02-119

        Petitioner, the Board of Education of the Wappingers Central School District (district), appeals from an impartial hearing officer's determination that it must provide respondent's son with 600 hours of compensatory education in the form of tutorial instruction and transportation to such instruction, if needed. Petitioner asserts that most of respondent's claims should be barred by laches. Petitioner also appeals the hearing officer's determination that the instructor must use the Orton-Gillingham methodology and the hearing officer's retention of jurisdiction over this matter. Respondent cross- appeals asserting that her son is entitled to assistive technology and speech-language services and that she is entitled to reimbursement for past counseling services. Respondent seeks a determination that the district abrogated its responsibility to her son and discriminated against him. The appeal is sustained in part. The cross-appeal is dismissed.

        At the commencement of the hearing, respondent's son was 20 years old, and he was not attending school. The student had received home instruction for long periods of time in the past (Exhibits V, EP, ET, FI, FJ, FK). At age seven, the student was diagnosed with an attention deficit disorder (ADD) (Exhibit M). Medication was prescribed, but at age 13, the medication was discontinued because it caused problems resembling seizures (Exhibit FH). In December 1996, the Committee on Special Education (CSE) recommended placement at Eagle Hill, a residential school in Connecticut (Exhibit FN). The student attended Eagle Hill during the second semester of the 1996-97 school year. A memo sent to the district from the State Education Department indicated that additional fees requested by Eagle Hill were the district's responsibility (Exhibit GK). In a letter dated July 22, 1997, the Eagle Hills' director of admissions informed the district that respondent's son would not be allowed to return to Eagle Hill due to "outstanding issues." The letter indicated that some of the issues were financial (Exhibit GN). Respondent requested an impartial hearing with regard to the district's failure to provide her son with a program during summer 1997. The district agreed to provide compensatory services (Exhibit HI). The student primarily received home instruction during the 1997-98 school year (Exhibits HB, HQ).

        In July 1998, the State Education Department indicated that the student had exhausted the list of state approved residential schools that serve students with learning disabilities (Exhibit KY, District Exhibit 9). The CSE recommended home instruction while it searched for a residential placement (Exhibit JA). In December 1998, the district sought an emergency interim placement for the student (Exhibits ED, IY). Apparently, the CSE never secured that placement. In August 1999, the CSE recommended that the student be placed at Brehm Preparatory School (Brehm) (District Exhibit 2). In November 1999, Brehm personnel indicated that they could not meet the behavioral needs of respondent's son (District Exhibit 3). The evidence shows that the district had difficulty finding tutors to provide home teaching (District Exhibits 5, 8). The record does not indicate that the student has received any instruction since leaving Brehm.

        In a letter dated May 9, 2000, respondent requested an impartial hearing seeking compensatory education (Hearing Officer Exhibit 1). Respondent contacted the district on August 4, 2000 because a hearing officer had not yet been appointed (Hearing Officer Exhibit 2). On December 1, 2000, respondent requested an impartial hearing seeking payment for counseling services provided to her son during the 1995-96 school year (Hearing Officer Exhibit 3). Also on December 1, 2000, respondent requested an impartial hearing asserting that the district failed to provide assistive technology, speech-language services, or an appropriate placement during pendency. Respondent also asserted that the district did not conduct an annual review or transition planning meeting, and did not recommend an appropriate program for the 2000-01 school year (Hearing Officer Exhibit 4).

        The hearing was held over the course of 18 days between February 26, 2001 and August 14, 2002. After the hearing commenced, respondent requested that the scope of the hearing be expanded to include the student's entire educational experience in the district (Transcript p. 147). The district objected stating that it would be prejudiced by its inability to address the full scope of respondent's challenge due to the failing recollections of witnesses. The district also asserted that either the statute of limitations or the equitable doctrine of laches barred respondent's claims (Transcript pp. 150-52). At the hearing on April 26, 2001, the hearing officer ruled that because neither the Individuals with Disabilities Education Act (IDEA) nor Article 89 of the New York State Education Law contains a statute of limitations, he would impose a six year statute of limitations (Hearing Officer Decision p. 12). The appropriateness of the programs recommended for respondent's son during 1994-95, 1995-96 and 1996-97 school years had previously been determined, therefore the hearing officer only addressed the appropriateness of the 1997-98, 1998-99, 1999-2000, and 2000-01 school years. The hearing officer rejected the district's argument that the equitable doctrine of laches precludes respondent from asserting a claim for compensatory education for the 1997-98, 1998-99 and 1999-2000 school years.

