D.K. Ex Rel. Stephen K. v. Abington School District , 696 F.3d 233 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________
No. 10-2189
__________________
D. K., a minor, by and through his parents,
Stephen K. and Lisa K.; STEPHEN K.; LISA K., adults,
individually and on their own behalf,
Appellants
v.
ABINGTON SCHOOL DISTRICT
___________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 08-cv-04914)
District Judge: Honorable Cynthia M. Rufe
___________________
Submitted Under Third Circuit LAR 34.1(a)
July 9, 2012
Before: FUENTES, HARDIMAN
and ROTH, Circuit Judges.
(Filed: October 11, 2012)
Michael E. Gehring
Dennis C. McAndrews
McAndrews Law Offices
30 Cassatt Avenue
Berwyn, PA 19312
Attorneys for Appellants
Claudia L. Huot
Michael D. Kristofco
Wisler Pearlstine
460 Norristown Road
Suite 110
Blue Bell, PA 19422-0000
Attorneys for Appellee
____________________
OPINION OF THE COURT
___________________
HARDIMAN, Circuit Judge.
This case requires us to decide whether a public school
district’s failure to designate a struggling student as disabled
violated the Individuals with Disabilities Education Act (IDEA),
20 U.S.C. §§ 1400–1419, or § 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794. In making this determination, we
delineate for the first time the scope of the statutory exceptions
to the IDEA’s statute of limitations.
I
2
A
In the fall of 2003, D.K. began attending kindergarten in
a half-day program at Copper Beech Elementary in the
Abington, Pennsylvania, School District (the School District).
During that year, he struggled with reading and misbehaved
regularly. According to the School District’s psychologist, Dr.
Suzanne Grim, and the Copper Beech principal, Dr. Jan Kline,
D.K. failed to progress in several areas, including: following
oral directions, listening to and acknowledging the contributions
of others, exhibiting self-control, following rules, producing
neat and legible work, completing class work in the time
allotted, and using non-instructional time appropriately. At the
same time, Dr. Grim stated that while some preschool and
kindergarten students have difficulty following directions, it
does not necessarily indicate a disorder. A conference form
completed by D.K.’s kindergarten teacher indicated that D.K.
exhibited “much growth.” D.K. received “proficient,” “basic,”
and “below basic” marks in various reading skills, and received
one-on-one reading services from a specialist. At the conclusion
of the year, the School District recommended that D.K. repeat
kindergarten.
Although D.K.’s second year of kindergarten was a more
intensive full-day program, he showed little maturation. In
conference forms, D.K.’s teacher noted D.K.’s proficiency in
reading and advanced scores in math, but she expressed concern
about his behavior, his tendency to rush through classwork and
turn in incomplete assignments, and his difficulty controlling
himself, especially when he became upset. Indeed, D.K. threw
temper tantrums and was “defiant” and “extremely
argumentative.” His teachers documented forty-three tantrums
between March 14 and May 24, 2005.
3
In response, D.K.’s teachers implemented “behavior
plans,” including a sticker chart and a system using popsicle
sticks, but they did not conduct a functional behavioral
assessment. D.K.’s parents were optimistic about, and
cooperative in, these behavioral improvement plans. In the
meantime, D.K. was “doing very well academically,” and, for
the most part, “play[ing] well with others,”. Nevertheless, at the
end of the year, having witnessed little behavioral progress,
D.K.’s parents and teachers shared a “major concern” about
“how well [he] [would] handle a first grade classroom.”
Within the first two months of D.K.’s first-grade year, his
teacher convened a parent-teacher conference to discuss D.K.’s
“listening/following directions and organizational weaknesses.”
D.K. had been copying another student’s work, was unable to
recall instructions, exhibited poor organizational and planning
skills, misplaced his work, stuttered, and often lost his train of
thought. To resolve these problems, the teacher recommended,
among other things, measures D.K.’s parents could implement at
home. The possibility of a formal evaluation was not discussed
at that time.
At a second conference held the following month, D.K.’s
parents learned that he continued to struggle in the classroom
and was making obscene gestures towards his classmates. At a
third conference following the issuance of D.K.’s first report
card in December 2005, his teacher noted continuing behavioral
challenges, explained that she was “providing as many supports
as [she could] to aid” D.K., and opined that while “it was too
soon to discuss testing (because he [was] not failing), that might
be an option down the road.” The teacher’s notes reflect that
D.K.’s parents saw “no significant problem” and attributed his
behavior to “[D.K.] being [D.K.]”.
4
In January 2006, D.K.’s poor social skills led the School
District to place him in a special social skills group run by Dr.
Grim. According to Dr. Grim, D.K. was “on par with” other
students in the group.
That same month, D.K.’s parents requested an evaluation
of D.K., and on April 24, 2006, the School District administered
a cognitive ability test, which measures “innate ability,” and a
visual-motor integration test. Dr. Grim also administered a
Wechsler Intelligence Scale for Children–Fourth Edition and a
Wechsler Individual Achievement Test–Second Edition, and
observed D.K. in the classroom setting. She prepared an
Evaluation Report using the Behavior Assessment System for
Children (BASC), specifically assessing whether D.K. suffered
from Attention Deficit/Hyperactivity Disorder (ADHD). She
concluded that D.K.’s various scores placed him in average and
low-average ranges, and that D.K. was not in need of special
education services. Based on the BASC ratings, which are
completed by a student’s parents and teachers, D.K. was not in
an “at risk” or “clinically significant” range. His math and
reading tests showed he was proficient in both. D.K.’s parents
signed a Notice of Recommended Education Placement form
approving the April 2006 evaluation results, and D.K. was
promoted to second grade beginning in the fall of 2006.
Plaintiffs claim that despite extra help in math and
reading—which consisted of 30 minutes and 180 minutes per
week, respectively, —D.K. continued to struggle academically
during second grade. The School District, on the other hand,
contends that D.K. made “considerable progress.” The record
shows his grades improved compared with first grade, but he
fought with other children on the playground and on the bus.
