The State Education Department
State Review Officer

No. 97-72
97-91

 

Applications of a CHILD WITH A DISABILITY, by his parent, for review of the determinations of two hearing officers relating to the provision of educational services by the Board of Education of the Hermon-DeKalb Central School District

Appearances:
Gardner and Miles, L.L.P., attorneys for petitioner, Gary W. Miles, Esq., of counsel
Ferrara, Fiorenza, Larrison, Barrett and Reitz, P.C., attorney for respondent, Susan T. Johns, Esq. of counsel

 

DECISION

        Petitioner has filed separate appeals from the decisions of two impartial hearing officers. Her appeals have been consolidated for the purpose of this decision because both hearing officer decisions relate to the educational placement of petitioner's son during the 1997-98 school year. Petitioner's first appeal is from a hearing officer's determination which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's son should be placed in a BOCES 6:1+1 special education class in the Gouverneur Central School District. The boy had previously attended respondent's schools. The second appeal is from an impartial hearing officer's determination pursuant to the provisions of 20 USC 1415 (k) which authorized respondent to temporarily place the boy in the BOCES class as an "appropriate interim alternative educational setting" pending petitioner's appeal from the first hearing officer's decision. The first appeal must be sustained. The second appeal must be dismissed.

        Petitioner's son, who is fifteen years old, sustained a traumatic brain injury and multiple facial fractures when he was struck by a car while riding his dirt bike on December 25, 1994. He was reportedly comatose for about three weeks after his accident. At the end of January, 1995, he was transferred to the St. Camillus Health and Rehabilitation Center. He was discharged from that facility on or about March 2, 1995. At the time of his accident, petitioner's son was in the sixth grade in respondent's schools. He had received satisfactory grades while in elementary school.

        Prior to his discharge, petitioner's son was evaluated by a neuropsychologist, who reported that the boy's ability to focus attention and sustain concentration was only fair, and that his visual scanning/matching was performed very slowly. On the Wechsler Intelligence Scale for Children – Third Edition (WISC-III), the boy achieved a verbal IQ score of 67, a performance IQ score of 63, and a full scale IQ score of 62. The psychologist reported that the boy's capacity to acquire, retain and retrieve new information was moderately reduced, and that his learning and memory were strongest when information was presented to him both visually and auditorily. On the Wide Range Achievement Test-3 (WRAT-3), the boy earned grade equivalent scores of 3.4 for reading recognition, 2.6 for spelling, and 2.4 for mathematics. The psychologist indicated that the boy's reading was limited to sight recognition because he was largely unsuccessful with reading decoding. While the boy had functional communication skills, some relatively simple problem solving skills, and a pleasant personality, the psychologist noted that the boy's deficits included inconsistent attention, reduced upper extremity fine motor functioning, impaired new learning and memory, limited complex reasoning skills, and substantially reduced basic academic abilities. He opined that those deficits were consistent with an acquired organic brain impairment of significant severity.

        On February 28, 1995, respondent's CSE met with the boy's parents to prepare the boy's individualized education program (IEP) for the remainder of the 1994-95 school year. The CSE recommended that petitioner's son be classified as traumatically brain injured (see 8 NYCRR 200.1 [mm][12]). It should be noted that the boy has continued to have that classification, and that his classification is not disputed in this proceeding. The CSE also recommended that petitioner's son remain in regular education classes, but that he receive resource room services for two periods per day and that an individual aide assist him throughout the school day. The boy was described in his IEP as having below average cognitive skills, and as acquiring new skills slowly. The IEP also indicated that the boy's classroom behavior did not seriously interfere with instruction. The CSE further recommended that the boy receive individual speech/language therapy three times per week, speech/language therapy in a group twice per week, physical therapy three times per week, occupational therapy three times per week, and adaptive physical education twice per week. The boy's parents accepted the CSE's recommendations, which were reportedly implemented two days before respondent approved the recommendations. Those recommendations were consistent with the recommendations made by the staff of the St. Camillus Health and Rehabilitation Center (Exhibit H).

