02-095

        Petitioners appeal from an impartial hearing officer's decision finding that the child's pendency placement was respondent's kindergarten program, as outlined in the child's 2000-01 individualized education program (IEP). The hearing officer also determined that petitioners were not entitled to compensatory education or reimbursement for the cost of providing home instruction to their son after they removed him from respondent's kindergarten on March 2, 2001. The hearing officer also determined that claims regarding their son's IEPs for the summer of 2000 and for the 2000-01 school year were barred by laches. The appeal must be sustained in part.

        The procedural posture of this case bears explanation. Petitioners requested a due process hearing on June 1, 2001, at the end of their son's kindergarten year, claiming that the school district violated his "pendency rights" by failing to place him in a program developed in June 2000 by the Committee on Preschool Special Education (CPSE) of the school district in which they had previously resided. In lieu of a hearing, however, the parties submitted to the hearing officer on May 10, 2002 a stipulation of facts and statement of the issues to be determined. The primary issues involved the child's pendency placement in connection with their dissatisfaction with respondent's 2000-01 IEP and program. Although the hearing officer did not designate her decision as an interim ruling on pendency, I will treat it as such and will review only her findings regarding pendency. As further discussed below, I will remand the case for a hearing on the merits of any claims that remain in dispute.

        Petitioners' son was six years old at the time of the stipulation on May 10, 2002. He was diagnosed autistic and has some aggressive behaviors, such as hitting, kicking, shoving and biting. The record also indicates that he has some difficulty with toileting and other activities of daily living, and needs assistance with fine motor activities, especially writing (Exhibit G). He was classified as autistic by respondent's Committee on Special Education (CSE) on September 26, 2000, and his classification is not in dispute (Exhibit J).

        The child's parents had moved into respondent's school district on or about June 22, 2000 from another public school district in the state where the child was classified by the CPSE as a preschool child with a disability (¶ 2).¹ They brought with them from the previous district an IEP dated June 8, 2000 that recommended 20 hours of 1:1 intensive home-based applied behavioral analysis (ABA) services per week, ten hours of parent training a month, occupational therapy (OT), physical therapy (PT), and speech-language therapy (SLT) (Exhibits C, D; ¶¶ 5, 6).

        Respondent's CPSE met on June 30, 2000 and classified the child as a preschool child with a disability. At the request of the child's parents, the CPSE placed the child for the summer of 2000 at the Crossroads Center for Children (Crossroads) (Exhibit D). The child attended Crossroads from July 10, 2000 through August 18, 2000 at the district's expense (Exhibit E; ¶ 7).

        Respondent's CSE met on three different dates to develop an IEP for the 2000-01 school year, the student's first year of eligibility for school-age programs. On August 22, 2000, an IEP was developed, but not finalized, because the CSE lacked necessary members (Exhibit F; ¶¶ 8, 9). At a second meeting on September 5, 2000, no formal action was taken because some of the required CSE members were absent again (¶ 9). On September 25, 2000, the parents sent a letter claiming that their son was sharing a classroom aide with another autistic child, which they viewed as inappropriate, and claiming the district was not providing enough ABA services. They also asserted that their son's IEP from the previous district was the student's pendency program in the absence of an agreed upon IEP to the contrary (Exhibit H).

        When the CSE met on September 26, 2000, it finalized the child's IEP. It classified the child as autistic and recommended a half-day in a regular kindergarten class and a half-day in a special education class with a student to staff ratio of 8:1+3, with OT twice a week, PT twice a week, SLT five times a week, and adaptive physical education (Exhibits I, J; ¶¶ 10, 13). At the meeting, the student's mother apparently disagreed with the CSE's recommendations and asked that respondent implement the "stay-put" IEP, referring to the IEP developed by the previous district's CPSE. The CSE chairperson explained to petitioners that if they disagreed with the proposed IEP, they could request an impartial hearing (¶ 14).

        A written copy of the IEP was mailed to the parents on January 29, 2001 (Exhibit J; ¶ 15). By letter dated February 16, 2001, the student's mother advised the district's director of pupil personnel services that she found the 2000-01 IEP inappropriate, because it did not provide a level of services comparable to that provided in the IEP from the previous district. She requested that her son be transferred to the morning kindergarten class with a 1:1 aide, with related services provided in school. In addition, she stated that, effective March 2, 2001, she would provide special education instruction to her son at home "per the stay-put IEP," and she requested compensatory education (Exhibit K; ¶¶ 16, 18). The district responded that the child's pendency placement was the kindergarten program outlined in the 2000-01 IEP, which the child had attended from September until March (Exhibit L).

