02-042

       Petitioner appeals from the determination of an impartial hearing officer in an expedited hearing that petitioner's son should be placed in an interim alternative educational setting (IAES) for 30 days at the student's local middle school, with three hours of individualized instruction a day provided by a special education teacher, assistance by two 1:1 aides, and behavioral consultant services. Petitioner asserts that the IAES should have consisted of a full day of instruction in a mainstream setting. Respondent cross-appeals, claiming that the IAES should have been continued for the full 45-day period permitted by law. The appeal must be sustained in part. The cross-appeal must be sustained.

        When the hearing took place on January 23, 2002, petitioner's son was 14 years old and an eighth grader in respondent's district. There is no dispute about his classification as a student with autism. He functioned at approximately a second grade level in reading and math, and he reportedly used only a few phrases independently (Transcript p. 228). The student's individualized education program (IEP) notes that he is a visual learner and learns best from modeling, but that he prefers to work independently rather than interact or accept help from another person. It also states that he has a limited repertoire for coping with negative feedback or interference with his desired behavior, and that he frequently showed his frustration by hitting adults (Exhibit A; Transcript p. 41). Since approximately December 10, 2001, the student was at home without receiving educational services after being suspended from his classes for various incidents of aggressive behavior (Exhibit 8; Transcript pp. 388, 433).

        The record indicates that when the student was in sixth grade in respondent's middle school, he frequently exhibited physically aggressive behavior toward others, including his teachers (Exhibit C; Transcript pp. 398, 468). For his seventh grade year, his parents sent him to a private school for children with disabilities (Transcript pp. 402-03). Respondent's CSE reportedly sought to continue his placement at the private school, but his parents wanted him to return to respondent's middle school (Exhibit 2; Transcript p. 258). In addition, the record indicates that the private school would not take the student back (Transcript p. 299).

        During the 2000-01 school year, petitioner's son repeated seventh grade at respondent's middle school. His IEP provided that he would attend a special class with a special education teacher and a full time 1:1 aide for two hours daily, receive one hour of speech therapy daily, and participate in adapted physical education, with gradual mainstreaming in science and special subjects. An independent educational evaluation in January 2001 indicated that he had intensive needs in communication and socialization. The evaluator recommended a functional behavioral assessment (FBA) and behavioral intervention plan (BIP) to address the student's behavior problems (Exhibit 2). The student reportedly did well during much of the 2000-01 school year, but his aggressive behaviors increased in frequency and intensity in May and June (Transcript p. 307).

        On May 9, 2001, the CSE convened to develop an IEP for the 2001-02 academic year. The CSE recommended an eighth grade program that consisted of two hours of instruction in a special education classroom with a 1:1 instructional aide and one hour of speech therapy daily. It further recommended three 30-minute speech consults each week, five 30-minute team consults each week, and one 60-minute psychology consult each month, as well as educational and assistive technology consultations (Exhibit A). The student was to participate in an adapted physical education program and lunch with the general school population, with gradual mainstreaming in other areas (Exhibit A; Transcript p. 7). During the 2001-02 school year, petitioner's son was the only student in his special class for part of the day, and there was one other student in the room with him for math (Transcript pp. 7-8). His eighth grade teacher testified that she was provided a copy of his BIP (Exhibit 2; Transcript pp. 70-72).

        In the eighth grade, the student's aggressive behavior intensified. He reportedly hit his special education teacher and other school staff members who were working with him on many occasions throughout the first semester of the school year (Transcript pp. 13, 21-22, 57-59, 108, 118 and 193). He was also involved in three incidents of aggression toward other students (Transcript pp. 162-63). New staff were brought in to work with the student, including a special education teacher who had experience with students with autism (Transcript pp. 54-55), friends of petitioner who were familiar with his son (Transcript pp. 26, 116-118), and a teaching assistant who had been trained in crisis intervention, behavior management, and violence intervention (Transcript pp. 156-57). Despite these efforts, the student's behavior continued to deteriorate (Transcript pp. 21-22).

