The State Education Department
State Review Officer

No. 97-73

Application of 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 Canastota Central School District

Appearances:
Hogan and Sarzynski, LLP, attorneys for respondent, Edward J. Sarzynski, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which dismissed petitioner’s claim that he had not been afforded an adequate opportunity to participate in a meeting of respondent’s committee on special education (CSE) at which his son’s individualized education program (IEP) for the 1996-97 school year was prepared. The hearing officer also dismissed petitioner’s claim that respondent had failed to provide his son with the amount of special education services specified in the boy’s prior IEP, during the pendency of this proceeding. In addition, petitioner appeals from the hearing officer’s determination that the pendency provisions of Federal and State law (20 USC 1415 [c][3][A]; Section 4404 [4] of the Education Law) no longer applied to the provision of services to petitioner’s son at the end of the 1996-97 school year because of the boy’s age. The appeal must be dismissed.

        Petitioner’s son sustained multiple trauma, including a severe head injury, in an automobile accident which occurred in March, 1991. The boy was in a rehabilitation facility for approximately one year after his accident. Thereafter, he was cared for in the Crouse-Irving Hospital in Syracuse, until November, 1996. After an approximately three-week stay in a nursing care facility, the boy entered St. Luke’s Hospital of Utica in December, 1996.

        He was initially classified by the CSE as other health impaired, and he began to receive special education services in the summer of 1992. The boy was subsequently classified as traumatic brain injured (see 8 NYCRR 200.1 [mm][12]), and has remained classified as traumatic brain injured. In a letter dated June 5, 1996, the boy’s attending physician advised the CSE’s physician member that the boy continued to remain in a comatose state, and that he was unresponsive to verbal commands, and did not follow visually with eye contact (Exhibit D-43). The physician indicated that petitioner’s son could breathe on his own, but required periodic endotracheal suctioning, and that he had contractual abnormalities in his extremities. The boy was being fed via a jejunostomy tube.

        In the first in what has become a long series of disputes between the parties, petitioner challenged the interruption of services to his son during the 1992-93 school year. The hearing officer in that proceeding found that the boy’s IEP was inadequate, but did not address the issues of the interruption of services to him which had occurred when the local BOCES discontinued those services. In Application of a Child with a Disability, Appeal No. 93-34, the State Review Officer held that the BOCES’ unilateral termination of special education services did not absolve respondent of its responsibility to provide services to him. Petitioner’s request for compensatory education for his son beyond the boy’s twenty-first birthday was denied on the ground that the boy remained eligible to receive services from respondent through the 1996-97 school year. However, the State Review Officer directed respondent’s CSE to review the boy’s educational program, and to recommend whatever additional amounts of service were required to enable the boy to address any deficiency caused by the interruption of services to him. That decision was sustained by the United States District Court for the Northern District of New York on October 3, 1997.

        Shortly after the State Review Officer’s decision was rendered in August, 1993, the CSE recommended that petitioner’s son receive a neurological psychological evaluation and that pending the receipt of the results of that evaluation, the boy should receive two hours per day of special education, and one-half hour each of speech/language therapy, physical therapy, and occupational therapy five times per week. By agreement by the parties, the boy was separately evaluated by two neuropsychologists in the spring of 1994. The first neuropsychologist reported that there was significant evidence that the child had some awareness of his external environment, but she cautioned that in the boy’s present condition, educational services were neither appropriate nor sufficient to address his needs. The second neuropsychologist opined that the boy’s vegetative state was incompatible with the ability to process or acquire new learning, and that the boy’s responses to stimuli appears to be reflexive rather than learned. He opined that it was highly unlikely that the boy would acquire the capability of new learning, and recommended that he receive medical rehabilitation.

        In July, 1994, the CSE recommended that during the 1994-95 school year, the boy received services of a special education teacher for one hour per day. It accepted recommendations by the boy’s speech/language therapy, physical therapist, and occupational therapist to reduce the amount of those related services, and in the case of speech/language therapy to eventually eliminate that service. The CSE also recommended, based upon the opinions of the boy’s related service providers, that no additional services be provided to him to compensate him for the interruption of services during the 1992-93 school year. When the CSE reconvened in September, 1994, it recommended that the boy continue to receive two hours of special education instruction per day, instead of the one hour of such instruction which had been previously recommended in July.

