06-083

          Petitioner appeals from the decision of an impartial hearing officer which dismissed petitioner's complaint seeking reimbursement for her son's tuition costs at the Yeshiva Tehila L'dovid for the 2002-03 school year as time-barred by the statute of limitations.  The appeal must be dismissed.

            At the time of the impartial hearing on May 24, 2006, petitioner's son was 17 years old (see Parent Ex. A).  The student's eligibility for special education programs and services as a student with a speech impairment is not in dispute (see Parent Ex. H at p. 2; 8 NYCRR 200.1[zz][11]). 

            On or about December 17, 2002, petitioner initially requested an impartial hearing seeking reimbursement for her son's tuition costs at the Yeshiva Tehila L'dovid for the 2002-03 school year (Parent Ex. A).  Petitioner withdrew her claim sometime during the 2002-03 school year before an impartial hearing was held on the merits (Tr. pp. 4, 5-6; IHO Decision, p. 2).  By letter dated March 15, 2006, petitioner again sought tuition reimbursement for the student's 2002-03 school year (Pet. ¶¶ 12, 20, 22; Ans. ¶¶ 12, 22, 55, 79).¹

            An impartial hearing was held on May 24, 2006 (Tr. p. 1).  At the beginning of the impartial hearing, respondent made a motion to dismiss petitioner's claim as time-barred by the statute of limitations (Tr. pp. 4-5).  In opposing respondent's motion to dismiss, petitioner submitted documentary evidence and argued that she had withdrawn her claim during the 2002-03 school year because respondent had represented to petitioner that her case would be submitted for settlement (Tr. pp. 5-7; see Tr. pp. 17-29; Parent Exs. A, C, E, F, H).  No testimony was offered at the May 24, 2006 impartial hearing, and the discussion on the record did not address the merits of petitioner's tuition reimbursement claim.

            The impartial hearing officer rendered a decision on June 23, 2006,² dismissing petitioner's complaint.  The impartial hearing officer found that petitioner's request for tuition reimbursement for the 2002-03 school year was barred by the one-year limitations period in effect in New York at the time that petitioner's claim accrued (IHO Decision, p. 3).  Relying on federal decisional law for the proposition that newly enacted federal statutes of limitations typically are not applied retroactively absent express congressional intent, the impartial hearing officer declined to apply the 2004 amendments to the Individuals with Disabilities Education Act (IDEA) that set forth a two-year limitations period for filing a due process complaint notice (IHO Decision, pp. 2-3).³

            Petitioner appeals, contending that the impartial hearing officer erred by applying the one-year limitations period.  Petitioner argues that the impartial hearing officer should have applied the 2004 IDEA statute of limitations provisions because she filed her subsequent request for an impartial hearing after the July 1, 2005 effective date of the 2004 IDEA amendments.  Petitioner alleges that respondent misrepresented that it had submitted her case for settlement and argues that the impartial hearing officer should have applied the newly added misrepresentation exception to the two-year limitations period in IDEA 2004 to extend the time period in which she was required to file her claim.  Respondent requests that the appeal be dismissed in its entirety, asserting that petitioner's claim for reimbursement of her son's tuition costs for the 2002-03 school year is time-barred under either a one-year or two-year limitations period, that petitioner's allegations of misrepresentation are insufficient to toll the limitations period, and that petitioner's claims are barred by laches.

            For the reasons stated herein, I find that the impartial hearing officer correctly applied the one-year limitations period in effect at the time petitioner's claim accrued and properly dismissed petitioner's complaint.  To hold otherwise would result in the impermissible resurrection of petitioner's claim, which was already time-barred on the effective date of the 2004 amendments to IDEA.  Petitioner's claim for reimbursement of her son's tuition costs for the 2002-03 school year is time-barred under either a one-year or two-year limitations period.⁴

           Prior to the 2004 IDEA amendments, the IDEA did not prescribe a time period for filing a request for an administrative due process hearing and New York applied a one-year limitations period (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; Application of the Bd. of Educ., Appeal No. 02-119).  A claim accrued when the petitioner knew or should have known of the injury involved, i.e., the inappropriate education (Southington, 334 F.3d at 221).  The 2004 IDEA amendments added an explicit limitations period for filing a due process hearing request and also added explicit accrual language.  IDEA 2004 requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged violation (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; N.Y. Educ. Law § 4404[1][a]).  IDEA 2004 contains two statutory exceptions to the limitations period:

The timeline described in [20 U.S.C. § 1415[f][3][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.

