Decision No. 13,416

(May 12, 1995)

SOBOL, Commissioner.--Petitioners appeal respondent's actions concerning their daughter's educational placement. The appeal must be sustained in part.

Petitioners' daughter is fifteen years old and has been diagnosed with purine autism. She was initially classified autistic by respondent's committee on special education (CSE). However, a recent evaluation indicates a new diagnosis of progressive encephalopathy with severe to profound mental retardation. As a result, respondent's CSE recommended classification as multiply disabled. That classification was upheld on November 23, 1994 by an impartial hearing officer and the State Review Officer (Appeal No. 94-43).

Petitioners' daughter apparently also suffers from a seizure disorder. Petitioners requested another impartial hearing on or about April 28, 1993, challenging the adequacy of the CSE's evaluation as well as the appropriateness of the classification and placement recommendation based on that evaluation. Respondent contacted sixteen hearing officers before one accepted the assignment. Hearings were held on July 12 and 15, September 10, October 4, December 8, 1993 and February 15 and June 9, 1994. The hearing officer rendered a decision on November 23, 1994.

The parties have disagreed about the child's educational program since the 1984-85 school year. Although the record before me does not completely document the history of this long dispute, the facts are set forth exhaustively in three previous appeals to the Commissioner of Education concerning this child (Appeal of a Child with a Handicapping Condition, 28 Ed Dept Rep 323; Application of a Child with a Handicapping Condition, 31 id. 337; Appeal of a Child with a Handicapping Condition, 32 id. 104;) as well as three appeals to the State Review Officer (Application of a Child with a Handicapping Condition, Appeal No. 91-90; Application of a Child with a Handicapping Condition, Appeal No. 92-22; Application of the Board of Education of the Ellenville Central School District, Appeal No. 94-43).

After a decision was rendered in petitioners' first appeal to the Commissioner, petitioners brought a civil action seeking damages in the United States District Court for the Northern District of New York. In that case, the court granted petitioners' request for a preliminary injunction. On August 4, 1989, the Court directed respondent to provide the child with an in-home program of instruction on a twelve-month basis as the child's pendency placement during the lawsuit (20 USC 1415[e][3]). The Court did not reach the issue of the appropriateness of the placement. That litigation concluded in a monetary settlement in favor of petitioners.

In the current dispute, an impartial hearing was conducted concerning the adequacy of a recent evaluation of petitioners' daughter done at the Newington Children's Hospital in Connecticut, and the appropriateness of the classification and proposed placement based on that evaluation. A decision was rendered on November 23, 1994. In addition to the substantive issues raised, petitioners also challenged the timeliness of the impartial hearing. The record further indicates that petitioners initially raised, but subsequently withdrew, the issue of the placement of their daughter during the pendency of the hearing.

In this appeal, petitioners set forth numerous allegations against respondents, including failure to provide a timely hearing in violation of state and federal law, violations of the Individuals with Disabilities Education Act (IDEA), improper notice, unlawful termination of services and denial of a free and appropriate education (FAPE). They seek a determination of their daughter's pendency placement and allege that the 1990-91 court ordered in-home educational program is the last agreed upon placement. Petitioners also seek three years' compensatory education for the time they allege their daughter did not receive educational services.

Respondent disputes petitioner's contention that the court ordered in-home program was the last agreed upon placement between the parties and, therefore, denies that that placement is the "status quo." Respondent also contends that, in the most recent impartial hearing between the parties, petitioners withdrew their argument on the issue of their daughter's pendency placement. Finally, respondent denies petitioners' allegation that its decision to provide in-home special education services through two part-time teachers, rather than one full time teacher, constitutes a significant change in placement.

Petitioners claim that the sole issue in this appeal, although they request other forms of relief, is a determination of what constitutes the child's last agreed upon placement. Petitioners contend that the child's 1990-91 educational placement, which provided a full-time special education teacher in petitioners' home, was the last agreed upon placement. They further contend that since there is still no agreement or final administrative decision on a new IEP, the 1990-91 placement constitutes their daughter's pendency placement.

State and federal law require respondent to offer students with handicapping conditions an educational placement during the pendency of all proceedings (20 USC '1415 and Education Law '4404[4]). While respondent argues that the in-home placement is not the last agreed upon placement, it does not state what it believes is the last agreed upon placement, nor is there any evidence in the record of any subsequent agreed upon placement. Indeed, petitioners submit respondent's October 31, 1990 letter, received prior to resolution of the court proceeding, indicating respondent's agreement to the in-home placement. As evidenced by the 1990-91 individualized education program (IEP) and respondent's October 31, 1990 letter to petitioners that discusses the terms of a memorandum of agreement between the parties, the record before me indicates that the last agreed upon placement was the court ordered placement. Therefore, I must conclude that the in-home placement remains the status quo placement.

Petitioners also allege that respondent failed to provide them with a timely hearing as required by federal and State law. Respondent denies that it improperly delayed this matter. Education Law '4404(2) requires that the State Review Officer (SRO) review hearing officer determinations. Therefore, the issue of whether a decision was timely rendered is one that petitioner must raise before the SRO. While the Commissioner may compel a school district to provide a petitioner with a hearing officer's decision (see Appeal of Wenger, 33 Ed Dept Rep 711), in this case a decision has already been rendered by the hearing officer. Accordingly, I have no jurisdiction to review the issue of timeliness.

Petitioners also allege that respondent's assignment of two half-time special education teachers to replace one full-time special education teacher in the at-home program constitutes a change in placement. I note that petitioners did not raise this issue before the hearing officer. A determination of whether a staffing change in the delivery of educational services constitutes a change in placement involves substantive determinations of fact and must be raised in the first instance at an impartial hearing (Education Law '4404) and then, if necessary, before the State Review Officer.

I am compelled to comment upon the inability of the parties to resolve their differences amicably and in the best interest of the child involved in these disputes. This child's educational program has been the subject of extensive litigation for approximately ten years. The record indicates that petitioners' daughter is multiply disabled and requires specially tailored educational services. The parties apparently disagree upon the nature and location of those educational services. I urge the parties to work together to expeditiously provide petitioners' daughter with an educational program from which she can benefit.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that unless the Board of Education of the Ellenville Central School District and the petitioners agree otherwise, petitioners' daughter shall be placed, in accordance with the provisions of Education Law '4404(4), in an in-home special education program during the pendency of the review proceedings.

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