06-086

           Petitioner appeals from a decision of an impartial hearing officer which determined that petitioner waived the right to additional claims for compensatory educational services for her daughter by signing a "Stipulation of Settlement and Discontinuance" (Stipulation) that contained a release.  The appeal must be dismissed. 

            At the time of the impartial hearing in May and June 2006, petitioner's daughter was 22 years old and was previously classified by respondent as a student with multiple disabilities (Dist. Ex. 5).  She has a diagnosis of cerebral palsy characterized by spastic quadriparesis and severe oral-motor/swallowing involvement (Tr. p. 139; Parent Ex. A at p. 3).  She uses a wheelchair for mobility, and a head switch to access a voice output communication aide (VOCA) to communicate (Tr. pp. 197-98; Parent Exs. A at pp. 3-5, 12; B at p. 4; Dist. Ex. 5 at p. 1).  As of January 2003, her academic skills were reportedly on a fourth grade level and the record reflects that she has visual-perceptual and language based learning difficulties (Tr. pp. 144-45, Parent Ex. A at p. 3). 

            At the time of the impartial hearing, petitioner's daughter was receiving a customized program of services developed by a private consultant (consultant) who contracted with respondent (see Tr. pp. 223-28; Parent Exs. B, E; Dist. Ex. 5 at pp. 1, 2).   Petitioner's daughter's program included communication classes at Queen's College, a special education teacher and full-time paraprofessional services, physical therapy, occupational therapy, assistive technology services, nursing services and art facilitator services (Tr. pp. 197, 295-97; Parent Ex. B at p. 8).  With support, she interned one day per week at the Metropolitan Museum of Art and studied to become a guide at a museum or art gallery (Tr. pp. 194-95).  She also participated in art programs at the YWCA (Tr. p. 194). 

            Petitioner's daughter attended middle and high school at respondent's general education School of the Future, from which she graduated in June 2002 (Tr. pp. 129-31).  In September 2002, she began a District 75 program at Queen's College, but by November 2002, petitioner, an Office of Inclusion staff member and the superintendent of District 75 agreed that the Queen's College program was not appropriate for petitioner's daughter, in part because it was composed of ambulatory students with mental retardation (Tr. pp. 130, 137-38, 140-41).  Subsequently, petitioner met with the superintendent of District 75 and the consultant who proposed a customized program for petitioner's daughter (Tr. pp. 140-41). 

           Respondent agreed to contract with the consultant and pay for the customized program for petitioner's daughter, which was implemented in January 2003 when she was 19 years old (Tr. pp. 149, 152, 223-24; Parent Ex. C).  The program developed by the consultant consisted of a team of staff who provided home and school-based services during the week and on weekends (Tr. pp. 144-45).  The team included the services of the consultant, a one-to-one special education teacher, a full-time paraprofessional, a technology expert, and a physical therapist (Tr. p. 151).  The consultant and the team developed petitioner's daughter's program goals and identified her educational technology and related service needs (see Tr. p. 149; Parent Ex. C at pp. 1, 16-19; Parent Ex. A).  The program also provided her with vocational training (Tr. pp. 202-03). 

            Petitioner's daughter's program continued during the remainder of the 2002-03 school year, and the 2003-04 school year (Parent Ex. D at p. 1).  Respondent's Committee on Special Education (CSE) convened on May 5, 2004 and the IEP created for petitioner's daughter, in conjunction with the consultant, recommended a 12-month general education program with special education teacher support services (SETSS), a one-to-one health services paraprofessional and the related services of physical therapy, occupational therapy, speech-language therapy, assistive technology, communication/education technology specialist and school health services (Dist. Ex. 5 at pp. 1, 10, 11).  The consultant and the CSE team developed a transition plan for the 2004-05 school year (see Tr. pp. 246-47). 

            The consultant continued to contract with respondent to develop and provide petitioner's daughter's program during the 2004-05 school year (Tr. pp. 225-26; Parent Exs. A, D).  Petitioner's daughter turned 21 in December 2004 and in January 2005, petitioner met with respondent's Deputy Chancellor to discuss extending her program beyond June 2005 (Tr. pp. 161-62; see Tr. pp. 204-05; Dist. Ex. 5 at p. 1). 