5
Around January 2007, D.K. began seeing private
therapist Dr. Linn Cohen. At the end of March 2007, Dr. Cohen
informed D.K.’s teachers and the School District that she was
“[e]xtremely convinced” D.K. needed special placement. D.K.’s
teachers discussed the results of the April 2006 testing with Dr.
Cohen, who mentioned the possibility of re-testing D.K. At the
end of the school year, D.K.’s father notified the school that
outside testing had diagnosed D.K. with “auditory processing”
and “sensory stimulation” problems.
Before D.K. began third grade, in July 2007, his parents
formally requested a second, more comprehensive evaluation.
Additionally, despite improvement in D.K.’s behavior and
academic performance at the beginning of his third-grade year,
in September 2007 D.K.’s parents obtained a private pediatric
neurological evaluation from Dr. Peter R. Kollros. Dr. Kollros
diagnosed D.K. with ADHD and opined that D.K.’s “learning
would be enhanced if he were to have the usual kinds of school
accommodations for children with ADHD, including if needed
preferential seating, taking tests in an environment without
unnecessary distractions, organization support, and possibly
extra time for tests.” Two months later, the School District’s
own second round of testing determined that D.K. was eligible
for special education services as a student with “other health
impairment,” and he was offered an Individualized Education
Program (IEP) on November 30, 2007.
B
On January 8, 2008, in the midst of finalizing D.K.’s IEP,
his parents requested a due process hearing pursuant to the
IDEA and requested an award of compensatory education for
September 2004 through March 12, 2008, after D.K.’s IEP was
6
finalized and implemented. 1 After four hearings, the state
agency hearing officer denied Plaintiffs’ claims. The appeals
panel found no abuse of discretion and affirmed the hearing
officer’s findings. Having exhausted their administrative
remedies, Plaintiffs sought review of those decisions in the
District Court. 2 See 20 U.S.C. § 1415(i)(2)(A).
The District Court affirmed the state agency in all
1
The IDEA requires states to provide parents “[a]n
opportunity . . . to present a complaint . . . with respect to any
matter relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate
public education to such child.” 20 U.S.C. § 1415(b)(6)(A);
accord Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,
550 U.S. 516, 525 (2007). The parents later may “request an
‘impartial due process hearing,’ which must be conducted either
by the local educational agency or by the state educational
agency, and where a hearing officer will resolve issues raised in
the complaint.” Winkelman, 550 U.S. at 525 (citations omitted)
(citing 20 U.S.C. § 1415(f)(1)(A), (3)). Pennsylvania state
regulations provide that parents “may request an impartial due
process hearing” if they “disagree with [a] school district’s . . .
identification, evaluation, or placement of, or the provision of a
free appropriate public education to the student.” 22 Pa. Code
§ 14.162(b).
2
Under the IDEA, a reviewing federal court “(i) shall
receive the records of the administrative proceedings; (ii) shall
hear additional evidence at the request of a party; and (iii)
basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate.” 20
U.S.C. § 1415(i)(2)(C).
7
respects. It concluded that the IDEA’s statute of limitations,
which was passed in 2004, barred Plaintiffs from seeking relief
for any of the School District’s conduct prior to January 8, 2006,
(two years before Plaintiffs requested a due process hearing),
D.K. v. Abington Sch. Dist., No. 08-4914, 2010 WL 1223596, at
*6 (E.D. Pa. Mar. 25, 2010), and that Plaintiffs were ineligible
for two statutory exceptions to the IDEA statute of limitations,
id. at *4–6. In concluding that the School District did not
violate its obligation to identify students in need of special
education, the District Court opined:
[P]rior to receiving a diagnosis of ADHD and
conducting its second evaluation, the [School]
District had insufficient reason to believe that
D.K. was a student with a mental impairment that
substantially limited one or more of his major life
activities. The Court agrees with the Hearing
Officer’s logic that one must take into account the
fact that children develop cognitively and socially
at different rates. In this instance, the problems
experienced by D.K., which later triggered a
second special education evaluation, were not so
pronounced in his earlier development.
Id. at *7. The Court also rejected Plaintiffs’ argument that the
School District failed to provide D.K. a free appropriate public
education (FAPE) before November 2007, when it designed an
IEP for him. The Court found that D.K.’s behavior did not
require the school to conduct a functional behavioral assessment
as part of the April 2006 evaluation and that the testing
8
performed at that time was legally adequate. 3 Id. at *8–9.
Finally, the District Court denied Plaintiffs’ request to introduce
additional evidence, namely: (1) a report by Dr. Emily Perlis
offering a post hoc analysis of the appropriateness of the School
District’s responses to D.K.’s behavioral problems during each
of his school years; and (2) the Pennsylvania Department of
Education Guidelines, which set forth non-binding best
practices. Id. at *10–11. Plaintiffs timely appealed, and we now
consider the state agency and District Court decisions rejecting
their claims.
II
The District Court had jurisdiction pursuant to 20 U.S.C.
§ 1415(i)(2) and 28 U.S.C. § 1331. We have jurisdiction over
its final order under 28 U.S.C. § 1291.
In cases arising under the IDEA, we apply a “modified de
novo” standard of review, “giv[ing] ‘due weight’ and deference
to the findings in the administrative proceedings.” P.P. ex rel.
Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 734 (3d
Cir. 2009) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206
(1982); S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d
260, 269–70 (3d Cir. 2003)). Like the District Court, we “must
accept the state agency’s credibility determinations unless the
non-testimonial, extrinsic evidence in the record would justify a
contrary conclusion.” Shore Reg’l High Sch. Bd. of Educ. v.
