The State Education Department
State Review Officer

No. 03-018

Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Fayetteville-Manlius Central School District

Appearances:
Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel

DECISION

        Petitioner appeals from an impartial hearing officer's determination that his daughter was not entitled to compensatory education because respondent offered her a free appropriate public education (FAPE). The appeal must be dismissed.

        The student was 20 years old when the impartial hearing was initiated. She is classified autistic and is non-verbal. From 1988 to December 1994, she attended school in the Jamesville-DeWitt Central School District. She began attending school in the Fayetteville-Manlius Central School District (district) in September 1995, after petitioner transferred custody of his daughter to her nurse who resided in the district. Respondent's Committee on Special Education (CSE) developed an individualized education program (IEP) for the student in October 1995. The student attended a middle school in the district until May 1996, when she was placed in a foster home in a neighboring district. After three weeks, she was placed in the home of another nurse in respondent's district.

        The student did not receive services during summer 1996 because the district contested that the student was a resident of the district. Petitioner initiated an appeal pursuant to N.Y. Education Law § 310 to address the residency question. On October 17, 1996, the Commissioner of Education ordered respondent to admit petitioner's daughter to its schools tuition free pending a determination of petitioner's appeal. The CSE met on October 21, 1996, with petitioner in attendance, to develop an IEP for the student. On December 2, 1996, the student returned to school.

        The student's nurse resigned on March 10, 1997, and the student returned to petitioner's home outside the district but continued to attend school in the district. The district asked the Commissioner to find that the student was no longer a district resident and that petitioner was liable for his daughter's tuition through the end of the 1996-97 school year (Exhibit P-28). The Commissioner ruled on September 11, 1997 that the student had not been a resident of respondent's district (Exhibit D-5). Petitioner and his daughter moved into the district on September 20, 1997, however, petitioner declined to offer the district proof of residency. After a residency hearing was held on December 22, 1997, the superintendent determined that the student was a district resident (Exhibit D-49).

        Petitioner requested a reevaluation of his daughter in January 1998. On February 27, 1998, the CSE convened and recommended the reevaluation. On March 5, 1998, petitioner requested an impartial hearing, asserting that the district had not conducted a reevaluation. Also in March 1998, the CSE offered home instruction to petitioner's daughter (Exhibits D-33, D-37). When petitioner declined home instruction, the chair of the CSE offered to convene a meeting of the CSE to discuss a program (Exhibit D-43). Petitioner declined. Ultimately, petitioner withdrew his request for an impartial hearing.

        In May 1999 the district filed a report with Social Services, Children's Protective Unit for educational neglect (Exhibit P-44). In November 1999 the complaint was determined to be unfounded because the child was not abused or maltreated (Exhibit P-61). The CSE convened in May 1999 and again recommended home instruction. The program was to be provided by a teaching assistant under the supervision of the summer school special education teacher. The teaching assistant, who was certified in special education, worked with the student for seven sessions in August 1999 and then took a teaching position in a neighboring district. Another teaching assistant, also a certified special education teacher, worked with the student during October, but resigned in November 1999. Meanwhile, the parent requested that the IEP be rescinded before he would meet with the CSE to develop a new IEP. In February 2000 the district agreed to have a special education teacher provide homebound instruction. This instruction did not begin because the student was hospitalized. The district provided a teaching assistant in May 2000 to work with the student during her hospitalization. When petitioner learned that a special education teacher was available to work with the student after discharge from the hospital, he terminated the teaching assistant.

        The CSE did not develop an IEP for the 2000-01 school year because of frequent disagreements and postponed or cancelled meetings. On September 12, 2001, petitioner requested an impartial hearing. He asserted that, from 1996 to 2001, the district did not offer his daughter a FAPE. He requested compensatory relief, consisting of a program developed by petitioner with a staff selected and supervised by petitioner (Exhibits P-152, D-234). Petitioner amended the complaint on December 20, 2001 and again on May 15, 2002. He included complaints about CSE meetings held on November 14, 2001 and February 5, 2002 (Exhibits P-174, IHO-52; Transcript pp. 996-999). Petitioner continued to request compensatory relief for his daughter.

        The district appointed a hearing officer on March 6, 2002 (Exhibit IHO-7). Petitioner indicated that he had waived the requirement that a decision be rendered within 45 days of the hearing request (Exhibit IHO-11). The IHO granted an initial 100-day extension from the date of appointment. After much discussion regarding scheduling, the hearing began on May 20, 2002 and took fourteen days to complete, ending on October 17, 2002. During this period, sessions were scheduled and cancelled for a variety of reasons, including extensions to accommodate the extra time necessitated by the schedules of the parties (Exhibit IHO-65; Transcript pp. 562, 606). It should also be noted that during the hearing, the hearing officer's wife became a candidate for Congress in the Congressional District that includes respondent's district. At that point, the hearing officer offered to recuse himself. Both parties rejected that offer (Exhibits IHO-64, IHO-65).

        On May 29, 2002, the IHO issued an interim order directing the CSE to meet and consider what related services were appropriate for the student (Exhibit IHO-56). The CSE met on June 7, 2002 and petitioner attended. It indicated that instruction should be implemented in the home, school or a public library. Respondent's assistant superintendent for special services understood that such instruction would start immediately (Transcript p. 814). Petitioner sent an e-mail to the assistant superintendent for special services stating that he would not consent to the instruction, and he also sent an e-mail to the hearing officer expressing "his decision to disallow the district's implementation of the home tutor's services…" (Exhibits D-241, IHO-63).

