A relatively recent case interpreting the due process statute of limitations provision of the Individuals with Disabilities Education Act is Brady P. v. Central York School District, No. 1:16-CV-2395, 2018 WL 1367325, 71 IDELR 215 (M.D. Pa. Mar. 16, 2018). The case involved a 14-year-old diagnosed as having pervasive developmental disorder, ADHD, and other disabilities who was identified as eligible for special education as early as first grade. During the student’s third grade year, his parents noted serious concerns about his reading fluency and spelling. His mother asked the school district to evaluate him for a reading disability. The district refused, and the mother hired a private psychologist, who found delays secondary to dysgraphia and dyslexia. The parents requested an IEP meeting, which was held March 5, 2013 The psychologist attended and presented the findings supporting the diagnosis of dyslexia. The psychologist was reported to have said that had the dyslexia been identified earlier, it could have been treated, but now there was only a five percent chance that the student would become a competent reader. There was testimony that the principal called the mother to apologize for the school having missed the condition.
The school district agreed to provide a Wilson phonics instruction program. The person administering the Wilson instruction did not receive formal training in it, however, and throughout that spring the parents continued to express concern over the student’s reading but the school declined to identify the student as having dyslexia or even to conduct its own evaluation for it. Although the student’s report card indicated that he met district standards in third and fourth grade, the parents continued to communicate their dissatisfaction with his academic and social progress. The parents withdrew the student from the district at the end of fourth grade and enrolled him in a private cyber charter school. The charter school found that the student had communications and assistive technology needs. It provided itinerant learning support as well as speech and language therapy. It made program and instructional modifications, included daily Wilson instruction as needed.
The parents filed for due process against the school district on June 3, 2016. They claimed first that the district failed to provide the student a free, appropriate public education in “(1) written expression (second through fourth grade); (2) social skills and communication (third and fourth grades); (3) occupational therapy (third and fourth grades); (4) writing, reading, and spelling (third and fourth grades); and (5) assistive technology (fourth grade).” 2018 WL 1367325, at *5; and second, that it failed to identify and to evaluate the student’s disabilities in a timely and appropriate manner. The district moved to dismiss the complaint or limit the scope of the claims on the basis of the two-year statute of limitations. The hearing officer granted the motion to the extent of finding the accrual date to be March 5, 2013, the “know or should have known” (KOSHK) date, and limiting the claim for compensatory education to the last two and one-half days of the 2013-14 school year, which was the period from two years before the due process filing to the conclusion of the year after which the parents put the student in the new school. At the request of the parties, the hearing officer made the decision a final order, which allowed the parents to file an immediate appeal.
The court affirmed the hearing officer’s decision. It agreed with the hearing officer’s reasoning that on March 5, 2013, the independent evaluator’s comments at the March 5 IEP meeting and the reported statement from the principal put the parents on notice that the school district failed to identify all of the student’s learning disabilities and provide a correspondingly appropriate education. The court declared: “The discovery rule concerns the moment in time when a reasonably diligent plaintiff discovers facts that provide notice of an existing or ongoing injury,” id. at *8. The court stressed the parents’ history of knowledge of the student’s disabling conditions and awareness of his risk of developing a learning disability. It further said that even if the parents believed that the denial of appropriate education was being corrected after the March 5 meeting, they could not reasonably rely on the belief after a new IEP was adopted on November 8, 2013, and that IEP did not respond to the independent psychologist’s evaluation. The court refused to consider an argument that the school district intentionally misled or knowingly deceived the parents, pointing out that the argument was not raised in the administrative proceedings.
The decision serves as a reminder that cases concerning limitations often turn on accrual – when the cause of action arises. Under the discovery rule, that KOSHK date is the one when a reasonable claimant knew or should have known of the facts giving rise to the cause of action. By the court’s description, the parents in this case were deeply involved in the student’s education and took steps to inform themselves of the facts that ultimately led their invocation of due process rights, but their delay in taking action limited the remedy under the IDEA to all but nothing. For impartial hearing officers, the importance of the case is its reinforcement of the need to identify the date of accrual, that is, the “known or should have known” or KOSHK date, for each relevant claim if a limitations defense is asserted.