00-083

       Petitioners appeal from an impartial hearing officer's interim decision finding that the Kildonan School was not their son's pendency placement during this proceeding to obtain an award of tuition reimbursement for the 1997-98, 1998-99, 1999-2000, and 2000-01 school years. Petitioners contend that a Federal Court's decision awarding them tuition reimbursement at the Kildonan School for the 1996-97 school year established that school as their son's pendency placement. The appeal must be dismissed.

        The relevant statutory provision is 20 USC § 1415 (j), which reads in material part as follows:

… during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child…

        Petitioners' son is thirteen years old, and has been classified by respondent's Committee on Special Education (CSE) as learning disabled. He attended respondent's schools through the 1995-96 school year. Petitioners enrolled their son in the Kildonan School for the 1996-97 school year. In January 1997, they requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement. One year later, an impartial hearing officer dismissed their claim for tuition reimbursement. Petitioners appealed from the hearing officer's decision. In Application of a Child with a Disability, Appeal No. 98-14, dated January 14, 2000, petitioners’ appeal was sustained in part, but their request for reimbursement was denied. Petitioners then commenced an action in the U.S. District Court for the Southern District of New York to review my decision. In his opinion dated March 1, 2000, the Hon. Barrington D. Parker, Jr., held that petitioners were entitled to an award of tuition reimbursement for the 1996-97 school year (Exhibit J-21).

        Petitioners' attorney initiated the present proceeding in a letter to respondent's attorney dated April 7, 2000 (Exhibit J-1). Their attorney indicated that petitioners were seeking tuition reimbursement for the 1997-98, 1998-99, and 1999-2000 school years, as well as "resolution of the status quo placement for the years in question." The parties subsequently agreed to extend the proceeding to include the 2000-01 school year (Transcript p. 26).

        The hearing in this proceeding began on July 13, 2000. The Board of Education moved to dismiss the proceeding on the ground that petitioners' request for a review of their son's educational program for the 1997-98 through 1999-2000 school years was untimely. Petitioners cross-moved for a determination of their son’s pendency placement. In an interim order rendered on August 25, 2000, the hearing officer denied the Board of Education’s motion to dismiss petitioners’ claims with respect to the 1997-98, 1998-99, and 1999-2000 school years as untimely. He found that petitioners had filed written requests for reimbursement for each of those school years, placing respondent on notice of their claims for each year, and that respondent had not demonstrated it had been prejudiced by petitioners’ delay in requesting a hearing. The hearing officer denied petitioners’ cross-motion, without prejudice to a subsequent reconsideration of the issue of the student’s pendency placement.

        Petitioners renewed their request for a determination of their son’s pendency placement. In an interim decision dated October 2, 2000, the hearing officer denied petitioners’ cross-motion again. He found that the U.S. District Court’s order was specifically limited to the 1996-97 school year. He also found that there could be no liability for funding a current educational placement until there had been an administrative or judicial determination that the individualized education program (IEP) which the school district had prepared for the student was inappropriate.

        Petitioners appeal from the hearing officer’s interim decision with respect to their son’s pendency placement. They contend that under the Individuals with Disabilities Education Act, 20 USC §§ 1400 et seq, the Kildonan School became their son’s then current placement as of the beginning of the 1996-97 school year by virtue of Judge Parker’s decision in the prior proceeding. They assert that there has been no agreement between the parties to change the student’s placement. Petitioners ask me to find that their son’s pendency placement has been and continues to be at the Kildonan School. They request an order directing respondent to reimburse them for the cost of their son’s placement at Kildonan during the 1997-98, 1998-99, and 1999-2000 school years, as well as during the 2000-2001 school year.

        The Board of Education asserts that Judge Parker’s decision did not change the student’s pendency placement for the period beyond the 1996-97 school year. It also contends that petitioners are bound by the terms of the Court’s decision in the prior decision involving the 1996-97 school year. In his decision, Judge Parker noted that petitioners were seeking tuition reimbursement not only for that school year, but also for their son’s continued attendance "during the pendency of this appeal" (Exhibit 21, page 1). Citing the decision in Susquenita Sch. Dist. v. Raelee S., 96 F. 3d 78 (3d Cir. 1996), Judge Parker determined that the protective purpose of the pendency provision (20 USC 1415 j) was not triggered when petitioners unilaterally changed their son’s placement to the Kildonan School, and that the pendency provision did not become operative until he had determined that the student’s IEP for the 1996-97 school year was not reasonably calculated to meet the student’s educational needs and that Kildonan was an appropriate placement. He held that petitioners "are now entitled to the benefits of § 1415 (j) for any subsequent litigation of the 1996-97 school year. This pendent placement determination, however, does not decide the issue as to the appropriate placement for [the student] during the 1997/1998 and 1998/1999 school years, as this is a separate and independent determination." (Exhibit 21, page 16). Petitioners were granted tuition reimbursement only for the 1996-97 school year by the Court.

        In this appeal, petitioners seek the same relief which they requested from the U.S. District Court, a determination that the Kildonan School was their son’s then-current placement for pendency purposes during the school years subsequent to the 1996-97 school year. The Court did not grant them the relief they sought, and its decision is final and binding upon petitioners. I am therefore compelled to dismiss petitioners’ appeal.

THE APPEAL IS DISMISSED.