566 N.E.2d 667
No. 90-667Supreme Court of Ohio.Submitted November 13, 1990 —
Decided February 13, 1991.
Schools — Education of handicapped children — Jurisdiction of hearing officer to entertain hearing to determine the appropriateness of the Individualized Education Program after child reaches age twenty-two.
APPEAL from the Court of Appeals for Cuyahoga County, No. 59278.
Appellant, Thomas R. Theado, was appointed as an impartial hearing officer pursuant to R.C. 3323.05(E) and Section 1400 et seq., Title 20, U.S. Code, to hear a complaint filed by the parents of a handicapped child to determine the appropriateness of the Individualized Educational Program (“IEP”) instituted by the child’s school district on his behalf.
The hearing was requested a day before the student turned twenty-two years of age. The state is required to provide a proper education for handicapped students up to the age of twenty-two. R.C. 3323.01.
The Board of Education of the Strongsville City School District, appellee, filed a complaint for a writ of prohibition in the court of appeals alleging that the hearing officer was without jurisdiction to entertain the hearing because the student was over the age of entitlement.
The court of appeals granted the writ of prohibition, basing its ruling on the recent United States Supreme Court decision i Honig v. Doe (1988), 484 U.S. 305, in which the court ruled that the case was moot as to one of the respondents because he was over the age to which the Act applied.
This cause is before this court upon an appeal as of right.
Weston, Hurd, Fallon, Paisley Howley, Mary A. Lentz and David W. Leopold, for appellee.
Thomas R. Theado, pro se.
Robert S. Mills and Kristin E. Hildebrandt, urging reversal fo amicus curiae, Ohio Legal Rights Service.
Per Curiam.
The Education of the Handicapped Act (Section 1400 et seq., Title 20, U.S. Code) requires, as a condition of receiving federal financial assistance, that the school district assure a free appropriate public education for all disabled children within its jurisdiction.
The court of appeals considered only the issue as to whether appellant had jurisdiction to hold the hearing, in light o Honig, supra. It interpreted Honig as being dispositive of this action since the student in the instant case, like the student i Honig, was over twenty-one years of age, leaving the hearing officer without jurisdiction. However, the court in Honig never addressed the issue of “compensatory education.” The issue i Honig was whether a student could be suspended while expulsion proceedings were pending.
Federal courts before and after Honig have granted what has been called “compensatory education,” in which the school district has been required to provide further education beyond the normal age to which the Act applies.
Compensatory education has been granted to those overage students who have been able to show that the district
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had failed to provide a free appripriate education during the years it was obligated to do so.
We agree with the United States Court of Appeals in Lester H.
v. Gilhool (C.A. 3, 1990), 916 F.2d 865, 872, which held tha Honig does not preclude an award of compensatory education beyond the age of entitlement for the denial of an appropriate education before age twenty-two.
It is thus possible that the hearing officer could have ordered compensatory education after a finding that the student did not receive a free appropriate education.
Accordingly, the court of appeals’ ruling that the hearing officer was without jurisdiction is error since it precluded him from considering the issue of possible compensatory education.
Since we find that appellant had jurisdiction to conduct the hearing on this substantive basis, we need not address his other arguments based on procedural grounds.
The judgment of the court of appeals is reversed, and the writ of prohibition is denied.
Judgment reversed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.