02-112

        Petitioner, the Board of Education of the Springville-Griffith Institute Central School District, appeals and respondent cross-appeals from the determination of an impartial hearing officer concerning the pendency placement of respondent’s son. The appeal must be sustained in part.

        By letter dated April 25, 2002, respondent’s husband requested that petitioner appoint an impartial hearing officer (IHO) to review the placement and program recommended for his son by petitioner’s Committee on Special Education (CSE) (Hearing 1). In a decision dated August 13, 2002, the IHO in that matter found the placement and program recommended by the CSE to be inappropriate, and he ordered the student to be placed in an inclusion class. By letter dated August 29, 2002, respondent requested a hearing (Hearing 2) to review the alleged failure of petitioner to implement the decision in Hearing 1. On September 14, 2002, petitioner commenced an appeal to the State Review Officer (SRO) from that decision.

        In a decision dated October 23, 2002 and amended November 1, 2002, the IHO in Hearing 2 declined to require immediate implementation of the decision in Hearing 1. Rather, he concluded that the status quo placement for respondent’s son pending a decision by the SRO in petitioner’s appeal from the decision in Hearing 1 was the special class in which the student had been placed at the time Hearing 1 was requested. This was the same class that the IHO in Hearing 1 had found to be inappropriate. The hearing officer in Hearing 2 went on to order that the student’s pendency placement would change to the placement ordered by the IHO in Hearing 1 if the SRO failed to issue a timely decision in the Hearing 1 appeal.

        Petitioner challenges the decision of the IHO in Hearing 2 insofar as he conditioned his decision concerning the student’s pendency placement on the issuance of a timely decision by the SRO. Additionally, petitioner seeks an order that the student’s pendency placement continues to be the program in which he was participating at the beginning of Hearing 1. In her cross-appeal, respondent challenges the decision in Hearing 2 insofar as the IHO determined that the student’s pendency placement was the special class which the IHO in Hearing 1 had found to be inappropriate.

        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 during the pendency of any proceedings relating to the identification, evaluation or placement of the child, unless the child’s parents and the board of education otherwise agree (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]).

        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 individualized education program (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]).

        In her cross-appeal, respondent contends that the hearing officer in Hearing 2 improperly determined that her son’s pendency placement was in the class he was attending at the time Hearing 1 was requested. She argues that petitioner failed to establish that the IEP being implemented at that time was the last agreed upon IEP, and she asserts that her husband "went to hearing repeatedly over the contents of this IEP during the 2001-02 school year" (Answer, paragraph 22).

        The issue raised in respondent’s cross-appeal is now moot. A decision has been rendered by the SRO on the board of education’s appeal from the determination in Hearing 1 (Application of the Board of Education of the Springville-Griffith Institute Central School District, Appeal No. 02-081). In that decision, I concluded that the placement recommended by the CSE was inappropriate because it was not in the least restrictive environment. I further found that the hearing officer in Hearing 1 did not exceed his jurisdiction in ordering petitioner to place respondent’s son in an inclusion class.

        34 C.F.R. § 300.514(c) provides:

If the decision of … 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 [establishing the child’s pendency placement].

        Because I agreed with the child’s parents in the appeal from Hearing 1 that a change of placement was appropriate and that the hearing officer in Hearing 1 did not exceed his jurisdiction in ordering that the student be placed in an inclusion class, the inclusion class became the student’s pendency placement. Accordingly, the parent’s cross-appeal in this appeal is moot as the portion of the pendency decision challenged by respondent has been superseded by the SRO’s decision in Appeal No. 02-081 (Application of the Irvington Union Free School District, Appeal No. 01-035). For the same reason, petitioner’s appeal is moot insofar as it requests a determination that the student’s pendency placement continues to be the placement in which he was enrolled at the time respondent’s husband requested Hearing 1.

        Petitioner challenges that part of the decision of the hearing officer in Hearing 2 which:

FURTHER ORDERED that, in the event that the Office of State Review fails to issue a timely decision of the appeal taken by the District from the [decision of the hearing officer in Hearing 1], the Pendency Placement of the Student shall be in a class operated by the District comprised of Special Education and Regular Education students, cooperatively taught by a Special Education and Regular Education teacher, and as such shall continue to be the Student’s Pendency Placement until the actual conclusion of administrative proceedings."

        Although boards of education and parents may agree on a pendency placement for a child (34 C.F.R. § 300.514[a]) and although a decision by the SRO which agrees with the parents that a change of placement is appropriate would change the child’s pendency placement (34 C.F.R. § 300.514[c]), there is no authority for a hearing officer to construe the timing of a decision by the SRO as affecting the pendency placement. In so doing, the hearing officer in Hearing 2 clearly exceeded his authority, and that portion of his decision must be annulled.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer be annulled insofar as it purported to change the pendency placement of respondent’s son based on the timing of a decision by the State Review Officer.