        On December 10, 2001, the student reportedly hit the principal in the face three times, then punched his teacher three or four times in the side (Transcript pp. 60-61). Effective that day, the student was suspended from school. At a CSE meeting on December 27, 2001, the CSE determined that the student would need an alternative program due to his escalating behaviors (Transcript pp. 358-60). On January 4, 2002, the district requested an expedited impartial hearing and a determination that the student attend an IAES for up to 45 days, during which period the CSE would develop a revised IEP with the parents' input (Exhibit 7).

        On January 10, 2002, the CSE developed a proposed IAES for the student, consisting of a daily schedule of services provided by a special education teacher and a 1:1 aide at another of respondent's middle schools from noon to 2:00 p.m., with speech therapy daily for thirty minutes. A licensed psychologist and an augmentative communications specialist were to consult with the staff and the parents, and a school psychologist was to complete a thorough evaluation, a functional behavioral assessment (FBA), and a behavioral intervention plan (BIP) while the student was in the IAES (Exhibit 8; Transcript pp. 209-11, 372-73, 387-88). The student was also to have access to a computer.

        An expedited hearing was held on January 23, 2002. At the end of the hearing, the district asked the hearing officer to decide immediately on an alternate placement so that there would be an educational program in place for the student. The parent objected and the hearing officer stated that he would likely order additional evaluations before making a determination (Transcript pp. 494-95). The hearing officer did indicate that he did not think it appropriate to put the student in a public school educational setting pending his decision (Transcript p. 496).

        On January 29, 2002, the hearing officer rendered the first part of his three-part decision. He ruled that the district had demonstrated by substantial evidence that maintaining the student in his current placement was substantially likely to result in injury to the student or to others. However, he found the district had not made reasonable efforts to minimize the risk in the student's current placement, and that the proposed IAES placement was inappropriate because two hours of instruction a day would not be sufficient to enable the student to continue to meet the goals set out in his IEP.

        The hearing officer directed the parties to submit to him by February 15, 2002 written recommendations for an appropriate IAES, and ordered a psychological evaluation, a separate psychiatric evaluation, and an evaluation by a behavioral consultant. The hearing officer recommended that the behavioral consultant develop a BIP to help control the student's aggressive behavior, and begin working with the student at home to control the behavior. He further ordered the district to begin canvassing personnel to fill the positions of special education teacher, licensed speech therapist, and two full time aides, all experienced in assisting with autistic students. He indicated that, in determining an appropriate IAES, he would take into account the experts' reports, the parents’ preferences, the resumes of the prospective service providers, and the district's opinion as to whether it would be able to deliver the type of program recommended by the experts.

        After a series of letters between the parties and a planning meeting on March 8, the hearing officer rendered the second part of his decision on March 12, 2001. He determined that the IAES should consist of three hours of special education instruction per day from 12:15 p.m. to 3:15 p.m. in the student's local middle school, in a room near the main office modified and equipped for safety and instruction. He directed that the IAES begin on March 18. The hearing officer ruled that the student should be transported in a small van, with an aide assigned. He further directed the instructional planning team to convene on several future dates to evaluate the IAES and determine whether the student's instructional day could be expanded. He scheduled a conference call with the parties to determine whether the behavioral consultant would need to attend the IAES instructional setting after the first week. Further, he ordered the district to begin advertising for a full time special education teacher to instruct the student.

        As of March 26, 2002, the student had not yet attended the IAES, because his parents objected to the layout of the room and to the district's plans to physically restrain the student, if necessary. After going to the school to meet with the parties and observe the room, the hearing officer finally ordered on March 27, 2002 that the IAES would be implemented on April 1, 2002, with the caveat that physical restraint be used only as a last resort.

        Petitioner asserts in his appeal that respondent should have provided his son with a full day of instruction so his entire IEP could have been implemented. He asks for compensatory education for the period his son did not receive full-day instruction, which he defines as the entire 2001-02 school year. He further requests reimbursement of attorney's fees, costs and expenses he incurred. Respondent asserts that the IAES should have been extended for the full 45-day period permitted by law.

