The Univeristy of the State of New York Emblem
The State Education Department
State Review Officer

 

No. 05-112

 

 

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 New York City Department of Education

 

Appearances:
George Zelma, Esq., attorney for petitioner

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, Esq., of counsel

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied their request for reimbursement for their son's tuition costs at the Robert Louis Stevenson School (RLS) for the 2002-03 school year.  The appeal must be dismissed. 

            At the time of petitioners' request for a hearing on June 15, 2005 (Parent Ex. A), their son was 18 years old and had just graduated from RLS (see Tr. pp. 21, 169, 183; Parent Ex. J).  Petitioners' claim relates solely to respondent's provision of a free appropriate public education (FAPE) to their son for his 2002-03 tenth grade school year. 

Petitioners' son was born with stenosis of the heart (Tr. p. 154) and was later diagnosed with a growth hormone deficiency (Tr. p. 155).  He was enrolled in public schools from kindergarten through the start of eighth grade (see Tr. p. 19).  During that time period, the student exhibited oppositional behavior and emotional outbursts at home and at school, and he and his parents both began receiving therapy from a psychologist (Tr. pp. 141-45, 151-52, 155-56, 166).  Petitioners' son was eventually diagnosed with an attention deficit hyperactivity disorder (ADHD) and bipolar disorder, which his treating psychologist described as consisting of "periods of depression and emotional withdrawal as well as periodic states of heightened anxiety and agitation" (Parent Ex. G; see also Tr. pp. 54-55).  His bipolar disorder was characterized by dramatic shifts in mood between depression and very low self-esteem to very impulsive, sometimes raging behaviors (Tr. p. 55).  The shifts were described as frequent, sudden, and unpredictable (id.).  He reportedly had difficulty following rules in school and would sometimes become verbally and/or physically assaultive (Tr. p. 56). 

During his eighth grade 2000-01 school year, the student was involved in several fights at school and at home (Tr. pp. 54-56, 156-57) which led petitioners to unilaterally remove their son from public school and enroll him at RLS (Tr. pp. 157, 164-65).  RLS is a private school which provides a college preparatory academic and therapeutic program for students in grades eight through twelve who have a range of emotional or psychological issues which interfere with their ability to progress in the general curriculum (Tr. pp. 180, 182, 191; see Parent Ex. F).  The school enrolls a maximum of 75 students (Tr. p. 189), and class size averages from eight to ten students per class (Tr. pp. 181, 188; Parent Ex. F at p. 2).  While at RLS, petitioners' son's program included courses in English, Math, Science, History, Art, and physical education (see Parent Exs. B, C, D, E), as well as one individual tutoring session and three counseling sessions per day (Tr. p. 190).  An additional study period was available after school for help with homework (id.).   RLS is chartered and registered by the New York State Board of Regents and the Department of Education and admits both classified and nonclassified students (Parent Ex. F at p. 12; Tr. pp. 180, 182-83), but has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.  At some point prior to the end of the 2000-01 school year, petitioners also referred their son to respondent's committee on special education (CSE) for evaluation (Tr. p. 170).

On June 1, 2001 the CSE met to develop an individualized education program (IEP) for petitioners' son for his 2001-02 ninth grade school year (Dist. Ex. 1).  The CSE noted that the student's receptive and expressive language skills were in the normal range and he presented no fluency disorders (Dist. Ex. 1 at p. 2).  While the student was described as functioning in the average range in verbal skills, he was found to be at a low average level in nonverbal skills with a reported weakness in concentration (Dist. Ex. 1 at p. 4).  On a social/emotional level, the student was described as "somewhat angry and distractible," having difficulties with peer relationships and internal controls (Dist. Ex. 1 at p. 6).  It was noted that when the student was having difficulties he would become depressed and turn his anger inward (id.).  The IEP noted that the student was on medication to control symptoms of depression, ADHD, impulsivity, inattention and anger (Dist. Ex. 1 at p. 7).  The CSE classified petitioners' son as a student with an emotional disturbance (Dist. Ex. 1) (see 8 NYCRR 200.1[zz][4]).  For the 2001-02 school year, the CSE recommended that the student be enrolled in 12:1+1 special education classes for all academic subjects, with group counseling for 30-40 minutes once per week and individual counseling for 30-40 minutes twice per week to assist with anger management issues (Dist. Ex. 1 at pp. 1, 6, 11).  Testing accommodations included extra time for tests in a small, separate location (Dist. Ex. 1 at 11).  The student's IEP included two goals and four objectives all related to counseling, focusing on stress, coping strategies, and anger management (Dist. Ex. 1 at p. 8).