        The CSE scheduled a meeting for March 26, 2001 to review the child's program, but the meeting was rescheduled, at the parents' request, to May 8, 2001, then postponed by the district to June 6, 2001 (Exhibits L, N; ¶ 19). On June 1, 2001, the parents requested an impartial hearing, claiming that their son's right to remain in his previous placement had been violated. They stated that they were seeking remedial and compensatory education, due to the district's alleged failure to properly implement their son's pendency program (Exhibit O; ¶ 20). The CSE meeting of June 6, 2001 was convened and then tabled (¶ 19), while the parties attempted to negotiate an agreement regarding the student's 2001 summer program (¶¶ 21-25).

        When an agreement could not be reached, the CSE met on July 6, 2001, and developed an IEP for the summer of 2001 that recommended a home-based ABA program plus a half-hour daily of SLT, and OT and PT twice a week each, with six hours of consultation with the parents' doctor (Exhibit R; ¶¶ 19, 23). Additional settlement discussions took place over the summer, during which the district offered to pay for the home-based program (¶¶ 21-23). The parents appear to have agreed to accept payment, but the parties never agreed on what the child's pendency placement was (Exhibit Q). Further, the parties disputed the extent to which the child actually received the recommended related services (¶ 23). Petitioners submitted a bill to respondent for their expenses in instituting their son's home-based program, and for services they claim to have provided to the child directly (Exhibit S; ¶ 25).

        The CSE convened again on August 20, 2001 and developed an IEP for the 2001-02 school year (Exhibit T; ¶ 26). On September 4, 2001, the mother informed the district that she would continue to educate her son at home, due to the district's failure to implement what she asserted to be her son's pendency placement and to provide an appropriate program. She stated that she wished to proceed with the impartial hearing, and that she disagreed with both the summer 2001 and the 2001-02 school year IEPs and sought reimbursement for her son's summer program (Exhibit U; ¶ 27). On October 4, 2001, the child's parents informed the district that they were moving from the district but still wished to proceed with the hearing (¶ 30; Exhibit W).

        After two hearing officers proved unable to serve, respondent appointed a new hearing officer on January 4, 2002 (¶¶ 28, 32-35). On May 20, 2002, the parties submitted to the hearing officer a stipulation of facts and statement of issues. The issues presented by the parties to the hearing officer, and reiterated by petitioners in this appeal are:

Pendency

1) When the child's family moved from the former district to respondent's district, what was the child's pendency placement as the term is defined under the Individuals with Disabilities Education Act (IDEA), applicable regulations and case law?

2) What obligation, if any, did the district have to maintain the child's "pendency placement" over the summer of 2000 and/or the fall of 2000?

Available Remedies

3) Assuming that the child's pendency rights were violated, what remedies, if any are available?

4) If the district failed either procedurally or substantively to provide the child with a free appropriate public education (FAPE) during the time he attended the district's program, what compensatory education, reimbursement, or other relief, if any, is available and proper under the IDEA?

Laches

5) Should any claims arising from events prior to June 1, 2001 be dismissed on the grounds of laches?

        In her September 4, 2002 decision, the hearing officer ruled that the student's pendency placement was the 2000-01 IEP developed by respondent's CSE for the child's kindergarten year, because it was the child's current placement and the parents had given tacit approval to the program when they allowed their son to attend that program from September 2000 until March 2001. The hearing officer declined to award compensatory education or reimbursement, because she found the child received appropriate services and made educational progress, and ruled that petitioners' claims regarding the summer 2000 IEP and the 2000-01 school year IEP were barred by laches, because the parents had been represented by competent counsel and received copies of their due process rights, yet waited too long to submit a hearing request.

        The parents contend in this appeal that the program to which their son was entitled pending the conclusion of administrative and judicial review proceedings was the program recommended by the CPSE of their son's prior school district, and that they are entitled to reimbursement and compensatory education because the summer 2000, 2000-01, and summer 2001 IEPs were inappropriate. They request that the State Review Officer (SRO) reverse the hearing officer's decision and remand the case for a hearing on the merits.

        The pendency provisions of the 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 administrative or judicial proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. § 1415[j]; N.Y. Educ. Law section 4404[4]). Although not defined by statue, 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 (Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 [S.D.N.Y. 2000], aff'd, 297 F. 3d 195; Board of Educ. v. Schutz, 290 F. 3d 476 [2d Cir. 2002], cert. denied 23 S. Ct. 1284 [2003]; Application of a Child with a Disability, Appeal No. 97-80). A child's "then current placement" would generally be taken to mean the "current special education and related services provided in accordance with a child's most recent [IEP]" (Letter to Baugh, EHLR 211:481).

