01-088

         Petitioner, the Board of Education of the City School District of the City of New York, appeals from an impartial hearing officer’s decision terminating a hearing that respondent had requested to obtain an award of tuition reimbursement for the 2000-01 school year. The hearing officer found that the Board of Education had delayed the hearing until after the school year had been completed, and that since the Board of Education was already obligated to pay for the student’s tuition because the private school was the student’s pendency placement, the matter had become moot. The appeal must be sustained.

        Respondent’s 11-year-old daughter has been classified as learning disabled by petitioner’s Committee on Special Education (CSE). She was placed by her parent in the Stephen Gaynor School for the second grade in the 1997-98 school year, and has continued to attend that school. The Stephen Gaynor School has not been approved by the New York State Education Department to provide instruction to children with disabilities.

        In 1998, the CSE recommended a resource room program for the student. Her mother requested an impartial hearing to review that recommendation and obtain an award of tuition reimbursement for the 1998-99 school year. The hearing officer determined that the recommended program would have been appropriate for the student, and he denied the parent’s request for tuition reimbursement. The parent appealed from that decision. On January 26, 2000, I annulled the hearing officer’s decision. The student’s parent was awarded tuition reimbursement for the 1998-99 school year, upon findings that the Board of Education had failed to prove that it had offered to provide an appropriate educational program to the student and that her mother had demonstrated that the Stephen Gaynor School had met the student’s special education needs (Application of a Child with a Disability, Appeal No. 99-14).

        For the 1999-2000 school year, the CSE recommended that respondent’s daughter be educated in a self-contained special education class. While agreeing that her daughter should be instructed in a special education class, respondent objected to the size of the recommended class and requested a hearing. On April 27, 2000, the hearing officer found that the size of the class recommended by the CSE was too large, and she ordered the Board of Education to reimburse the parent for the cost of tuition at the Stephen Gaynor School for the 1999-2000 school year. The Board of Education waited until August 3, 2000 to commence its appeal from the hearing officer’s decision. Respondent asserted that the Board of Education’s petition was untimely. On June 8, 2001, the Board of Education’s appeal was dismissed as untimely (Application of the Bd. of Educ., Appeal No. 00-050).

        On April 11, 2000, the CSE recommended that respondent’s daughter be enrolled in one of petitioner’s Modified Instructional Services-I (MIS-I) classes with a 15:1 student: teacher ratio, and receive the related services of speech/language therapy and counseling during the 2000-01 school year (Exhibit C). A final notice of recommendation was sent to respondent on or about June 2, 2000. Respondent chose to enroll her daughter in the Stephen Gaynor School, and on September 14, 2000, she requested an impartial hearing. A "motion hearing" to schedule the hearing on the parent’s request for tuition reimbursement was reportedly held on November 14, 2000, and the hearing was scheduled to occur on February 1, 2001.

        The parties reportedly began settlement discussions. Respondent’s request for an impartial hearing was withdrawn by her attorney, without prejudice to renewal at a later date. On or about February 1, 2001, respondent’s attorney renewed the parent’s request for an impartial hearing concerning tuition reimbursement for the 2000-01 school year. Following a second motion hearing on February 9, 2001, the hearing on the parent’s claim was scheduled to be held on May 4, 2001.

        On May 3, 2001, the Board of Education sought an adjournment of the hearing. In an interim order dated May 4, 2001, the hearing officer indicated that he was adjourning the hearing, at the request of the parties, until May 24, 2001. He also warned them that he might decline to hear the matter because of his perception that it was or would become moot, and asked them to submit memoranda of law on the issue.

        The hearing convened on May 24, 2001. The hearing officer noted that the student’s parent sought a determination that the Board of Education was obligated to pay for the student’s tuition at the Stephen Gaynor School during the 2000-01 school year because the private school had become the student’s pendency placement as a result of my decision on January 26, 2000 to award tuition reimbursement for the 1998-99 school year. No testimony was taken on May 24, 2001. The hearing officer agreed to extend the Board of Education’s time to submit its legal arguments with respect to the hearing officer’s concern about possible mootness until June 4, 2001.

