MASSACHUSETTS DEPARTMENT OF ELEMENTARY EDUCATION AND SECONDARY EDUCATION
Bureau of Special Education Appeals
In Re: Yul and Boston Public Schools
BSEA # 09-1007
RULING
This matter comes before the Hearing Officer on the assertion of the School that the Bureau lacks jurisdiction to hear the Parent’s claim concerning the 2005-2006 school year. The assertion, contained in the School’s response to the Parent’s request for a Hearing, is construed as a Motion In Limine . The pertinent facts are:
1. Yul is a twelve year old IDEA eligible student. He received special education services through the Boston Public Schools beginning in his kindergarten year. In September 2003, the Parent unilaterally placed Yul in 3rd grade at the Carroll School, a private, state-approved school for students with learning disabilities. Yul has remained privately placed at the Carroll School through the date of this Ruling.1
2. The Parent contends that Boston Public Schools failed to offer Yul the free appropriate public education to which he is entitled during the school years 2005-2006, 2006-2007, and 2007-2008 when Yul was in 5th, 6th and 7th grades respectively. Boston asserts that it offered an appropriate IEP and placement for each of those school years.
3. The Parent filed a hearing request on September 2, 2008, seeking
reimbursement for expenses she incurred as a result of the Student’s placement at the Carroll School between 2005 and June 2008. In addition, she sought a then prospective placement at the Carroll School for the 2008-2009 school year.
4. Boston asserts that the Parent’s claim for reimbursement of expenses incurred for the 2005-2006 school year is barred by the IDEA’s two year statute of limitations.
5. The Parent argues that Yul was at all times “covered” by Section 504 of the Rehabilitation Act of 1973 (20 U.S.C 794) and therefore that a three year statute of limitations applies to her claims for reimbursement.
6. Neither party offered any evidence that this Student was the subject of Section 504 planning procedures either separate from, parallel to, or incorporated within the IDEA team processes that occurred beginning in 2001.
LEGAL FRAMEWORK
A. The IDEA 2004 established a clear two year statute of limitations for appealing adverse actions or inactions of entities responsible for providing special education to eligible students: A parent or agency shall request an impartial due process hearing within two years of the date the parent or the agency knew or should have known about the alleged action that forms the basis of complaint. 20 U.S.C. 1415 (f) (c). The two year “look back” has been adopted by default for special education appeals under Massachusetts state law as well. The IDEA explicitly provides for two exceptions to the limitations period:
1. upon a showing that the local education agency had made a specific misrepresentation that the issue complained of had been resolved; and/or
2. upon a showing that the local education agency withheld information from the parent that it was otherwise obligated under the IDEA to share.
Here the Parent did not make the showing required by the IDEA to waive imposition of the two year statute of limitations. By operation of that statutory provision, the Parent’s claim that Boston violated the applicable provisions of the IDEA by failing to ensure the delivery of necessary special education services to Yul is limited to the two year period immediately prior to the date on which the Parent’s BSEA hearing request was filed. As she filed for Hearing on September 2, 2008, the Parent’s claim for reimbursement under the IDEA may extend back only until September 2, 2006.2
B. The Parent now argues that Yul, as an IDEA eligible student, is also covered under Section 504 of the Rehabilitation Action of 1973, 29 U.S.C. 794 (“Section 504”). She asserts that in Massachusetts, Section 504 has a three year statute of limitations, and that therefore the Bureau may entertain claims reaching back to September 2005. I decline to adopt the Parent’s reasoning.
First, the Parent did not make a claim either of Section 504 eligibility or violations in the hearing request she filed with the Bureau on September 2, 2008. 20 U.S.C. 1415 (B) (7). Nor has there been any showing that the parties to this dispute ever considered the Student’s eligibility under Section 504 separately from his eligibility under the IDEA. There is no evidence of a separate 504 planning, decision-making or resolution process. Nor is the Parent making any claims or seeking any remedy under Section 504 other than those available under the IDEA. Therefore, I find that the Parent’s potential Section 504 claims are inextricably intertwined with and for all practical purposes indistinguishable from her IDEA claims. To apply a different statute of limitations to an identical set of facts would defeat the intent of the Congressional limitation on IDEA actions.
Second, Section 504 has no statute of limitations period of its own. Instead courts routinely import the statute of limitations period of the most closely analogous state statute to determine the viability of a 504 claim. The Parent here points out that the Bureau had previously recognized a three year statute of limitations for administrative appeals involving both the IDEA and Section 504. In Re: Fall River , 5 MSER 183 (Crane 1999). The Parent urges the Bureau to continue to impose a three year statute of limitations for 504 actions consistent with its prior practice or, in the alternative, to graft the three year statute of limitations applicable to personal injury actions onto Section 504 claims. See M.G.L.c260 §2A. Neither argument is persuasive.