        The hearing officer found that the district failed to provide the student with an appropriate education during each of the school years in question. The hearing officer determined that the program provided during the 1997-98 school year was inappropriate because the student did not return to his previous residential placement, and the district never provided the recommended interim placement. The hearing officer determined that the program recommended for the 1998-99 school year was inappropriate because the district again failed to provide a residential placement and the recommended interim placement was inappropriate. For the 1999-2000 school year, the hearing officer determined that the district provided an appropriate program from August 22, 1999 through November 1, 1999, but failed to provide an appropriate program for the remainder of the school year. Finally, the hearing officer concluded that the district denied the student an appropriate program during the 2000-01 school year because the CSE did not conduct an annual review. The hearing officer awarded the student compensatory education in the form of tutorial instruction. He ordered the district to provide the student with 200 hours of instruction per year for three years. Such instruction was to be provided by a tutor specializing in the Orton-Gillingham methodology. The hearing officer further ordered the district to transport the student if the tutor was located more than 15 miles from the district offices. Finally, the order indicated that any hours not used during a school year were forfeited.

        Petitioner appeals the determination of the hearing officer asserting that claims pertaining to the 1997-98 school year had already been determined, that an issue pertaining to the 1999-2000 school year has already been determined, that the equitable doctrine of laches bars any claims older than one year, that the equities involved do not warrant an award of compensatory education, that the required use of the Orton-Gillingham methodology was inappropriate, that the award of compensatory education is not related to the alleged diminution in educational services, and that the order regarding transportation could result in unlimited liability for the district. Finally, petitioner asserts that the hearing officer committed reversible error in retaining jurisdiction.

        Compensatory education is the continuation of instruction after a student is no longer eligible for educational services because of age or graduation. It is awarded when a school district commits a gross procedural violation of the IDEA resulting in the denial, or gross exclusion of, a student from educational services for a substantial period of time (Garro v. State of Connecticut, 23 F.3d 734 [2d Cir. 1994]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1998]). Petitioner asserts that the equitable doctrine of laches bars all of respondent's claims that are older than one year (Petition ¶ 14).

        Congress enacted the IDEA to ensure that all students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]). Both public agencies and parents of disabled students have the right to initiate impartial hearings when disputes arise regarding the identification, evaluation or educational placement of a student (34 C.F.R. §§ 300.507[a][1] and 503[a][1]). The IDEA does not prescribe a time period in which requests for administrative impartial due process hearings must be asserted. In the past, the State Review Officer (SRO) has applied the equitable doctrine of laches to such circumstances; however, I find that approach must be revisited in light of a recent Second Circuit decision explained herein.

        When a federal right is involved and there is no specific statute of limitations provided, the Supreme Court has instructed courts to look to the state's most analogous statute of limitations first; however, if the state statute would be at odds with the federal purpose of the Act, courts are directed to apply the most analogous federal statute of limitations; and if no state or federal statute passes muster, courts may choose to rely solely on the doctrine of laches (Del Costello v. Int'l Bhd. Of Teamsters, 462 U.S. 151, 161-162 [1983]). In determining an appropriate statute of limitations period for due process requests under the IDEA, some federal circuit courts have on occasion relied solely on the doctrine of laches (see S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 274 [3d Cir. 2003], citing to Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 157-60 [3d Cir. 1994]), but more commonly, circuit courts have applied the most analogous state statute of limitations analysis (see e.g., S.V. v. Sherwood Sch. Dist., 254 F.3d 877, 880 [9th Cir. 2001]; James v. Upper Arlington City Sch. Dist., 238 F.3d 764, 769 [6th Cir. 2000]; Strawn v. Missouri State Bd. of Educ., 210 F.3d 954, 957 [8th Cir. 2000]; Mannning v. Fairfax Co. Sch. Bd., 176 F.3d 235, 238 [4th Cir. 1999]; Murphy v. Timberlane Reg. Sch. Dist., 22 F.3d 1186, 1192 [1st Cir. 1993], cert. denied, 513 U.S. 987 [1994]; Scokin v. Texas, 723 F.2d 432, 438 [5th Cir. 1984]). Although in the past, the SRO has relied solely on the doctrine of laches to determine the timeliness of the initiation of due process proceedings (see, e.g., Application of a Child with a Disability, Appeal No. 02-073; Application of a Child with a Disability, Appeal No. 02-007; Application of a Child with a Disability, Appeal No. 95-34), the Second Circuit has recently joined the majority of the circuit courts and directed states to apply their most analogous state statute of limitations to IDEA due process requests (M.D. v. Southington Bd. of Educ., 334 F.3d 217 [2d Cir. 2003] [finding Connecticut's state statute specifically setting a two year statute of limitations for IDEA claims to be that state's most analogous and appropriate statute]). Therefore, in light of Southington, I must now determine the most appropriate or analogous New York State statute of limitations that is consistent with the underlying federal purposes and policies of the IDEA.

        The IDEA is an Act that provides for the expeditious delivery of educational services to all eligible children. Even a cursory examination of the IDEA reveals that its main purpose is to provide children with disabilities with a timely and appropriate education (see generally 20 U.S.C. § 1400[d][1][A]). The IDEA's detailed procedures set out strict time limits on the identification of children with disabilities and the prompt provision of services, i.e., a child must be evaluated within "a reasonable period of time" after the district's receipt of a parent's consent for an initial evaluation of a child to determine whether the child is a child with a disability (34 C.F.R. § 300.343[b][1]); a CSE meeting must then be conducted within 30 days after a determination that the child is in need of special education services (34 C.F.R. § 300.343[b][2]); the individualized education program (IEP) must be implemented within 60 days after receipt of the initial parental consent to evaluate the child (8 NYCRR 200.4[d]); in addition, for subsequent years, an IEP must be in effect at the beginning of each school year (34 C.F.R. § 300.342[a]); and there must be "no delay" in the implementation of the IEP (34 C.F.R. § 300.301[c]). Moreover, the state must ensure that the CSE reviews and revises the IEP periodically, but not less than annually, to ensure that the child's goals and program are current, appropriate and effective (34 C.F.R. § 300.343[c][1]). Indeed, it would defeat the purposes of the statute to delay the provision of appropriate services to a child until the end of the school year; loss of education, to which a student is entitled, is a substantial harm, and that harm is exactly what the IDEA was meant to protect (S.V. v. Sherwood Sch. Dist., 254 F.3d 877, 881 [9th Cir. 2001]).

        Likewise, the due process procedures of the IDEA are designed to facilitate expeditious resolution of disagreements. The state and federal regulations implementing the IDEA contain stringent time limits for administrative proceedings. For example, a decision must be issued by an impartial hearing officer within 45 days from the initial request for a hearing (34 C.F.R. § 300.511[a][1]; 8 NYCRR 200.5[i][4]), a petition for appeal to an SRO must be served within 40 days of receipt of the hearing officer's decision (8 NYCRR 279.2[b], and the SRO must issue a decision within 30 days of receipt of the petition seeking review (34 C.F.R. § 300.511[b][1]). Undoubtedly, one of the main policies behind the IDEA and its predecessor is to encourage the prompt resolution of disagreements about the education of children with disabilities so that such children will not be harmed by long delays before being placed in appropriate educational settings (see 121 Cong. Rec. 37416 [1975] [remarks of Senator Williams]), and to prevent the child from falling hopelessly behind in his education (Janzen v. Knox Co. Bd. of Educ., 790 F.2d 484, 488 [6th Cir. 1986]; Dept. of Educ. of the State of Hawaii v. Carl D., 695 F.2d 1154, 1157 [9th Cir. 1983]; see also Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F Supp. 2d 83, 94 [S.D.N.Y. 1996] ["The Act …was intended to ensure prompt resolution of disputes regarding appropriate education for disabled children"]). In short, "the IDEA's carefully structured procedure for administrative remedies, [is] a mechanism that encourages parents to seek relief at the time that a deficiency occurs and that allows the educational system to bring its expertise to bear in correcting its own mistakes" (Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2001]).

        Based on these underlying purposes of the IDEA, I find that the most closely analogous and appropriate statute of limitations is found in the New York Human Rights law (N. Y. Exec. Law § 290, et seq.). The New York State Human Rights Law (Human Rights Law) requires that administrative complaints alleging discrimination be filed within one year after the alleged discrimination (N.Y. Exec. § 297[5]). I find this to be the most analogous statute for several reasons. One of the main purposes behind both the Human Rights Law and the IDEA is to ensure that individuals have access to an adequate public education (N.Y. Exec. Law § 290[3]; 20 U.S.C. § 1400[d][1][A]; see Bd. of Educ. v. Rowley, 458 U.S. 176, 193-194). Among other things, the Human Rights Law guarantees members in particular classes the right to obtain education without discrimination (N.Y. Exec. Law § 291[2]). Similarly, the IDEA was enacted to provide students with disabilities the right to an educational program calculated to provide benefit in the least restrictive environment appropriate (20 U.S.C. § 1400[d][1][A]). Both the New York State Human Rights Law and the IDEA are anti-discrimination laws designed to promote access and integration. In addition to the similarity between the underlying claims in civil rights actions and IDEA actions, impartial hearings brought pursuant to the IDEA and complaints brought pursuant to the Human Rights Law are both administrative proceedings.¹ I also note that New York is not the first state to rely on its human rights law as a most analogous statute in IDEA due process requests; Missouri recently also selected its human rights statute as a most analogous statute of limitation, which was affirmed by the Eighth Circuit in Strawn v. Missouri State Bd. of Educ., 210 F.3d 954 [8th Cir. 2000]).

