03-022

       Petitioner, the Board of Education of the Pawling Central School District, appeals, pursuant to section 279.8(c) of the Regulations of the Commissioner of Education, from an impartial hearing officer's interim decision determining respondents' son's pendency placement for the 2000-01 school year. The hearing officer found that the student's pendency placement was at the Kildonan School (Kildonan). The appeal must be sustained.

        Initially, I must note that my jurisdiction to review the hearing officer's interim decision is limited to pendency determinations only (8 NYCRR 279.8[c]). The question of whether tuition reimbursement for the 2000-01 school year is appropriate based on the substantive merits of the individualized educational program (IEP) as recommended by petitioner's Committee on Special Education (CSE) or the timeliness of the request for a hearing for that year is not properly before me at this time (see, e.g., Application of a Child with a Disability, Appeal No. 02-023; Application of a Child with a Disability, Appeal No. 00-073).

        As a procedural issue, petitioner first requests that I consider a document submitted after respondents' answer, as a late amendment to their petition. Petitioner claims that the version of the student's 2000-01 IEP dated June 20, 2000 which was attached to its original petition as Exhibit C was not the final version of the IEP, and asks that I accept their submission of the subsequent version of the student's 2000-01 IEP dated August 31, 2000. It is well established that documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable me to render a decision (Application of the Bd. of Educ., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 98-55; Application of a Handicapped Child, 23 Ed. Dept. Rep. 390). It is unclear whether or not the hearing officer had the August 31, 2000 version of the student's IEP. To the extent that the document will assist me in rendering my decision, I will accept petitioner's late submission of the August 31, 2000 IEP, hereinafter referred to as "Exhibit K."

        Respondents' son was 14 years old at the time of the hearing and attending eighth grade at Oakwood Friends School (Oakwood), a private school, where his parents had unilaterally placed him.

        A full recitation of the educational history of the student is set forth in a prior decision (Application of a Child with a Disability, Appeal No. 01-057). Briefly, from kindergarten through fourth grade respondents' son attended classes in the Pawling Central School District (district) in a regular education program with various support services. During fourth grade the student manifested various vision, attention, language and cognitive difficulties. On March 23, 1999, the student was referred to petitioner's CSE, which classified the student as learning disabled and recommended continued placement in the public school system with group counseling, resource room services, and various aids and testing modifications. Respondents continued to enroll their son in the public school placement offered by the district through May 1999 (Respondents' Answer, paragraph 3) when, as a result of an incident that occurred on April 30, 1999, the school principal placed the student on home instruction for the remainder of the fourth grade.

        The CSE reconvened on August 10, 1999 and recommended that the student be reclassified as emotionally disabled and be placed in a special class operated by the Duchess County Board of Cooperative Educational Services (BOCES) with various supplemental services and aids similar to those recommended in the March 1999 IEP (Exhibit B). The parents objected to the 1999-2000 IEP, rejecting both the student's reclassification and his placement at BOCES, informed petitioner that they would be enrolling their son at Kildonan for the 1999-2000 school year, and requested an impartial hearing and tuition reimbursement. Kildonan is a private school that provides instruction to students with language-related learning disabilities.

        The hearing on the recommended program for the 1999-2000 school year (Hearing 1) began on November 15, 1999, and testimony concluded 17 months later on April 2, 2001. During the course of that hearing, the CSE met to develop the student's IEP for the 2000-01 school year. The final IEP was developed on August 31, 2000, wherein the CSE again classified the student as emotionally disabled but changed the recommended placement to a special class at Bishop Dunn School for all subjects except science, physical education, and specials (Exhibit K). The testing and program modifications were essentially the same as those recommended in the 1999-2000 IEP, except that a multisensory approach to instruction was specified (id.). The student's counseling sessions remained the same, but speech/language therapy and an individual aide were added. By letter dated September 11, 2000, respondents rejected the 2000-01 IEP on the basis of classification and appropriateness of placement, and notified the district that they would be placing their son at Kildonan for the 2000-01 school year and seeking tuition reimbursement (Exhibit D). However, the letter made no specific request for an impartial hearing.

        On September 21, 2000, the district requested that the hearing officer in Hearing 1 consolidate a possible challenge to the 2000-01 IEP with the 1999-2000 claim. The hearing officer denied the request as premature. On the final day of Hearing 1, April 2, 2001, the district renewed its request for consolidation. The parents objected. The hearing officer asked if the 2000-01 IEP had been challenged, to which the board's attorney responded in the negative (Application of a Child with a Disability, Appeal No. 01-057). After the conclusion of Hearing 1, the parents reminded the district by letter dated April 12, 2001 of their objection to the 2000-01 IEP and explicitly asked for a due process hearing concerning that school year (Exhibit G). It is not clear if that letter was included as part of the record before the hearing officer in Hearing 1. The hearing officer rendered his decision on June 15, 2001, which determined that the district had offered an appropriate program and denied tuition reimbursement for the 1999-2000 school year. The hearing officer also granted the district's request to extend the hearing to consolidate the parents' claim for reimbursement for the intervening 2000-01 school year. On July 17, 2001 the parents appealed the denial of tuition reimbursement for the 1999-2000 school year and the consolidation order to the State Review Officer (SRO) (Application of a Child with a Disability, Appeal No. 01-057).