3
In the District Court, Plaintiffs also alleged that the IEP
developed in November 2007 following D.K.’s second
evaluation failed to provide a FAPE. D.K., 2010 WL 1223596,
at *9–10. The District Court rejected that argument, id., and
Plaintiffs have abandoned it on appeal.
9
P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (citation,
internal quotation marks, and emphasis omitted). “The statute
of limitations claims and [Plaintiffs’] claims for compensatory
education . . . are subject to plenary review as conclusions of
law.” P.P., 585 F.3d at 735. But “whether [Plaintiffs] proved
an exception to the [2004 IDEA] statute of limitations, and
whether the [School] District fulfilled its FAPE obligations . . .
are subject to clear error review as questions of fact.” Id. (citing
S.H., 336 F.3d at 271). Such “‘[f]actual findings from the
administrative proceedings are to be considered prima facie
correct,’ and if [we] do[] not adhere to those findings,” we must
“‘explain why.’” Id. at 734 (quoting S.H., 336 F.3d at 270). As
the party seeking relief and the party challenging the
administrative decisions, Plaintiffs bear the burden of persuasion
on their IDEA and Rehabilitation Act claims. Ridley Sch. Dist.
v. M.R., 680 F.3d 260, 270 (3d Cir. 2012) (citing Schaffer v.
Weast, 546 U.S. 49, 56 (2005)).
III
“The IDEA protects the rights of disabled children by
mandating that public educational institutions identify and
effectively educate those children, or pay for their education
elsewhere if they require specialized services that the public
institution cannot provide.” P.P., 585 F.3d at 735. Accordingly,
schools must: (1) identify children in need of special education
services (Child Find); and (2) provide a FAPE to disabled
students. Plaintiffs contend that the School District neglected
both duties by failing to identify D.K. as a disabled student
based on his subpar behavioral and academic performances in
kindergarten through third grade, by administering incomplete
testing in April 2006 that was ill-suited to diagnose ADHD, and
by offering inadequate support to D.K. before November 2007.
10
Because our analysis of the School District’s obligations
under the IDEA and § 504 of the Rehabilitation Act is
circumscribed by the IDEA statute of limitations, see P.P., 585
F.3d at 735–37, we begin by delimiting the time period to which
D.K.’s claims apply.
A
The IDEA statute of limitations requires a parent to
request a due process hearing within two years of “the date the
parent . . . knew or should have known about the alleged action
that forms the basis of the complaint.” 4 20 U.S.C.
§ 1415(f)(3)(C); 34 C.F.R. § 300.511(e). Parents have the same
two years to file an administrative complaint alleging a violation
of the IDEA or § 504 of the Rehabilitation Act. 20 U.S.C.
§ 1415(b)(6)(B); 34 C.F.R. § 300.507(a)(2). We have held that
the IDEA statute of limitations applies to claims brought after it
was passed in 2004, even if the conduct occurred before its
passage. Steven I. v. Cent. Bucks Sch. Dist., 618 F.3d 411, 413–
16 (3d Cir. 2010). We have also held that the IDEA statute of
limitations applies to § 504 claims premised on IDEA
obligations, such as those invoking Child Find and FAPE duties.
P.P., 585 F.3d at 735–37. Therefore, the IDEA statute of
limitations applies to all of Plaintiffs’ claims at issue in this
appeal.
4
The IDEA statute of limitations also permits parents to
request a hearing “in such time as the State law allows,” “if the
State has an explicit time limitation for requesting such a
hearing.” 20 U.S.C. § 1415(f)(3)(C). Pennsylvania has adopted
the IDEA statute of limitations regulations in their entirety. 22
Pa. Code § 14.102(a)(2)(xxix)–(xxx).
11
Plaintiffs do not dispute that because they requested a due
process hearing on January 8, 2008, the statute of limitations
generally would limit their claims to the School District’s
conduct after January 8, 2006. Nevertheless, they seek refuge in
two exceptions to the statute of limitations and, alternatively,
equitable tolling doctrines.
The two exceptions upon which Plaintiffs rely state that
the statute
shall not apply . . . if the parent was prevented
from requesting the hearing due to—
(i) specific misrepresentations by the local
educational agency that it had resolved the
problem forming the basis of the
complaint; or
(ii) the local educational agency’s
withholding of information from the parent
that was required under this subchapter to
be provided to the parent.
20 U.S.C. § 1415(f)(3)(D)(i)–(ii); accord 34 C.F.R.
§ 300.511(f)(1)–(2). Invoking subsection (i), Plaintiffs argue
that the School District misrepresented D.K.’s success by
advising that his academic, behavioral, and social deficits could
be addressed through individualized supports short of special
education placement. Citing subsection (ii), Plaintiffs also
assert that the School District did not provide them with a
permission to evaluate form until January 5, 2006.
While district courts within the Third Circuit have
interpreted the statute of limitations exceptions on several
12
occasions over the last few years, the scope of these exceptions
is an issue of first impression for United States Courts of
Appeals.
1
a
The first exception to the statute of limitations is set forth
in § 1415(f)(3)(D)(i). As district courts have noted, “both
statutory and regulatory guidance are lacking” regarding the
contours of the “specific misrepresentations” referenced in that
exception. I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist.,
842 F. Supp. 2d 762, 775 (M.D. Pa. 2012); accord Evan H. ex
rel. Kosta H. v. Unionville-Chadds Ford Sch. Dist., No. 07-
4990, 2008 WL 4791634, at *6 (E.D. Pa. Nov. 4, 2008).
Accordingly, we begin our analysis with the scope and meaning
of subsection (i). In crafting the implementing regulations, see
34 C.F.R. § 300.511(f)(1), regulators did “not believe it . . .
appropriate to define or clarify the meaning of
‘misrepresentations,’ as requested by the commenters[, stressing
that] [s]uch matters are within the purview of the hearing
officer.” 71 Fed. Reg. 46,540, 46,706 (Aug. 14, 2006).