        On May 5, 1995, the boy was observed in school by Ms. Jaleh Zandi of the North Country Regional TBI Center, who noted that the boy's distractibility had increased during the day. She indicated that the boy appeared to be able to converse adequately, but his word retrieval and vocabulary had been reduced. He also demonstrated difficulties with his long-term and short-term memory. Ms. Zandi made a number of recommendations, including one to extend the boy's educational programming from a ten-month basis to a twelve-month basis.

        On June 15, 1995, the CSE reviewed the boy's progress. Although his reading skills had reportedly improved to about the fourth grade level, his mathematics skills had reportedly remained at the second grade level. The IEP which the CSE prepared for the boy on that date indicated that he had some problems interacting appropriately with his peers, and that he was allegedly rude to his teachers on occasion. The boy's counselor indicated that the boy often acted without considering the consequences of his actions, i.e., that he was impulsive, and that he had difficulty accepting changes in his routine. The CSE adopted Ms. Zandi's recommendation, and it recommended that the boy be tutored for six hours per week, and receive speech/language therapy, physical therapy, and occupational therapy during the summer of 1995.

        On July 12, 1995, petitioner's son was re-evaluated by the neuropsychologist at the St. Camillus Health and Rehabilitation Center who had evaluated the boy in February, 1995. The psychologist reported that the boy had some difficulty performing tests that required a significant degree of focused attention or sustained concentration. The boy's handwriting was described as being marginally legible. On the WISC-III, the boy achieved a verbal IQ score of 72, a performance IQ score of 68, and a full scale IQ score of 68. On the WRAT-3, petitioner's son earned grade equivalent scores of 4.5 for reading recognition, 2.7 for spelling, and 4.2 for arithmetic. The psychologist reported that the boy had made progress since the previous evaluation in terms of his mental processing speed, motor function in his upper right extremity, auditory comprehension, and learning memory, as well as in his reading and mathematics skills. He recommended that the boy's teachers go over new material repeatedly with him in order to enhance the boy's retention, and he recommended that the boy's learning be "paced".

        In September, 1995, petitioner's son entered the seventh grade. He reportedly began to exhibit aggressive behavior towards his peers and uncooperative behavior in class. On October 10, 1995, the CSE recommended that the boy's counseling be increased to twice per week, and that his occupational therapy be increased to six hours per month. The CSE met again on December 4, 1995, January 11, 1996, February 13, 1996, and March 19, 1996 to discuss concerns about the boy's behavior. At the December meeting, the CSE recommended that certain testing modifications be implemented. It also considered a consultant's suggestions about preparing a behavior contract for the boy. In a subsequent report, the consultant, who had observed the boy in school for three days, reported that the boy did not understand why he should not react physically when he or his friends were challenged. He recommended that the boy's understanding of expected social norms in school be assessed; and he discussed the use of a positive reinforcement system for the boy in connection with a series of short-term behavioral objectives. At its January meeting, the CSE recommended that the boy's speech/language therapy be discontinued, and that his resource room services be increased to thirteen times per month. The record does not reveal what, if any, action was taken by the CSE at its February and March meetings.

        On April 18, 1996, the CSE recommended that the boy receive a neuropsychological evaluation. That evaluation was performed on May 30, 1996 by the neuropsychologist who had previously evaluated the boy. The neuropsychologist alluded to the boy's behavioral problems at home and in school. At home, the boy was reportedly easily angered, and reportedly yelled at his family and broke objects. He had reportedly been disciplined in school for swearing and throwing books and other objects to the floor. The neuropsychologist reported that he administered the WISC-III to the boy, who had achieved a verbal IQ score of 79, a performance IQ score of 80, and a full scale IQ score of 77. Those scores placed the child in the borderline range intellectually. On the WRAT-3, the boy achieved third grade reading recognition and spelling scores, and fourth grade arithmetic scores. The neuropsychologist reported that the boy had made reasonable gains in the ability to write and draw with his right hand, and had made good progress in improving his processing speed, non-verbal reasoning, and intellectual functioning. He opined that further spontaneous recovery of any appreciable magnitude from the effects of the boy's traumatic brain injury should not be anticipated.

