03-028

          Petitioner, Board of Education of the City School District of the City of New York, appeals, pursuant to 8 NYCRR 279.8(c), from an impartial hearing officer's decision determining the respondent's son's pendency placement to be the Academy at Ivy Ridge (Ivy Ridge) for the 2002-03 school year. The appeal must be sustained.

        One procedural question must be addressed initially. Respondent has not answered the petition even though its time to answer was extended at its request, and with petitioner's consent, to April 11, 2003. State regulations require the respondent to answer the petition within 10 days after the petition has been served upon respondent (8 NYCRR 279.5). Accordingly, I will examine the entire record (34 C.F.R. § 300.510[b][2][i]), and make an independent decision (20 U.S.C. § 1415[g]), even though respondent has failed to answer the petition (Arlington Central Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002], Application of the Bd. of Educ., Appeal No. 02-039).

        Respondent's son was seventeen years old at the time of the hearing, and attending 11th grade at Ivy Ridge, a residential private school, not approved by the Commissioner of Education. At the time, respondent's son had just been expelled from The Family Foundation (Family Foundation), a residential private school, also not approved by the Commissioner of Education. The student's sudden termination from the Family Foundation program was the result of having been arrested for breaking and entering, after running away from school. His further adjudication as a Youthful Offender created an emergency situation wherein immediate placement in another residential private school was needed in order to avoid placement in jail. Consequently, respondent, a clinical social worker, unilaterally placed her son at Ivy Ridge (Transcript pp. 80-81, 208, Exhibit BB).

        Although in good physical health, the student has been diagnosed with multiple psychiatric problems; these diagnoses have included ADHD, Tourette's Syndrome, Overanxious Disorder, and Depression. He has a history of drug and alcohol abuse, self-mutilation, and suicide attempts; additional concerns about the possible existence of a thought disorder and a psychotic processing issue remain (Exhibit BB). His classification as emotionally disturbed is not in dispute, nor is his need for placement in a residential treatment center (Transcript pp. 69, 74).

        The student's academic history begins with a determination of emotional problems in kindergarten (Transcript p. 68), as demonstrated by distractibility, impulsivity, hyperactivity, and problems with task initiation and completion (Exhibit BB). I note that no elementary school year individualized educational programs (IEP) are a part of the record. Therefore, the date of the Committee for Special Education (CSE) initial evaluation and recommendation is also not a part of the record. After increasing difficulties attending first grade at a private school, the student completed grades two through four in a second private day school, with the assistance of a home tutor. Grades five through seven were completed at a third private school, this time with a 10:1 student to teacher ratio; home tutoring continued. His inability to focus remained an issue, thereby limiting academic success. By eighth grade, the student had transferred to yet another private school, this one providing 1:1 student to teacher interaction and close supervision. As a consequence of continued concentration problems, the school recommended, but subsequently failed to assign, a paraprofessional to assist the student on a 1:1 basis after school (Exhibit BB, Transcript p. 69).

        In September 1999, at the beginning of ninth grade, the student was admitted to a psychiatric hospital for one week, with a diagnosis of severe Disruptive Behavior Disorder, Attention Deficit Hyperactivity Disorder, and Dysthymic Disorder (Transcript p. 69). Shortly after his hospitalization and returning to school, he was expelled for disrespectful and destructive behavior, along with unauthorized absences (Transcript p. 69). In December 1999, the student transferred to his fifth private school, where he remained for approximately sixteen months (Transcript p. 71, Exhibit 3). This was an emergency interim placement, agreed upon between the Board of Education and the respondent (Transcript p. 70). It was also the student's first private residential school. Although his level of maturity and self-control had increased, he still exhibited disrespectful and sexually inappropriate behavior (Exhibit 3).

        Respondent next unilaterally transferred her son to a suburban public high school midway during the school year; at this time he was in tenth grade, and enrolled in a General Education program. After several months, the student's behavior deteriorated to the point where he was not attending school on a regular basis, and was ultimately suspended for smoking marihuana. He ran away and lived on the street, sleeping in boxes and subways, and panhandling for money (Exhibit 3). I note that the duration of this time period is not made clear in record, but appears to be a matter of weeks. While the student was living on the street, he returned home for a brief visit, and was evaluated by a psychiatrist. This psychiatrist recommended further evaluation in a psychiatric hospital or residential treatment facility, and an appropriate educational setting that would be secure enough to prevent the student from running away; he also expressed the student's need for medication and psychotherapy (Exhibit 5).

        The student returned home to stay, and his mother requested an evaluation and IEP in May 2001 (Transcript pp. 73-75). Both petitioner and respondent agreed that the student needed a residential treatment center, and without objection from the petitioner, respondent unilaterally enrolled her son in Family Foundation, a private residential school for the 2001-02 academic year (Transcript pp.75-76, Exhibit D). Accordingly, a Statement of Agreement and Order requested by petitioner and agreed to by respondent on September 4, 2001, designated Family Foundation as the student's placement, and ordered that all expenses be paid pursuant to the student's IEP (Petitioner's Post Hearing Memorandum of Law 12/30/02: Attachment 1).

        Due to the petitioner's Central Based Support Team's (CBST) desire to locate a private residential school approved by the Commissioner for the student, the 2002-2003 IEP dated September 30, 2002 (Exhibit BB) recommended placement at Kid's Peace, a non- public residential program in Pennsylvania approved by the New York Commissioner of Education. However, in contravention of the CBST recommendation, petitioner's CSE stated that respondent's son should remain at Family Foundation for the 2002-2003 school year, based on his success during his first year in attendance there (Transcript pp. 76-78). A Stipulation of Settlement and Discontinuance, dated September 20, 2002, drafted by petitioner, and signed by both parties, declared that petitioner would fund the student's 2002-2003 schooling at Family Foundation, contingent upon the satisfaction of the conditions stipulated within. Important to note here is Paragraph 15 barring the Stipulation from being used to support a finding of pendency placement for the 2002-2003 academic year (Exhibit F).

        Approximately one month later, Family Foundation expelled the student because he had established a firmly entrenched pattern of running away and posed an above average risk to the community, [ultimately becoming adjudicated as a Youthful Offender (Exhibit BB)]. In a letter dated October 18, 2002, Family Foundation indicated that the student had broken into several houses in the surrounding town, damaged property and become intoxicated. After having been arrested but before his initial court appearance, the student ran away from Family Foundation and engaged in recreational drug abuse; this resulted in his spending several weeks in jail. At the subsequent court appearance, the student asked to return to Family Foundation to avoid further incarceration; Family Foundation complied with this request, with the understanding that he would not violate his New York State probation agreement. However, the student then ran away from Family Foundation again, and was intoxicated when the police returned him to school. This behavior caused Family Foundation to expel the student (Transcript p. 81, Exhibit H).

        After requesting that petitioner's CSE locate a new academic placement for her son (Exhibit J) and receiving no new placement directive from petitioner, respondent unilaterally placed her son at Ivy Ridge on October 18, 2002 (Transcript pp. 200, 208). On October 21, 2002, an impartial hearing was convened at respondent's request seeking funding for Ivy Ridge (Exhibit CC). On November 6, 2002, the hearing officer ordered petitioner to request an emergency alternative placement, recognizing the student's need for a therapeutic environment with on-site professionals to address his alcohol and or drug abuse (Exhibit CC). Petitioner proposed a placement at Kid's Peace once again (Transcript p. 214).

        However, in addition to the parent's lack of participation regarding the placement (Transcript p. 215), petitioner could not confirm the availability of a seat for the student at Kid's Peace, and could not articulate another immediate placement (Transcript pp. 199-201, 212). Moreover, had placement been physically available at Kid's Peace, the prior CBST recommendation, both the probation contingency requiring the student to remain within the State of New York and Pennsylvania's policy of denying adjudicated Youthful Offenders admission, would have denied him placement therein (Transcript pp. 216-218, Exhibit 2).

        The next impartial hearing was convened on December 6, 2002, but quickly adjourned until December 20, 2002, due to the mechanics of organizing the vast amount of evidence to be presented (Transcript pp. 3-4). On December 10, 2002, a brief hearing was convened at the behest of the hearing officer to recommend that the petitioner have counsel and an expert witness able to address psychological issues to be presented at the subsequent hearing (Transcript pp. 43-44). The parties were also directed to produce any other necessary documents before December 20, 2002, the date of the next hearing (Transcript pp. 46-47). Substantive issues were heard on December 20, 2002, and continued through December 27, 2002. Petitioner contended that Ivy Ridge was an inappropriate placement for the student, and that it should not be designated as the pendency placement (Transcript pp. 210-212); although no placement was offered, Greenberg, North Castle School (Greenberg) was suggested as a potential placement site for the student, pending cooperation from the respondent regarding the interviewing process required by Greenberg (Transcript pp. 68, 212-213).

        Respondent asserted that the proper pendency placement was at Ivy Ridge because that was where the student currently attended school, and the petitioner had not offered respondent's son another placement (Transcript p. 200); she also requested tuition reimbursement (Transcript pp. 44, 210). Respondent further agreed to have her son interviewed by Greenberg, on the condition that he would be interviewed at his present location, due to his need to remain on secured premises (Transcript pp. 205-206).

