02-030

       Petitioner appeals from an impartial hearing officer's decision upholding and extending for an additional 45 days the placement of petitioner's son's in an interim alternative educational setting (IAES), notwithstanding his finding that the IAES and corresponding individualized education program (IEP), as implemented, denied the student a free appropriate public education (FAPE). Petitioner also appeals from the hearing officer’s failure to annul the recommendation of respondent's Committee on Special Education (CSE) because of procedural errors and from his failure to award compensatory education services to his son. Respondent cross-appeals, claiming that the hearing officer erred in reversing his prior ruling by allowing petitioner to produce witnesses, and in improperly precluding testimony from one of respondent’s witnesses. Respondent also asserts petitioner's claims should be dismissed due to several alleged procedural deficiencies. Lastly, respondent claims that, due to a subsequently agreed upon IEP and placement, the appeal should be dismissed as moot. The appeal must be sustained in part. The cross-appeal must be dismissed.

        As set forth in the IEP developed at a CSE meeting on October 9, 2001, petitioner’s son was identified by respondent's CSE as emotionally disturbed and placed in a 6:1+1 setting at the Gateway-Longview Day School/Treatment Program (Gateway-Longview), a private school. The student received related services consisting of group counseling once per week for 40 minutes, individual counseling once per week for 40 minutes, family counseling twice per month for 60 minutes, group speech therapy once per week for 30 minutes, and individual speech therapy once per week for 30 minutes, with crisis intervention services as needed (Exhibit 7).

        At the time of the hearing, petitioner's son was 13 years old (1/28/02 Transcript p. 180). According to a comprehensive assessment dated January 11, 2002, petitioner's son has a history of severe depression, extreme aggression, and self-harming actions (Exhibit 10). In the months prior to the hearing, petitioner's son exhibited incidents of aggression and acting out in school. Specific incidents included verbal threats, assaults, and threatening members of the staff with a razor blade (Exhibit 10). As a result of two of these incidents, a juvenile delinquency proceeding was commenced in Erie County Family Court, and the student was placed on probation for one year (Exhibit 10). An order of protection from July 6, 2001 through April 1, 2002 required him to refrain from assaulting or harassing any Gateway-Longview staff members (Exhibits 2 -5).

        On December 6, 2001, petitioner's son was involved in an altercation at school with another student, where he reportedly flashed gang signals and brandished a knife-like ceramic tool at the other student, and had to be restrained by staff members. (1/28/02 Transcript pp. 74-76; Exhibit 22). A formal suspension hearing and a CSE manifestation determination meeting were held on December 13, 2001 (Exhibit 23). The student admitted the misconduct charges (Exhibit 23). The CSE found that there was a nexus between the student's behavior and his disability, and developed a new IEP that placed him in an IAES of home instruction for 45 days (December 13, 2001 through January 28, 2002). It recommended that the student's individual and group speech therapy continue in his IAES (Exhibit 6). However, his crisis intervention, group counseling and individual counseling services were discontinued until the completion of the IAES period (1/28/02 Transcript p. 24; Exhibit 6). On December 21, 2001, respondent's superintendent of schools rendered a decision upholding the disciplinary charge against petitioner's son and accepting the recommendation of the CSE (Exhibit 23). By letter dated December 21, 2001, petitioner requested an expedited hearing with regard to the proposed change in her son's placement. (Exhibit A-5).

        The hearing was held on January 18, 23, and 28, 2002. The hearing officer rendered his decision on February 17, 2002, finding that the IEP prepared for the IAES period was procedurally flawed and that it also substantively denied a FAPE to the student. However, he allowed a 45-day extension of the IAES, and ordered the CSE to reconvene to develop a new IEP to provide the necessary instruction and related services to the student. The hearing officer denied petitioner’s request to place the student immediately in a self-contained class.