        On May 14, 1996, the CSE conducted its annual review of the boy. The minutes of that meeting reveal that the boy was achieving satisfactory grades in his English, social studies and science courses. His spelling performance was reported to be hindered by deficits in his long-term memory, and his performance in mathematics had reportedly declined to a second grade level. The boy's resource room teacher indicated to the CSE that the boy's level of effort varied considerably. The CSE discussed the boy's testing modifications. It also discussed whether the boy should receive the services of a teaching assistant (see 8 NYCRR 80.3 [b]), or a teacher's aide (see 8 NYCR 80.33 [a]). For the 1996-97 school year, the CSE recommended that the boy be enrolled in regular education eighth grade classes, except for adaptive physical education. It deferred a decision on the teaching assistant/teacher aide issue, pending clarification by the State Education Department. The CSE recommended that the boy receive resource room services twice per day, counseling for 30 minutes per week, 45 minutes of physical therapy twice per week, and 45 minutes of occupational therapy twice per week from one provider and three hours of such therapy per month from another provider. For the summer of 1996, the CSE recommended that petitioner's son receive two and one-half hours per day of individual instruction, plus physical therapy and occupational therapy.

        On June 5, 1996, a BOCES occupational therapist evaluated petitioner's son to ascertain what assistive technology devices he might require. Noting that the boy could do some writing, but was unable to write quickly enough to take notes in his classes, the occupational therapist opined that the boy could not use a laptop computer for this purpose because of his poor keyboarding skills and his need for additional time to type his thoughts. She recommended that he be instructed in keyboarding skills, and that he use a large print keyboard. The occupational therapist also suggested that the use of a talking word processor be considered.

        The CSE reconvened on July 2, 1996 to discuss changes in the scheduling of the boy's related services, and the possibility of using a token system to control the boy's behavior. In any event, the boy's summer school instructor subsequently reported that the boy's academic performance and his behavior had been satisfactory. She instructed the boy in reading, writing, and health. The instructor, who became the boy's resource room teacher for the 1996-97 school year, also worked with the boy on a decision-making strategy known as IDEAL.

        On September 26, 1996, the CSE met to revise the boy's IEP to include the use of large print books and books on tape. It also reduced the amount of the boy's adaptive physical education instruction to once per week, upon the recommendation of the boy's instructor. The CSE also recommended that the boy receive the services of an individual aide, apparently resolving the issue of whether an aide or teaching assistant should work with the boy. Except for these modifications, the CSE adhered to its previous recommendations for the 1996-97 school year. However, the validity of the CSE's action was subsequently challenged because it was unclear whether each of the mandated CSE members had attended the meeting. Therefore, the CSE reconvened on October 18, 1996. The CSE chairperson indicated that a large-type keyboard and software would be ordered for the boy, and that the boy would have access to a computer while in the resource room. The CSE reiterated its prior recommendations.

        On November 18, 1996, the boy and his parents met with the CSE to discuss the boy's behavioral difficulties in school, and a proposed behavioral contract which had been prepared for him. According to the minutes of that meeting (Exhibit 50), the boy had allegedly stated that he intended to bring a gun to school. He was reportedly falling behind in his work, and sleeping in class. I note that he was suspended from school for two days because of insubordination, shortly before the CSE meeting (Exhibit 65). Ms. Zandi advised the CSE that the boy should be responsible for his behavior, but she suggested that the proposed behavioral contract be simplified. It was agreed that Mr. Coffey, the independent consultant who had helped prepare the behavioral contract, would continue to provide advice to respondent's staff about dealing with the boy's behavior. The behavioral contract, as revised after the CSE meeting, provided that petitioner's son was generally expected to follow school rules. However, the contract indicated that when he felt frustrated or tired, he could ask his teachers to leave class, and he would be allowed to physically exercise or rest for fifteen minutes. The behavioral contract also specified what the boy should do if he felt ill or needed to use a restroom.

