Board of Education of the North Rockland Central School District v. C.M., 744 F. App’x 7, 72 IDELR 172 (2nd Cir. 2018), is a noteworthy case despite the fact that it is nonprecedential. The case involved a unilateral residential placement undertaken by the parents of the child in May or June of 2011. The parent claimed violations of the IDEA and Section 504 of the Rehabilitation Act, and filed for due process in January of 2015. The impartial hearing officer found that the IDEA claim was untimely but awarded reimbursement on the basis of Section 504. The State review officer (SRO) affirmed as to the IDEA claim but did not rule on the Section 504 claim for want of jurisdiction. The district appealed the Section 504 decision to the federal district court, and the parent counterclaimed to appeal the administrative decisions on the IDEA claim. The district court ruled for the school district on its claim and the parent’s counterclaim, finding both the IDEA and Section 504 claims untimely.
The panel affirmed. The court reasoned that claims under both laws accrued in May or June of 2011, when the school district denied the request for a residential placement for the 2011-2012 school year, first at an IEP team meeting in May 2011, and then again by sending the parent a copy of the child’s IEP in June 2011. The parent alleged that the district committed a series of acts of disability discrimination from January through June of 2012, making at least the Section 504 claim timely (the court assumed a three-year statute applied to the Section 504 claim). But the court characterized the conduct as consequences of the earlier decision by the district and declared that, “In analyzing the timing of accrual in the context of discrimination claims, the Supreme Court has instructed that ‘the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful.’” Morse v. Univ. of Vermont, 973 F.2d 122, 125 (2d Cir. 1992) (quoting Chardon v. Fernandez, 454 U.S. 6, 8 (1981)) (emphasis in original). Id. at *9. The court read the record as showing that the parent knew or should have known that the child would be injured by the district’s initial decision. The court emphasized that a psychotherapist and psychiatrist had attested to the child’s need for a residential placement. The parent did not assert any claims for the 2012-2013 school year.
Directly pertinent to the IDEA claim, the parent argued that a genuine issue of material fact remained as to whether the two-year IDEA statute of limitations should be tolled on the basis of misrepresentations by the district and the parent’s lack of adequate understanding of her rights to request a due process hearing. The court responded that the misrepresentation exception applies only “if the parent was prevented from requesting the hearing due to . . . specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint.” 20 U.S.C. § 1415(f)(3)(D)(i). When the basis of the complaint was the refusal to provide a residential placement, and there was no dispute that the placement was denied and that the parent believed that the placement was necessary, the misrepresentation exception could not be invoked.
Tolling also may apply “if the parent was prevented from requesting the hearing due to . . . the local educational agency’s withholding of information from the parent that was required . . . to be provided to the parent.” 20 U.S.C. § 1415(f)(3)(D)(ii). But the parent did not object to the district court’s finding that, “[I]n May 2011, Parent engaged the services of [a parent advocate] and he ‘educated [her] a little bit about [P.G.]’s rights.’ . . . In June 2012, she consulted with a special education attorney. On August 28, 2012, Parent signed an acknowledgment of receipt of procedural safeguards. . . .” Id. at 11 (quoting Board of Educ. of N. Rockland Cent. Sch. Dist. v. C.M., No. 16-cv-3924, 2017 WL 2656253, at *10 (S.D.N.Y. June 20, 2017)). Therefore, said the court of appeals, the parent knew her rights as of August 2012, and the complaint filed in January of 2015 was untimely as to the IDEA claim.
Even without precedential value, the court’s decision gives a good basis to predict how reviewing courts will treat limitations issues regarding claims under the IDEA. First, if there is a clear decision from the district to which the parent objects, the claim accrues when official notice is provided (though the court did not clarify whether this date would be that of the IEP team meeting or later, when the IEP was furnished). Second, the misrepresentation and notice provisions regarding tolling of the IDEA claim will be read as written, and a signed acknowledgement as well as the information provided by an advocate or attorney may count in determining whether tolling will apply on the basis of absence of notice.