        Petitioner and respondent raise a variety of issues on appeal, most of which are procedural. Petitioner claims that (1) the decision should be annulled because the hearing was not conducted within the regulatory time limits, (2) the hearing officer erred in failing to annul the CSE recommendation for the new IEP after finding that the CSE lacked the additional parent member and that there was no evidence that the petitioner had received the proper notice prior to the December 13 CSE meeting, (3) the hearing officer erred in failing to annul the CSE recommendation after finding that the new IEP denied petitioner’s son a FAPE, and (4) the hearing officer was without authority to order a 45-day extension of the IAES. Petitioner requests that the CSE recommendation be annulled, that the student be provided with compensatory education for the services not provided during the 45 day IAES period, and that the CSE be ordered to recommend a new appropriate placement and IEP.

        Respondent contends that (1) the service of the papers commencing the appeal was improper and untimely, (2) the hearing officer erred in reversing his ruling that barred petitioner from presenting witnesses, (3) the hearing officer erred in precluding one of respondent’s witnesses from testifying, (4) petitioner's request for an expedited hearing was premature, and (5) the appeal is now moot.

        Respondent alleges that, subsequent to the hearing officer's decision, the CSE reconvened and recommended a new placement for petitioner's son, that petitioner allegedly consented to such placement, that on March 11, 2002 the IAES placement was terminated by mutual agreement, and that the student has since been attending classes in the new placement. The record contains no evidence of any new CSE meeting or new IEP to support respondent's allegations. However, even had the district provided evidence of a new agreed upon placement, that would still not necessarily render these proceedings moot. The end of a time period for which an IEP was devised does not necessarily render moot a challenge to that IEP, where the conduct complained of is capable of repetition, yet evading review (Honig v. Doe, 484 US 305 [1988]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036 [5th Cir. 1989]; De Vries v. Spillane, 853 F.2d 264 [4th Cir. 1988]). Here, petitioner seeks review of her son's placement in an IAES. Because of the generally limited duration of such placements (8 NYCRR 201.7[e] and 201.8[a]) it would, in most instances, be impossible to obtain meaningful review of a hearing officer's decision in a timely manner. Under the circumstances presented here, even if a new placement occurred before the expiration of the 45-day extension of the IAES, this appeal is not moot because the situation is capable of repetition while effectively evading review. Moreover, petitioner's claim for compensatory education services is clearly not moot.

        Petitioner contends that the hearing officer erred by failing to annul the CSE's recommendation after finding that respondent had failed to establish that it provided the petitioner with adequate prior written notice of the December 13, 2001 CSE meeting (8 NYCRR 201.7[a]), and that the CSE lacked the required additional parent member (8 NYCRR 200.3[a][1][viii]). Respondent did not appeal from those determinations, which are therefore final (34 C.F.R.§ 300.510[a]).

        A reviewing officer must consider whether a board of education and its CSE have complied with applicable procedural, as well as substantive, requirements in preparing an appropriate IEP for each student with a disability in its jurisdiction (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). Because the IEP in question applied only to the period of the IAES, which has now expired, no useful purpose would be served by annulling the CSE recommendation at this time. However, I will direct respondent to take such steps as are necessary to assure that proper notice and copies of the procedural safeguards are provided to parents in a timely manner and that parent members are properly included in all CSE meetings.

        In his decision, the hearing officer found that placement of the student in an IAES was appropriate, but that respondent had failed to provide appropriate services to petitioner's son while he was in the IAES. This determination was based on respondent's delay in beginning to provide services, the failure of a teacher to come to the student's home more than twice, and the failure to provide related services required by the IEP in effect prior to the student's placement in the IAES. Petitioner does not challenge the hearing officer's determination that placement of her son in an IAES was appropriate, but instead appeals from the hearing officer's failure to award compensatory education or to order corrective action based on his findings concerning the adequacy of the services provided. Respondent does not challenge the hearing officer's determination that it failed to provide appropriate services to the student. However, respondent asserts that it was not responsible for providing services from December 21, 2001 through January 7, 2002 when school was closed for the holidays and due to weather emergencies, nor during the period from January 17 through January 29, 2002 when the student was in a detention facility located outside the district.

