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Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Hon. Michael Cardozo, Corporation Counsel, attorney for petitioner, Chad Vignola, Esq., and Steven Goldstein, Esq., of counsel

Mayerson & Associates, attorneys for respondents, Gary S. Mayerson, Esq., and Christina D. Thivierge, Esq., of counsel


      Petitioner, the Board of Education of the City School District of the City of New York, appeals, pursuant to section 279.8(c) of the Regulations of the Commissioner of Education, from an impartial hearing officer's interim decision determining the respondents' daughter's pendency placement. The hearing officer found that the child's pendency placement was the placement specified in a prior unappealed hearing officer's decision. The appeal must be dismissed.

        Respondents' child was six years old at the time of the hearing, diagnosed with autism spectrum disorder, and classified as other health impaired. Her classification is not in dispute.

        Respondents initially referred their daughter to petitioner's Committee on Preschool Special Education (CPSE), and on August 20, 2001 the CPSE developed an individual education program (IEP) for the child for the 2001-02 school year (Exhibit H). The IEP recommended a program of 45 hours per week of 1:1 special education itinerant teacher (SEIT) services, and related services consisting of two 60-minute sessions per week of individual occupational therapy, two 60-minute sessions per week of 1:2 occupational therapy, two 60-minute sessions per week of individual physical therapy, and five 60-minute sessions per week of individual speech/language therapy (Exhibit H).

        Petitioner designated a specific facility to provide the 1:2 sensory integration component of the occupational therapy (01/09/03 Transcript p. 19). Because that program had no available time slot, the child did not receive these services (01/09/03 Transcript p. 24). Petitioner specified a provider for the child's individual occupational therapy (01/09/03 Transcript pp. 19-20), but did not specify and never obtained providers for the child's physical therapy or speech/language therapy (Exhibit H; 01/09/03 Transcript pp. 20, 22). The parents obtained the services of a physical therapist, who was paid by petitioner (01/09/03 Transcript pp. 20-21, 29-30). The parents also were able to obtain a speech therapist, but not for the full schedule specified in their daughter's IEP (01/09/03 Transcript p. 29).

        Because the CPSE found that the child was medically fragile, it determined that the 45 hours of SEIT services were to be provided in the child's home (Exhibit H). The IEP specified that the SEIT was to use the Discrete Trial Training (DTT) form of the applied behavioral analysis (ABA) methodology (Exhibit H). Petitioner recommended that Thera-Care provide the supervision and therapists for the ABA DTT services (01/09/03 Transcript pp. 14, 25). The parents investigated Thera-Care, but found that it used a methodology that had reportedly led to serious regressions for the child in the past (01/09/03 Transcript pp. 26-28, 33-34). Accordingly, they continued to obtain these services from their child's existing provider, the Lovaas Institute for Early Intervention (LIFE) (01/09/03 Transcript pp. 22-23). Respondents maintained that, due to the nature of the child's disability and her need for consistency, any change in the child's services would have a deleterious effect on her (01/09/03 Transcript pp. 26-28, 34; 12/13/02 Transcript p. 49).

        In September 2001 respondents requested an immediate impartial hearing (Hearing 1) seeking reimbursement from petitioner for the services that they had personally obtained to implement the 2001-02 IEP, including the SEIT services provided by LIFE. On January 15, 2002 a hearing officer rendered a decision finding that the program and related services contained in the IEP were appropriate, and that the parents had not shown that Thera-Care was an inappropriate provider of ABA services. However, she also found that, due to the nature of the child's autism, consistency and continuity were to be "heavily weighed," and determined that the parents had proven that LIFE was an appropriate provider of ABA services to meet the child's needs. The hearing officer ordered the current LIFE ABA program to continue until August 31, 2002, and ordered petitioner to reimburse respondents for these services, as well as for the other services obtained by the parents to implement the IEP (Exhibit C). Neither petitioner nor respondents appealed from the hearing officer's decision.

        On July 15, 2002 petitioner's Committee on Special Education (CSE) convened to determine the child's IEP for the 2002-03 school year. The CSE recommended that the child be placed in a 6:1:1 special class in a specialized school, with a full time aide, and the related services of individual speech/language therapy for three 30-minute sessions per week, individual physical therapy for three 30-minute sessions per week, and individual occupational therapy for five 30-minute sessions per week. The services were to be provided at petitioner's Public School 138 located at Public School 15 (Exhibits G, 1).

        The parents rejected the 2002-03 IEP, and on August 29, 2002 requested another impartial hearing (Hearing 2), claiming that the 2002-03 IEP was inappropriate and that petitioner had committed several procedural and substantive violations that denied their child a free appropriate public education (FAPE). The parents also requested an interim ruling declaring that the services and providers as ordered by the hearing officer in Hearing 1 constituted the child's pendency placement during the course of the current proceedings (Exhibit A). The hearing officer granted the parents' request, and found the program and related services ordered in Hearing 1 to be the child's pendency placement for the current proceedings. Petitioner now appeals.

