The Ninth Circuit Court of Appeals recently issued a ruling in Avila v. Spokane School District 81 (9th Cir. 2017) 852 F.3d 936 (Avila), which held that the two-year statute of limitations for filing a due process complaint pursuant to the Individuals with Disabilities Education Act (IDEA) begins when a parent "knew or should have known," a claim against a local educational agency (LEA) existed. In other words, if a parent has reason to believe their child is not receiving appropriate evaluations, placement, specialized academic instruction, or related services he/she has a right to receive under the IDEA, they have two years from that date of discovery to file a complaint to seek enforcement of their rights.
Our office recently filed a Due Process Complaint on behalf of a student and his parents here in California. Soon thereafter, the LEA respondent filed a Motion for Partial Dismissal of the Due Process Complaint, arguing that certain facts and claims plead in the Complaint were outside the statute of limitations, and should thus be barred from being argued at the due process hearing. Our office swiftly filed an Opposition to the Motion for Partial Dismissal, siting Avila.
On May 18, 2017, the Office of Administrative Hearings (OAH) issued an Order denying the LEA's Motion for Partial Dismissal and we prevailed on preserving our clients' rights.
The reason this is of great significance is related to the remedies sought on behalf of students. Many times, when an LEA fails to observe its obligations under the IDEA, the only appropriate remedy for a student is an award of tuition reimbursement or compensatory educational services, i.e. individualized tutoring, speech and language services, occupational therapy, physical therapy, educationally related mental health services, counseling, behavior services, and so on. A bright line two-year statute of limitations limits the amount of compensatory educational services an LEA might be ordered to provide. However, under Avlia if a parent can demonstrate through evidence that they did not know the LEA was not providing their child with appropriate evaluations, special education or related services he/she was entitled to, nor that they had any reason to know the LEA was not complying with its obligations, then a judge might order an extended time for compensatory services.
All in all, the statute of limitations issue is one for a trier of fact (in special education law the trier of fact is a judge, as opposed to a jury) to decide based on all the evidence presented at hearing. Therefore, an LEA will always lose on such a "pre-trial" motion, prior to a judge weighing all the evidence.
-Elizabeth Curtis, May 19, 2017