The State Education Department
State Review Officer

No. 04-077

 

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his parents, 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

 

 

Appearances:
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent

 

 

 

DECISION

 

Petitioners appeal from the decision of an impartial hearing officer which denied their request for compensatory education for their son beyond the 2003-04 school year.  The appeal must be dismissed.

 

At the time of the impartial hearing in June 2004, petitioners’ son was 22 years old and had completed the 2003-04 school year at the Westchester School for Special Children (WSSC) (Parent Exs. 2, 14 at p. 1). He attended WSSC during the 2003-04 school year as a result of an award of compensatory education ordered by an impartial hearing officer in a separate hearing from the instant case.1 Petitioners’ son had been enrolled in WSSC since the beginning of the 2001-02 school year and was classified as a student with multiple disabilities (Tr. p. 28; Parent Ex. 14 at p.1).   Respondent asserts in its answer that petitioners and their son reside in Connecticut and are no longer residents of New York State (Answer ¶¶ 16-17, citing Pet. at p. 5); petitioners have not replied to this assertion. At the time of petitioners’ appeal, their son was no longer attending school (Pet. at p. 1).

 

Because of petitioners’ son’s age, his eligibility for special education services under the Individuals with Disabilities Education Act (IDEA) and New York Education Law ended at the conclusion of the 2002-03 school year (see Application of a Child with a Disability, Appeal No. 04-100).  The issue on appeal, therefore, is whether another period of compensatory education should be awarded to petitioners’ son, whose eligibility for special education services under federal and state law expired.

 

For purposes of context, mention of petitioners’ son’s special education history is appropriate. The rather sparse hearing record reveals that petitioners’ son has a longstanding history of receiving special education services. Prior to placement at WSSC, he was enrolled in the Summit School (Summit) from approximately 1990 to the beginning of the 2001-02 school year (Tr. pp. 10-11, 28; see Parent Ex. 3 at p. 1). Both WSSC and Summit are independent New York State approved private schools (Tr. pp. 7-8). The most recent individualized education plan (IEP) made part of the record is a September 6, 2001 IEP for the 2001-02 school year (Parent Ex. 14 at p. 1). It reveals that petitioners’ son was enrolled at WSSC in a class with a staff to student ratio of 12:1:2. The September 6, 2001 IEP provided that petitioners’ son receive individual and group counseling, speech-language therapy and occupational therapy (Parent Ex. 14 at p. 18).  The IEP indicated that he was functioning academically at the “kindergarten-first grade level” (Parent Ex. 14 at p. 3; see also Parent Ex. 13).   A psychological evaluation completed in December 2000 reported that administration of the Wechsler Adult Intelligence Scale-III (WAIS-III) yielded a verbal IQ score of 64, a performance IQ score of 53, and a full scale IQ score of 55, which placed him in the mentally deficient range of cognitive functioning (Parent Ex. 11 at pp. 2-3).  In the past, petitioners’ son’s behavior has been noted (see Parent Exs. 12 at pp. 2, 6; 8 at pp. 12, 14, 15, 17, 21; 5 at pp. 9, 12, 20; 7 at pp. 2, 6; 7 at pp. 8, 10, 28; 10 at pp. 2-3; 4 at p. 5; 11 at p. 2; 13 at p. 2; 3 at p. 5; 6 at p. 4) and has been reported to impede his learning (see Parent Exs. 8 at pp. 7-8; 5 at pp. 7, 21; 7 at p. 31; 11 at p. 4; 9 at p. 25).  Individual behavior management plans or school-wide behavior management programs have consistently been a part of petitioners’ son’s educational program (see Parent Exs. 8 at pp. 10, 13, 18; 5 at p. 19; 7 at p. 6; 4 at pp. 2, 26; 6 at pp. 1, 24; 3 at p. 1; 14 at p. 1).  The September 6, 2001 IEP also indicated that at that time petitioners’ son was in a career/life skills program and would be participating in a work-study program as part of his transition services during the 2001-02 school year (Parent Ex. 14 at pp. 18, 19).  At some point, it appears that his program at WSSC was changed to provide him with a more intensive student to staff ratio (12:1:4) (see Parent Ex. 9 at p. 25).  The record indicates that a May 1, 2003 IEP provided for 12 month placement at WSSC day school, in a class with a 12:1:4 staffing ratio, with counseling, occupational therapy, and speech and language therapy (Parent Ex. 1 at p. 2).