        The pendency provisions of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law require that "during the pendency of any proceedings [relating to the identification, evaluation or placement of a child with a disability], unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child . . .until all such proceedings have been completed" (20 U.S.C. § 1415[j]; see, 34 C.F.R. § 300.514[a]; Education Law § 4404[4]; 8 NYCRR 200.5[l][1]). 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 (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980], cert. denied 449 U.S. 1078 [1981]; 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 at the initiation of the proceedings (Zvi D., 694 F.2d at 906). Although not defined by statute or legislative history (id. at n.5; seeBoard of Educ. of Pawling Cent. Sch. Dist. v Schutz, 290 F.3d 476, 482 [2d Cir. 2002], cert. denied 123 S.Ct. 1284 [2003]), 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 alsoDrinker, 78 F.3d at 867; Gregory K. v. Longview School Dist., 811 F.2d 1307 [9th Cir. 1987]).

        In the event there is a dispute relating to the development, content, or implementation of a student's IEP, a hearing officer has the authority to determine the disputed issues (20 U.S.C. § 1415[f][1]; 34 C.F.R. § 300.507[a][1]; 8 NYCRR 200.5[i][1]). If the hearing officer's decision is not appealed, it becomes a final and binding order and must be implemented (20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][ii]; Application of a Child with a Disability, Appeal No. 00-011; Application of a Child with a Disability, Appeal No. 98-35). It is the effect of these provisions which is at the core of the dispute in this appeal.

        In the instant case, the child's most recent IEP prior to the one challenged in Hearing 2 was the 2001-02 IEP. That IEP was subsequently modified by the hearing officer's order in Hearing 1 which found the IEP to be appropriate but ordered LIFE to be the SEIT service provider for the child (Exhibit C). That order was never appealed, and after 40 days became a final decision establishing the child's placement (8 NYCRR 279.2[b]; see, 20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][ii]; Application of a Child with a Disability, Appeal No. 00-011; Application of a Child with a Disability, Appeal No. 98-35). Absent evidence of any subsequent agreement by the parties or appeal of that decision, I find that on August 29, 2002, when the parents initiated Hearing 2 challenging the 2002-03 IEP, the student's pendency placement was the educational program ordered in Hearing 1 (seeSchutz, 290 F.3d 476, 484 [2d Cir. 2002] [placement can be changed by agreement of the parties, by a court, or by an administrative decision which is not appealed]; Board of Educ. of Pine Plains Cent. Sch. Dist. v. Engwiller, 170 F. Supp. 2d 410, 415 [S.D.N.Y. 2001] [same]; Murphy, 86 F.Supp.2d 354, at 366 [S.D.N.Y. 2001][same], aff'd 297 F.3d 195).

        Petitioner mistakenly attempts to rely on 34 C.F.R. § 300.514(c) to argue that in a two-tiered administrative review state like New York, a change in a student's pendency placement can only occur as a result of a decision by a state review officer, and that a hearing officer's decision is only effective in altering the status quo in single-tiered states. Petitioner's argument misconstrues the circumstances of this case. Pursuant to 34 C.F.R. § 300.514(c), the decision of a state level review officer supporting a parent's position that a change of placement is appropriate constitutes an agreement which effectuates a change of the student's pendency placement, notwithstanding the commencement of judicial review. However, once the administrative and judicial review process is complete, the final decision in that process, be it the decision of an impartial hearing officer, a state review officer, or a judge, becomes the student's current placement. Here, the hearing officer's decision in Hearing 1 was never appealed; hence, it became final, and, as such, constituted the student's then-current placement when respondent commenced the present proceedings.

        To read 34 C.F.R. § 300.514(c) the way petitioner suggests, i.e., that a final hearing officer's decision in a two-tiered state could never change a child's pendency placement, would lead to the absurd result of forcing parents to attempt to appeal from all hearing officer's decisions which determined their child's placement in their favor in order to formally establish the child's placement for pendency purposes in any future years. This is clearly not what the legislature intended. Indeed, as the Engwiller court found, "[the] suggestion that a hearing officer's or SRO's final determination of the appropriate placement for year one does not become the pendent placement for year two stands the concept of pendency on its head and finds no support whatsoever in the law, the regulations, or the cases interpreting them" (Engwiller, 170 F.Supp.2d at 417).

        For the foregoing reasons I find that the child's pendency placement for the duration of these proceedings is the educational program as detailed in the prior hearing officer's final unappealed January 15, 2002 decision in Hearing 1. Since LIFE is the child's ABA provider for the child's pendency placement, petitioner is required to pay for those services and all others services contained in that order during the pendency of these proceedings (Schutz, 290 F.3d 476; Susquenita, 96 F.3d 78; Zvi D., 694 F.2d 904).


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