The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Amy French, a person with a disability ("Plaintiff"), by her father Gary French, brought this action pursuant to the Individuals with Disabilities Act, 20 U.S.C. § 1400 et seq. ("IDEA"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"), 42 U.S.C. § 1983, and Articles 65 and 89 of the New York State Education Law, against Defendants, alleging that they failed to provide her with a free appropriate public education ("FAPE") for the 1995-1996, 1996-1997, 1997-1998, 1998-1999, 1999-2000, 2000-2001, 2001-2002 and 2002-2003 school years.
Currently pending before the Court is Defendant New York State Education Department's ("SED") motion to dismiss the complaint pursuant to Rules 12(b)(1), (2), (5) and (6) of the Federal Rules of Civil Procedure. Also pending before the Court is Defendants Fayetteville-Manlius Board of Education ("FM"), Martin, and Miori-Dinneen's motion for summary judgment on the grounds that (1) a parent may not appear pro se on behalf of a child, (2) Plaintiff's IDEA claims are without merit, (3) Plaintiff's ADA and Rehabilitation Act claims are without merit because Plaintiff fails to allege discrimination beyond a mere violation of the IDEA, (4) section 1983 does not afford the relief Plaintiff seeks, and (5) the state-law claims similarly lack merit as they are merely a codification of the IDEA. Also pending is Plaintiff's cross-motion, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, for leave to serve the complaint late. On July 7, 2010, the Court heard oral arguments in support of, and in opposition to the parties' motions and reserved decision. The following constitutes the Court's determination of the same.
Plaintiff was born on March 31, 1982. She was initially diagnosed with autism in 1985 and began attending school in the Jamesville-DeWitt School District in September 1988. See Affidavit of Gary French sworn to June 11, 2010 ("French Aff."), at ¶¶ 3-4. Plaintiff remained enrolled in the Jamesville-DeWitt School District until January 1995, at which time JamesvilleDeWitt's Committee on Special Education ("CSE") determined that she could no longer be educated in a public school setting and recommended her enrollment in residential placement. See id. at ¶ 4. At this point, Plaintiff's father transferred custody of Plaintiff to her nurse, who resided in the Fayetteville-Manlius School District (the "District"); and, in September 1995, Plaintiff began attending school in that school district.
Defendant FM's CSE developed an individualized education program ("IEP") for Plaintiff in October 1995. Plaintiff attended a middle school in the District until May 1996, when she was placed in a foster home in a neighboring district. After three weeks, she was placed in the home of another nurse in Defendant FM's district.
Plaintiff did not receive services during the summer of 1996 because Defendant FM contested whether Plaintiff was a resident of the District. Plaintiff's father initiated an appeal pursuant to New York Education Law section 310 to address the residency question; and, on October 17, 1996, the Commissioner of Education ordered Defendant FM to admit Plaintiff to its school tuition free pending a determination of the appeal.
The District's CSE met on October 21, 1996, with Plaintiff's father in attendance, to develop an IEP for Plaintiff. On December 2, 1996, Plaintiff returned to school.
On March 10, 1997, Plaintiff's nurse resigned; and Plaintiff returned to her father's home outside the District but continued to attend school in the District. Defendant FM asked the Commissioner to find that Plaintiff was no longer a district resident and that her father was liable for her tuition through the end of the 1996-1997 school year. The Commissioner ruled on September 11, 1997, that Plaintiff had not been a resident of the District during the 1996-1997 school year.
Plaintiff and her father moved back into the District on September 20, 1997, and Plaintiff's father informed Defendant Martin of their change in residency. Initially, Plaintiff's father refused to provide Defendant FM with the requested proof of residency. Eventually, on December 1, 1997, Plaintiff's father wrote Defendant Martin and enclosed several documents to verify his new residence. Defendant FM held a residency hearing on December 23, 1997, where it was determined that Plaintiff was a resident of the District.*fn1
Thereafter, on January 5, 1998, Plaintiff's father met with Defendant Miori-Dinneen to discuss Plaintiff's placement. After several disagreements regarding Plaintiff's evaluation/placement, Defendant Miori-Dinneen asked Plaintiff's father to attend a CSE meeting to discuss Plaintiff's re-evaluation and her transition back to school. The meeting was eventually held on February 27, 1998, and the district developed an "initial placement" IEP. Plaintiff's father refused to attend these meetings and instead, on March 3, 1998, submitted a request for an impartial hearing. The CSE offered home instruction to Plaintiff, which Plaintiff's father declined. Thereafter, the CSE offered to convene a meeting to discuss a program for Plaintiff, which Plaintiff's father also declined. Plaintiff's father, however, eventually withdrew his request for an impartial hearing.