 

Petitioners requested the impartial hearing in the instant case on May 25 or June 3, 2004 (see Pet. p. 1; IHO Decision, p. 2).  The impartial hearing was held on June 16, 2004, and considered petitioners’ request for compensatory education.  During the course of the hearing, petitioners expressed a general concern that their son had been "neglected by the system throughout his time at the Board of Education" (Tr. p. 19).2  They raised specific concerns regarding their son’s education at Summit and WSSC.  They asserted that (a) the educational services he had received at Summit during the course of his enrollment at that school were inadequate (Tr. pp. 9-11), (b) IEPs during part of the time he was at Summit contained unreliable, invalid and/or erroneous test information (Tr. pp. 21-28),  (c) their son was not able to participate in the New York alternative assessment program while he was at WSSC (Tr. p. 16), (d) while enrolled at WSSC, transition plans were vague and contained no recommendations to be followed through on (Tr. pp. 16, 17-18), and (e) while at WSSC, their son was not tested and not provided with requested reevaluations (Tr. pp. 6, 29, 30).  At the hearing, petitioner also asserted that his son no longer “fits in” at WSSC because he is older than the other students (Tr. pp. at 30-31). They requested compensatory education for an indefinite period of time and suggested a program in Connecticut as a placement option (Tr. pp. 34-35).

 

At the hearing in the instant case, respondent asserted that petitioners’ son was provided with educational services at Summit and WSSC and that, therefore, he was not eligible for compensatory education (Tr. pp. 7-8).  By letter dated June 15, 2004, the WSSC clinical coordinator/social worker reported that petitioners’ son had made progress during the three years of his attendance including during the 2003-04 school year (Parent Ex. 2).  According to the clinical coordinator/social worker, when petitioners’ son arrived at WSSC he was unable to read and his math skills were limited.  By June of 2004, however, the clinical coordinator/social worker stated that he had improved both his math and reading skills. The June 15, 2004, letter also indicated that it was time for petitioners’ son to “move on” and that programs for adults with developmental disabilities existed where he could continue to grow and reach his full potential. Respondent also asserted that, in any event, petitioners’ claims were precluded by the statute of limitations (Tr. pp. 32-33). Moreover, despite asserting that petitioners’ son was not eligible for services, respondent agreed during the course of the hearing to re-evaluate petitioners’ son (Tr. p. 6).

 

The impartial hearing officer rendered a decision on July 16, 2004.  She determined that petitioners’ son was provided with an intensive special education program during his years at Summit, and that he made educational progress at both Summit and WSSC (IHO Decision, p. 8). She concluded that the record did not demonstrate that any deficit in the program provided to petitioners’ son at Summit rose to the level of a gross violation of the IDEA resulting in the denial of, or exclusion from educational services for a substantial period of time and, therefore, determined that petitioners’ son was not entitled to compensatory education beyond the 2003-04 school year.  In response to respondent’s argument with respect to the statute of limitations, the impartial hearing officer concluded that petitioners’ claims with respect to Summit were barred by laches.  Petitioners appeal and restate in relevant part their claims that their son should receive compensatory education as a result of the alleged deficits in the educational programs or services provided at Summit and WSSC (Pet. ¶¶ 1, 2, 5, 8, 9). 

 

Although the IDEA does not prescribe a time period in which requests for administrative impartial due process hearings must be asserted, a one-year statute of limitations has been applied in light of recent case law requiring adoption of the most appropriate analogous state statute of limitations (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 [2d Cir. 2003]); (Application of the Bd. of Educ., Appeal No. 02-119; Application of the Bd. of Educ., Appeal No. 03-062). Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the time period for requesting an impartial hearing to resolve disputes under the IDEA or Article 89 of the New York Education Law begins to run when petitioners knew or should have known of the injury involved, in this case, that their son was denied a free appropriate public education (FAPE) (M.D., 334 F.3d at 221).  The record shows that petitioners objected to the recommendations of the May 1, 2003 Committee on Special Education (CSE) and that their objections gave rise to the prior impartial hearing (Parent Ex. 1).  In the instant case, petitioners requested an impartial hearing on either May 25, 2004 or June 3, 2004. Taking the earliest date, I find that petitioners’ claims that arose prior to May 25, 2003 are untimely under the one-year time period and they are, therefore, dismissed (Application of a Child with a Disability, Appeal No. 04-082; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of the Bd. of Educ., Appeal No. 02-119).

