05-006

          Petitioner, the Board of Education of the City School District of the City of Buffalo, appeals pursuant to section 279.10(d) of the Regulations of the Commissioner of Education from an impartial hearing officer’s interim decision determining the child’s pendency placement for the duration of a due process proceeding in which the child's parents challenge the appropriateness of the program recommended by petitioner's Committee on Special Education (CSE) for the child for the 2004-05 school year.  The impartial hearing officer determined that the child's pendency placement was the child's 2004-05 individualized education program (IEP) as his parents thought it would be implemented prior to the start of the school year.  The appeal must be sustained.           

            During the 2003-04 school year, respondents' son was eight years old and in the third grade (see Parent Ex. 18).  According to the parents, the child had been diagnosed with a variety of disorders, including a central auditory processing deficit, microcephalia, and hypotonia, that had an effect on his learning (Tr. pp. 112-113).  He was receiving special education services according to an IEP developed by petitioner's CSE which classified him as speech-impaired and placed him at Summit Educational Resources (Summit), a private agency, in a 6:1+1 special education class (Parent Ex. 11; see Tr. p. 218). The IEP also provided for 30 minutes of individual speech-language therapy four times every six days, 30 minutes of individual occupational therapy twice every six days, 30 minutes of individual physical therapy twice every six days, 30 minutes of group occupational therapy once every six days, and 30 minutes of group speech-language therapy twice every six days¹ (Parent Ex. 11 at p. 9). Although not specified in the IEP, in addition to a special education teacher and an aide, the 6:1+1 class also included a speech-language therapist in the classroom all day (Tr. pp. 218, 220-21).  The child had been in a similarly staffed class placement at Summit for the past four years (Tr. pp. 220-21, 223).          

           In preparation for development of the child's 2004-05 IEP and as part of the child's triennial evaluation, a series of reevaluations were performed in spring 2004, which included new psychological, educational, speech, audiological, physical, occupational and vision evaluations of the child (see Parent Exs. 16-25). The child continued to display weaknesses in language, especially comprehension and articulation, which was compounded by a central auditory processing deficit (Parent Ex. 20 at p. 3).  The audiologist diagnosed the child with an abnormal Auditory Processing Disorder (APD) (Parent Ex. 18).  In spite of his deficits, the CSE and Summit staff noted that respondents' son had made good progress at Summit, and decided he could be enrolled in the district's public school system (Tr. pp. 69, 71, 74, 223, 224-25; see Parent Exs. 16, 18, 19, 21); respondents agreed (Tr. pp. 115-16, 134, 135, 142, 147).  The CSE chair suggested the parents visit two placement options, one at P.S. #84 and one at P.S. #96 (Campus West) (Tr. pp. 71-72, 74, 114).  The parents visited and rejected the placement at P.S. #84, finding the class too restrictive and composed of students who had more significant needs than their son (Tr. pp. 114-15, 138; see also Dist. Ex. 5 at p. 1).   They also visited the class at Campus West and found it to be suitable for their son, in part because they observed its staffing to include a special education teacher, a speech-language therapist, and an aide (Tr. pp. 115-16, 119-20, 133, 197; see Dist. Ex. 4, Parent Ex. 13). The class was composed of both third and fourth grade learning disabled and/or language delayed children (Tr. pp. 116).  The parents spoke to the teacher of the class, who verified that the class included full-time services from a special education teacher, a speech-language therapist, and an aide (Tr. pp. 116, 162, 141).

          On April 23, 2004 the CSE met to develop the child's program for the 2004-05 school year (Parent Ex. 10).  After reviewing the reevaluations, the CSE reclassified the child as a student with a learning disability (Tr. pp. 73-74)² and developed an IEP that placed him in a 15:1 special education class (Parent Ex. 10 at p. 10). The 2004-05 IEP provided the child with related services consisting of 30 minutes of individual speech-language therapy twice every six days, 30 minutes of group speech-language therapy four times every six days,³ and 30 minutes of individual vision therapy twice every six days (Parent Ex. 10 at pp. 12, 11). The IEP stated that the child was currently in third grade at Summit, but failed to specify what grade level he would be in for the 2004-05 school year (Parent Ex. 10 at p. 1).  The IEP was later amended to add 30 minutes of individual physical therapy twice every six days, 30 minutes of individual occupational therapy three times every six days, and 30 minutes of group occupational therapy once every six days (Parent Ex. 10 at p. 16).

