COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: North Adams Public Schools
BSEA # 06-3571
RULING ON MOTION TO EXCLUDE CLAIMS PRIOR TO FEBRUARY 3, 2004
On April 12, 2006, North Adams Public Schools (North Adams) filed a Motion in Limine to Exclude All Claims Against it by John’s1 mother (Parent) Before February 3, 2004 . North Adams takes the position that since Parent’s Hearing Request was filed on February 3, 2006, the two-year statute of limitations pursuant to the federal special education statute precludes consideration of any claims prior to February 3, 2004.
On April 19, 2006, Parent filed her opposition, arguing that her claims fall within a statutory exemption to the two-year statute of limitations and further that the doctrine of continuing violation allows Parent’s claims prior to February 3, 2004 to be considered.
This ruling will address the applicability of the statute of limitations to the instant dispute, including the statutory exemption claimed by Parent and the applicability and relevance of the doctrine of continuing violation.
FACTS
Following a determination that John required a residential educational placement, North Adams and Parent sought to identify an appropriate placement. Inquiry and applications were made to several placements within Massachusetts and Vermont, but all were rejected “for one reason or another”. Parent’s exhibit B. The parties then began considering Franklin Academy, which is an unapproved program located in Connecticut.
There were various communications between the parties, regarding whether it would be appropriate for North Adams to reimburse Parent for her costs related to this program. The affidavit of North Adams’ then Director of Special Education (James Montepare) states that from March 2003 onward, it was “repeatedly stated to the Parents” and Parent’s attorney that North Adams had agreed to fund the placement “but only upon [the Massachusetts Department of Education (DOE)] approval” of Franklin Academy. Montepare affidavit at par. 8.
By letter of August 5, 2003 to Mr. Montepare, Parent requested mediation regarding the placement of John at the Franklin Academy. The letter explains what apparently she believed needed to be resolved: “I understand that the State of Massachusetts Department of Education may have some concern regarding reimbursement for tuition at Franklin Academy.” Parent’s exhibit C.
By letter of September 25, 2003 to North Adams, Parent’s attorney referenced a conversation between the parties indicating that there was a disagreement between the parties as to whether North Adams could appropriately reimburse Parent if DOE failed to approve the placement. The letter then stated that Franklin Academy would be providing paperwork necessary for approval by DOE and, assuming that the paperwork is in order, “I trust that you [North Adams] will then be able to reimburse [Parent].” Parent’s exhibit D.
In September of 2003, John began attending Franklin Academy and stayed there until March of 2004. Franklin Academy considered but declined to apply to DOE for approval, and North Adams never agreed to reimburse Parent for any of her tuition or other out of-pocket expenses associated with her son’s placement at Franklin Academy. As late as March of 2004, Parent believed that the paperwork approval process had not yet been completed. Parent affidavit at par. 11. On February 1, 2006, Parent filed with the BSEA a Hearing Request seeking to obtain an order requiring North Adams to reimburse Parent for these expenses.
DISCUSSION
It is not disputed that the relevant law is the statute of limitations contained within the federal special education statute (20 USC 1415(f)(3)). It states in 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 part, in such time as the State law allows. (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 part to be provided to the parent.
It is also not disputed that unless either a statutory exemption applies or the continuing violation doctrine allows for tolling of the statute, Parent’s claims are foreclosed for the period prior to February 3, 2004, which date is two years before the filing of the Hearing Request .
Parent’s first argument is that the statutory exemption in the last-quoted phrase above (20 USC 1415(f)(3)(D)(ii)) applies to the instant dispute. Parent takes the position that North Adams effectively withheld any final determination of its decision to deny reimbursement for the placement at Franklin Academy, thereby withholding information that Parent required to determine whether to file a Hearing Request .
Parent is correct that the above-quoted statutory language provides an exemption to the two-year statute of limitation if the school district withholds information from parents, but the statute makes clear that it is only particular kinds of information that must be provided by the school district in order to avoid the statutory exemption. The particular information that may not be withheld is described by the statute as “information . . . that was required under this part to be provided to the parent” (emphasis supplied).
The statutory phrase “this part” refers to part B of the federal special education statute. Part B is entitled “Assistance for Education of all Children With Disabilities” and is found at 20 USC 1411 et seq . Required information under “this part” would include, for example, a notice of procedural safeguards that the school district must provide to parents pursuant to 20 USC 1415(d).
Parent does not allege that any information that North Adams would have been required to provide pursuant part B of the federal statute was withheld from her. Parent’s only claim of withheld information pertains to information relevant to the willingness or ability of North Adams to reimburse her for expenses relevant to Franklin Academy. Parent has made no argument, nor am I aware of any that could be made under the facts alleged by her, that any of the information allegedly withheld would have been required to be provided to her pursuant to part B of the special education statute.
For these reasons, Parent’s argument regarding a statutory exemption to the statute of limitations fails.
Parent’s second argument is that the doctrine of continuing violation applies, thereby tolling the two-year statutory period for filing. Parent argues that North Adams’ alleged failure to provide information regarding reimbursement as well as North Adams’ alleged failure to provide FAPE to John continued until March 2004, thereby allowing Parent to file with the BSEA within two years of March 2004, which she did.