20 U.S.C. § 1415[f][3][D].

            In determining when petitioner's claim for tuition reimbursement began to run in the instant case, the accrual rule is the same under both IDEA 2004 and the former IDEA as noted above.  Although the hearing record is sparse regarding petitioner's substantive claims for tuition reimbursement, it reveals that petitioner requested an impartial hearing and notified respondent by letter dated December 17, 2002 that she had unilaterally placed her son in a private school (Parent Ex. A).  Based on this evidence, petitioner knew of the alleged violation of her son's rights under IDEA prior to December 17, 2002.  It is undisputed that petitioner thereafter withdrew her initial request for tuition reimbursement sometime during the 2002-03 school year and subsequently requested a hearing by letter dated March 15, 2006, attempting to resurrect the same claim for tuition reimbursement made in the December 17, 2002 letter.  Petitioner's subsequent request on March 15, 2006 was made more than three years after her claim accrued, and therefore I find that it would be barred under either a one-year or two-year limitations period.  However, because petitioner asserts that the misrepresentation exception in IDEA 2004 applies to extend the time in which she was required to file her claim, I must proceed to determine which limitations period is applicable to petitioner's claim.

            Both the Supreme Court of the United States and the Second Circuit Court of Appeals have provided some guidance for analyzing the retroactive effect of a new federal statute.  Absent clear congressional intent, the Supreme Court has ruled that a federal statute does not operate retroactively (see Landgraf v. USI Film Products, 511 U.S. 244, 280 [1994]).  The Second Circuit has examined the principles governing the retroactive effect of a newly enacted federal statute of limitations (In re Enterprise Mortgage Acceptance Co., 391 F.3d 401 [2d Cir. 2005] [holding that the limitations period in the Sarbanes-Oxley Act of 2002 did not have the effect of reviving stale claims]).  Applying Landgraf's analysis for determining whether a statute applies retroactively, the Enterprise Court found no clear congressional intent to apply the new statute retroactively and expressed concern that revival of a previously stale claim would have an impermissible retroactive reach because "[e]xtending the statute of limitations retroactively 'increase[s] [a defendant's] liability for past conduct'" (Enterprise, 391 F.3d at 408, 410 [quoting Landgraf, 511 U.S. at 280]).  The Supreme Court has also relied on the Ninth Circuit Court of Appeals' conclusion that "extending a statute of limitations after the pre-existing period of limitations has expired impermissibly revives a moribund cause of action" (Hughes Aircraft Co. v. U.S., ex rel. Schumer, 520 U.S. 939, 950 [1997] [citing Chenault v. U.S. Postal Service, 37 F.3d 535, 537, 539 [9th Cir. 1994]]).

           Applying the directives of Landgraf and Enterprise, I find that the newly enacted limitations provision set forth in IDEA 2004 does not apply retroactively to revive time-barred claims.  First, in reviewing the statute itself, I can discern no clear congressional intent or unambiguous language indicating that the statute of limitations should be retroactively applied (see Enterprise, 391 F.3d at 407 [explaining that unambiguous language includes phrases such as "all proceedings pending on or commenced after the date of enactment" [citing Landgraf, 511 U.S. at 255-56 & n.8]]).  Second, I find that retroactive application of the statute of limitations in this case would increase respondent's liability for past conduct by allowing petitioner to impermissibly revive a claim that was time-barred when the IDEA 2004 amendments became effective (see Enterprise, 391 F.3d at 410). 

           Finally, I find that in arguing for application of the limitations period that was operating on the date that the hearing request was filed, petitioner has misread the unpublished decision in R.G. v. Glen Ridge Bd. of Educ., 2005 WL 3274857 (D.N.J. 2005) and Southington.  Contrary to petitioner's assertion, Glen Ridge did not hold that courts must apply the statute of limitations in effect on the date a claim under IDEA is filed.  Instead, Glen Ridge, consistent with Landgraf and Enterprise, concluded that the 2004 amendments to IDEA should not be applied retroactively (Glen Ridge, 2005 WL 3274857 at *4).  Furthermore, Glen Ridge involved the statute of limitations for an aggrieved party to file a civil action in federal district court (see id.), and not the limitations period for requesting an impartial administrative hearing such as at issue here.

           Southington concerned the Second Circuit’s retroactive application of the limitations period that was borrowed from Connecticut state statute, not the retroactive effect of a federal statute of limitations (see Southington, 334 F.3d at 222-23).  Its ruling permitting retroactive application of the newly enacted Connecticut two-year statute of limitations did not contravene the Supreme Court and Second Circuit's analysis for determining the retroactive effect of a federal statute of limitations because Southington did not revive a time-barred claim and did not overrule legal precedent upon which the parents were entitled to rely (see id.).

           For the foregoing reasons, petitioner's claim is barred as untimely by the statute of limitations.⁵  The misrepresentation exception to the limitations period in IDEA 2004 does not apply because petitioner's claim accrued before the July 1, 2005 effective date of the 2004 amendments.

           In light of my determination herein, it is not necessary for me to address the parties' remaining arguments.

THE APPEAL IS DISMISSED.