        The hearing officer rendered her initial decision on January 27, 2003, and then amended this decision on January 31, 2003; relevant to this appeal, the resulting Order directed that in the absence of any viable alternative, the pendency placement was Ivy Ridge, and that tuition would be reimbursed for Ivy Ridge from October 18, 2002 until such time as an appropriate placement for the student was established (Decision 1/31/03 pp. 7-8).

        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]; 34 C.F.R. § 300.514[a]; N.Y. Educ. 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 School 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 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. of the Monroe-Woodbury Cent. Sch. Dist., Appeal No. 99-90).

        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 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 3d 354, 358-359 [S.D.N.Y. 2000], aff'd, 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). The U.S. Department of Education has stated 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 Sch. Dist. v Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Drinker, 78 F.3d at 867 [last functioning IEP]; Gregory K. v. Longview School Dist., 811 F.2d 1307 [9th Cir. 1987]). Where there is a subsequent agreement between the parties during the proceedings to change the placement, there is no need to undertake the IEP analysis designed to identify the pendant placement (Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 137 F. Supp.2d 83 [N.D.N.Y. 2001], aff'd, 290 F.3d 476 [2d Cir. 2002]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, at 1189, fn 3 [S.D.N.Y. 1996]). The relevant federal and state regulations on pendency specify 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[1][2]). Once pendency placement has been established, it can only be changed by an unappealed decision of an impartial hearing officer (Application of a Child with a Disability, Appeal No. 03-019), an agreement of the parties, a decision by the State Review Officer agreeing with the parents, or a determination by a court (Schutz, 290 F.3d at 484; Bd. of Educ. v. Engwiller, 170 F. Supp.2d 410, 415 [S.D.N.Y. 2001] Murphy, 86 F. Supp.2d at 366; Application of a Child with a Disability, Appeal No. 02-002; Application of a Child with a Disability, 01-088; see, 34 C.F.R. § 300.514[c]).

        Without counsel present, petitioner's CSE initially asserted that Family Foundation was the pendency placement for the student because it was the last placement agreed to by petitioner and respondent (Transcript p. 199). However, because Family Foundation had expelled the student and no longer had a seat available to the student, petitioner's CSE then declined to acknowledge this school as the pendency placement. In point of fact, petitioner now asserts no specific pendency placement for this student (Transcript p.200); although petitioner offered an interview at Greenberg to the student (Transcript pp. 212-213), no actual seat in any appropriate private residential school was available to the student at the time of the hearing (Transcript p. 212).

        By petition dated March 13, 2003, petitioner seeks to annul the hearing officer's finding of pendency at Ivy Ridge without offering respondent definite placement in another school, by citing to the hearing officer's lack of authority to unilaterally decide pendency, and relying on respondent's alleged violation of the Stipulation of Agreement and Discontinuance and the impact of the student's criminal behavior on his placement.

        Petitioner's first assertion that "pendency can only be established and/or changed by an agreement between the parties or by the order of the State Review Officer . . . , the SED official that considers administrative appeals of proceedings brought pursuant to the Individuals with Disabilities Act . . . concerning New York City residents with disabilities" is substantially correct (20 U.S.C. § 1415[g]; 34 C.F.R. § 300.510; 34 C.F.R. § 300.514; N.Y. Educ. Law § 4404[2]; 8 NYCRR § 200.5[l]). As discussed, the student's pendency placement cannot change until a new placement is established either by an unappealed decision by an impartial hearing officer (Application of a Child with a Disability, Appeal No. 03-019), an agreement by the parties, a decision by the State Review Officer agreeing with the parents, or a determination by a court (34 C.F.R. § 300.514[c]; 8 NYCRR 200.5[j][1]; Schutz, 290 F.3d at 484; Engwiller, 170 F.Supp.2d at 415; Murphy, 86 F. Supp.2d at 366; Application of a Child with a Disability, Appeal No. 02-002; Application of a Child with a Disability, 01-088). In the instant case, the hearing officer's determination of pendency placement at Ivy Ridge has been appealed by the petitioner. Therefore, petitioner's first assertion that Ivy Ridge is not the pendency placement is correct, but subject to modification by the State Review Officer or judicial determination.

        Petitioner argues that respondent's lack of cooperation in the placement process and respondent's son's criminal conduct should not be allowed to provide a foundation for determining that an agreement between the parties exists to place the student at Ivy Ridge. Petitioner's second assertion is without merit. Upon the Stipulation of Settlement and Discontinuance dated September 20, 2002, the last agreement reached between petitioner and respondent, the student was to be placed at Family Foundation for the 2002-2003 school year. The Stipulation further demands cooperation from respondent with respect to CSE meetings to be held in connection with the 2003-2004 school year (Exhibit F, Paragraph 9) Petitioner asserts that respondent has violated this Stipulation through her lack of cooperation in the process of interviewing prospective new schools for placement. This is an issue of fact, and not relevant to the question of pendency (Exhibit F).