        Although the boy's behavior reportedly improved for a while after the behavioral contract was implemented, it reportedly worsened in February, 1997. He was suspended from school for two days because of insubordination once in March, 1997 and again in April, 1997. He was also punished with detention and in-school suspension for various infractions of school rules. Respondent's principal testified at the hearing in this proceeding that in view of the number of times that the boy had been suspended prior to April, 1997, he devised a new method of disciplining the boy. In lieu of a typical in-school suspension, the boy was individually instructed by a teacher, and he received his resource room and related services. However, he was separated from his peers. Nevertheless, the boy reportedly became more aggressive in the spring of 1997. He reportedly spat in the face of one student and he allegedly pushed his resource room teacher (Exhibit 65).

        On April 28, 1997, the CSE reviewed the boy's progress. It discussed a new behavioral management plan which was intended to eliminate the boy's aggressive behavior, such as hitting, throwing, and threatening personal injury. The plan, which was also intended to have the boy learn to accept the consequences of his actions, listed the consequences for his positive and negative behavior. The behavior management plan also included an "accommodation plan", which listed various accommodations to be made in the physical arrangement of the classroom, the assignments to be given to the boy, and the manner in which lessons were presented to him. The behavior management plan was completed at a subsequent CSE meeting on May 5, 1997. However, the boy's resource room teacher testified that parts of the plan had been implemented prior to its completion.

        In May, 1997, the boy was observed pushing his individual aide in the school hallway, despite repeated warnings not to do so. On another occasion, he stormed out of the principal's office, tore art work and signs from the walls, and pushed a soda machine into a hallway. He also verbally abused the principal. On yet another occasion, a teacher reported that she had observed the boy going through a teacher's desk. When questioned about the matter, the boy verbally abused the teacher, threw a chair, and physically threatened her with a clenched fist. At the hearing in this proceeding, the principal testified that the boy stopped attending school around the middle of May, allegedly because of an injury. The record reveals that he was seen at the St. Lawrence Psychiatric Center Outpatient Clinic on May 30, 1997 because he had reportedly made suicidal threats. However, he was determined not to be suicidal. In response to the principal's request for documentation of the boy's medical condition, the boy's pediatrician wrote a brief note on June 3, 1997, in which he indicated that the boy was "very stressed at present" (Exhibit 58). The pediatrician requested that the boy be placed on home instruction for three weeks. The principal testified that when he received the note, there was only one week of classes left. He was able to obtain a tutor in time for the boy to take his final examinations at home. The boy was also counseled by Mr. Coffey, while at home (Exhibit 59).

        On June 23, 1997, the CSE conducted its annual review and prepared the boy's IEP for the 1997-98 school year. The CSE discussed whether the boy should continue to be educated in a regular education setting with supportive services, or whether his needs required that he be placed in a more restrictive setting. Ms. Zandi, the representative of the North Country Regional TBI Center, opined that the boy should remain in a regular education setting because he was able to do the work required in that setting, but she recommended that he receive counseling. The principal and the boy's resource room teacher asserted that the boy's behavior did have an impact upon his educational progress, because the boy had missed almost 60 percent of his classes as a result of his behavior and the discipline which had been imposed. Mr. Coffey, the consultant who had also counseled the boy, reported that petitioner's son did not want to return to respondent's school in the fall. The CSE recommended that during the summer of 1997 the boy should be counseled by Mr. Coffey three times per week, but receive no other services. For the 1997-98 school year, the CSE recommended that the boy be placed in a 6:1+1 special education class in the Gouverneur High School, which is in the neighboring Gouverneur Central School District, for instruction in English, mathematics, social studies, and science. It further recommended that he be mainstreamed for art, music, and physical education. The CSE recommended that petitioner's son receive physical therapy for two hours per month, and occupational therapy for 45 minutes twice per week. The boy's IEP indicates that he would also receive skilled nursing services on an as needed basis. The IEP also indicated that the boy's reading decoding skills were at the fourth grade level, and his word recognition skills were at the third grade level. The boy was described as being in need of highly intensive supervision and a highly structured learning environment, in his IEP.

