This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994).

                          State of Minnesota
                            in Court of Appeals
                              C7-95-2204

     In the Matter of: H.M., Student,
     Relator,
     vs.

Special School District No. 1,
     Respondent,
     Commissioner of Children, Families, and Learning,

     Respondent.
     Filed May 14, 1996
Reversed and remanded
Willis, Judge

Minnesota Department of Children, Families, and Learning

Agency File No. 69-2104-9817-3

Sonja Kerr, James Mortenson, Suite 214, 790 Cleveland Avenue South, St.
Paul, MN 55116 (for Relator)

Kevin J. Rupp, Nancy E. Blumstein, Ratwick, Roszak, Bergstrom & Maloney,
P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402
(for Respondent Special School District No. 1)

Hubert H. Humphrey, III, Attorney General, Bernard E. Johnson, Assistant
Attorney General, 1200 North Central Life Tower, 445 Minnesota Street, St.
Paul, MN 55101 (for Respondent Commissioner of Children, Families, and
Learning)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and
Willis, Judge.
                                     
                        Unpublished Opinion

WILLIS, Judge (No lower court judge)

H.M. requested a due process hearing from the Department of Education
(Department),(1)
        [Footnote] (1)In 1995, the Department of Education
        was abolished, and its duties and employees were
        transferred to the Department of Children, Families,
        and Learning. Minn. Stat. 𨳏A.01, subd. 1
        (Supp. 1995).

alleging that the respondent school district (district) had failed to
provide him with a free appropriate public education (FAPE). A hearing
officer denied H.M.'s hearing request because H.M. no longer resided in the
district. A hearing review officer affirmed the hearing officer's decision.
We reverse and remand for a hearing.
                                     
                               Facts

H.M. is a child with disabilities, entitled to receive special educational
services pursuant to the federal Individuals with Disabilities Act (IDEA)
and Minnesota's special education laws. H.M. moved into the district with
his parents in January 1991, when H.M. was in the seventh grade. The
district provided H.M. with special educational services for several years.

In May 1995, H.M. was committed into the custody of the Minnesota
Correctional Facility in Red Wing, outside the district. Shortly after his
removal to Red Wing, H.M. asked the Department for a due process hearing.
H.M. claimed that he was not receiving an appropriate program of special
education from the Department of Corrections. H.M. also claimed that he had
not received an appropriate program of special education while he resided
in the district.

H.M. claimed that the Department of Corrections and the district had failed
to assess him accurately and completely, had failed to provide him with
appropriate services for his learning disabilities, and had failed to
provide him with an appropriate individualized education plan (IEP),
mandated by the IDEA and Minnesota's special education laws. See 20
U.S.C. § 1414 (a) (5) (1994); Minn. Stat. 𨳐.17, subd. 3a (1)
(1994). H.M. requested a proper IEP, four years of compensatory education,
and reimbursement for educational and related expenses.


A hearing officer was appointed to conduct a due process hearing. In July
1995, the hearing officer bifurcated the proceedings and scheduled two
hearings, one involving the Department of Corrections and another involving
the district. The hearing officer dismissed the hearing involving the
district, concluding that he lacked jurisdiction over the matter because
H.M. was not currently residing in the district.(2)
        [Footnote] (2)The hearing officer did not dismiss
        the due process hearing involving the Department of
        Corrections.

A hearing review officer affirmed the hearing officer's decision.
                                     
                              Decision

1.''The agency and all parties to the proceeding before it shall have the
right to participate in the proceedings for review.'' Minn. Stat.
䅊.64 (1994). The State Board of Education was not a party to the
proceedings below; therefore, we grant the attorney general's motion to
dismiss the board as a party.

2.The record in this matter closed on August 11, 1995. H.M. has appended to
his brief an affidavit dated Sept. 12, 1995, after the record was closed.
That material is stricken because this court may not consider extra-record
evidence on appeal. Chahla v. City of St. Paul, 507 N.W.2d 29, 33
(Minn. App. 1993), review denied (Minn. Dec. 14, 1993).

