06-016

              Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's son and ordered it to reimburse respondent for his son's tuition costs at the Robert Louis Stevenson School (RLS) for the 2003-04 school year.  The appeal must be sustained.

            At the time of respondent's impartial hearing request on June 15, 2005 (Parent Ex. A, Hearing Request),¹ his son was 18 years old, had graduated from RLS and was attending college (Tr. p. 111).  RLS has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.7).  The student's prior education history is described in Application of a Child with a Disability, Appeal No. 05-112,² issued December 30, 2005, and will not be repeated in detail in this decision.  The student's eligibility for special education programs and classification as a student with an emotional disturbance are not in dispute in this appeal (see 8 NYCRR 200.1[zz][4]).

            On June 20, 2003, the Committee on Special Education (CSE) met to develop an individualized education program (IEP) for respondent's son for his 2003-04 junior school year (Dist. Ex. 1).  The CSE recommended that the student be enrolled in a 12:1+1 special education class for all academic subjects, with group counseling for 30 minutes once per week and individual counseling for 30 minutes once per week (Dist. Ex. 1 at pp. 1, 10, 12).  Testing accommodations included extra time for tests and testing in a separate location (Dist. Ex. 1 at p. 12).  The student's IEP included one goal and three objectives all related to counseling, with a focus on anger management (Dist. Ex. 1 at p. 9).

            Respondent's son continued to attend RLS for his junior (2003-04) and senior (2004-05) years and graduated from RLS in June 2005 (see Tr. pp. 248, 251).  An impartial hearing was commenced on July 28, 2005 and concluded on December 20, 2005 after three days of hearings (IHO Decision, p. 2).  On the first day of the impartial hearing, petitioner made a motion to dismiss the claim as untimely  (Tr. p. 72).  The impartial hearing officer heard arguments from both sides on the claim of untimeliness, and then proceeded with the impartial hearing on the merits of respondent's claim (see Tr. p. 214).  In an unsigned interim decision, rendered on or about September 9, 2005 (Tr. p. 214), the impartial hearing officer denied petitioner's request to dismiss the matter based on respondent's "inability to establish a claim predicated upon laches" (IHO Interim Decision, p. 6).

            The impartial hearing officer rendered a decision on January 11, 2006 granting respondent's request for tuition reimbursement for the 2003-04 school year (IHO Decision, p. 10).  After petitioner conceded that it had not offered the student an appropriate educational program (see Tr. p. 214), the impartial hearing officer determined that the services at RLS were appropriate  (IHO Decision, p. 9).  The impartial hearing officer also did not find any equitable bar to respondent's recovery for tuition reimbursement (id.).

            On appeal, petitioner contends respondent failed to make a timely request for tuition reimbursement. Petitioner further contends that the appropriate time period in which requests for administrative impartial due process hearings must be asserted is one year and that the one year statute of limitations began running when respondent knew or should have known of the injury involved, that is, the alleged inappropriate educational program.  Petitioner contends that the latest respondent could claim he became aware of the alleged deprivation, the lack of appropriate placement for the 2003-04 school year was September 2003 and, therefore, under the one-year statute of limitations, respondent's claim should have been brought by September 2004.  Petitioner asserts that respondent's request for an impartial hearing was dated June 15, 2005 and should be barred by the statute of limitations.  Petitioner also claims that the equitable doctrine of laches applies and the appeal should be dismissed.  Petitioner argues respondent has not met his burden of proving that petitioner was not prejudiced by his delay in bringing his claim.  Petitioner contends that respondent had a long-standing relationship with the CSE and has repeatedly been issued a copy of his due process rights and was clearly aware of his right to bring an impartial hearing, having previously made an impartial hearing request for the 2001-02 school year.  Petitioner further contends that respondent's argument that petitioner was on notice that respondent would bring an impartial hearing for the 2003-04 school year because he previously brought an impartial hearing and that the student's continued attendance at a private school put petitioner on notice is not persuasive.  Lastly, petitioner contends that respondent's alleged mitigating circumstances did not prevent respondent from initiating an impartial hearing in a timely manner. 

             At the time of the relevant events underlying this appeal, the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487) did not prescribe a time period in whichrequests 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 a Child with a Disability, Appeal No. 05-112; 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 respondent's 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 respondent's dispute under the IDEA or Article 89 of the New York Education Law began running when respondent knew or should have known of the alleged injury involved, i.e., the alleged inappropriate education (Southington, 334 F.3d at 221).

