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Decision No. 13,047

Appeals of STUDENTS WITH DISABILITIES, by their parents, from action of the Boards of Education of the Brentwood, Commack, Bay Shore, Seaford and Sayville Union Free School Districts regarding the provision of educational services and pendency.

Decision No. 13,047

(November 15, 1993)

Stein & Schonfeld, Esqs., attorneys for petitioners, Seth P. Stein, Esq., of counsel

Bernard T. Callan, Esq., attorney for respondent Board of Education of the Brentwood

Union Free School District

Cahn, Wishod & Lamb, attorneys for respondent Board of Education of the Commack

Union Free School District, Robert H. Cohen, Esq., of counsel

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs.,

attorneys for respondent Boards of Education of the Bay Shore, Seaford and Sayville

Union Free School Districts, Jonathan Heidelberger and Lawrence W. Reich, Esqs.,

of counsel

New York State School Boards Association, amicuscuriae, Jay Worona, Esq., of counsel

SOBOL, Commissioner.--Petitioners in these appeals are all parents of students with disabilities. They reside in the Brentwood, Commack, Bay Shore, Seaford and Sayville school districts, respectively. Each student has been identified by his or her local school district committee on special education (CSE) as having a disability pursuant to the Individuals with Disabilities Education Act (IDEA) (20 USC 1400, etseq.) and Education Law, Article 89. For the 1992-93 school year, as in prior years, each CSE recommended resource room services daily on each student's individualized educational program (IEP). During that year, as in prior years, each student attended a parochial school located in the West Islip School District and the West Islip Board of Education provided the resource room services on site at the parochial schools.

In June 1993, all of the CSE's approved IEP's for petitioners' children that, for the first time, provided for daily resource room services at either the West Islip public schools or in the district of residence, rather than on site at the parochial schools. Each petitioner requested an impartial hearing pursuant to 20 USC '1415 and Education Law '4404(1) to challenge the decision to change the location of the resource room services. Although respondents agreed to schedule the impartial hearings, each took the position that petitioners were not legally entitled to such hearings. Petitioners initiated these appeals to challenge respondents' position and also to seek an order directing respondents to continue to provide resource room services at the parochial schools during the pendency of the hearings.

Respondents argue that petitioners are not entitled to an impartial hearing, claiming that by merely changing the location of the resource room they did not change the students' placements. In addition, respondents rely on Aguilar, et al. v Felton, et al., 473 US 402 (1985) and Zobrest v Catalina Foothills School District, ___ US ___, 125 L Ed 2d (1993) to argue that they are constitutionally barred from providing resource room services on the site of the parochial schools. Petitioners claim that the Zobrest decision overrules Aguilar and permits the provision of such services on site. Because the appeals present identical issues of law and similar issues of fact, they are consolidated for decision.

Several respondents raise a procedural argument which I will address first. They argue that, to the extent that they have scheduled impartial hearings pursuant to petitioners' requests, that part of petitioners' appeals should be dismissed as moot. However, as noted above, each respondent asserts that petitioners are not legally entitled to such hearings under the facts presented herein, based on respondents' contention that a change in placement has not occurred. Because of the importance of the issue presented to the education of students with disabilities and because respondents' position on the merits of this claim renders it capable of repetition, I will not dismiss it as moot but, instead, will address it.

Both Federal and State law set forth a comprehensive procedural scheme for challenging CSE recommendations. In pertinent part, 20 USC '1415(b)(1) and (2) require:

(b)(1) The procedures required by this section shall include, but shall not be limited to:

. . . .

(E) an opportunity [for parents] to present complaints with respect to anymatter relating to the identification, evaluation or educational placement of the child, or the provision of a free appropriate education to such child.

(2) Whenever a complaint has been received under paragraph (1) of this subsection, the parents or guardian shall have an opportunity for an impartial due process hearing ... (emphasis supplied).

Similarly, Education Law '4404(1) provides in pertinent part:

If the recommendation of the committee on special education is not acceptable to the parent ... such parents ... shall notify the board of education of this situation and the board shall appoint an impartial hearing officer to hear the appeal and make a determination ...

