94-013

         Petitioner appeals from the decision of an impartial hearing officer which upheld the purported recommendation by respondent's committee on special education to change the placement of petitioner's child from a regular education class with resource room services in respondent's school to a self-contained special education class in a public school located in another school district. The appeal must be sustained.

        Petitioner's child, who is nine years old, was born prematurely. When he was screened for admission to kindergarten, which he entered in September, 1990, the child was identified as being at high risk of having learning problems. Tests of the child's visual motor integration and receptive language skills revealed that the child had significant deficits in both skills, at the time of the kindergarten screening.

        The record provides remarkably little information about the child's performance in school. After completing kindergarten in the 1990-91 school year, the child was assigned to a "transitional" first grade class for the subsequent school year. Respondent's transitional first grade class, which is not a special education class, was reportedly intended to provide additional support to children believed to be at risk of academic failure. Early in the 1991-92 school year, the child was referred to the CSE.

        In a psychological evaluation completed on October 1, 1991, the child was reported to have a verbal IQ score of 78, a performance IQ score of 77, and a full scale IQ score of 76. Respondent's school psychologist reported that the variability of the child's scores within the area of verbal IQ was indicative of the child's distractibility which interfered with his memory functions and his performance of tasks having more than one step. The child's lowest performance was on a digit span subtest, which revealed a substantial deficit in the child's short-term memory, while the relative weakness in his fund of general knowledge was indicative of a long-term memory deficit. The school psychologist also reported that the child's results in the performance portion of the IQ test decreased as the tasks he was asked to perform became more abstract. In educational achievement tests, the child's performance was significantly below that expected of a child of his age and grade level. The child was reported by his teacher to exhibit problems of self-control and concentration, as well as difficulty dealing with his peers.

        The child was classified as learning disabled. His classification has continued, and is not disputed in this proceeding. He remained in the transitional first grade class for the 1991-92 school year, but was provided with resource room services for one period per day. The child was enrolled in a regular first grade class for the 1992-93 school year. At some point during the school year, the child's resource room services were increased to two periods per day, because the child reportedly had difficulty in his regular class. At the hearing in this proceeding, the child's resource room teacher testified that the child progressed academically, using the whole language approach in the first grade class and acquiring a sight word vocabulary in the resource room.

        For the 1993-94 school year, the child was advanced to the second grade. His resource room teacher testified that when the child returned to school in September, 1993, he had not retained much of his sight word vocabulary, nor had he retained many of his reading decoding skills. The child's mathematics skills had also regressed. The resource room teacher, who again instructed the child for two periods per day in the 1993-94 school year, testified that she had to extensively reteach the child skills which he had acquired during the preceding school year but had lost. The teacher further testified that the child's academic performance had been inconsistent, and that his behavior had become more immature, during the 1993-94 school year.

        On February 3, 1994, the CSE met to review the child's program. The child's parents were notified of the meeting, and petitioner reportedly planned to attend the meeting. However, neither parent attended the CSE meeting. At the hearing, the child's mother testified that something had "come up", and that she and petitioner had been unable to contact the school before the CSE meeting began. The record does not reveal whether the CSE made any attempt to contact the child's parents either to reschedule the meeting or to arrange for their participation in the meeting by telephone (35 CFR 300.345 [c]; 8 NYCRR 200.4 [c][3]).

        At the meeting, the CSE unanimously agreed that the child's educational program was not meeting his needs, and that the child should be enrolled in a self-contained special education class with a child to adult ratio of 15:1:1. The class is located in a public school in the Southold Union Free School District. It should be noted that there is no evidence that the CSE evaluated the child before recommending a significant change in the child's placement, notwithstanding the Federal regulatory requirement that it do so (34 CFR 104.35 [a]). Instead, the CSE had the child evaluated in late February, 1994, after it had purportedly recommended that the child's placement be changed.

        In a letter dated February 3, 1994, a co-chairperson of the CSE advised petitioner that the CSE had recommended that the child be placed in a self-contained class in the Southold school district. The record does not reveal whether the child's parents received a notice of the CSE's recommendation which complied with the requirement of 8 NYCRR 200.5 (a)(4). At the hearing, the child's mother alluded to an alleged agreement between the parents and two members of respondent's staff that the child's placement would not be changed until September, 1994. The mother testified that, notwithstanding the alleged agreement, she and petitioner were subsequently notified by a letter, which is not in the record, that the child's placement would be changed to the self-contained class in Southold on February 21, 1994.

        Petitioner and his wife requested a hearing to review the CSE's recommendation that the child's placement be changed. On March 11, 1994, a hearing was held. During the hearing, petitioner acknowledged that the child was having difficulty in his present placement, but expressed concern about the effect on the child of a change in placement during the present school year, and urged that the child's placement not be changed until September, 1994. Respondent's resource room teacher, reading teacher, and school psychologist each testified that the child should be placed immediately in the Southold special education class recommended by the CSE.

