98-036

       Petitioner appeals from the decision of an impartial hearing officer which found that it had inappropriately delayed its approval of a recommendation by its committee on special education (CSE) that respondent's son have certain evaluations, and that its CSE had erroneously prepared the child's individualized education program (IEP) for the 1997-98 school year without those evaluations. The appeal must be dismissed.

        On January 12, 1998, the hearing officer in this proceeding granted the Board of Education's motion to dismiss the part of the parent's complaint which related to what petitioner's CSE had done or failed to do with regard to preparing the child's IEP for the 1996-97 school year. He dismissed that part of the complaint because he found that he could not provide an appropriate remedy for the school district's alleged wrongs because the 1996-97 school year had ended. The child's mother, who is the respondent in this appeal, appealed from the hearing officer's interim decision dismissing that part of her complaint. Her appeal was dismissed because the provisions of 8 NYCRR 279.6 preclude appeals from most interim decisions (Application of a Child with a Disability, Appeal No. 98-8). However, I indicated in my decision in that appeal that I would consider her challenge to the hearing officer's interim decision to be a cross-appeal in this appeal by the Board of Education from the hearing officer's final decision. The cross-appeal must be dismissed.

        Respondent's son is thirteen years old. He was referred by his mother to the CSE prior to his scheduled entry into kindergarten in the fall of 1990. The CSE reportedly recommended that the child not be classified, but that he receive speech and language improvement services (see 8 NYCRR 100.1 [q]) in kindergarten. In any event, respondent reportedly chose not to enter her son in kindergarten for the 1990-91 school year. The child was reportedly referred again to the CSE in August, 1991. In February, 1992, the CSE recommended that the child be classified as speech/language impaired, and that he be placed in a self-contained special education class in one of respondent's elementary schools. An impartial hearing was conducted because the child's mother reportedly disagreed with the specific placement which the CSE had recommended. The appropriateness of that placement was upheld by an impartial hearing officer. The procedural history of respondent's attempt to appeal from the hearing officer's decision is described in Application of a Child with a Disability, Appeal No. 95-29, and will not be repeated in this decision.

        In the fall of 1994, the hearing officer who conducted the hearing which led to Appeal No. 95-29 ascertained that respondent's child had never entered petitioner's schools, but was being privately tutored at home. He directed petitioner's CSE to evaluate the child to ascertain his current educational needs, and to meet with respondent to design an appropriate educational program for her son. A school psychologist who evaluated the child in November, 1994 reported that the boy had achieved a verbal IQ score of 81, a performance IQ score of 83, and a full scale IQ score of 81, which was in the low average range (School District Exhibit 92). The school psychologist indicated that the child's verbal comprehension skills, perceptual organization skills, and ability to sustain his attention were developing evenly. However, his visual motor integration skills were below age and grade expectation. On the Peabody Individual Achievement Test-Revised, the child achieved standard scores (and grade equivalent scores) of 78 (1.9) for general information, 55 (K.8) for reading recognition, 55 (K.8) for reading comprehension, 66 (1.4) for mathematics, and 55 (K.5) for spelling. A speech/language pathologist who also evaluated the child in November, 1994 reported that his speech in unstructured situations was generally unintelligible. He attained a standard score of 68 on a test of his receptive language skills, and he manifested signs of a significant disability with regard to his auditory memory. The evaluator opined that the child had a speech and language disability which would significantly impact upon his education.

        On December 14, 1994, the CSE recommended that the child be classified as speech impaired (School District 8). It is also recommended that the child be placed in a 12:1+1 special education class, but be mainstreamed for art, music, physical education, and lunch. The CSE further recommended that the child be evaluated for occupational therapy, and that he receive individual speech/language therapy three times per week. On December 16, 1994, the parties agreed to implement the CSE's recommendations, subject to the mother's choice of a specific class for her son. Respondent selected a class in petitioner's Kinry Elementary School. Her son entered that class, which was a combined fourth, fifth and six grade 12:1+1 class, on January 9, 1995.

        In February, 1995, the child was evaluated by an occupational therapist, who reported that he had significant delays in his visual perceptual development, and a two-year delay in fine motor development (School District Exhibit 95). She noted that his letter formation was slow and laborious, and that he had difficulty with sound/symbol recognition. The CSE accepted the therapist's recommendation that the child receive individual occupational therapy twice per week.

        At the hearing in this proceeding, the teacher of the 12:1+1 class testified that respondent's son was very excited about being in school, but knew only about 60 percent of the upper case letters of the alphabet and letter sounds. He was unable to read or write, but his mathematics skills were at the first grade level. Shortly after the child entered the class, his teacher requested that an individual aide be assigned to the child because he was unable to do academic work without full-time assistance. The CSE amended the child's IEP in March, 1995 to provide a full-time aide for him. The child's teacher testified that at the end of the 1994-95 school year, respondent's son could recognize all of the letters of the alphabet, and produce all of the letter sounds. He was working on recognizing sight words, and could write a few words in a journal.

        The child remained in the same 12:1+1 class for the fifth grade during the 1995-96 school year. He continued to have the assistance of a full-time aide. His IEP for the 1995-96 school year (Exhibit 22) indicated that he was to receive individual speech/language therapy three times per six-day cycle and individual occupational therapy twice per five-day cycle. The child was mainstreamed for art, music, and physical education. His teacher testified that the child began the school year with a low level first grade reading textbook, and was up to the second grade level by the end of the year. His mathematics skills improved to the fourth grade level. The child's writing skills also improved to the point where he could construct simple sentences.

        Respondent's son was assigned to the same self-contained class for the 1996-97 school year. Once again, he was mainstreamed for art, music, and physical education. He was also assigned to a regular education sixth grade homeroom for a brief period at the beginning of each school day. The child's IEP (Exhibit 38) indicated that he was to receive individual speech/language therapy twice per six-day cycle. He also received occupational therapy until February, 1997, when it was deleted from his IEP with respondent's consent. The child was also assisted by a full-time aide until February, 1997, when the aide's services were discontinued with respondent's consent.

        In December, 1996, respondent expressed concern about her son's socialization, as well as his placement in seventh grade during the next school year. On December 17, 1996, the CSE agreed to respondent's request that a school psychologist administer the Perception of Ability Scale for Students to the child, and that the child be evaluated by a social worker. The CSE further recommended that the child receive an assistive technology evaluation. In a report dated February 5, 1997 (Exhibit 45), the school psychologist interpreted the results of the tests which he had administered. He reported that the child's score across a range of school-related activities was well below average, indicating that the child's self-evaluations were negative. In the areas of reading/spelling, penmanship and neatness, and school satisfaction, the child's scores were below average, indicating his dissatisfaction with many aspects of school life. The school psychologist reported that the child's confidence about his ability was in the average range, which he interpreted to mean that the child thought that he was meeting expectations in the classroom, and that school was neither too difficult nor too easy for him. He also indicated that positive reinforcement in the classroom supported the child's confidence.

        A school social worker reported on January 8, 1997 that she had interviewed respondent, the child's teacher, the building principal, and the child, whom she also observed in class (Exhibit 69). She noted that the principal had expressed some concern about the child's behavior in less structured settings, and believed that counseling could enhance his social skills. The social worker reported that the child was focused, interested and cooperative during the 20 minutes she observed him in a language arts class. She opined that the child displayed confidence, a positive sense of self, and an ability to solve problems. However, she recommended that he receive a total of six counseling sessions to strengthen his social skills and enhance his decision making ability. At respondent's request, the social worker observed the child on the school playground during class recess in April, 1997. She reported that the child functioned as a leader, initiating and controlling most activities, and moving easily from group to group. She described him as being assertive, and sometimes aggressive in his action with peers.

        Respondent met with petitioner's CSE on February 26, 1997. At that meeting, the CSE recommended that the child's individual aide be removed, and that the occupational therapist's consultant services be removed. Respondent accepted both recommendations. She requested that her son's academic achievement be tested to ascertain whether he had a specific learning disability. After some discussion of how and when the testing would be performed, the CSE chairperson indicated that the testing would be arranged for by the building-level child study team, with the understanding that it be done as soon as possible (Hearing Officer Exhibit 15).

        On March 4, 1997, petitioner's CSE chairperson forwarded information about the child to the Technology Resources for Education Center of the Albany, Schoharie, Schenectady and Saratoga BOCES for an assistive technology assessment. In a report dated June 11, 1997, but reportedly not received by the CSE until June 16, 1997, (Exhibit 103), the Center evaluator indicated that the child could benefit from the use of high quality remedial academic software, and recommended that the child be given access to a computer with appropriate software for approximately 30 minutes per day.

        A CSE subcommittee was scheduled to meet in April, 1997 to discuss the psychologist's and social worker's reports. Respondent objected to the fact that the reports had not been considered earlier, and requested that the matter be taken up directly by the CSE. I note that respondent had apparently requested that additional testing be done by the school psychologist, which was done on April 29, 1997 (Exhibit 102). In that testing, the child achieved a verbal IQ score of 75, a performance IQ score of 99, and a full scale IQ score of 85. The school psychologist noted that there was a significant discrepancy between the boy's verbal and performance IQ scores. He opined that the discrepancy suggested that the child had a language based impairment. On the Wechsler Individual Achievement test, the child achieved standard (and grade equivalent) scores of 77 (2.8) for basic reading, 80 (3.1) for reading comprehension, 83 (4.5) for numerical operations, 85 (3.8) for mathematics reasoning, 77 (2.5) for listening comprehension, 96 (4.4) for oral expression, 68 (2.1) for spelling, and 64 (less than K.0) for written expression. The school psychologist noted that the child was classified as speech/language impaired, and suggested that his classification be reviewed by the CSE. He also recommended that a neurological evaluation be performed because of the discrepancy between the boy's verbal and performance IQ scores. The school psychologist's report was dated June 9, 1997.

        On May 6, 1997, a subcommittee of the CSE recommended that the child be placed in what his teacher testified was an 8:1+1 "intensive reading class" in petitioner's Van Wyck Junior High School for the 1997-98 school year. She further testified that the child needed to move on to a junior high school for social reasons, and that the recommended class was language based and would have provided him with multisensory instruction. The teacher of the recommended class testified that she used a form of the Orton-Gillingham methodology in her class. She further testified that she instructed her students for five periods per day in reading, English, mathematics, social studies, and science, and that she incorporated the Orton type techniques in all of her instruction. The 8:1+1 class teacher also opined at the hearing that respondent's son would have benefited from a placement in her class.

        The full CSE met on June 11, 1997 to conduct its annual review of the child's educational program. It considered the school psychologist's recent evaluation, and it recommended that the child receive a neurological evaluation. It further recommended that an audiological evaluation, a neuropsychological evaluation, and an updated assistive technology evaluation be performed (Exhibit 78). The CSE decided to hold its recommendations for the child's classification, placement and related services in abeyance "pending further review." The child's then current teacher, who was a member of the CSE, testified that the CSE wanted to obtain further information about the child before deciding upon his classification or placement (Transcript, page 408). The school psychologist who had evaluated the child agreed that the CSE believed that additional evaluations were necessary before the CSE could make any recommendation (Transcript, page 1003).

        On June 18, 1997, respondent submitted a request for a hearing pursuant to Section 504 of the Rehabilitation Act of 1973, because her son had allegedly been discriminated against by having his school yearbook picture taken with his 12:1+1 special education class rather than with his regular education homeroom class. By agreement of the parties, that hearing request was consolidated with nine other hearing requests which respondent subsequently submitted pursuant to the Individuals with Disabilities Education Act (IDEA). The first IDEA hearing request, which was dated July 14, 1997, asserted that the boy's IEP for the 1996-97 school year had been prepared without adequate testing to ascertain his strengths and weaknesses, and that the CSE had not obtained the results of the evaluations which it had recommended on June 11, 1997, which respondent alleged would have a detrimental effect upon her son's educational program for the 1997-98 school year.

        On August 14, 1997, the CSE met again with respondent, reportedly at the latter's request. The CSE did not have the results of the four evaluations which it had recommended at its June 11, 1997 meeting. The CSE chairperson noted that the CSE did not have the evaluation results, but she indicated that the CSE nevertheless needed to recommend a placement for the child for the 1997-98 school year. The child's special education teacher for the previous two and one-half years recommended that he be placed in the 8:1+1 reading improvement class in petitioner's VanWyck Junior High School. The CSE recommended that respondent's son be educated in the 8:1+1 class for English, mathematics, reading, science, and social skills, and be mainstreamed at the seventh grade level for other subjects. It further recommended that he receive speech/language therapy twice individually and once in a group per six-day cycle. The IEP which the CSE prepared (Exhibit 87) indicated that the CSE recommended that various testing modifications be employed, including the use of a tape recorder to record the child's answers to test questions.

        The CSE made its recommendations over the objection of respondent, who asserted that the CSE was overruling its June 11, 1997 determination that it needed to have more evaluative data before recommending an educational placement for the 1997-98 school year. On August 15, 1997 respondent filed her third request for an impartial hearing, in which she challenged her son's IEP for the 1997-98 school year. By agreement, her request was consolidated with the two previous requests in this proceeding. On September 16, 1997, respondent filed her fourth hearing request, challenging the actions taken by the CSE at a meeting held on that date at which the CSE reaffirmed its recommendation that the child be placed in the 8:1+1 class, after reviewing the report of a neurologist who had examined the boy.

        On October 21, 1997 respondent filed three more hearing requests, all of which were consolidated into this proceeding. The first request asserted that a CSE subcommittee had not evaluated her child in all areas of his suspected disability prior to developing his IEP for the 1996-97 school year. The second request asserted that petitioner's Special Education Offices had withheld an assistive technology evaluation for more than 30 days, and had not convened a CSE meeting to discuss the evaluation. The third hearing request related to the September 25, 1997 CSE meeting, and alleged that the CSE had failed to address the issue of her son's classification, despite having received a neuropsychological evaluation of her son.

        On November 14, 1997, respondent filed two more hearing requests. In the first of those requests she asserted that the CSE was not properly composed on November 12, 1997, when it reviewed the recommendations of the child's study team regarding the child's assistive technology evaluation. She further asserted that her request for an independent speech/language evaluation had been denied by the CSE. Respondent also claims that the CSE had not allowed her son's current special education teachers to make appropriate recommendations about the child's educational program, and that the CSE had refused to issue a "Nickerson" letter, enabling her to place her son in a private school at petitioner's expense. In her second request, dated November 14, 1997, respondent alleged that personnel of the school district had generated an IEP without convening a CSE meeting. The issues in these two requests were again consolidated with the prior hearing request, at respondent's request.

        Respondent's tenth and final hearing request was filed on December 15, 1997. Respondent challenged the decision by the CSE at a meeting held on December 5, 1997, not to recommend that her son receive assistive technology services. This issue was also consolidated, at her request, with those of her prior hearing requests into this proceeding.

        When the hearing began on August 8, 1997, the Board of Education moved to dismiss the issues raised in respondent's second and third hearing request. By interim decision dated August 25, 1997, the hearing officer denied petitioner's motion. He issued a second interim decision on October 6, 1997 to resolve a dispute between the parties regarding the child's pendency placement. He ordered that the child be placed in a 12:1+1 program in the Wappingers Junior High School. As noted above, the hearing officer issued his third interim decision on January 12, 1998, in which he granted petitioner's motion to dismiss respondent's claim that her son had not received an appropriate educational program during1996-97 school year. He issued one more interim order on March 24, 1998, in which he dismissed respondent's claims involving the actions taken or not taken by the CSE after its August 14, 1997 meeting, except for respondent's request for an independent speech/language evaluation. However, that issue was resolved by the parties.

        The hearing in this proceeding took place over 11 days, ending on March 20, 1998. In his decision which was dated June 3, 1998, the hearing officer identified three issues to be determined. The first was whether petitioner had violated Section 504 of the Rehabilitation Act of 1973 by publishing a photograph of the child with his sixth grade special education class in the Kinry Road Elementary School yearbook. He held that it had not. That determination is not reviewed in this proceeding (see Application of a Child with a Disability, Appeal No 96-37). The second issue which he addressed was whether petitioner's CSE had unduly delayed in obtaining the evaluations which it had recommended at its June 11, 1997 meeting. He noted that respondent had raised the issue of the accurate identification of her son's special education needs during the 1996-97 school year, and that in February, 1997, the CSE had directed the school psychologist to reassess the child. However, the school psychologist's report was not completed until June 9, 1997, which effectively precluded the CSE from addressing the appropriateness of the child's classification or placement during the 1996-97 school year. The hearing officer found that petitioner had not offered a satisfactory explanation for its delay in obtaining the results of the evaluations which the CSE had recommended at its June 11, 1997 meeting, and that the delay in obtaining those results had prevented the CSE from making a timely recommendation for the boy's classification and placement during the 1997-98 school year. The hearing officer further found that the delay had resulted in the denial of a free appropriate public education to the child.

        The third and final issue which the hearing officer addressed in his decision was whether the IEP which the CSE had prepared at its August 14, 1997 meeting was appropriate. Having reviewed the tape recording of the CSE meeting (Exhibits V and W), the hearing officer noted that the CSE had taken the position that it had sufficient information about the child to prepare his IEP, notwithstanding its earlier determination that it needed additional information. However, the CSE chairperson at the June 11 meeting, who had not attended the August 14 meeting, testified at the hearing that the CSE had in fact believed that it needed additional information in order to make its recommendation for the 1997-98 school year. His testimony was supported by that of the school psychologist who had participated in the first meeting, but not in the second meeting. The hearing officer found that the determinations made by the CSE at its August 14, 1997 meeting were inappropriate, and violated the child's right to a free appropriate public education. He annulled the IEP which was created at the August 14, 1997 meeting, and remanded the matter to the CSE to address the issue of an appropriate classification and educational program for the child.

        The Board of Education contends that the hearing officer's decision should be annulled because its CSE did not violate any regulatory time limit for obtaining an evaluation of a child. It relies upon the provisions of 8 NYCRR 200.4 (d) which read, in material part, as follows:

" (d) Within 60 days of the receipt of consent to evaluate for a student not previously identified as having a disability, or within 60 days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special programs and services, except that if such recommendation is for placement in an approved in-state or out-of-state private school, the board shall arrange for such programs and services within 30 days of the board's receipt of the recommendation of the committee."

        Petitioner asserts that the 60-day period had not expired when respondent filed her second hearing request on July 14, 1997, and that respondent's hearing request on July 14, 1997 "stopped the clock", i.e., relieved it from proceeding with the recommended evaluations. Respondent argues that the time limit in 8 NYCRR 200.4 (d) did not apply because the CSE did not recommend any special program or service for the child, and that her hearing request did not stop the clock.

        I find that petitioner's reliance upon the provisions of 8 NYCRR 200.4 (d) is misplaced. The June 11, 1997 CSE meeting was an annual review of the child's educational program, as required by 8 NYCRR 200.4 (e). There was no referral to the CSE, and therefore no beginning of the 60-day period in 8 NYCRR 200.4 (d). Although there was no regulatory time limit, petitioner and its CSE nevertheless had the obligation to ensure that the child had an appropriate placement in September, 1997. Respondent had the duty to cooperate with the CSE in making her son promptly available for the recommended evaluations. Thee is nothing in the record which demonstrates that respondent was not willing to cooperate with the CSE on this matter. As noted by the hearing officer, respondent had voiced her concerns about having her child further evaluated well before the June 11, 1997 annual review was conducted. Although the CSE did not determine that additional evaluations should be done until the annual review was held, it was incumbent upon the CSE to follow through with its recommendations in an expeditious manner.

        Petitioner relies upon the decision in Application of a Child Suspected of Having a Disability, Appeal No. 96-6) for the proposition that it did not need to proceed with the evaluations after respondent filed her July 14, 1997 hearing request in which she challenged petitioner's delay in approving the CSE's recommendation. I cannot agree for two reasons. First, the provisions of 8 NYCRR 200.4 (d) did indeed apply in that appeal, while they do not in this appeal. Secondly, the decision in that appeal did not suggest that the pendency provisions of Federal and State law (20 USC 1415 [j] and Section 4404 (4) of the Education Law) operated to relieve a board of education of the responsibility to take any action with respect to a child with a disability. In this instance, respondent was not challenging whether the four evaluations should be performed, but was complaining about the delay in having them performed. I find that the pendency provisions did not stop the clock as petitioner has asserted, and I agree with the hearing officer's conclusion that petitioner and its CSE did not act promptly enough to ensure that the evaluations were completed in time for the CSE to make appropriate and timely recommendations for the 1997-98 school year.

        Petitioner further contends that the CSE's August 14, 1997 recommendations were in all respects appropriate, and asks that I annul the hearing officer's decision to the contrary. It acknowledges that some of the individuals who participated in the CSE's annual review on June 11, 1997 were not present at the August 14, 1997 CSE meeting, but it claims that the August 14, 1997 CSE recommendations were the "culmination of months of input of appropriate District personnel." Specifically, it asserts that the recommended 8:1+1 class placement was discussed with respondent at the May 6, 1997 CSE subcommittee meeting, as well as at the June 11, 1997 CSE annual review. Petitioner also argues that the hearing officer should have dismissed respondent's claims involving the August 14, 1997 CSE meeting as not being properly before him because of respondent's July 14 hearing request. According to petitioner, it was precluded from providing anything except what was on the child's IEP for the 1995-96 school year after it had received the July 14 hearing request.

        I cannot agree with petitioner's arguments. While the pendency provisions of Federal and State law precluded petitioner from actually changing the child's then current educational placement without respondent's consent, they did not preclude the CSE from conducting its annual review and recommending an appropriate classification, program, and placement for the child (Application of a Child with a Disability, Appeal No. 97-13). Petitioner had both the right and the duty to proceed with the child's annual review, which the CSE had not finished at its June 11, 1997 meeting.

        I agree with petitioner that the CSE which met on August 14, 1997 did not have to be composed of the same individuals who were members of the CSE which met on June 11, 1997. I disagree with respondent's contention that the August 14, 1997 CSE should have included her son's speech/language therapist or another certified speech/language pathologist (see 34 CFR 300.344 [a]). However, petitioner must offer a reasonable explanation for the CSE's decision on August 14, 1997 to recommend a program for the child and prepare his IEP without the evaluative data which the CSE had previously determined were necessary to make recommendations about the boy. I have reviewed the testimony by the individual who chaired the CSE at its August 14, 1997 meeting. She testified that she and her colleagues had taken into account what the CSE had previously recommended, but they believed that they did not need the results of the four evaluations in order to make recommendations about his program and placement. She admitted that she had not discussed the matter with the person who had chaired the earlier CSE meeting, and had no knowledge of what had been discussed at that meeting (Transcript, pages 1319-1320). The CSE chairperson testified that the CSE had considered the child's academic achievement, learning rate, management needs, and physical development, and that the CSE had not needed additional data, such as the results of an audiological evaluation, because it was able to reach a consensus about its educational program recommendations without those data (Transcript, pages 1325). At the hearing, the CSE chairperson testified that there was still time as of August 14, 1997 to obtain the evaluations and make a recommendation for the 1997-98 school year (Transcript, page 1344). However, I have also listened to a tape recording of the August 14, 1997 CSE meeting, at which the chairperson stated that the CSE needed to make a placement recommendation for September, 1997, even though it was waiting for the results of the evaluations (Exhibits V and W). Upon the record which is before me, I concur with the hearing officer's determination that the IEP which the CSE prepared on August 14, 1997 should be annulled, and the matter be remanded to the CSE. Accordingly, the remainder of petitioner's appeal must also be dismissed. Since the matter is to be remanded to the CSE, I find that respondent's complaints about what the CSE did, or failed to do, after the August 14, 1997 meeting are moot.

        In her cross-appeal, respondent argues that the hearing officer erred in dismissing her claim that in the spring of 1996, the CSE subcommittee had prepared her son's IEP for the 1996-97 school year without having tested the boy to determine his then current levels of performance, which must be indicated on an IEP (see 8 NYCRR 200.4 [c][2][i]), or having tested him in all areas of his suspected disability. Respondent asserts that her son regressed academically during the 1996-97 school year because of the CSE's omissions.

        The hearing officer dismissed this portion of respondent's complaint on the grounds that even if respondent's complaint was factually accurate, there was no appropriate remedy which he could order because respondent had waited until after the 1996-97 school year had ended to request an impartial hearing about the matter, and because there was no basis for an award of compensatory education.

        Respondent contends that she has a right to seek redress for her alleged grievance because she complained about the lack of testing at a meeting of the CSE which was held on December 17, 1996. Although the record is not clear on that point with regard to the December, 1996 CSE meeting, it is clear that the issue of additional academic testing was raised at the February 26, 1997 CSE meeting, and that the requested testing was done on April 29, 1997 (Exhibit 102). Respondent has not explained why she waited until after the 1996-97 school year had ended to request a hearing. While I note for the record that the boy's IEP for the 1996-97 school year (Exhibit 22) listed his reading and mathematics scores on a standardized achievement test which was administered to him in November, 1994 instead of his current performance levels, I am not persuaded that any useful purpose would have been served by conducting a hearing about that matter after the school year had ended. As noted above, the additional evaluations which respondent sought to have performed with respect to a possible change in her son's classification have also been performed.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.