04-064

        At the outset, it must be noted that jurisdiction of a State Review Officer in appeals from interim decisions of impartial hearing officers is limited to pendency determinations (8 NYCRR 279.10[d]). Therefore, jurisdiction over that part of respondent's cross-appeal from the hearing officer's interim decision that does not pertain to pendency is not accepted. Respondent can obtain review of the hearing officer's decision with regard to petitioner's request for services at public expense in an appeal or cross-appeal from the hearing officer's final decision (Application of the Bd. of Educ., Appeal No. 00-073).

        Petitioner submitted a request for an impartial hearing on June 15, 2004. Prior to the hearing, both parties agreed that they would seek an interim decision by the hearing officer on the issue of the child's pendency placement. On July 26, 2004, petitioner submitted a motion and supporting documents to the impartial hearing officer. On July 23, and July 28, 2004 the district submitted a letter brief and supporting documents to the impartial hearing officer. The hearing officer based his decision on the parties' submissions. No evidence was submitted, and no witnesses testified. In this appeal, the parties rely upon those submissions made to the hearing officer and upon the correspondence between the parties and the hearing officer relative to his pendency decision.

        Initially, several procedural matters must be addressed. Petitioner asserts that the answer was not served in a timely manner (8 NYCRR 279.3). I have considered petitioner's contentions and will exercise my discretion and accept respondent's answer. Petitioner's reply and answer to the cross-appeal also raises additional allegations in response to respondent's answer. I must note that pursuant to section 279.6 of the Regulations of the Commissioner of Education, the reply is limited to any procedural defenses interposed by respondent or to any additional documentary evidence included with the answer. Consequently, those allegations raised by petitioner in his reply which do not respond either to procedural defenses interposed by respondent or address additional documentary evidence included with the answer have not been considered (Application of a Child with a Disability, Appeal No. 02-009; Application of a Child with a Disability, Appeal No. 98-37).

        Respondent has annexed several documents to its answer. In his reply, petitioner contends that two of the documents are additional documentary evidence not before the hearing officer. The first document is an affidavit sworn to September 13, 2004. The second document is a memorandum dated August 7, 2003 (Ans. Ex. 5 at p. 1).¹ Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable the State Review Officer (SRO) to render a decision (Application of a Child with a Disability, Appeal No. 03-078; Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098). In his reply, petitioner objects to the admission into evidence of the additional documents. Petitioner contends that both the affidavit and the memorandum were available for submission to the hearing officer at the time of the pendency motion (Reply ¶ 11). Petitioner also asserts that neither the affidavit nor the memorandum is necessary to complete the record. I agree. The affidavit and the memorandum were available to respondent at the time of the pendency motion and the information is not necessary for me to render a decision. Therefore, I will not accept the affidavit or memorandum annexed to respondent's answer (Application of the Bd. of Educ., Appeal No. 04-031).

        According to the submissions to the hearing officer, the student transitioned from preschool to respondent's kindergarten for the 2003-04 school year (Dist. Exs. C at pp. 4-10, E at pp. 19-23). Respondent's Committee on Preschool Special Education (CPSE) and Committee on Special Education (CSE) met on June 5, 2003 (id.). The CPSE recommended ESY services for summer 2003 (2003-04 ESY IEP) consisting of individual occupational therapy (OT) three times per week for 30 minutes, individual speech-language therapy three times per week for 30 minutes, special education itinerant teacher (SEIT) services five times per week for five hours, and individual parent training two times per month for one hour (Dist. Ex. E at pp. 19, 21). The parent did not object to the 2003-04 ESY IEP. For the 2003-04 school year (2003-04 IEP) the CSE recommended that the child be classified as having autism and recommended a 12:1 inclusion classroom for half the day and a 12:1+1 special education classroom for the remaining half of the school day. The CSE also recommended the related services of group counseling once per week for 30 minutes, individual OT twice per week for 30 minutes, group OT once per week for 30 minutes, OT consult twice per month for 15 minutes, group speech-language therapy three times per week for 30 minutes, parent training once per month for 45 minutes and a 1:1 aide (Dist. Ex. C at p. 4). Respondent's CSE further recommended special transportation and a bus monitor for the student (id.).

