01-064

        Petitioners appeal from an impartial hearing officer’s decision dismissing their claim that respondent had denied their son a free appropriate public education (FAPE) by denying their request for extended school year (ESY) services in the summer of 2001. The appeal must be dismissed.

        Petitioners’ son is six years old. The child was diagnosed as having an autistic spectrum disorder and global developmental delay at the age of three. He received Early Intervention Services, and was referred to respondent’s Committee on Preschool Special Education (CPSE). The CPSE classified him as a preschool student with a disability for the 1998-99 school year. For the summer of 1999, the CPSE recommended that petitioners’ son receive 6.5 hours of special education intinerant teacher (SEIT) services per week, the services of an individual aide for 41 hours per week, 7.5 hours of speech therapy per week, 3.5 hours of occupational therapy per week, and 4.74 hours of parent training per week, all services to be provided at the child’s home (District Exhibit 4).

        On May 15, 2000, the CPSE recommended that the child continue to receive ESY services during the summer of 2000. Those services included 5 hours of direct and 7.5 hours of indirect SEIT services each week, 1 hour of parent training and counseling each week, as well as a total of 37 hours of an individual aide’s services each week (District Exhibit 29). The CPSE noted on the child’s individualized education program (IEP) that petitioners had enrolled their son in the "Fit by Five" summer day camp for four days per week. Respondent provided an individual aide for six of the ten weeks that the child attended the camp, in addition to providing a trained individual to observe his behavior at the camp. The child’s mother testified that petitioners paid for an aide during the first two weeks of the camp, and that her son attended the camp without an aide during the last two weeks of the camp season (Transcript p. 194).

        The child passed from the CPSE’s jurisdiction to that of respondent’s Committee on Special Education (CSE) for the 2000-01 school year, because he became five years old. On April 15, 2000, the CSE recommended that petitioners’ son be classified as a student with autism, and that he enter respondent’s "young kindergarten" program in September 2000. The young kindergarten class is intended for students who are old enough to attend school, but who have some developmental needs. The CSE also recommended that the child receive 5 hours of direct and 5 hours of indirect consultant teacher services each week, 15 hours of direct individual aide services per week plus 1 hour of indirect aide service per month, 15 hours of direct skills coaching per week and 1 hour of indirect skills coaching per month, the services of a case manager, and that petitioners receive parent training and counseling. On the child’s IEP, the CSE noted that the CPSE had recommended that the child receive ESY services during the summer of 2000 (District Exhibit 31). Petitioners accepted the CSE’s recommendations (District Exhibit 33).

        During the summer of 1999 and the 1999-2000 school year, the child also received applied behavioral analysis (ABA) instruction at home. He continued to receive such instruction at home during the 2000-01 school year. The Center for Autism and Related Disorders, Inc. (CARD) provided those services. In December 2000, CARD recommended that the services in the home be reduced because the child was doing so well (District Exhibit 34). Following a reduction of those services in January 2001, CARD recommended a further reduction of services for the child in February 2001 (District Exhibit 37), and in March 2001 (District Exhibit 44). In its March recommendation, CARD reported that petitioners’ child had met or exceeded all age appropriate skills in his home program.

        For the summer of 2001, CARD recommended that the child attend camp on a half-day basis, without an aide, and that a consultant teacher observe the child in camp for one hour per month to ensure that he was interacting appropriately and not regressing socially without an aide. In addition, it recommended that a program supervisor observe the child at camp for two hours per month for the same purpose, and that petitioners receive one hour of parent training per month. The CARD supervisor did not indicate that there would be any regression in the child’s skills if the recommended services were not provided (District Exhibit 48). I note that on April 5, 2001, the CARD supervisor indicated that with each reduction of service, the child’s behavior had regressed slightly "for a very short time" (District Exhibit 51).

        On April 5, 2001, respondent’s CSE conducted its annual review of the child and prepared his IEP for the 2001-02 school year. The minutes of the meeting indicate that the child’s eligibility to receive ESY services during the summer of 2001 was discussed, and that the CSE concluded that he was not eligible for such services (District Exhibit 55). On the child’s IEP for the 2001-02 school, the CSE recommended that he have the services of an autism consultant for up to 25 hours during the year, as well as an individual aide for 15 hours per week, while attending a regular education kindergarten class (District Exhibit 54). The CSE further recommended that petitioners continue to receive training during the year. The child’s IEP did not include any ESY services.

