05-029

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter's tuition costs at the Landmark School (Landmark) for the 2003-04 school year.  The appeal must be dismissed.

            The student's prior educational history is described in Application of a Child with a Disability, Appeal No. 03-041, and will not be repeated here in detail.  Briefly, petitioners' daughter has had reading difficulties in the past and was diagnosed as having an attention deficit disorder (ADD).  According to psychological testing, her cognitive abilities are in the average range.  Her disability affects her memory and reading comprehension as well as her ability to focus, organize and complete assignments.  Specific areas of weakness include poor immediate verbal memory and processing, impulse control, distractibility, inconsistency, poor attention/arousal regulation, poor delayed recall of verbal information, poor organization, and difficulty processing large blocks of information.  In June 2002, respondent's Committee on Special Education (CSE) developed an individualized education program (IEP) for the student for the 2002-03 school year which classified her as learning disabled and placed her at Pawling High School in 11th grade in regular education classes, with daily 5:1 resource room services, a daily 5:1 special reading class, and various program and test modifications.  Petitioners disagreed with respondent's recommended program, and instead enrolled their daughter in Landmark for the 2002-03 school year and requested an impartial hearing seeking tuition reimbursement.  After a hearing (Hearing 1), the impartial hearing officer rendered a decision on March 28, 2003, which found that the district had met its burden of demonstrating that it offered the student an appropriate program and denied the parents’ request for reimbursement of tuition expenses.  The student's parents appealed the decision to the State Review Officer (see Application of a Child with a Disability, Appeal No. 03-041).

            While the appeal to the State Review Officer was pending, on July 29, 2003 the CSE met to conduct the student's annual review and develop a program for her for the 2003-04 school year (Dist. Ex. 3).  In developing the new IEP, the CSE reviewed the student's most recent May 2003 standardized test scores, teacher reports from her 2002-03 school year at Landmark, results from an independent neuropsychological evaluation obtained by the parents in June 2002, and other evaluations (Dist. Ex. 3 at pp. 3-6; see Dist. Exs. 5, 6; Tr. pp. 74-76, 236-37, 238, 391).  An administrator from Landmark was also present via telephone at the meeting and provided additional current information about the student (see Dist. Ex. 3 at pp. 5-6; Tr. pp. 72, 78, 119, 156).  Testing revealed that the student's verbal and performance IQ scores were in the average range (see Dist. Ex. 3 at p. 5).  Weaknesses were found in written expression, grasping abstract concepts, reading rate and reading comprehension (id.; see also Tr. p. 80).  The IEP noted that the student was on medication for an attention deficit hyperactivity disorder (ADHD) and depression (Dist. Ex. 3 at p. 5; see Tr. p. 305).  The student was described as distractible, needing repetition and review of key concepts (Dist. Ex. 3 at p. 3).  For the 2003-04 school year, the CSE classified the student as learning disabled and recommended that the student be enrolled in 12th grade at Pawling High School in regular education classes with 40 minutes of 5:1 resource room services five days per week, 40 minutes of a 5:1 special reading class five days per week, and 40 minutes of individual counseling once per week (Dist. Ex. 3 at p. 2).  Testing accommodations included extended time for tests, directions and questions reviewed for understanding, instructions broken down into segments, and quiet test locations with minimal distractions (Dist. Ex. 3 at p. 2).  Program modifications included preferential seating, study guides, additional set of books, refocusing and redirection, repetition, use of tape recorder, and assignments broken down into small steps (Dist. Ex. 3 at p. 3).  The IEP included specific goals and objectives for the student in study skills, reading, writing, social/emotional behavior, career and vocational activities, and vocabulary (Dist. Ex. 3 at pp. 7-10).  The 2003-04 IEP was similar to the 2002-03 IEP, but added the student's recent May 2003 test results, counseling services, and adjusted the goals and objectives by adding a new writing goal and three objectives, a new social/emotional goal and objectives, and a new vocabulary goal and objectives (compare Dist. Exs. 3, 8).  The parents indicated at the CSE meeting that they "definitely" disagreed with the recommended program and that they would be enrolling their daughter at Landmark again for the 2003-04 school year (Tr. pp. 255-57, 88-89, 104, 113, 396; see Dist. Ex. 3 at p. 2).