              In her interim decision, the impartial hearing officer applied the one-year most analogous statute of limitations analysis in a decision solely addressing petitioner's motion to dismiss respondent's claim as untimely.   She determined that the June 20, 2003 IEP did not contain a site recommendation for services and therefore, petitioner was barred from asserting the equitable defense of laches because petitioner had violated the doctrine of "clean hands" by its failure make such a recommendation (IHO Interim Decision p. 5).  She stated that respondent's counsel alleged that respondent had not been provided with a copy of the student's IEP and annual review until the first day of the impartial hearing. The impartial hearing officer found the absence of a site recommendation, uncertainty about when respondent received the 2003 IEP, and "emotional trauma" alleged by respondent served as mitigating circumstances.  She denied petitioner's motion to dismiss.

             Although the impartial hearing officer applied the correct statute of limitations in effect at the time respondent's claim arose, the record does not support her conclusion that respondent's claim in not time barred.  The record demonstrates that respondent knew that there was no placement recommendation for the 2003-04 school year at least as early as the start of the school year in September 2003, (Tr. p. 122).  However, he did not request an impartial hearing concerning that school year until June 15, 2005, almost 2 years after he first knew or should have known of the alleged failure by petitioner to offer his son a free appropriate public education  (FAPE).  Petitioner's claim should have been brought by September 2004.  Moreover, there is no dispute that at the time petitioner knew of the alleged injury he was aware of his due process right to assert the claim through due process proceedings (Tr. pp. 119, 123-24).³  Thus, his 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, respondent's claim for the 2003-04 school year would also have failed under a laches analysis (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, respondent's 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 petitioner, and it is respondent's burden to produce evidence to show that petitioner was not prejudiced by the delay.  Respondent has not only failed to meet this burden, he has instead attempted to shift this burden to petitioner by insisting that petitioner must first show it was 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.  In the instant case, respondent asserted his claim beyond the statute of limitations period, therefore the presumption of laches attaches and prejudice is presumed (see Application of a Child with a Disability, Appeal No. 05-029; accord Conopco, 95 F.3d at 191).  Respondent has failed to produce evidence to overcome this strong presumption.  While recognizing that it is petitioner's duty in the first instance to provide an appropriate IEP, in the absence of notice by respondent during the entire 2003-04 school year that he would be seeking tuition reimbursement for the 2003-04 school year, respondent's continuing silence and almost two-year delay in bringing his claim prejudiced petitioner by not putting it on fair notice, and also acted in part to preclude petitioner from answering respondent's concerns during the 2003-04 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).

             Moreover, I do not agree with the impartial hearing officer's conclusion that the failure to properly recommend a site precluded petitioner from ever asserting that a claim based on that failure was time barred. Under that reasoning, no claim could ever be time barred and the statute of limitations would never apply. 

             Respondent also attempts to offer mitigating circumstances to justify his delay.   Mitigating circumstances or a good cause excuse for the delay may be considered in a laches analysis (seeBernardsville, 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, respondent is still subject to the strong presumption that laches bars the claim (see Conopco, 95 F.3d at 191).  Respondent's only explanation for not requesting a hearing at the time he knew of the alleged denial of a FAPE was that he was under a tremendous amount of stress in dealing with his son's behaviors related to his disability (Tr. pp. 113, 115-16, 120; see also Parent Ex. A, Psychologist Letter).  Although respondent testified that he was under significant stress during the student's attendance at RLS, he also testified that there was no reason why he did not immediately seek reimbursement from the school (Tr. pp. 113, 119).  In addition, although respondent sought professional help to address concerns regarding significant pressures associated with maintaining a home, a thriving career, a marriage, and the requirements that school placed on him for his son (Parent Ex. A-1), I am not persuaded that the record demonstrates that the stress was of such a nature as to preclude his ability to request a timely due process hearing for the 2003-04 school year.

               For the foregoing reasons, respondent's claims regarding the 2003-04 school year are barred as untimely under both the applicable most analogous statute of limitations analysis and a laches analysis.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it granted respondent's request for tuition reimbursement for RLS for the 2003-04 school year.