            On January 20, 2005, petitioner signed a Stipulation that was forwarded to her by respondent (Dist. Ex. 1). The Stipulation stated that respondent agreed to continue petitioner's daughter's special education services pursuant to its May 2004 IEP for the duration of the 2005-06 school year, defined as July 1, 2005 through June 30, 2006 (id. at p. 1).  The Stipulation also contained a release, whereby petitioner released respondent "from any and all claims alleged . . . including any claims that [petitioner's daughter] did not receive and/or was offered a free and appropriate public education. . . " (id. at p. 3).

            The record reveals that in May 2005 a meeting was held that included the consultant, a representative from the Office of Vocational and Educational Services for Individuals with Disabilities (VESID), the principal of the Occupational Training Center (OTC), respondent's coordinator of transition, petitioner, and petitioner's daughter, whereby petitioner's daughter's May 2004 IEP was "extended" to encompass the 2005-06 school year (Tr. pp. 180, 247-49, 251, 257-58, 273).  At the May 2005 meeting, the participants also discussed the transition plan from District 75 programs to college programs and opportunities for community experiences (Tr. pp. 266-69).

            Petitioner's daughter's program continued during the 2005-06 school year (see Tr. pp. 186, 267-68; Parent Ex. B).  By letter dated January 25, 2006, respondent's Deputy Chancellor reminded petitioner that respondent had agreed, pursuant to the Stipulation, to continue petitioner's daughter's program beyond the regulatory age limit for one school year only (2005-06) (Dist. Ex. 4; see Dist. Ex. 1).  The Deputy Chancellor informed petitioner that her daughter's services needed to be transitioned to VESID and the Office of Mental Retardation and Developmental Disabilities (OMRDD) at the conclusion of the 2005-06 school year, and that she supported efforts to transition petitioner's daughter to adult programs provided by VESID and OMRDD (Dist. Ex. 4).  The Deputy Chancellor further provided petitioner with direct contact information for a member of her cabinet who could assist petitioner with the transition to services through VESID and OMRDD (id.).

            By letter dated March 29, 2006, petitioner requested an impartial hearing (Dist. Ex. 2).  In her letter, petitioner requested a continuation of her daughter's current individual program for the "next two years" as compensatory services for respondent's failure to provide her daughter with a free appropriate public education (FAPE) from kindergarten through the 2002-03 school year (id.).  By letter dated April 7, 2006, petitioner amended her impartial hearing request, adding a request that a transition plan be developed for her daughter (Dist. Ex. 3).

            The impartial hearing was held on May 30, 2006 and June 9, 2006 (Tr. pp. 3, 100).  On the first day of the hearing, testimony was not taken.  Petitioner requested that the impartial hearing officer continue her daughter's current placement pursuant to pendency, while respondent argued that petitioner's daughter is not entitled to pendency (Tr. pp. 7-9).  Respondent also made a motion to dismiss petitioner's claims based upon the statute of limitations, mootness, res judicata and the inappropriateness of an award of compensatory education (Tr. pp. 24-28).  In addition, the parties debated the enforceability and effect of the Stipulation signed by petitioner (Tr. pp. 12-21).  The impartial hearing officer reserved decision on petitioner's request for pendency and respondent's motion to dismiss until the facts of the matter were developed in greater detail (Tr. p. 22).

            The impartial hearing continued on June 9, 2006 (Tr. p. 100).  The impartial hearing officer requested that the proof be limited to the issue of the Stipulation and release and why it should not be held to be binding (id.).  Petitioner asserted that the Stipulation was not enforceable, asserting, inter alia, that she had signed the Stipulation under duress because she had no choice if she wanted her daughter's program to continue, and also that the Stipulation is void as against public policy because a FAPE cannot be waived.  Respondent asserted that the Stipulation was valid and that respondent had already performed its part of the agreement in full. 

            The impartial hearing officer issued a decision dated June 26, 2006, holding that the Stipulation was valid and binding, that respondent's motion to dismiss was granted on the basis of the Stipulation, and that petitioner's requested relief was properly denied.

            Petitioner then immediately sought emergency relief in federal court, pending a decision from a State Review Officer, in light of the fact that respondent's funding of her daughter's program would end on June 30, 2006 (Pet. ¶ 16).  On June 30, 2006, the United States District Court for the Southern District of New York granted a temporary restraining order to petitioner, requiring respondent to continue funding petitioner's daughter's program pending a hearing on petitioner's request for a preliminary injunction (Pet. ¶ 16).  On July 20, 2006, the Court granted a preliminary injunction, requiring respondent to continue funding petitioner's daughter's program until ten business days following a State Review Officer's decision (Pet. ¶¶ 17-18).

