00-037

       Petitioner appeals from an impartial hearing officer's decision which upheld the recommendation of respondent's Committee on Preschool Special Education (CPSE) that her son be placed in a full day, ten-month program at the Inspire Cerebral Palsy Center in Goshen, New York. Respondent cross-appeals from the hearing officer's determination regarding the child's pendency placement. The appeal must be sustained in part. The cross-appeal must be dismissed.

        The child was five years old at the time of the hearing. He has reportedly been diagnosed with mosaic Down syndrome (Exhibit 17). The mosaic form of Down syndrome occurs when some cells of the body have the typical number of chromosomes and some have the chromosome anomaly that causes Down syndrome (Exhibit 25). Research is limited with respect to the similarities and differences between typical Down syndrome and mosaic Down syndrome (Exhibit 25). However, some studies have shown that children with mosaic Down syndrome may have a higher IQ and may reach certain motor milestones, such as crawling and walking alone, earlier than children with typical Down syndrome (Exhibit 25).

        In December 1995, the child began receiving home-based services through the Orange County early intervention program (Exhibit 14). In addition to special education services, he reportedly received occupational, physical and speech therapy (Exhibit 15). The child's family also implemented an intensive treatment program designed by the Institute for the Achievement of Human Potential (IAHP) in Philadelphia (Exhibit 17). The program is based upon the Doman-Delacato theory for the treatment of children with "brain injuries". The theory is premised upon a belief that the brain develops in an orderly way and that treatment should be focused at the actual site of the injury (Exhibit 24, Transcript pp. 345 and 301). Brain development is fostered by providing various types of stimulation. The program includes a technique referred to as masking, which involves placing a plastic mask over the child's mouth and nose for one minute intervals every six to ten minutes to provide a slight increase in carbon dioxide. When carbon dioxide rises above a certain level, a reflex is stimulated which produces an increase in the rate and depth of breathing thus increasing the oxygen level in the blood (Exhibit A-1). This reportedly creates an increased blood flow to the brain which improves brain functioning (Transcript p. 301).

        In the spring of 1998, the child was referred to respondent's CPSE for evaluation because he was aging out of the early intervention program. On July 29, 1998, the CPSE recommended that the child be classified as a preschool child with a disability, and that he receive special education itinerant teacher (SEIT) services four and one-half hours per week and related services of occupational, physical and speech/language therapy (Exhibit 18). The CPSE noted on the child’s individualized education program (IEP) that the child’s current service providers were of the opinion that he should receive academic instruction in a social setting. In an effort to propose a recommendation that would address the service providers’ emphasis on socialization and the parent's desire to continue the child’s home-based program, the CPSE proposed a temporary continuation of the home-based program to be reviewed in 1999. It also indicated that a primary goal of the SEIT services was to assist the child in transitioning to a school-based program.

        On October 28, 1998, the CPSE met to review the results of a vision consultation (Exhibit 4). Although the report is not in the record, the child's IEP included the consultant's findings which indicated that the child exhibited vertical deviation, torticollis or a lateral head tilt, and double vision. The consultant concluded that the child required services from a teacher of the visually impaired. The CPSE agreed with the recommendation and added vision impaired services to the child's IEP.

        In a progress report dated April 30, 1999, the child’s physical therapist reported that the child's gross motor development was solid through the 21-month age level and scattered through the 36-month age level. She recommended that physical therapy be continued to encourage the development of the child's gross motor milestones as close to age level as possible (Exhibit 12).

        At its annual review on May 3, 1999, the CPSE found that the child had made progress in his educational program. It recommended continuation of the same services, which were being provided in the child's home, for the summer of 1999 and the 1999-2000 school year (Exhibit 3). The CPSE agreed to meet in June to discuss the parent's request for an increase in services. When it reconvened in June, the CPSE recommended a continuation of the child's home program with an increase in SEIT services to two hours per day and an increase in speech/language services from three to five times per week (Exhibit 2). The coordinating preschool provider raised concerns about the current program suggesting that the child might be better served through a center-based program in the fall. The CPSE and the parent agreed to a full evaluation by the coordinating preschool provider to identify the current level of the student's academic needs.

        In an occupational therapy evaluation conducted on July 14, 1999, the child's sensory motor functioning was assessed to be in the deficient range and his fine motor and visual motor functioning was severely delayed. The evaluator indicated that poor attention span and distractibility were affecting the student's potential skill level in fine and visual motor development (Exhibit 7).

        A physical therapy evaluation was also completed on July 14, 1999 (Exhibit 6). On the Peabody Gross Motor Scale, the child completed gross motor skills at the 20-month level, indicating an overall delay of 32 months. He had low-normal muscle tone and joint hypermobility. His muscle strength, endurance, bilateral coordination and gross motor planning were deficient and equilibrium reactions were immature.

