95-078

       Petitioners appeal from the decision of an impartial hearing officer which dismissed petitioners' challenge to their son's individualized educational program (IEP) for the 1994-95 school year as moot, because that IEP had reportedly been superseded by a subsequent IEP. The appeal must be sustained in part.

        Petitioners' son is sixteen years old. He attended respondent's Kerhonkson Elementary School for kindergarten, first grade, and most of the second grade. In March, 1987, the child was referred by his first grade teacher to respondent's child study team, because the teacher was concerned about the child's academic performance. The child was evaluated by a school psychologist, who reported that the child had achieved a verbal IQ score of 109, a performance IQ score of 124, and a full scale IQ score of 118. He further reported that the child displayed some difficulty in the immediate retrieval of information, as well as a lack of self-confidence in areas involving learning. The school psychologist also reported that the child had reversed letters and numbers on the tests which were administered to him, and that the boy could read only two words during a reading test. He suggested that the child had a reading disability, with a mild emotional overlay, and recommended that certain educational techniques and programs be tried with the child. The school psychologist also recommended that the child study team further review the child's progress.

        In February, 1988, petitioners withdrew the child from the second grade in the Kerkonkson Elementary School, and enrolled him in the private Mountain Laurel School. He remained in the private school through the 1988-89 school year, during which he was in the third grade. Petitioners enrolled the child in respondent's Rondout Valley Intermediate School, for the fourth grade during the 1989-90 school year. The child reportedly made about one-half of a year's progress in reading, despite receiving remedial reading instruction. At the end of the 1989-90 school year, his word identification skills were at a 3.3 grade equivalent, and his passage comprehension skills were at a 4.2 grade equivalent.

        The child continued to receive remedial reading in the fifth grade during the 1990-91 school year. By the end of the year, the child had achieved grade equivalent scores of 4.4 in word identification and 5.6 in passage comprehension. On the Comprehensive Tests of Basic Skills (CTBS), the boy achieved grade equivalent scores of 5.2 in reading vocabulary, and 10.8 in reading comprehension. His remedial reading teacher recommended that remedial reading assistance be discontinued, because of the improvement in the child's reading skills. The child received satisfactory report card grades, except for a "D" in spelling. On the CTBS, he achieved a grade equivalent score of 3.9 in spelling.

        Petitioner's son achieved passing grades in each of his sixth grade subjects, except an "F" in a computer basics course. On the CTBS which was administered in April, 1992, as he neared the end of the sixth grade, the child achieved grade equivalent scores of 5.9 in word identification, and 8.2 in reading comprehension. The child's score on the sixth grade New York State Pupil Evaluation Program (PEP) test in reading was above the Statewide reference point. In mathematical computations, the child's grade equivalent score of 4.7 in April, 1992 was slightly below the 4.8 score which he had achieved in April, 1991. Although he achieved a score above the Statewide reference point on the sixth grade PEP test in mathematics, the child's CTBS score was deemed to be low enough under respondent's standards to make the child eligible for remedial mathematics instruction.

        The child reportedly had some academic difficulty in the first quarter of the 1992-93 school year, while enrolled in the seventh grade of the Rondout Valley Junior High School. The boy's science and mathematics teachers reported that the boy was exerting insufficient effort, while his English teacher recommended that the boy be transferred from his Regents level class to a general education English class. The child was offered the opportunity to participate in a study skills class. In November, 1992, the child's mother agreed with the staff recommendations that the child be reassigned to general education English and science classes. The child also received remedial mathematics instruction.

        In December, 1992, the child was evaluated by a school psychologist, who reported that the child had achieved a verbal IQ score of 110, a performance IQ score of 103, and a full scale IQ score of 107. The school psychologist also reported that the child evidenced some perceptual motor difficulties, and self-image concerns. He described the child as having relative strength in tasks requiring verbal abstract reasoning skills, common sense reasoning and judgment, perceptual alertness and visual memory, social intelligence and alertness to detail, and visual motor integration. The boy exhibited relative weakness in tasks requiring short-term visual memory and psychomotor speed.