        Petitioner challenged the CSE’s recommendation. An impartial hearing officer agreed with the CSE that the boy should receive two hours of special education instruction per day, with the proviso that he could tolerate that amount of service. However, she held that the services of a speech/language therapist and occupational therapist were unnecessary for the boy. In Application of a Child with a Disability, Appeal No. 95-10, I dismissed petitioner’s challenge to the adequacy of the two independent neurological evaluations of his son, and found that the boy’s IEP annual goals were consistent with his condition. I also found that the CSE could reasonably limit the delivery of services to the boy to the times when his temperature and respiratory rate were within certain limits which the school district physician had recommended. I concurred with the hearing officer’s determination that the services of a speech/language therapist were unnecessary, but I found that the services of a physical therapist and an occupational therapist, on a consultant basis, were appropriate for the boy. With respect to the CSE’s recommendation that the boy should not receive any additional services because he had not incurred any deficiency in his skills as a result of the interruption of services to him during the 1992-93 school year, I concluded that no additional services were required. On April 14, 1997, my determination was upheld by the United States District Court for the Northern District of New York. Respondent has continued to provide the boy with two hours per day of special education, plus thirty minutes each of speech/language therapy, physical therapy, and occupational therapy five times per week, because petitioner has instituted numerous due process proceedings, which compelled respondent to provide those services during the pendency of the proceedings.

        The present proceeding has its origin in the CSE’s annual review of the boy’s educational program, which occurred on August 7, 1996. Petitioner and his lay advocate attended the CSE meeting. For the 1996-97 school year, the CSE recommended that the boy receive two hours of special education instruction per day, subject to the medical limitations which were sustained in the prior proceeding. It also recommended that the boy’s speech/language therapy be discontinued, and that he receive consultant physical therapy for thirty minutes per month. The CSE recommended that petitioner’s son receive thirty minutes of occupational therapy once per week from August 7, 1996 through October 28, 1996, and that thereafter he receive thirty minutes of consultant occupational therapy once per month. The IEP which the CSE prepared (Exhibit D-31) indicated that special education and related services would be provided to petitioner’s son until June 20, 1997, and would not be provided thereafter because the boy would become 21years of age during the 1996-97 school year.

        On August 7, 1996, petitioner requested that an impartial hearing be held to review various unspecified violations which had allegedly occurred during the CSE meeting on that date. On August 19, 1996, respondent’s President appointed Dr. Henry Dowski to serve as the impartial hearing officer, subject to respondent’s ratification of his appointment at its next meeting to be held on August 27, 1996. Respondent ratified Dr. Dowski’s appointment. The hearing began on October 16, 1996. On that date, petitioner challenged the validity of Dr. Dowski’s appointment, on the grounds that an elementary school principal had been improperly involved in the creation of respondent’s rotational list of hearing officers (see Section 4404 [1] of the Education Law), and that the order in which the hearing officers’ names appeared on respondent’s rotational was incorrect. Dr. Dowski declined to recuse himself from conducting the hearing, which was adjourned to enable petitioner to appeal from the denial of his recusal request.

        In Application of a Child with a Disability, Appeal No. 96-84, I rejected petitioner’s contention that the creation of the hearing officer list had been tainted because the elementary school principal had been involved in the process. Although I also rejected petitioner’s assertion that the district’s former Director of Pupil Personnel Services had "stacked the deck" by placing the names of hearing officers who were allegedly partial to the school district at the beginning of respondent’s rotational list, I found that respondent had not complied to the regulatory requirement that the names of the persons who had previously served as hearing officers for respondent be placed on the bottom of respondent’s list of hearing officers. However, since Dr. Dowski had not previously served as a hearing officer for respondent, I declined to set aside his appointment as the hearing officer in this matter. My decision was rendered on December 9, 1996.

        The hearing in this matter resumed on February 12, 1997. During the period from January 26, 1997 to February 11, 1997, petitioner submitted eight additional requests for hearings concerning the board of education’s alleged failure to provide his son with each of the special education services in the amounts prescribed by the boy’s IEP at various times between August and December, 1996. At respondent’s request, Dr. Dowski accepted jurisdiction over the issues raised in petitioner’s hearing requests. During the period from February 14, 1997 to March 7, 1997, petitioner submitted eleven more hearing requests concerning an alleged failure to provide the boy’s IEP services at various times between May, 1995 to January, 1997. On March 26, 1997, Dr. Dowski accepted jurisdiction over those matters, and on May 21, 1997, he accepted jurisdiction over similar claims which petitioner had asserted in requests for hearings which he made on March 31, 1997 and April 1, 1997.