In light of this argument, the first point that needs to be considered is whether the doctrine of continuing violation applies within the context of the federal special education law. The continuing violation doctrine is an equitable exception that may allow a plaintiff to seek redress for “otherwise time-barred allegations if they are deemed part of an ongoing series of . . . acts.” O’Rourke v. City of Providence , 235 F.3d 713, 731-732 (1 st Cir. 2001). See also Provencher v. CVS Pharmacy, Div. of Melville Corp ., 145 F.3d 5, 14 (1st Cir. 1998).
Neither the First Circuit nor any other federal circuit court has addressed the question of whether or not this doctrine applies to special education disputes. The four federal district courts that have considered this issue are split, with two courts applying the doctrine ( SJB v. New York City Department of Education , 2004 U.S. Dist. LEXIS 13227 (S.D.N.Y. 2004); Vandenberg v. Appleton Area Sch. Dist ., 252 F. Supp. 2d 786, 789-793 (E.D.Wis. 2003)), and two courts rejecting the doctrine as inconsistent with an important purpose of the special education law, which is to resolve disputes promptly ( Hammond v. District of Columbia , 2001 U.S. Dist. LEXIS 25846 (D.D.C. 2001); Jeffrey Y. v. St. Marys Area School District , 967 F. Supp. 852, 855-56 (W.D.Pa. 1997)) .
I need not resolve the question of the applicability of the continuing violation doctrine to special education disputes in general because, for reasons explained below, even were I to find the doctrine to apply, Parent would not be entitled to relief under it.
In one of the two decisions applying the doctrine to special education ( Hammond v. District of Columbia , 2001 U.S. Dist. LEXIS 25846 (D.D.C. 2001)), the court explained that a continuing violation is “one that could not reasonably be expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period.”
The other decision applying the doctrine to special education ( Jeffrey Y. v. St. Marys Area School District , 967 F. Supp. 852, 855-56 (W.D.Pa. 1997) ) was guided by the Third Circuit Court of Appeals’ application of this doctrine to disputes under Title VII of the Civil Rights Act of 1984. If one turns to First Circuit case law under Title VII, one finds that the First Circuit similarly provides that a plaintiff will be barred from utilizing the continuing violation doctrine if, prior to the statute of limitations cutoff (which in the present dispute would be February 3, 2004), “the acts are sufficiently permanent to make the plaintiff aware of the need to assert his or her rights.” Rivera-Rodriguez v. Frito Lay Snacks Caribbean , 265 F.3d 15, 22 (1 st Cir. 2001).
The position of North Adams, which Parent asserts is unlawful, is that North Adams need not and would not reimburse Parent unless Franklin Academy was approved by DOE. Parent’s own documents in the instant dispute establish Parent’s knowledge of – and disagreement with – this position. Letters dated August 5, 2003 and September 25, 2003 indicate that Parent was aware that there was a disagreement regarding reimbursement to Parent and that North Adams was not willing to reimburse Parent without DOE approval of Franklin Academy. Parent’s exhibits C and D. See also Montepare affidavit at par. 8, making clear from North Adams’ perspective, that from March 2003 forward there were many discussions between the parties that North Adams would not reimburse without DOE approval of Franklin Academy.
Parent was, of course, hopeful that she would be able to persuade North Adams to change its mind, or that Franklin Academy would submit appropriate paperwork that would lead to approval by DOE, or that Parent would resolve this matter through mediation. Parent continued to hope that this matter would be resolved in her favor.
The important point is that there can be little doubt that by August 5, 2003, and certainly September 25, 2003, Parent was aware of North Adams’ refusal to ensure FAPE, for it would not place John at Franklin Academy (or any other school), nor would it reimburse Parent without DOE approval of Franklin Academy. In the words of the First Circuit, the alleged violation by North Adams was, by August 5, 2003 and September 25, 2003, “sufficiently permanent to make [Parent] aware of the need to assert his or her rights.” Because September 25, 2003 is prior to the two-year statute of limitations period cut-off (which is February 3, 2004 in the instant dispute), the continuing violation doctrine, even if applicable, provides no relief for Parent.2
Parent’s second argument under the continuing violation doctrine is that North Adams violated John’s right to FAPE, first by encouraging an ultimately inappropriate placement, and second, by failing to provide him with a placement. Parent’s brief at page 2. I find this claim to be puzzling . First, as stated above, Parent was aware as early as August of 2003 that North Adams was not providing – and may never provide FAPE. Further, alleging that North Adams encouraged Parent to place her son in an inappropriate placement only undermines her claim for reimbursement. That is, in order for Parent to prevail on her claim for reimbursement of Franklin Academy tuition and expenses, she must ultimately demonstrate that Franklin Academy, in fact, did provide an appropriate education under federal special education law. Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 15 (1993). Under these circumstances, it does not seem possible that Parent can ultimately succeed by arguing that the placement was not appropriate in the first place, for Parent’s argument, if credited by me, would extinguish her claim on the merits.
For these reasons, I am persuaded that the continuing violation doctrine, even if applicable to the present dispute, provides no relief to Parent.
ORDER
For the foregoing reasons, North Adams’ Motion in Limine to Exclude All Claims Against it by the Parent Before February 3, 2004 is ALLOWED.
By the Hearing Officer,
__________________________
Sandra Sherwood
Date: May 2, 2006
1
“John” is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.
2
Just as Parent’s awareness of the need to assert her rights in August or September of 2003 rendered the continuing violation doctrine inapplicable, so also, this same knowledge triggers the applicability of the two-year limitation on her current claim.