        Not only are the nature of the underlying claims similar, but I also find that the time period of one year is not unduly restrictive under the Act. The Office of Special Education Programs (OSEP) has opined that a one year statute of limitations would not be inconsistent with the purposes of the IDEA (see Letter to Pawlisch, 29 IDELR 1088 [1997]; Letter to Zimberlin, 34 IDELR 150 [2001]). The one year statute of limitations comports with the intention of Congress that IDEA disputes be resolved expeditiously by allowing the parties to resolve any inadequacies in the student's IEP during the relevant school year, or shortly thereafter, when a meaningful correction can still be made in his or her educational plan (see generally Polera, 288 F.3d at 486). Further, there are many procedural safeguards notice requirements in place to assure that the parents are reminded regularly and often of their due process rights at various stages in the identification, evaluation, and educational placement of the child (20 U.S.C. § 1415[d]; 8 NYCRR 200.5[a]). I also note that other states have adopted a one year statute of limitations period for due process requests, finding that time frame compatible with the underlying purposes of the IDEA, including Texas (Texas Advocates v. Texas Educ, Agency, 112 S.W. 3d 234 [Tex. App. 2003]), Virginia (Manning v. Fairfax Co. Sch. Bd., 176 F.3d 235 [4th Cir. 1999]), Arizona (Dreher v. Amphitheater Unified Sch. Dist., 22 F.3d 228 [9th Cir. 1994]), and Wisconsin (VanDen Berg v. Appleton Area Sch. Dist., 252 F.Supp.2d 786 [E.D.Wisc. 2003]). This time frame is also consistent with New York's history of adopting a one year guidepost for reasonableness heretofore applied in its former laches approach to the timeliness of IDEA due process requests (Phillips v. Bd. of Educ., 949 F.Supp. 2d 1108, 1113-1114 [S.D.N.Y. 1997]; see, e.g., Application of a Child with a Disability, Appeal No. 02-073; Application of the Bd of Education of the Pawling Cent. Sch. Dist., Appeal No. 97-79; Application of a Child with a Disability, Appeal No. 95-28; see also Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149 [3d Cir. 1994]).

        Although I find that the statute of limitations embodied in the Human Rights Law is the most analogous statute of limitations for the purposes of initiation of administrative proceedings under the IDEA, I recognize that there is one case from the Northern District of New York which applied a three year statute of limitations to an IDEA claim raised initially as a civil action in federal court (see Mason v. Schenectady Cent. Sch. Dist., 879 F.Supp. 215 [N.D.N.Y. 1993] [choosing the generic statute of limitations available for liabilities arising from statutes, N.Y. C.P.L.R. § 214[2]). Mason, however, is distinguishable for its unusual circumstances in that it was not originally brought at the administrative level.² Initially, it should be noted that it will be an infrequent instance when this happens. In normal circumstances, the IDEA's exhaustion requirement bars such claims, requiring that the administrative agency first be allowed to attempt to remedy the alleged wrong (20 U.S.C. § 1415 [l]; see Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp.2d 236, 245 [S.D.N.Y. 2000] [in IDEA cases, "the failure to exhaust deprives a district court of subject matter jurisdiction over the (action)"]; see also Polera, 288 F.3d 478; see generally Heldman v. Sobol, 962 F.2d 148, 159 [2d Cir. 1992] ["The exhaustion doctrine 'prevents courts from undermining the administrative process and permits an agency to bring its expertise to bear on a problem as well as to correct its own mistakes']). In Mason, the parents fit one of the few exemptions to the exhaustion requirement in that the district persistently failed to inform them of their due process rights over a period of years and denied them an impartial hearing at the administrative level. I note that the aforementioned policy considerations and procedural timetables established in the IDEA and its implementing regulations for expediting administrative proceedings are not applicable to claims originating in federal courts; hence, a longer statute of limitations may be more appropriate in such instances. Notably, however, under normal circumstances, when a parent fails to pursue administrative remedies under the IDEA, waits several years, then attempts to pursue his or her claim in federal court, such actions will be barred by the exhaustion requirement of the IDEA. As noted by the Second Circuit,

