The opinion of the court was delivered by: Brieant, J.
Before the Court in this appeal brought under the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §1400 et. seq., is Plaintiffs' motion for summary judgment filed on November 2, 2006 (Docs. 5 & 6). Plaintiffs seek a "modified de novo review" of the State Review Officer's ("SRO") interim decision, which reversed the Independent Hearing Officer's ("IHO") interim order to continue under the "stay-put" provision of the IDEA, the Early Intervention Services ("EIS") provided to the child pursuant to her Individualized Family Services Plan ("IFSP"), during the pendency of a challenge to the child's first Individualized Education Plan ("IEP") for the 2005-2006 school year. Unlike most cases brought in this Court under the IDEA, this case does not involve an ongoing dispute over an IEP's adequacy, but involves only a claim for compensatory education, based on the SRO's denial of continued IFSP services for a child matriculating from Early Intervention Services into preschool services. As explained more fully infra, Plaintiffs prevailed on their substantive challenge to the IEP's adequacy and the administrative record is not before the Court.
The Court discerns the following facts from the argument papers and decisions below.
R.J.C. is a minor child classified with Autistic Disorder, Verbal Apraxia, and Auditory Processing Disorder. Prior to her third birthday, the child received services from New York State's Early Intervention Program pursuant to an IFSP. The child reached the age of three in April of 2005, and in September of 2005, was transitioning from early intervention into a preschool program. An IEP for the 2005-2006 school year was developed by the District's Committee on Preschool Education ("CPSE"), which was challenged by her parents for failure to provide the child with a Free and Appropriate Public Education ("FAPE") under the IDEA.
By letter dated September 14, 2005 and amended December 9, 2005, the parents brought a challenge to the IEP, alleging that it failed to provide the child with a FAPE, and seeking reimbursement as well as an order of "stay-put" provision pendency entitlements based on the IFSP services previously provided. The District maintained that any pendency services available would be placement in the preschool program it designated in the challenged IEP. A hearing was conducted on the merits January 4 and 5, 2006.
The IHO meanwhile rendered an "interim" order on December 27, 2005, concluding that pursuant to the reasoning of the Court of Appeals for the Third Circuit in Pardini v. Intermediate Unit, 420 F.3d 181 (3d Cir. 2005), R.J.C. had a statutory "pendency" entitlement to continuation of the services called for under her IFSP, pending final adjudication of the parties' dispute on the merits of the child's first IEP. In Pardini, the Court held that where a proposed IEP had not been implemented when a dispute arose as to its content, the stay-put provision of the IDEA required that the child continue to receive the services she was then receiving under her IFSP, which constituted her "current educational placement," as it was the operative placement actually functioning at the time when the dispute first arose. Pardini appears to be the first case in which a federal circuit court of appeals has considered the issue of whether an IFSP can be used for pendency purposes when there is a dispute about the very first IEP developed due to the child reaching the age of 3 years.
The "stay-put" provision of the IDEA provides: Maintenance of current educational placement. Except as provided in subsection (k)(4), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, 20 USCS § 1415(j)(emphasis added).
New York's Education Law, provides in relevant part:
c. During the pendency of an appeal pursuant to this subdivision, unless the board and the parent otherwise agree: ... (ii) a preschool child not previously served pursuant to this section shall, if the parent agrees, receive services in the program designated by the board pursuant to such subdivision five, which designation resulted in such appeal.
NY CLS Educ § 4410[c][ii].
In New York, early intervention for disabled children up to three years old are implemented at the county level and funded by the NY State Department of Health ("DOH"), but at age three, the children become eligible for services through the local school district, although the DOH continues to provide funding for the services until the child turns five.
The Court in Pardini noted that "the IDEA both anticipates and condones the possible interchangeability of an IFSP and IEP during transition to preschool" and "expressly states that an IFSP may be used if it is 'consistent with State policy,' and 'agreed to by the agency and the child's parents.'" Pardini, 420 F.3d at 191, citing 20 U.S.C. § 1412(a)(9).
The IHO found that the District disregarded the IDEA's clear mandate that placement in the public school program for children applying for initial admission to public school can only be effectuated with the consent of the parents, which in R.J.C.'s case, had not been obtained. The IHO determined that since the parents had not consented to the CPSE's IEP, the IEP could not be implemented for pendency purposes, and that the only viable alternative was to continue (or, due to the time lapse, reinstate) the provision of services to the child in accordance with her IFSP. She held that in ...