03-081

          Petitioners appeal from an impartial hearing officer's determination that their claim is time-barred. The appeal must be dismissed.

        Petitioners' daughter was born in 1969, and was 32 years old when their attorney requested an impartial hearing on October 22, 2001. Petitioners asserted that their daughter had been diagnosed with autism and Down's syndrome, and that she had been identified by the school district’s Committee on Special Education (CSE) as a student with a disability. They further asserted that the CSE placed the student on home instruction using a clinically unproven therapy. Petitioners sought compensatory education and related services.

        By decision dated February 1, 2002, the hearing officer noted that disabled students over age 21 may be eligible for compensatory education if they were denied educational services when they were eligible to receive special education under federal and state law. The hearing officer concluded, however, that petitioners’ claim was time-barred because it was asserted more than six years after the student reached the age of 21. Petitioners appealed that decision to the State Review Officer.

        By decision dated November 8, 2002, a State Review Officer determined that the appropriate statute of limitations for this particular case was a three-year period (Application of a Child with a Disability, Appeal No. 02-021).¹ He further observed that 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], cert. den. 513 U.S. 987 [1994]; Hall v. Knott County Bd. of Educ., 941 F.2d 402 [6th Cir. 1991], cert. den. 502 U.S. 1077 [1992]; see Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]). He concluded that the record was not sufficiently developed for a determination of whether the claim is time-barred. Accordingly, he annulled the hearing officer's decision and remanded 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."

        Upon remand, the parties agreed to limit the hearing to the timeliness issue framed by the State Review Officer. By decision dated August 1, 2003, the hearing officer concluded that petitioners' claims are time-barred because prior to October 22, 1998 (three years before the request for an impartial hearing) petitioners were aware or should have been aware of the alleged deficiencies in the student’s educational program, and knew or should have known of their due process rights under federal and state law.

        Petitioners assert that the hearing officer improperly shifted the burden of proof to petitioners, and that the hearing officer should have drawn a negative inference against respondent because respondent did not have the student’s records available. Petitioners further contend that their claim is timely because they first knew about the alleged deficiencies in their child’s educational program in March 2000 when they received a copy of a letter from a licensed child psychologist to the school district’s attorney. The letter criticized the type of therapy the student received during her school years and stated that "[t]his therapy has evidently been provided in the absence of educational services". Petitioners first learned about their due process rights under federal and state law at an autism rally in Washington, D.C. in April 2001.

        Respondent asserts that the hearing officer applied the correct burden of proof, and that a negative inference should not be drawn against respondent with respect to the availability of the student’s records. It further contends that the hearing officer correctly concluded that the claims are time-barred.

        Petitioners assert that respondent bears the burden to prove by a preponderance of evidence that the claims are time-barred. Respondent does not dispute that this is the appropriate standard. Accordingly, I will assume for purposes of this decision that respondent bears the burden to prove by a preponderance of evidence that the claims are time-barred. Petitioners cite several statements in the hearing officer’s decision which they claim indicate that he shifted the burden of proof on this issue to petitioners. I disagree. To the contrary, the hearing officer’s decision states that "…any decision must be based on inference and a preponderance of the evidence … [and] … the preponderance is quite clearly aligned with the [respondent’s] argument that the hearing request is indeed time-barred…." This statement demonstrates that the hearing officer concluded that respondent met its burden of proof by a preponderance of the evidence. Moreover, as discussed below, based on my own independent review of the record, I conclude that respondent proved by a preponderance of the evidence that the claim is time-barred.

        With respect to petitioners' claim that a negative inference should be drawn from the fact that respondent did not have the student’s records available, respondent maintained records of students receiving special education for six years after they turned 21. This practice is consistent with the record retention requirements set forth in the regulations of the Commissioner of Education (See, 8 NYCRR 185.12, Appendix I, pages 71-73). Moreover, petitioners’ speculation that respondent intentionally destroyed or withheld the student's records in order to deprive her of her rights under IDEA is not supported by the record. Accordingly, the hearing officer acted correctly in not drawing a negative inference against respondent because respondent did not have the student’s records available.

        Based upon my review of the record, I agree with the hearing officer's conclusions that petitioners' claims are time-barred because prior to October 22, 1998 petitioners were aware or should have been aware of the alleged deficiencies in the student’s educational program, and knew or should have known of their due process rights under federal and state law. The record demonstrates that in the 1980's petitioners were aware that their daughter was receiving home instruction in accordance with what they knew to be a controversial therapeutic approach, and that they received notices from the school regarding their rights under the Individuals with Disabilities Education Act (IDEA). Because long before October 22, 1998 petitioners knew or had reason to know of the injury or event that is the basis for their claim, their claim is time-barred.

THE APPEAL IS DISMISSED.