…[D]isabled-student plaintiffs, like Polera, should not be permitted to "sit on" live claims and spurn the administrative process that could provide the educational services they seek, then later sue for damages. Were we to condone such conduct, we would frustrate the IDEA's carefully crafted process for the prompt resolution of grievances through interaction between parents of disabled children and the agencies responsible for educating those children. [Had the parent pursued administrative remedies first, the parent] …could have obtained complete relief at the time, through changes to her IEPs, additional educational services, and, if necessary, remedial education (Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist, 288 F.3d 478, 490 [2d Cir. 2001]).

        For all of the above reasons, I find Exec. Law § 297[5] to be the most analogous statute of limitations in New York State for the purpose of requesting an administrative due process hearing under the IDEA. Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence the statute of limitations in IDEA actions begins to run when the petitioner knew or should have known of the injury involved, i.e., the inappropriate education (Southington, 223 F.3d at 221). I note that even though a most analogous statute of limitations of one year has been determined, that laches could, in some instances, still be raised as an affirmative defense; in such situations the analogous statute of limitations determines which party possesses the burden of proving or rebutting the defense (Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 [2d Cir. 1996]). If the claim is made before the statute of limitations period has run, there is no presumption of laches and the burden is on the party opposing the claim to prove the defense is applicable; however, if the claim is made after the 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 (id.).³

        The evidence shows that respondent knew of the alleged violation of her child's right to a FAPE in 1997. Respondent requested a due process proceeding regarding her child's program during the summer of 1997 (Application of a Child with a Disability, Appeal No. 98-01). Respondent was also aware that her son was receiving home instruction during portions of the 1997-98, 1998-99 and 1999-2000 school years. I find that respondent knew or should have known of the alleged denial of a FAPE in 1997. Given that the claim accrued in 1997 and the applicable statute of limitations is one year, I find that her claims for the 1997-98, 1998-99, and 1999-2000 school years fell outside the applicable one year statute of limitations period. Since her claims for these three years fell outside the statute of limitations period, laches is presumptively assumed and respondent has failed to rebut this presumption; hence, I conclude that respondent's claims for the 1997-98, 1998-99, and 1999-2000 school years are untimely, and I will only address the appropriateness of the student's program for the 2000-01 school year.

        The record does not include an IEP for respondent's son for the 2000-01 school year. School districts are required to offer students with disabilites a FAPE until they graduate or reach age 21 (8 NYCRR 200.1[zz]). Respondent's son had neither graduated nor reached age 21 prior to September 1 of the 2000-01 school year. The record clearly reveals that the district committed a gross procedural violation of the IDEA that resulted in the student's exclusion from educational services for a substantial period of time. Because the school district did not offer the student a FAPE for the 2000-01 school year, I concur with the hearing officer's award of compensatory education in the form tutorial services with regard to that year.

        Petitioner asserts that the hearing officer inappropriately ordered the district to use the Orton-Gillingham methodology when providing the student with compensatory education. Because the hearing officer ordered that the instructor be a person chosen by respondent, I agree with petitioner that the hearing officer improperly directed the district to provide a tutor trained in the Orton-Gillingham method. Of course, if the district and parent can mutually agree on a tutor to provide services, they should do so. I also agree with petitioner's assertion that the hearing officer's order creates unlimited liability for the district with regard to transportation. I find that the record does not support a conclusion that transportation provided by the district is needed for this student to attend tutorial services; therefore, petitioner shall not be responsible for providing this student with transportation to tutoring sessions. Finally, I agree with petitioner that the hearing officer is without authority to retain jurisdiction over this matter.

        I have considered petitioner's remaining arguments and find them to be without merit. With regard to the cross-appeal, I have considered respondent's additional arguments and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED, unless the parties otherwise agree, that upon proper submission by respondent of proof of payment, petitioner reimburse respondent for the cost of up to 200 hours of compensatory education in the form of tutorial services for respondent's son, with such services to be provided within one year from the date of this decision; and

IT IS FURTHER ORDERED, that any request for reimbursement for the cost of tutorial services shall be submitted by respondent to the district within one year from the date of this decision.

THE CROSS-APPEAL IS DISMISSED.