03-048

        Petitioner, the Board of Education of the Arlington Central School District (district), appeals pursuant to section 279.8(c) of the Regulations of the Commissioner of Education from an impartial hearing officer's interim decision determining respondents' son's pendency placement during this due process proceeding on the 2002-03 school year. The hearing officer found that the student's pendency placement was at the Kildonan School (Kildonan). The appeal must be dismissed.

        The educational history of the student is contained in two prior decisions and will not be repeated here (see, Application of a Child with a Disability, Appeal No. 02-080; Application of a Child with a Disability, Appeal No. 00-075). In summary, the student was originally classified as learning disabled in another district. When respondents moved into petitioner's district in December 1998, they referred their son to petitioner's Committee on Special Education (CSE). While the CSE was evaluating the student, the parents unilaterally enrolled their son at Kildonan in January 1999. Petitioner's CSE devised an individualized education program (IEP) for the student for the 1999-2000 school year which continued to classify him as learning disabled and recommended placing him in petitioner's public school system with related services. Respondents rejected the recommendation, continued to enroll their son at Kildonan, and requested an impartial hearing seeking tuition reimbursement for the 1999-2000 school year (Hearing 1). The hearing officer ultimately found that the district had offered an appropriate placement and denied reimbursement, but the parents appealed to the State Review Officer, who, on November 15, 2001, annulled the hearing officer's decision and awarded tuition reimbursement (see, Application of a Child with a Disability, Appeal No. 00-075). Petitioner appealed the State Review Officer's decision to the United States District Court of the Southern District of New York, which on November 14, 2002, issued its decision agreeing with the State Review Officer, finding that petitioner had failed to offer an appropriate program, that the services provided at Kildonan were appropriate, and awarding tuition reimbursement for the 1999-2000 school year (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). That decision was never appealed (Transcript pp. 36-37) and is now final.

        During the course of the proceedings, two school years elapsed (2000-01 and 2001-02) where respondents continued to keep their son at Kildonan, petitioner's CSE continued to recommend placement in its public school system, and the respondents continued to object to the new IEPs, requesting an impartial hearing on both IEPs on November 28, 2001. A combined hearing on the 2000-01 and 2001-02 school years (Hearing 2) was commenced on January 18, 2002 and concluded on June 11, 2002. At the start of Hearing 2, respondents requested an interim ruling on the student's pendency placement during the proceedings. The hearing officer issued a ruling wherein he essentially declined to declare a pendency placement, claiming that pendency for the 2000-01 school year was moot, and he needed to proceed to the merits of the case. The parents appealed the interim ruling to the State Review Officer. On July 30, 2002, the hearing officer rendered a decision on the merits of the two claims, awarding tuition reimbursement for the 2000-01 school year, but not the 2001-02 school year. The parents appealed the decision to the State Review Officer.

        In August 2002, the CSE recommended the student be placed in its public school system with related services for 2002-03 school year, which the parents again rejected for various reasons (see, Exhibit IHO-1). In September 2002, while still awaiting a favorable decision on their appeal for tuition reimbursement for the 2000-01 and 2001-02 school years, respondents were financially unable to keep their son at Kildonan, so they withdrew him from Kildonan and began home tutoring (Transcript pp. 18-20). On December 19, 2002, the State Review Officer issued a decision on the interim pendency appeal, determining that Kildonan was the student's pendency placement during Hearing 2 (see, Application of a Child with a Disability, Appeal No. 02-023). On January 9, 2003, respondents formally requested a hearing on the CSE's IEP for the 2002-03 school year (Hearing 3) (Exhibit IHO-1; Transcript pp. 4-5). At the start of the Hearing 3, respondents requested a pendency ruling (Transcript p. 6). On April 14, 2003, the hearing officer rendered an interim decision finding that, based on the federal court decision rendered November 14, 2002, two months prior to the start of Hearing 3 (see, Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158), Kildonan was the student's pendency placement for the duration of Hearing 3. On May 27, 2003, petitioner initiated this appeal on the interim pendency decision of Hearing 3. Ten days after the initiation of the instant appeal, on June 6, 2003, the State Review Officer rendered its decision on the appeal on the merits of the tuition reimbursement claims for the 2000-01 and 2001-02 school years (Hearing 2), finding that petitioner had failed to provide a free appropriate public education (FAPE) to the student for both the 2000-01 and 2001-02 school years, and that the services provided at Kildonan were appropriate, and ordered tuition reimbursement for both years (see, Application of a Child with a Disability, Appeal No. 02-080).

