The Legislature should create a statute of limitations which governs a request for an impartial due process hearing to challenge decisions with respect to provision of a free and appropriate public education (FAPE), and a complaint seeking judicial review of a due process hearing decision of the Office of Administrative Law (OAL). In both instances, a 90-day limitation period is appropriate, similar to the one applicable to education disputes before the Commissioner of Education.
New Jersey currently has no statute of limitations for special education matters. Since federal special education laws do not establish limitations, courts look to state law for guidance and, in the absence of a specific limitation, adopt the most analogous one.
With respect to a request for impartial due process hearing, the Third Circuit Court of Appeals has adopted an "equitable" one-year limitation unless there is a mitigating excuse for the delay. However, the one year limitation is not always useful as a bar to special education claims. The fact specific determinations called for by an equitable limitation may preclude its application prior to a full hearing, leaving school districts without the ability to predict in advance which claims will be barred. Additionally, recent decisions of the Third Circuit have created doubt as to whether the equitable limitation is applicable at all to special education claims seeking years of compensatory education relief, as opposed to reimbursement for the cost of a unilateral placement of a child in a private school, when parents believe the public education offered is inappropriate.
Concerning the time for requesting judicial review of an OAL due process decision, the Third Circuit has strongly suggested that it would apply New Jersey's two-year statute of limitations applicable to personal injury claims. A two-year period for filing a request for judicial review contrasts sharply with the 45 days permitted by New Jersey court rules for appealing a decision of an administrative agency in a non-special education matter.
The vacuum created by the absence of a statute of limitations for special education matters has left school districts without repose, and has forced some districts to expend considerable time and money defending special education matters that extend back several school years. Without a statute of limitations, the child's right to an expeditious resolution of special education matters is jeopardized, and school districts may have an increased exposure for costly compensatory education. Reasonable and predictable limitation periods are crucial, especially considering that school districts have thousands of children to educate, and are confronted with unique burdens and liabilities under the special education laws.
Mr. Muccilli is a member of Capehart & Scatchard's Labor and Employment Department and its School Law Group. For more information, contact Mr. Muccilli at 856.914.2074, by fax at 856.235.2786