A poor IDEA: statute of limitations decisions cement second-class remedial scheme for low-income children with disabilities in the Third Circuit.

• Author: Valverde, Jennifer Rosen
• Position: Individuals with Disabilities Education Act - III. Application of the IDEA 2004's Statute of Limitations to Compensatory Education Claims in the Third Circuit B. Courts' Misapplication and Overly Restrictive Interpretation of the IDEA 2004's Statute of Limitations and Its Exceptions in Compensatory through Conclusion, with footnotes, p. 635-668

2. Courts' Misapplication and Overly Restrictive Interpretation of the IDEA 2004's Statute of Limitations and its Exceptions in Compensatory Education Matters

   The Third Circuit's distinct treatment of the remedies of tuition reimbursement and compensatory education persisted until the implementation of the 2004 IDEA amendments, when Congress added a statute of limitations to the Act. (208) The statute of limitations sets a time limit on the filing of claims regarding special education identification, evaluation, placement, or the provision of a FAPE. (209) The amended IDEA provides, in pertinent part:

   (C) Timeline for requesting hearing. A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows. (210)

   The Act delineates two exceptions to the timeline:

   (D) Exceptions to the timeline. The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to--

   (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or

   (ii) the local educational agency's withholding of information from the parent that was required under this subchapter to be provided to the parent. (211)

   Congress also amended the procedural safeguards section concerning the opportunity for a party to file a complaint, requiring that that states establish and maintain procedures including;

   (6) An opportunity for any party to present a complaint--

   (A) 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; and

   (B) which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this subchapter, in such time as the State law allows, except that the exceptions to the timeline described in subsection (f)(3)(D) shall apply to the timeline described in this subparagraph. (212)

   The new statutory language superseded the Third Circuit's decision in Bernardsville Board of Education v. J.H. (213), by creating a two-year statutory time limit on reimbursement filings. It also overrode portions of the court's earlier decision in Ridgewood (214) by implementing a statute of limitations on the filing of compensatory education claims at the administrative level. Litigation following implementation of this new provision initially focused on retroactive application of the statute to claims arising prior to the IDEA 2004's passage but filed after the Act's effective date. (215)

   In the last few years, the focus of litigation in Third Circuit courts has shifted to the application of the statute of limitations to compensatory education claims and parsing out the provision's exceptions. These recent federal district and appellate court decisions, discussed in detail below, demonstrate courts' confusion and resultant misapplication of the statute of limitations, and their overly restrictive interpretation of the exceptions. The decisions further constrict the availability of compensatory education as a remedy, to the particular detriment of low-income children with disabilities, and exhibit an almost complete reversal in the Third Circuit's prior broad approach to compensatory education claims.

   1. Application of the IDEA 2004's Statute of Limitations

      In applying the IDEA 2004's statute of limitations, Third Circuit courts err in two respects, both of which result in improper restrictions on the consideration of compensatory education claims. First, several courts misstate the statute of limitations as limiting compensatory education claims to actions that occurred no more than two years prior to the date the complaint was filed. (216) Second, some courts, while properly tolling the statute of limitations from the date the plaintiff knew or should have known about the alleged action forming the basis of the complaint (hereinafter referred to as the "knew or should have known" date or "KOSHK" date), erroneously restrict consideration of compensatory education claims to a maximum of two years prior to the KOSHK date, regardless of the actual scope and duration of the claim. (217) The first restriction reflects a misreading of the statute, while the second reflects statutory misinterpretation and contravenes the plain meaning of the statute, the legislative history of the Act, (218) and Third Circuit precedent.

