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Decision No. 13,045

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Dover Union Free School District regarding the provision of educational services pending proceedings.

Decision No. 13,045

(November 10, 1993)

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

Shaw & Silveira, Esqs., attorneys for respondent, Garrett L. Silveira, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to provide a specific tutor for her son during the pendency of her appeal challenging his special educational placement. The appeal is dismissed.

Petitioner's son is a thirteen year old student classified as learning disabled by respondent's Committee on Special Education (CSE). On June 4, 1992, the CSE recommended daily resource room services, counseling as necessary, Chapter 1 reading and math and summer tutoring. On September 14, 1992, the CSE reviewed the results of an evaluation, which recommended intensive remediation of the student's writing disability.

On October 19, 1992, the CSE and petitioner agreed upon an IEP for the 1992-93 school year. This IEP included individualized tutoring in the "Orton-Gillingham or similar method" for 60 minutes per day. Because respondent had no one on staff qualified to implement the program designated by the IEP, respondent hired Ms. O'Flannagan, who began working with the student on November 2, 1992. Ms. O'Flannagan implemented a program called "Alphabetic Phonics" which is a method similar to Orton-Gillingham.

On January 27, 1993, the CSE recommended that the current placement be continued and that the present language tutor begin working with the student's program teachers. This IEP was implemented by the CSE on February 9, 1993. However, respondent hired a new tutor, who charged a lower fee to provide the services in the IEP. This new tutor was trained in the Orton-Gillingham approach. On March 3, 1993 petitioner requested an impartial hearing due to the hiring of a different tutor. On June 2, 1993, in response to a prehearing status quo determination, respondent rehired Ms. O'Flannagan for the remainder of the school year.

On August 30, 1993 the hearing officer denied petitioner's request for compensatory education and approved the child's placement as appropriate. The hearing officer did not require the rehiring of Ms. O'Flannagan. On September 17, 1993, petitioner served a notice of intent to seek review of the hearing officer's decision. This appeal followed.

Petitioner seeks to compel Ms. O'Flannagan's rehiring and compensatory education for the time when Ms. O'Flannagan was not tutoring the student. Respondent contends that the last approved IEP is being fully implemented, and that a change in the service provider does not constitute a change in placement. Respondent further contends it is in full compliance with pendency placement requirements pending the outcome of petitioner's appeal of the hearing officer's decision.

The sole issue presented in this case is 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 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 an appeal.

A change in a child's educational placement refers to the general educational program in which the child is placed and not to all the various adjustments in that program that the educational agency, in the traditional exercise of its discretion, may determine to be necessary (seeConcerned Parents and Citizens for the Continuation of Education of Malcolm X. (P.S.79) v. New York City Board of Education, 629 F.2d 751 (2nd Cir.; cert. den. 449 U.S. 1078), where a change in students' school did not per se constitute a change in placement). A change in program occurs when changes are made in the required components of a pupil's Phase I IEP, such as modifications in the pupil/staff ratio, the amount of time scheduled for special education services, the extent to which a pupil 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, adaption 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).

The January 27, 1993 IEP continues the placement of the previous IEP, which called for "Orton-Gillingham or similar method". The record reflects that the current tutor is both trained in the Orton-Gillingham approach and is currently providing a similar method to petitioner's son. Because the student was receiving instruction in the "Orton-Gillingham or similar method" with both the first and second tutors, the nature and provision of services are essentially the same. Therefore, there has been no change in the placement or program and no violation of the status quo provision of the law (De Leon v. Susquehanna Community School Dist., 747 F.2d 149).