        On or about February 2, 1993, the child was referred by the staff of the Junior High School to respondent's committee on special education (CSE) because of the child's low achievement in reading and difficulty in mathematics. The record reveals that the CSE used the December, 1992 psychological evaluation and an August, 1992 physical examination, in lieu of performing new evaluations. On March 25, 1993, the CSE recommended that the child be classified as learning disabled because the child's reading and writing skills were reportedly significantly below expectancy. The child's IEP indicated that the child had achieved grade equivalent scores of 5.9 in reading, 8.3 in reading comprehension, 7.2 in mathematical calculation and 4.1 in spelling, but did not indicate the basis for those scores. The CSE also recommended that the child receive 40 minutes of resource room services five times per week, beginning on April 12, 1993. The IEP which the CSE prepared for the child had annual goals for the child to improve his study skills and his test taking strategies, but did not otherwise address the child's academic deficits. The child's mother gave her consent for the child's initial placement in a special education program.

        On May 27, 1993, the CSE conducted its annual review of the child. In the interim since the CSE's initial meeting, the CTBS had been administered to the child. The child had achieved grade equivalent scores on the April, 1993 CTBS of 8.1 in reading vocabulary, 9.7 in reading comprehension, 8.4 in language mechanics, 5.8 in language expression, 5.4 in spelling, 8.0 in mathematical computation, and 6.9 in mathematical concepts and applications. For the 1993-94 school year, the CSE recommended that the child continue to receive 40 minutes of resource room services five times per week. The child's IEP for the 1993-94 school year retained the same two goals which were on the child's prior IEP. His IEP indicated that the child would require minimal assistance from his resource room teacher, and that a calculator and a spellchecker device would be available for his use, as needed, in the resource room.

        The record reveals that the child received the grades of 82 in general English, 77 in Regents social studies, 69 in general science, and 71 in Regents mathematics, at the end of the seventh grade. He also received above-average grades in his special subjects. Petitioners borrowed a spellchecker device from the school to work with the child during the Summer of 1993.

        During the 1993-94 school year, the child was enrolled in eighth grade Regents level English, social studies, mathematics and Spanish courses, as well as general science, special subjects and resource room. He had academic difficulty in the Regents English course, throughout the school year, and he received a final grade of 67 in that course. The child also received a final grade of 69 in Spanish. He received final grades of 78 in social studies, 71 in science, and 88 in mathematics, and above-average grades in his special subjects. On the child's report card, his English teacher opined that the child was not working up to the level of his ability, and his science teacher reported that many of the child's assignments were missing or incomplete. The child's overall academic average for the eighth grade was 80.77. His reading and writing scores on the Regents Preliminary Competency Test were above the statewide reference point. On the CTBS which was administered in May, 1994, the child achieved grade equivalent scores of 6.9 in reading vocabulary, 8.3 in reading comprehension, 9.5 in language mechanics, 7.7 in language expression, 4.9 in spelling, 10.5 in mathematical computation and 10.7 in mathematical concepts and applications.

        The CSE conducted its annual review on April 20, 1994. At the hearing in this proceeding, the CSE chairperson acknowledged during cross-examination that the parent member of the CSE left just prior to the CSE's review of petitioners' child. For the 1994-95 school year, the CSE recommended that the child receive 40 minutes of resource room services five times per week, in the Rondout Valley High School, where the child was to be enrolled in the ninth grade. The child's IEP for the 1994-95 school year continued his two annual goals from each of his prior IEPs. For the annual goal of improving the child's study skills, the IEP listed the two objectives of "apply organizational study skills to solve problems related to class activities", and "carry/use notebook for management of classroom/home assign." For the annual goal of increasing test-taking strategies for classroom assessments, the IEP listed the two objectives of "apply effective study and test taking skills to classroom assignments and assessments", and "identify and respond to various strategies and forms."

        The child was enrolled in a Regents level global studies class, and general education English, science, Spanish, and mathematics classes for the 1994-95 school year. He was also enrolled in art and physical education classes, as well as his resource room class. At the end of the first quarter of the school year, the child achieved the grades of 80 in English, 72 in global studies, 91 in science, 82 in mathematics, and 94 in Spanish. His grades at the end of the second quarter were 88 in English, 77 in global studies, 87 in science, 77 in mathematics, and 89 in Spanish. Although the child's global studies teacher reported that some of the child's assignments were missing or incomplete, and that his level of performance as inconsistent, his other teachers reported that the child's effort and conduct had been satisfactory.

        In a letter dated January 26, 1995, the child's mother requested that an impartial hearing be conducted because the CSE had allegedly failed to develop an appropriate IEP for the 1994-95 school year, at its meeting on April 20, 1994. Petitioners had not previously expressed any dissatisfaction with the IEP. On or about February 21, 1995, respondent appointed an impartial hearing officer. The hearing was scheduled to begin on March 2, 1995, but was delayed because the site for the hearing was destroyed by fire. The hearing began on March 16, 1995. Petitioners, through their lay advocate, advised the hearing officer that they did not challenge the child's classification as learning disabled,¹ or his placement in the Rondout Valley High School. They asserted that the child's IEP for the 1994-95 school year did not adequately describe his special education needs, and did not afford a basis for determining whether the CSE had recommended the appropriate special education services to address the child's needs. They asked the hearing officer to direct respondent to provide the child with compensatory education.

        Two days before the hearing began, the CSE reconvened to review the child's IEP for the 1994-95 school year. The CSE agreed to remove the child's two annual goals from his IEP because the child had reportedly achieved both goals. At petitioners' request the two annual goals were replaced with a single goal that the child "... will improve his reading comprehension." The IEP listed three short-term instructional objectives in support of the IEP annual goal. The first objective provided that the child would complete his daily speed reading lessons on the computer at gradually increasing speeds from 200 words per minute, while maintaining 80% accuracy. The second objective provided that the child would read passages at grade level 8-10, and answer questions demonstrating an 85% mastery of the main idea, specific facts, sequence of events, and inference. The final objective was that the child would complete one lesson per week in a workbook, or Regents competency test in reading, using the cloze technique, with 85% accuracy. The CSE also agreed that the CTBS should be re-administered to the child by his resource room teacher. On the CTBS test which was administered to him on March 23, 1995, the child achieved grade equivalent scores of 10.7 in reading vocabulary, 12.9 in reading comprehension, 12.9 in language mechanics, 11.6 in language expression, 8.8 in spelling, 12.0 in mathematical computation, and 11.7 in mathematical concepts and applications. The child was in the sixth month of the ninth grade (9.6), when he was tested.

        The hearing in this proceeding resumed on March 30, 1995. Near the end of the hearing on that day, petitioners' advocate asked the hearing officer to order that the child be independently evaluated, at respondent's expense, pursuant to 34 CFR 300.503 (d). The advocate asserted that there was insufficient information about the child's education needs in the record. The hearing officer reserved decision upon the advocate's request, but reminded the advocate of petitioners' right to obtain an independent evaluation, at respondent's expense, pursuant to 34 CFR 300.503 (b), and 8 NYCRR 200.5 (a)(1)(vi)(a). At the next day of the hearing on April 5, 1995, respondent's attorney advised the hearing officer that respondent had agreed to pay for an independent evaluation, and that respondent would re-evaluate the child as part of his triennial evaluation. By letter dated April 27, 1995, petitioners' advocate asked the hearing officer to defer the hearing until July or August, 1995, because petitioners would not be able to obtain the results of an independent evaluation prior to the end of June. Respondent opposed the advocates's request, which the hearing officer denied. The hearing continued on May 17, 1995.

        In a letter to respondent, which was dated May 18, 1995, the child's mother asked to have the child removed from his resource room program and placed in a study hall. On May 28, 1995, the parties entered into a written stipulation to modify the child's pendency placement by discontinuing his resource room services and reassigning the child to a study hall.

        When the hearing resumed on June 20, 1995, petitioners' advocate asked the hearing officer to order that the child's independent evaluation include a "developmental vision examination." The hearing officer denied the advocate's request as premature, because respondent had not yet performed its triennial evaluation. The hearing ended on June 20, 1995, with the agreement that petitioners' advocate and respondent's attorney would submit their written closing arguments to the hearing officer within three weeks. The child was independently evaluated at the West Side Psychological Center in New York City, from June 23, 1995 through June 29, 1995. On or about August 7, 1995, petitioners' advocate reportedly asked the hearing officer to reopen the hearing for the purpose of submitting the results of the independent evaluation, and to afford the advocate additional time to prepare his written argument. The hearing officer denied the request to reopen the hearing.

        The hearing officer rendered his decision in this proceeding on October 16, 1995. He found that the child had been appropriately classified by the CSE as learning disabled because of the deficits in the child's language and spelling skills. With regard to the appropriateness of the child's IEP which the CSE had prepared on April 20, 1994, the hearing officer found that the matter was moot because that IEP had been superseded by the IEP which the CSE had prepared on March 14, 1995, and because the 1994-95 school year had ended. He directed the CSE to consider the results of the child's independent evaluation in its future determinations (see 8 NYCRR 200.5 [a][[1][v]).

        Petitioners have submitted copies of reports of the independent psychological and educational evaluations which were performed by the West Side Psychological Center, in June, 1995. Respondent argues that the two reports are not relevant to the issue of the appropriateness of the child's IEP for the 1994-95 school year, and that they should not be admitted into evidence as part of this proceeding. Although the evaluations were not performed until the end of the 1994-95 school year, it does not follow that they have no probative value in determining what the child's special education needs were during that school year. 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. 95-41). Since the hearing record had closed before the reports were prepared, I will accept the reports as part of the record in this proceeding.

        Petitioners challenge the hearing officer's determination that the appropriateness of the IEP which was prepared on April 20, 1994 for the 1994-95 school year had become a moot point. They argue that the hearing officer represented that he would rule upon the appropriateness of the IEP, during the hearing, and that he improperly declined to rule upon the IEP's appropriateness. The initial question to be answered is whether the matter of the appropriateness of the child's April 20, 1994 IEP became moot because it was superseded by the subsequent March 14, 1995 IEP, or because the 1994-95 school year had ended.

        An appeal from a hearing officer's decision regarding a child's IEP may become moot because the IEP 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. 348). The hearing officer indicated in his decision that the April 20, 1994 IEP had been superseded by the March 14, 1995 IEP "from which no appeal was taken." I note that at the hearing held on May 17, 1995 the hearing officer indicated that the April 20, 1994 IEP, rather than the March 14, 1995 IEP, was the subject of the hearing, and that if petitioners wanted him to determine the appropriateness of the latter IEP, "I have to hear that from you" (Transcript, page 298). Almost immediately thereafter, petitioners' advocate asked the hearing officer to consider the appropriateness of both IEPs (Transcript, page 300). I also note that petitioners' concerns about their child's educational program apply to both IEPs. I find that petitioners' challenge to the April 20, 1994 IEP was not moot because the CSE subsequently prepared another IEP, mid-way through the 1994-95 school year. The end of the school year for which an IEP was intended does not necessarily render moot a challenge to that IEP, where the conduct complained of is capable of repetition (De Vries v. Spillane, 853 F. 2d 264 [4th Cir., 1988]; Daniel R. v. E. Paso Indep. School Dist., 874 F. 2d 1036 [5th Cir., 1989]), or there is a continuing controversy between the parties (Application of a Child with a Disability, Appeal No. 94-21; Application of a Child with a Disability, Appeal No. 94-23). In this instance, petitioners raise significant questions about the manner in which the CSE evaluated the child, identified his special education needs, and prepared annual goals and short-term instructional objectives. Those questions should be resolved, even though the 1994-95 school year has concluded. Therefore, I find that the hearing officer erred in ruling that the matter of the child's IEP for the 1994-95 school year was moot.

