03-068

       Petitioner appeals from an impartial hearing officer's decision denying her request to be reimbursed for the costs of her daughter's tuition at the Bais Yaakov D'rav Meir Yeshiva (Yeshiva) for the 1999-2000 school year. The hearing officer found that laches did not bar the claim for tuition reimbursement and that respondent, the City School District of the City of New York, demonstrated the appropriateness of the determination that petitioner's daughter should not be classified as a student with a disability. The appeal must be dismissed.

        There is a preliminary procedural issue that needs to be addressed in this appeal. Petitioner appeals from an impartial hearing officer's decision dated May 30, 2003. Respondent made requests to the Office of State Review for extensions of time in which to file an answer, which were granted because respondent stated that the parties were involved in settlement discussions and petitioner consented. Respondent's extended time to answer expired on October 20, 2003. As of the date of this decision respondent has not answered the petition herein. Nonetheless, I am required to examine the entire record (34 C.F.R. § 300.510[b][2][i]) and to make an independent decision (20 U.S.C. § 1415[g]) based solely on the record (8 NYCRR 279.3), notwithstanding respondent's failure to answer (Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002]).

        The matter before me is the appeal of a hearing officer's decision, dated May 30, 2003, arising from a November 21, 2002 hearing request and a hearing held in January and February 2003. It appears from the record that petitioner may have had a prior hearing in January 2000, which will be discussed below as far as it relates to the instant case. The issue before me is whether petitioner has raised her claim for tuition reimbursement for the 1999-2000 school year in a timely manner so that I may reach the merits of petitioner's appeal.

        At the time of the impartial hearing petitioner's daughter was 12 years old. The record does not contain information as to her current educational status. Petitioner's daughter was born premature at 23-1/2 weeks gestational age (Exhibit 6). Her early medical history includes a four-month stay in a pediatric intensive care unit, kidney stones, appendicitis, and repeated bouts of otitis media (Exhibit 6). As an infant and preschooler, the student reportedly received related services designed to address speech and motor delays (Transcript pp. 76-77). It does not appear from the record that petitioner's daughter ever attended a public school. The student entered the pre 1-A program at the Yeshiva for the 1995-96 school year, which is reportedly similar to kindergarten in a public school system (Transcript p. 14). For the 1996-97 school year she repeated the pre 1-A program due to her immaturity and difficulty following directions (Transcript pp. 77-78). Although not entirely clear from the record, it appears that petitioner's daughter was in a general education program at the Yeshiva and received resource room services until 1998 (Transcript pp. 86-88).

        In June 1998 the student was transferred from District 22 to District 20. Educational and psychological evaluations were conducted in July 1998 (see Exhibits 3, 4). The educational evaluator found the student's formal language skills slightly below age expectancy and visual motor skills significantly delayed (Exhibit 3). The evaluator indicated that in a 1:1 setting the student demonstrated reading skills at an early second grade level, but also reported that she was not able to work independently in the classroom (Exhibit 3). The educational evaluator also reported that petitioner's daughter's math skills were at a beginning first grade level (Exhibit 3).

        Psychological testing yielded performance and full scale IQ scores in the borderline range. On the Wechsler Intelligence Scale for Children- Third Edition (WISC- III) administered July 24, 1998, the student received a verbal IQ score of 87, a performance IQ score of 75, and a full scale IQ score of 79 (Exhibit 4). I note that it does not appear that the psychologist administered the entire verbal and performance sub-tests because the full-scale score was described as "prorated" (Exhibit 4). No further explanations were offered regarding the scoring. The psychologist opined that petitioner's daughter's scores were suggestive of a higher learning potential (Exhibit 4). The psychologist described petitioner's daughter as a slow learner who would require consistent encouragement and who could revert to behaviors typically associated with a younger child (Exhibit 4).

        The district 20 Committee on Special Education (CSE) convened on August 31, 1998. For the 1998-99 school year, respondent's committee recommended that petitioner's daughter be classified as other health impaired (OHI) and recommended Supplemental Instructional Services I with two 30-minute sessions of individual speech-language therapy per week and two 30-minute sessions of individual occupational therapy per week (Exhibit J). However, for the 1998-99 school year, petitioner unilaterally placed her daughter in the P'TACH (Parents for Torah for All CHildren) program (Transcript pp. 50-51, 65) at the Bais Yaacov D’Rav Meir. P'TACH has small self-contained special education classes housed in the general education Yeshiva (Transcript pp. 50, 64-65). The educational director of the P'TACH program stated that petitioner's daughter was placed in the self-contained special education program because she presented with attention problems, was very distractible, and had trouble completing tasks without a significant amount of individualized attention (Transcript p. 51).

