This opinion will be unpublished and may not be cited except as provided by Minn.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 Unpublished Opinion WILLIS, Judge (No lower court judge) H.M. requested a due process hearing from the Department of Education (Department),(1) [Footnote] (1)In 1995, the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.