05-011

            Petitioner, Board of Education of the Pioneer Central School District, appeals pursuant to section 279.10(d) of the Regulations of the Commissioner of Education from that portion of an impartial hearing officer’s decision determining the child’s pendency placement for the duration of a due process proceeding in which the child's parent challenges the appropriateness of the program recommended by petitioner’s Committee on Special Education (CSE) for her daughter for the 2004-05 school year.  The impartial hearing officer determined that the child's pendency placement was the placement established by the child's 2003-04 individualized education program (IEP).  The appeal must be dismissed.

            The student is 20 years old and is classified as multiply disabled.  Her educational history is set forth in Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052, and will not be repeated here in detail.  Briefly, in the prior appeal the student's parent had objected to the IEP developed, on August 19, 2003, by the district's CSE for her daughter for the 2003-04 school year and requested a due process hearing (id.) (Hearing 1). An impartial hearing officer rendered a decision on June 25, 2004, finding that, due to an improperly composed CSE and substantive defects in the program recommended in the 2003-04 IEP, that the district had failed to offer respondent's daughter a free appropriate public education (FAPE).  The impartial hearing officer ordered the district to conduct additional evaluations and to reconvene the CSE within 30 days of the date of his decision to revise the 2003-04 IEP to address the deficiencies that he had found.  The CSE did not reconvene to revise the 2003-04 IEP, instead both the district and respondent filed petitions for review by a State Review Officer resulting in a decision being issued on September 13, 2004  (Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052).

            While the petitions for review were pending, petitioner's CSE met on July 21, 2004 and August 27, 2004 and developed an IEP for the student for the 2004-05 school year (Respondent’s November 22, 2004 Correspondence to IHO Exs. XV, XVI).  Shortly thereafter, petitioner received a letter from the student's advocate dated September 3, 2004 objecting to the proposed 2004-05 IEP and requesting an impartial hearing. On September 7, 2004, the district initiated its own due process hearing regarding the respondent’s refusal to provide consent to an evaluation (Respondent’s November 22, 2004 Correspondence to IHO Ex. XII) (Hearing 2). The parties agree that when classes began for the 2004-05 school year on September 8, 2004, the student’s pendency placement was determined by the provisions of the 2003-04 IEP due to the appeals of the decision in Hearing 1 pending at the State Review Officer level (see Tr. p. 46; Pet. ¶ 33; Ans. ¶ 33).  Respondent has not made the student available for pendency services and has voluntarily withheld the student from school during the course of the 2004-05 school year (Tr. pp 44-45). The student has not received services pursuant to either the 2003-04 or 2004-05 IEPs during the 2004-05 school year.

            On September 13, 2004, I rendered a decision upholding the impartial hearing officer's decision in Hearing 1 and dismissing the appeals of both parties (see Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052).  On November 8, 2004 petitioner received a letter, from respondent, objecting to the 2004-05 IEP and requesting a due process hearing (IHO Ex. ii). An impartial hearing officer was appointed on November 9, 2004 (IHO Ex. i, Decision p. 2) (Hearing 3). On November 16, 2004, petitioner withdrew its request for a hearing pertaining to respondent’s refusal to give consent for an evaluation of the student (Respondent’s November 22, 2004 Correspondence to IHO Ex. XII) (Hearing 2).  A pre-hearing conference was conducted on November 12, 2004 (see Tr. pp. 2-3) during which the student’s pendency placement was discussed (Tr. pp. 41-50).  The district asserted that the pendency placement of the student should be the 2004-05 IEP, developed at the summer 2004 CSE meetings, which the district claims was their response to the IHO decision in Hearing 1 ordering it to correct the deficiencies in the 2003-04 IEP (Tr. pp. 41-50).  Respondent argued that the pendency placement of the student should continue to be the 2003-04 IEP developed on August 19, 2003 because the 2004-05 IEP developed by petitioner was not in compliance with the June 25, 2004 impartial hearing officer's decision (id.)

        At the end of the prehearing conference, the impartial hearing officer ordered both parties to submit their arguments on the pendency issue in writing (Tr. pp. 49, 107). Respondent contended that because the district initiated a due process hearing on September 7, 2004 regarding the refusal to consent to an evaluation, and that hearing (Hearing 2) remained pending until November 16, 2004, that during this time period the student was in a pendency placement as set forth in the 2003-04 IEP (see Respondent’s November 22, 2004 Correspondence to IHO at p.12, Ex. XII).  Based on that assertion, respondent argued that at the time she initiated her due process request for the instant hearing (Hearing 3) on November 8, 2004 the student's stay-put placement was the 2003-04 IEP (id.).

        In a decision dated December 11, 2004, the impartial hearing officer found that the student’s placement during the pendency of the instant due process hearing is the 2003-04 IEP (IHO Decision, p. 16).  The impartial hearing officer found that the district’s initiation of an impartial hearing on the first day of school, September 7, 2004, triggered the requirement that the student remain in the last agreed upon placement. This pendency placement would not change as a result of the district's November 16, 2004 withdrawal of its impartial hearing request after the initiation of the instant impartial hearing by respondent on November 8, 2004 (IHO Decision, pp. 15-16).

       On appeal, petitioner requests that the impartial hearing officer’s decision be reversed and that the student’s pendency placement be determined to be that set forth in the 2004-05 IEP.            

        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 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, Appeal No. 01-088).

        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]).  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]).

        Upon my review of the record and the thorough decision of the impartial hearing officer, I find the determination of the impartial hearing officer to be correct.  I concur with the impartial hearing officer in his determination that the due process proceeding initiated by the district on September 7, 2004 triggered the requirement that the student remain in her last agreed upon placement during the course of that proceeding, which is the placement set forth in the 2003-04 IEP.  The 2004-05 IEP could not, therefore, have been implemented during the 2004-05 school year prior to respondent’s hearing request dated November 8, 2004 as petitioner contends.  Moreover, petitioner is incorrect in its contention that the student's pendency placement should be the 2004-05 IEP; the student's stay-put placement cannot be an IEP that she was never placed in or receiving services under; to so find would contravene the purpose underlying the state and federal pendency provisions of ensuring stability in the child's educational program during the course of an impartial hearing (see Application of a Child with a Disability, Appeal No. 05-006).

         In reaching this determination I am not unmindful of the fact that during the course of the complex procedural history of this case, a decision was rendered in favor of the parent which found the 2003-04 IEP inadequate and in need of further development (see Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052).  However, I note that it is the student's parent that is now strongly advocating that the program and placement recommended by the August 19, 2003 CSE be her daughter’s program and placement for the duration of the current proceedings.  I also note that both parties agree that the 2003-04 placement was the student’s pendency placement at the beginning of the 2004-05 school year.  Having no other alternative, I am constrained to find that the student's pendency placement is the 2003-04 IEP, unless the parties otherwise mutually agree to a different placement.  In the alternative, I urge both parties to work cooperatively and expeditiously in the interests of the student to reach a speedy resolution to the underlying due process proceeding.  

         I have considered the parties’ remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.