04-011

          Petitioner appeals, pursuant to 8 NYCRR 279.10(d), from an impartial hearing officer's interim determination regarding his son's pendency placement during a due process proceeding in which petitioner challenged the appropriateness of the program recommended by respondent's Committee on Special Education (CSE) for his son for the 2003-04 school year.  The hearing officer determined that the placement established pursuant to the June 24, 2003 individualized education program (IEP) is the student's pendency placement.  The appeal must be dismissed.

            The student is ten years old and is classified as a student with autism.  His education history is set forth in Application of a Child with a Disability, Appeal No. 03-050, and Application of the Bd. of Educ. of the Barker Cent. Sch. Dist., Appeal No. 02-070, and will not be repeated here in detail.

            In February 2003, while a prior hearing regarding the student’s November 2002 IEP was proceeding, respondent's CSE developed an IEP for the student for the remainder of the 2002-03 school year.¹  Respondent's CSE met again in June 2003 to recommend a program for the student for the 2003-04 school year (IHO Exhibit iii Premarked Exhibit D-44).²  It recommended that the student be placed in a 12:1+1 integrated class with related services of speech-language therapy and counseling, and specialized reading instruction.  It also recommended that he receive extended school year services at Springville Elementary School commencing July 7, 2003.  By  September 2003, the student had  been placed in the program recommended by the June 2003 CSE for the 2003-04 school year and remained continuously in that placement through December 12, 2003, the date on which petitioner requested an impartial hearing in the instant case (IHO Exhibit iii).

            In the December 12, 2003 hearing request, petitioner claimed, among other things, that the school district failed to implement his son's 2003-04 IEP, and that he disagreed with the program, placement, evaluations, and "procedural and substantive noncompliance with applicable law" (Attachment to Pet. SRO I Exhibit A; Premarked Exhibit D-18).  Petitioner also requested that the February 2003 IEP be implemented as his son's "stay-put" or pendency placement.

            In a January 15, 2004 prehearing telephone conference with the hearing officer, petitioner's advocate raised the issue of pendency, claiming that the student was not in his pendency placement.  She asserted that pendency is the student's placement as provided by the February 2003 IEP (Transcript p. 22).  Respondent argued that the June 2003 IEP is determinative of the student's pendency placement.  At the end of the prehearing conference, the parties agreed that the issue of the student's pendency placement would be decided by the hearing officer upon written submissions, which the hearing officer received at the end of January 2004 (Transcript pp. 51-52).

            The hearing officer rendered his decision on February 16, 2004.  He agreed with respondent that the student's pendency placement is the student's then current educational placement as of the moment petitioner requested an impartial hearing.  Accordingly, he concluded that the pendency placement of the student is that established by the June 24, 2003 IEP, unless petitioner and respondent otherwise agree.

            Petitioner argues that the hearing officer erred in his pendency determination.  He contends that the June 24, 2003 recommendations of the CSE cannot be his son's pendency placement because he disagreed with those recommendations as of December 12, 2003 and is currently challenging them.  He asserts that the February 2003 IEP is his son's pendency placement because the February 2003 IEP has not been challenged, the district continued to provide services to the student based upon the February 2003 IEP,³ and my decision in Application of a Child with a Disability, Appeal No. 03-050, rendered the June 2003 IEP moot.⁴  Respondent asserts that the June 2003 IEP is the student's pendency placement because it was the student's placement at the moment when the due process hearing was requested.  It contends that, for the purposes of pendency, petitioner has implicitly agreed to the June 2003 IEP by allowing its implementation.

            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];Wagner v. Bd. of Educ., 335 F.3d 297 [4th Cir. 2003]).  The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and strip schools of the unilateral authority they had traditionally employed to exclude students with disabilities from school (Honig v. Doe, 484 U.S. 305, 323 [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), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16).  Further, although the pendency provision is a right afforded parents to protect children with disabilities from "being subjected to a new program that the parents believe to be inappropriate" during the pendency of due process proceedings, it does not preclude school districts from seeking injunctive relief from a court or seeking placement in an appropriate alternative educational setting for a child with a disability who is substantially likely to injure self or others (Child's Status During Proceedings, 64 Fed. Reg. 12615 [Mar. 12, 1999]).

            Under the IDEA, the pendency 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. of the Shenendehowa Cent. Sch. Dist., 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 Sch. Dist. v. Raelee, 96 F.3d 78, 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]).  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] aff'd, 290 F.3d 476, 484 [2d Cir. 2002] cert. denied 123 S.Ct. 1284 [2003]).   

            The hearing officer found that the pendency placement of the student is that established by the June 24, 2003 IEP.  I agree.  The record shows that petitioner requested an impartial hearing on December 12, 2003.  It is uncontroverted that at that time, the student was receiving services pursuant to the June 2003 IEP and had been receiving such services since September 2003.  There is nothing in the record to show that respondent is attempting to remove the student or otherwise change his placement from that which is currently being provided to the student via the June 2003 IEP.  The June 2003 IEP has already been implemented and services have been provided to the student pursuant to that IEP for several months.  Petitioner did not challenge the June 2003 IEP by requesting a due process hearing prior to the implementation of the program. The record also reflects that petitioner, having requested hearings on previous occasions, had an understanding of his due process hearing rights.  Accordingly, I find that the student's pendency placement is the program he was receiving pursuant to the June 2003 IEP, the program that was functioning on December 12, 2003 when petitioner requested an impartial hearing.  Under the circumstances presented here, the pendency argument advocated by petitioner would not serve the rationale behind the pendency provisions of protecting a student with a disability from an unwarranted unilateral removal by the district.  Instead, petitioner's construction of the pendency provisions would disrupt the continuity of the student's current placement, which is exactly what the pendency provisions were created to prevent.  A decision returning the student to a previous placement would contravene the statutory pendency mandate by transforming a tool for preserving the status quo into an implement for change (Wagner, 335 F.3d at 302 [4th Cir. 2003]).  Accordingly, I find that the student's pendency placement during the course of these proceedings is the placement established by the June 2003 IEP.

THE APPEAL IS DISMISSED.