        By letter dated July 4, 1997, petitioner informed respondent's president that she disagreed with the CSE's recommendations, and was dissatisfied with the services which had been provided to the boy while he was on home instruction. Petitioner had previously requested that an impartial hearing be held with regard to her son's summer program. In her July 4 letter, she requested that the hearing which had been scheduled in response to her prior hearing request also deal with the issues which she raised in that letter. The hearing in this proceeding began on July 29, 1997. Although petitioner's lay advocate referred to various issues in her opening remarks, she agreed with respondent's attorney that the central issue was whether the special class placement which the CSE had recommended for the 1997-98 school year was appropriate. The hearing continued on July 30, 1997, and it ended on the following day.

        In his decision which was rendered on September 2, 1997, the hearing officer found that petitioner's son had highly intensive management needs. He noted that a behavioral log which the boy's resource room teacher and his individual aide had prepared indicated that the boy had made several inappropriate remarks to them, while generally professing his belief that he was not required to comply with school rules. The hearing officer further noted that the boy's behavior had worsened as the year progressed to the point of physical confrontations with his peers and respondent's staff. He found that the boy would be suitably grouped for instructional purposes in the proposed 6:1+1 class, and that the proposed placement was consistent with the Federal and State requirement that each child with a disability be placed in the least restrictive environment. The hearing officer noted that the child appeared to have his greatest difficulty in school while in unstructured activities, such as changing classes. While upholding the CSE's recommendations, the hearing officer directed the CSE to amend the boy's IEP to provide that an individual aide be with the boy at all times.

        Petitioner challenges the hearing officer's determination that the proposed special class placement of her son would be appropriate for him and would be the least restrictive environment for him. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        In considering whether this boy's IEP accurately reflects the results of his evaluations, I note the Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 require that a child be evaluated before there is any significant change in the child's placement (34 CFR 104.35 [a]). The record reveals that respondent's school psychologist began his evaluation of petitioner's son on May 22, 1997. He further evaluated the boy on June 2, 1997, June 3, 1997, and June 19, 1997. The school psychologist also observed the boy in his eighth grade social studies class. Although the school psychologist was able to administer various tests, including the WISC-III, the Woodcock-Reading Mastery Test-Revised, and the Oral and Written Language Scales to the boy, he was unable to complete the administration of all of the Kaufman Test of Educational Achievement because the boy refused to complete the evaluation on June 19, 1997. The school psychologist completed his report on June 20, 1997. The IEP which the CSE prepared for the boy on June 23, 1997 accurately reflected the results of the school psychologist's evaluation. Notwithstanding the school psychologist's inability to complete his testing of the boy, I find that respondent complied with the Federal regulation, and that the boy's IEP accurately reflected the results of his evaluations. Although much of this proceeding has been devoted to the boy's management needs, I must note that the evaluations which have been performed since 1995 reveal that this boy has cognitive deficits which place him at or near the borderline range of cognitive functioning. It is also apparent that there has been little growth in his reading skills, which remain significantly below average. His oral and written expression remain in the low average range. The boy's hand writing is awkward and slow.