The CSE did not develop an IEP for the 2000-2001 school year because of frequent disagreements and postponed or cancelled meetings. On September 12, 2001, Plaintiff's father requested an impartial hearing alleging that, from 1996-2001, Defendant FM had not offered Plaintiff a FAPE.*fn2
A. The Impartial Hearing Officer's Decision
The due process hearing commenced on May 20, 2002, before an impartial hearing officer ("IHO"). On May 30, 2002, the IHO ruled that the status quo IEP was the 1996 - 1997 IEP and that this IEP called for homebound instruction. The IHO also granted Plaintiff's father's request that the homebound instruction commence with only a certified special education teacher and directed Defendant FM's CSE to meet and discuss services for Plaintiff.
In a subsequent decision dated January 16, 2003, the IHO denied Plaintiff's father's request for compensatory education, holding that the District had demonstrated a substantial willingness to provide Plaintiff with a FAPE. Specifically, the IHO held that [i]n review of the specifics of Mr. French's complaint, above, I have identified a number of procedural violations over the course of [the case's] time span. None of these violations can be thought, by themselves, or in toto, to have caused Plaintiff to miss out on several years of education. In addition, and as the District points out . . . a hearing officer confronted by a request for compensatory services must also review the balance of equities that presents itself. My review of the facts of the case leads me to the conclusion that this balance favors the District. In many instances, the District demonstrated a flexibility and willingness to accommodate its practices to Mr. French's expressed concerns. There is no doubt that it did not do so in all instances, but the law does not require it to do so. Mr. French, on the other hand, failed to take advantage of some of that flexibility.
It is undisputed that, beginning in the summer of 1997 and almost continuously since that time, Plaintiff French has not received the education that the IDEA envisions for her. However, the facts of the case do not allow the conclusion that this failure can be traced back to any determinative violation of the law by the District. On the contrary, for the most part, the District has demonstrated a substantial willingness to provide Plaintiff with a free appropriate public education foreseen by the Act. As a result, Mr. French's request for compensatory education is denied.
See Affidavit of Jonathan B. Fellows ("Fellows Aff.") at Exhibit "A" ("IHO Decision"), at 54-55.
B. The State Review Officer's Decision
Plaintiff's father appealed the IHO's decision.
On appeal, the state review officer ("SRO") dismissed the claims for the first five school years at issue, holding that these claims were barred by a one-year statute of limitations. See id. at Exhibit "B" ("SRO Decision"), at 3-4. The SRO ruled that Plaintiff's father knew or should have known of his due process rights prior to filing his impartial hearing request on September 12, 2001. See id. at 4. The SRO noted that Plaintiff's father's knowledge of his due process rights was evidenced by his request for an impartial hearing that he had filed on March 5, 1998, and then later withdrew.
Likewise, the SRO dismissed the challenges to the IEPs that were developed following the commencement of the September 2001 hearing. Specifically, the SRO noted that
Petitioner amended his initial complaint to include challenges to the appropriateness of the IEP's developed at CSE meetings conducted on November 14, 2001 and February 5, 2002. In this case it appears that the District was flexible and willing to accommodate petitioner's concerns. The minutes of the November 14, 2001 CSE meeting indicate that the CSE reviewed the petitioner's document entitled "Parent Considerations," discussed the need for updated evaluations, and recommended a home based program until those evaluations could be conducted. . . . The program included two hours per day of direct instruction and related services of occupational therapy, physical therapy, and speech therapy once a week. . . . The District asserts that it has "stood ready, willing and able, through its CSE, to implement a program" . . . . Although the record indicates that the student did not receive educational services during the 2001-02 school year, I find that the student's exclusion from school was not caused by District error. On the contrary, the District created an IEP that it was willing to implement.
Plaintiff's father commenced this action on behalf of Plaintiff on April 16, 2004, ...