        The hearing in this proceeding was not completed until July 23, 1997. In June, 1997, petitioner submitted six more hearing requests in which he alleged that services had not been provided to his son at various times between April, 1996 and June, 1997. The first three requests covered virtually all of the 1996-97 school year, except for the periods covered in petitioner’s prior hearing requests. Petitioner reportedly made those requests because his advocate had been precluded from questioning the boy’s occupational therapist about the services she provided to the boy on one or more days which were not covered by petitioner’s prior hearing requests. The hearing officer granted respondent’s motion to dismiss the three hearing requests.

        On July 2, 1997, petitioner asked for a hearing because of an anticipated denial of services to the boy during the week of July 6-12, 1997. That hearing request and the last of the six requests which petitioner had submitted in June, 1997 were premised upon the fact that on June 24, 1997, respondent voted to discontinue providing services to petitioner’s son as of June 30, 1997. Respondent took that action because petitioner’s son became 21 years old in February, 1997, and he was no longer eligible to receive special education services pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.) and Article 89 of the Education Law. At the hearing, petitioner contended that respondent could not terminate his son’s services during the pendency of this proceeding, while respondent argued that the statutory pendency provisions did not apply to a student who was no longer eligible because of age to receive services from the school district.

        In his decision which was rendered on September 8, 1997, the hearing officer found that the minutes of the CSE meeting which had been held on August 7, 1996, as well as the testimony of several of the meeting participants, refuted petitioner’s claim that he had been denied an adequate opportunity to participate in that meeting. He rejected petitioner’s contention that petitioner should have been allowed to vote with the CSE. With regard to the alleged withholding of IEP services from petitioner’s son, the hearing officer noted that petitioner had raised the same issue in prior proceedings, and that the State Review Officer had held that the services which had not been provided to petitioner’s son on a particular day or days could be made up by providing additional services to him during the week, or on the weekends (see Application of a Child with a Disability, Appeal No. 95-54). The hearing officer found that respondent had established by both documentary and testimonial evidence that it had provided the boy’s IEP services to him on a timely basis, with one exception. In making that determination, the hearing officer noted that petitioner, his lay advocate, and two of petitioner’s friends had testified that they had been present in the boy’s hospital room at the times on which certain of the IEP services had allegedly been given to him, and that they had not observed anyone providing services to the boy. The hearing officer further found that although there had been a gap on the provision of speech/language therapy to the boy because of circumstances which were beyond respondent’s control, all of the required services had ultimately been provided to the boy. The last issue which the hearing officer addressed was whether respondent was required to continue providing special education and related services to petitioner’s son after the 1996-97 school year, which ended on June 30, 1997 (see Section 2 [15] of the Education Law). He held that respondent’s obligation to provide services to the boy ended on June 30, 1997, notwithstanding the fact that this proceeding was still pending on that date.

        At the outset, I note that petitioner has submitted an extensive set of documents which were not included in the record which was before the hearing officer in this proceeding. He asks that I consider those documents in support of his voluminous petition in this appeal. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer’s decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-80). Most of the documents relate to events which occurred prior to the 1996-97 school year, and some relate to petitioner’s thirteen prior appeals to the State Review Officer. Those documents were obviously available at the time of the hearing in this proceeding. Moreover, they appear to be offered at this time to support petitioner’s contention that his son has been denied a free appropriate public education since his automobile accident in 1991 (see paragraph 11 of the petition). However, petitioner may not re-litigate the issues of the prior proceedings in this proceeding (Application of a Child with a Disability, Appeal No. 95-54). Therefore, I have not relied upon most of the documents which petitioner has asked me to add to the record. I have considered any document which has a direct bearing upon the issues which legitimately arise in this proceeding. Similarly, I note that many of the allegations in the petition do not have any relevance to this proceeding. Instead, they are an attempt to re-litigate the prior proceedings between these parties, which I will not permit (see 34 CFR 300.509).

        Petitioner raises both procedural and substantive challenges to the hearing officer’s decision. First, he challenges the method by which the hearing officer was appointed, by claiming that the respondent’s CSE chairperson and attorney were improperly involved in the hearing officer’s selection. Although petitioner may disagree with my decision in Application of a Child with a Disability, Appeal No. 96-84, that decision is final, and will not be reconsidered in this appeal. Petitioner also challenges the hearing officer’s impartiality on various grounds, including the fact that the hearing officer allegedly refused to allow petitioner and/or his witnesses to testify about the appropriateness of the boy’s IEP for the 1996-97 school year, and that he denied as untimely petitioner’s request to review the provision of services to his son during each week of the 1996-97 school year. He also argues that the hearing officer should have held the hearing in the boy’s hospital room, so that petitioner’s son could have participated in the hearing. At the hearing, petitioner also objected to the hearing officer’s determination to accept jurisdiction over the issues raised in petitioner’s numerous hearing requests.

        As petitioner is well aware, I have held that neither Federal nor State law prevents the consolidation of issues raised by separate requests for hearings into a single proceeding (Application of a Child with a Disability, Appeal No. 95-5; Application of a Child with a Disability, Appeal No. 96-45). While a hearing officer’s discretionary power to consolidate issues is not unlimited, I find that the hearing officer exercised his power to consolidate in a reasonable manner. Almost all of petitioner’s hearing requests concerned the delivery of IEP services to his son during the 1996-97 school year, involving common questions of law and the testimony of the service providers. I am not persuaded that the hearing officer’s determination to consolidate delayed the ultimate resolution of the various disputes between the parties with regard to the 1996-97 school year. I have also considered petitioner’s claim that the hearing officer unfairly dismissed his three hearing requests in June, 1997. In particular, I have examined his advocate’s explanation for making the additional hearing requests at such a late date in this proceeding. I note first that the service provider’s daily log sheets were provided to petitioner during the school year. I further note that petitioner’s primary contention is not that the IEP services were not ultimately provided, but that the scheduling of those services was inappropriate. Given the nature of the issue and the lateness of petitioner’s requests for hearings, I find that the hearing officer did not abuse his discretion because it would have prolonged an already lengthy hearing.

        I find that petitioner’s contention that the hearing officer denied his son the right to participate in this proceeding by not holding the hearing in the boy’s hospital room is without merit. Both Federal and State regulations accord the parent of a child with a disability the right to determine whether the child will attend the hearing (34 CFR 300.508 [b][1]; 8 NYCRR 200.5 [c][10]). State regulation further provides that an impartial hearing must be conducted at a place which is reasonably convenient to the parent and student involved (8 NYCRR 200.5 [c][8]). However, there is simply no question about the boy’s meaningful participation in a hearing, in view of his well documented medical condition.

        Petitioner also asserts that the hearing officer evidenced a lack of impartiality in various rulings which he made. In particular, he alleges that the hearing officer denied him the opportunity to introduce evidence to show that his son’s IEP for the 1996-97 school year was inappropriate, to question witnesses about what services had in fact been provided to the boy during that school year, or to question respondent’s witnesses about the transition plan portion of the boy’s IEP. The record reveals that the school psychologist, school physician and parent member of the CSE testified about the boy’s IEP for the 1996-97 school year, as did the CSE chairperson. Petitioner’s advocate extensively cross-examined each of these witnesses about the basis for the CSE’s recommendations which were incorporated into the boy’s IEP. In addition, the boy’s special education teacher, the teacher’s substitute, the boy’s physical therapist, his occupational therapist, and the occupational therapist’s substitute testified about the services which they had provided to the boy during the 1996-97 school year. Contrary to petitioner’s assertion, the record reveals that the advocate was afforded an extensive opportunity to question those witnesses. The school psychologist was questioned at great length by the advocate about the procedure by which the transition plan had been prepared, and the contents of that plan.