 

The IDEA applies to children aged 3 through 21 inclusive (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]).  New York Education Law specifically provides IDEA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024).  Generally, under the IDEA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]).  Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y. 2001]). The Second Circuit, however, allows for the provision of compensatory education services for a student over 21 years old where there has been a gross violation of the IDEA during the time of the child's eligibility (Garro v. Connecticut, 23 F.3d 734, 737 [1994]; Mrs. C., 916 F.2d at 75; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]), such as the type that results in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078). In such cases, "the scope of the remedy can extend beyond the scope of the original right" (Burr, 863 F.2d at 1078, citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 [1971]), and compensatory education services may be awarded to students over 21 as a remedy for past deprivations of a right that the IDEA clearly provided a FAPE between the ages of 3 and 21 (see Burr, 863 F.2d at 1078; Cosgrove, 175 F.Supp.2d at 387). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).

 

            Petitioners’ remaining claims focus primarily on the appropriateness of educational services and evaluations provided at WSSC during the 2003-04 school year. Petitioners’ son became 21 years of age in January 2003, while attending WSSC and during the 2002-03 school year (see Parent Ex. 14 at p. 1; Tr. p. 28). He attended WSSC during the 2003-04 school year as a result of an award of compensatory education. First, as noted, once the school year ended during which he reached the age of 21 (i.e., the 2002-03 school year), the provisions of the IDEA no longer applied to petitioners’ son’s 2003-04 school year (see 20 U.S.C. § 1412[a][1][A], [B][i]; N.Y. Educ. Law § 4402[5]).  Compensatory education is a judicially crafted remedy; it is not an extension of the protections and benefits of the IDEA itself (see Cosgrove, 175 F.Supp.2d at 388 ["the relief…arises from equity and is not a legislative authorization to extend the reaches of the statute"]; see also Burr, 863 F.2d at 1078). Therefore, any obligation respondent had to provide educational services to petitioners’ son as compensatory education during the 2003-04 school year originated solely from a prior impartial hearing officer's August 14, 2003 order, not the IDEA or New York Education Law (Application of a Child with a Disability, Appeal No. 04-100).

 

Thus, the remaining claims in the instant case relate to implementation and   enforcement of the prior impartial hearing officer's August 14, 2003 order. It is well settled that enforcement of prior orders of an impartial hearing officer and/or the State Review Officer are not properly determined by the State Review Officer (see Application of a Child Suspected of Having a Disability, Appeal No. 03-071); Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4).  Therefore, I find petitioners' requests are not properly before me (Application of a Child with a Disability, Appeal No. 04-100).  The enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.660-300.662; 8 NYCRR 200.5[k]), or in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dep't, 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F.Supp. 701 [W.D.N.Y. 1983]; see Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004).  Petitioners were free to avail themselves of this relief at any time during the school year, but the record does not indicate that petitioners attempted to enforce the impartial hearing officer's order. 

 

I have considered petitioners’ remaining contentions and find them to be without merit.

 

THE APPEAL IS DISMISSED.

 

 

Dated:

Albany, New York

 

__________________________

 

January 7, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1  The record reveals that a prior impartial hearing had been held on July 24, 2003 and a decision issued on August 14, 2003 (Parent Ex. 1).  At the July 24, 2003 hearing, petitioners sought relief in the form of compensatory education services to be provided at the expiration of the 2002-03 school year.  In the August 2003 decision, the impartial hearing officer found fault with the May 1, 2003 IEP and awarded compensatory education services by directing that petitioners’ son continue attending WSSC (Parent Ex. 1 at p. 3). The appropriateness of the August 14, 2003 decision is not before me.

2 During the hearing petitioner testified that she has a master’s degree in special education, that she “freelances” conducting assessments and evaluations, and that she had been employed for ten years as a special education teacher by the New York City Department of Education (Tr. pp. 20-21).