        The hearing officer denied petitioner's request for compensatory relief because he found that the district had offered respondent's daughter a FAPE. The hearing officer reviewed each complaint and each school year in detail and found that respondent's district had demonstrated a substantial willingness to provide the student with a FAPE.

        On appeal, petitioner claims that the hearing officer erred in his decision and raises numerous issues about school years 1996-97, 1997-98, 1998-99, 1999-2000, 2000-01, and 2001-02. Petitioner alleges that there are numerous areas of complaint, including procedural issues regarding notice, CSE meetings, residency determination practices, failure to provide extended school year services for the 1996-97 school year, failure to conduct transition planning, failure to conduct a requested evaluation, failure to use appropriate teaching personnel, and failure to develop IEPs that conferred educational benefit.

        Petitioner is requesting a twelve-month home based education program for seven (7) years in one of three alternative methods:

    1. a program provided by a professional staff, independent of the school. The staff should include a special education teacher, behavioral psychologist, occupational therapist, speech therapist, physical therapist and other related services; or
    2. a program managed by a mutually-selected professional educator or organization; or
    3. a cash award of $490,000 deposited in an interest-bearing account for the purpose of providing the student with educational and related services.

        The appeal must be dismissed. Compensatory education, i.e., special education services provided to a student after he or she is no longer eligible because of age to receive such services, is a permissible remedy under the Individuals with Disabilities Education Act (IDEA) when a school district has excluded a student from school or denied a student appropriate educational services for an extended period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800 F.2d 749 [8th Cir. 1986]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).

        A parent who challenges a school district's provision of educational services to his or her child must do so in a timely manner. The due process procedure set forth in federal and state law is intended to provide an inexpensive and expeditious method by which a parent can obtain an impartial review of a CSE's action or failure to act. Prompt resort to the due process procedure must be made so that a school district has the opportunity to remedy any mistake or omission in providing a FAPE (Matter of Northeast Cent. Sch. Dist. v. Sobol, 79 NY 2d 598 [1992]; Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149 [3d Cir. 1994]). If a parent unreasonably delays the initiation of due process proceedings, a remedy may be denied. The parent requested an impartial hearing on September 12, 2001 to challenge the appropriateness of the IEPs recommended for his daughter for 1996-97, 1997-98, 1998-99, 1999-2000 and 2000-01 school years.

        The State Review Officer has determined that the most analogous statute of limitations for IDEA requests for administrative due process hearings is the one-year statute of limitations for human rights actions embodied in N.Y. Exec. Law § 297[5] (Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 02-119). Federal rules of accrual apply; hence the statute of limitations in IDEA actions begins to run when the petitioner knew or should have known of the injury involved, i.e., the inappropriate education (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 [2d Cir. 2003]). Laches may still be raised where a most analogous state statute has been determined; however, in such instances there is a strong presumption that laches bars a claim that is brought after the running of the statute, and the burden is on the party raising the claim to aver and prove that circumstances exist which make it inequitable to apply laches to bar the claim (Conopco Inc. v. Campbell Soup Co., 95 F.3d 149, 191 [2d Cir. 1996]).

        The evidence shows that petitioner was well aware of his due process rights and that petitioner knew or should have known prior to September 12, 2001 of the injury he was alleging. In fact, he had requested an impartial hearing on March 5, 1998, which he later withdrew. In addition, petitioner did not present good cause for his failure to timely challenge the appropriateness of those IEPs, nor did he prove that circumstances exist that would make it inequitable to apply laches. I find that petitioner's claims with regard to the 1996-97, 1997-98, 1998-99, 1999-2000, and 2000-01 school years must be dismissed because they are untimely.

        Petitioner amended his initial complaint to include challenges to the appropriateness of the IEPs developed at CSE meetings conducted on November 14, 2001 and February 5, 2002. In this case, it appears that the district was flexible and willing to accommodate petitioner's concerns. The minutes of the November 14, 2001 CSE meeting indicate that the CSE reviewed the petitioner's document entitled "Parent Considerations," discussed the need for updated evaluations, and recommended a home based program until those evaluations could be conducted (Exhibits D-190, D-192).1 The program included two hours per day of direct instruction and related services of occupational therapy, physical therapy, and speech therapy once a week (Exhibit D-193). The district asserts that it "has stood ready, willing and able, through its CSE, to implement a program" (Transcript p. 80; see e.g. Exhibit D-196). Although the record indicates that the student did not receive educational services during the 2001-02 school year, I find that the student's exclusion from school was not caused by district error. On the contrary, the district created an IEP that it was willing to implement.

        In determining whether the parent was entitled to compensatory education the hearing officer properly analyzed whether the school district denied the student a FAPE over an extended period of time (see Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]). The hearing officer concluded that the district did not deny the student a FAPE. Based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the hearing officer (34 C.F.R. § 300.510[b][2]; Education Law § 4404[2]).

        I have considered petitioner's other claims, which I find to be without merit.

 

        THE APPEAL IS DISMISSED.

 

 

 

Dated:

Albany, New York

__________________________

December 18, 2003

FRANK MUÑOZ
STATE REVIEW OFFICER

1 CSEs are required to arrange for appropriate reevaluation of each student with a disability if conditions warrant a reevaluation, or if the student's parent or teacher requests a reevaluation, but at least once every three years (8 NYCRR 200.4[b][4]). Although the CSE recommended updated evaluations, I note that the student had been evaluated in May 1999; therefore, the evaluations reviewed by the CSE were not older than three years (Exhibit D-193).