Petitioners did not accept the CSE's recommended program for the 2001-02 school year, and instead re-enrolled their son at RLS for ninth grade and sought tuition reimbursement from respondent (Tr. pp. 157, 171-72).  At some point during the school year the 2001-02 claim was resolved via a stipulation between the parties (see Tr. pp. 171-72). 

Petitioners continued to enroll their son at RLS for his tenth grade 2002-03 school year (see Parent Exs. B, C, D, E).  It is undisputed that no IEP was devised by respondent's CSE for the student for the 2002-03 school year (see Tr. pp. 22, 176-77, 195, 203).  According to petitioners, during the 2002-03 school year, the student's behavior became increasingly violent at home and at school, including instances of aggressive rage against family members and threats of violence directed at his teachers and the school (Tr. pp. 158-59, 161).  The student's psychologist described the student during this time as quick to anger, sometimes verbally and physically assaultive at home and at school (Tr. p. 56).  The headmaster at RLS described the student as having moments of built-up rage, lack of judgment, impulsivity, and destructive behavior directed inward and outward (Tr. pp. 184-85).  Petitioners' psychologist described the student as having some suicidal and homicidal ideation (Tr. pp. 145, 162).  Petitioners continued to receive psychological therapy to deal with stress related to their son (Parent Ex. J; Tr. pp. 149-52, 162-63, 166). 

On February 7, 2003 respondent's CSE notified petitioners by letter that the CSE needed to conduct an annual review of the student and requested their consent to conduct various evaluations (Dist. Ex. 3).  The letter indicated that a copy of the Notice of Parental Due Process Rights was included in the mailing (id.).  On or about February 18, 2003 petitioners returned a signed consent form for the evaluations to respondent's CSE (Dist. Ex. 7).  A classroom observation of the student was conducted at RLS by the district's psychologist (Dist. Ex. 6).  Petitioners were notified by letter that their son was scheduled to be evaluated by the school psychologist on March 12, and April 3, 2003 (Dist. Exs. 4, 5).  Petitioners brought their son to these appointments (Tr. p. 174).  Although no IEP was developed for the 2002-03 school year, an IEP was eventually developed for the 2003-04 school year (see Tr. pp. 26, 202).

            Petitioners' son continued to attend RLS for his junior (2003-04) and senior (2004-05) years and graduated from RLS in May 2005 (Tr. pp. 20-21).  One month after his graduation, by letter dated June 15, 2005, petitioners requested an impartial hearing challenging respondent's provision of a FAPE to their son for his sophomore (2002-03) school year, seeking tuition reimbursement (Parent Ex. A).  An impartial hearing was commenced on July 20, 2005 and concluded on August 11, 2005.  On the first day of the hearing respondent made a motion to dismiss the claim based on laches (Tr. p. 11).  The impartial hearing officer heard arguments from both sides on the issue of laches, and then proceeded with the hearing on the merits of petitioners' claim (see Tr. pp. 10, 52). 

The impartial hearing officer rendered a decision on October 7, 2005 finding that petitioners' request for tuition reimbursement for the 2002-03 school year was barred by both the applicable one-year most analogous statute of limitations and the equitable doctrine of laches.  She also found that petitioners were aware of their right to bring a due process impartial hearing at least as early as June 2002, when they received a settlement check for the 2001-02 school year.  Lastly, she rejected petitioners' contention that their own psychological stress operated as a mitigating factor that would excuse their delay of over two years in requesting a hearing.

            Petitioners appeal, contending that the impartial hearing officer erred in finding that laches barred their claim because respondent allegedly failed to present sufficient evidence to prove that it was prejudiced by petitioners' delay in requesting a hearing.  Petitioners also contend that the impartial hearing officer erred in not finding that they were under extreme psychological stress during the 2002-03 school year which constituted mitigating circumstances and good cause for their delay, and that therefore the doctrine of laches should not be applied.  Petitioners also claim that respondent shares responsibility for their delay in that it did not timely develop an IEP for the 2002-03 school year nor properly notify petitioners of their due process rights for the 2002-03 school year.  Petitioners request that the impartial hearing officer's decision be annulled and that they be awarded tuition reimbursement for the 2002-03 school year.  Petitioners' arguments are without merit.

At the time of the relevant events underlying this appeal, the Individuals with Disabilities Education Act (IDEA) did not prescribe a time period in which requests for administrative impartial due process hearings must be asserted; during the time of the events in question State Review Officers were applying a one-year statute of limitations in light of recent Second Circuit case law directing that states adopt the most appropriate analogous state statute of limitations (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-222 [2d Cir. 2003]; Application of the Bd. of Educ., Appeal No. 02-119; see, e.g., Application of the Bd. of Educ., Appeal No. 04-104; Application of a Child Suspected of Having a Disability, Appeal No. 04-090; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-077; Application of a Child with a Disability, Appeal No. 04-075; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child Suspected of Having a Disability, Appeal No. 03-098; Application of a Child Suspected of Having a Disability, Appeal No. 03-068; Application of the Bd. of Educ., Appeal No. 03-062).  Subsequently, effective July 1, 2005, Congress amended the IDEA to include a provision specifically creating a two-year statute of limitations period for filing a due process hearing request, unless a State has an explicit time limitation set by State law (20 U.S.C. 1415[f][3][C]). 

 Since newly enacted federal statutes of limitations are typically not applied retroactively absent express congressional intent (see Landgraf v. USI Film Products, 511 U.S. 244, 280 [1994]; In Re Enterprise Mortgage Acceptance Co., 391 F.3d 401, 407 [2d Cir. 2005]; see also R.G. v. Glen Ridge Bd. of Educ., 2005 WL 3274857 at *4 [D.N.J. Dec. 2, 2005] [in considering new statute of limitations for civil actions in federal courts, because amendments to the IDEA are not retroactive, court must apply the IDEA as it existed when the claim was filed]), the most analogous statute of limitations analysis prevailing at the time of the underlying events of petitioners' claim will be applied to the facts in this case.  Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the most analogous statute of limitations for requesting an impartial hearing to resolve petitioners' dispute under the IDEA or Article 89 of the New York Education Law began running when petitioners knew or should have known of the alleged injury involved, i.e., the alleged inappropriate education (Southington, 334 F.3d at 221).

            In the instant case, the impartial hearing officer properly applied the one-year most analogous statute of limitations analysis.  Petitioners knew that there was no new IEP for the 2002-03 school year at least as early as the start of the school year in September 2002, but did not request an impartial hearing on that school year until June 15, 2005, almost three years after they first knew or should have known of the alleged failure by respondent to provide a FAPE.  Thus, their claim is barred as untimely under the applicable most analogous one-year statute of limitations (Application of the Bd. of Educ., Appeal No. 02-119).  Absent a specific tolling provision, a party cannot claim mitigating circumstances in order to avoid or toll the applicable statute of limitations period; such arguments fall more properly under the equitable defense of laches (see Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149 [3d Cir. 1994]).  In any event, petitioners' claim for the 2002-03 school year would have failed under a laches analysis as well (see Application of a Child with a Disability, Appeal No. 02-101).

Generally, a claim is barred by laches if: (1) a party fails to assert a right in a timely manner, and (2) the lapse of time causes prejudice to the adverse party (see Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 [2d Cir. 1996]; Phillips v. Bd. of Educ., 949 F. Supp. 1108, 1112 [S.D.N.Y. 1997]).  Where a most analogous statute of limitations exists and a claim is made after the most analogous statute of limitations period has run, there is a strong presumption that laches bars the claim, and the claimant has the burden of rebutting that strong presumption (see Conopco, 95 F.3d at 191).  In the instant case, petitioners' request for a hearing was made long after the one-year most analogous statute of limitations had run, hence a strong presumption of laches attaches (id.).  Once the legal presumption of laches attaches, it creates a legal presumption that the lapse of time caused prejudice to the district, and it is petitioners' burden to produce evidence to show the district was not prejudiced by the delay.  Petitioners have not only failed to meet this burden, they have instead attempted to shift this burden to respondent by insisting that the district must first show they were prejudiced in order to prevail.  This reasoning misconstrues the law of legal presumptions operating in a laches analysis when there is a most analogous statute of limitations present.  The cases petitioners use to support their proposition are cases where the claim was asserted prior to the expiration of the most analogous statute of limitations; under those facts the legal presumption is the opposite, i.e., that laches does not attach, the claim is assumed to be timely, and in those situations it is up to the district to prove it was prejudiced by any alleged delay (see Application of the Bd. of Educ., Appeal No. 03-062; accord Conopco, 95 F.3d at 191-92).  The facts in the instant case, as noted, are inapposite, petitioners asserted their claim beyond the statute of limitations period, therefore the presumption of laches does attach and prejudice is presumed (see Application of a Child with a Disability, Appeal No. 05-029; accord Conopco, 95 F.3d at 191).  Petitioners have failed to produce evidence to overcome this strong presumption.  While recognizing that it is the district's duty in the first instance to provide an appropriate IEP, in the absence of notice by the parents during the entire 2002-03 school year that they would be seeking tuition reimbursement for the 2002-03 school year, petitioners' continuing silence and almost three-year delay in bringing their claim prejudiced the district by not putting it on fair notice,1 and also acted in part to preclude the district from answering the parents' concerns during the 2002-03 school year and developing an appropriate IEP prior to the expiration of the school year (see Bernardsville, 42 F.3d at 158; Phillips, 949 F.Supp. at 1113-14; Application of a Child with a Disability, Appeal No. 04-025).