        On June 4, 2001, the hearing officer was informed that the Board of Education sought an additional extension of time. He granted an extension until June 5, 2001. On that day, the attorneys for both parties had a conference telephone call with the hearing officer, who agreed to extend the Board of Education’s time to submit its arguments until June 11, and the parent’s time to respond until June 22, 2001 (Second Interim Order).

        Upon receipt of my decision dated June 8, 2001 dismissing its appeal from the impartial hearing officer’s decision awarding the parent tuition reimbursement for the 1999-2000 school year, the Board of Education sought yet another adjournment of the hearing concerning the 2000-01 school year. The hearing officer acceded to the Board of Education’s request. According to his Final Order on Pendency, he informed the Board of Education that it could submit its memorandum of law within "the next 365 days" and that the parent would have one week to respond. In any event, the Board of Education’s memorandum of law was submitted to the hearing officer on June 25, 2001, and the parent’s response was received on July 18, 2001.

        On August 17, 2001, the hearing officer issued two written decisions. In the first decision entitled "Final Order on Pendency", he found that the Stephen Gaynor School was the student’s pendency placement during the 2000-01 school year because of the decisions in the two appeals to the State Review Officer involving the two preceding school years. He noted that the Board of Education conceded that the private school was the student’s pendency placement, but was insisting upon reserving its right to assert a claim against respondent for the cost of the student’s tuition for the 2000-01 school year. The Board of Education had apparently indicated that it might do so in the event that it was ultimately successful on the merits with regard to the parent’s claim for tuition reimbursement. The hearing officer disagreed with the Board of Education’s assertion of a potential right to obtain payment from the parent, and concluded that its obligation to pay for the student’s pendency placement was final.

        In his second decision entitled "Findings of Fact and Decision", the hearing officer acknowledged that the Board of Education had the right to defend the appropriateness of the educational placement that its CSE had recommended for respondent’s daughter. However, he suggested that the Board’s right to do so might be circumscribed by equitable considerations when it had allowed the entire school year to elapse before being ready to proceed with the hearing. He also referred to his first decision concerning the Board of Education’s obligation to pay for the student’s tuition during the 2000-01 school year as a basis for concluding that there was no "financial case or controversy remaining." In any event, he concluded that the issue of the student’s placement for the 2000-01 school year had been rendered moot by the discretionary actions of the Board of Education in delaying the hearing, and he terminated the hearing.

        The petition in this appeal was served on October 22, 2001, which was in excess of the 40-day period permitted by 8 NYCRR 279.2(c). Petitioner asks me to excuse its delay in light of the events of September 11, 2001 and their consequent effect upon the petitioner and its attorneys. I will excuse petitioner’s relatively brief delay, and accept its petition.

        The Board of Education contends that the hearing officer erred in finding that the issues in this proceeding had become moot. Petitioner argues that the merits of the parent’s claim for tuition reimbursement have yet to be determined. It also takes issue with the hearing officer’s findings with respect to the pendency provisions of the Individuals with Disabilities Education Act (IDEA), found at 20 U.S.C. § 1415[j]), and the corresponding regulation found at 34 C.F.R. § 300.514(c). It asserts that the hearing officer’s findings are inconsistent with the provisions of 20 U.S.C. § 1412(a)(10)(C)(ii), with respect to an award of tuition reimbursement to a parent of a child with a disability. In any event, the Board of Education points out that even if the hearing officer is correct with respect to pendency, his decision to terminate the hearing effectively precluded petitioner from establishing that it had offered to provide an appropriate placement to respondent’s daughter, which is necessary to effect a change in the student’s pendency placement. The Board of Education asks me to annul the hearing officer’s decision and remand the matter for a hearing before another impartial hearing officer.

        Respondent argues that the Board of Education lacks standing to appeal from the hearing officer’s termination of the hearing that respondent had requested. The parent asserts that the underlying claim for tuition reimbursement has become moot with the passage of time because the Board of Education is responsible for the expense of the student’s tuition at the Stephen Gaynor School since it is her daughter’s pendency placement. She also argues that her daughter’s individualized education program (IEP) for the 2000-01 school year that was the subject of this proceeding has been superseded by her IEP for the 2001-02 school year, and that there is no purpose to be served in reviewing the appropriateness of the 2000-01 IEP. Respondent argues that petitioner’s stated purpose of "breaking" the pendency chain, i.e., changing the student’s pendency placement can be achieved by promptly pursuing the hearing that the parent has requested with regard to the 2001-02 IEP (Exhibit B to the Answer).