Therefore, while we must delineate the meaning of this
exception so we can review decisions of hearing officers and
appeals panels, we reiterate that significant deference is owed to
their applications of both exceptions and that we review them
for clear error. See P.P., 585 F.3d at 735.
Several district courts and administrative adjudicators
have interpreted the meaning of “specific misrepresentation” in
§ 1415(f)(3)(D)(i). According to the Pennsylvania appeals
panel, the majority view is that in order for the exception to
13
apply, “the alleged misrepresentation . . . must be intentional or
flagrant rather than merely a repetition of an aspect of the FAPE
determination.” In re Educ. Assignment of C.C., Spec. Ed. Op.
No. 1866, at 10 & n.64 (Mar. 5, 2008) (citing cases). Several
district courts have reached the same conclusion. See I.H., 842
F. Supp. 2d at 775 (“‘[A]t the very least, a misrepresentation
must be intentional in order to satisfy [this exception].’” (second
alteration in original) (quoting Evan H., 2008 WL 4791634, at
*6)); Sch. Dist. of Phila. v. Deborah A., No. 08-2924, 2009 WL
778321, at *4 (E.D. Pa. Mar. 24, 2009); Evan H., 2008 WL
4791634, at *6 (“[T]o show a ‘specific misrepresentation,’
Plaintiffs must establish not that the [school’s] evaluations of
the student’s eligibility under IDEA were objectively incorrect,
but instead that the [school] subjectively determined that the
student was eligible for services under IDEA but intentionally
misrepresented this fact to the parents.”). But see J.L. ex rel.
J.L. v. Ambridge Area Sch. Dist., No. 06-1652, 2009 WL
1119608, at *11–12 (W.D. Pa. Apr. 27, 2009) (finding negligent
misrepresentation sufficient), abrogated on other grounds by
Steven I., 618 F.3d 411.
We agree that the high threshold articulated by the
district courts reflects a proper interpretation of subsection (i).
In the absence of a showing of “misrepresentation” akin to
intent, deceit, or egregious misstatement, any plaintiff whose
teachers first recommended behavioral programs or instructional
steps short of formal special education might invoke the
exception. Mere optimism in reports of a student’s progress
would toll the statute of limitations. The allegations comprising
a claim that a FAPE was denied or that Child Find obligations
were not met would nearly always suffice to extend the
timeframe beyond that dictated by the statute of limitations. See
I.H., 842 F. Supp. 2d at 775 (“We decline to hold . . . that action
14
which constitutes the basis for the IDEA claim itself can, absent
more, satisfy the exception to the statute of limitations; doing so
would allow the exception to become the rule, and the
limitations period would be all but eliminated.”); Deborah A.,
2009 WL 778321, at *4; Evan H., 2008 WL 4791634, at *6 n.3
(“Plaintiffs would have the Court read ‘misrepresentation’ to
include any occasion in which the actions of a local educational
agency have failed to remedy an educational problem
encountered by a student. Such an exception would swallow the
rule established by the limitation period.”). This cannot be the
intent of the regulation. Rather, we conclude that a rule
demanding at least a school’s knowledge that its representations
of a student’s progress or disability are untrue or inconsistent
with the school’s own assessments best comports with the
language and intent of the provisions. Therefore, we hold that
in order to be excused from the statute of limitations based on
§ 1415(f)(3)(D)(i) because the school “specific[ally]
misrepresent[ed] . . . that it had resolved the problem,” plaintiffs
must show that the school intentionally misled them or
knowingly deceived them regarding their child’s progress.
Unlike subsection (i), the language of the second
exception at § 1415(f)(3)(D)(ii)—“withholding of information
from the parent that was required under this subchapter to be
provided to the parent”—requires little elaboration. The text of
subsection (ii) plainly indicates that only the failure to supply
statutorily mandated disclosures can toll the statute of
limitations. In other words, plaintiffs can satisfy this exception
only by showing that the school failed to provide them with a
written notice, explanation, or form specifically required by the
IDEA statutes and regulations. District courts in this Circuit
have properly limited this exception to such circumstances. See
I.H., 842 F. Supp. 2d at 775; Deborah A., 2009 WL 778321, at
15
*5; Evan H., 2008 WL 4791634, at *7; see also Evan H., 2008
WL 4791634, at *7 (concluding that subsection (ii) “refers
solely to the withholding of information regarding the
procedural safeguards available to a parent,” including “‘filing a
complaint and requesting an impartial due process hearing’”
(quoting D.G. v. Somerset Hills Sch. Dist., 559 F. Supp. 2d 484,
492 (D.N.J. 2008))); D.G., 559 F. Supp. 2d at 490, 492(applying the exception where the school failed to provide
parents who had repeatedly requested a special-education
evaluation with either “written notice explaining why [it]
refused to evaluate” the student or a procedural safeguards
notice, both of which are required by 20 U.S.C. § 1415(b)(3)(B)
and (c)(1)(A)–(C) when a school refuses to evaluate or change a
student’s educational placement).
Having analyzed subsections (i) and (ii) of
§ 1415(f)(3)(D), the clause that introduces those subsections—
“if the parent was prevented from requesting the hearing due
to”—merits discussion. This language imposes an additional
requirement for invoking either of the two exceptions to the
statute of limitations. Establishing evidence of specific
misrepresentations or withholding of information is insufficient
to invoke the exceptions; a plaintiff must also show that the
misrepresentations or withholding caused her failure to request a
hearing or file a complaint on time. The terms “prevented from”
and “due to” denote a causation requirement. Thus, where the
evidence shows, for example, that parents were already fully
aware of their procedural options, they cannot excuse a late
filing by pointing to the school’s failure to formally notify them
of those safeguards.
b
16
Applying these standards to D.K.’s case, we find no clear
error in the administrative findings below that Plaintiffs failed to
prove the applicability of the exceptions to the IDEA statute of
limitations.