            Petitioner appeals the impartial hearing officer's decision and asserts that the Stipulation was invalid because the right to a FAPE cannot be waived.  She also asserts that irregularities with the Stipulation render it unenforceable.  Petitioner seeks the following relief:  1) reversal of the impartial hearing officer's decision; 2) consideration of additional evidence submitted with the petition; 3) a finding that her daughter was denied a FAPE; 4) a finding that the Stipulation is void and unenforceable; 5) an order mandating respondent to continue to fund the consultant's program for an additional two years; and 6) costs and expenses, including attorneys' fees for this action. 

            Respondent submitted an answer denying petitioner's assertions and asserting affirmative defenses, including failure to state a claim, laches, statute of limitations, accord and satisfaction, release, estoppel, waiver, res judicata, and unclean hands.  Respondent also requests that petitioner's additional documentary evidence submitted with the petition not be considered because it is not necessary to render a decision and because it was proffered for an inappropriate and prejudicial purpose. 

            Petitioner submitted a reply in response to facts asserted in respondent's answer and in response to respondent's affirmative defenses, including a detailed response to respondent's affirmative defense of the statute of limitations.  

            I affirm the decision of the impartial hearing officer to the extent that it denied petitioner's claims, but on different grounds, as detailed below.  The enforceability of the Stipulation and its release is disputed by the parties, and was the focus of the impartial hearing officer's decision.  However, based upon the record, I do not find it necessary to address the enforceability of the Stipulation and release in light of the undisputed facts of this case which mandate a finding that petitioner's claims must be dismissed.

            As a preliminary matter, I will not consider the additional documentation that petitioner submitted with her petition.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  Here, respondent has objected to the additional documentation on the basis that the documents are not necessary for a State Review Officer to render a decision, and that some of the documents consist of memorandums of law from the impartial hearing and are not properly considered "evidence."  Respondent did not object to three documents that were already entered as exhibits at the impartial hearing.  Although most of the additional documents were not available at the time of the impartial hearing, I find that the documents are not necessary for my decision, as set forth in detail below, and I therefore decline to consider them. 

            As set forth herein, petitioner's daughter is no longer of an age to be entitled to the protections and benefits of the IDEA.  Petitioner is seeking two years of compensatory education for her daughter, which is an equitable remedy that provides relief in the form of services beyond the age of 21.   An award of compensatory education requires a finding of a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]).  Petitioner asserts a denial of FAPE from kindergarten through the 2002-03 school year in her due process hearing requests (Dist. Exs. 2, 3; Pet. ¶ 35), however the statute of limitations bars these claims in the instant case.  Petitioner has not set forth a valid basis for tolling the statute of limitations regarding the claimed denials of FAPE.  Petitioner's request for compensatory education must therefore be denied as set forth herein.

            The Individuals with Disabilities Education Act (IDEA)¹ applies to children between the ages of 3 and 21 (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children ages 18 through 21 where it is inconsistent with State law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]).  New York Education Law specifically provides IDEA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024).  Generally, under the IDEA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]).  Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 04-100).

            Petitioner's daughter is currently 22 years of age (Pet.¶ 5).  Therefore, Petitioner's daughter is beyond the age covered by the IDEA and is no longer entitled to the protections and benefits of the IDEA (20 U.S.C. § 1412[a][1][A]; N.Y. Educ. Law § 4402[5][b]; Honig, 484 U.S. at 318).  Petitioner has noted her dispute regarding her daughter's receipt of a Regents diploma in 2002 (Pet. ¶¶ 31-32).  Petitioner notes that she had expected her daughter to receive an IEP diploma in June 2002, and she asserts that the Regents diploma her daughter received is a "sham."  However, whether petitioner's daughter received an IEP diploma or a Regents diploma is presently irrelevant to a determination of petitioner's daughter's rights under the IDEA in light of her daughter's age.  Respondent's obligations under IDEA to petitioner's daughter ceased at the end of the 2004-05 school year, which was the school year in which she turned 21 (Pet. ¶¶ 5, 46; N.Y. Educ. Law § 4402[5][b]).

            Petitioner's daughter has already received one school year of educational services after her eligibility under IDEA expired.  The parties have worked cooperatively over the past four years and respondent has funded an extensive program of services for petitioner's daughter.  I note that petitioner reports that the consultant's program has been provided at a cost of approximately $400,000 per year (Pet. ¶ 35). 

            On appeal, petitioner asserts that her daughter is entitled to compensatory education beyond the age of 21 due to a denial of FAPE.  Petitioner asserts that her daughter was denied a FAPE from kindergarten through the 2002-03 school year (Dist. Exs. 2, 3; Pet. ¶ 35).  Respondent argues as an affirmative defense in its answer that petitioner's claims are barred by the statute of limitations.  Petitioner argues in her reply papers that the statute of limitations should not bar her claims, on the following specific grounds: 1) her claims are within the statute of limitations period; 2) her claims only recently became ripe; and 3) the statute of limitations should be tolled (Reply, p. 6; Reply Memorandum of Law at pp. 4-8).

            As set forth below, based upon the undisputed facts in the record, I find that petitioner's claims are barred by the statute of limitations because her claims are outside the limitations period and there is no basis for tolling the statute of limitations.

            The IDEA requires that, unless a State chooses to set a different limitations period under State law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged violation (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; N.Y. Educ. Law § 4404[1]).   The IDEA was amended in 2004 and the present two year statute of limitations became effective in July 2005 (id.).  Prior to July 2005, the statute of limitations in New York for alleged violations of IDEA was one year (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; Application of the Bd. of Educ., Appeal No. 02-119; see Application of a Child with a Disability, Appeal No. 06-013).

            First, petitioner's claims are outside the statute of limitations period.  Petitioner's due process hearing requests are clear that petitioner is seeking to assert denial of FAPE claims from her daughter's kindergarten school year through the 2002-03 school year (Dist. Exs. 2, 3; Pet. ¶ 35).  However, the petition also asserts that "[petitioner's daughter] received an IEP each year for grades 1-12, but the goals set forth in her IEPs were never materially achieved.  [Petitioner's daughter] has never received a FAPE, and the DOE's failure to provide a FAPE has continued to the present day" (Pet. ¶ 24).  Petitioner relies in part on this argument, that the "failure to provide a FAPE has continued to the present day," to address respondent's argument that the statute of limitations precludes petitioner's denial of FAPE claims.  Testimony of the petitioner is clear however, that she is not asserting that the program provided since 2003 ever ceased or that it was inadequate in any way, and she is in fact requesting that this program continue for another two years (Tr. p. 186; Pet. ¶¶ 38-40). 

            The petition and reply papers appear to misconstrue the meaning of "FAPE," to the extent that they appear to use the term as if a "FAPE" is an end accomplishment of years of education (see Pet.¶¶ 14, 24, 25; Reply Memorandum of Law, p. 4).²  In any event, it is clear from the record that the most recent school year in which petitioner is asserting that there was a denial of FAPE is the 2002-03 school year (Dist. Exs. 2, 3; Pet. ¶ 35).  Her first request for a due process impartial hearing was dated March 29, 2006 (Dist. Ex. 2), and was subsequently amended on April 7, 2006 (Dist. Ex. 3).  Her claims relating to a denial of FAPE from her daughter's kindergarten school year through the 2002-03 school year are therefore barred by either the one year or the two year statute of limitations.

            Petitioner also asserts that her claims only became "ripe" upon respondent's failure to accommodate petitioner's request to continue her daughter's program beyond the 2005-06 school year.  The accrual date for the statute of limitations is when petitioner knew or should have known of the alleged IDEA violation, as set forth above.  The program that respondent funded for petitioner's daughter for 2005-06 was not required by IDEA.  Respondent's declination to continue funding the program for 2006-07 and 2007-08 school years cannot be deemed an IDEA violation because petitioner's daughter is not entitled to IDEA protections and benefits for these school years due to her age.  As set forth above, petitioner's assertions regarding a denial of FAPE occurred outside the statute of limitations period.

            Petitioner also fails to set forth a basis for tolling the statute of limitations.  Petitioner argues that the two-year statute of limitations does not bar her compensatory education claims for events that occurred more than two years ago because petitioner was trying to work with respondent to resolve issues about the alleged deprivation of FAPE.  In support of her tolling argument, petitioner cites to a Pennsylvania district court opinion which held "that there is no limitations period, whether equitable or legal, on a disabled child's claim for compensatory education pursuant to IDEA" (Amanda A. v. Coatesville Area Sch. Dist., 2005 WL 426090 at *6 [E.D.Pa. 2005]).  The Second Circuit courts have not adopted the Pennsylvania district court's holding that there is no limitations period on compensatory education claims, and I decline to do so.  In any event, petitioner's reliance on Amanda A. is misplaced because subsequent to its issuance in February 2005 its holding pertaining to an equitable limitations period was superceded by the statutory limitation period of two years provided for in IDEA 2004, effective July 1, 2005 (see, e.g., State of Hawaii v. L.K and W.L, 2006 WL 1892220 at *11 [D. Haw. 2006] [applying the two-year IDEA 2004 and state statute of limitations period to claims for compensatory education]).