Petitioners challenge respondents' relocation of the resource room services on two grounds. First, they claim that, in this instance, by requiring their children to leave the parochial schools during the school day to go to the public schools for resource room service, respondents have violated their children's right to receive an education in the least restrictive environment (8 NYCRR 200.6[a][1]). They also argue that the change in location constitutes a change in their children's educational placement because it significantly affects their children's special education program and adversely impacts upon their participation in the education program offered at the parochial schools. Petitioners argue that, unlike prior cases cited by respondents herein, such as Matter of Ruth O., 16 Ed Dept Rep 137, the program in question is not being moved in its entirety to a new location, but rather the students are being pulled out of their regular educational environment in the parochial schools to receive the special education service recommended by the CSE's at the public schools. Consequently, petitioners claim that they are entitled to a due process hearing to challenge the change in location.

A change in a student's special education program requiring a due process hearing occurs when changes are made in the required components of a student's IEP. Such modifications include changes in pupil/staff ratio, the amount of time spent in special education services, the extent to which the student participates in regular education programs, the receipt of related services and/or consultant services, the length of the school year, as well as the use of specialized equipment, adaptive devices and testing modifications (8 NYCRR 200.4[c][2][iv][v]; Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 92) (emphasis supplied).

Petitioners raise substantial questions regarding the effect of changing the location of the special education services their children receive - both with respect to its impact on their regular education program and with respect to their right to an education in the least restrictive environment. The issues petitioners raise cannot be resolved without the benefit of a full record developed before an impartial hearing officer to determine whether a change of placement has occurred (see, Application of a Child with a Handicapping Condition, id.). Because petitioners raise substantive issues regarding the provision of a free appropriate education, I find that they are entitled to a hearing pursuant to 20 USC '1415(b) and Education Law '4404(1) to determine whether the change in location is appropriate and, more fundamentally, whether the change in the location of the services constitutes a change in placement.

Petitioners also seek an order directing respondents to continue to provide the resource room services at the parochial schools, where they had previously received them, during the pendency of the impartial hearings. Respondents object on two grounds. As noted above, respondents contend that the change in location does not constitute a change in placement. They argue, therefore, that they have maintained the students' pendency placements by continuing to provide the resource room services recommended on the students' IEP's, regardless of their location. For the reasons set forth above, I am unable to resolve that issue on the record before me.

Both Federal and State law require that, during the pendency of an impartial hearing, students shall remain in their current educational placement (20 USC 1415[e][3]; Education Law '4404[4]; Appeal of a Student with a Disability, 33 Ed Dept Rep 16; Application of a Child with a Handicapping Condition, 27 id. 65). The intent of the law is to preserve the statusquo until any disagreement over the CSE's recommendation can be resolved through the hearing process. Because the crux of petitioners' objections to the recommended placements revolve around the very question to be presented at the hearing - whether the change in location in this case constitutes a change in placement - and the move itself may, therefore, affect the students' "current educational placements" (Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 92), respondents must continue to provide the resource room services at the parochial schools where the students previously received them until a decision is rendered by the hearing officers.

Respondents also assert that providing resource room services on the site of the parochial schools violates the constitutional requirement of separation of church and state. In raising their constitutional argument respondents rely upon the United States Supreme Court decision in Aguilar, et al. v Felton, et al., supra. In that case, the Court found impermissible the delivery of Chapter 1 services on the site of a parochial school. I note, however, that, despite the fact that Aguilar was decided in 1985, respondents continued to provide resource room services under IDEA to these students on site at the parochial schools until June 1993. Petitioners argue that the Supreme Court's recent decision in Zobrest v Catalina Foothills School District, supra, overturns Aguilar. However, in Zobrest, the Court simply concluded that the Establishment Clause of the United States Constitution did not prohibit the provision of a sign language interpreter pursuant to IDEA on the site of a parochial school. To the extent the parties advance their respective interpretations of Zobrest and apply Aguilar and Zobrest to the facts of this case, they raise novel constitutional questions that the Commissioner of Education must decline to decide (Appeal of DeGroff, et al., 31 Ed Dept Rep 332; Appeal of DePasquale, 30 id. 361). Accordingly, the constitutional claims raised by the parties must be pursued in the appropriate judicial forum. Although judicial resolution of those claims may impact on respondents' ability to comply with my directive, until such a decision is rendered by a court of competent jurisdiction, respondents are directed to continue to provide the resource services on the site of the parochial schools while the hearings go forward.

THE APPEALS ARE SUSTAINED, and

IT IS ORDERED that respondents go forward with the scheduled impartial hearings, if they have not already done so, and

IT IS FURTHER ORDERED that, during the pendency of the impartial hearings, respondents continue to provide resource room services on the site of the parochial schools where the students herein attend.

END OF FILE