 F.2d 904 [2nd Cir. 1982]). Petitioners have a continuing interest in obtaining a pendency determination to obtain tuition costs for the 2000-01 school year. In turn, respondent has a continuing interest in establishing that it offered an appropriate program for petitioners’ child because a favorable determination for the district would alter the student’s pendency placement in future proceedings (Application of a Child with a Disability, Appeal No. 01-088). Those questions should be resolved, even though the school year has ended (Application of a Child with a Disability, Appeal No. 95-78). Therefore, I find that petitioners’ claims involving the 2000-01 school year are not moot, and that petitioners have a right to insist that their claim for a pendency determination for the 2000-01 school year be heard on the merits (Application of a Child with a Disability, Appeal No. 01-088).

        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 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, 694 F.2d 904; Drinker v. Colonial School Dist., 78 F.3d 859 [3rd 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]). It does not mean that a student must remain in a particular site or location (Application of the Bd. of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16).

        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]). But where there is an agreement, there is no need to undertake the IEP analysis designed to identify the pendant placement (Schultz, 290 F.3d 476; Susquenita, 96 F.3d 78). The relevant federal and state regulations on pendency specify that "[i]f the decision of a hearing officer in a due process hearing conducted by the SEA or a 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 pendency (34 C.F.R. § 300.514[c]; 8 NYCRR 200.5[l][2]).

        Petitioners assert that Kildonan became their son’s pendency placement by virtue of my decision awarding them tuition reimbursement for the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 00-075). They are correct in that assertion (34 C.F.R. § 300.514[c]; Murphy v Arlington Cent. Sch. Dist., 297 F.3d 195 [2nd Cir. 2002]; Schulz, 290 F.3d 476; Susquenita, 96 F.3d 78; Application of a Child with a Disability, Appeal No. 01-088; Application of a Child with a Disability, Appeal No. 99-100). Respondent argues that pendency attaches only with respect to subsequent litigation related to the 1999-2000 school year. Respondent’s argument is without merit. The student’s pendency placement cannot change until a new placement is established either by an agreement of the parties, a determination by the State Review Officer, or a determination by a court (Murphy, 297 F.3d 195; Schutz, 290 F.3d 476; 34 C.F.R. § 300.514[c]).

        When petitioners formally requested the hearing in this proceeding on November 18, 2001, their son’s pendency placement pursuant to my decision in Application of a Child with a Disability, Appeal No. 00-075, was in Kildonan. There has been no change in placement via an agreement of the parties, a new determination by the State Review Officer, or a determination of a court. Therefore, the student’s "then current placement" at the initiation of these proceedings, was and still is Kildonan (Murphy, 297 F.3d 195; Schutz, 290 F.3d 476; Application of a Child with a Disability, Appeal No. 01-088; Application of a Child with a Disability, Appeal No. 01-013). Since Kildonan is the student’s pendency placement, respondent is required to pay for it (Schutz, 290 F.3d 476; Susquenita, 96 F.3d 78; Zvi D., 694 F.2d 904).

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that the student’s pendency placement is determined to be at Kildonan from November 18, 2000 through the duration of this proceeding, unless there is a change in placement by an agreement of the parties, an administrative decision, or a determination of a court.