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Decision No. 13,771

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Brentwood Union Free School District regarding the provision of special education services and pendency.

Decision No. 13,771

(May 30, 1997)

Stern, Brauer & Associates, attorneys for petitioner, Herbert J. Brauer, Esq., of counsel

Bernard T. Callan, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals respondent's alleged failure to provide her son with appropriate educational services and requests a determination of his pendency placement while she pursues an impartial hearing. The appeal must be sustained.

Petitioner's son is fifteen years old and attends respondent's public schools. He was classified as emotionally disturbed by respondent's committee on special education (CSE) on October 4, 1994 and provided one period per day of 5:1 resource room services while attending the eighth grade at South Middle School. On April 5, 1995, the CSE recommended changing his placement to a 12:1:1 self-contained special education class with thirty-minute counseling sessions once a week. The reason stated for recommending this more restrictive placement was to address severe behavioral problems which interfere with his learning. On November 13, 1995, the CSE recommended continuing his 12:1:1 placement with counseling in the ninth grade at its Freshman Center school but noted that a deterioration in the student's behavior would result in changing to a more restrictive out-of-district program operated by the board of cooperative educational services (BOCES). The student's individual education plan (IEP) developed at that meeting indicates that the CSE recommended a psychiatric evaluation but that the student's parents would obtain the evaluation at their expense. By letter dated December 7, 1995, petitioner requested a meeting of the CSE to discuss the present placement and the November 13, 1995 recommendation.

On January 2, 1996, the CSE met without petitioner present and recommended removing petitioner's son from its schools and applying to the BOCES for a center-based placement in a 6:1:1 self-contained class. The CSE also recommended discontinuing counseling because the student had not benefitted from it and continued to act out and disrupt class. The CSE decided to request that BOCES arrange for a psychiatric evaluation of the student and, while awaiting a response, to place petitioner's son on home teaching pending his acceptance to the BOCES placement.

When petitioner's son arrived at school on January 3, 1996, he was sent home and told he could no longer attend Brentwood Schools because he was "a BOCES student". By letter dated February 16, 1996, petitioner expressed dissatisfaction with the student's placement and requested an immediate meeting of the CSE. She wrote again on February 27, 1996 to complain about her son's placement and to request an impartial hearing and mediation to resolve the dispute. In this letter, petitioner suggested that her son's pendency placement should be home teaching during the hearing and appeal proceedings. The CSE met again on March 4 or 5, 1996 and petitioner apparently agreed to put her request for a hearing on hold to permit the CSE to meet on April 24, 1996. At the April 24, 1996 meeting, the CSE again recommended the 6:1:1 self-contained class at the BOCES center but added two thirty-minute counseling sessions per week. The April 24, 1996 IEP again indicated that petitioner would obtain a psychiatric evaluation and that the CSE would provide the recommended evaluation at respondent's expense only if petitioner encountered difficulty. The IEP required the student to remain out of school on home instruction "until an appropriate placement can be implemented". Petitioner submitted a new hearing request that same day and an impartial hearing was scheduled to be held on May 28, 1996. By letter dated May 8, 1996, petitioner's counsel requested that the student be returned to school immediately pending resolution of the impartial hearing.

Petitioner commenced this appeal on May 15, 1996, requesting inter alia, an interim order requiring that her son be immediately placed in an in-district 12:1:1 self-contained class pending any further administrative proceedings. On May 24, 1996, I issued an order requiring respondent to maintain petitioner's son at the Freshman Center School of the district tuition free, consistent with his IEP dated November 13, 1996, pending an ultimate determination of this appeal. On December 4, 1996, petitioner commenced a second appeal and I issued an order on January 21, 1996 requiring respondent to maintain petitioner's son in an in-district 12:1:1 self-contained class pending an ultimate determination of this appeal. The appeals have been consolidated for purposes of this decision.

In addition to her request for a determination of pendency during administrative proceedings regarding this matter, petitioner contends that the CSE recommendation of January 2, 1996 should be declared null and void because she immediately indicated her disagreement with that recommendation and was denied due process rights. Petitioner also contends that respondent unlawfully subjected her son to a long-term suspension without benefit of due process and in violation of law. Petitioner requests that respondent be required to provide compensatory education to her son to make up for the loss of appropriate education during the four months he was inappropriately placed on home tutoring. Respondent contends that the appeal should be dismissed because it was not initiated in accordance with Education Law Section 4404.

Both the Individuals with Disabilities Education Act (IDEA), 20 USC '1415[e][3] and Education Law '4404[4] require that, unless the parties agree otherwise, a child must be maintained in the "then current educational placement" during the pendency of any proceeding to review a CSE determination. The purpose of this "stay put" or "status quo" provision of the law is to preserve continuity of education for the child while the parties pursue appeals to resolve their differences.

When petitioner requested an impartial hearing on February 27, 1996, and again on April 24, her son was receiving home tutoring while awaiting acceptance to the BOCES program, having been removed from his 12:1:1 placement at the Freshman Center without petitioner's consent. Although petitioner suggested home teaching as the pendency placement for her son in February 1996, her attorney clearly expressed petitioner's strong objection to continuing home tutoring in a May 8, 1996 letter asserting that the child "be returned immediately to school pending resolution of the hearing."

Although respondent argues that the January 2, 1996 CSE recommendation replaced the Freshman Center 12:1:1 placement with home instruction as the student's "status quo" placement, petitioner was not present at that meeting and has expressed strong and consistent disagreement with removal of her son from his 12:1:1 placement.

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, home instruction does not automatically become the pendency placement for the student and written notice of the opportunity to return the student to the school setting must be provided pursuant to 8 NYCRR 200.5[a][2][iii] (Appeal of a Student with a Disability, 33 Ed Dept Rep. 16; Application of a Child with a Handicapping Condition, 29 id. 489, 495. Because of the highly restrictive nature of home instruction, a district may continue to offer home instruction as an interim placement during the pendency of review proceedings over the parent's objection only upon obtaining a court order where a student's return to class is "substantially likely to result in injury either to himself or others" (Honig v. Doe, 484 U.S. 305). In the absence of such an order, and because petitioner no longer consents to home instruction and continues to disagree with the recommended 6:1:1 BOCES placement, the pendency placement for this student is a 12:1:1 special class setting.

In addition, the CSE's recommendation that petitioner obtain a psychiatric evaluation at her own expense is an impermissible attempt to evade its responsibility under the IDEA (20 USC '1412[5][c]; 34 CFR 300.532, 300.534) and the Education Law ('4402[3][a]; 8 NYCRR 200.4[b],[e][4] to provide all necessary evaluations of the student at no cost to the parent. The CSE's recommendation is of particular concern in view of respondent's additional obligation under Section 504 of the Rehabilitation Act to conduct a reevaluation prior to changing the special education placement of a student with a disability (34 CFR 104.35[a], Nantucket (MA) Pub. Sch., 23 IDELR 117 [OCR 1995]; Fairbanks (AK) North Star Borough Sch. Dist., 21 IDELR 856 [OCR 1994]; Burg County (FL) Sch. Dist., 20 IDELR 920 [OCR 1993]; Greenbrier County (WA) School District, 16 EHLR 616 [OCR 1989]). Respondent is hereby admonished and directed to cease this practice with regard to petitioner's son and all other students.

The remaining relief requested by petitioner should more appropriately be raised before the impartial hearing officer whose jurisdiction extends to the proceeding she has requested pursuant to Education law '4404.


IT IS ORDERED that respondent shall maintain petitioner's son in a 12:1:1 special education placement pending all proceedings under the IDEA.