           By letter dated August 13, 2003 petitioners notified the district's special education director that they were rejecting the CSE's recommended program for their daughter for the 2003-04 school year and enrolling her again at Landmark for the upcoming school year (Dist. Ex. 4).  The letter stated that they were "unable to fund a 2nd hearing at this time," and "therefore reserve our right" to bring a new impartial hearing on the 2003-04 IEP (Dist. Ex. 4).  At the time petitioners wrote the letter, Hearing 1 was over and they were awaiting a decision on appeal from the State Review Officer on the 2002-03 school year.  Nine days later, on August 22, 2003, the State Review Officer rendered a decision on the prior school year, which upheld the impartial hearing officer's decision, finding the district's program for the 2002-03 school year was appropriate and dismissed the parents' request for tuition reimbursement (Application of a Child with a Disability, Appeal No. 03-041). 

            On December 22, 2003, the student's parents filed an appeal of the State Review Officer's decision in federal court (see Cerra v. Pawling Cent. Sch. Dist., 03 Civ. 10143 [S.D.N.Y. Sept. 1, 2004]).  During the next several months, petitioners' daughter completed the 2003-04 school year at Landmark, received her diploma and graduated on June 4, 2004 (Parent Ex. H).  After the school year ended, by letter dated August 12, 2004, petitioners requested an impartial hearing on the district's recommended program for their daughter for the 2003-04 school year (Hearing 2) (Dist. Ex. 1).  Petitioners' daughter was accepted at Suffolk University for the 2004-05 school year and is currently attending regular education classes there in pursuit of her college degree (Parent Ex. K; IHO Ex. 6; Tr. pp. 271, 288).

            On September 1, 2004, the federal district court rendered a Memorandum and Order on the 2002-03 school year which reversed the State Review Officer's (and the impartial hearing officer's) decision and granted petitioners' request for tuition reimbursement for the student's 2002-03 school year at Landmark (Cerra v. Pawling Cent. Sch. Dist., 03 Civ. 10143 [S.D.N.Y. Sept. 1, 2004]).  The court found that the parents were denied meaningful participation in the formulation of their daughter's IEP because the district failed to provide them with the information they requested concerning their daughter's evaluations and her progress on her current IEP, failed to provide a decoded explanation of the goals and objectives on the IEP, and did not send the parents a copy of the IEP until after their third request, only a few days before the school year was to begin (id. at p. 16).  In addition, the court found that the substantive program recommended in the 2002-03 IEP was not reasonably calculated to meet the student's needs because the special education teacher testified that the student had benefited from 1:1 tutoring in the past and the 2002-03 IEP instead placed the student in 5:1 resource room services (id. at p. 19).¹  The court also found the substantive program was not likely to produce progress in that, although the student passed her subjects the previous year (2001-02) under a similar IEP, by the end of that school year she was still not reading at grade level (id. at pp. 19-20).  Lastly, the court determined that the 2002-03 IEP should have included counseling services (id. at p. 20).  Based on this combination of alleged procedural and substantive inadequacies, the court found the 2002-03 IEP denied the student a free appropriate public education (FAPE).  The court also concluded, based solely on the fact that the student had received grades of A's and B's while at Landmark, that the private special education and related services met the student's needs, and awarded the parents full residential tuition costs at Landmark for the 2002-03 school year (id. at pp. 20-21).  The school district has filed an appeal of the federal court's decision to the United States Second Circuit Court of Appeals (Tr. pp. 22-23; Ans. ¶ 7), which at the time of this decision is still pending.