        Petitioners requested an impartial hearing on May 11, 2001 (District Exhibit 57). At the hearing on June 8, 2001, the sole issue in dispute was whether ESY services should be provided to the child during the summer of 2001. Petitioners sought a determination that a consultant teacher should observe their son at camp for four hours per month, and that they should receive one hour of parent training by CARD per month. In his decision dated June 26, 2001, the impartial hearing officer noted that eligibility for ESY services is to be determined in accordance with the criteria set forth in 8 NYCRR 200.6 (j). The relevant portion of that regulation requires a showing that there would be a substantial regression in a student’s skills if ESY services were not provided to the student. The hearing officer found that the CSE had properly concluded that petitioners’ child did not meet the eligibility criteria for ESY services.

        I must note at the onset that respondent provided ESY services to this child during the summer of 2001 pursuant to the pendency provisions of federal and state law (20 U.S.C. § 1415[j]; § 4404[4] of the New York Education Law). On this basis, respondent asserts that the matter is moot, but nonetheless seeks a decision on the merits. A student’s eligibility for ESY services must be determined on an annual basis. Although this appeal was not received until late in the summer of 2001, I will not dismiss it as moot, because the underlying dispute between the parties is clearly capable of repetition (DeVries v. Spillane, 853 F 2d 264 [4th Cir, 1988]; Daniel R. v. El Paso Independent School District, 874 F.2d 1036 [5th Cir, 1989]).

        When a CSE determines that a child has a disability, it must prepare an IEP for the child. The IEP must indicate whether the child is eligible for a special service or program on a 12-month basis (8 NYCRR 200.4[d][2][xi]). Eligibility for such program or service is determined by the CSE in accordance with the criteria set forth in 8 NYCRR 200.6(j)(1). The relevant portion of that regulation reads as follows:

(j)     Twelve-month special service and/or program. (1) Eligibility of students for 12-month special services and/or programs. Students shall be considered for 12-month special services and/or programs in accordance with their needs to prevent substantial regression, if they are:

(v)     Students…who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education.

        The term "substantial regression" is defined by the Regulations of the Commissioner of Education to mean:

a student’s inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.

(8 NYCRR 200.1[aaa]).

        Petitioners contend that respondent failed to demonstrate that regression will not occur. They assert that there is evidence in the record demonstrating that there were instances of regression during the school year, citing their exhibits 7, 8, 9, and 10. I cannot agree that there is any evidence of substantial regression during the 2000-01 school year. Although the CARD supervisor noted that the child had become more non-compliant as the number of hours of ABA services were reduced during the school year, she indicated that such regression was slight and for a very short period of time (Parents’ Exhibit 10). The other exhibits upon which petitioners rely indicate that their child needed to have certain skills re-taught during the school year. They do not, however, afford a basis for concluding that there would be substantial regression if the services petitioners seek were not provided.

        In a letter dated April 12, 2001, the CARD supervisor advised respondent’s director of special education that the child did not need services during the summer because he had not regressed. She explained that her earlier recommendation that she and a consultant teacher observe the child for a total of five hours during the summer and that petitioners receive one hour of training per month was made for the "continuity of program and to prevent the possibility of regression" (District Exhibit 53). The child’s young kindergarten teacher testified that petitioners’ son had transitioned very well into her class in September, and he had blossomed socially, emotionally, and academically throughout the year (Transcript pp. 174, 176). She further testified that she had not observed any regression in the child’s performance following his absence from school for holidays (Transcript p. 181). The child’s mother testified that petitioners worked very hard with their son during holiday breaks from school to ensure that there would be no regression (Transcript p. 201).

        Petitioners’ child has made substantial progress, and has become less dependent upon support services. While it is impossible to predict the future development of a child, I find that the record supports the CSE’s determination that petitioners’ son was not eligible to receive ESY services in the summer of 2001. I have considered petitioners’ other contentions, which I find to be without merit.

THE APPEAL IS DISMISSED.