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June 25, 1985

THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, Plaintiff, against GORDON AMBACH, Commissioner of Education for the State of New York, and ATARA J., as guardian-parent and next friend of Asher J., a handicapped child, Defendants.

The opinion of the court was delivered by: PLATT



 This action arises under the Education for All Handicapped Children Act ("EHA"), 20 U.S.C. § 1401 et seq., and turns on a dispute over whether the private school in which a handicapped child was enrolled pursuant to a Court's order issued in Jose P. v. Ambach, et al., 3 E.H.L.R. 553:299 (E.D.N.Y. 1982) (Nickerson, J.), became his "current education placement" under 20 U.S.C. § 1415(e)(3) until proceedings reviewing placement recommendations made by the Board of Education of New York City concluded that a proper placement recommendation had been made.

 If the private school was the child's "current placement" as defendant New York State Commissioner found, then the City's Board of Education is liable for the child's tuition up and until its placement recommendation was confirmed as proper. Plaintiff, the City's Board of Education, maintains that the private school in which defendant Atara J.'s son was placed never became his current placement and further maintains that it should not be liable for his school tuition after it had made an appropriate placement recommendation for 1983-84 in May of 1983.

 To side with the City Board of Education's position would eviscerate the meaning and intent of the procedural safeguards embodied in 20 U.S.C. § 1415(b)-(e), the purpose of which was to ensure some stability in a handicapped child's school placement during the pendency of impartial review proceedings of the school agency's placement recommendation. A recent Supreme Court case confirms the importance of these safeguards, but its ruling does not directly help us in this case. Town of Burlington v. Dep't of Education of the Commonwealth of Massachusetts, 471 U.S. 359, 105 S. Ct. 1996, 2002, 85 L. Ed. 2d 385 (1985). Because of the interpretation of these statutory safeguards is of some importance, this Court takes the time to address the present case.


 Asher J. is an emotionally handicapped child whose parents enrolled him in the Alternative School in June of 1982 pursuant to the memorandum and order of Judge Nickerson of the Eastern District of New York in January 1982. This order which specifically incorporated the Special Master's Report No. 8 and appeared as Jose P. v. Ambach, et al., 3 E.H.L.R. 553:299, was dircted at overcoming the enormous delays by the City of New York in moving towards offering every handicapped child within its jurisdiction a "free appropriate education," the right to which was mandated by the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq. The order authorized parents of handicapped children for whom an appropriate placement was not recommended by plaintiff's Committee on the Handicapped ("COH") within 60 days after the referral to the COH for classification and placement to enroll that child in a private school approved by plaintiff at plaintiff's expense.

 After Asher's parents had enrolled him at the Alternative School pursuant to the Court order, plaintiff's COH recommended that Asher be classified as emotionally handicapped and placed in a class for such children at P.S. 99. Asher's mother, defendant Atara J., decided to avail herself of the right to apply for a review of the COH's recommendation by an impartial hearing officer as it accorded under 20 U.S.C. § 1415(b)(2).

 By a decision dated March 8, 1983, plaintiff's hearing officer determined that the COH had not been properly constituted, nor had it followed proper procedures when it had made its initial placement recommendation; for example, no physician or parent of another handicapped child was present and Atara J. was found not to have consciously waived her right to the presence of either of these parties. Plaintiff's Rule 3(g) Statement, Exhibit 4 at 2-3. More importantly, the hearing officer concluded that the COH had failed to demonstrate the appropriateness of the placement it had offered Asher for the 1982-83 school year and that the Alternative School was Asher's "current placement" and "an appropriate placement for Asher, with continued public funding, until and unless a suitable substitute is provided." Id. at 10. Accordingly, the officer ordered plaintiff to fund Asher's attendance at the Alternative School for the 1982-83 school year.

 In May of 1983, plaintiff's COH reviewed Asher's case, again identified him as an emotionally handicapped child, and recommended that he be placed in a class for emotionally handicapped children at J.H.S. 303, a public school, for 1983-84. Again, Asher's mother sought review by an impartial hearing officer. This time, in a decision dated December 28, 1983, the hearing officer found that the proposed placement had been appropriate and also denied the parent's request for tuition reimbursement. Plaintif's Rule 3(g) Statement, Ex. 6. Subsequently, Asher's mother appealed to the State Commissioner of Education for a review of this decision, a right accorded under 20 U.S.C. § 1415(b)(3).

 By a decision dated April 2, 1984, the State Commissioner upheld the hearing officer's finding that the recommended placement was appropriate but reversed his ruling on the question of tuition reimbursement. Plaintiff's Rule 3(g) Statement, Ex. 1. The Commissioner held that since the Alternative School was Asher's "current placement" under 20 U.S.C. § 1415(e)(3) and New York Education Law § 4404(4), the equivalent of the federal law section, the Board of Education was responsible for Asher's tuition until its proposed placement was finally confirmed as appropriate by the Commissioner's April 2, 1984 decision. In this action, plaintiff seeks a reversal of the Commissioner's decision concerning its liability for Asher's tuition.


 Section 1415(a) of 20 U.S.C. states that any local educational agency receiving assistance under the EHA must "establish and maintain procedures in accordance with" § 1415(b)-(e) which "assure that handicapped children and their parents or guardians are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies or units."

 One of these safeguards is the right given in 20 U.S.C. § 1415(b)(2) to seek review of a school agency's proposed placement. Another safeguard, provided in 20 U.S.C. § 1415(e)(3), is intended to maintain some stability and continuity in a child's school ...

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