02-070

         Petitioner, the Board of Education of the Barker Central School District, appeals from two decisions of an impartial hearing officer. The first decision, which was rendered on June 22, 2002, addressed issues relating to an individualized education program (IEP) developed by petitioner's Committee on Special Education (CSE) in February 2001. Petitioner appeals from that portion of the hearing officer's June 22, 2002 decision which annulled the February 2001 IEP, and which ordered it to pay for the costs of vision therapy for the child. The second decision, which was rendered on June 24, 2002, addressed issues relating to an IEP developed in February 2002. Petitioner appeals from that portion of the hearing officer's June 24, 2002 decision which annulled the February 2002 IEP, and which remanded the matter to petitioner's CSE with the direction that it reconvene to classify the child as autistic and to develop an IEP placing the child in a special class with a student to staff ratio of no greater than 8:1+1. The appeal must be sustained in part.

        In her answer, respondent asserts that the petition was not personally served upon her before the time to appeal had expired. An appeal from a decision of a hearing officer generally is not dismissed for service irregularities, absent a showing of prejudice to respondent (Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with a Disability, Appeal No. 93-2). The record shows that petitioner made reasonable attempts to initiate the appeal in a timely manner. I note that the petition was served upon respondent's attorney within the required time frame and respondent filed a timely response to the petition despite her claim that she had not been personally served. Under the circumstances, I will exercise my discretion and excuse petitioner's brief delay (Application of the Bd. of Educ. of the Starpoint Cent. Sch. Dist., Appeal No. 01-043).

        When the hearing began in October 2001, the child was seven years old and was homeschooled (District Exhibit 28).¹ He was enrolled in a prekindergarten public school program during the 1998-99 school year (District Exhibit 6). When the 1999-2000 school year began, the child was five years old. He did not attend school that year, nor did respondent file any reports indicating that she was providing home instruction to him during that school year (Parent Exhibit J-56). On September 6, 2000, respondent, under protest, began homeschooling her son (District Exhibit 48-I).

        A neurodevelopmental evaluation report indicated that the student met the criteria for a diagnosis of pervasive developmental disorder, not otherwise specified (PDD-NOS), but that his language and behavioral problems were too severe for him to be considered as having Asperger's disorder and that "he clearly does not fully meet criteria for a diagnosis of autistic disorder" (District Exhibit 316). He also had significant attention deficits (District Exhibit 316). He had difficulty processing auditory information and difficulty with visual planning (District Exhibit 14). Additionally, the child exhibited delays in visual tracking skills (District Exhibit 16).

        The CSE met for the first time in February 2001 after various evaluations of the child were conducted (District Exhibits 12, 13, 14, 15, 16, 316, 317). It recommended that the child be classified as learning disabled and that he be placed in a 15:1 special class in general education with the related services of occupational therapy and counseling (District Exhibit 23).

        On July 10, 2001, the student's parents requested an impartial hearing because they disagreed with the classification, placement, and program recommended by petitioner's CSE (District Exhibit 2). The hearing began in October 2001, was conducted over 19 sessions, and concluded on June 3, 2002. Shortly after the hearing began, the child's father withdrew as a party to the proceedings (IHO Exhibit 13).

        In February 2002, while the hearing regarding the February 2001 IEP was pending, petitioner's CSE met for the child's annual review and to prepare his IEP for the 2002-03 school year (Case 2 District Exhibit 5). The CSE recommended substantially the same program it had recommended the previous year (Case 2 District Exhibit 5). On April 5, 2002, the parent requested a hearing because she disagreed with the CSE's February 2002 recommendation regarding her son's classification, placement, program and evaluations (Case 2 District Exhibit 7). The parent moved to have the matter regarding the February 2002 IEP consolidated with the ongoing hearing concerning the February 2001 IEP, and her request was granted by the hearing officer (Case 2 District Exhibit 8). The hearing concluded on June 3, 2002 after testimony was taken regarding the February 2002 IEP.

        The hearing officer rendered his decision regarding the February 2001 IEP on June 22, 2002. He found that petitioner failed to appropriately classify the child and that it failed to prepare proper IEPs for the child for the 2000-01 and 2001-02 school years. The hearing officer noted that it would be insufficient to remand the matter to the CSE because the 2001-02 school year had ended before his decision could be rendered. Consequently, he indicated that he would address petitioner's failure to provide an appropriate program for the 2001-02 school year in his decision on the February 2002 IEP. Additionally, the hearing officer found that vision therapy was an appropriate related service and should have been provided to the child during the 2001-02 school year. He ordered petitioner to immediately authorize the initiation of vision therapy for the child and be responsible for the costs consistent with the evaluator's recommendation.

        The hearing officer rendered his decision regarding the February 2002 IEP on June 24, 2002. He found that the IEP was both procedurally and substantively inappropriate, and he annulled it. He remanded the matter to the CSE with the direction that it reconvene immediately to classify the child as autistic and to develop an IEP placing the child in a special class with a student to staff ratio of no greater than 8:1+1 with the related services of counseling and occupational therapy. Having indicated that he would address petitioner's failure to provide an appropriate program for the 2001-02 school year in his decision relating to the February 2002 IEP, the hearing officer dismissed the parent's request for relief arising from petitioner's failure to provide special education and related services to the child during the 2001-02 school year.

