02-031

        Petitioners appeal from an impartial hearing officer’s decision holding that The Old Forge Center of Lynn University (Old Forge) did not constitute their child’s pendency placement during a proceeding concerning the student’s placement for the 2001-02 school year. The appeal must be dismissed.

        Petitioners’ son, who is 19 years old, has been classified as learning disabled. He is a resident of the Arlington Central School District (district). At the beginning of the 1999-2000 school year, petitioners placed their son in The Maplebrook School (Maplebrook), a private school that is not on the list of state-approved special education schools (Exhibits 6 and 37). In October 1999, petitioners requested an impartial hearing seeking an award of tuition reimbursement for the unilateral placement of their son in Maplebrook. Petitioners also sought compensatory education for the student.

        The hearing began in January 2000 and concluded in May 2000 (Exhibit A). On September 30, 2000, the hearing officer found that the individualized education program (IEP) that the district’s Committee on Special Education (CSE) had prepared for the 1999-2000 school year was appropriate, and she denied petitioners’ requests for tuition reimbursement and compensatory education (Exhibit A). Petitioners appealed from the hearing officer’s decision. On November 21, 2001, the hearing officer’s decision was annulled in part, and petitioners were awarded tuition reimbursement for the 1999-2000 school year at Maplebrook (Application of a Child with a Disability, Appeal No. 00-084). The district’s action to review that decision was dismissed by the U.S. District Court for the Southern District of New York on July 29, 2002.

        On August 31, 2000, the district’s CSE prepared the student’s IEP for the 2000-01 school year. Once again, petitioners rejected the IEP and opted to enroll their son in Maplebrook. Petitioners requested a hearing to challenge the appropriateness of their son’s IEP for the 2000-01 school year. In accordance with that request, the hearing began on March 7, 2001 and concluded on May 8, 2001. The hearing officer issued his decision on June 27, 2001. He concluded that the district had recommended an appropriate educational program for the student and denied petitioners’ request for tuition reimbursement. Petitioners’ appeal from the hearing officer’s decision was dismissed on June 20, 2002 (Application of a Child with a Disability, Appeal No. 01-062). Petitioners have commenced an action in the U.S. District Court for the Southern District of New York to review that decision.

        On August 10, 2001, the CSE developed the student’s IEP for the 2001-02 school year (Exhibit 6). In a letter dated September 5, 2001, petitioners requested an impartial hearing seeking reimbursement of tuition they had paid for placement of their son at Old Forge (Exhibit 5). They also enrolled their son in Old Forge. The impartial hearing pertaining to the 2001-02 school year began on January 16, 2002. On the first day of hearing, petitioners requested a ruling regarding their child’s pendency placement, asserting that Old Forge should be deemed to be their son’s pendency placement because their son’s program at Old Forge was allegedly similar to the program provided to him by Maplebrook. Respondent opposed petitioners’ request. In his interim decision dated February 8, 2002, the hearing officer found that the student’s placement at Old Forge was not essentially similar to his former placement at Maplebrook, and he denied petitioners’ request for a finding that Old Forge was the student’s pendency placement.

        This appeal is before me pursuant to 8 NYCRR 279.8(c), which authorizes me to review interim hearing officer decisions involving pendency placements. 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 agree to a different placement, 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 that 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]; Murphy v. Arlington CSD, 86 F. Supp. 2d 354, 357 [S.D. N.Y. 2000]). It does not mean that a student must remain in a particular site or location (Application of the Board of Educ., Appeal No. 99-90; Concerned Parents & Citizens for Continuing Educ. at Malcolm X v. Bd. of Educ., 629 F. 2d 751 [2d Cir. 1980]), 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]).

        Petitioners assert that Maplebrook became their son’s pendency placement by virtue of my decision awarding them tuition reimbursement for the 1999-2000 school year. They are correct in that assertion (34 C.F.R. § 300.514[c]; 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, and that it does not apply to subsequent school years. Respondent’s argument is without merit (Pawling CSD v. Schutz, 290 F. 3d 476 [2d Cir. 2002]). 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, 86 F. Supp. 2d at 368).

        Respondent argues that the student’s pendency placement was changed prior to the commencement of the 2001-02 school year by the June 27, 2001 hearing officer’s decision finding that the district had offered an appropriate educational program for the 2000-01 school year and denying petitioners’ request for tuition reimbursement. I cannot agree with respondent’s argument. In the absence of an agreement between the parties, pendency does not change until either the State Review Officer or a court agrees that the program offered by the district was appropriate for the student. I note that although I ultimately agreed with the hearing officer that respondent had offered an appropriate program for the 2000-01 school year, my determination was made in June 2002, which was after petitioners requested the hearing in this proceeding. Therefore, the student’s pendency placement had not changed.

        When petitioners requested the hearing in this proceeding on September 5, 2001, their son’s pendency placement pursuant to my decision in Application of a Child with a Disability, Appeal No. 00-084 was in Maplebrook. However, petitioners chose to enroll their son in Old Forge for the 2001-02 school year. They now ask that Old Forge be deemed to be their son’s pendency placement because its educational program is allegedly similar to the program the student received at Maplebrook. I find that petitioners bear the burden of proving that the educational programs of the two schools are substantially similar, because they have the ability to provide information about the schools’ programs.

        The record is very limited. I have considered the written description of Old Forge’s program annexed to the petition, as well as the testimony by the student’s mother. The written description indicates that Old Forge’s Enrichment Program, in which the student was reportedly enrolled (Transcript p. 55), is a holistic program for students with disabilities who receive instruction to strengthen their academic skills. The mother testified that the programs of the two schools were similar because they served students with disabilities in small classes, and they provided social/emotional support and vocational training (Transcript pp. 29, 32). I note that there is no information about Maplebrook’s program in the record, apart from the mother’s description.

        One obvious difference between the programs is that the student is enrolled in a residential program at Old Forge, while he was a day student at Maplebrook. At the hearing, the student’s mother described her son’s placement at Old Forge as the next step from Maplebrook because he needed to learn to do things like take his medication and take care of himself (Transcript pp. 38, 51). The student’s mother testified that at Old Forge, her son spent his mornings five days a week working in a local hardware store, with no job coach or school staff (Transcript p. 44). Maplebrook reportedly had an on-campus vocational program.

        Upon review of the record, I must agree with the hearing officer that Old Forge is not the student’s pendency placement.

THE APPEAL IS DISMISSED.