        The IEP which was prepared for petitioner's son on June 23, 1997 includes annual goals for physical therapy and occupational therapy which are not at issue and have not been reviewed. I note that the IEP also has counseling goals for the 1997-98 school year, although neither the CSE meeting minutes (Exhibit 59) nor the IEP face pages indicate that the CSE had recommended that the boy receive counseling. There is also an annual goal for child to cooperate with his aide and teacher in the resource room, despite the fact that the CSE did not recommend that the boy receive resource room services. The boy's IEP annual goal with regard to improving his word recognition and comprehension skills indicate that those skills were at the seventh grade level, and the objectives for that goal suggest that he would be able to perform at or about the ninth grade level during the 1997-98 school year. I must note that the "baseline" for this goal and its objectives appears to be well above the level of the boy's performance which the school psychologist reported, and which is reflected elsewhere in the IEP. A separate IEP goal for improving the boy's reading comprehension appears to be closer to the mark because it indicates that his reading comprehension skills are at the fourth grade level. Although the CSE recommended that the boy receive primary special education instruction for English, mathematics, social studies, and science, it did not include any IEP annual goals for the latter three subjects. I find that the boy's IEP is deficient with respect to its annual goals for all of the foregoing reasons.

        In this proceeding, the central issue is the boy's placement, i.e., where he should receive his special education services. A CSE must first identify a child's special education needs, and then prepare annual goals which describe what the child can reasonably be expected to accomplish within a twelve-month period in the child's special education program. Thereafter, the CSE determines the special education services and the setting in which the child can reasonably be expected to achieve his or her annual goals. Since I have determined that the CSE must revise the boy's IEP annual goals and short-term instructional objectives, I cannot sustain the hearing officer's determination that the recommended special class placement would have been appropriate for the boy.

        There is an additional reason why his determination cannot be sustained. The boy's IEP indicates that he was to be placed in a 6:1 + 1 special education class in the Gouverneur High School. That class is operated by the St. Lawrence-Lewis BOCES. When asked by respondent's attorney if he was familiar with the class which the CSE had recommended, the CSE chairperson testified that he had been in 6:1 + 1 classes in Gouverneur. The attorney then asked the chairperson if he had discussed this child's enrollment in a 6:1 + 1 class with the BOCES supervisor. The CSE chairperson replied: "Yes, just to ask if there was anything available there…in case there… was no disagreement or anything like that, to see if there was anything available, and he gave me the name of the teacher." (Transcript, page 131). He further testified that he was unaware of the class composition prior to the hearing (Transcript, 179). Respondent's principal, who also participated in the June 23, 1997 CSE meeting, testified that the CSE had not recommended a specific placement in Gouverneur (Transcript, page 241). The BOCES supervisor of the special education classes in Gouverneur testified that he had not had any consultation with respondent's CSE prior to its preparation of the boy's IEP. Consequently, the CSE had no way of knowing if the BOCES had a vacancy in a class which would have been suitable for the boy at the time when it reportedly recommended that he be placed in a BOCES 6:1 + 1 class (cf. Application of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Disability, Appeal No. 93-15; Application of a Child with a Disability, Appeal No. 96-63). I am aware that the BOCES supervisor testified that there was a place available for the boy, but the supervisor did so before he had even seen the boy's IEP.

        Although I do not agree with petitioner's contention that an out-of-district placement of her son would not have been appropriate under any circumstances, I must conclude that respondent's CSE failed to proceed in an appropriate manner in the preparation of an IEP which would support the CSE's recommended placement. Therefore, petitioner's appeal must be sustained. As it is presently written, the boy's IEP does not support a placement in either a special class, or in regular education classes with supplemental services. Therefore, I will remand the matter to the CSE to prepare an appropriate IEP.

        Petitioner's second appeal is from the decision of a second hearing officer who was asked to determine whether respondent could change the boy's placement to the 6:1 + 1 class in Gouverneur during the pendency of petitioner's appeal from the first hearing officer's decision. Under Federal and State law, a child must remain in his or her then current placement during the pendency of any due process proceeding, unless the school district and the child's parent otherwise agree (20 USC 1415 [c][3][A]; Section 4404 [4] of the Education Law). In 1997, the Federal statute was amended to provide that an impartial hearing officer may order a change in the placement of a child with a disability to "an appropriate interim alternative educational setting" for not more than 45 days if the hearing officer finds that maintaining the child's current placement is substantially likely to result in injury to the child or others, and that the school district has made reasonable efforts to minimize the risk of harm. The hearing officer must also consider the appropriateness of the child's present placement, and must make certain determinations about the interim alternative educational setting (20 USC 1415 [K][2]).