        Additionally, I note that the student's criminal record is also irrelevant in terms of dictating pendency placement. 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]). To use a child's negative behavior, whether criminal or lawful, to define a pendency placement or to extract him from a residential treatment program is not consistent with the purpose or mechanism of pendency. Pendency functions as an automatic injunction and is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Drinker, 78 F.3d 859; Zvi D., 694 F.2d 904).

        Of great concern here is that petitioner offers no new placement location, but rather seeks to deny the student pendency placement at Ivy Ridge without proposing an appropriate recommendation. I note that respondent is pro se, and did not answer the petition. However, respondent argues on the record that Ivy Ridge is the pendency placement because it is the school at which the student attends and has made a very good adjustment (Transcript p. 200). However, this is not consistent with federal and State regulations.

        Initially, this appeal triggers review of the student's most recent IEP (Letter to Baugh, EHLR 211:481; see, Susquenita Sch. Dist. v Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Drinker, 78 F.3d at 867 [last functioning IEP]; Gregory K. v. Longview School Dist., 811 F.2d 1307 [9th Cir. 1987]). Here two out of the last three IEPS in the record, dated September 30, 2002 and dated October 29, 2002, respectively, indicated recommendations that the student be placed at Kid's Peace (Exhibit BB, DD); the third and final IEP, dated November 12, 2002, failed to recommend a specific school or program, but rather "deferred to CBST" recommendation (Exhibit NN); I note that no prior IEPs were a part of the record. Because respondent did not agree to petitioner's placement recommendation at Kid's Peace (Exhibit BB), and petitioner's CSE ultimately supported placement at Family Foundation (Transcript pp. 76-78), analysis of the IEPs included within the record is inadequate.

        However, pendency placement may be established by looking to the last agreed upon placement at the moment the due process proceeding is commenced (Murphy, 86 F. Supp 3d at 358-359; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073). Central to pendency analysis here is the creation of two written agreements between the petitioner and respondent: the Stipulation of Settlement and Discontinuance dated September 20, 2002, and the Statement of Agreement and Order dated October 10, 2001.

        In cases involving stipulations between parents and boards of education, the determinative issue is whether the stipulation was explicitly limited to a specific school year or definite time period (Evans v. Board of Ed., Rhinebeck CSD, 921 F. Supp. 1184 [S.D. N.Y. 1996]; Application of a Child with a Disability, Appeal No. 98-25). The Stipulation of Settlement and Discontinuance expressly prohibits the use of Family Foundation as the "then current placement for the 2002-2003 school year or any subsequent year" (Exhibit F, Paragraph 15). Significantly, this exclusion precludes the use of the prior Statement of Agreement and Order, (Petitioner's Post Hearing Memorandum of Law 12/30/02: Attachment 1), wherein petitioner requested and respondent agreed that respondent would place her son at Family Foundation, with expenses pursuant to the IEP to be paid by petitioner. Although this is the last placement agreed to by both petitioner and respondent (Transcript p. 198) that could have been used for pendency purposes (Murphy, 86 F.3d at 358-359; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073), the Stipulation of Settlement and Agreement supercedes the Statement of Agreement and Order. Therefore, Family Foundation pendency may not be established through the use of these agreements.

        Further, if the Stipulation of Settlement and Agreement had not modified the prior agreement, the degree of similarity between the Family Foundation program and the Ivy Ridge program would then be at issue. Although a pendency determination does not require a student to remain at a particular site or location (Malcolm X Pub. Sch. 79, 629 F.2d 751; Application of the Bd. of Educ. of the Monroe-Woodbury Cent. Sch. Dist., Appeal No. 99-90), the programs must be substantially similar (Application of a Child with a Disability, Appeal No. 02-031). Here the programs are not substantially similar. Ivy Ridge provides much more secure premises than Family Foundation, and is more appropriate for a student at such a high risk of running away. However, the question presented here is not one of appropriateness, but rather whether the program offered at Family Foundation is substantially similar to the program offered at Ivy Ridge. It is not. To place the student at Ivy Ridge would require a change of placement, not a determination of pendency placement. Accordingly, Ivy Ridge is not the student's pendency placement.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled to the extent of the pendency ruling, and,

IT IS FURTHER ORDERED that appropriate placement shall be determined by the CSE.