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Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Carmel Central School District


Barbara J. Ebenstein, Esq., attorney for petitioners

Raymond G. Kuntz, P.C., attorney for respondent, Wendy Klarfeld Brandenburg, Esq., of counsel


         Petitioners appeal pursuant to 8 NYCRR 279.8(c) from an impartial hearing officer’s interim decision determining their son’s pendency placement during this due process proceeding concerning the student’s educational program during the 2002-03 school year. The hearing officer found that the student’s pendency placement should be at respondent’s George Fischer Middle School in a program that is consistent with the provisions of the student’s individualized education program (IEP) dated March 20, 2001. Petitioners contend that the program should be provided to their son at respondent’s Kent Elementary School, which their son attended during the 2001-02 school year pursuant to that IEP. The appeal must be sustained.

        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. 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]). 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]).

        Petitioners’ son, who is ten years old, has been diagnosed as having a pervasive developmental disorder-not otherwise specified, microcephaly with static encephalopathy, and an attention deficit hyperactivity disorder. During the 2000-01 and 2001-02 school years, he was classified as other health impaired. Respondent’s Committee on Special Education (CSE) has proposed a classification of multiply disabled for the 2002-03 school year. There is no dispute that the student’s last agreed upon IEP was prepared on March 20, 2001 to be implemented during the 2001-02 school year (Exhibit D-21).

        The March 20, 2001 IEP indicated that the student would attend the Kent Elementary School for the fourth grade. The IEP description of the student’s proposed program indicated that he would receive "Consultant Teacher Direct 7.5 hours weekly", as well as 30 minutes of speech/language therapy in a group of five twice per week, 30 minutes of individual speech/language therapy once per week, 30 minutes of counseling in a group of five once per week, and 30 minutes of individual counseling once per week. Under the heading of "Extent of Non-participation in Regular Education", the IEP provided for "Special Education Full-time". The IEP also indicated on page 4, that a special education program with participation in regular education was considered but the student had not attained sufficient levels (of skills) to be placed in a less restrictive environment.

        I note that the term consultant teacher services is defined by the Regulations of the Commissioner of Education to mean "direct and/or indirect services…provided to a student with a disability who attends regular education classes and/or such student’s regular education teachers" (8 NYCRR 200.1[m]). Direct consultant teacher services are provided by a special education teacher to a student to aid the student to benefit from his or her regular education classes, while indirect services involve the consultant special education teacher working with the student’s regular education teachers.

        At a hearing held on July 2, 2002, the student’s special education teacher for the 2001-02 school year testified that petitioners’ son had in fact received primary special education instruction for reading, language arts, mathematics, science, and social studies in her class of 11 classified students, and had been mainstreamed in a regular education fourth grade class for 20 minutes at the beginning of each day, and for special subjects such as art, music and physical education, as well as for field trips, assemblies, lunch and recess. A teaching assistant to the special education teacher was with the student when he was in mainstreamed special subject classes, or was with his regular education peers for lunch and recess (Transcript pp. 37-40, 69). She further testified that petitioners were aware of the nature of their son’s educational program (Transcript pp. 41-42). The teacher of the fourth grade regular education class confirmed the special education teacher’s description of the student’s educational program during the 2001-02 school year (Transcript pp. 113-115). She also testified that petitioners were aware of the nature of their son’s program during the school year (Transcript p. 116). During his testimony, the student’s father indicated an awareness of the program that had been provided (Transcript pp. 132-133).

        For the 2002-03 school year, the CSE recommended that petitioners’ son be placed in a 12:1+1 special education class, except for mainstreaming in fifth grade special subjects and adaptive physical education, at the George Fischer Middle School. It also recommended that he be given essentially the same related services as he had received during the 2001-02 school year (Exhibit D-27). The CSE’s recommendation is the subject of the pending impartial hearing and is not reviewed in this decision.

        The discrepancy between the 2001-02 IEP description of the student’s special education program and his teachers’ description of the program that in fact had been provided to him during the 2001-02 school year requires me to determine which description should be used in defining his pendency placement. I find that the IEP description should not be used because to do so would be inconsistent with the purpose of the pendency provisions, which is to provide some stability in a student’s educational program during a due process proceeding. A program that was literally consistent with the IEP description of the student’s special education services would consist of full time placement in regular education classes with seven and one-half hours of consultant teacher services per week, which is substantially different from the program that was provided to him during 2001-02 school year. I find that the student’s pendency placement should consist of primary special education instruction for reading, language arts, mathematics, science, and social studies, and regular education instruction for art, music, and physical education.

        As the proponent for the student’s pendency placement in its George Fischer Middle School, respondent must demonstrate that the student would receive the same kind of special education program in that school as he received at the Kent Elementary School during the 2001-02 school year (Application of a Child with a Disability, Appeal No. 01-093). The student’s special education teacher during the 2001-02 school year and his regular education teacher for that school year testified that the proposed educational program at the middle school was comparable to that which had been provided to the student during the 2001-02 school year (Transcript pp. 88-90, 118). The hearing officer concurred with their opinion.

        Petitioners challenge the hearing officer’s conclusion that the program at the middle school would be comparable to the program proved at the elementary school. They assert that the student to adult ratio in the 12:1+1 class differs significantly from the student to adult ratio in their son’s special education class during the 2001-02 school year. There were 11 students in that class, and a total of five teaching assistants, plus the teacher. Three of the 11 students had individual teaching assistants, while the other two teaching assistants worked with other students. The student’s special education teacher testified that the largest instructional grouping in her class was 8:1+2, that is eight students, one teacher and two teaching assistants. I am compelled to concur with petitioners that the 12:1+1 student to adult ratio in the class proposed by respondent is significantly different from an 8:1+2 ratio. In reaching that conclusion, I have not determined what would be an appropriate student to adult ratio for this student during the 2002-03 school year.

        Since respondent has not suggested the availability of any alternative program at its middle school, I must find that it has not demonstrated that a pendency placement is available at that school. I am aware of the fact that the student’s chronological peers will be moving from the elementary to the middle school for the upcoming school year, and I urge the parties to see if they cannot arrive at a mutually satisfactory resolution of the matter.


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

IT IS FURTHER ORDERED that special education services shall be provided to the student in accordance with the tenor of this decision during the pendency of this due process proceeding.

Topical Index

CSE ProcessParent Participation
Implementation/Assigned SchoolGroupingFunctional
Parent Appeal
PendencyChange in Program/Ratio
Transportation Services