Dated June 4, 2002

Dr. Norena A. Hale

Director, Division of Special Education

Minnesota Department of Children, Families

and Learning

1500 Highway 36 West

Roseville, Minnesota 55113-4266

Dear Dr. Hale:

Minnesota's 30-day limit for State court review of IDEA claims appears
to be inconsistent with applicable law of the U.S. Court of Appeals for
the Eighth Circuit. Minnesota submitted a 30-day time limit for filing a
court action as part of its eligibility documents for funding under Part
B of the Individuals with Disabilities Education Act (IDEA).
Specifically, Minnesota's policies and procedures on file with the
Secretary of Education provide that "State judicial review must be in
accordance with chapter 14." Minn. Stat. 125A.09, subd. 10 and
Minnesota's Due Process/Parent Involvement Manual, page 8-22. Under
Minnesota Statute Chapter 14, "\[a\] petition ... for judicial review
... must be filed ... not more than 30 days after the party receives the
final decision and order of the agency." Minn. Stat. §14.63. Thus, under
current Minnesota law, parties who wish to file an IDEA action in court
are subject to a 30-day time limit.

The Eighth Circuit has specifically held that a 30-day limit for
judicial review of IDEA claims is inconsistent with the policies of the
IDEA. *See*, *Birmingham v. Omaha School Dist. et al,* 220 F.3d 850
(8^th^ Cir. 2000). In *Birmingham*, the Eighth Circuit specifically
rejected application of a 30-day limit under Arkansas' Administrative
Procedures Act (APA) to judicial review of IDEA claims because it would
conflict with IDEA's two primary policies: (1) to provide disabled
children with a free appropriate public education and to encourage
parents and school officials to resolve disputes cooperatively "so that
the child is not needlessly deprived of the education mandated by law."

"Thirty days does not allow parents sufficient time to work with school
officials to resolve educational disputes. Useful discourse that may
resolve such disputes is foreclosed because parents are forced to
immediately litigate." 220 F.3d at 855. "\[T\]hirty days ... is
insufficient for an IDEA claim because review is de novo and may expand
beyond the record." *Id.* The *Birmingham* court further noted the
realities of parents of a child with a disability. A "truncated
limitations period does not take into account the realities of raising a
disabled child ..., which leaves parents limited time to prepare a
lawsuit." In rejecting the Arkansas APA 30-day limit, the Eighth Circuit
applied a three-year statute of limitations applicable to Arkansas
general personal injury claims. "A three year statute of limitations
encourages parents to work with school officials to resolve disputes
over the disabled child's education. It also allows parents time to
prepare a federal lawsuit, and account for the time constraints faced by
parents of disabled children." 220 F.3d at 856.

If you believe that *Birmingham* Eighth Circuit decision is not
applicable to Minnesota law, please provide for our review a detailed
explanation no later than 10 days from the date of this letter.
Otherwise, please revise the following documents and resubmit them to
OSEP for approval. Specifically, delete from Minn. Stat. 125A.09, subd.
10 and Minnesota's Due Process/Parent Involvement Manual, page 8-22 any
references to Minn. Chapter 14 and further delete from any other
Minnesota Part B eligibility documents any requirement that would impose
a 30-day limit on filing a civil action under the IDEA. Kindly also
confirm in writing to OSEP the methods that Minnesota will use to
provide notice of the change in the time limit to school districts and
parents. You should provide us within 10 days the timeline for
accomplishing each of these steps.

If you have any questions, please contact Dr. JoLeta Reynolds at
202-205-5507.

> Sincerely,
>
> /s/
>
> Stephanie S. Lee
>
> Director
>
> Office of Special Education Programs

Dated June 4, 2002

Dr. Melody Bounds

Bureau Director

Program Improvement and Outreach

Mississippi State Department of Education

P.O. Box 771

Jackson, Mississippi 39205-0771

Dear Dr. Bounds:

Mississippi's 30-day limit for filing a civil action under the IDEA in
court appears to be inconsistent with applicable law of the U.S. Court
of Appeals for the Fifth Circuit. Mississippi submitted policies and
procedures as part of its eligibility documents for funding under Part B
of the Individuals with Disabilities Education Act (IDEA) that sets
forth on page VII-16 that hearing officer decisions may be appealed "in
any state court of competent jurisdiction or in a district court of the
United States without regard to the amount in controversy within thirty
(30) days from the date of the decision of the impartial due process
hearing officer."

The Fifth Circuit has specifically held that a 30-day limit for judicial
review of IDEA claims is inconsistent with the policies of the IDEA.
*See*, *Skokin,* 723 F.2d 432 (5^th^ Cir. 1984). In *Skokin*, the Fifth
Circuit specifically rejected application of a 30-day limit under Texas'
Administrative Procedures Act (APA) to judicial review of IDEA claims
because "a thirty day period is inconsistent with the purposes of the
\[IDEA\]." 723 F.2d at 438. The *Skokin* court cited among IDEA's
primary policies: to provide disabled children with a free appropriate
public education and to encourage parental involvement in their
children's educational decisions.

The *Skokin* court noted that "\[f\]orcing parents to decide whether to
appeal their complaint within thirty days of the state agency's
determination would be inconsistent with that goal \[of preventing
inappropriate placements of children with disabilities due to faulty
assessments of a child's needs\]." 723 F.2d at 437*.* "A short
limitations period is contrary to the Act's goal of parental
involvement. Thirty days is not enough time for parents to determine
whether to pursue judicial review of their complaint. A decision to jump
from an administrative process to federal court may involve obtaining or
changing counsel. n3 \[citing IDEA right to counsel provisions\] Parents
may want to conduct further testing of their child to better evalute the
agency's decision. ... In addition, because a child's welfare is an
emotional issue, parents may need time to reflect before choosing a
course of action." *Id.*

If you believe that *Skokin* is not applicable, please provide for our
review a detailed explanation no later than 10 days from the date of
this letter. Otherwise, please delete from page VII-16 and any other
Mississippi's Part B eligibility documents all references to the
applicability of the 30-day limit to all civil actions under the IDEA in
Missouri (whether in Federal or State court). We understand that
Mississippi has proposed legislation pending that may revise the
limitation period. If so, please submit the revised limitation period
and confirm in writing to OSEP the methods that Mississippi will use to
provide notice of this time limit change to school districts and
parents. You should provide us within 10 days the timeline for
accomplishing each of these steps.

If you have any questions, please contact Dr. JoLeta Reynolds at
202-205-5507.

Sincerely,

> /s/
>
> Stephanie S. Lee
>
> Director
>
> Office of Special Education Programs

Dated June 4, 2002

Ms. Melodie Friedebach

Coordinator of Special Education Services

Division of Special Education

Missouri Department of Elementary & Secondary Education

P.O. Box 480

Jefferson City, Missouri 65102-0580

Dear Ms. Friedebach:

Missouri's 30-day limit for filing a civil action under the IDEA in
State court appears to be inconsistent with applicable law of the U.S.
Court of Appeals for the Eighth Circuit. Missouri submitted policies and
procedures as part of its eligibility documents for funding under Part B
of the Individuals with Disabilities Education Act (IDEA) that sets
forth on page 30 that hearing officer decisions may be appealed to "the
state courts within thirty (30) days as provided in Chapter 536, RSMo.
...". Missouri Statute §536.110.1 specifically provides for a 30-day
time limit for judicial review of IDEA claims.

The Eighth Circuit has specifically held that a 30-day limit for
judicial review of IDEA claims is inconsistent with the policies of the
IDEA. *See*, *Birmingham v. Omaha School Dist. et al,* 220 F.3d 850
(8^th^ Cir. 2000). In *Birmingham*, the Eighth Circuit specifically
rejected application of a 30-day limit under Arkansas' Administrative
Procedures Act (APA) to judicial review of IDEA claims because it would
conflict with IDEA's two primary policies: (1) to provide disabled
children with a free appropriate public education and to encourage
parents and school officials to resolve disputes cooperatively "so that
the child is not needlessly deprived of the education mandated by law."

"Thirty days does not allow parents sufficient time to work with school
officials to resolve educational disputes. Useful discourse that may
resolve such disputes is foreclosed because parents are forced to
immediately litigate." 220 F.3d at 855. "\[T\]hirty days ... is
insufficient for an IDEA claim because review is de novo and may expand
beyond the record." *Id.* The *Birmingham* court further noted the
realities of parents of a child with a disability. A "truncated
limitations period does not take into account the realities of raising a
disabled child. ... , which leaves parents limited time to prepare a
lawsuit." In rejecting the Arkansas APA 30-day limit, the Eighth Circuit
applied a three-year statute of limitations applicable to Arkansas
general personal injury claims. "A three year statute of limitations
encourages parents to work with school officials to resolve disputes
over the disabled child's education. It also allows parents time to
prepare a federal lawsuit, and account for the time constraints faced by
parents of disabled children." 220 F.3d at 856.

