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PHILLIPS v. BOARD OF EDUC. OF THE HENDRICK HUDSON

January 2, 1997

WILLIAM PHILLIPS and LINDA PHILLIPS, on behalf of JOCELYN PHILLIPS, Plaintiffs, against THE BOARD OF EDUCATION OF THE HENDRICK HUDSON SCHOOL DISTRICT, Defendant.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 William and Linda Phillips ("the Phillips") bring this action on behalf of their daughter, Jocelyn, seeking reimbursement of tuition and other expenses from the Board of Education of the Hendrick Hudson School District ("Board") under the Individuals with Disabilities Education Act ("the Act" or "IDEA"), 20 U.S.C. § 1400 et seq.

 Pursuant to the Act, plaintiffs' claim was considered at a hearing before an independent hearing officer ("IHO"), whose decision was reviewed by a state review officer ("SRO"). The Phillips seek reversal of the SRO's determination denying them tuition reimbursement for Jocelyn's education at a specialized, non-approved, see 20 U.S.C. § 1401(a)(18)(A), private school for the years 1992-93, 1993-94 and 1994-95 and tutoring and counseling expenses for 1991-92. The Phillips also assert that the Board violated the due process provisions embodied in the Act. See 20 U.S.C. § 1415(b). The Board counterclaims asserting that the SRO erred in finding the Board's recommended program for Jocelyn for the 1994-95 school year inappropriate.

 Before this Court is defendant's motion for summary judgment, pursuant to Fed.R.Civ.P. 56, on both plaintiffs' claim and defendant's counterclaim. For the reasons stated below, defendant's motion is granted in part and denied in part.

 BACKGROUND

 The central purpose of IDEA is to provide handicapped children with a "free appropriate public education." 20 U.S.C. § 1412(1). The Act embodies dual interests of Congress, first that handicapped children should not unnecessarily be excluded from activities with their non-handicapped classmates and second that the special needs of handicapped children are properly met. See Board of Educ. of the Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 179, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982). Consistent with these interests, the Act seeks to facilitate the education of handicapped children in public schools, but allows for private school placement when a public system is unable or unwilling to meet a child's appropriate needs. Florence County School Dist. Four v. Carter, 510 U.S. 7, 126 L. Ed. 2d 284, 114 S. Ct. 361 (1993); School Committee of the Town of Burlington v. Department of Educ., 471 U.S. 359, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1985). In certain limited situations parents who unilaterally place their child in a private school which has not been approved by the "local education agency," see 20 U.S.C. § 1401(a)(18)(A), may be reimbursed for tuition costs at that school. Carter, 510 U.S. at 13-14.

 In order to provide handicapped children with a "free appropriate public education," the Act establishes a number of substantive and procedural requirements. Among those requirements is the creation of an "individualized educational program" ("IEP") which outlines the child's present educational performance, annual goals, specific educational services to be provided, the projected date of initiation and duration of those services and objective criteria and evaluation procedures. 20 U.S.C. §§ 1401(18), 1401(19).

 Among its procedural safeguards, the Act gives the child's parents or guardian the right to "present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(1)(E). Such complaints are heard at an "impartial due process hearing" conducted by the State or local educational agency or intermediate educational unit. 20 U.S.C. § 1415(b)(2). When the hearing is conducted by a local agency or intermediate unit, as occurred in this case, the Act gives the State educational agency the power to hear appeals from the hearing and to "conduct an impartial review of such hearing . . . [and] make an independent decision upon completion of such review." 20 U.S.C. § 1415(c). The Act provides for an additional tier of review, giving a party aggrieved by the findings and decision of the State educational agency the right to bring a civil action in state or federal district court. See 20 U.S.C. § 1415(e).

 An IEP was first prepared for Jocelyn on May 12, 1992 for the remainder of the 1991-92 school year. Based on testing and evaluation conducted by the Board's Committee on Special Education ("CSE"), Jocelyn was classified as learning disabled. The CSE recommended that she continue in her then current public school placement in "regular education programs" and that she spend some time in the school's "resource room." At that time, Jocelyn was in the fourth grade at Furnace Woods Elementary School ("Furnace Woods"). By the time the IEP was prepared for Jocelyn, the Phillips had already, by a April 2, 1992 letter, notified the Board that Jocelyn would be attending private school for the 1992-93 school year. On June 30, 1992, a second IEP was prepared for Jocelyn, presumably for the 1992-93 school year.

 Beginning in May 1992, the Phillips made a number of requests to the Board for tuition reimbursement, reimbursement for counseling and tutoring services and transportation to Windward. The requests for transportation were approved while the other requests were denied. Though the Phillips first began to complain about the Board's handling of Jocelyn's education in 1989, they did not make their first formal complaint to the IHO for nearly five years -- in January 1995.

 In response to the January 1995 complaint, a five-day hearing was conducted by an Impartial Hearing Officer (IHO) during February and March 1995. The IHO concluded that the services provided by the Board for Jocelyn were inappropriate and that the services obtained by the Phillips, namely the program at Windward, were appropriate. Accordingly, the IHO granted the Phillips reimbursement for tuition paid to Windward for 1994-95, but denied tuition reimbursement for 1992-93 and 1993-94 and reimbursement for tutoring and counseling services for 1991-92, relying on the doctrine of laches and finding that the Phillips failed to make complaints regarding the IEPs developed for 1991-92, 1992-93 and 1993-94 in a timely fashion. The Board then appealed to the State Education Department and the Phillips cross-appealed the denial of tuition reimbursement for 1992-93 and 1993-94 and reimbursement for tutoring and counseling services for 1991-92.

 The SRO hearing the appeal for the State Education Department reversed the grant of tuition reimbursement for 1994-95, finding the IHO failed to consider properly the Act's preference that a child with disabilities be placed in the least restrictive appropriate environment and that the record did not support a finding that Jocelyn's needs, "could not have been met in a less restrictive setting than ...


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