        In a psychological evaluation completed on July 28 and 29, 1999, the psychologist noted that the child exhibited a short attention span, low frustration threshold and frequently shut down (Exhibit 5). She further noted that the child's language was delayed, and that the intelligibility of his speech was affected by a rapid pace and numerous articulation errors. The child also required frequent repetition or rephrasing of directions. On the Stanford Binet Intelligence Scale – Fourth Edition, the child obtained an overall composite of 31, placing him within the low average range of cognitive potential. Delays in his perceptual and motor processes affected his functional performance. The psychologist noted that the child had acquired an unusual amount of general knowledge surpassing his age expectancy, which she attributed to the intensive program developed by IAHP. On the Woodcock Johnson Tests of Achievement, the child scored in the average range in science and in the low average range in social studies. He demonstrated below average knowledge of concepts related to art, music and literature. The psychologist cautioned that the student appeared disinterested and that it was highly probable that his potential was higher. The child's mother served as respondent on the Vineland Adaptive Behavior Scales (VABS), Interview Edition. The child consistently demonstrated skills within the low range. He required some assistance feeding himself and ate a variety of foods, but still used a bottle, was not toilet trained, and required assistance dressing. However, the psychologist noted that the child was competent with the computer. He could complete several programs independently and was adept with a mouse.

        In an occupational therapy progress report completed in August 1999, the occupational therapist indicated that therapy emphasized improving upper body strength and control, motor planning and coordination and development of fine motor, visual motor and functional self-help skills (Exhibit 11). She noted that the child had made progress in all of the occupational therapy related goals.

        The CPSE met on August 4, 1999 and recommended continuation of the same program and services which included SEIT services, occupational, physical, and speech/language therapy, as well as a teacher of the visually impaired, all on an individual basis (Exhibit 1-A). Although the child's parent had requested an increase in the frequency of both occupational and physical therapy, the CPSE did not agree to increase the child’s services. However, it did agree to convene after the first marking period to review the student's rate of progress in physical therapy.

        A physical therapy progress report was completed on August 31, 1999 (Exhibit 9). The physical therapist noted that there was no progress in the student's developmental skill level during the summer. She indicated that the goals for physical therapy remained to achieve age appropriates safety, independence, strength, balance, coordination and endurance in the child's gross motor development. She recommended continuation of the same therapy program.

        In October 1999, the child began attending the Head Start program at Kiryas Joel school one day per week (Transcript p. 272). Staff at the program advised petitioner that her son could attend the program on a full time basis, only if he were accompanied by an aide (Transcript p. 227). On November 17, 1999, the CPSE met to review the child’s progress and to consider his mother’s request for an individual aide to accompany her son to the Head Start program. Instead, the CPSE recommended that the child be placed at Inspire Kids, a full day, ten-month preschool program at the Inspire Cerebral Palsy Center (Exhibit 1). The Inspire Cerebral Palsy Center is an authorized special education preschool provider. The CPSE further recommended that the child receive related services of individual occupational, physical, and speech/language therapy, as well as an SEIT and a teacher of the visually impaired, both on an individual basis. The child's mother requested that home-based services be continued until her son reached the age of five. She indicated that the recommended preschool program was unacceptable because of family religious and cultural concerns.

        In a letter dated December 22, 1999, the parent advised the CPSE chairperson that the program recommended at the November 17, 1999 meeting was not appropriate for her son, and requested an inclusion program and a hearing (Exhibit IHO-4). By letter dated January 28, 2000, an advocate for petitioner advised respondent's director of pupil personnel services that the child had not received any services since December 8, 1999 (Exhibit 20). The director of pupil personnel services responded on February 9, 2000 that respondent would provide services consistent with the August 1999 IEP at Inspire Kids (Exhibit 21).

        The hearing began on February 14, 2000. Petitioner's advocate asked the hearing officer to issue an interim order directing respondent to resume providing services to the child at the child's home. In an interim decision dated February 19, 2000, the hearing officer declined to order respondent to provide services at home, and he urged the parties to agree upon an interim method of providing services to the child. By letter dated February 29, 2000, respondent's director of pupil personnel services advised petitioner of the schedule that had been arranged for the provision of her son's related services and suggested that she contact Inspire Kids to obtain those services (Exhibit 27). The letter listed SEIT, occupational, physical and speech therapy, but did not include the services of a teacher of the visually impaired.

        The hearing concluded on March 26, 2000. The hearing officer rendered his decision on April 20, 2000. He found that the continued delivery of services to the child in his home was inappropriate because the concurrent implementation of the Doman-Delacato method in the home interfered with the delivery of special education and related services, and because the child was being deprived of the opportunity to interact with others. The hearing officer also found that Inspire Kids was an appropriate placement for the child. Additionally, he determined that during the pendency of the proceeding, services should be provided to the child at his home, only if the Doman-Delacato program was not being provided to the child at the same time.

        Petitioner appeals from the hearing officer's decision. She argues that Inspire Kids was not an appropriate placement for her son for the 1999-2000 school year because it could not deliver all of the related services recommended on his IEP. She contends that her son should have attended a half-day Head Start program at Kiryas Joel school during the 1999-2000 school year because that program would better prepare him for kindergarten at United Talmudic Academy.

        The initial question which I must address is whether the central issue in this appeal, i.e., the appropriateness of the educational program recommended by the CPSE for the 1999-2000 school year, has become moot by the passage of time. I note that the school year in question was virtually over before this appeal was commenced in June 2000. In general, appeals dealing with specific class placements are moot at the end of the school year because no meaningful relief could be granted (Application of a Child with a Disability, Appeal No. 93-20). In this instance, the child was in preschool during the 1999-2000 school year, but has since then become eligible to attend kindergarten. Even if I were to agree with petitioner’s contention about the inability of Inspire Kids to provide all of her son’s related services to him, it would not be appropriate at this point to order that the child attend a Head Start preschool program. I must therefore find that the issue of the appropriateness of the program which the CPSE recommended is moot.

        Petitioner contends that respondent failed to provide over 400 hours of services to her son while the impartial hearing was pending. In his final decision on April 20, 2000, the hearing officer found that the child had not received any services since December 1999 because of the unwillingness of his parent to allow him to attend the CPSE’s recommended facility, and the inability of the school district to provide uninterrupted services at the child’s home. He ordered respondent to provide services to the child at his home, provided that Doman-Delicato services did not take place simultaneously with the school district’s services. Petitioner asserts that respondent has not provided any service since the hearing officer’s decision. Respondent insists that services were available at the site of the Inspire Kids program. I find that the issue is not moot because if petitioner’s son did not receive services for an extended period of time, he may be eligible for compensatory education (Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir 1990]; Burr v. Ambach, 863 F. 2d 1071 [2d Cir. 1988]).

        The resolution of this issue depends at least in part upon the outcome of respondent’s cross-appeal from the hearing officer’s order requiring it to provide services to the child in his home pursuant to the pendency provisions of federal and state law. Respondent asserts that its offer to provide services to the child on an individual basis at Inspire Kids pending the outcome of this proceeding was consistent with its obligation to maintain the child’s then current placement.

        The pendency provisions of federal and state law require that a child remain in his then current placement, unless the child’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. § 1415[j]; N.Y. Educ. Law section 4404[4]). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]; Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]).

        The inquiry focuses on identifying the child’s then current educational placement (Zvi D., 694 F.2d at 906). Although not defined by statute, the term "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Application of a Child with a Disability, Appeal No. 97-80). The U.S. Department of Education has opined that a child's then current placement would " … generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]" (Letter to Baugh, EHLR 211:481; see also Drinker, 78 F.3d at 867; Gregory K. v. Longview School Dist., 811 F.2d 1307 [9th Cir. 1987]).

        The parties concur that the child’s August 1999 IEP was the last agreed upon IEP. As noted above, the term "then current educational placement" does not refer to a specific site or location at which a child's program is provided. Rather, the child must continue to receive the special education and related services listed on the last agreed upon IEP when pendency protection is invoked. The August 1999 IEP included SEIT services, occupational, physical, and speech/language therapy, all on an individual basis, as well as a teacher of the visually impaired on an individual basis. Respondent contends that Inspire Kids could provide those services. However, the record shows that it could not. The director of education at Inspire Kids testified that the program could provide occupational and physical therapy, but that it was unable to provide speech therapy and a teacher of the visually impaired (Transcript pp. 112-113). She also testified that the SEIT services would have to be provided in a small group (Transcript p. 112).

        While I agree with respondent that pendency is not a matter of site or location, I find that it has not established that a pendency placement was available to the child at the site of the Inspire Kids program. Under the circumstances, I must agree with petitioner that respondent failed to provide services to her son during the pendency of this proceeding. In view of the significant number of hours of services involved and the absence of information about the child’s current levels of performance and present placement, I will not direct respondent to simply make up the hours of service. Instead, I will direct its Committee on Special Education (CSE) to review the child’s current program and recommend additional amounts of services to address any deficits created by respondent’s failure to provide services during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 99-34).

        I have considered the other claims raised by the parties and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that within 30 days after the date of this decision the CSE shall recommend appropriate services to be provided to the child consistent with the tenor of this decision.