        Pendency has the effect of an automatic injunction (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]; Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]). Its purpose is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]). The child need not remain in a particular site or at a particular grade level, but a similar program must be offered (Application of the Bd. of Educ. of the Monroe-Woodbury Cent. Sch. Dist., Appeal No. 99-090; Application of a Child with a Disability, Appeal No. 95-16).

        The pendency provision may be applied to a child who transitions from preschool to kindergarten (Application of a Child with a Disability, Appeal No. 01-023; Application of a Child with a Disability, Appeal No. 00-063; Application of a Disability, Appeal No. 01-003). If a child with a disability moves from one school district to another district within the same state, and the child's parents and the new school district are unable to agree upon an interim placement for the child, the new district must implement the child's old IEP "to the extent possible" until a new IEP is developed and implemented (Letter to Campbell, EHLR 213:265), provided the pendency issue is clearly presented and addressed at the hearing (Application of a Child with a Disability, Appeal No. 02-008).

        It is important to note that a pendency placement is not triggered until a party requests an impartial hearing (Bethlehem Cent. Sch. Dist. v. Doe, 961 F. Supp. 31 [N.D.N.Y. 1997]). In the instant case, although the parents expressed dissatisfaction with the kindergarten program in September 2000 and again in February 2001, they did not request a hearing until June 1, 2001. Thus, the child's proper pendency placement must be determined from the June 1, 2001 date. I must decide the most recently agreed upon placement when the parents requested due process on June 1, 2001, after unilaterally removing their son from respondent's kindergarten program in order to begin providing home instruction. While petitioners would argue that the program outlined by respondent's CSE in the 2000-01 IEP was not agreed upon, because they had expressed disagreement with the program from the beginning of the school year, I agree with the hearing officer that the parents gave approval to that placement by leaving him in the program until March 2001.

        Petitioners permitted their son to attend the kindergarten program recommended by the CSE for the 2000-01 school year until March 2001, and waited to request a hearing until June 1, 2001, despite being advised in September 2000 that they should request a hearing if they disagreed with the program. While the school district should have mailed the IEP to the parents at the beginning of the school year (20 U.S.C. §1414[d][2]; 34 C.F.R. § 300.342), rather than in January 2001, its delay does not alter the fact that the student attended the program recommended for him by the CSE from the beginning of the 2000-01 school year until March 2, 2001.² On the record presented, there is no basis to conclude that the child's pendency placement was the program developed a year earlier by the previous district's CPSE, as asserted by petitioners.

        A finding that the child's pendency placement on June 1, 2001 was the program developed by the previous district's CPSE, as asserted by petitioners, would be illogical. First, it would require the child to be placed in a program that was never implemented, because petitioners moved to another district a few days after agreeing to the IEP (Exhibits C, D; ¶¶ 2,5,6). Further, the child would have received instruction in two wholly different placements in the interim. Such a ruling would defeat the purpose of pendency provision, which is to maintain stability and consistency in a child's education (Honig v. Doe, 484 U.S. 305 [1987]). The hearing officer correctly concluded that the child's pendency placement as of the date the hearing was requested was the kindergarten program that respondent's CSE had outlined in the 2000-01 IEP.

        Since I have found that the child's pendency rights were not violated, I do not reach the question raised by the parties regarding the available remedies for a violation of pendency rights. The parties posed in their statement of the issues certain additional hypothetical questions. It is well settled that the SRO does not render advisory opinions (Application of a Child with a Disability, Appeal No. 00-013; Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 99-077; Application of a Child with a Disability, Appeal No. 96-37). I will therefore remand the case to the hearing officer for the purpose of taking testimony on the appropriateness of the 2000-01 educational program provided by respondent's CSE, if the parties have not otherwise settled those issues.³

        As to the appropriateness of the 2000 summer program, I find that, based on the record (Exhibit D), the child was placed in the program requested by his parents and the child received the services requested. I find that the child was not deprived of a FAPE in the summer 2000 program and petitioners are therefore not entitled to reimbursement, compensatory education or additional services.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision be annulled to the extent that it determined that reimbursement for the 2000-01 school year was not warranted because the child was offered an appropriate program and made adequate educational progress, and to the extent that it determined that petitioners' claim regarding the 2000-01 school year is barred by laches.