          The bottom of the first page of the child's 2004-05 IEP contained the handwritten notation: "LD/LD class" (Parent Ex. 10 at p. 1).  District literature which existed at the time described an "LD/LD class" as one designed for learning disabled/language delayed students (Dist. Ex. 3 at p. 2; Tr. p. 55) which contained a special education teacher, an aide and a speech-language therapist (Dist. Exs. 1, 2 at p. 2; see also Tr. p. 27).  According to the district's supervisor of speech and language services, at the time the child's 2004-05 IEP was written, the speech therapist was typically in the LD/LD classroom on average about three to four hours per day, then saw the children individually or in groups for speech therapy as per their IEPs (Tr. pp. 24-25, 45).  The staffing structure of the proposed class was discussed with the parent at the CSE meeting (Tr. p. 76); the parent asked about the presence of a full-time aide and full-time speech-language therapist in the classroom, and the special education coordinator/CSE chair clarified that the placement required only a 15:1 class structure, meaning no more than 15 students in the class with a special education teacher (Tr. p. 76).  The parent signed the consent form agreeing to delivery of special education services to his son in accordance with the IEP (Parent Ex. 15).  After the CSE meeting, the child's parent wrote a letter to the district's supervisor of special education requesting that for the 2004-05 school year their son be placed in the third grade/fourth grade LD/LD class as they had observed it at Campus West (Parent Ex. 13; Dist. Ex. 4; Tr. pp. 63, 131).

          On the day before the first day of school, the child's mother telephoned the special education teacher of the child's recommended class and discovered that the child's class was structured differently from the class she had observed in April 2004 (Tr. pp. 120, 122-24, see Tr. pp. 161).  She was informed that the child's placement remained in a 15:1 setting, but instead of third and fourth graders, the LD/LD class would consist of fourth and fifth graders (Tr. pp. 123, 179), and that it would be staffed full time solely by the special education teacher, with the speech therapist rotating her time between that class and another, and no teacher's aide (Tr. pp. 122-24, 181, 150).  On September 15, 2004 petitioner attempted by letter to notify respondents of the district's restructuring of its LD/LD classes (Parent Ex. 6); respondents received an empty envelope from petitioner on October 5, 2004 (Parent Ex. 5), and when they questioned petitioner about its contents, they received the original letter sometime later in October (Tr. pp. 124-25).  The letter stated that the LD/LD class had been "modified" for the 2004-05 school year, and would now contain a speech-language teacher for 60-90 minutes in grades K-4, and for half a day in grades 5-8 (Parent Ex. 6; see Tr. pp. 32-33, 45, 180, 266).⁴ The director of speech and language services later explained that this meant that the speech language therapist would be in respondents' son's classroom for a minimum of two to two and a half hours per day, with the remainder of the half day spent providing individual speech therapy to the children in the class according to their IEPs (Tr. pp. 271-272, 288).  The letter also stated that a teacher's aide would "provide support as needed" in the LD/LD class (Parent Ex. 6), which was later explained as eliminating the classroom aide and providing individual aides if a child's IEP required it (Tr. pp. 45-46, 286-87).⁵  By letter dated September 24, 2004 respondents through their attorneys notified the district that they were rejecting the district's recommended program, and they requested a due process hearing (Parent Ex. 9, see also Parent Ex. 7). 

          The hearing was held on November 19 and November 22, 2004.  On the first day of the hearing, both sides sought an interim decision on the child's pendency placement (Tr. pp. 17-18; see also Parent Ex. 3).  On December 1, 2004 the impartial hearing officer rendered an interim decision determining the child's pendency placement to be the class, grade, and staffing configuration at Campus West that respondents had observed in April 2004.  Petitioner appeals.

            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 educational 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;  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]).  The provision "protect[s] the educational status quo of the student while the parents and the school fight out the legalities of the placement. The provision is student focused, not school district or parent focused" (Cosgrove v. Bd. of Educ., 175 F.Supp.2d 375, 391 [N.D.N.Y. 2001]).  It does not mean that a student must remain in a particular site or location (A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; 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; see Child's Status During Proceedings, 64 Fed. Reg. 12615 at 12616 [Mar. 12, 1999]).

             A student's pendency placement is not necessarily the placement that will ultimately be decided to be the appropriate placement after a hearing on the merits, since pendency placement and appropriate placement are separate and distinct concepts (Mackey v. Bd. of Educ., 386 F.3d 158, 160 [2d Cir. 2004] ["A claim for tuition reimbursement pursuant to the stay-put provision is evaluated independently from the evaluation of a claim for tuition reimbursement pursuant to the inadequacy of an IEP"]; Bd. of Educ. v. O'Shea, ___ F. Supp.2d ___, 2005 WL 154201 at *8 [S.D.N.Y. Jan. 18, 2005]). The IDEA's "pendency provision" represents "Congress' policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved" (Mackey, 386 F.3d at 160-61, quoting Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; see also Bd. of Educ. v. Schutz, 290 F.3d 476, 484 [2d Cir. 2002], cert. denied, 537 U.S. 1227 [2003]).

