Decision No. 12,960

(July 20, 1993)

Mid-Hudson Legal Services Inc., attorneys for petitioner, RosaLee Charpentier, Esq.,

of counsel

Neal H. Rosenberg, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to allow her son to return, during the pendency of her appeal challenging his special educational placement, to the school he attended prior to his suspension. On May 5, 1993, I issued an interim order directing respondent to reinstate petitioner's son pursuant to his last individualized education program (IEP). I now sustain this appeal on the merits.

Petitioner's son is sixteen years old and was classified emotionally disturbed by respondent's Committee on Special Education (CSE) in 1988. Until his suspension in December 1992, the student attended Roosevelt High School, pursuant to his IEP, where he received resource room services five days a week and counseling once a week. Following his suspension, a superintendent's hearing was scheduled for December 14, 1992. Instead of proceeding to the hearing, the parties agreed that the student would be placed on disciplinary probation and home instruction until the CSE met to review his placement.

On January 4, 1993, the CSE met and recommended the student's placement in a day treatment program operated by the Board of Cooperative Educational Services (BOCES). Petitioner requested an impartial hearing on January 8, 1993 to challenge the recommendation and demanded her son's return to Roosevelt High School as his "pendency placement". An impartial hearing was scheduled for February 22, 1993. In an attempt to resolve the dispute over his placement, the parties agreed to a trial placement at the Alternative High School operated by BOCES. On February 4, 1993, petitioner's counsel agreed to adjourn the impartial hearing contingent upon the student's adjustment to the Alternative High School. In her correspondence with the district, petitioner's counsel consented to an adjournment with the explicit understanding that, in the event of an appeal, the student preserved his right to assert that his placement in the regular high school with resource room and counseling services remained his "status quo" placement.

On February 24, 1993, the student was suspended from the Alternative High School program for five days. On March 12, 1993, petitioner reinstated her request for an impartial hearing. As a result of a superintendent's hearing held on March 30, 1993, the student was suspended indefinitely from the Alternative High School with a directive that he resume home instruction until an agreed upon placement other than Roosevelt High School or the Alternative High School could be reached. Petitioner commenced this appeal on April 5, 1993.

Petitioner contends that her son has the right to remain in the "current educational placement" during the pendency of his appeal. Petitioner asserts that since her son's last IEP provided for his placement at Roosevelt High, he is entitled to return there. Petitioner further contends that respondent failed to properly evaluate her son prior to recommending a segregated placement. She also alleges that by maintaining the student on "home instruction", her son is being denied his right to a free appropriate public education in the least restrictive environment.

Respondent contends that until the CSE convenes to recommend an appropriate alternative, home instruction is the student's "status quo" placement pursuant to the parties' December 14, 1992 agreement. Since neither party claims the BOCES Alternative High School as the status quo placement, I will not consider that placement in making my decision.

The sole issue presented in this case involves a determination of this student's "current educational placement" for purposes of Education Law '4404(4) and the Individuals with Disabilities Education Act (IDEA, 20 USC '1415[e][3]). Both the IDEA and Education Law '4404(4) require that, unless the parties agree otherwise, a child must be maintained in the "current educational placement" during the pendency of any proceeding to review a CSE determination. Also referred to as the "stay put" or "status quo" provision of the law, it preserves continuity of education for the child with an IEP during the pendency of appeals.

When petitioner requested an impartial hearing on January 8, 1993, her son was receiving home instruction during his suspension from Roosevelt High School. However, because a suspension of ten or more days amounts to a change of placement under the IDEA, in the absence of an agreement, respondent would have had to obtain a court order to extend the suspension or the home instruction beyond the ten days (see, Honig v. Doe, 484 U.S. 305). Since the parties had reached an agreement on December 14, 1992 to extend home instruction until the CSE convened, judicial intervention was unnecessary.

Although respondent now argues that the December 14, 1992 agreement replaced Roosevelt High School with home instruction as the student's "status quo" placement, subsequent events indicate otherwise. Despite the CSE's recommendation on January 4, 1993, to change the student's placement, his IEP continued to list Roosevelt High School as his "current school" and the ninth grade resource room as his "current grade/program." Moreover, the record indicates that petitioner consistently asserted in both her January 8, 1993 hearing request and in correspondence from her lawyer to respondent dated February 4, 1993, her position that her son's "status quo" placement remained the program recommended in his IEP at Roosevelt High School.

In any event, a mutually agreed upon interim change in the provision of special education services for reasons other than "status quo" does not affect a student's right to be maintained during the pendency of proceedings in his "then current educational placement" (Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 489, Matter of a Handicapped Child, 21 id. 517). This is particularly true in cases where an agreement is reached to avoid litigation. As indicated in Matter of Handicapped Child, 21 Ed Dept Rep 196, 200-201:

The fact that petitioner agreed to an extension of home instruction to enable the CSE to meet to consider her son's placement after his suspension from Roosevelt, does not automatically change his "status quo placement" for purposes of Education Law ''4404(4) and 20 USC 1415(e)(3). When, as here, the parent initially consents to home instruction as an interim placement but then disagrees with the new CSE recommendation and requests an impartial hearing, written notice of the opportunity to return the student to the pendency placement must be provided pursuant to 8 NYCRR 200.5(a)(2)(iii) (Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 489, 495). Of course, if the district has evidence that the student would pose a danger if returned to the school setting, it may seek a court order to continue home instruction in lieu of reinstatement to the pendency placement (Honig v Doe, supra).

Since this student's IEP continues to indicate that his special education program would be implemented at Roosevelt High School, his "then current placement" remains in a regular education setting. It should be noted, however, that to the extent respondent does not change any of the elements of a student's IEP, including provisions for his interaction with nondisabled peers, respondent may change the location of the student's placement without triggering a change in his placement (Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 92). Accordingly, although this decision requires respondent to return this student to a regular education setting consistent with his IEP, it does not necessarily require the district to return him to Roosevelt High School.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that absent an agreement with the petitioner, respondent shall maintain petitioner's son at Roosevelt High School or in a comparable regular school setting in the educational program set forth in his last undisputed IEP, pending all proceedings under the IDEA.

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