        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 CSE 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 the evaluation 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).

        Petitioners challenge the April 20, 1994 IEP on both procedural and substantive grounds. they assert that they were denied full participation in the CSE meeting at which that IEP was prepared (cf. 34 Part 300, Appendix C, Question 26). However, I find that there is no factual basis in the record for that assertion. They also assert that the CSE lacked the required parent member. Respondent acknowledges that the parent member of the CSE did not attend the April 20, 1994 CSE meeting, but it asserts that the parent member's absence had no legal effect on the appropriateness of the child's IEP. However, the State Review Officer has held, on numerous occasions, that neither the Education Law nor the Regulations of the Commissioner of Education authorizes a CSE to prepare a child's IEP in the absence of a parent member of the CSE (Application of a Child Suspected of Having a Handicapping Condition, Appeal No 92-26; Application of a Child with a Disability, Appeal No. 94-5; Application of a Child with a Disability, Appeal No. 95-8). While an IEP which was prepared by a CSE which lacked the requisite members is a nullity (Application of a Child Suspected of Having a Disability, Appeal No. 95-27), the April 20, 1994 IEP was superseded by the IEP which a properly constituted CSE prepared on March 19, 1995. Since petitioner raised substantive objections to both IEPs, I will consider the content of both IEPs.

        Petitioners assert that respondent's CSE lacked adequate evaluative data about the child to prepare an appropriate IEP for him because it allegedly failed to comply with the Federal regulatory requirements for determining the existence of a specific learning disability (see 34 CFR 300.540-543). Those regulations, as well as the relevant State regulation (8 NYCRR 200.1 [mm][6]), require that a CSE find that the child has a significant discrepancy between achievement and ability in one or more specific areas, such as oral expression, written expression, reading, spelling, or mathematics. Such a finding is required not only to determine the child's classification, but also to identify the child's special education needs, and to prepare appropriate IEP annual goals and short-term instructional objectives.

        When the CSE prepared the child's IEP on April 20, 1994, it did not include the results of the child's December, 1992 evaluation, or the results of any subsequent evaluation or annual review on his IEP. After the April 20, 1994 CSE meeting, the child's IEP was apparently amended to reflect the results of the child's performance on the May, 1994 CTBS. However, the CSE chairperson acknowledged at the hearing that the CSE did not have the CTBS results when it drafted the child's IEP on April 20, 1994. The May, 1994 CTBS test results also appear on the child's March 14, 1995 IEP. However, neither IEP identifies the child's special education needs which the CTBS results, in part, revealed. On the CTBS the child achieved grade equivalent scores which ranged from 4.9 in spelling to 12.9 in study skills. The child also exhibited relative weakness in vocabulary (grade equivalent of 6.9) and expressive language (grade equivalent of 7.7). However, the child's April 20, 1994 IEP did not identify the child's deficits in spelling, vocabulary or expressive language as individual needs (8 NYCRR 200.4 [c][2][i]). Moreover, that IEP did not include any annual goal which was related to those needs. Instead, the IEP had two annual goals to improve the child's study skills and test taking strategies, notwithstanding the fact that study skills was one of the child's greatest strengths, according to the CTBS test results.

        On the child's March 14, 1995 IEP, the CSE indicated that it had reviewed the April 20, 1994 IEP, with the child's mother and her lay advocate, and that "All agreed to remove organizational and study skills goals since [the child] met his goals in that area." When questioned at the hearing about the way in which the CSE determined that the child had achieved his April 20, 1994 IEP annual goals, the CSE chairperson testified that the child had achieved passing grades in his regular education classes. She also alluded to the reports of the child's regular education teachers, although those reports were not introduced into evidence. The child's resource room teacher for the 1994-95 school year also testified that the child's regular education teachers had reported that the child was performing satisfactorily in class. Since the parties agree that the child did not require further specialized assistance in developing his study skills, there is no point in further reviewing the CSE's finding that the child had achieved his IEP goals. However, I must point out to respondent that the child's April 20, 1994 IEP annual goals and short-term instructional objectives lacked the requisite specificity.

        IEP annual goals are intended to be statements which describe what a child with a disability can reasonably be expected to accomplish within a twelve-month period (34 CFR Part 300, Appendix C, Question 38). Short-term instructional objectives are measurable, intermediate steps between a child's present levels of educational performance and the child's annual goals (34 CFR Part 300, Appendix C, Question 39). In this instance, the goals were too vague to provide direction to the child's resource room teacher about the CSE's expectations (Application of a Child with a Disability, Appeal No. 93-24), and the short-term instructional objectives were not sufficiently specific to afford the teacher a basis for drafting instructional plans for the child (Application of a Child with a Disability, Appeal No. 95-19).

        On March 14, 1995, the CSE replaced the child's previous two IEP annual goals with the new goal that the child " ... will improve his reading comprehension." The CSE indicated that the new goal, and its three short-term objectives were added at the parent's request, and were based upon the child's performance on the "4-94" (sic) CTBS test results. I note that the child's grade equivalent score for total reading of 7.4 was based upon his grade equivalent scores of 8.3 in reading comprehension and 6.9 in reading vocabulary. However, the new IEP did not specifically address the child's weakness in vocabulary, nor did it address his even greater weakness in spelling, except to provide that the child would continue to use a spellchecker at home. Although the annual goal was too imprecise, the three short-term instructional objectives were sufficiently specific to provide the child's resource room teacher with at least some basis for drafting her instructional plans. Nevertheless, I must find that respondent did not meet its burden of proving that it had offered an appropriate program of special educational services to meet the child's special education needs because neither of the two IEPs for the 1994-95 school year clearly identified the boy's needs, or provided appropriate annual goals and short-term objectives to address those needs.

        As previously noted, the child was independently evaluated in June, 1995. He achieved a verbal IQ score of 119, a performance IQ score of 129, and a full scale IQ score of 126. However, his vocabulary was reported to be in the average range, and his short-term auditory memory was reported to be below average. On the Woodcock Reading Mastery Test-R, the child achieved grade equivalent scores of 6.3 in word identification, 3.7 in word attack, and 9.7 in word comprehension. On the De Santi Cloze Inventory, the child was found to be functioning at the ninth grade instructional level. The child achieved scores within the 61st percentile in reading vocabulary and the 83rd percentile in reading comprehension, on the Stanford Test of Academic Skills. The independent evaluator described, in some detail, the child's strengths and weaknesses in reading, writing, and spelling. She recommended a multi-sensory reading instructional program, and the use of an electronic speller, for the child. I find that the independent evaluation report provides adequate information to the CSE to identify the child's special education needs on the child's 1995-96 IEP. I concur with the hearing officer's direction to the CSE to review the independent evaluation results. I note that the child was also due to have his triennial re-evaluation by the CSE.

        Petitioners ask that I order respondent to provide the child with compensatory education for the period from January, 1995, when they first challenged their son's IEP, until the present. Compensatory education is a permissible remedy under the Individuals with Disabilities Education Act (20 USC 1400 et seq) when a child has been excluded from school or denied appropriate services for an extended period of time (Burr by Burr v. Ambach, 863 F. 2d 1071 [2d Cir., 1988]; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir., 1990]; Lester H. v. Gilhool, 916 F. 2d 865 [3d Cir., 1990]; Miener v. State of Missouri, 800 F. 2d 749 [8th Cir., 1986]). The record does not reveal what, if any, services have been provided to the child in the 1995-96 school year. Although petitioners alluded to the use of consultant teacher services at the hearing in this proceeding, there is nothing in the record before me which leads me to believe that resource room services would not have addressed this child's needs, if properly focused. Given the relatively short period of time involved, I find that there is no basis for awarding compensatory education.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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