        In a decision dated March 28, 1994, the hearing officer found that respondent had met its burden of proof with regard to the appropriateness of the special education class in the Southold school district, notwithstanding the fact that respondent had not entered into the record any individualized education program (IEP) for the child or any evidence about the Southold class, except for the size of the class. However, the hearing officer directed the CSE to afford the chid's parents an opportunity to meet with the CSE as the latter prepared an IEP for the child. The hearing officer ordered respondent not to change the child's placement, until an IEP for the child's placement in the Southold class had been prepared. Subject to that limitation, respondent was authorized by the hearing officer to change the child's placement during the 1993-94 school year. The hearing officer noted that petitioner and his wife could exercise their due process rights to challenge any portion of the child's IEP.

        Petitioner, who was not represented by an attorney at the hearing in this proceeding but has counsel in this appeal, asserts that the hearing officer erred in upholding the CSE's recommendation. He also asserts that respondent failed to demonstrate that the self-contained special education class in Southold would be the least restrictive environment for the child (See 34 CFR 300.550 [a][2]), or that the children in the Southold class have similar needs (See 8 NYCRR 200.6 [a][3]).

        Respondent asserts that petitioner is not aggrieved by the hearing officer's decision, because the hearing officer directed the CSE to convene to prepare an IEP. It further asserts that on April 18, 1994, the CSE revised the child's IEP to reflect its recommendation that the child's placement be changed to a special education class, and that petitioner may obtain a review of the April 18, 1994 recommendation by requesting that an impartial hearing be held.

        Although a parent who has prevailed at a hearing may not be aggrieved by the hearing officer's decision in some instances (Paula P.B. v. New Hampshire Dept. of Educ., [U.S.D.C. D.N.H., 1991]), I find that it is not the case in this proceeding. At the time of the hearing, the dispute between the parties was whether the child's placement should be changed during the 1993-94 school year. The hearing officer authorized respondent to change the child's placement during the 1993-94 school year, provided that the CSE prepared an appropriate IEP. Therefore, I find that petitioner is aggrieved by the hearing officer's decision.

        In essence, respondent contends that this appeal should be dismissed because it is moot. Generally, a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome (Stellato v. Bd. of Ed. Ellenville CSD, [U.S.DC. N.D. N.Y., 1994], citing Murphy v. Hunt, 455 U.S. 478). An appeal from a hearing officer's decision regarding a child's IEP may become moot because the IEP in question has been replaced (Robbins v. Maine School Admin. Dist. No. 56, 807 F. Supp. 11 [U.S.D.C. D.Me., 1992]; Application of a Child with a Disability, Appeal No. 93-27; Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 348). However, a case may not be moot, despite the end of the school year for which an IEP was written, if the conduct complained of is capable of repetition (DeVries v. Spillane, 853 F. 2d 264 [4th Cir., 1988]; Daniel R. v. El Paso Indep. School Dist., 874 F. 2d 1036 [5th Cir., 1989]). In this instance, there is no IEP on which the hearing officer's decision is based, yet the hearing officer's decision purports to determine the appropriateness of a change in the child's placement for which there must be an IEP (34 CFR 300.552 [a][2]). I find that petitioner has a cognizable interest in the outcome and that the matter is not moot.

        This proceeding is premised upon the assumption that at its meeting of February 3, 1994, respondent's CSE made a recommendation that the child's placement be changed to the special education class in the Southold school district. However, State regulation provides that a CSE shall make its recommendation that a child receive special education by preparing an IEP which must include certain information (8 NYCRR 200.4 [c][2]). State law provides that a parent may request an impartial hearing, if the CSE's recommendation is not acceptable to the parent (Section 4404 (1) of the Education Law). At the hearing in this proceeding, the hearing officer questioned the CSE co-chairperson and one other member of the CSE whether the CSE had prepared an IEP for the child. Both individuals testified that the CSE had not prepared a new IEP for the child. Although the CSE co-chairperson speculated that the child's existing IEP could have been amended at the February 3, 1994 meeting, respondent has offered no evidence of an amended IEP.

        In the absence of any evidence that the CSE at its February 3, 1994 meeting either amended the child's existing IEP or prepared a new IEP to reflect its consensus that the child's placement be changed, I find that the CSE did not, as a matter of law, make any recommendation which could be reviewed at the hearing. Although I further find that the hearing officer correctly directed the CSE to prepare an IEP, I must also find that the hearing officer erred in purporting to determine the child's need for a more restrictive environment and in authorizing respondent to change the child's placement upon the basis of an IEP to be prepared after the hearing. In so finding, I have not reached the issues which petitioner raises with respect to least restrictive environment and compatible grouping of the child with other children.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled.