02-021

         Petitioners appeal from an impartial hearing officer’s determination that their request for a hearing was time-barred. The appeal must be sustained.

        The record in this appeal is very limited. The hearing officer rendered his decision after corresponding with the parties’ attorneys and receiving the attorneys’ respective letter memoranda of law. The correspondence and memoranda of law are in the record. Those documents and the parties’ pleadings in this appeal provide some factual information about this matter.

        Petitioners’ daughter was born in 1969, and was 32 years old when their attorney requested an impartial hearing on October 22, 2001 (Exhibit 4). In that request, petitioners’ attorney asserted that petitioners’ daughter had been diagnosed with autism and Down syndrome, and that she had been identified by the school district’s Committee on Special Education (CSE) as a student with a disability. He further asserted that the student had been placed on home instruction by the CSE, and provided with speech/language services and consultant teacher services for ten years. According to the attorney, petitioners did not become aware that the services recommended by the CSE were inappropriate until March 24, 2000. Petitioners sought compensatory services, including speech/language therapy, physical therapy, occupational therapy with sensory integration, counseling, travel and vocational training, and evaluations for their daughter.

        During a telephone conference call with the hearing officer on November 14, 2000, it was agreed that petitioners’ attorney would provide copies of the student’s school records to respondent’s attorney because respondent no longer had such records (Exhibit 1). In a conference call on December 20, 2000, respondent’s attorney argued that petitioners had no right to a hearing. It was agreed that the attorneys for both parties would brief the question for the hearing officer by no later than January 24, 2001, and that the hearing officer would be prepared to rule upon the issue when the hearing was scheduled to begin on January 31, 2001 (Exhibit 3).

        The hearing officer informed the parties’ attorneys of his determination of the issue in a conference call on January 29, 2001. He found that petitioners were not entitled to an impartial hearing. In a brief written decision dated February 1, 2001, the hearing officer found that petitioners’ daughter was not eligible to receive special education because of her age (20 U.S.C. § 1412[a][1][A]; N.Y. Educ. Law § 4401[1]). He noted that disabled students beyond the age of 21 may be eligible for compensatory education, if they were deprived of a free appropriate public education (FAPE) when they were eligible to receive special education under federal and state law. The hearing officer concluded that petitioners’ claim was time-barred because it was asserted more than six years after the student reached the age of 21. Having found that the claim was time-barred, he found that there was no issue for him to determine after a hearing, and dismissed the proceeding.

        Petitioners assert that they are entitled to an impartial hearing, and ask me to remand the matter back to the hearing officer for a hearing. They contend that the hearing officer’s decision cannot stand because state regulation requires that a hearing officer’s decision be based upon the record of the proceeding before the hearing officer (8 NYCRR 200.5[i][4][ii]). In essence, they assert that there is no record upon which the hearing officer could base his decision. Respondent argues that the operative facts with respect to the timeliness of petitioners’ claim are not in dispute, and that the hearing officer was not obliged to convene a hearing and take testimony. Petitioners assert, as they did to the hearing officer, that they did not become aware that their daughter had been denied a FAPE until the year 2000.

        Although petitioners’ daughter is no longer eligible to receive special education under the Individuals with Disabilities Education Act (IDEA), or its state counterpart Article 89 of the Education Law, she may be eligible for an award of compensatory education under the IDEA. Compensatory education is an equitable remedy that may be awarded to a student who is no longer eligible because of age to receive special education under the IDEA, if the student has been excluded from school, or denied 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]).

        The IDEA does not have its own statute of limitations for asserting claims thereunder. The courts have considered various provisions of the New York Civil Practice Law and Rules to determine the timeliness of claims asserted under the IDEA (Adler v. Education Dept. of New York, 760 F.2d 454 [2d Cir. 1985]; Mason v. Schenectady City Sch. Dist. 879 F. Supp. 215 [N.D. N.Y. 1993]). I find that the three-year period of limitation selected by the court in Mason is appropriate in this instance. Petitioners did not assert their claim within three years after their daughter was no longer eligible to receive special education under the IDEA. The question to be determined is whether their claim is untimely.

        An IDEA claim accrues when a student’s parents know or have reason to know of the injury or event that is the basis for their claim (Murphy v. Timberlane Regional Sch. Dist., 22 F.3d 1186 [1st Cir. 1994]; Hall v. Knott County Bd. of Educ., 941 F.2d 402 [6th Cir. 1991], cert. den. 112 S.Ct. 982 [1992]; McDowell v. Fort Bend Independent Sch. Dist., 737 F. Supp. 386 [S.D. Tx. 1990]). As noted above, petitioners assert that they did not become aware of the alleged inappropriateness of their daughter’s educational program until 2000. Respondent disputes that assertion. I find that the present record would not support a finding by either the hearing officer or me with respect to the timeliness of petitioners’ claim. Accordingly, I must annul the hearing officer’s decision and remand the matter for a hearing to establish when petitioners were aware or should have been aware of the alleged deficiencies in the student’s educational program and when they knew or should have known of their due process rights under federal and state law. In scheduling the hearing, the hearing officer shall afford respondent a reasonable opportunity to acquire copies of the student’s records, which it no longer has from petitioners’ attorney.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled, and that the matter is remanded to the hearing officer for a hearing in accordance with the tenor of this decision.