02-101

        Petitioner, the Board of Education of the City School District of the City of Poughkeepsie (district), appeals from an impartial hearing officer's award of tuition reimbursement for respondents' unilateral placement of their daughter during the 1999-2000 and 2000-01 school years at the Kildonan School (Kildonan), a private school for students with dyslexia. Petitioner does not challenge the hearing officer's finding that its program was inappropriate or that Kildonan's program was appropriate, but claims that equitable considerations do not support the parents' claim for reimbursement, and that the parents' claims for both years should be barred by laches. Respondents cross-appeal from the hearing officer's refusal to consider their claim for tuition reimbursement for the 2001-02 school year. The appeal must be sustained in part. The cross-appeal must be dismissed.

        When the hearing began on November 20, 2001, respondents' daughter was eleven years old and in her third year at Kildonan, a school which has not been approved by the Commissioner of Education to contract with public school districts for the education of students with disabilities. The student's classification as learning disabled is not in dispute. A neuropsychological evaluation conducted in 2001 indicated that her learning pattern was characteristic of students with dyslexia and mild dysgraphia (Parent Exhibit 29). She has average to above average cognitive ability, reads at or above grade level, but has weaknesses in writing and organizational skills (District Exhibit 12).

        The child was initially classified as speech impaired (SI) when she was in kindergarten during the 1995-96 school year and remained classified SI in first and second grade (Transcript pp. 535, 775). In second grade during the 1997-98 school year, the student made excellent progress in speech therapy, and improved in math and spelling (District Exhibits 10, 29, 38; Transcript pp. 787-88). On March 30, 1998, the Committee on Special Education (CSE) adopted the school psychologist's recommendation that the student be declassified and placed her in regular education classes for third grade, with continued occupational therapy (OT) and test modifications, as needed (District Exhibits 21, 28; Transcript pp. 554, 559).

        When the student was in third grade, her teacher noted that her reading skills were above grade level, but that she was distractible and overwhelmed by writing tasks (District Exhibit 11). In the middle of that year, in or about December 1998, her parents referred her to the child study team because of her weak writing and organization skills (District Exhibit 11). An April 1999 Terra Nova test indicated reading skills at a 3.6 grade level, but spelling at a kindergarten level (District Exhibit 40). Her report card showed very poor grades in spelling as well (District Exhibit 39). A speech-language evaluation in May 1999 revealed above average language skills and indicated that she did not need speech therapy (District Exhibit 16). The child study team referred her in May 1999 to the CSE, and the parents signed a consent for an initial evaluation (District Exhibits 41, 42).

        On the Wechsler Individual Achievement Test (WIAT), the student's standard scores were in the average range, except for written expression, and the examiner noted that she was very distractible (District Exhibit 1). When the CSE met on August 25, 1999, it adopted the school psychologist's recommendation that she be classified as learning disabled (District Exhibits 13, 26). It developed an individualized education program (IEP) for the student's fourth grade year that provided for 5:1 resource room services 45 minutes a day, flexible scheduling, extra time for tests, separate location, directions and questions read (District Exhibit 3; Transcript pp. 99-100). The parents signed the CSE recommendation, adding a note that it could be changed if the parents disagreed with it (District Exhibit 27).

        By letter dated September 2, 1999, the parents notified the district of their intention to place their daughter in fourth grade at Kildonan on September 14, 1999, based on their belief that the district had not offered to provide her with an appropriate program (Parent Exhibit 1; Transcript p. 395). They requested tuition expenses, claiming their daughter would need two to three years of private schooling. In May 2000, at the end of the student's first year at Kildonan, her mother contacted the CSE about holding an annual review to develop a program for her daughter's fifth grade year. She testified that she was told her daughter's file was inactive and no CSE meeting was necessary, and the record confirms that the student's file had been deactivated after she was placed at Kildonan (Transcript p. 598; District Exhibit 24). By letter dated August 30, 2000, the parents notified the district of their intent to keep their daughter at Kildonan and once again requested tuition reimbursement (Parent Exhibit 13; Transcript p. 138).

        When the CSE convened on September 21, 2000, it developed tentative goals and recommended an IEP that provided resource room for 45 minutes five times a week (Parent Exhibit 18; District Exhibit 24). The CSE could not complete the IEP at that time, however, because it did not have enough information from Kildonan to confirm the tentative goals (Transcript pp. 132-33; District Exhibit 8). The parents informed the CSE at the meeting that they would be enrolling their daughter again at Kildonan and they signed a consent to permit the district to conduct an observation and obtain documents from the private school (Parent Exhibit 15; Transcript pp. 110-14, 574, 604). By letter dated September 27, 2000, the student's father asked to come in and pick up his daughter's IEP, which he did (Parent Exhibit 16; Transcript pp. 578-80).

