Board of Regents to consider change in statute of limitations

Presently, Federal law applies a two-year statute of limitation, except where the state prescribes an explicit time limitation for requesting a hearing. At its Monday meeting, the NYS Board of Regents will consider a State Ed proposal to shorten the statute of limitation. State Ed seeks to “[a]mend Education law to provide that a due process hearing must be requested within one year of the date the parent or district had knowledge of the issue, with exceptions as required by federal law and with an exception that for parents seeking tuition reimbursement, such request must be made within 180 days of the date the parent placed his/her child in the private school.” State Ed reasons that “[a] statute of limitations of more than one year to request an impartial hearing is programmatically inappropriate since IEPs are developed for one year. IDEA due process procedures should be designed to resolve disputes within one year so that any resulting changes needed to assure that the student receives a free appropriate public education are made in time to benefit the student.” I’m sure that State Ed also reasons that shortening the statute of limitations on reimbursement claims would be a much easier way to nip in the bud the financial cost of private school reimbursement, rather than focusing on the rampant problems in school districts, NYC in particular, which problems have given rise to these reimbursement claims.

See here for a list of the many items that the Board of Regents will be considering changing on Monday. Items include CSE composition, evaluation of preschoolers, 3602-c services and notice timelines. Note also that some of these items would require legislative change. The proposed change to the statute of limitations is one of the items that would require legislative action.

Update (3/7/11): Due to inclement weather, the Board of Regents postponed discussion of the above items until its April meeting.

3rd Circuit rules that IDEA statute of limitations applies to claims that accrued prior to enactment

STEVEN I. v. CENTRAL BUCKS SCHOOL DISTRICT, (3rd Cir. 2010):

The 3rd Circuit Court of Appeals held that the 2 year IDEA statute of limitations applies to compensatory education claims that are brought after the statute's effective date but that arise from conduct that occurred before the statute's passage. The Court reasoned that the time period between IDEA 2004's enactment and the effective date of its statute of limitations (7 months) gave the parent ample time to become aware of the change in the law and a reasonable opportunity to file a claim based on conduct dating back much further than permitted under the 2 year statute of limitations.

New York State Board of Regents approves controversial proposals

The New York State Board of Regents supported the following special education cost containment proposals and directed State Education Department (SED) staff to develop proposed regulatory language that would:
● Authorize school districts to add up to two additional students to integrated co-teaching classes, upon documented educational justification;
● Repeal the minimum service delivery requirements for speech and language; and
● Repeal the requirement that each student with autism receive instructional services to meet his/her individual language needs at a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six.

In addition, the Regents also endorsed the following legislative proposals:
● Establish a one-year statute of limitations to request an impartial hearing and that requests for tuition reimbursement for unilateral parent placements in private schools be presented not more than 180 days from the placement by the parent; and
● Repeal the authority of the Commissioner to appoint students to State-supported schools

The Regents did not support legislative action that would repeal the requirement for dissemination of copies of students’ individualized education programs (IEPs) to each regular education teacher, special education teacher, related service provider and other service provider who is responsible for the implementation of the IEP. Rather, the Regents asked SED staff to provide more information on the number of districts currently providing electronic access to IEPs rather than providing paper copies.

For more information, the complete Regents discussion item can be found at:
http://www.regents.nysed.gov/meetings/2010Meetings/June2010/0610vesidd2.htm

New York State Ed continues to hammer away at parent and student rights

NYSED is pushing the Board of Regents to support legislation and regulatory changes to, among other things, shorten the statute of limitations from the present 2 years to 180 days for reimbursement claims and 1 year for all other claims. See NYSUT memo at http://www.nysut.org/bulletins_15009.htm for a complete listing of the issues as well as NYSUT’s position on the issues.

District Court overrules SRO on determination of Statute of Limitations

C.B. v. PITTSFORD CENTRAL SCHOOL DISTRICT (W.D.N.Y. 4-15-2010): Parents sought reimbursement for two years at a private school. The IHO denied the claim. The SRO affirmed the denial as did the District Court. The parents also sought additional services for the failure to provide a FAPE in the year prior to the unilateral placement. This claim had been dismissed by the IHO and SRO as being beyond the applicable statute of limitations. Plaintiff parent sent an email in November 2005 complaining about the district's pace in implementing one aspect of the IEP. SRO Paul Kelly held that that triggered the accrual of the claim. The Court disagreed stating that “[t]he fact that Plaintiff sent an email in November 2005 complaining about the district's pace in implementing one aspect of the IEP does not support the conclusion that she knew about the injury of which she now complains.” Plaintiff alleged that the 2005-2006 IEP was deficient, because it did not provide "support for [EB's] deficits in executive functioning." Plaintiff maintained that she first became aware of such deficiency in March 2006. The Court found that the 2005-2006 claim for additional services accrued in March 2006 and that thus, the parents claim was timely filed.

Impact of legislative stalemate on special education law in New York State

As those of us in New York State are aware, legislative activity in Albany appears to have ground to a halt. Unfortunately, many state laws governing special education expired today. There is no indication that the legislature took action to extend these provisions. Of particular note, Education Law §4404(3)(a) expressly provided a 4 month statute of limitations for appealing an adverse State Review Office decision. This section expired today. In its stead is a provision that does not include a period of time during which an appeal must be commenced, thus adding an element of uncertainty as to whether the 4 month period contemplated by Article 78 or the 3 month Statute of Limitations provided by the IDEA would apply.

Next, students with IEPs who attend private schools are presently entitled to special education services from the district of location of the private school. As of July 1, it appears that the district of residence will be the responsible district.

NYS: legislative developments

http://assembly.state.ny.us/leg/?bn=A08398(memo); http://assembly.state.ny.us/leg/?bn=A08398&sh=t(text)

A bill has been introduced that includes a number of significant changes affecting the rights of parents of kids in special education. The following are highlights:

1. Section 8 would amend S 4404(1)(a) of the Education Law to create an exception to the two year statute of limitations for due process for tuition reimbursement claims for unilateral parental placements. The bill would require that a complaint seeking tuition reimbursement for the unilateral parental placement of a student in a private school be presented not more than one hundred and eighty days from the unilateral placement by the parent or person in parental relation in the private school. This section would take effect September 1, 2009.

2. elimination of the separate consent requirement for the initial provision of the summer component of a 12 month program

The following proposed changes affect privately placed kids and their parents:

1. the Education Law 3602-c deadline for written request for services would be changed to April 1 for parents of kids who have already had an IEP developed and implemented
2. mandatory mediation prior to hearing; where a due process complaint involveschild find requirements, the federal rules would apply and mediation would continue to be optional.
3. school district of location would now be able to provide a 12 month program(privately placed kids)
4. This bill would also add language to clarify, both for July and August services and services provided during the regular school year, that a student parentally placed in a nonpublic school has no entitlement under S 3602-c to the provision of a special class or integrated co-teaching services. Section 3602-c is intended to authorize the provision of special education programs and services to supplement the regular educa- tion instruction provided by the nonpublic school. Unlike related services, resource room services, consultant teacher services and supplementary aids and services, which are designed to supplement regu- lar education instruction, a special class or integrated co-teaching services necessarily involves a teacher providing a portion of the core regular educational program of the student. Such core instruction should be provided by the nonpublic school, and would be both costly and burdensome for the school district of location to provide.
5. S4402(4)(d) of the Education Law would be amended to provide thatwhere the board of education of a student’s school district of residence provides transportation up to a distance of fifty miles to and from a nonpublic school which a student identified with a disability attends for the purpose of receiving services or programs from the nonpublic school which are similar to special education programs and services recommended for the student by the district of residence, the student would not be entitled to special education programs and services from the school district of location pursuant to S 3602-c of the Education Law . As a condition of eligibility for such transportation, the parent or person in parental relation to the student would be required to consent to the provision of notice by the school district of residence to the chairperson of the committee on special education of the school district in which the nonpublic school is located. Such notice must be provided by the district of residence no later than thirty days after commencing transportation services.

Unless otherwise indicated in the statute, the changes would take effect on June 30, 2009. Some of the changes to 3602-c would take effect in 2010.

Counterclaim is not subject to IDEA statute of limitations

Jonathan H. v. The Souderton Area School Dist., 562 F.3d 527 (3rd Cir. 2009): School district's counterclaim, challenging award of compensatory education in IDEA action, was not “action” within meaning of limitations period applicable to party bringing civil action under IDEA, and, thus, counterclaim could be brought beyond IDEA's 90-day limitations period.

Deadline to file SRO appeal may be one day longer than you thought

SRO 08-116: Generally speaking a party has 35 days to file an appeal plus 4 additional days if the decision was mailed. When does the clock start running? In SRO 08-116, Paul Kelly stated that
“as a general rule, in the absence of evidence in the hearing record identifying the date of mailing, the date of mailing is presumed to be the next day after the date of the decision (see Application of a Student with a Disability, Appeal No. 08-065).” The date of mailing and the following 4 days are then excluded from the calculation(8 NYCRR 279.2(b)).

Important case to counter district motions to dismiss hearing requests

Somoza v. NYC,__F.3d__(2nd Cir. 2008):

Parent sought compensatory services for her 23 year old alleging a denial of FAPE for the entire time she had been in the NYC school system. NYC had “voluntarily” agreed to an extra year of private schooling in exchange for a release of all claims. That year was due to expire in June of 2006. The parent argued that the claim should have survived because there was no relief available that was not already being provided(because the child was at the private school at district expense). The District Court agreed reasoning that claim did not accrue until after the year in the private school. The Second Circuit reversed holding that the claim accrued during the 02-03 school and that, therefore, the claim was barred under any of the various possible statutes of limitation.

Most importantly for ongoing purposes, the Second Circuit stated that 

the fact the DOE voluntarily provided the requested educational services beyond the term of plaintiff's statutory entitlement does not “deprive a federal court [or administrative agency] of its power to determine” the nature of the entitlement at issue. Friends of the Earth Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000); see also New York Pub. Int. Res. Group, Inc. v. Johnson, 427 F.3d 172, 185 (2d Cir.2005). Plaintiff's allegations that, in the past, the DOE had denied her the FAPE to which she was entitled presented a live and “concrete dispute affecting cognizable current concerns of the parties” at the time that plaintiff arrived at this understanding. Ehrenfeld v. Mahfouz, 489 F.3d 542, 546 (2d Cir.2007) (internal quotation marks omitted).

As previously noted in this blog, in a number of cases, districts have been successful in convincing hearing officers to dismiss hearing requests based upon their representations of willingness to do what the parents are requesting. The cases were dismissed despite that there was no settlement agreement, no consent decree and no order of the IHO compelling the relief.  Not surprisingly, SRO Paul Kelly affirmed each of these decisions(SRO 07-122, 08-008, 06-109). I have appealed SRO 07-122 and 08-008 to federal court, but we are at the very early stages of the litigation. The Somoza case is very strong authority in favor of our position that the parents were wrongfully deprived of due process and that the IHO had the “power to determine the nature of the entitlement at issue”.