            Petitioner's daughter began the consultant's program during the 2002-03 school year (Tr. pp. 141-42).  Petitioner does not assert that this program constituted a denial of FAPE, but rather asserts that her daughter had made "substantial" and "unprecedented" progress under this program (Pet. ¶¶ 36, 38; Tr. p. 186).  The petition also asserts that the consultant, at the inception of her involvement during the 2002-03 school year, "concluded at that time that [petitioner's daughter] had not received a FAPE and that the program was necessary to remedy the educational deprivations that she had experienced over the years" (Pet. ¶ 34).  Therefore, petitioner was undisputedly on notice no later than the 2002-03 school year of the consultant's opinion that her daughter had not received a FAPE.  

           IDEA 2004 contains specific exceptions whereby a party will not be held to the two year statute of limitations period under two specific circumstances (20 U.S.C. § 1415[f][3][D][I]).  The statute states in relevant part that the two year statute of limitations "shall not apply to a parent if the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency's withholding of information from the parent that was required under this part to be provided to the parent" (id.). 

            Petitioner asserts that she "relied on the DOE's representations that it was remedying Petitioner's lack of a FAPE, and Petitioner should not be punished for trying to work with the DOE" (Reply, ¶ 20).  Petitioner extrapolates that respondent made "specific representations" because "the DOE initially offered a program to attempt to remediate her lack of a FAPE that it knew or should have known was inappropriate" (Reply Memorandum of Law, p. 7).  At the same time, petitioner has contradicted the assertion that the consultant's program was inappropriate.  Petitioner in fact has asserted that the child progressed under the program (Pet. ¶ 38).  There is no basis in the record for stating that petitioner or respondent knew or should have known that the program was "inappropriate."  Petitioner does not persuasively demonstrate that she relied on specific "misrepresentations" or that respondent withheld information that it was required to provide.  Petitioner has failed to set forth legal authority or a factual basis to support her argument that her claims should be deemed to fall within the statute of limitations.

            To the extent that petitioner's claims could be deemed to assert a continuing violation, I have considered the continuing violation doctrine, and I find that petitioner's claims also fail under this analysis.  First, the Second Circuit courts disfavor the continuing violation doctrine (Cabrera v. NYC, 436 F. Supp. 2d 635, 642 [S.D.N.Y. 2006]; Berkhout v. New York City Dep't of Educ., 2004 WL 1586500, *6 [S.D.N.Y]; Application of a Child with a Disability, Appeal No. 04-082).  Second, the continuing violation doctrine would act to toll the statute of limitations only if one of the alleged violations occurred within the limitations period (id.).  None of the school years in which petitioner alleges a denial of FAPE were within the statute of limitations period.  Accordingly, petitioner's claims fail under this analysis.

            For the foregoing reasons, petitioner's claims are barred as untimely by the statute of limitations and her appeal is dismissed on that basis.

            Petitioner's claims for asserting a denial of FAPE are time-barred, and therefore petitioner's compensatory education claim necessarily must fail. .Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction.  It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]).  Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd, 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).  Compensatory education is a judicially-crafted remedy; it is not an extension of the protections and benefits of the IDEA itself (see Cosgrove, 175 F. Supp. 2d at 388 ["the relief arises from equity and is not a legislative authorization to extend the reaches of the statute"]; see also Burr, 863 F.2d at 1078).

            In closing, I note that despite my dismissal of petitioner's claims, there are available resources for petitioner's daughter.  The record reflects that petitioner preliminarily pursued the services of VESID and OMRDD, but was unhappy when those agencies did not seem able to duplicate the program her daughter was receiving from the consultant.  Petitioner is not left without options:  she may pursue services offered through VESID and OMRDD, or privately pay for her daughter's present program.  However, there is no legal basis for finding that respondent is mandated to continue to fund the consultant's program.  I also note that respondent previously indicated its willingness to assist petitioner's daughter in her transition to services provided by VESID and/or OMRDD (Dist. Ex. 4).

            It is not necessary that I address the parties' remaining assertions and arguments on appeal in light of my findings above.

THE APPEAL IS DISMISSED.

IT IS ORDERED that the findings of the impartial hearing officer are modified to the extent they are inconsistent with this decision.