The State Education Department
State Review Officer
Application of a CHILD SUSPECTED OF HAVING 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 City School District of the City of New York
Educational Advocacy Services, attorneys for petitioner, John Morris, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Emily Sweet, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision denying her request for reimbursement for the cost of her daughter's tuition at the Bais Yaakov D'rav Meir Yeshiva (Yeshiva) for the 2000-01 school year. The hearing officer found petitionerís claim to be "procedurally defective" because there was no written request for an impartial hearing made by the parents concerning the 2000-01 school year. The appeal must be dismissed.
The matter before me involves the appeal of a hearing officer's decision, dated September 8, 2003, arising from a November 2002 "hearing" request and a hearing held on July 31, 2003. A threshold question is whether petitioner raised her claim for tuition reimbursement for the 2000-01 school year by requesting an impartial hearing in a timely manner.
At the time of the impartial hearing, petitioner's daughter was 13 years old. Her prior educational history is discussed in Application of a Child Suspected of Having a Disability, Appeal No. 03-068, and will not be repeated here in detail. Prior to December 1, 1998, petitioner's daughter was classified as other health impaired. Respondent's school based support team (SBST) held an annual review on December 1, 1998, identified petitioner's daughter as "non-handicapped" and did not recommend any further special education services (Application of a Child Suspected of Having a Disability, Appeal No. 03-068). The parents requested mediation on December 1, 1998; however they withdrew from the mediation process. For the 2000-01 school year, petitioner unilaterally placed her daughter in the P'TACH (Parents for Torah for All CHildren) program at the Bais Yaacov DíRav Meir Yeshiva, which is a private school that has not been approved by the Commissioner of Education to contract with boards of education for the education of students with disabilities. P'TACH has small self-contained special education classes housed in the general education Yeshiva (Application of a Child Suspected of Having a Disability, Appeal No. 03-068).
The record indicates there was a previous hearing officer's decision rendered on March 26, 2002 directing, on consent of the parties, that petitioner's daughter be evaluated for the possible existence of a handicapping condition (Exhibit K). Respondent's Committee on Special Education (CSE) met on April 3, 2003, found the student eligible for special education services, and recommended that petitioner's daughter be classified as learning disabled (Exhibit R). Respondent's CSE recommended that the student attend a 12:1 special class and receive 30 minutes of group counseling once per week with a 3:1 student to staff ratio (Exhibit R).
The hearing officer's decision below states that the parents requested an impartial hearing on November 21, 2002 to "re-open" a previous hearing (IHO Decision p. 2).1 The date, subject, and result of the prior hearing referred to is not identified, as there is no testimony or document in the record which provides that information.2 The impartial hearing in the instant case was held on July 31, 2003 during which no witnesses testified and only opening and closing statements were made (IHO Decision pp. 2-3). In a decision dated September 8, 2003, the hearing officer found that there was no written request for an impartial hearing made by the parent concerning tuition reimbursement for the 2000-01 school year and therefore denied tuition reimbursement for that school year.
A review of the procedural history of petitioner's claim reveals that petitioner has availed herself of the administrative complaint process, although not always in a timely manner, to address her concerns stemming from a December 1998 determination that her daughter was not eligible for special education (Application of a Child Suspected of Having a Disability, Appeal No. 03-068). It appears that since 1998 petitioner has been aware of her right to request hearings to address complaints, as evidenced by references to multiple hearing requests, and that she has had continuous representation from advocates and attorneys (Exhibits A, B, C, D, E, F, G, H, I, K, M, N, O).3 For example, the fact that petitioner obtained a hearing officer's decision dated March 26, 2002 that led to her daughter being classified as a student with a learning disability indicates that she was aware of her due process rights and the procedures for invoking them (Exhibit R). In addition, the record indicates that petitioner was provided, by respondent, with notice of her due process rights in 1999, 2000, and 2002 (Exhibits O, N, and J).
In the instant case, petitioner alleges that respondent failed to offer an appropriate program for the 2000-01 school year and claims she should be reimbursed for tuition expenses for that school year (School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). Petitioner unilaterally placed her child in a non-public school for the 2000-01 school year, at the beginning of that school year. For purposes of a claim for tuition reimbursement for the 2000-01 school year, it was at the time of the unilateral placement, at the beginning of the 2000-01 school year, that petitioner knew of the alleged violation of her daughterís right to a free appropriate public education (FAPE). I find that petitioner's tuition reimbursement claim for the 2000-01 school year, even assuming arguendo that the request to "re-open" adequately complied with 8 NYCRR 200.5(i), and compliance with 34 C.F.R. ß 300.403(d) is not an issue, raised subsequent to the November 2002 "hearing" request to be untimely. Petitioner's claim was not brought within one year from the date when she knew of or should have known of the injury involved, i.e. the alleged inappropriate education, and is time-barred (see Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist, Appeal No. 02-119).4
THE APPEAL IS DISMISSED.
Albany, New York
January 14, 2004
PAUL F. KELLY
1There is no document with that date in the record. There is a request from petitionerís advocate to respondent, dated November 6, 2002, which states in its entirety "Please re-open impartial hearing case no. 47403" (Exhibit I). In addition, there is a request from petitionerís advocate, dated August 14, 2002, asking that the "case" be "re-opened" because the parties had not reached a satisfactory agreement "concerning the case from the 1998/99 year" (Exhibit F).
2I note that the hearing record reveals a history of due process complaints that is not fully explained. It appears that there have been several due process hearings since 1998 regarding the studentís eligibility for special education services. Mediation, hearings, reopening of hearings, as well as successful and unsuccessful settlements are referenced in an underdeveloped record. However the results of the prior proceedings are not clearly indicated leaving ambiguity as to resolution of petitionerís apparently on-going complaints. It appears that petitioner has filed multiple hearing requests, and requests to re-open or reconvene hearings, based on the contention that the 1998 "declassification" was improper.
3Exhibit E is a request for a hearing to address a complaint concerning eligibility for services, not tuition reimbursement. The request is dated March 5, 2001, but date stamped received by respondentís impartial hearing office in March 2002 (the exact day is illegible). The record contains a March 12, 2002 notice from respondent to petitioner that a request for a hearing had been received and a hearing scheduled for March 18, 2002 (Exhibit J). There is no evidence in the record addressing or explaining the discrepancy between the March 2001 and March 2002 dates.
4For a detailed discussion of the application of a one year statute of limitations prompted by M.D. v. Southington Bd. of Educ., 334 F.3d 217 (2d Cir. 2003), see Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 02-119.