        Petitioner’s vague allegation that his witnesses were not allowed to testify about the boy’s IEP is not supported by the record. I note that the hearing officer would not permit the hearing to be held in the boy’s hospital room for the purpose of permitting a demonstration of the boy’s range of motion in his joints by petitioner’s advocate. The advocate indicated to the hearing officer that she wanted to make that demonstration to show that the boy’s range of motion had decreased since 1993. The hearing officer ruled that the alleged decline in the child’s range of motion since 1993 was beyond the scope of this proceeding. I agree. The record reveals that petitioner was afforded an ample opportunity to question the boy’s service providers about his son’s current range of motion, and to offer competent evidence about that matter. I disagree with the hearing officer’s decision not to allow petitioner to testify about whether he had observed any services being provided to his son on October 25, 1996. In his five-day disclosure statement which he made pursuant to a directive from the hearing officer (Exhibit D-83), petitioner indicated that he would testify, but he failed to disclose the nature of his testimony. Nevertheless he indicated that his testimony would be in addition to that of two other witnesses about what they observed on October 25, 1996 while visiting the boy with petitioner. Since those two witnesses did testify, petitioner’s testimony would have been cumulative, and its exclusion was not a reversible error.

        Although the hearing officer terminated the cross-examination of respondent’s former CSE chairperson and declined to allow petitioner to call that person as his own witness, he did so only after cautioning petitioner’s lay advocate about her irrelevant and repetitious examination of the witness. The hearing officer also dismissed the boy’s substitute occupational therapist from testifying further, after a series of irrelevant questions by petitioner’s lay advocate. I note that by agreement of the parties, petitioner’s lay advocate was allowed to cross-examine respondent’s witnesses about matters which they had not discussed during their direct testimony. It is within a hearing officer’s discretion to limit irrelevant or unduly repetitious evidence and testimony (Application of a Child with a Handicapping Condition, Appeal No. 92-18; Application of a Child with a Disability, Appeal No. 94-4). The record in this proceeding is unfortunately full of redundant or irrelevant questioning of the witnesses, which the hearing officer repeatedly ruled was objectionable. For example, in two prior proceedings petitioner challenged the adequacy of his son’s last triennial evaluation, including the evaluations, which was done by the two independent evaluators in 1994. I found that the boy had been appropriately evaluated (Application of a Child with a Disability, Appeal No. 95-10; Application of a Child with a Disability, Appeal No. 96-3). Nevertheless, petitioner’s lay advocate continued to challenge the adequacy of the boy’s evaluations in this proceeding, until directed by the hearing officer to address other issues. His rulings were not evidence of bias against petitioner, or his advocate. Despite the advocate’s gratuitous remarks to him, the hearing officer maintained an orderly hearing. I find that petitioner’s claim that the hearing officer evidenced a bias against him is without merit.

        Petitioner asserts that the hearing officer failed to render a decision with regard to the appropriateness of his son’s IEP for the 1996-97 school year, but instead determined only that petitioner had been afforded the opportunity to participate in the development of the IEP at the CSE meeting which was held on August 7, 1996. Petitioner is correct. However, I note that in his initial request for a hearing (Joint Exhibit 1 of Application of a Child with a Disability, Appeal No. 96-84), petitioner asked for a hearing to "resolve the violations that occurred during the CSE meeting". Neither party presented an opening statement to define the issues, and in her closing statement, petitioner’s lay advocate addressed only the issue of respondent’s alleged non-implementation of the boy’s pendency IEP.

        I recognize that petitioner did not have the assistance of an attorney in this proceeding, and I have carefully reviewed the hearing record to ascertain whether there is a sufficient basis in the record to render a decision about the boy’s IEP for the 1996-97 school year. In doing so, I must note that the boy’s IEP for the 1996-97 school year is quite similar to his IEP for the 1995-96 school year, which was the subject of the appeal in Application of a Child with a Disability, Appeal No. 96-3. In that appeal, as in this appeal, petitioner challenged the adequacy of his son’s evaluations by the CSE. He also challenged the appropriateness of the boy’s IEP’s goals, and the adequacy of his son’s transition plan. The record in this proceeding indicates that there had been little change in the child’s condition since the earlier IEP was prepared.