If you believe that *Birmingham* is not applicable, please provide for
our review a detailed explanation no later than 10 days from the date of
this letter. Otherwise, please delete from Missouri's Part B eligibility
documents any references to the applicability of Mo. Chapter 536's
30-day limit to civil actions under the IDEA in Missouri and further
revise any Part B documents that impose such a limit. Kindly resubmit
these documents and also confirm in writing to OSEP the methods that
Missouri will use to provide notice of this time limit change to school
districts and parents. You should provide us within 10 days the timeline
for accomplishing each of these steps.

If you have any questions, please contact Dr. JoLeta Reynolds at
202-205-5507.

Sincerely,

> /s/

Stephanie S. Lee

Director

Office of Special Education Programs

Dated June 4, 2002

Mr. Gary M. Sherman

Administrator

Special Populations Office

Nebraska Department of Education

301 Centennial Mall South

P. O. Box 94987

Lincoln, Nebraska 68509-4987

Dear Mr. Sherman:

Nebraska's 30-day time period for filing in State court an appeal of a
due process hearing officer's decision under the IDEA appears
inconsistent with applicable law of the U.S. Court of Appeals for the
Eighth Circuit. Nebraska submitted Nebraska Statute §79-1167(2) and
Nebraska Rule 55,009.02 as part of its eligibility documents for funding
under Part B of the Individuals with Disabilities Education Act (IDEA).
These two provisions of Nebraska law provide that parties who wish to
file an IDEA action in court "must file a petition . . . within thirty
days after service of the final decision and\
order . . . ." Neb. Stat. §79-1167(2) & Rule 55,009.02.

The Eighth Circuit has specifically held that a 30-day limit for
judicial review of IDEA claims is inconsistent with the policies of the
IDEA. *See*, *Birmingham v. Omaha School Dist. et al,* 220 F.3d 850
(8^th^ Cir. 2000). In *Birmingham*, the Eighth Circuit specifically
rejected application of a 30-day limit under Arkansas' Administrative
Procedures Act (APA) to judicial review of IDEA claims because it would
conflict with IDEA's two primary policies: (1) to provide disabled
children with a free appropriate public education and (2) to encourage
parents and school officials to resolve disputes cooperatively "so that
the child is not needlessly deprived of the education mandated by law."

"Thirty days does not allow parents sufficient time to work with school
officials to resolve educational disputes. Useful discourse that may
resolve such disputes is foreclosed because parents are forced to
immediately litigate." 220 F.3d at 855. "\[T\]hirty days . . . is
insufficient for an IDEA claim because review is de novo and may expand
beyond the record." *Id.* The *Birmingham* court further noted the
realities of parents of a child with a disability. A "truncated
limitations period does not take into account the realities of raising a
disabled child . . . , which leaves parents limited time to prepare a
lawsuit." In rejecting the Arkansas APA 30-day limit, the Eighth Circuit
applied a three-year statute of limitations applicable to Arkansas
general personal injury claims. "A three year statute of limitations
encourages parents to work with school officials to resolve disputes
over the disabled child's education. It also allows parents time to
prepare a federal lawsuit, and account for the time constraints faced by
parents of disabled children." 220 F.3d at 856.

If you believe that *Birmingham* does not apply to Neb. Stat.
§79-1167(2) & Rule 55,009.02, please provide for our review a detailed
explanation no later than 10 days from the date of this letter.
Otherwise, please revise Neb. Stat. §79-1167(2) & Rule 55,009.02 to
delete the applicability of a 30-day limit to filing civil actions under
the IDEA in Nebraska. Kindly resubmit these Nebraska Part B eligibility
documents to OSEP for approval and also confirm in writing to OSEP the
methods that Nebraska will use to provide notice of the change in
Nebraska's time limit to school districts and parents. You should
provide us within 10 days the timeline for accomplishing each of these
steps.

If you have any questions, please contact Dr. JoLeta Reynolds at
202-205-5507.

Sincerely,

> /s/

Stephanie S. Lee

Director

Office of Special Education Programs