        Petitioner appeals from the hearing officer's decisions. It requests that I vacate those portions of the hearing officer's decisions that annulled the child's IEPs, that ordered it to provide vision therapy to the child, and that remanded the matter to its CSE.

        In its petition, petitioner indicates that the residency of respondent and her son is in dispute (Pet. ¶ 4). In her answer, respondent claims that her son's father resides within petitioner's school district and that his residency is not in dispute (Answer ¶ 2). Section 279.1(a) of the Regulations of the Commissioner of Education provides that the provisions of Parts 275 and 276 shall govern the practice on reviews of hearings for students with disabilities, except as provided in Part 279. Pursuant to section 276.6 of the Regulations of the Commissioner, the State Review Officer (SRO) may, in his discretion, in the determination of an appeal, take into consideration any official records or reports on file in the Education Department which relate to the issues involved in the appeal. In other appeals to this office in which respondent was a party, she admitted that she moved to the Springville-Griffith Institute Central School District (Springville-Griffith) and that she enrolled her children in Springville-Griffith on September 12, 2002. Another appeal involving this child is currently pending in this office. In that appeal, the child's father is the petitioner and Springville-Griffith is the respondent. The father is challenging certain determinations made by Springville-Griffith's CSE regarding his son's special education program for the 2002-03 school year. Under the circumstances presented, I will exercise my discretion to take into consideration in determining this appeal the fact that the child was enrolled in Springville-Griffith on September 12, 2002.

        I will address petitioner's appeal from the June 22, 2002 decision first. The initial question that I must decide is whether, and to what extent, petitioner is aggrieved by that decision. As noted above, despite having determined that petitioner failed to appropriately classify the child and that it failed to prepare a proper IEP for the child for the 2001-02 school year and despite ordering that the IEP be annulled, the hearing officer dismissed the parent's request for relief arising from petitioner's failure to provide special education and related services to the child during the 2001-02 school year. Respondent does not appeal from that ruling. Because the hearing officer ultimately dismissed the parent's request for relief for the 2001-02 school year, I find that petitioner is not aggrieved by the hearing officer's findings regarding the February 2001 IEP (Application of a Child with a Disability, Appeal No. 98-2).

        In his June 22, 2002 decision, the hearing officer also found that vision therapy was an appropriate related service and should have been provided to the child during the 2001-02 school year. He ordered the district to immediately authorize initiation of vision therapy to be provided by the behavioral optometrist who evaluated the child and recommended the therapy. Petitioner argues that the hearing officer erred in ruling that the child should be provided vision therapy.

        The record shows that at the February 2001 CSE meeting, the CSE considered the child's visual evaluation and determined that he had visual tracking delays which needed to be addressed (District Exhibit 22). The IEP developed at the February 2001 meeting included a goal to improve ocular motor control with two supporting objectives to address the child's visual tracking delays (District Exhibit 23). The CSE recommended that an occupational therapist be responsible for implementing the goal and supporting objectives through individual occupational therapy sessions on a weekly basis (Transcript pp. 1206-07, 2592). I find that the CSE identified the child's visual tracking needs, established an appropriate goal with supporting objectives related to those needs, and recommended appropriate services to enable the child to achieve the established goal.

        I now turn to the June 24, 2002 decision. Petitioner appeals from the hearing officer's order remanding the matter to its CSE. As noted above, respondent enrolled her son in Springville-Griffith on September 12, 2002. Petitioner initiated this appeal prior to respondent's move to that school district. Pursuant to state law, the responsibility for providing a free appropriate public education (FAPE) to a student rests with the school district in which the student resides (N.Y. Educ. Law §§ 3202[1], 4401-a, and 4402[1][b][2]). Therefore, upon the student's enrollment in Springville-Griffith on September 12, 2002, that school district became responsible for providing a FAPE to the student for the remainder of the 2002-03 school year and for all of the related procedural safeguards under the Individuals with Disabilities Education Act (IDEA).

        The SRO is not required to determine issues which are no longer in controversy or to make a determination which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 97-17, Application of a Child with a Disability, Appeal No. 94-9). With respect to the issues concerning the 2002-03 school year, there is no determination that I can make that would have an actual effect on the parties. Subsequent events have laid the issues to rest. Respondent enrolled her son in another school district at the beginning of the 2002-03 school year, and consequently, petitioner is no longer responsible for providing a FAPE to the child (see Application of a Child with a Disability, Appeal No. 02-110; see also Application of a Child with a Disability, Appeal No. 02-109). Therefore, the hearing officer's order remanding the matter to the CSE must be vacated. Accordingly, petitioner's appeal challenging the relief ordered by the hearing officer for the 2002-03 school year is sustained.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decisions are hereby annulled to the extent that it ordered petitioner to authorize vision therapy and to the extent that it remanded the matter to petitioner's CSE.