            Under the IDEA, the pendency inquiry focuses on identifying the child’s "then-current educational placement" (Zvi D., 694 F.2d at 906).  The Second Circuit has recently stated that,

Although the IDEA does not define, and our Circuit has not previously considered the meaning of, the term "then-current educational placement," our sister circuits have interpreted the term to mean: (1) "typically the placement described in the child's most recently implemented IEP," (Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1180 [9th Cir. 2002]); (2) "the operative placement actually functioning at the time ... when the stay put provision of the IDEA was invoked," (Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]); and (3) "[the placement at the time of] the previously implemented IEP," (Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990]).

(Mackey, 386 F.3d at 163; see O'Shea, 2005 WL 154201 at n.10).  

Similarly, 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, 211 IDELR 481 [OSEP 1987]; see Susquenita, 96 F.3d at 83 ["last functioning IEP"]; Drinker, 78 F.3d at 867 [same]; Gregory K. v. Longview School Dist., 811 F.2d 1307 [9th Cir. 1987]). 

             If there is a subsequent agreement between the parties during the proceedings to change the student's placement, then there is no need to undertake the IEP analysis in order to identify the pendant placement, that change generally becomes the student's pendency 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], cert. denied, 537 U.S. 1227 [2003]; Evans v. Bd. of Educ., 921 F.Supp. 1184, at 1189, n.3 [S.D.N.Y. 1996]).  The exception occurs where the agreement is reduced to a writing that contains a limiting date restriction, in which case the specified placement may not become the student's pendency placement in subsequent disputes (see Application of a Child with a Disability, Appeal No. 04-064).

             The student's pendency placement 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 (see Schutz, 137 F.Supp. 2d 83), a decision by the State Review Officer agreeing with the parents (34 C.F.R. § 300.514[c]; 8 NYCRR 200.5[1][2]), or a determination by a court (Schutz, 290 F.3d 476 at 484; Bd. of Educ. v. Engwiller, 170 F.Supp.2d 410, 415 [S.D.N.Y. 2001]; Murphy v. Bd. of Educ., 86 F.Supp 2d 354, 366 [S.D.N.Y. 2000], aff'd 297 F.3d 195 [2d Cir. 2002]; 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 impartial hearing officer erred in not recognizing that, under the stay-put provision of the IDEA, a child must first have been in the educational program, receiving special education and related services under the program, before it can become his stay-put placement (Letter to Baugh, 211 IDELR 481 [OSEP 1987] [pendency placement is the "special education and related services provided in accordance with a child's most recent (IEP)"] [emphasis added]; see Susquenita, 96 F.3d at 83 ["last functioning IEP"] [emphasis added]; Drinker, 78 F.3d at 867 [same]).  As noted, the Second Circuit has proffered three possible definitions of "then current educational placement"; i.e., (1) the placement described in the child's most recently implemented IEP, (2) the operative placement actually functioning at the time when the stay put provision of the IDEA was invoked, and (3) the placement at the time of the previously implemented IEP (Mackey, 386 F.3d at 163 [emphasis added]). None of these definitions fits respondents' theory that their child's pendency placement is the third grade/fourth grade 15:1+1+1 classroom they observed in April 2004. A placement that the child was never placed in cannot serve as representative of any factor of stability and/or consistency in the child's education (Murphy v. Arlington Cent. Sch. Dist. 86 F.Supp.2d 354, 359 [S.D.N.Y. 2000], aff'd 297 F.3d 195 [2d Cir. 2002] ["Certainly, it was not the intent of Congress for the 'then current educational placement' to be the one which the school district proposed for the following school year. This result would completely circumvent the underlying purpose of (the pendency provision) to preserve the status quo"]; see Bd. of Educ. v. Schutz, 290 F.3d 476, 483 [2d Cir. 2002] [newly written IEP is "mere proposal" and does not change the child's stay-put placement]). Such a finding would contravene the purpose of the pendency provision to maintain stability in the child's educational placement (id.). In fact, adopting respondents' construction of the pendency provision would actually disrupt the continuity of the child's educational placement by removing him from his current placement and placing him in a completely new placement in which he had never been, which is exactly what the pendency provision was created to prevent (Application of a Child with a Disability, Appeal No. 04-011; Application of a Child with a Disability, Appeal No. 02-095).  In short, since the 15:1+1+1 classroom that the parents observed in April 2004 is one that they admit their son was never placed in, it cannot be his pendency placement.