3.H.M. argues that the decision to dismiss his due process hearing was
affected by error of law and unsupported by substantial evidence.
See Minn. Stat. 䅊.69 (d), (e) (1994) (stating scope of
judicial review). We agree.

While H.M. was at Red Wing, the Department of Corrections, not the
district, was required to provide H.M. with a FAPE. Minn. Stat.
𨳐.17, subd. 7 (1994).(3)
        [Footnote] (3)If it were determined that H.M. could
        benefit from public school enrollment, however, the
        school district where the Red Wing facility is
        located would be responsible for educating H.M.
        Minn. Stat. 𨳐.17, subd. 7(c) (2). That school
        district would then charge respondent district for
        the cost of providing H.M.'s education. Id.

But H.M. does not claim that the district was required to provide him
with an education while he was at Red Wing. Rather, H.M. claims that the
district failed to provide him with appropriate educational services while
he attended school in the district. H.M. has stated a claim for
``compensatory education,'' i.e., remedial educational services beyond the
time the district's obligations to him would otherwise cease. See
Minn. Stat. 𨳐.17, subd. 1 (limiting district's special education
obligations ``until September 1 after the child with a disability becomes
22 years old'').

Compensatory education is intended to provide a remedy for a past denial of
FAPE. See Miener v. Missouri, 800 F.2d 749, 753 (8th Cir.
1986) (authorizing recovery of compensatory educational services if FAPE is
denied). The purpose of compensatory education has been described as
follows:
        
        We do not believe that Congress intended to create a
        right without a remedy. If, in this case, we do not
        allow an award of compensatory education, then [the
        student's] right to an education between the ages of
        three and twenty-one is illusory. [The student]
        cannot go back to his previous birthdays to recover


        and obtain the free education to which he was
        entitled when he was younger.

Burr v. Ambach, 863 F.2d 1071, 1078 (2d Cir. 1988). See Perry
A. Zirkel, The Remedy of Compensatory Education Under the IDEA, 95
Educ. L. Rep. 483 (1995) (stating that compensatory education under the
IDEA is ``becoming `the coin of the realm' in terms of relief in
meritorious cases'').

The hearing review officer concluded that H.M. was not entitled to a due
process hearing because he did not reside in the district. The hearing
review officer cited Monahan v. Nebraska, 687 F.2d 1164 (8th Cir.
1982), cert. denied, 460 U.S. 1012 (1983); Byrd v. Independent
Sch. Dist. No. 11, No. 3-95-139 (D. Minn. Mar. 23, 1995); and
Wakefield Pub. Sch., 20 Indivs. Disab. Educ. L. Rep. (LRP Pub.) 592
(Mass. Office Admin. Hr'g Oct. 15, 1993). None of the cited cases involved
claims for compensatory education.

The hearing review officer also cited a decision by another hearing review
officer involving similar facts. In re W.S., OAH No. 52-2103-9816-3
(Minn. Office Admin. Hr'g Aug. 4, 1995). We have given due consideration to
the analysis in W.S., but do not find it persuasive. See
Sevcik v. Commissioner of Taxation, 257 Minn. 92, 103, 100 N.W.2d
678, 686 (1959) (``while administrative construction of statutes of
doubtful meaning may be persuasive, it does not preclude a different
construction by the courts'').

In Miener, the Eighth Circuit Court of Appeals addressed a student's
claim for compensatory education, even though the student had moved out of
the district during the pendency of the proceedings. The court concluded
that the student could properly request compensatory educational services
to replace the services that the district had been required to provide. 800
F.2d at 756; see also Frith v. Galeton Area Sch. Dist., 900
F.Supp. 706, 719 (M.D. Pa. 1995) (concluding that student was required to
exhaust administrative remedies under the IDEA, including claims for
compensatory education, against two former school districts); Gerasimou
v. Ambach, 636 F.Supp. 1504, 1511 (E.D.N.Y. 1986) (stating that
student's claim against district for cost of prior educational services was
not rendered moot when student moved out of the district).