        While the appeal to the SRO was pending, the hearing on the 2000-01 claim, over which the hearing officer had assumed jurisdiction, commenced on December 3, 2001 (Hearing 2). However, before the hearing officer rendered a decision on that claim, the SRO, on May 23, 2002, sustained the parents' appeal and awarded them tuition reimbursement for the 1999-2000 school year, finding that the district's placement for that year was not appropriate and that the Kildonan program for that year was appropriate (Application of a Child with a Disability, Appeal No. 01-057). In addition, the SRO annulled the consolidation order, finding that there was no specific and clear statement at the time of the hearing officer's consolidation decision that there was another pending proceeding relating to the same student. The SRO's conclusion was based on the statement by the board's attorney on the last day of Hearing 1 that the parents had not challenged the 2000-01 IEP (id.). The SRO found that where there is no second pending proceeding during a hearing, a consolidation request actually constitutes a request for the hearing officer to retain jurisdiction over a subsequent proceeding (id.). Any request to retain jurisdiction, however, requires the consent of both parties (Application of the Bd. of Educ., Appeal No. 99-77; Application of a Child with a Disability, Appeal No. 96-45). Since in this case the parents had objected to the "consolidation" of the 2000-01 claim with the 1999-2000 hearing, and since the SRO found there was no clear and specific information in the record at the time the hearing officer made his decision that the parents had in fact commenced another due process challenge, the hearing officer erred in considering any claim concerning the 2000-01 school year.

        On September 24, 2002, the district filed an Article 78 proceeding seeking review of the SRO's May 23, 2002 decision concerning tuition reimbursement for the 1999-2000 school year and the annulment of the consolidation order. On April 28, 2003 the New York State Supreme Court upheld the SRO's decision and dismissed the proceeding (Bd. of Educ. of the Pawling Cent. Sch. Dist. v. New York State Educ. Dept., Index No. 6465-02 [Sup. Ct. Alb. Co. 4/28/03]). Concerning the consolidation order, the court noted that "[b]y stipulation entered into between the parties, the parents have withdrawn their request for a hearing with respect to the 2000-01 school year. As such the issue has been rendered moot" (id. at 18).

        During the course of Hearing 1, Hearing 2, and the appeal from Hearing 1, the CSE continued to develop IEPs for the student for the 2001-02 and the 2002-03 school years. After each of these IEPs was developed, the parents filed timely requests for hearings and enrolled their son for those two years in another private school, Oakwood, requesting tuition reimbursement (Exhibits H, I). The parties agreed to postpone the hearings on those two years until receipt of the SRO's decision concerning the 1999-2000 claim. On December 4, 2002, the hearing for the 2001-02 and 2002-03 school years began (Hearing 3). On the first day, respondents raised the issue of the 2000-01 claim, and petitioner and respondents reached an agreement to limit the parents' claim to recover their expenses for the 2000-01 school year to the sole issue of the student's pendency placement during that year and asked the hearing officer for an interim ruling (Transcript p. 8; Respondents' Brief, para. 19). The parties stipulated that there would be no hearing on the merits regarding the appropriateness of the 2000-01 IEP (Transcript p. 7). On January 3, 2003, the hearing officer rendered a decision, which determined that the child's pendency placement during the 2000-01 school year was at Kildonan. The hearing officer based his decision on the SRO's decision rendered May 23, 2002, which awarded respondents tuition reimbursement for the student's placement at Kildonan for the 1999-2000 school year. The hearing officer concluded that the SRO's decision rendered Kildonan the student's pendency placement for the 2000-01 school year, unless the parties agreed otherwise, and that the parents' letter of September 11, 2000 was sufficient to show that they did not agree to the district's 2000-01 placement. Petitioner now appeals that pendency determination.

        The pendency provisions of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; 34 C.F.R. § 300.514; Education Law § 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 (Drinker v. Colonial Sch. Dist., 78 F.3d 859 [3d Cir. 1996]; Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]). The purpose of the pendency provision is to provide stability and consistency in the education of a student 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 student's then current educational placement (Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "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. of Arlington Cent. Sch. Dist., 86 F.Supp.2d 354, 359 [S.D.N.Y. 2000] affd 297 F.3d 195 [2002]; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073). It may or may not turn out to be the same placement that is determined to be the appropriate educational placement for the child after the conclusion of a hearing on the merits of the recommended program for that year. 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, Susquenita, 96 F.3d at 83 [3d Cir. 1996]; Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990]; Drinker, 78 F.3d at 867 [last functioning IEP]; Gregory K. v. Longview Sch. Dist., 811 F.2d 1307 [9th Cir. 1987]). Therefore, the pendency placement is usually the last unchallenged IEP. However, if there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new IEP, and it can supercede the prior unchallenged IEP as the then current placement (Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F.Supp. 1184, at 1189, fn. 3 [S.D.N.Y. 1996]; see, Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 137 F.Supp.2d 83 [N.D.N.Y. 2001] affd, 290 F.3d 476, 484 [2d Cir. 2002] cert. denied 123 S.Ct. 1284 [2003]). In addition, the relevant federal and state regulations on pendency provide that, "[i]f the decision of a hearing officer in a due process hearing conducted by the SEA or 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 of pendency (34 C.F.R. § 300.514[c]; 8 NYCRR 200.5[l][2]). Once pendency placement has been established, it can only be changed by an agreement of the parties, an impartial hearing officer's decision which is not appealed, a decision by an SRO which agrees with the child's parents, or a determination by a court (Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 484 [2d Cir. 2002] cert. denied 123 S.Ct. 1284 [2003]; Murphy, 86 F.Supp.2d at 366; Bd. of Educ. of Pine Plains Cent. Sch. Dist. v. Engwiller, 170 F.Supp.2d 410, 415 [S.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-019; Application of a Child with a Disability, Appeal No. 02-002; Application of a Child with a Disability, Appeal No. 01-088).