        As noted above, the first hearing officer rendered his decision upholding the CSE's placement recommendation on September 2, 1997. On October 2, 1997, petitioner served her notice of intention to seek review upon respondent's Superintendent of Schools. Her petition to review was served near the end of October. Respondent continued the boy's previous placement in its regular education classes with resource room and related services. However, it instituted a proceeding to obtain a hearing officer's authorization to remove the boy from his pendency placement and to place him in the BOCES special education class which its CSE had recommended in June, 1997.

        The hearing was held on October 27, 1997. Respondent introduced evidence of the boy's alleged misbehavior in school during the months of September and October, 1997, in addition to some of the documentary evidence which had been introduced in the first hearing. The building principal testified at length about his experience with petitioner's son, in support of respondent's position that there was a substantial risk of injury to others if the boy remained in his then current placement. The boy's individual aide also testified about the boy's behavior during the months of September and October, 1997, and a BOCES representative described the proposed 6:1 + 1 class. Petitioner argued that the BOCES special education class would be inappropriate even as an interim alternative educational setting. She suggested that a residential placement would be appropriate for her son. Mr. Coffey, the behavioral consultant, testified, as did a representative of the North Country TBI Center, in support of petitioner's position. The boy's former speech/language therapist in 1995 and a representative of the Learning Disabilities Association also testified on petitioner's behalf.

        The hearing officer rendered his decision on November 5, 1997. He noted that the appropriateness of the boy's IEP for the 1997-98 school year was not an issue for him to determine. He also excluded from his consideration certain disciplinary incidents, because they did not afford a basis for finding that there was a substantial likelihood of injury to the boy or others. Nevertheless, the hearing officer found that respondent had adduced more than sufficient evidence to support its position that there was a substantial likelihood that injury would occur, despite respondent's diligent efforts to help the boy. He considered placing the boy in a home study program, but he concluded that such a placement would not address the boy's behavioral deficits. Therefore, he authorized respondent to place the boy in the BOCES class as an interim alternative educational placement.

        The petition to review the second hearing officer's decision was served upon the Superintendent of Schools on November 25, 1997. Although the petition was apparently received by the State Education Department within a reasonable amount of time thereafter, it was not delivered to the Office of State Review until December 26, 1997. Given the fact that the hearing officer's decision could remain in effect for not more than 45 days, the initial question is whether this proceeding is moot. I note that respondent's attorney has advised the Office of State Review that a third hearing had been scheduled to take place on or about January 22, 1998. The purpose of that hearing was to continue the boy's placement in the BOCES class, again as an interim alternative educational placement. While I do not know the outcome of that hearing, I am persuaded that the harm of which petitioner complains is capable of repetition, and that his claim should not be deemed to be moot. However, I must note that any hearing officer's decision of this nature would not be valid after petitioner's appeal from the first hearing officer's decision has been decided by the State Review Officer. Since I have now done that, I find that her appeal from the second hearing officer's decision is moot.

 

        THE APPEAL FROM THE FIRST HEARING OFFICER’S DECISION IS SUSTAINED.

 

        IT IS ORDERED that the hearing officer’s decision dated September 2, 1997 is hereby annulled.

 

        IT IS FURTHER ORDERED that within 20 days after the date of this decision, respondent's CSE shall prepare a new IEP for petitioner's son in a manner which is consistent with the terms of this decision.

 

        THE APPEAL FROM THE SECOND HEARING OFFICER’S DECISION IS DISMISSED.

 

 

Dated: Albany, New York __________________________
February 27, 1998 FRANK MUŅOZ