As to subsection (i), neither the School District nor its
individual teachers intentionally or knowingly misled Plaintiffs
regarding the extent of D.K.’s academic and behavioral issues or
the efficacy of the solutions and programs they attempted.
Throughout the relevant school years, D.K.’s teachers held
numerous conferences with his parents at which they described,
often in detail, his misconduct, frustration, challenges, and
development. The majority of these conferences were
specifically aimed to notify his parents of his poor performance.
The School District proposed solutions, but it did not imply, let
alone state with any confidence, that these measures would
succeed or eliminate the eventual need for an evaluation.
Individualized behavioral plans did yield some improvement,
and the School District accurately reported those results to
D.K.’s parents. Notably, neither the conference forms nor the
remainder of the record in this case suggest that the School
District represented that these minor improvements resolved
D.K.’s behavioral challenges or obviated the need for
monitoring and parent-teacher cooperation, i.e. “resolved the
problem forming the basis of the complaint,” § 1415(f)(3)(D)(i).
Moreover, teachers sought parental permission and input at
every step. When one of D.K.’s teachers suggested in 2005 that
testing was not yet necessary, she cautioned that a more formal
evaluation might be beneficial down the road. Thus, the School
District’s statements to D.K.’s parents fall well short of the sort
of intentional or knowing misrepresentation required to toll the
statute of limitations under § 1415(f)(3)(D)(i).
17
With respect to subsection (ii), Plaintiffs claim the School
District provided them with neither a permission to evaluate
form nor a procedural safeguards notification until after they
requested an evaluation of D.K. in January 2006. But the
School District was not obligated to do so in these
circumstances. Procedural safeguard notices must be provided
only when: (1) the student is referred for, or the parents request,
an evaluation; (2) the parents file a complaint; or (3) the parents
specifically request the forms. See id. § 1415(d); see also 22 Pa.
Code § 14.123(c) (requiring schools to keep permission to
evaluate forms available, but mandating that schools provide a
copy only when parents orally request an evaluation).
As for the permission to evaluate form, Plaintiffs’
argument that the School District should have notified them of
the availability of an evaluation pursuant to 34 C.F.R. § 300.304also fails. While the school “must provide notice . . . that
describes any evaluation procedures the agency proposes to
conduct,” 34 C.F.R. § 300.304(a) (emphasis added); accord id.§ 300.503, the regulations do not demand that the school
preemptively advise parents of their right to have their child
evaluated. 5 Even if the regulations did require such anticipatory
5
Citing Centennial School District v. S.D. ex rel. Daniel
D., No. 10-4129, 2011 WL 6117278, at *6 (E.D. Pa. Dec. 8,
2011), Plaintiffs assert that their expressions of concern
regarding D.K.’s academic and behavioral progress amounted to
a request for an evaluation, triggering the School District’s duty
to provide them with a procedural safeguards notice and a
permission to evaluate form. We disagree with that reasoning
from S.D. because we cannot conclude that general expressions
of concern constitute a “parental request for evaluation” under
the plain terms of the statute. 20 U.S.C. § 1415(d)(1)(A)(i)
18
notice, Plaintiffs have not established causation; D.K.’s parents
were not “prevented from requesting the hearing” by any such
omission. Their own unprompted request for an evaluation in
January 2006 demonstrates that they were aware of their right to
seek one. Additionally, in December 2005, although the School
District encouraged postponing a formal evaluation, it made
D.K.’s parents aware of that option by noting that it might be an
appropriate step down the road.
2
Plaintiffs argue in the alternative that two common law
equitable tolling doctrines should apply: (1) “minority tolling,”
which applies to plaintiffs who were minors when their claims
accrued; and (2) tolling because the School District prevented
Plaintiffs from learning of the basis for their claims. We
disagree. Although the statute is silent on the matter, legislative
intent and the doctrine of exclusio unius preclude application of
common law equitable tolling principles to save claims
otherwise foreclosed by the IDEA statute of limitations. First,
the legislative and regulatory history of the 2004 amendments to
the IDEA makes clear that only the enumerated statutory
exceptions may exempt a plaintiff from having his claims time-
barred by the statute of limitations. See S. Rep. No. 108-185, at
40 (2003) (“The committee does not intend that common law
determinations of statutes of limitations override this specific
(emphasis added); see also 22 Pa. Code § 14.123(c) (“Parents
may request an evaluation at any time, and the request must be
in writing. . . . If a request is made orally to any professional
employee or administrator of the school entity, that individual
shall provide a copy of the permission to evaluate form to the
parents within 10-calendar [sic] days of the oral request.”).
19
directive . . . .”); 71 Fed. Reg. 46,540, 46,697 (Aug. 14, 2006)
(“It is not necessary to clarify that common-law directives
regarding statutes of limitations should not override the Act or
State regulatory timelines, as the commenters recommended,
because the Act and these regulations prescribe specific
limitation periods which supersede common law directives in
this regard.”). Second, “[w]here Congress explicitly enumerates
certain exceptions to a general prohibition, additional exceptions
are not to be implied, in the absence of a contrary legislative
intent.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616–17
(1980).
Accordingly, IDEA plaintiffs cannot escape its statute of
limitations by invoking equitable tolling doctrines recognized
under state law. They can argue only for the application of one
of the statutory exceptions, as the district courts have correctly
held. See Evan H., 2008 WL 4791634, at *5 (concluding that
the IDEA statute of limitations “is not subject to the continuing
violation or equitable tolling doctrines, but . . . instead, . . . can
be extended only for one of the enumerated statutory
exceptions”); J.L. ex rel. J.L. v. Ambridge Area Sch. Dist., 622
F. Supp. 2d 257, 269 (W.D. Pa. 2008) (“The Court agrees . . .
that the Regulations firmly establish that the two exceptions
specifically set forth in the statute are the exclusive exceptions
to the statute of limitations . . . .”).