        In the instant case, on November 15, 1999, at the beginning of Hearing 1 regarding the 1999-2000 school year, the last placement agreed upon for the student by both the respondents and petitioner was the public school placement offered by the district that the student had been attending until May 1999 (Answer, paragraph 3). During the 1999-2000 school year and in the following 2000-01 school year, while Hearing 1 was still ongoing, there was no subsequent agreement between the parents and the district on a new IEP or placement for the student; in fact, the parents also rejected the 2000-01 IEP by letters dated September 11, 2000 and April 12, 2001 (Exhibits D, G). Absent evidence of any subsequent agreement by the parties to change the student's placement during the time of Hearing 1, I find that the student’s pendency placement for the 2000-01 school year was the educational program which placed the student in petitioner's public school system until May 1999.

        It is well established that parents who "unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk" (Burlington Sch. Comm. v. Dep't. of Educ., 471 U.S. 359, 373-374 [1985]; Schutz, 290 F.3d at 481; Murphy, 86 F.Supp.2d at 357). If ultimately successful in the review proceedings on the merits, they may recover tuition expenses retroactively for the year(s) challenged in the proceedings (Burlington, 471 U.S. at 370-371; Schutz, 290 F.3d at 481; Murphy, 86 F.Supp.2d at 357-358; see, 20 U.S.C. § 1412[a][10][C][ii]). The student's placement status during the interim years, however, can only be changed by an agreement of the parties, a decision of an impartial hearing officer which is not appealed, a decision by an SRO agreeing with the parents, or a determination by a court (Schutz, 290 F.3d at 484; Murphy, 86 F.Supp.2d at 366; Engwiller, 170 F.Supp.2d at 415; Application of a Child with a Disability, Appeal No. 03-019; Application of a Child with a Disability, Appeal No. 01-088). In the instant case, it is the parents who contravened the command of 20 U.S.C. § 1415(j) that unless the parties agree otherwise, "the child shall remain in the then current educational placement" (20 U.S.C. § 1415[j]; see, Burlington, 471 U.S. at 372; Murphy, 86 F.Supp.2d 354). In such a case, where it is the parents who are in violation of the stay-put provision, "[i]f the courts ultimately determine that the IEP proposed by the school officials was appropriate, the parents would be barred from obtaining reimbursement for any interim period in which their child's placement violated [the pendency statute]" (Burlington, 471 U.S. at 374; Murphy, 86 F.Supp.2d at 363). In the present case, the parents elected to unilaterally remove their son from his pendency placement at the public school system and enroll him at Kildonan for the 1999-2000 and 2000-01 school years, which they were entitled to do, but the district is not required to pay for that placement based solely on the pendency provisions of state and federal law (Murphy, 86 F.Supp.2d at 363; Application of a Child with a Disability, Appeal No. 01-013; Application of a Child with a Disability, Appeal No. 00-083).

        Respondents' reliance on the SRO's decision of May 23, 2002 to establish pendency placement for the 2000-01 school year at Kildonan is unavailing. The SRO's decision did two things. First, it established that the district's program for the 1999-2000 school year was inappropriate, that Kildonan's program for that year was appropriate, and that the parents were entitled to tuition reimbursement for that year. Second, it constituted the equivalent of an "agreement" on May 23, 2002 between the state and the parents that acted from that day forward to change the student's stay-put placement for the purposes of any subsequent pending proceeding (Murphy, 297 F.3d 195, 200-201; Susquenita, 96 F.3d at 84; Application of a Child with a Disability, Appeal No. 01-088; Application of a Child with a Disability, Appeal No. 99-100, see, 34 C.F.R. § 300.514[c]; cf., Application of a Child with a Disability, Appeal No. 02-002 [decided prior to Murphy, 297 F.3d 195]). Before that date, May 23, 2002, there was no agreement between the parties as to the appropriateness of the student's placement at Kildonan, and the last agreed upon placement was, as noted, the placement of the student in petitioner's public school system. Respondents were free to seek tuition reimbursement for Kildonan for the 2000-01 school year by challenging the substantive merits of the district's 2000-01 IEP, which issue is not presently before me in this pendency determination.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's interim decision regarding pendency and payment of the educational expenses of respondents' son for the 2000-01 school year is hereby annulled.