        I find that the Board of Education has standing to bring this appeal. Pursuant to 20 U.S.C. § 1415(i)(1)(A), either party to an impartial hearing may appeal to the State Review Officer. The hearing officer’s decisions with respect to pendency and the termination of the hearing determine the Board of Education’s financial responsibility for the student’s tuition during the 2000-01 school year, and his pendency determination has application beyond that school year. Therefore, I find that the Board of Education is aggrieved by his determinations and is entitled to a review of those determinations.

        Petitioner’s arguments with respect to the provisions of 20 U.S.C. § 1412(a)(10(C)(ii) and 20 U.S.C. § 1415(j) as well as 34 C.F.R. § 300.514(c) are virtually identical to those raised by another school district in Board of Educ. v. Schutz, 290 F.3d 476 (2d Cir. 2002). The Court rejected those arguments, and held that the private school in which a student has been unilaterally enrolled by his parent becomes the student’s pendency placement when the State Review Officer determines that the parent is entitled to an award of tuition reimbursement. It remains the student’s pendency placement until a new placement is established by agreement of the parent and the school district, or by a final determination in a due process proceeding or subsequent judicial review that the district has offered an appropriate placement to the student. Respondent has invoked the due process provisions of the IDEA to challenge the placement that petitioner offered her daughter for the 2001-02 school year.

        As noted above, I determined that respondent was entitled to an award of tuition reimbursement for her daughter’s attendance at the Stephen Gaynor School during the 1998-99 school year. I am not aware of, and petitioner does not allege that there has been, a subsequent mutually agreed upon placement for the student. Similarly, there has been no administrative or judicial determination that the Board of Education has offered to provide an appropriate educational program to respondent’s daughter. Therefore, I find that the Stephen Gaynor School was this student’s pendency placement during the 2000-01 school year, and that the Board of Education must reimburse respondent for the cost of her daughter’s tuition for that school year.

        Although the Board of Education’s financial responsibility for the student’s tuition during the 2000-01 school year has been established, it does not follow that all of the issues in this proceeding have become moot. A CSE must review the educational program of each child with a disability at least once a year (34 C.F.R. § 300.342[c]; 8 NYCRR 200.4[f]). The result of such review is an IEP that describes what the student’s educational program and placement will be, unless the parent challenges the IEP. During the pendency of the parent’s challenge to the new IEP, the student remains in his or her last agreed upon placement, which in this instance the private school has become. I agree with the Board of Education that it has a continuing interest in establishing that it had offered to provide an appropriate educational program to respondent’s daughter during the 2000-01 school year, because a favorable determination for the Board of Education would alter the student’s pendency placement in subsequent proceedings. Although respondent and the hearing officer may be correct in asserting that it would be more practical to concentrate on the appropriateness of the educational program that petitioner offered to provide for the 2001-02 school year, I find that petitioner has a right to insist that respondent’s claim for tuition for the 2000-01 school year be heard on its merits.

        In his decision, the hearing officer indicated that the hearing should be terminated because of the Board of Education’s discretionary actions in delaying the hearing. It is of course petitioner’s responsibility to see that hearings are completed in a timely fashion (34 C.F.R. § 300.511[a]). Hearings must be conducted at a time that is reasonably convenient to the student’s parent (34 C.F.R. § 300.511[d]). Unfortunately, the record that is before me does not explain why the hearing was delayed so long, or whether respondent consented to any or all of the adjournments. I note that in his May 4, 2001 interim order, the hearing officer indicated that he was adjourning the matter at the request of the parties. Under the circumstances, I cannot sustain the hearing officer’s determination.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision dismissing the hearing in this proceeding because the issues were allegedly moot is hereby annulled; and

IT IS FURTHER ORDERED that within 30 days after the date of this decision, petitioner shall schedule a hearing in this matter before another hearing officer.