In sum, because D.K.’s parents are ineligible for the
statutory exceptions and because common law equitable tolling
doctrines do not apply, their claims are limited to violations after
January 8, 2006.
B
20
We next consider the merits of Plaintiffs’ claim that they
are entitled to the equitable remedy of compensatory education
because the School District failed to identify D.K. as disabled
and to provide him a FAPE. “‘A disabled student’s right to
compensatory education accrues when the school knows or
should know that the student is receiving an inappropriate
education.’” P.P., 585 F.3d at 739 (quoting Lauren W. ex rel.
Jean W. v. DeFlaminis, 480 F.3d 259, 272 (3d Cir. 2007)).
When a school fails to correct a situation in which a disabled
student “is not receiving more than a de minimis educational
benefit,” the “child is entitled to compensatory education for a
period equal to the period of deprivation, excluding only the
time reasonably required for the school district to rectify the
problem.” M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d
389, 391–92 (3d Cir. 1996). “Obviously the case against [a]
school district will be stronger if the district actually knew of the
educational deficiency or the parents had complained,” but
where a school should have known if it had complied with its
statutory duties, a compensatory-education remedy still may be
appropriate. Id. at 397.
The remedy of compensatory education is available only
where a student’s substantive rights are affected by a school
district’s non-compliance with the IDEA. “Accordingly, ‘[a]
procedural violation is actionable under the IDEA only if it
results in a loss of educational opportunity for the student,
seriously deprives parents of their participation rights, or causes
a deprivation of educational benefits.’” M.R., 680 F.3d at 274
(quoting D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d
Cir. 2010)).
“School districts have a continuing obligation under the
IDEA and § 504”—called “Child Find”—“to identify and
21
evaluate all students who are reasonably suspected of having a
disability under the statutes.” P.P., 585 F.3d at 738 (emphasis
added); accord 20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.111. A
school’s failure to comply with Child Find may constitute a
procedural violation of the IDEA. E.g., D.A. ex rel. Latasha A.
v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010)
(calling the Child Find requirement a “procedural regulation[]”);
Bd. of Educ. of Fayette Cnty., Ky. v. L.M., 478 F.3d 307, 313
(6th Cir. 2007) (characterizing noncompliance with Child Find
as a procedural violation).
Child Find extends to children “who are suspected of
[having] . . . a disability . . . and in need of special education,
even though they are advancing from grade to grade.” 34 C.F.R.
§ 300.111(c)(1); accord L.M., 478 F.3d at 313; Taylor v.
Altoona Area Sch. Dist., 737 F. Supp. 2d 474, 484 (W.D. Pa.
2010). As several courts have recognized, however, Child Find
does not demand that schools conduct a formal evaluation of
every struggling student. See, e.g., J.S. v. Scarsdale Union Free
Sch. Dist., 826 F. Supp. 2d 635, 661 (S.D.N.Y. 2011) (“The
IDEA’s child find provisions do not require district courts to
evaluate as potentially ‘disabled’ any child who is having
academic difficulties.”). A school’s failure to diagnose a
disability at the earliest possible moment is not per se
actionable, in part because some disabilities “are notoriously
difficult to diagnose and even experts disagree about whether
[some] should be considered a disability at all.” A.P. ex rel.
Powers v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 226 (D.
Conn. 2008).
Plaintiffs claim that the School District violated its Child
Find duties in three ways: (1) by failing to evaluate D.K. within
a reasonable time after it should reasonably have suspected a
22
disability; (2) by conducting an inappropriate evaluation in April
2006; and (3) by failing to suspect disability when D.K.’s
struggles continued after April 2006.
We have “‘infer[red] a requirement that [schools identify
disabled children] within a reasonable time after school officials
are on notice of behavior that is likely to indicate a disability.’”
M.R., 680 F.3d at 271 (quoting W.B. v. Matula, 67 F.3d 484, 501
(3d Cir. 1995), abrogated on other grounds by A.W. v. Jersey
City Pub. Schs., 486 F.3d 791 (3d Cir. 2007)). This requirement
“is implicit in the ‘child find’ duty.” W.B., 67 F.3d at 501(holding that a jury could reasonably find a violation of Child
Find where a school failed to conduct an evaluation within six
months after the personal observations of teachers and the
receipt of information from parents provided notice of the
student’s likely disability). Accordingly, such a delay can
constitute a procedural Child Find violation.
Moreover, a poorly designed and ineffective round of
testing does not satisfy a school’s Child Find obligations. See,
e.g., G.D. ex rel. G.D. v. Wissahickon Sch. Dist., 832 F. Supp.
2d 455, 465–67 (E.D. Pa. 2011) (finding that the school’s
reevaluation of an elementary school student with significant
behavioral problems was inadequate because it overemphasized
the student’s academic proficiency and assessed behavioral
issues only cursorily). The IDEA requires that initial
evaluations upon suspicion of a disability
(A) use a variety of assessment tools and
strategies to gather relevant functional,
developmental, and academic information,
including information provided by the parent
. . . [;]
23
(B) not use any single measure or assessment as
the sole criterion for determining whether a child
is a child with a disability or determining an
appropriate educational program for the child; and
(C) use technically sound instruments that may
assess the relative contribution of cognitive and
behavioral factors, in addition to physical or
developmental factors.
20 U.S.C. § 1414(b)(2)(A)–(C); 34 C.F.R. § 300.304(b)(1)–(3).
It further mandates, among other things, that evaluation
materials be “used for purposes for which the assessments or
measures are valid and reliable” and that children be “assessed
in all areas of suspected disability.” 20 U.S.C.
§ 1414(b)(3)(A)(iii), (B); 34 C.F.R. § 300.304(c)(1)(iii), (4).