        According to the 2003-04 IEP, the student has delays in spontaneous language skills, social skills, attentional skills and sensory integration skills, which inhibit participation in age appropriate activities (id.). The record reflects that the parent initially objected to the 2003-04 IEP and the CSE reconvened on August 15, 2003 (Dist. Ex. C at p. 6). The minutes of the August 15, 2003 CSE meeting indicate that the parent requested ten hours per week of home-based SEIT services, but the CSE did not recommend those services (Dist. Ex. C at p. 7). Before the parent signed the consent for services form, he altered it to read, "I agree to CSE recommendation with all regards except with regard to SEIT services. We requested 10 hours of SEIT services" (Dist. Ex. C p. 11). The student's classification is not in dispute.

        On September 9, 2003, the parties entered into a settlement agreement which provided in relevant part that the district would offer seven and one-half hours of home-based SEIT services per week from September 3, 2003 through December 19, 2003 and five hours of home-based SEIT services per week from January 5, 2004 through June 24, 2004, if the parent agreed that the SEIT services were not part of the 2003-04 IEP (Dist. Ex. P. 12).

        On March 7, April 1, May 7, and June 2, 2004, respondent's CSE convened to develop the student's IEP for summer 2004 and the 2004-05 school year (Ans. Ex. 1 pp. 1-2). The parent objected to the IEP and requested an impartial hearing on June 15, 2004 (Dist. Ex. G pp. 6-11). In the hearing request the parent sought 25 hours per week of SEIT services to be provided by the district at a private day camp that the student attended at the parent's expense for summer 2004 (Dist. Ex. G pp. 10-11). The parent listed nine objections to the recommended program for the 2004-05 school year and also sought five hours per week of home-based SEIT services to be provided during the 2004-05 school year, which had not been recommended by the CSE (Dist. Ex. G pp. 7-8, 11).

        The parent attached to the hearing request what he termed a "motion and request for order" regarding the student's pendency placement (Dist. Ex. G pp. 11, 12-13). According to the impartial hearing officer, the parties agreed that the issue of pendency should be decided on the basis of a motion and submissions (Dist. Ex. C p. 14).  Petitioner argued that the student's pendency placement was the 2003-04 ESY IEP, the 2003-04 IEP and the home-based SEIT services set forth in the September 9, 2003 settlement agreement (settlement agreement). Respondent contended that the student's pendency placement was the last agreed upon IEP, the 2003-04 IEP recommended by the CSE on August 15, 2003. According to correspondence from the hearing officer addressed to the parties, the hearing was scheduled for August 16 and 17, 2004 with a record close date of September 3, 2004 (Dist. Ex. J at pp. 1-2).

        By interim decision dated July 31, 2004, the hearing officer ordered that: "1. The services provided for the child in the June 5, 2003 IEP covering July and August 2003. . .is the pendency placement of the child during this hearing process, 2. The IEP for the school year 2003-2004. . .is the pendency placement of the child during the 2004-2005 school year pending the resolution of this matter. 3. The Agreement of the Parties as to [SEIT] services included in a letter of September 9, 2003. . .is not part of any pendency placement" (Dist Ex. C p. 19). Petitioner appeals and respondent cross-appeals from the impartial hearing officer's interim decision.

        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 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 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).

