06-110

            Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which ordered petitioner to reimburse respondent for her son’s tuition costs at the Jewish Center for Special Education (JCSE) for the 2002-03 school year.  The appeal must be sustained.

            When the impartial hearing was convened in June 2006, the student was 20 years old.  The student's eligibility for special education services as a student with mental retardation is not in dispute (Tr. p. 7; see 8 NYCRR 200.1[zz][7]).  Sometime during spring 2002, petitioner's Committee on Special Education (CSE) convened and offered the student a placement in a program with a 12:1+1 staffing ratio, located in a public school (Tr. p. 7; Parent Ex. A).  Asserting that the offered placement was inappropriate, respondent requested an impartial hearing on June 10, 2003 and sought tuition reimbursement after enrolling the student at the JCSE during the 2002-03 school year (Parent Ex. A).  Respondent withdrew the hearing request in August 2003 (Tr. pp. 8-9, 34-35), and thereafter requested a hearing on March 15, 2006 (Tr. p. 8).¹

             A hearing was held on June 26, July 7 and July 17, 2006.  On the first day of the hearing, petitioner moved to dismiss respondent's claim as time-barred (Tr. p. 7).  Petitioner argued that the claim was first filed on June 10, 2003 and that the case ended when respondent subsequently withdrew the claim (Tr. p. 8).  According to petitioner, respondent filed a second request on March 15, 2006 that did not meet the pleading sufficiency requirements under the Individuals with Disabilities Education Act (IDEA) as amended in 2004 (20 U.S.C. §§ 1400-1482) (Tr. p. 8).²  Petitioner stated that respondent was previously aware of any alleged violation of the IDEA relating to her claim arising out of the 2002-03 school year because she had filed a hearing request in 2003 and voluntarily withdrew the request before a hearing was convened (Tr. pp. 8-9).  Petitioner further asserted that the claim was barred because two years had elapsed since the claim arose and that settlement negotiations do not have the effect of tolling a statute of limitations (Tr. pp. 9-10).

             Respondent opposed petitioner’s motion to dismiss and asserted that her claim for tuition reimbursement was timely when made in 2003 and that it was reopened in 2006 (Tr. pp. 5-6).  A parent advocate testified that respondent's claims for tuition reimbursement for a number of other school years had been settled, and that respondent's representative had made good faith efforts to resolve the claim for the 2002-03 school year without litigation (Tr. pp. 5-6).

             A hearing coordinator employed by respondent's representative testified that she filed the hearing request on behalf of respondent in 2003 (Tr. pp. 34-35).  According to the hearing coordinator, respondent thereafter withdrew the hearing request because a psychologist employed by petitioner stated that petitioner was going to settle the case (Tr. pp. 34-35).

             Another parent advocate representing respondent asserted that a request for settlement was sent by petitioner's psychologist to petitioner's Central Liaison Office and that petitioner was "no longer going to fight it" (Tr. pp. 40, 42).  The advocate described further contacts she had with petitioner's staff and her perception of a number of office difficulties or failures attributable to petitioner including moving an office location, failing to route paperwork, a lack of access to a multiple fax machines, failing to enter respondent's case into a database, and failing to locate a request for settlement (Tr. pp. 40-42).

             Petitioner's psychologist testified that she examines tuition reimbursement cases to determine whether settlement is possible and, if so, she submits a request for settlement to the petitioner’s Office of Legal Services (Tr. p. 49).  The psychologist also explained that she made a recommendation to another one of petitioner's offices regarding settlement and that she lacks authority to enter into settlements (Tr. pp. 48-50).

             By decision dated August 22, 2006, the impartial hearing officer determined that respondent was entitled to tuition reimbursement for the 2002-03 school year (IHO Decision, p. 4).  She based her conclusion upon petitioner's representation that the matter had been submitted to its Office of Legal Services, that tuition had been defrayed by petitioner from 2001 through 2005 with the exception of the 2002-03 year, that there was ongoing communication with petitioner's staff, that the matter was proceeding toward settlement and that petitioner had expressed an intention to enter into a stipulation of settlement (id.).³

             Petitioner appeals, arguing that respondent's claim is barred by the two-year statute of limitations set forth in the IDEA (20 U.S.C. § 1415[b][6][B]) and the comparable state limitations period (8 NYCRR 200.5[j][1][i]) because respondent filed an impartial hearing request in June 2003 and then withdrew her claim.  Petitioner asserts that when respondent filed her claim in 2003, the IDEA did not prescribe a time period in which to assert claims, and that the SRO applied a one-year limitations period to claims for tuition reimbursement.  Petitioner argues that, even after the IDEA was amended to provide a two-year limitations period, respondent's March 2006 hearing request was untimely.  Petitioner also contends that the IDEA and state regulation provide no specific tolling provisions and that the provision of the IDEA regarding specific misrepresentations (20 U.S.C. § 1415[f][3][D][i]; 8 NYCRR 200.5[j][1][i]) are an exception to the statute of limitations.  Petitioner argues that respondent offered no proof that petitioner represented that the matter was remedied, that a monetary offer was made or accepted, or that any terms were agreed upon or stipulated.