        Under the Individuals with Disabilities in Education Act (IDEA), school personnel may change the placement of a child with a disability to an appropriate IAES, another setting, or suspension, for up to ten school days to the extent such measures would be applied to a nondisabled child (20 U.S.C. § 1415[k][1][A][i]). If the behavior at issue is determined not to be a manifestation of the student's disability, school personnel may suspend the student for longer than ten days as in the case of a nondisabled student (20 U.S.C. § 1415[k][5][A]). In this case, however, there was no question that the student's behavior was a manifestation of his disability (Transcript p. 74). Accordingly, the school district requested an expedited hearing to seek a determination that it was dangerous for the student to remain in his current placement and to have the hearing officer order "an appropriate [IAES] for not more than 45 days" (20 U.S.C. § 1415[k][2]; 34 CFR § 300.520[a][1][ii]).

        The IDEA provides additional safeguards for a student with a disability who is removed from his educational program. The law requires that the IAES in which a child is placed shall:

(i) be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP; and

(ii) include services and modifications designed to address the behavior…so that it does not recur.

(20 U.S.C. § 1415 [k][3][B]).

        The principal issue raised in this appeal is whether the IAES ordered by the hearing officer consisting of three hours of instruction a day is adequate to enable the student to meet the goals of his IEP.

        Testifying for the parents, an independent educational evaluator opined that the student was in a crisis situation and that the behavioral consultant hired to work with him should determine his hours of instruction. Her goal would be to have him work toward a half-day program (Transcript pp. 240, 242-44). The student's father testified that he would agree to a half-day schedule if the psychologists found that it would be sufficient (Transcript p. 430). Each of the behavioral experts, whose reports are appended to respondent's answer (Answer Exhibits A & B), recommended that the student's school day should consist of no more than two to three hours of instruction while efforts were made to improve his behavior.

        Moreover, the student's IEP for the 2001-02 school year provided for only two hours daily of special education instruction. Although his school day was gradually increased to six hours, a behavior log (Exhibit 1) indicates that his off-task behavior interfered with his instruction to the point that it was significantly detracting from his education. The record indicated that three hours of daily instruction was appropriate for the student during the interim placement. Therefore, the IAES ordered by the hearing officer appropriately addressed the needs of petitioner's son.

        Petitioner argues that his son should have been mainstreamed during the IAES period. The independent educational evaluator recommended against placing the student in mainstream classes until his behavior could be controlled, testifying that the student posed a potential safety threat to those around him (Transcript pp. 250-51, 266). The school psychologist opined that the student could not be mainstreamed due to his aggressive behaviors, and noted that he had regressed since the IEP was written providing for gradual mainstreaming (Transcript pp. 218-19). His eighth grade special education teacher testified that mainstreaming the student might have put staff or other students in jeopardy (Transcript pp. 51-53). His seventh grade teacher testified that the student could not do the work of his mainstream science class, and had no interest in interacting with other students (Transcript p. 342). His aide testified that the student never interacted with other students, even in the lunchroom (Transcript pp. 123-24). In sum, the record indicates that placement in an IAES in a mainstream program would not have been appropriate for petitioner's son. The student's emotional and behavioral needs as of December 2001 warranted a more restrictive setting in which his behavior could be closely monitored, and in which it could be assured that he, the other students, and school staff would be safe.

        During the pendency of the expedited hearing in this matter, petitioner's son was without educational services from December 10, 2001 until at least January 23, 2002. School personnel may suspend a student for up to five days before being obligated to conduct a due process hearing (Education Law § 3214[3][c][1]). When any student of compulsory education age is suspended, school authorities must take "immediate steps…for his… attendance upon instruction elsewhere…" (Education Law § 3214[3][e] & [g][1]).

        The record is unclear as to exactly what procedures respondent followed at the time the student left school in December. The administrator for student support services testified that the student was suspended for a series of two or three five-day periods (Transcript p. 388). He further testified, however, that the district requested agreement from the parents to keep him home (Transcript p. 358). The student's father testified that they agreed to keep him home, but felt they had no other option because the district informed them there was no teacher for him (Transcript p. 485). The student was home from school for two weeks between December 10, 2001 and the Christmas break without receiving any services. On January 4, 2002, a few days after school recommenced, respondent requested an expedited hearing, and on January 10, the CSE developed a proposed IAES. As of the date of the hearing, January 23, 2002, petitioner's son remained at home without any services being provided by respondent. Based on the record before me, I conclude that petitioner's son was effectively suspended from school from December 10, 2001 through January 23, 2002. During that period, he was entitled to continue in his school program, to placement in an IAES (20 U.S.C. § 1415[k][1][A][i]), or to receive alternative educational services (Education Law § 3214 [3][e]).

        Although the record indicates that respondent developed a proposed IAES for petitioner's son on January 10, 2002 and revised that proposal on January 23, 2002 (Exhibit 8), and that respondent asked the hearing officer on January 23, 2001 to order an interim program for the student (Transcript pp. 494-95), respondent has failed to demonstrate that it offered the student any services at all from December 10, 2001 through at least the date of the hearing. Moreover, in the third part of his decision on March 27, 2002, the hearing officer noted that the student had yet to start the IAES program. He set April 1, 2001 as the new date for the program to begin.

        In this appeal, petitioner claims that his son is entitled to compensatory education for a full school year "in consideration of what [he] has missed in [eighth grade]." There is no basis for awarding compensatory education to petitioner’s son. Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction, and may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Burr v. Ambach, 863 F. 2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir. 1990]; Application of a Child with a Disability, Appeal No. 01-094). Because petitioner's son is only 14 years old and because the deprivation of instruction was of a limited duration and can be remedied through the provision of additional services before he becomes ineligible for instruction, this is not a proper case for an award of compensatory education (Application of a Child with a Disability, Appeal No. 01-094).

        However, as noted above, the student was improperly denied educational services from the date of his suspension until his return to an educational program, from December 10, 2001 until April 1, 2002. Adjusting for school holidays, I find that petitioner's son is entitled to the equivalent of three months of the three hours per day of the services provided for him in the IAES ordered by the hearing officer. However, it would not be appropriate simply to add three hours a day to the student's program. Rather, the CSE is directed to take into account the services that should have been provided to the student between December 10, 2001 and April 1, 2002 in providing services to him for the balance of the current school year and for future school years (Application of a Child with a Disability, Appeal No. 93-34).

        Petitioner seeks an order awarding him $40,000 for attorney’s fees and costs related to seeking a proper program for his son. The IDEA authorizes a court to award to a prevailing party attorney’s fees and related costs (20 U.S.C. § 1415[i][3][B]). However, it is well established that the State Review Officer lacks the authority to award attorneys’ fees and costs (Application of a Child with a Disability, Appeal No. 01-011, Application of a Child with a Disability, Appeal No. 01-086).

        Respondent seeks review of the hearing officer's decision that the IAES should last 30 days, rather than the full 45-day period permitted by law. While this, and other issues related to the IAES, are arguably moot because of its limited duration, it would be impossible to obtain meaningful review of a hearing officer's decision in this regard in a timely manner if the mootness doctrine were strictly applied. Further, an issue need not be considered moot where, as here, the conduct complained of is capable of repetition yet evading review (Honig v. Doe, 484 U.S. 305 [1988]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036 [5th Cir. 1989]). I find that the hearing officer should have extended the IAES to the full 45-day period, given the severity of this student's behavior problems and the intensive behavior modification services that were necessary in order to return him successfully to his original placement.

        In light of my disposition in this matter, it not necessary to address the remaining issues raised by the parties.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that respondent provide petitioner's son with additional educational services as specified in this decision; and

IT IS FURTHER ORDERED that the decision of the impartial hearing officer be annulled to the extent it limited the interim alternative educational setting for petitioner's son to 30 days.