Petitioners also attempt to offer mitigating circumstances to justify their delay.   Mitigating circumstances or a good cause excuse for the delay may be considered in a laches analysis (see Bernardsville, 42 F.3d at 158-59; Phillips, 949 F. Supp. at 1113), but where there is a most analogous statute of limitations and the claim was initiated after that time period expired, as here, petitioners are still subject to the strong presumption that laches bars the claim (see Conopco, 95 F.3d at 191).  Petitioners' only explanation for not requesting a hearing at the time they learned of the alleged denial of a FAPE was that during the 2002-03 school year they were under a tremendous amount of stress in dealing with their son's behaviors related to his disability (Tr. pp. 158-63, 146-48; see also Parent Ex. J).  Yet petitioners' treating psychologist testified that petitioners were under similar stress the year before (2001-02) (Tr. p. 150), and the record reveals that petitioners were able to timely assert their due process rights that year and in fact were successful in obtaining a settlement with the district which resulted in the district's payment of at least some tuition costs for that school year (see Tr. pp. 171-73, 177; see also Tr. pp. 29-30, 205-06).  While sympathetic to petitioners' situation, under these circumstances, petitioners have failed to demonstrate that their psychological stress was of such a nature as to preclude their ability to request a timely due process hearing for the 2002-03 school year.2               

For the foregoing reasons, petitioners' claims regarding the 2002-03 school year are barred as untimely under both the applicable most analogous statute of limitations analysis and a laches analysis.

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

THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

 

__________________________

 

December 30 , 2005

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 Contrary to petitioners' contention, the mere fact that a parent objects to an IEP and requests tuition reimbursement for one year, does not constitute notice to the district that they will object to all subsequent years' IEPs generated by the district and seek tuition reimbursement for all subsequent years as well (see Bernardsville, 42 F.3d at 158; Application of the Bd. of Educ., Appeal No. 02-033). 

2 I find petitioners' argument that they were not properly made aware of their due process rights also unavailing, in that the record reveals that they were familiar with and timely invoked their due process rights the prior year (Tr. pp. 157, 172), and notices were mailed to petitioners during the 2002-03 school year both referencing and allegedly enclosing a copy of a brochure on parental due process rights (see Dist. Exs. 3, 4, 5).  Although a copy of the due process rights brochure was not entered into the record, petitioners admitted they received the notices and materials (Tr. pp. 173-74); moreover, the student's father candidly admitted that he was aware of his right to bring a due process hearing from his experience the prior year, but that it was not something that he was attending to during the 2002-03 school year (Tr. pp. 171-72, 175-76, 160) (see Application of a Child with a Disability, Appeal No. 05-029 [hearing requested by petitioner in prior year is evidence of knowledge of rights]; Application of a Child with a Disability, Appeal No. 03-018 [same]; Application of a Child with a Disability, Appeal No. 02-006 [same, and petitioner acknowledged her awareness]; Application of a Child with a Disability, Appeal No. 01-087 [same, and petitioner acknowledged her awareness]; Application of the Bd. of Educ., Appeal No. 96-16 [petitioner admitted she was aware of her due process rights]; compare Application of a Child with a Disability, Appeal No. 00-039 [petitioner asserted she was not aware of her rights and no document on due process rights was entered into the record]).