        Compensatory education, the continuation of instruction to a student after he or she is no longer eligible for instruction because of age or graduation (Application of a Child with a Disability, Appeal No. 01-094), may be awarded if there has been a gross violation of the IDEA (Garro v State of Connecticut, 23 F3d 734 [2nd Cir. 1994]) resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v Wheaton, 916 F.2d 69 [2nd Cir. 1990]; Burr v Ambach, 863 F.2d 1071 [2nd Cir. 1988]; Application of a Child with a Disability, Appeal No. 01-094). Because petitioner's son is only 13 years of age and because the deprivation of instruction, if any, is of very limited duration and can be remedied through the provision of additional services before the student becomes ineligible for instruction, this is not a proper case for an award of compensatory education (Application of a Child with a Disability, Appeal No. 01-094).

        The student is entitled, however, to be provided with the services improperly denied him during his period of placement in an IAES. Federal regulations provide that, when a student is removed to an IAES, that the new placement must

(1)  Be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child’s current IEP, that will enable the child to meet the goals set out in that IEP, and

(2)  Include services and modifications to address the behavior [which forms the basis for placement in the IAES] that are designed to prevent the behavior from recurring (34 C.F.R. § 300.522[b]; see, 8 NYCRR 201.10[e]).

Here, the student's current IEP at the time of his removal to an IAES was the IEP developed at the CSE meeting held on October 9, 2001 (Exhibit 7), and the services to which the student was entitled in his IAES were those set forth in that IEP.

        Petitioner's son's initial IAES period began on December 13, 2001 and ended on January 28, 2002 (Exhibit 6). During that time period, school was closed for all students from December 21, 2001 through January 7, 2002, and the student was remanded to a detention facility located in a different school district from January 17, 2002 through January 29, 2002 (1/23/02 Transcript pp. 5-6, 1/28/02 Transcript p. 135), during which time respondent was not responsible for providing services (N.Y. Educ. Law § 3202[6-a]; 8 NYCRR 116.6). Hence, the period for which the student was denied appropriate services by respondent was December 13 through December 21, 2001 and January 7 through January 17, 2002. During that time period, there were 15 school days. A teacher came to petitioner's home to provide instruction on two days, but it does not appear that any related services were provided (1/28/02 Transcript p. 183). Accordingly, based upon the services recommended for petitioner's son in his October 9, 2001 IEP (Exhibit 7), he is entitled to additional services as follows: 13 days of instruction by a special education teacher, three 30-minute sessions of individual speech therapy, three 30-minute sessions of group speech therapy, three 40-minute sessions of individual counseling, and three 40-minute sessions of group counseling (Application of a Child with a Disability, Appeal No. 00-006).

        Petitioner claims that the hearing officer was without authority to extend the IAES for an additional 45 days because a hearing officer can only do so if the district initiates the hearing. An impartial hearing officer in an expedited hearing conducted pursuant to § 201.11 of the Regulations of the Commissioner of Education may order a change in placement for a student to an IAES (8 NYCRR 201.8[a]), and the procedures for doing so "may be repeated as necessary" (8 NYCRR 201.8 [d]). Section 201.11(a)(4) of the Regulations of the Commissioner specifically includes hearings that are brought by a parent concerning any decision to place the child in an IAES, which petitioner concedes she did (Petition, para. 11). Hence, the hearing officer did have this authority. However, having already determined that the original IAES was procedurally and substantively defective, the hearing officer should not have extended the IAES without ordering the necessary changes in the program to provide the required services.

        Because the hearing in this matter was concluded before the extension of the IAES began, the record contains no evidence of the services provided during the period of the extension. To the extent petitioner's son was not provided with the services specified in his October 9, 2001 IEP (Exhibit 7) during the extension period, respondent must now provide those services.

        I have considered petitioner's and respondent's other claims and cross-claims, which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that respondent take such steps as are necessary to assure that proper notice and copies of the procedural safeguards are provided to parents in a timely manner, and that additional parent members are properly included in all CSE meetings; and

IT IS FURTHER ORDERED that respondent is to provide petitioner's son with the additional services as specified in this decision.