            Hearing 2 was held over a two-day period on November 10, 2004 and November 17, 2004.  In a decision dated January 17, 2005, the impartial hearing officer found that the CSE's recommended educational program for the 2003-04 school year was appropriate, that the parents were not denied meaningful participation in the development of the new IEP, and that, in any event, petitioners’ claim for the 2003-04 school year was untimely under the one year analogous statute of limitations analysis applicable to proceedings brought under the Individuals with Disabilities Education Act (IDEA). Petitioners herein appeal the impartial hearing officer's decision on the 2003-04 school year, contending that the impartial hearing officer erred in not finding that the 2003-04 IEP was procedurally and substantively inappropriate.  Petitioners also deny that their claim is untimely.  Petitioners are incorrect in their assertion.

            Although the IDEA does not prescribe a time period in which requests for administrative impartial due process hearings must be asserted, the State Review Officer has applied a one-year statute of limitations in light of recent caselaw 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 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).  Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the statute of limitations for requesting an impartial hearing to resolve disputes under the IDEA or Article 89 of the New York Education Law begins to run when the petitioner knew or should have known of the injury involved, i.e., the inappropriate education (Southington, 334 F.3d at 221).

            In the instant case, the impartial hearing officer properly applied the one-year most analogous statute of limitations analysis.  Petitioners knew that they disagreed with the proposed 2003-04 program on the date of the CSE meeting, July 29, 2003, but did not request an impartial hearing for the 2003-04 school year until August 12, 2004, more than a year after they first knew of the alleged inappropriate program.  Thus, their claim is untimely under the adopted one-year statute of limitations (Application of the Bd. of Educ., Appeal No. 02-119), notwithstanding petitioners' attempt to unilaterally "reserve [their] right" to an impartial hearing by letter to the district.  Notably, neither party can "reserve their right" to an impartial hearing 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, petitioners' claim for the 2003-04 school year would have failed under a laches analysis as well (see Application of a Child with a Disability, Appeal No. 02-101).

            In the instant case, since the request for a hearing was made after the most analogous statute of limitations period had run, there is a strong presumption that laches bars the claim, and petitioners have the burden of rebutting that strong presumption (see Conopco, 95 F.3d at 191).  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]).  Petitioners' only explanation in their letter to the district for not requesting a hearing at the time they learned of the alleged inappropriate educational program was that they were "unable to fund a 2nd hearing" at the same time that they were awaiting resolution of their administrative appeal on the 2002-03 school year  (Dist. Ex. 4).  However, within nine days of their letter, on August 22, 2003, the State Review Officer rendered a decision on the 2002-03 administrative appeal (see Application of a Child with a Disability, Appeal No. 03-041), yet petitioners remained silent for the entire 2003-04 school year,² waiting until the following August to request a hearing.  The length of their continued delay was unreasonable, and they provided no explanation for the delay after the resolution of the first administrative appeal. The continuing delay also was a contributing factor which, in the absence of any indication by the parents during the entire school year that they were still actively pursuing enrolling their daughter in the public school system, acted to prejudice the district in not allowing it the opportunity to work with the parents to attempt to rectify the alleged inadequacies in the student's program prior to the expiration of the school year (see Application of a Child with a Disability, Appeal No. 04-025).  Upon receipt of the parents' letter of August 12, 2003 expressing disagreement with the recommended program and informing the district that they were enrolling their daughter at Landmark again for the 2003-04 school year (Dist. Ex. 4), the district immediately, via letter dated August 25, 2003 offered to schedule a meeting to address any concerns or questions the parents had about the recommendation (Dist. Ex. 3); the parents failed to reply and remained silent during the school year.  In general, parents who do not cooperate with a district’s attempt to redress identified deficiencies in an offered program run the risk of not being awarded tuition reimbursement on equitable grounds (see Application of the Bd. of Educ., Appeal No. 04-045). Under these circumstances, the district appropriately responded to the parents' notice of dissatisfaction, and the parents' failure to pursue their claims until after the conclusion of the school year acted to prejudice the district's ability to correct any alleged deficiencies in the recommended program with the parents during the school year. Petitioners were fully aware of their due process rights, having invoked their rights the prior school year.  Under the circumstances, petitioners' claims regarding the 2003-04 school year are untimely under both the statute of limitations analysis and a laches analysis.

            I have considered petitioners’ remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.