        A psychiatric evaluation was conducted on September 3, 1998. The psychiatrist opined that petitioner's daughter displayed delays and difficulties in several areas including, expressive and receptive language, perceptual motor skills, attending abilities, and self-esteem (Exhibit 6). He described her coping style as "avoidant" and "histrionic" and suggested that she lacked more mature strategies for dealing with anxiety in an academic setting (Exhibit 6). The psychiatrist offered the following diagnoses: expressive and receptive language disorder, learning disability (not otherwise specified), attention deficit disorder (ADD), and anxiety disorder (not otherwise specified) (Exhibit 6).

        On December 1, 1998 the school-based support team (SBST) met and promulgated an "IEP" identifying petitioner's daughter as "non-handicapped" (Exhibit 5). The SBST found the student to be ineligible for special education services, and no special education or related services were recommended (Exhibit 5). On that same date the student's parents requested mediation because they disagreed with respondent's SBST's recommendation to declassify their daughter (Exhibit 8; Transcript 27). By letter dated December 16, 1998 the student's parents were notified of their right to request a CSE meeting to review the SBST's recommendation (Exhibit 7). In a letter to a hearing officer the parent's advocate asserted that mediation had been scheduled for February 1999 and then rescheduled for April 1999 (Exhibit F). The parents did not attend the first date for mediation because of a family emergency, and subsequently withdrew from the mediation process "under the impression" that the CSE would conduct a "conflict resolution" meeting to resolve the matter (Exhibit F).

        In the January 14, 2003 letter to the hearing officer below, petitioner's advocate asserted that petitioners had, previous to the instant case, requested an impartial hearing on November 1, 1999 (Exhibit F). A copy of the November 1, 1999 hearing request is not a part of the record, and it is not clear whether the 1999 request sought tuition reimbursement for the 1998-99 school year, the 1999-2000 school year, or for both years. An impartial hearing was held January 5, 2000 (Transcript p. 2; Exhibit 1) and apparently a transcript of the hearing was created (Exhibit H). A decision, if rendered, was not made part of this record in the appeal before me, nor is there any indication as to what was the outcome of the decision.

        The record does not indicate clearly what happened after the parents withdrew from the mediation process in 1999 (see Exhibit F). Discussion on the record from the current hearing suggests that there was a settlement agreement between the parents and the previous school district for the 1998-1999 school year (Transcript pp. 83-84, 88-89). The record does not reflect the complete terms of any such settlement. The hearing officer's decision below states that the parents requested an impartial hearing on November 21, 2002 regarding tuition reimbursement for the 1999-2000 school year (IHO Decision p. 2). The hearing, which commenced on January 15, 2003, was characterized as a reopening of the January 2000 hearing. At the January 15, 2003 hearing, the parents asserted that they requested a hearing for the 1999-2000 school year during the 1999-2000 school year (Transcript p. 3). Also, at the January 15, 2003 hearing, respondent moved to dismiss petitioner's claim as being untimely and barred by the equitable doctrine of laches (Transcript p. 2). The hearing reconvened on February 25, 2003. The hearing officer declined to rule on the motion to dismiss until she heard testimony (Transcript p. 10; see Exhibits 1, 2). In a decision dated May 30, 2003, the impartial hearing officer found that the parent's request for tuition reimbursement for the 1999-2000 school year, raised in the November 21, 2002 hearing request, was timely and denied respondent's motion to dismiss. The hearing officer further found that respondent satisfied its burden by demonstrating the appropriateness of the district's recommendation that petitioner's daughter should not be classified as a student with a disability and denied tuition reimbursement for the 1999-2000 school year. Petitioner appeals contending that the hearing officer erred in concluding that respondent demonstrated the appropriateness of its determination that the student was ineligible for special education.

        A review of the procedural history of petitioner's claim reveals that petitioner has not availed herself of the proper administrative process that could have been utilized to address her concerns with the December 1998 determination that her daughter was not eligible for special education. Petitioner could have brought an appeal concerning the 1999-2000 school year within the appropriate time frame after the hearing in January 2000, rather than seek to reopen the January 2000 hearing concerning the 1998-99 and 1999-2000 school years. The record is not clear as to whether a decision was rendered from the January 5, 2000 hearing. If a decision was rendered, it would have been final unless appealed by a party.¹ An unappealed final determination requires preclusion of review of the same claim in a subsequent separate due process proceeding. If a decision was not rendered as a result of the January 2000 hearing, the statute of limitations would require dismissal of this claim. The evidence shows that petitioner knew of the alleged violation of her daughter being declassified as of December 1, 1998. I find that petitioner's tuition reimbursement claim for the 1999-2000 school year, raised in the November 21, 2002 hearing request, was not brought within one year and is time-barred (see Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist, Appeal No. 02-119).²

THE APPEAL IS DISMISSED.