        On September 29, 2000, the CSE sent a request for information by facsimile to Kildonan and also sent a teacher to conduct an observation of the student (District Exhibits 20, 31). On October 23, 2000, the district sent another information request, as it had not yet received the requested documents from Kildonan (District (Exhibit 20). When the CSE met again on October 26, 2000 to review the observation and finalize the goals and objectives, the student's parents stated that they would call the headmaster at Kildonan regarding the records, which still had not been provided by Kildonan (Transcript p. 127). The CSE recommended an updated achievement test, a social history and an OT evaluation (District Exhibit 23; Transcript p. 130). No IEP was generated from the meeting (Transcript pp. 135, 614), but the minutes indicate that the CSE anticipated recommending counseling, in addition to the 45 minutes of resource room per day (Parent Exhibit 7, District Exhibit 23).

        An independent neuropsychological evaluation completed in February 2001 indicated a significant discrepancy between the student's verbal and performance IQ scores. The evaluator noted that the student was taking Adderal for attention deficit disorder (ADD) (Parent Exhibit 29). Based on all of the tests she administered, the evaluator concluded that the student's learning patterns fit the classic pattern of dyslexia and mild dysgraphia (Transcript p. 641). In her opinion, respondents' daughter needed a small, structured classroom with a systematic multi-sensory approach to learning that included phonics. She further recommended a program with peers of at least average intelligence with no emotional or behavioral deficits.

        By letter dated June 19, 2001, the parents requested an impartial hearing seeking review of both the 1999-2000 and 2000-01 IEPs and tuition reimbursement for both school years at Kildonan (District Exhibit 4). They claimed that 45 minutes of resource room a day was not enough for their daughter and claimed that she required a full-day Orton-Gillingham (O-G) program with "like-peers," or other students with a similar learning disability.

        At the request of the parents, the CSE held a meeting to develop a program for the student's sixth grade year on August 16, 2001 (Parent Exhibit 26; Transcript p. 620). Achievement Testing revealed average to above average scores in both reading and writing (District Exhibit 14; Transcript pp. 617-18). The IEP listed her achievement scores and noted that the student had "minimal academic deficits" (District Exhibit 7). The CSE recommended regular education classes and resource room one period a day with test modifications (District Exhibits 7, 22). However, minutes of the meeting indicate that the parents planned to keep their daughter at Kildonan and that they continued to maintain that she required full-day O-G instruction with like peers (District Exhibit 22; Transcript p. 137). By letter dated that same day, the parents informed the district that they would be enrolling her in Kildonan effective September 11, 2001 and requesting reimbursement for her tuition (District Exhibit 6).

        The hearing took place on six days between November 20, 2001 and April 23, 2002. In a decision dated September 22, 2002, the hearing officer found that the district's 1999-2000 and 2000-01 IEPs were each a "nullity," because there was no regular education teacher present at either annual review. In addition, the hearing officer credited the testimony of the parents' neuropsychologist and the Dean of Kildonan that Kildonan's program was appropriate for the student. He further found that the equities supported the parents' claim and he awarded tuition reimbursement for both 1999-2000 and 2000-01. He declined to consider tuition reimbursement for the 2001-02 school year, finding that respondents had not requested an impartial hearing for that year, and because he did not have consent of both parties in order to retain jurisdiction over that year.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). Here, the board of education does not appeal from the hearing officer's determination that the programs developed by its CSE in 1999-2000 and 2000-01 were inappropriate nor that Kildonan's program was appropriate. It claims only that equitable considerations do not support the parents' claim for tuition, because the parents did not properly inform the district in either year that they would be enrolling their child in Kildonan, and they did not cooperate fully with the CSE; and that the parents' claims for both school years should be barred by laches.

        I agree that respondents' claim for the 1999-2000 school year was not raised in a timely manner. Although the Individuals with Disabilities Education Act (IDEA) does not prescribe a time period in which requests for administrative impartial due process hearings must be asserted, I have applied a one-year statute of limitations in light of recent caselaw requiring me to adopt themost 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. of the Wappingers Cent. Sch. Dist., Appeal No. 02-119; Application of the Bd. of Educ. of the Northport-East Northport Union Free Sch. Dist., Appeal No. 03-062). Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the statute of limitations for requesting an impartial hearing to resolve disputes under the IDEA or Article 89 of the New York Education Law 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]).