        In the instant appeal, petitioner challenges the interim decision which found Kildonan to be the student's pendency placement during Hearing 3, arguing that (1) the hearing officer's decision in Hearing 2, which in part determined petitioner offered an appropriate program for the 2001-02 school year, in effect broke the pendency chain and established Arlington public school system as the student's placement from that date forward, (2) the State Review Officer's decision which found Kildonan to be the pendency placement for Hearing 2 has no effect, since it was rendered after the close of the hearing, (3) the parents' decision to unilaterally withdraw their son from Kildonan and to home tutor him in the fall of 2002 terminated any claim they have to tuition reimbursement at Kildonan for the 2002-03 school year. Respondents argue that the State Review Officer's decision favoring the placement of their son at Kildonan for the 1999-2000 school year, and the corresponding federal district court decision which reached the same conclusion, changed the student's placement to Kildonan by operation of law, and no subsequent change of placement has occurred. They also contend that they were forced to remove their son from Kildonan in September 2002 only because they could no longer afford tuition, since they were still awaiting the outcome of the appeal of Hearing 2 for reimbursement for the previous two years' tuition at Kildonan, and that their actions in withdrawing their son had no effect on changing his pendency placement status. In addition, they argue that petitioner is in violation of the State Review Officer's decision dated December 19, 2002 (Application of a Child with a Disability, Appeal No. 02-023), which determined Kildonan to be the student's pendency placement in Hearing 2 and ordered petitioner to compensate the parents for tuition costs during the course of that proceeding, which began on January 18, 2002, and which was still in the appellate stages during the 2002-03 school year.

        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; 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 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]). 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 a Child with a Disability, Appeal No. 02-031; 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).

        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. of Arlington Cent. Sch. Dist., 86 F.3d 354, 358-359 [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., 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]; Drinker, 78 F.3d at 867 [last functioning IEP]; Gregory K. v. Longview School Dist., 811 F.2d 1307 [9th Cir. 1987]), unless the parents and the district agree otherwise. 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[1][2]). Once pendency placement has been established, it can only be changed by an administrative decision which is not appealed (see, 20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.510[a]; 20 U.S.C. § 1415[i][1][B]; 34 C.F.R. § 300.510[d]; Application of a Child with a Disability, Appeal No. 03-019), an agreement between the parties, a decision by the State Review Officer agreeing with the parents, or a determination by a court (Bd. of Educ. v. Schutz, 290 F.3d 476, 484 [2d Cir. 2002], cert. denied, 123 S.Ct. 1284 [2003]; 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]; Application of a Child with a Disability, Appeal No. 03-022; 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]).

        Many of petitioner's and respondents' arguments have become moot since this petition was served due to the State Review Officer's recent decision dated June 6, 2003 (Application of a Child with a Disability, Appeal No. 02-080). That decision determined that petitioner failed to offer a FAPE to respondents' son for both the 2000-01 and 2001-02 school years, and that Kildonan had offered appropriate services, and ordered petitioner to reimburse respondents for the costs of the student's placement at Kildonan for both school years. To the extent that petitioner has not yet done so, it is ordered to promptly, upon proof of payment by respondents, reimburse them for tuition costs for their son at Kildonan for the 2000-01 and 2001-02 school years.

        As to the student's pendency placement for the current hearing on the 2002-03 school year (Hearing 3), when respondents requested the hearing in the present proceeding on January 9, 2003, their son's pendency placement pursuant to the State Review Officer's decision of November 15, 2001 (Application of a Child with a Disability, Appeal No. 00-075), and the corresponding decision of the district court in Arlington Cent. Sch. Dist. v. D.K. (2002 WL 31521158) dated November 14, 2002, was at Kildonan. Under 34 C.F.R. § 300.514(c), the State Review Officer's decision acted as an agreement between the state and the parents to change the student's placement to Kildonan. Since then, there has been no new placement established by either an actual agreement between the parents and the district, or by an administrative decision that the parents choose not to appeal, or by a court, which would change respondents' son's pendency placement (see, Schutz, 290 F.3d at 484; Engwiller, 170 F.Supp.2d at 415; Murphy, 861 F.Supp.2d at 366). Contrary to petitioner's contention, the hearing officer's decision in Hearing 2, which found that the district's 2001-02 school year program was appropriate, was not a final decision, since it was immediately appealed by respondents. As such, it had no effect on changing the student's placement for pendency purposes in future proceedings (see, Application of a Child with a Disability, Appeal No. 02-031). In addition, the fact that the parents withdrew the student from Kildonan for financial reasons is not evidence of a new agreement between the state and the parents that could change the pendency placement, as petitioner readily admits it never agreed to home tutoring as a placement (Transcript p. 34). In the absence of evidence of any of the contingencies that could change the student's placement for pendency purposes, I find that the student's "then current placement" at the commencement of Hearing 3 was and still is at Kildonan, as per the State Review Officer's decision and the final order of the district court. Since Kildonan is the student's pendency placement, petitioner is required to pay for it for the periods of time the student is in attendance at Kildonan during the course of these proceedings, upon presentation of proper proof of enrollment by respondents.

THE APPEAL IS DISMISSED.