        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., 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. 04-011; Application of the Bd. of Educ., Appeal No. 03-028; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073; Application of the Bd. of Educ., Appeal No. 97-82). 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, 211 IDELR 481; see Mackey v. Bd. of Educ., No. 03-7860, 2004 WL 2251796, at *4 [2d Cir. Oct. 7, 2004]; 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 Sch. Dist., 811 F.2d 1307 [9th Cir. 1987]). Where there is a subsequent agreement between the parties during the proceedings to change the placement, it need not be reduced to a new IEP, and it can supercede the prior unchallenged IEP as the then current placement (Bd. of Educ. 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., 921 F. Supp. 1184, 1189 n 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[l][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 SRO 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, Appeal No. 01-088; see 34 C.F.R. § 300.514[c]). 

        Petitioner asserts that pendency has attached to the student's 2003-04 ESY IEP, the 2003-04 IEP and the settlement agreement. In cases involving stipulations between parents and boards of education, the determinative issue when deciding whether a stipulation becomes the basis for a student's pendency placement is whether the stipulation was explicitly limited to a specific school year or definite time period (Evans v. Bd. of Educ., 921 F. Supp. 1184 [S.D. N.Y. 1996]; Application of the Bd. of Educ., Appeal No. 03-028; Application of the Bd. of Educ., Appeal No. 02-061;Application of a Child with a Disability, Appeal No. 98-25). I am mindful that in the absence of such specificity, courts have held that a placement for which the board of education has agreed to pay became the child's pendency placement (see Evans, F. Supp. at 1184 [unwritten agreement did not include a definite time limitation]; Doe v. Indep. Sch. Dist., 938 F. Supp. 758 [N.D.Okla. 1996]; Bayonne Bd. of Educ. v. R.S., 954 F. Supp. 933, 942-943 [D.N.J. 1997]). Nonetheless, those holdings are of no moment in the instant case since the settlement agreement at issue herein set forth a definite time period.

        In Zvi D., the Second Circuit determined that the agreement expressly limited the time period the school district had agreed to pay tuition and as such the private school was not the student's pendency placement (Zvi D., 694 F.2d at 907-08; see also Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 9-10 [1st Cir. 1999]; Peter G. v. Chicago Pub. Sch. Dist. No. 299 Bd. of Educ., 2002 WL 818008 *4-*5 [N.D.Ill.2002]; Mayo v. Baltimore City Pub. Sch., 40 F. Supp.2d 331, 334 [D.Md. 1999]; Application of the Bd. of Educ., Appeal No. 02-061; Application of a Child with a Disability, Appeal No. 98-25). In the instant matter, the parties' stipulation was intended to settle their differences with respect to the 2003-04 school year and provided explicitly that "[the parent] will not initiate any challenge to the 2003-04 IEP and to this agreement so long as the [SEIT] services set forth therein are appropriately provided and implemented" and "that these SEIT services are agreed not to be a part of the 2003-04 IEP" (Dist. Ex. C p. 12) (see id.). Under the circumstances, I am unable to find that the student's pendency placement includes the services set forth in the settlement agreement dated September 9, 2003. I find that the student's last agreed upon IEP was the IEP for the 2003-04 school year. The school district's obligation to provide SEIT services pursuant to the settlement agreement ceased on June 24, 2004 as the parties agreed to on September 9, 2003.

        It is apparent from correspondence contained in the record that the impartial hearing officer in this matter expected the hearing to conclude on August 17, 2004 (Dist. Ex. J p. 1) and ordered the child's pendency placement for the duration of the hearing to be the 2003-04 ESY IEP. He further ordered that the 2003-04 IEP would become the child's pendency placement for the 2004-05 school year and the duration of the proceedings after the hearing. It is also apparent from the pleadings that the hearing has extended beyond August 17, 2004, and that the impartial hearing officer will not render his decision until November 18, 2004 (Ans. ¶ 12). As such, I must annul that portion of the hearing officer's decision which ordered that the child's pendency placement for the duration of the hearing was the 2003-04 ESY IEP. I find that the child’s pendency placement is the August 15, 2003 IEP.  

        I have considered petitioner's remaining contention and find it to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the portion of the hearing officer's decision which ordered that the child's pendency placement for the duration of the hearing was the 2003-04 ESY IEP is hereby annulled.