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October 3, 1997

WALTER WENGER, individually and as a parent and natural guardian of his son, Steven Wenger; GERALDINE WENGER, individually and as a parent and natural guardian of her son, Steven Wenger, Plaintiffs,
CANASTOTA CENTRAL SCHOOL DISTRICT; DONALD J. HARVEY, individually and as Chairman of the Committee on Special Education for the Canastota Central School District; CRAIG KING, individually and as Superintendent of the Canastota Central School District, Defendants.

The opinion of the court was delivered by: SCULLIN


 Plaintiffs Walter and Geraldine Wenger *fn1" bring this action pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. §§ 794 et seq., seeking review of a determination by the state review officer that Defendant Canastota Central School District ("CCSD") was not obligated to provide compensatory special education and related services to their son Steven, even though it had failed to provide Steven with a free appropriate public education. The Plaintiffs also claim that they are entitled to compensatory damages under the IDEA and Section 504, and punitive and compensatory damages for the alleged violation of the Due Process Clause of the Fourteenth Amendment by Defendants CCSD, Harvey, and King (collectively, the "Defendants"). *fn2" Presently before the Court is a motion for summary judgment brought by the Defendants pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 In March 1991, when Steven was fifteen years old, he was seriously injured in an automobile accident, sustaining multiple trauma, including a severe head injury. Since that time, Steven has remained in a coma, classified as traumatic brain injured. *fn3" After Steven's initial hospitalization, he was transferred to a rehabilitation facility in Pennsylvania.

 On September 17, 1991, the Plaintiffs referred Steven to the CCSD's committee on special education ("CSE") for an individual evaluation and determination of Steven's eligibility for special education programs and services. On March 20, 1992, the Plaintiffs consented to an evaluation of Steven to be conducted by the CSE. On March 26, 1992, CCSD's school psychologist, speech pathologist, and occupational therapist evaluated Steven in Pennsylvania.

 On April 15, 1992, the CSE met with the Plaintiffs and the Plaintiffs' attorney to review the evaluation data and to prepare an individualized education program ("IEP") for Steven. The CSE recommended that Steven receive a total of two hours per day of special services, including special education, speech/language therapy, and physical and occupational therapy. The Plaintiffs accepted the proposed IEP, and CCSD approved the IEP on May 13, 1992.

 Thereafter, CCSD attempted to arrange for delivery of the IEP services by contract with a Pennsylvania school district. However, on May 27, 1992, Steven was transferred to Crouse-Irving Memorial Hospital in Syracuse, where he underwent a cranioplasty and had a shunt inserted. In June 1992, following his recovery from surgery, Steven was transferred to St. Camillus Health and Rehabilitation Center in Syracuse. In July 1992, Steven was again admitted to Crouse-Irving. Also at this time, the CSE chairperson received approval from Steven's doctors in Pennsylvania and New York to provide the services set forth in the IEP. Thereafter, a special education teacher employed by the Board of Cooperative Educational Services of Onondaga, Cortland, and Madison Counties ("BOCES") began providing special education to Steven on behalf of the CCSD.

 By letter dated November 19, 1992, the Plaintiffs expressed their concern that the CCSD (through its agent BOCES) was failing to provide Steven with some of the services set forth in Steven's IEP, and requested an impartial hearing to address this failure. On November 24, 1992, the CCSD appointed a hearing officer, who granted the Plaintiffs' request to delay the hearing so that the Plaintiffs could review materials and prepare for the hearing. By letter dated December 10, 1992, a BOCES administrator informed the CSE chairperson that BOCES would discontinue providing services to Steven until Crouse-Irving's doctors and staff provided BOCES with information concerning Steven's medical condition and how services could be provided at optimum conditions.

 The Plaintiffs' hearing was scheduled to begin on February 24, 1993, but the parties entered into a stipulation pursuant to which the Plaintiffs agreed to withdraw their request for a hearing and the CCSD agreed to use its best efforts to implement Steven's IEP. By letter dated March 19, 1993, the Plaintiffs changed their minds and asked the hearing officer to reschedule the hearing. The hearing was held on April 23, 1993. At the hearing, the CSE chairperson testified that Steven was not receiving services pursuant to his IEP because BOCES had not received the information about Steven's medical condition from Steven's doctors.

 In a decision dated June 15, 1993, the hearing officer held that Steven's IEP was not prepared with sufficient information to allow teachers and service providers to plan appropriate programs for Steven. The hearing officer directed the CSE to prepare a new IEP for the 1993-94 school year. The Plaintiffs appealed the hearing officer's decision to the state review officer ("SRO") because the hearing officer failed to address their contention that the CCSD failed to provide the services included in Steven's IEP.

 In a decision dated August 26, 1993, the central issue before the SRO was whether the "CCSD provided the services set forth in Steven's IEP." While finding that the CCSD had failed to provide services set forth in Steven's IEP, the SRO denied the Plaintiffs' request for compensatory special education and related services. *fn4" On December 27, 1993, the Plaintiffs filed the present action.


 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted if, when viewing the evidence in a light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 457, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992); Commander Oil v. Advance Food Serv. Equip., 991 ...

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