             Respondents alternatively appear to argue that their concept of the LD/LD class structure at the April 2004 CSE meeting was the "last agreed upon placement," constituting a new agreement between the parties, hence the child's new pendency placement; but this argument fails as well. There was no agreement here, since the district did not agree that the LD/LD class would have an extra full-time speech-language teacher and aide; in fact, the district asserts that is why it deliberately described the staffing as 15:1 on the child's IEP. Respondents' analogies to situations wherein a district materially alters a placement and parents invoke pendency to preserve the child's status in the original placement are also inapposite to the case at bar.  In those instances, the student typically began the school year receiving services under one placement, which was then later materially altered (see generally Letter to Fisher, 21 IDELR 992 [OSEP 1994]; Letter to Winston, 213 IDELR 102 [OSEP 1987]).  In the present case, as previously noted, the child was never in the 15:1+1+1 class; his placement for the 2004-05 school year started out in September 2004 as a 15:1 class and continues to exist as such.  If respondents' son had instead started the school year in September 2004 receiving services under a program as originally envisioned by the parents, and then the district altered the program's staffing or material elements at some point during the school year, respondents may have had a legitimate claim for invoking the original version of the 2004-05 program in a stay-put claim during the pendency of a proceeding challenging the IEP (see Application of a Child with a Disability, Appeal No. 01-023 ["pendency protects against a unilateral change in a child's placement, such as a material alteration of a student's educational program"]; see also Letter to Fisher, 21 IDELR 922 [OSEP 1994]). That did not occur here; respondents' child has been in the same placement consistently from the start of the 2004-05 school year.⁶ 

            This is not to say that the district's act in changing the previously allotted staffing of the LD/LD program did not result in an inappropriate program for this child, and/or violated the notice provisions of the IDEA.  I make no judgment on these issues, which are beyond the scope of this pendency determination (see Application of a Child with a Disability, Appeal No. 01-003).  The answer to those questions can only be determined after a full hearing on the merits of the underlying dispute, which is the actual issue herein for both parties, i.e., whether the 2004-05 IEP, as developed and implemented, is a denial of a free appropriate public education (FAPE) for this child.  As far as the child's pendency placement is concerned, however, the inquiry rests largely on what was the last mutually agreed upon placement that the child had been in at the time of the due process request (Letter to Baugh, 211 IDELR 481 [OSEP 1987]; Letter to Winston, 213 IDELR 102 [OSEP 1987]; see Johnson, 287 F.3d at 1180; Thomas, 918 F.2d at 625; Susquenita, 96 F.3d at 83 ["last functioning IEP"]; Drinker, 78 F.3d at 867 [same]; Cosgrove, 175 F.Supp.2d at 384; Binghamton City Sch. Dist. v. Borgna, 1991 WL 29985 at n.6 [N.D.N.Y. 1991]; see, e.g., Application of a Child with a Disability, Appeal No. 00-019; Application of a Child with a Disability, Appeal No. 99-30; see also Mackey, 386 F.3d at 163).   In the instant case, when the parents found out that the 2004-05 program would be different from what they envisioned, and promptly, within 2-3 weeks, on September 24, 2004,⁷ sent a letter objecting to the program and requesting a due process hearing, at that point in time the pendency provision allowed them the option of keeping their son in his last implemented IEP placement, which would have been the 2003-04 IEP which placed the child at Summit in a 6:1+1 placement with related services, until the dispute surrounding the current year's 2004-05 IEP was resolved.            

            I note that the record reveals some indication that the parents are not seeking to return their son to the educational program and placement at Summit (Parent Exs. 3 at p. 2, 1 at p. 2; but cf.Ans. ¶ 8[h]).  I also note that the child has been receiving special education and related services under the district's implementation of the 2004-05 IEP for several months now following the due process request. Due to the fact that several months have passed since the parents originally objected to the placement and asked for a due process hearing, to avail themselves of their right to invoke pendency and to return their son to Summit at this late date would ironically eviscerate much of the stability that the pendency provision was created to protect. The parents have the choice nonetheless to either avail themselves of the pendency provision and return their son to his placement at Summit under the 2003-04 IEP, or choose instead to leave their son in his educational program and placement as it exists at Campus West, as they have done thus far, pending a speedy resolution of the appropriateness of the placement and the implementation of the 2004-05 IEP, to be decided upon conclusion of the due process proceeding below.  In either case, I urge the parties to work together to expedite the underlying proceeding so that the substantive issues surrounding the appropriate placement for the child may be resolved with all due haste.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the impartial hearing officer’s interim decision regarding the child's pendency placement is hereby annulled; and

IT IS FURTHER ORDERED that, unless the parties otherwise agree, special education services shall be provided to the child in accordance with the tenor of this decision during the pendency of this due process proceeding.