      1. Courts Improperly Restrict Adjudication of Compensatory Education Claims to Two Years Prior to the Date the Complaint Was Filed

         As previously stated, the IDEA 2004's statute of limitations, set forth at 20 U.S.C. [section] 1415(f)(3)(C), requires a party to file a complaint within two years of the date the parent or public agency knew or should have known about the alleged action (219) that forms the basis of the complaint. Several courts, however, (in dicta) have misread [section] 1415(f)(3)(C) together with [section] 1415(b)(6)(B) (procedural safeguard concerning the filing of a complaint) as barring courts from adjudicating any IDEA claims that occurred more than two years prior to the date the petition was filed. (220) For example, in H.M. ex rel. B.M., v. Haddon Heights Board of Education, the court incorrectly states that because the plaintiffs filed their petition on June 5, 2008, they could seek recovery only for claims arising after June 5, 2006, (221) two years prior to the date of filing (as opposed to the KOSHK date). The court similarly errs in L.G. and E.G. ex rel. E.G. v. Wissahickon School District, stating, "Under IDEA'S amended statute of limitations, a court may consider alleged denials of a FAPE occurring for a two-year period prior to parents' request for a due process hearing." (222) Significantly, the Third Circuit, in D.K. v. Abington School District, reinforces this misreading of the statute when it states, "Plaintiffs do not dispute that because they requested a due process hearing on January 8, 2008, the statute of limitations generally would limit their claims to the School District's conduct after January 8, 2006." (223)

         Even if the courts read [section] 1415(f)(3)(C) together with [section] 1415(b)(6)(B), and interpreted the language as restricting adjudication of all compensatory education claims regardless of their scope or duration (a proposition that this Article does not advocate, except for illustrative purposes only), courts would have to consider, at the very least, all claims arising during the two years prior to the KOSHK date, (224) not the date of filing the petition. (225) To illustrate the distinction, consider a parent who learns of an ongoing FAPE violation causing harm to his child on January 1, 2010 (the KOSHK date) and the violation had occurred in a continuous manner for three years prior to that time. If the parent files a complaint within the two-year statute of limitations period (i.e., by January 1, 2012), he should be permitted to date the claim for compensatory education at least as far back as January 1, 2008, two years prior to the KOSHK date. One court recently referred to this interpretation as the "2+2" analysis: "[I]t allows two years after the KOSHK date for a plaintiff to file a due process complaint, and the period of up to two years before the KOSHK date for which [sic] plaintiffs may allege IDEA violations occurred," allowing courts to consider, at most, a four-year IDEA claim. (226) In contrast, according to the H.M. and L.G. opinions, the parent could date the claim back to January 1, 2010 only (two years prior to the date of filing), which would deprive the child of two additional years of compensatory education. Although the courts' erroneous reading of the statute of limitations in these cases had no direct bearing on the resolution of the issues being litigated, it creates confusion and misleads other courts (227) and the public. (228)

      2. Courts Improperly Restrict Adjudication of Compensatory Education Claims to Two Years Prior to the KOSHK Date Regardless of the Scope of the Claim

         Courts' application of "2+2" analysis creates further confusion regarding the interrelationship of [section] 1415(f)(3)(C) and [section] 1415(b)(6)(B) and their application to compensatory education claims. Relying on "2+2" analysis, Third Circuit courts restrict consideration of compensatory education claims, and thus the scope of awards, to the two-year period prior to the KOSHK date, regardless of whether the claim began more than two years prior but was ongoing up to and during the two-year period and timely filed. (229) As discussed below, these decisions contradict the plain meaning of the relevant statutory provisions, evince a misinterpretation of the statute, contravene the legislative history of the IDEA, and negate years of Third Circuit precedent.

         Lower courts in two recent cases misconstrue the interplay of [section] 1415(f)(3)(C) and [section] 1415(b)(6)(B) as preventing courts from hearing any claims that predate the two-year period prior to the KOSHK date. In I.H. v. Cumberland Valley School District, the parent filed a petition, on August 25, 2010, seeking compensatory education for her child dating back to March 2007, three years prior. (230) The hearing officer determined that the parent's KOSHK date for purposes of the statute of limitations was June 8, 2010, (231) and thus limited the compensatory education claim to June 8, 2008, two years prior. (232) The district court affirmed, reasoning that while [section]...