The State Education Department
State Review Officer

No. 95-63


Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Robert S. Nobel, Esq., of counsel



        Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request that respondent be directed to provide occupational therapy to her son after school, rather than during school, and which directed respondent's committee on special education (CSE) to consider petitioner's request for an increase in the frequency of the child's occupational therapy. The appeal must be dismissed.

        Petitioner's son is eight years old. He is enrolled in a regular education third grade in respondent's P.S. 9, the school which he has attended since kindergarten. The child has reportedly been in respondent's gifted and talented program since kindergarten.

        The child's classification as speech impaired is not in dispute. In a March, 1995 speech/language evaluation, the child was described as having mild delays in his expressive and receptive language skills. His speech intelligibility varied, and he was reported to have difficulty following certain multi-step instructions. The child's evaluator recommended that the child receive speech/language therapy in a group of no more than five children, twice per week, to improve his speech articulation, and auditory processing skills, and to improve his ability to formulate complex sentences. In a March, 1995 psychological evaluation, the boy was described as having a low average verbal IQ, and an average performance IQ. He was also described as highly motivated, and as having age appropriate social and emotional development. The child, who was in the second grade when he was evaluated, was reported to have mathematical computation skills at an early second grade level. However, his word identification, passage comprehension, and mathematical application skills were all above the second grade level.

        In May, 1995, a physician who had evaluated the child reported that the child had developed epilepsy in 1994, and was being treated for that condition with an anticonvulsant medicine. The physician reported that the child also took medication for asthma. Although the child's reflexes, coordination, and sensory function were described as normal, the physician suggested that the child might have an attention deficit disorder, and recommended that additional testing be performed.

        The child's second grade teacher reported that the child had difficulty with his fine motor skills, which was reflected in his unsteady and messy handwriting. She also reported that the child had trouble listening, and focusing upon his work. The teacher indicated that the child had difficulty completing his work on time because of his distractibility. She noted that the child had fallen asleep in class earlier in the school year, but had not done so after the dosage of his medication was altered.

        On June 14, 1995, a school based support team (SBST), consisting of an educational evaluator, a speech teacher and a school psychologist, recommended that the child remain in respondent's regular education program for the third grade during the 1995-96 school year. Petitioner participated by telephone in the SBST meeting. The SBST also recommended that the child receive speech/language therapy in a group of no more than three children twice per week, and individual occupational therapy once per week for 45 minutes. In addition, the SBST recommended that time limits be waived on the boy's tests, and that he take tests in a separate location.

        Petitioner did not dispute the SBST's recommendation with respect to the child's classification, or placement. She also accepted the SBST's recommendation that the child receive speech/language therapy and occupational therapy during the 1995-96 school year. However, she asked the SBST to specify that the child receive occupational therapy after school, rather than as a "pull-out" service, i.e., a related service provided to a child who has been removed from class to receive that service.

        The SBST functioned as a subcommittee of the CSE under Section 4402 [1][b][1][b][i] of the Education Law, which authorizes a CSE subcommittee to perform annual reviews in certain instances, and provides that upon receipt of a parent's written request, the subcommittee shall refer to the CSE any matter in which the parent disagrees with the subcommittee's recommendation. Petitioner was reportedly not aware of her right to obtain a CSE review of the SBST's recommendation. She requested that an impartial hearing be held to review the SBST's recommendation, with respect to whether the child's occupational therapy should be provided as a pull-out service, or after school by a private occupational therapist.

        At the hearing, which was held on July 12, 1995, petitioner indicated that she also wished to have the amount of the child's occupational therapy increased from 45 minutes once per week to 30 minutes twice per week, but would contact the SBST about recommending the requested change in the amount of service. With regard to the time and place for the child's occupational therapy, petitioner asserted that her child should not be removed from his regular education class to receive occupational therapy because his removal from class could negatively affect his academic and social development. She also argued that the child's removal from class to receive occupational therapy would violate Section 504 of the Rehabilitation Act of 1973 (29 US 794), because the child would allegedly be treated differently by respondent as a result of his disability (cf. 18 IDELR 787). In response to a question by the hearing officer, petitioner acknowledged that she had no objection to the child receiving speech/language therapy as a pull-out service.

        The hearing officer rendered her decision in this proceeding on August 4, 1995. She found that respondent was not required as a matter of law to provide occupational therapy to the child after school, and noted that petitioner's claim was premature because respondent had not determined when and by whom the child's occupational therapy would be provided. The hearing officer specifically rejected petitioner's claim with respect to Section 504 of the Rehabilitation Act of 1973. She also noted that respondent's representative at the hearing had asserted that respondent's policy was not to remove children from class for related services at any time when instruction was being given in a major academic subject. She ordered the CSE to ensure that the child was not removed from class to receive either speech/language therapy or occupational therapy during instruction in any major academic subject. The hearing officer also directed the CSE to reconvene to consider petitioner's request for an increase in the amount of the child's occupational therapy.

        In its answer to the petition, respondent asserts that the appeal is moot, as a result of an event which occurred after the petition was served. Respondent alleges that petitioner reappeared before the hearing officer on September 20, 1995. Since respondent had not employed an occupational therapist to provide therapy to children who attend P.S. 9, petitioner was issued a "related service authorization" (RSA), which she could use to obtain occupational therapy from a private therapist, at respondent's expense, after normal school hours. Petitioner has not disputed respondent's assertion that the matter is moot because petitioner has in fact obtained the relief which she was seeking in this proceeding.

        In general, a case is moot when the issues presented are no longer live or the parties do not have a legally cognizable interest in the outcome (Stellato v. Bd. of Ed. Ellenville CSD, [U.S. D.C. N.D. N.Y., 1994]). In this instance there is no continuing disagreement between the parties about the nature of the child's program, i.e., when and by whom will the child's occupational therapy be provided. The State Review Officer is not required to determine issues which are no longer in controversy, or to make a determination which will have no actual impact upon the parties (Application of a Child with a Handicapping Condition, Appeal No. 91-45; Application of a Child with a Disability, Appeal No. 95-52).





Dated: Albany, New York __________________________
November 28, 1995 ROBERT G. BENTLEY