        For the 1996-97 IEP, the CSE considered an oral report by the school physician of a conversation which he had with the child’s attending physician. It also heard reports by the boy’s service providers about their work with him during the 1995-96 school year, and it received their recommendations for the services to be provided to him during the 1996-97 school year. I find that the boy’s IEP for the 1996-97 school year accurately reflected the results of his evaluations to identify his needs. The 1996-97 IEP annual goals consisted of having petitioner’s son respond to visual, auditory and tactile stimulation, as well as maintaining his functional joint mobility. I find that those goals would have been appropriate for petitioner’s son during the 1996-97 school year. At the hearing, petitioner’s challenged the CSE’s recommendation that his son’s physical therapist and occupational therapist consult with his teacher once per month, rather than continue to provide direct services to the boy. The boy’s physical therapist and occupational therapist testified that his present functional level could be maintained with consultant, rather than direct, services because they and the boy’s teacher were already doing many of the same kinds of activities with him. Respondent’s school physician opined at the hearing that the recommended reduction in the amount of physical therapy would not make any difference to the boy, and he dismissed the suggestion that providing more related services would be helpful (Transcript, page 459). I find that petitioner has not produced any credible evidence to controvert the testimony of the boy’s service providers and the school district physician.

        Petitioner also questioned the CSE’s recommendation that speech/language therapy no longer be provided to the boy. However, that issue was previously addressed in Application of a Child with a Disability, Appeal No. 95-10, in which I found that speech/language therapy was unnecessary for this boy. There is nothing in the record before me which indicates that the boy’s condition has changed with respect to the provision of speech/language therapy. The CSE reviewed, but did not change, the boy’s prior transition plan. Petitioner’s objection to that plan is similar to those which he raised in the prior appeal. I find that the boy’s transition plan continued to be appropriate for him. Therefore, I find that respondent has met its burden of demonstrating the appropriateness of the boy’s IEP.

        A CSE must afford a child’s parent a meaningful opportunity to participate in the development of the child’s IEP (Application of a Child with a Disability, Appeal No. 96-31). In doing so, the CSE is not obligated to accede to the parent’s wishes to drafting the child’s IEP (Application of a Child with a Handicapping Condition, Appeal No. 90-13). At the hearing, members of the CSE testified that petitioner and his advocate had been afforded the opportunity to comment upon and make suggestions about the boy’s IEP. The parent member of the CSE testified that after each report by a service provider was read, petitioner was asked if he had additional information to provide. The CSE members’ testimony is supported by the minutes of the CSE meeting (Exhibit D-30). Indeed, in his petition, petitioner acknowledges that he was asked at the CSE meeting whether he had any new annual goals to be added to his son’s IEP. Nevertheless, he alleges that respondent’s attorney, who also attended the CSE meeting, asked the CSE to move on to another topic each time that the petitioner addressed the CSE. I find that petitioner’s allegation is not supported by the record, and that there is no merit to petitioner’s contention that his right to participate in the development of his son’s IEP had been infringed.

        In one of petitioner’s prior appeals (Application of a Child with a Disability, Appeal No. 95-54), I noted that Federal regulation requires that an IEP include a statement of the specific special education and related services to be provided to a child (34 CFR 300.346 [a][3]). The official interpretation of that regulatory requirement reads as follows:

"The amount of services to be provided must be stated in the IEP, so that the level of the agency’s commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific service and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of IEP.

Changes in the amount of services listed in the IEP cannot be made without holding another IEP meeting. However, as long as there is no change in the overall amount, some adjustments in scheduling the services should be possible (based on the professional judgment of the service provider) without holding another IEP meeting." (34 CFR Part 300, Appendix C, Question 51).

        I further noted that although educational services are typically provided to children only when the schools are open, neither Federal nor State regulations explicitly precluded a school district from providing IEP services on Saturdays or Sundays. In that appeal, as well as other appeals which petitioner has brought, I held that IEP services which were not provided on a particular day could be made up within a reasonable period of time, either by providing an extra amount of service on a school day, or providing the IEP service during the weekend, or on a school vacation day (see Application of a Child with a Disability, Appeal No. 96-2; Application of a Child with a Disability, Appeal No. 96-45; Application of a Child with a Disability, Appeal No. 96-75). It should be noted that respondent was directed to ensure that substitutes for the boy’s service providers were available.