In Lester H. v. Gilhool, the Third Circuit addressed a district's
argument that it would be premature to award compensatory education to a
student who was currently attending an out-of-state facility:
        
        The injury has been done and although the exact
        contours of the appropriate remedy may not be
        ascertainable now, [the student's] injury certainly
        could be, and was, ascertained. *** [H]ere the
        district court did not speculate. It conceded that
        it was unable to predict [the student's] future
        educational needs, and wisely left the ``form or
        components of the instructional program'' to be
        determined, once [the student] reaches age 21, by
        the collective effort of school officials, parents
        and professionals. * * * In short, now is the most
        convenient time for all parties to present evidence
        as to whether [the student] received an appropriate
        placement, whether one was available, and the extent
        of the efforts made by the School District to find
        an appropriate placement.

916 F.2d 865, 868-69 (3d Cir. 1990), cert. denied, 499 U.S. 923
(1991). A similar analysis is appropriate here, if it is determined that
the district denied H.M. the FAPE to which he was entitled.



Under Minnesota law, a due process hearing must be ``initiated and
conducted by and in the school district responsible for assuring that an
appropriate program is provided *** if the parent or guardian continues to
object to *** the proposed denial or removal of special education
services for their child.'' Minn. Stat. 𨳐.17, subd. 3b(e) (1994)
(emphasis added).

The hearing review officer concluded that because the district was not
responsible for H.M.'s current or ``proposed'' program of education while
he was at Red Wing, the hearing officer lacked jurisdiction to require the
district to participate in a due process hearing. But as one commentator
has stated:
        
        [C]ourts cannot provide a sensible rationale to
        separate what is ``prospective'' from what is
        ``retroactive,'' at least in the case of CES
        [compensatory educational services].

Mark H. Van Pelt, Comment, Compensatory Educational Services and the
Education for All Handicapped Children Act, 1984 Wis. L. Rev. 1469,
1492 (1984). Thus, we reject the distinction between ``proposed'' and
``retroactive'' services in the context of compensatory education.(4)
        [Footnote] (4)Indeed, we could construe the facts of
        this case as a ``proposed'' action by the district;
        H.M. has requested that the district be required, in
        the future, to provide him with four years of
        compensatory education and reimbursement for
        educational and related expenses.

Under Minnesota law, H.M. is entitled to a due process hearing to address
his claims for compensatory education from the district.

Our decision is supported by the fact that the legislature has provided for
a due process hearing ``initiated and conducted by and in the school
district responsible for assuring that an appropriate program is
provided.'' Minn. Stat. 𨳐.17, subd. 3b(e). The district is
responsible for assuring that any mandated compensatory education is
provided to H.M.

Finally, we note that the legislature has named the individuals and
entities that may be parties to a due process hearing. Those parties
include ``[t]he child's school district of residence, a resident district,
and providing district *** .'' Id., subd. 3b(l). ``School district
of residence'' is defined as ``the district in which the child's parent
resides ***.'' Id., subd. 6(a). During H.M.'s placement at Red Wing,
H.M.'s parents continued to reside in the district.(5)
        [Footnote] (5)After oral argument, we requested
        supplementary briefing on the issue of whether any
        change in H.M.'s residence had made this appeal
        moot. We were notified that H.M. has been paroled
        from Red Wing and has returned to the district.
        Nevertheless, the parties have urged us to decide
        this matter because, for example, there is a
        possibility that H.M.'s parole could be revoked. We
        agree that the matter is not moot because the issue
        of H.M.'s entitlement to a hearing is ``capable of
        repetition but likely to evade review.'' Elzie v.
        Commissioner of Pub. Safety, 298 N.W.2d 29, 32
        (Minn. 1980).

We have not arrived at our decision without difficulty. We are fully aware
of the expense and time involved in conducting and participating in a due
process hearing. See generally Perry A. Zirkel, Over-Due Process
Revisions for the Individuals with Disabilities Act, 55 Mont. L. Rev.
403, 403-14 (1994). Despite these concerns, we believe that a hearing is
necessary, and was necessary even while H.M. was at Red Wing, to determine

whether the district must compensate H.M. for a past denial of the
education to which he is entitled. Our conclusion, however, is based on an
assumption that H.M. still desires the relief he sought in the proceedings
under review and that he intends to take advantage of any services that
might be awarded as the result of a due process hearing.
Reversed and remanded.