        In the instant case, respondents knew that they disagreed with the proposed 1999-2000 program on September 2, 1999, but did not request an impartial hearing for the 1999-2000 school year until June 2001, more than one and a half years after they first disagreed. Thus, their claim is untimely under the one-year statute of limitations (Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 02-119). In addition, I note that their claim for the 1999-2000 school year would have failed under a laches analysis as well (Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149 [3d Cir. 1994]). This is not a case where, at the time the claim arose, the parents were involved in a due process hearing regarding a prior school year and gave the district timely written notice of their intent to reserve their right to an impartial hearing on the new claim until conclusion of the current proceedings (Application of a Child with a Disability, Appeal No. 02-80). The length of their delay was unreasonable, and they provided no reasonable explanation for the delay, despite their receipt of their due process rights (Application of the Bd. of Educ. of the Pine Plains Cent. Sch. Dist., Appeal No. 02-046; Application of the Bd. of Educ. of the Millbrook Cent. Sch. Dist., Appeal No. 02-033).

        Respondents' claim for tuition reimbursement for the 2000-01 school year was timely, however. Whether measured from August 30, 2000, when they decided to enroll their daughter again at Kildonan, or from September 21, 2000, when the CSE finally met to develop an IEP for the 2000-01 school year, their request for a due process hearing for the 2000-01 school year, which was submitted on June 1, 2001, was within one year of the date they knew they disagreed with the proposed program (District Exhibit 4) and was brought within the one-year statute of limitations period adopted for IDEA claims (Application of a Child with a Disability, Appeal No. 02-119). Moreover, although petitioner raises laches as an affirmative defense, there is a presumption that the laches defense does not apply if respondents' claim was brought within the statute of limitations period (Conopco Inc v. Campbell Soup Co., 95 F.3d 187, 192 [2d Cir. 1996]). Here, petitioner does not provide evidence of prejudice that would overcome the presumption that respondents' claim is timely, and that it would be inequitable to proceed on the merits. I therefore find the hearing officer was correct in concluding that the claim for the 2000-01 school year was not barred by laches.

        Petitioner further asserts that equitable considerations do not support the parents' claim for tuition reimbursement in 2000-01, because the parents failed to inform the district in a timely manner of their intention to enroll their daughter in the private school, and because they failed to cooperate with the CSE. The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (20 U.S.C. 1412[a][10][C][iii]). The statute does not require that tuition be reduced or denied, however, if neither of the two actions is taken (Application of a Child with a Disability, Appeal No. 01-054).

        The student's parents informed the CSE on or about August 30, 2000 of their intention to enroll their daughter in Kildonan on September 12 for the 2000-01 school year. Although the notice they provided was not quite ten days prior to the first day of school in petitioner's district, September 6, 2000 (District Exhibit 32; Transcript p. 202), I note that the due process notice sent to respondents that year was in Spanish, which was not their dominant language. As the hearing officer correctly concluded, such notice was not sufficient to apply the notice provision against the parents and reduce or deny an award of tuition.

        Contrary to petitioner's claims that the parents failed to provide requested information regarding the student's performance at Kildonan for purposes of the annual review to develop the 2000-01 IEP for her fifth grade year, I find that the parents cooperated fully with the CSE in its attempts to gain information regarding the student. They signed consent forms for evaluations and document reviews when they were asked (District Exhibit 20; Transcript p. 127). They took an active interest in their child's education and attended all meetings of the CSE. Upon my review of the record, I conclude that the parents consistently communicated and worked with school staff on their daughter's behalf. It was the parents who alerted the school district to the fact that an annual review was required in May 2000, as the district had deactivated their daughter's file.

        Finally, I find that the hearing officer properly declined to consider claims relating to the student's 2001-02 IEP. The parents maintain in their opening statement that the years in question in this appeal are 1999-2000 and 2000-01 (Transcript p. 14). Second, there is nothing in the record to suggest that the parents had requested a hearing relative to the 2001-02 IEP (District Exhibit 4). Finally, respondents later filed a second request for impartial hearing involving the 2001-02 school year, which resulted in a decision that is currently on appeal to the State Review Officer.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is annulled to the extent that it awarded tuition reimbursement for the 1999-2000 school year.

THE CROSS-APPEAL IS DISMISSED.