Friday, October 23, 2009

Fast Fact Friday: Statute of Limitations

Under the IDEA there is a two-year statute of limitation for filing a due process complaint. What this means is that a due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint. See 34 C.F.R. 300.507(a)(2). It is up to a hearing officer or ALJ to make the decision as to whether the parent should have known about the alleged action that forms the basis of the complaint. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46706 (2006).

Under the IDEA there are several exceptions to the two-year statute of limitations. It does not apply to a parent if the parent was prevented from filing a complaint due to: 1) Specific misrepresentations by the district that it had resolved the problems forming the basis of the complaint; or 2) The district's withholding of information from the parent that the IDEA required it to provide. See 34 CFR 300.511(f). The Department of Education declined to define the term "misrepresentations" as used in that section. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46706 (2006).

If a state law has set an explicit time limitation for requesting a due process hearing, the IDEA defers to the state's law. See 34 CFR 300.507(a)(2).

3 comments:

  1. i am regular visitor of your site and you are writing very nice so keep posting university admission

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  2. Hi

    How would losing custody of your child to foster care and dealing with other serious family issues affect the SOL for filing a civil suite for denial of FAPE. My son had several within a 2 years period. Fairfax is incredible but am afraid I missed the
    SOL due to all of this more serious drama with the child due to his abusive father and the courts?

    Can you advice?

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  3. The situation you are describing does not sound like it would necessarily fall within the description of either of the exceptions to the statute of limitations. However, in general I would advise that anyone with a question about whether or not they still have a viable claim or whether that claim is time-barred under the SOL seek the advice of a special education attorney. We have found that in many instances, careful review of the documentation and information from parents and within a student's file is the best way to uncover whether there are facts that would support one of the exceptions, as often there are facts or evidence that the parents may not have even been fully aware of previously.

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