The version of the IDEA at issue in Fall River , the BSEA Decision relied upon by the Parent, did not set out a limitations period for filing special education claims. Thus each state, at the administrative or judicial review level, was free to articulate its own filing deadline. The administrative Decision cited by the Parent adopted a three year statute of limitations for both IDEA and Section 504 claims by borrowing from the analogous Massachusetts statute concerning “civil rights”. While the reasoning of that Decision is still sound, the statutory landscape has changed.
When Congress rewrote the IDEA in 2004, it specifically addressed the lack of a statute of limitations in prior versions. Citing the need for uniformity and predictability of procedural expectations, as well as reaffirming its intent that the IDEA be a statute geared to prospective educational substance, Congress selected a two year filing deadline for IDEA claims. By doing so, it rendered the various limitation periods established by courts, regulators, and administrative agencies considering IDEA claims obsolete.
Just as Hearing Officer Crane decided in FALL River that IDEA and 504 claims are so closely related that the applicable statutes of limitation should be the same, here, where the factual basis of the Parent’s IDEA and Section 504 claims are identical, there is no good reason substantively or procedurally to separate the claims for unequal treatment.3
Furthermore Massachusetts has already, by default, imported the IDEA’s two year limitations period to actions filed under M.G.L.c.71B. It is M.G.L.c.71B that is most closely analogous to claims contemplated under Section 504 concerning deprivation of educational access and opportunity on the basis of disability. As the BSEA has been designated the due process agency to hear Section 504 administrative appeals concerning special education, the same two year statute of limitations applicable in M.G.L.c.71B actions should be applied to corollary claims under Section 504. There is no need or justification to look to an unrelated statute governing a different area of law for appropriate time limits on Section 504 claims involving substantive special education programming.
FINDING
I find that the two year statute of limitations set out in the IDEA 2004 should govern claims made under Section 504 which are based on the same underlying facts and seek the same remedies as the concurrent IDEA action filed at the BSEA.
ORDER
The School’s Motion In Limine is GRANTED . The issues for hearing are limited to:
1.
a) Whether the Boston Public Schools developed an IEP that is reasonably calculated to provide a free, appropriate public education to Yul for the 2006-2007 school year?
b) If not, is the Parent entitled to reimbursement of expenses she incurred as a result of the Student’s unilateral placement at the Carroll School for the 2006-2007 school year?
2.
a) Whether the Boston Public Schools developed an IEP that is reasonably calculated to provide a free, appropriate public education to Yul for the 2007-2008 school year?
b) If not, is the Parent entitled to reimbursement of expenses she incurred as a result of the Student’s unilateral placement at the Carroll School for the 2007-2008 school year?
3.
a) Whether the Boston Public Schools developed an IEP that is reasonably calculated to provide a free, appropriate public education to Yul for the 2008-2009 school year?
b) If not, is the Parent entitled to reimbursement of expenses she incurred as a result of the Student’s unilateral placement at the Carroll School for the 2008-2009 school year?
4. Whether Boston Public Schools committed serious procedural violations during the team meetings held to develop the 2006-2007, 2007-2008 and 2008-2009 IEPs, which would entitle Yul to an additional year of publicly funded compensatory education at the Carroll School?
By the Hearing Officer,
_______________________
Dated: March 23, 2009
1
“Yul” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
I note that Senate Committee on Health, Education, Labor and Pensions, when reporting favorably on the newly approved IDEA statute of limitations said:
[The] statute of limitations will bar consideration of claims for reimbursement of private school tuition or services where the child has not attended school with the public entity for more than two years. Simply put, if a child leaves a public school and the parent chooses to place the child in a private school, the parent must claim through due process that they are entitled to reimbursement for those services prior to the two year anniversary of that student’s departure.
Here the Student was withdrawn from Boston Public Schools by September, 2003, five years before the Parent filed an initial hearing request. He has not attended public school since that time. Had the Student been initially placed at the Carroll School in September 2005, the time for requesting a hearing on that unilateral placement would have expired in September 2007. According to Congressional understanding of the application of the proposed IDEA’s statute of limitations to parental claims for reimbursement of tuition for unilateral private school placements, Yul’s mother’s claim concerning the 2005-2006 school year would have been extinguished either in September, 2005 or September 2007.
3
For an interesting discussion of the interplay between the IDEA 2004 and Section 504 see: J.W. v. Fresno Unified School District , 570 F. Supp. 2nd 1212 (E.D.CA. 2008).