But while an evaluation should be tailored to the specific
problems a potentially disabled student is having, it need not be
designed to identify and diagnose every possible disability. See
P.P., 585 F.3d at 738–39 (rejecting the parents’ argument that
an evaluation report was deficient because it failed to identify a
math disability and did not test for social and emotional
functioning, reasoning that “those areas were not identified as
suspected disabilities and so were properly excluded” from the
screening).
We agree with the decisions below that Plaintiffs have
failed to establish an unwarranted delay, 6 a deficient April 2006
6
Although more than sixty days elapsed between the date
on which Plaintiffs returned the permission to evaluate form to
the School District, February 11, 2006, and the evaluation on
April 26, 2006, see 20 U.S.C. § 1414(a)(1)(C)(i)(I) (giving
24
evaluation, or evidence showing the School District should
reasonably have suspected D.K. was disabled and in need of
special education services after April 2006.
The School District was not required to jump to the
conclusion that D.K.’s misbehavior denoted a disability or
disorder because hyperactivity, difficulty following instructions,
and tantrums are not atypical during early primary school years.
See L.M., 478 F.3d at 314 (finding no violation where witnesses
testified that the student’s “difficulties would not necessarily
indicate a disability or a need for special education, and that it
would be inappropriate to rush to identify a child that young as
disabled”); id. (noting that “[s]chool personnel . . . testified that
[the student’s] behavioral and learning problems were not
atypical of immature young boys”); see also Scarsdale Union,
826 F. Supp. 2d at 662–63 (finding no Child Find violation
where a high school junior’s absences and difficulty keeping up
with assignments were “not unusual among first-semester
juniors . . . [and] five or six other kids were having similar
problems at the time”). Moreover, D.K.’s report cards and
conference forms indicated intermittent progress and even
academic success in several areas. Cf. L.M., 478 F.3d at 311
schools sixty days to conduct an evaluation after receipt of the
parents’ form), this mere procedural noncompliance is
insufficient to merit compensatory-education relief unless it also
resulted in the substantive denial of a FAPE. See M.R., 680
F.3d at 273; C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 66–
67 (3d Cir. 2010). As we explain infra, we find no such
substantive failure by the School District. Separately, to the
extent Plaintiffs claim the School District violated Child Find by
failing to test D.K. before January 2006, their claim is barred by
the statute of limitations.
25
(finding no violation where a student was “meeting
expectations” in academic areas despite struggling with social
and behavioral problems throughout elementary school).
Nor do we find error in the conclusions that the April
2006 battery of tests was adequate under Child Find. Plaintiffs
contend, among other things, that the School District’s failure to
use a functional behavioral assessment rendered the testing
legally inadequate. But the IDEA and its implementing
regulations do not require that a school use a functional
behavioral assessment when initially testing students for
suspected disabilities. 7 The four tests the School District did
employ covered discrepant skill sets and probed for indicia of
varying disabilities. The mere fact that a subsequent evaluation
of D.K. yielded a different result—i.e. he was found disabled
with an “other health impairment” in November 2007 but did
not qualify in April 2006—does not necessarily render the
earlier testing inadequate. Cf. M.R., 680 F.3d at 264–66 (finding
no Child Find violation where a school’s February 2007
evaluation concluded that a student did not have a learning
disability but its February 2008 testing found reading, math,
reasoning, and writing disabilities). Therefore, we will not
7
The IDEA’s only mention of the functional behavioral
assessment method is in § 1415(k)(1)(D), which requires use of
that technique when a disabled student, who is already being
educated pursuant to an IEP, continues to exhibit behavioral
problems. This neither precludes nor requires use of a
functional behavioral assessment in initial disability evaluations.
As with all evaluations, the component testing mechanisms
must be determined on a case-by-case basis depending on the
suspected disability and the student’s needs. See 20 U.S.C.
§ 1414(b)(2)(A)–(C); 34 C.F.R. § 300.304(b)(1)–(3).
26
second-guess the findings of the state agency or the District
Court on this question. D.K., 2010 WL 1223596, at *7–9.
We are also unpersuaded that the School District violated
its Child Find obligations by failing to suspect D.K. of a
disability after the April 2006 evaluation based on further
misconduct and additional opinions by his parents and private
therapist. See M.R., 680 F.3d at 273 (“When a school district
has conducted a comprehensive evaluation and concluded that a
student does not qualify as disabled under the IDEA, the school
district must be afforded a reasonable time to monitor the
student’s progress before exploring whether further evaluation is
required. . . . The IDEA does not require a reevaluation every
time a student posts a poor grade.”). Plaintiffs’ argument in this
respect is belied by the record and inconsistent with the findings
of the state agency below. D.K. exhibited improvement after his
April 2006 evaluation, and his continuing misbehavior was
typical of boys his age. D.K.’s parents consistently approved
and cooperated with the behavioral plans devised by his
teachers. Moreover, when Dr. Cohen opined in May 2007 that
D.K. required special education, teachers discussed with her the
results of the April 2006 evaluation. The record does not
disclose that she further pressed for formal accommodations.
Finally, the measures the School District did take to assist
D.K. in the classroom militate against finding a Child Find
violation. His teachers did not neglect his difficulties. Far from
it, they and other Copper Beech faculty took proactive steps to
afford him extra assistance and worked closely with his parents
to maximize his potential for improvement. It would be wrong
to conclude that the School District failed to identify D.K. as a
challenged student when it offered him substantial
accommodations, special instructions, additional time to
27
complete assignments, and one-on-one and specialist attention
en route to eventually finding a disability. Cf. M.R., 680 F.3d at
272 (agreeing with a hearing officer’s decision that no Child
Find violation occurred where the school district’s investment in
“addressing [a student’s] needs and providing appropriate
instruction and interventions before rushing to special education
identification” was apparent).
In sum, schools need not rush to judgment or
immediately evaluate every student exhibiting below-average
capabilities, especially at a time when young children are
developing at different speeds and acclimating to the school
environment. Moreover, neither the failure to employ a
functional behavioral assessment nor a subsequent disability
finding is per se indicative of an inappropriate evaluation. The
School District did not breach its Child Find duty by failing to
test D.K. until April 2006, during his first-grade year, or by
declining to label him disabled under the IDEA until his second-
grade year.
Plaintiffs’ claim for compensatory education is further
foreclosed because the hearing officer, appeals panel, and
District Court correctly determined that D.K. was not denied a
FAPE. D.K. demonstrated academic progress in math and
reading as he progressed from grade to grade. During the 2004–
2005 school year, his teachers noted that he possessed advanced
math skills, and between 2003 and 2006, he received numerous
“proficient” and “advanced” marks in reading, social studies,
health and safety, math, music, art, and physical education.
When D.K. became frustrated with reading and communication
skills, the School District provided him with one-on-one tutoring
and gave him additional time to complete tests. To address his
below-average social development, D.K.’s teachers designed
28
individualized systems, which yielded some progress. See L.M.,
478 F.3d at 314 (finding that the school provided a FAPE
where, although it had not identified the student as IDEA-
eligible, its individualized “interventions . . . were moderately
successful” and supplied extra assistance necessary for a
meaningful education); see also M.C., 81 F.3d at 395–96
(denying compensatory education where the school believed in
good faith that it was providing an appropriate education, noting
that “[a] difference of opinion as to the adequacy of an
educational program is not equivalent to a complete and total
failure to provide a child with an education”). Indeed, these are
precisely the types of special measures D.K.’s neurologist
recommended after diagnosing him with ADHD. Therefore, we
conclude that D.K. received a FAPE and is not entitled to a
compensatory education award. 8 See P.P., 585 F.3d at 739.
8
Our analysis and conclusion in this respect govern not
only Plaintiffs’ IDEA claims, but also their arguments premised
on § 504 of the Rehabilitation Act. Section 504 mandates that
“‘[n]o otherwise qualified individual with a disability . . . shall,
solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination’ under any program that receives federal funds.”
M.R., 680 F.3d at 280 (alteration in original) (quoting 29 U.S.C.
§ 794(a)). “As we have explained, § 504’s ‘negative
prohibition’ is similar to the IDEA’s ‘affirmative duty’ and . . .
requires schools that receive federal financial assistance to
‘provide a free appropriate public education to each qualified
handicapped person who is in the recipient’s jurisdiction.’” Id.
(quoting W.B., 67 F.3d at 492–93). As under the IDEA,
providing a FAPE in accordance with § 504 requires a school
district to “reasonably accommodate the needs of the
29
C
Plaintiffs lastly argue that the District Court erred by
excluding the expert report of Dr. Emily Perlis and the
Pennsylvania Department of Education Guidelines, both of
which Plaintiffs offered for the first time in the District Court.
A district court reviewing administrative IDEA decisions “shall
hear additional evidence at the request of a party,” 20 U.S.C.
§ 1415(i)(2)(C)(ii), but “the question of what additional
evidence to admit in an IDEA judicial review proceeding . . .
should be left to the discretion of the trial court,” Susan N. v.
Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir. 1995). As the
District Court reasoned, all a court must do is “consider the
party’s request to admit additional evidence” and “not
summarily reject” it. D.K., 2010 WL 1223596, at *4. The
district court should not automatically “‘disallow testimony from
all who did, or could have, testified before the administrative
hearing,’” Susan N., 70 F.3d at 759–60 (quoting Burlington v.
Dep’t of Educ. for Mass., 736 F.2d 773, 790–91 (1st Cir. 1984)),
but the court need not consider evidence that is irrelevant or
cumulative, see id. at 760.
First, as the District Court found, the Perlis report is
largely duplicative of the evidence given at the administrative
hearings. Six of the report’s nine pages—a summary of D.K.’s
early education—were already introduced as exhibits and
discussed by witnesses before the hearing officer. Moreover,
handicapped child so as to ensure meaningful participation in
educational activities and meaningful access to educational
benefits.” Id. Consequently, our finding that the School District
did not deny D.K. a FAPE is equally dispositive of Plaintiffs’
§ 504 claim.
30
her report offers only a commentary, prepared with the benefit
of hindsight, regarding the evidence and testimony already
presented to the state agency.
Second, contrary to Plaintiffs’ assertions that the
Pennsylvania Department of Education Guidelines should have
been admitted because they set forth “necessary components” of
behavioral support strategies that the School District failed to
incorporate, the Guidelines offer only non-binding best
practices. Holmes v. Milcreek Twp. Sch. Dist., 205 F.3d 583,
591 (3d Cir. 2000). The School District’s failure to adhere to
those Guidelines does not amount to the denial of a FAPE, so
they are of only minor relevance at best. Therefore, we will
uphold the District Court’s discretionary determination to
exclude Plaintiffs’ tardy evidence.
IV
In sum, we conclude that Plaintiffs’ claims are limited to
the two-year time period between January 8, 2006, and January
8, 2008. Having interpreted the IDEA statute of limitations
exceptions as requiring either intentional or knowing
misrepresentation of D.K.’s problems and progress or the
withholding of information expressly required by the IDEA
statutes and regulations to be disclosed to parents, we hold that
neither the District Court nor the state agency clearly erred when
it found Plaintiffs ineligible for the exceptions. Nor may
Plaintiffs invoke common law equitable tolling doctrines in the
face of specifically enumerated exceptions in the governing
federal statute.
We further hold that during the relevant portion of D.K.’s
education at Copper Beech Elementary, the School District
31
consistently monitored, documented, and responded to his
individual educational needs. The School District developed
behavioral improvement systems with his parents’ cooperation
and offered him special attention and testing accommodations.
Under these circumstances, we find no Child Find or FAPE
violation justifying an award of compensatory education.
Accordingly, we will affirm the judgment of the District Court.
32