        Petitioner’s challenge to the hearing officer’s finding that respondent had implemented his son’s status quo IEP during the 1996-97 school year is two-fold. First, he challenges the finding that all services were provided to the boy. At the hearing, respondent introduced sign-in sheets and daily logs which had been initialed and prepared by the boy’s service providers, or their substitutes. Those individuals testified that those documents accurately reflected the dates and times when they provided services to the boy. Two of petitioner’s friends testified that they were in the boy’s hospital room during the late morning of October 25, 1996, and that they did not observe anyone providing services to the boy. The daily log of the boy’s teacher indicated that she was present from 11:00 a.m. until 1:30 p.m. Petitioner’s advocate testified that she visited the boy from approximately 7:00 p.m. to 8:00 p.m. on January 8, 1997, January 15, 1997, and February 12, 1997, and that she had not observed any services being provided. The daily log of the boy’s physical therapist indicates that she provided services during that time period on January 8, 1997 and January 15, 1997. There does not appear to be any inconsistency with regard to February 17, 1997. I note that respondent’s request to have the physical therapist testify as a rebuttal witness was denied. The hearing officer was better able than I to determine the credibility of the witnesses who testified. His reliance upon the contemporaneously prepared written record over the testimony of the witnesses which was given well after the days in question was not in error.

        Petitioner also challenges the premise implicit in the hearing officer’s finding that all services were provided, which is that services which were not provided on each school day could be made up within a reasonable period of time, as I had previously indicated in petitioner’s prior appeals. My review of the record reveals that missed services were generally made up within a reasonable period of time, or that extra services which had been provided before services were missed were credited as having been given on those days. I note that three of the weeks in which petitioner had initially claimed services were not provided were school vacations, during which respondent was not required to provide services. Nevertheless, services were provided on some days during school vacations to make up for missed services. There were apparently two instances in which a particular service was not provided to the boy over an extended period of time. The boy’s physical therapist for the 1995-96 school year resigned in August, 1996, after having provided the boy with all of his IEP mandated therapy for the summer. Her successor resigned in mid-September, 1996, and a replacement was not obtained until early October, 1996. Although petitioner’s advocate alluded to an interruption of the boy’s physical therapy when the hearing resumed in February, 1997, the parties and the hearing officer did not address the issue. In the absence of sufficient information about the matter in the record, I cannot address it. Respondent’s Director of Pupil Personnel Services testified that the boy’s speech/language therapy was interrupted in December, 1996, because the boy’s therapist had health problems, and the agency which was to provide a substitute for her was unable to do so because the boy had moved to St. Luke’s Hospital in Utica. She further testified that she was initially unable to obtain a substitute speech/language therapist, but that the boy’s speech/language therapy was resumed in early January, 1997. The record reveals that the missed sessions of speech/language therapy were made up in February, 1997. There is no evidence of harm to the boy as a result of the interruption of his speech/language therapy.

        The final issue to be resolved in this proceeding is whether respondent was obligated to continue to provide the boy with his status quo IEP services after June 30, 1997 during the pendency of this proceeding. Petitioner’s son became 21 years old in February, 1997. A child with a disability is eligible to receive special education services until the age of 21 (20 USC 1412; Section 4401 [1] of the Education Law). Section 4402 (5) of the Education Law provides that a child with a disability who becomes 21 years old between the months of September and June shall be entitled to continue in his or her educational program until June 30, or the termination of the school year. The Federal and State "pendency" provisions (now 20 USC 1415 [j]); Section 4404 [4] of the Education Law) provide that unless the parent and the school district otherwise agree, the child shall remain in the then current educational placement during the pendency of the proceeding "until all such proceedings have been completed." The hearing officer held that the pendency provisions did not require respondent to continue to provide the boy with his IEP services after June 30, 1997. I agree. As was noted by the court in Board of Education of Oak Park and River Forest High School District 200 v. Illinois State Board of Education and Todd A., 79 F 3d 654 (7th Cir., 1996), once a child reaches the age at which he is no longer entitled to the protection of the Act (the Individuals with Disabilities Education Act) the pendency provision, which is intended to prevent the child from losing the benefits to which he or she is entitled, loses its rationale. If it is ultimately determined that the child did not receive the free appropriate public education during the time when he or she was eligible for it, the appropriate remedy would be an award of compensatory education.

        I have considered petitioner’s other contentions which I find to be without merit.

 

        THE APPEAL IS DISMISSED.

 

 

 

Dated: Albany, New York __________________________
November 20, 1997 FRANK MUŅOZ