             Respondent argues that petitioner submitted the case for settlement and that the 2006 request for a hearing was merely a request to reopen a previously filed complaint.  Respondent contends that she withdrew her claim for tuition reimbursement "on the basis of … [p]etitioner's misrepresentations as to the filing of recommendation of settlement."  Arguing that she did not "sit on her hands," respondent instead asserts that there were numerous communications and inquiries made by her representatives, who followed the usual course of dealings with petitioner.  In support of her answer, respondent posits, for the first time on appeal, that petitioner should be precluded from raising the statute of limitations defense by the doctrine of equitable estoppel.

             Respondent's claim for tuition reimbursement undisputedly arose in 2002, and consequently I will apply the one-year limitations period in effect at that time.  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 accrues when a petitioner knew or should have known of the injury involved, i.e., the inappropriate education (Southington, 334 F.3d at 221).  As the parties point out, 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]).  Furthermore, IDEA 2004 contains statutory exceptions to the limitations period, one of which applies when the local educational agency specifically misrepresents that it has resolved the issue forming the basis of the complaint.⁴

             I disagree with the impartial hearing officer's application of the amended IDEA's two-year limitations period and the specific misrepresentation exception to respondent's claim (20 U.S.C. § 1415[f][3][C], [D]).  As recently discussed in Application of a Child with a Disability, Appeal No. 06-083, both the Supreme Court of the United States and the Second Circuit Court of Appeals have provided guidance indicating that, absent clear congressional intent or unambiguous language in the statute, a newly enacted statute of limitations should not be applied retroactively to revive previously time-barred claims (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]; Landgraf v. USI Film Products, 511 U.S. 244, 280 [1994]; 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]).  IDEA 2004 does not contain clear congressional intent or unambiguous language indicating that the new limitations period should apply retroactively, and accordingly I decline to apply its two-year limitations period or its attendant exceptions (Application of a Child with a Disability, Appeal No. 06-083).

             In this case, there is no dispute that respondent's claim for tuition reimbursement for the 2002-03 school year arose sometime after the CSE meeting in 2002 (Tr. pp. 4, 34-35; Parent Exs. A, D), and respondent now seeks to pursue the same tuition reimbursement claim more than three years later (Tr. p. 47).  Respondent had unilaterally placed the student at the JCSE by September 2002, and began paying tuition for the 2002-03 school year on August 29, 2002 (Parent Ex. D).  Thereafter, respondent filed her first request for an impartial hearing within one year, on June 10, 2003 (Parent Ex. A).  Although respondent's claim may have been timely when she first asserted it in 2003, it was not resolved on the merits because respondent chose to voluntarily withdraw her claim before the hearing (Tr. pp. 34, 42).  Applying the one-year limitations period, I am compelled to find that respondent's March 2006 claim for tuition reimbursement was filed long after the limitations period expired and the claim should have been dismissed as time-barred (Application of a Child with a Disability, Appeal No. 06-083; Application of the Bd. of Educ., Appeal No. 02-119).

            With regard to respondent's contention that petitioner should be equitably estopped from raising the statute of limitations as a defense, this argument was not raised at the impartial hearing and is not properly before me (Application of a Child with a Disability, Appeal No. 05-078; Application of a Child with a Disability, Appeal No. 04-100).  In the instant case, respondent's allegation that the case had been settled in 2003 is unsupported by the evidence in the record.  The parent advocate explains that in her experience settlements can take years and that they must be processed by several of petitioner's offices (Tr. pp. 39-41).  Furthermore, the parent advocate concedes that "the request for settlement is the first part of a settlement negotiation" (Tr. p. 41).  At best, the evidence shows that settlement negotiations reached a stage at which petitioner's psychologist made an advisory recommendation of settlement to petitioner's counsel and that she was working on the case thereafter (Tr. pp. 48-49; Parent Ex. F at pp. 6-7).  Moreover, had I applied the two-year statute of limitations pursuant to IDEA 2004, respondent's claim would still be time-barred because more than two years elapsed from the time the claim accrued before she interposed her claim in March 2006 (Tr. p. 8).  I would not find that the recommendation for settlement by petitioner's psychologist and her commitment to continue working on the case (Tr. pp. 48-49; Parent Ex. F at pp. 6-7) constituted "specific misrepresentations that [petitioner] had resolved the problem forming the basis of the complaint" (20 U.S.C. § 1415[f][3][D][i]).

             For the foregoing reasons, I find that respondent's claim for tuition reimbursement for the 2002-03 school year is time-barred.  In light of my determination herein, it is unnecessary for me to address petitioner's remaining arguments.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled.