A.H., a Minor, by and through her Grandmother and Next Friend, Sandra Davis v. Independence School District

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
A.H., a Minor, by and through her )
Grandmother and Next Friend, SANDRA )
D’AVIS, )
)
Appellant, ) WD77837
)
v. ) OPINION FILED:
) April 7, 2015
)
INDEPENDENCE SCHOOL DISTRICT, )
)
Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Robert M. Schieber, Judge
Before Division Two: Anthony Rex Gabbert, Presiding Judge, and
Joseph M. Ellis and Karen King Mitchell, Judges
Sandra D’Avis filed a due process complaint on behalf of her granddaughter, protesting
the Independence School District’s (District) denial of special education services under the
Individuals with Disabilities Education Act (IDEA). The hearing panel dismissed the complaint
because it was not filed while D’Avis’s granddaughter attended the District. We affirm.
Facts
D’Avis is the grandmother and guardian of A.H., a school-aged child who was born
prematurely. Complications from A.H.’s premature birth have led to a number of health issues,
including lung, vision, and hearing problems. These problems have, at various times, affected
A.H.’s ability to learn in the classroom environment.
In the fall of 2009, A.H. attended a Head Start program at Hanthorn Early Childhood
Center, a preschool in the District. While at Hanthorn, A.H. was found eligible for services
under the IDEA.1 She received an Individualized Educational Program (IEP) that included
special education services for speech, occupational therapy, physical therapy, and door-to-door
transportation to and from school.
In the 2010-11 school year, A.H. attended kindergarten at Sugar Creek Elementary, a
District school. At the beginning of the year, A.H. continued receiving all services she had
received at Hanthorn, with the exception of door-to-door transportation. Because A.H.’s IEP had
expired, an evaluation team met in November of 2010 to conduct an evaluation of A.H.’s special
education eligibility and needs. The team determined that A.H. no longer qualified for services
because her educational achievement was commensurate with her ability without special
education services. A.H. has not received special education services since this determination.2
Following the determination, D’Avis requested an independent evaluation of A.H. in
order to determine whether she qualified for services under the IDEA. The District agreed, and
paid for independent evaluations “in the areas of Vision, General Intelligence and Memory,
Adaptive Behavior, Motor, . . . and Speech.” On June 30, 2011, following the additional testing,
the District issued a report determining that A.H. did not qualify for services under IDEA.
1
“In 2004, the IDEA was reauthorized and amended by the Individuals with Disabilities Education
Improvement Act (‘IDEIA’), Pub.L. No. 108-446, 118 Stat. 2647. We continue to refer to the statute, as amended,
by the familiar acronym: IDEA.” E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 445 n.1 (2d Cir. 2014).
2
The District did find A.H. eligible to receive services under Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794. Because A.H. left the District prior to a determination of what services would be provided, the
record of what she would have received is not entirely clear.
2
On August 16, 2011, A.H. began attending Nativity of Mary, a private school that has no
affiliation with the District, but lies within the District’s geographical boundaries. A.H. attended
Nativity of Mary until 2014, when A.H. began attending Horizon Academy, a private school
located in Roeland Park, Kansas, outside the geographic boundaries of the District.
On August 25, nine days after A.H. started school at Nativity of Mary, D’Avis filed a due
process complaint with the Department of Elementary and Secondary Education (DESE),
challenging the District’s determination during the previous year that A.H. was not entitled to
services. D’Avis subsequently filed two amended complaints. DESE convened a three-member
panel to hear the matter.3 The complaints were not the picture of clarity, but the panel
interpreting D’Avis’s complaints determined that the issues for review were whether the District
erred either: (1) in its November 15, 2010 determination that A.H. did not qualify for special
education services; or (2) in its June 30, 2011 determination following the additional testing, that
A.H. did not qualify for services. D’Avis cited the District’s “[o]ffering only 3 accommodations
and no door to door services” as the “two main reasons” for filing her complaint. D’Avis
requested that the District either pay for placement in private school and provide occupational
and physical therapy services to A.H. during that placement, or place A.H. in a school within the
District with door-to-door transportation and other special education services.
Before the hearing, the District filed a Motion to Dismiss the complaint, arguing that
A.H.’s enrollment in private school before filing the complaint barred the action under federal
authority. The hearing panel ordered the hearing bifurcated in order to first hear testimony and
3
Under the version of section 162.961.1 RSMo in effect when the complaint was filed, DESE was required
to appoint “a hearing panel of three persons,” including a chairperson, who was required to “be an attorney licensed
to practice law in this state.” This section was amended in 2012 by SB595 to vest the Administrative Hearing
Commission with jurisdiction over such appeals.
3
argument on the District’s Motion to Dismiss.4 After two days of evidence, the panel agreed
with the District that, because A.H. withdrew from the District before filing her due process
complaint, her claim was barred.
The Circuit Court of Jackson County affirmed the hearing panel’s decision. D’Avis
timely appealed.
Standard of Review
“In an appeal following judicial review of an agency’s administrative action, [an
appellate court] reviews the decision of the agency, not the circuit court.” TAP Pharm. Prods.,
Inc. v. State Bd. of Pharmacy, 238 S.W.3d 140, 141 (Mo. banc 2007). Under section 536.140.2,5
our review
involves a determination of whether the agency’s action: is in violation of
constitutional provisions; is in excess of the statutory authority of the agency; is
unsupported by competent and substantial evidence on the record; is otherwise
unauthorized by law; is made upon unlawful procedure or without a fair trial; is
arbitrary, capricious, or unreasonable; or involves an abuse of discretion.
Schumer v. Lee, 404 S.W.3d 443, 446 (Mo. App. W.D. 2013).
Analysis
I. Statutory Framework of IDEA
Any state receiving federal funding under the IDEA must provide a free appropriate
public education (“FAPE”) to children with disabilities, and it must be tailored to the unique
needs of each child by way of an IEP.6 20 U.S.C. § 1412(a)(1)(A), (a)(4); Bd. of Educ. of
4
At the hearing on the Motion to Dismiss, D’Avis argued and presented evidence that the move to private
school was necessary in order to avoid physical harm or serious emotional harm to A.H. The hearing panel
determined that there would not have been a serious risk of physical or emotional harm had A.H. remained at school
in the District. D’Avis does not challenge this determination.
5
All statutory citations are to the Revised Statutes of Missouri (2000), as currently updated, unless
otherwise noted.
6
An IEP is a written statement that “sets out the child’s present educational performance, establishes
annual and short-term objectives for improvements in that performance, and describes the specially designed
4
Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 181 (1982).
Congress enacted the IDEA to ensure that children with disabilities are provided with a FAPE
that “‘emphasizes special education and related services designed to meet their unique needs
[and] to [en]sure that the rights of [such] children and their parents or guardians are protected.’”
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009) (quoting Sch. Comm. of Burlington,
Mass. v. Dep’t of Educ., 471 U.S. 359, 367 (1985)). “The primary tool for implementing the
aims of the IDEA is the IEP, which ‘tailor[s] the statutorily required “free appropriate public
education” to each child’s unique needs.’” J.B. ex rel. Bailey v. Avilla R-XIII Sch. Dist., 721
F.3d 588, 592 (8th Cir. 2013) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). “IEPs are
created by an ‘IEP Team,’ which is composed of the special education student’s parents, at least
one regular education teacher, at least one special education teacher and a representative of the
local school district qualified to provide special education services.” Dydell v. Taylor, 332
S.W.3d 848, 858 n.6 (Mo. banc 2011); see 20 U.S.C. § 1414(d)(1)(B).
“Missouri incorporated the IDEA into state law in [s]ection 162.670 . . . .” Hellmann v.
Union Sch. Dist., 170 S.W.3d 52, 64 (Mo. App. E.D. 2005). The statute provides:
it is hereby declared the policy of the state of Missouri to provide or to require
public schools to provide to all handicapped and severely handicapped children
within the ages prescribed herein, as an integral part of Missouri’s system of
gratuitous education, a free appropriate education consistent with the provisions
set forth in state and federal regulations implementing the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. Section 1400 et seq. and any
amendments thereto.
§ 162.670.
instruction and services that will enable the child to meet those objectives.” Honing v. Doe, 484 U.S. 305, 311
(1988).
5
II. D’Avis’s Claim of Error
In her single point, D’Avis asserts that we should overturn the hearing panel’s dismissal
of her claim because: (1) the Eighth Circuit precedent holding that a party must file a due
process complaint prior to leaving the District is incorrect as a matter of law and should be
rejected; and (2) even if the Eighth Circuit precedent is applicable, her complaint was not barred
because she sought prospective relief in the form of tuition reimbursement and attempted to
enforce the District’s continuing obligation (even after A.H. left the District) to identify, locate,
and evaluate A.H. under the IDEA’s “child find” provisions. Because we find that the failure to
file a due process complaint before A.H. left the District bars D’Avis’s claims for both a FAPE
from the District and tuition reimbursement, and because the District’s child find obligations do
not give rise to an individual right that can be enforced through a due process hearing, we affirm.
A. D’Avis’s claims for both a FAPE from the District and tuition
reimbursement are barred by D’Avis’s failure to file a due process complaint
before removing A.H. from the District.
The IDEA requires that the State provide procedural safeguards intended to protect
affected children and guardians. Bailey, 721 F.3d at 592.
These safeguards include the right to examine all relevant records pertaining to
the identification, evaluation, and educational placement of their child; prior
written notice whenever the responsible educational agency proposes (or refuses)
to change the child’s placement or program; an opportunity to present complaints
concerning any aspect of the local agency’s provision of a free appropriate public
education; and an opportunity for “an impartial due process hearing” with respect
to any such complaints.
Honig, 484 U.S. at 312 (quoting 20 U.S.C. §§ 1415(b)(1), (2)). “A party aggrieved by the
outcome of an IDEA due process hearing may challenge the outcome before the state educational
review agency.” Bailey, 721 F.3d at 592; 20 U.S.C. § 1415(g)(1). Then, “any party aggrieved
by the findings and decision [of the state agency] . . . shall have the right to bring a civil action
6
with respect to the complaint presented . . . in any State court of competent jurisdiction or in a
district court of the United States.” 20 U.S.C. § 1415(i)(2)(A).
The hearing panel relied on Thompson v. Board of Special School District No. 1, 144
F.3d 574 (8th Cir. 1998), to support its finding that an IDEA claim is barred when no due
process complaint is filed until after the child leaves the district. In Thompson, a parent removed
her son from public school and enrolled him in a charter school after becoming dissatisfied with
the education her son was receiving. Id. at 577. The parent then requested a due process hearing
from the agency to challenge her son’s assessment, as well as the education that he had received
while at the previous district. Id. The agency hearing officer dismissed the complaint. The
Eighth Circuit subsequently upheld the dismissal because the mother had “not stated a cause of
action under IDEA because h[er] request for a review c[a]me[] after he[r son] left the District
previously responsible for his education.” Id. at 578. The court noted that “[t]he purpose of
requesting a due process hearing is to challenge an aspect of a child’s education and to put the
school district on notice of a perceived problem.” Id. at 579. “Once the school district receives
notice, it has the opportunity to address the alleged problem.” Id. The court concluded that,
under mother’s “theory, a school would be potentially liable for unanticipated costs for alleged
problems of which it is totally unaware.”7 Id. This holding has remained settled law in the
Eighth Circuit. See, e.g., Smith ex rel. Townsend v. Special Sch. Dist. No. 1, 184 F.3d 764, 768
(8th Cir. 1999) (holding that a district properly dismissed a student’s due process proceedings
under Thompson); M.P. ex rel. K.P. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 981 (8th Cir.
2003) (affirming the dismissal of a student’s IDEA claims under Thompson); C.N. v. Willmar
7
Subsequent Eighth Circuit cases have found lack of notice when no formal due process complaint was
filed, even though the district was aware that the parent/guardian was dissatisfied with the education provided. M.P.
ex rel. K.P. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 977-81 (8th Cir. 2003); C.N. v. Willmar Pub. Sch., Indep.
Sch. Dist. No. 347, 591 F.3d 624, 627-32 (8th Cir. 2010).
7
Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 636 (8th Cir. 2010) (Colloton, J., concurring)
(same).
D’Avis argues that Thompson and its progeny are wrongly decided and that we should
simply decline to follow the Eighth Circuit’s interpretation of the IDEA. D’Avis points to
federal district court decisions that have allowed parents to file complaints after withdrawal of
the child from the district. See, e.g., L.R.L. ex rel. Lomax v. D.C., 896 F. Supp. 2d 69, 81
(D.D.C. 2012) (“when a student leaves a school district, which allegedly failed to provide a
FAPE, the school district may not avoid its obligations under the IDEA and must provide a due
process hearing,” even if the due process filing does not come until after withdrawal from that
district);8 Lewis Cass Intermediate Sch. Dist. v. M.K. ex rel. J.K., 290 F. Supp. 2d 832, 838
(W.D. Mich. 2003) (“the Court finds no reason that a district should deny a student his right to a
due process hearing regarding compensatory educational services simply because the student
requested his hearing after, rather than prior to, moving from the district”); but see Steven H. v.
Duval Cnty. Sch. Bd., No. 3:99-cv-500-J-20TJC, 2001 WL 36341690, at *3 (M.D. Fla. May 8,
2001) (guardian must file due process complaint “while the student is attending school in the
8
We note that Lomax, in declining to follow Thompson, predicts dire consequences and inhumane
treatment by virtue of not allowing claims when they are filed post-withdrawal:
If [a district]’s IDEA obligations were extinguished upon a student leaving the [district], parents
would be placed in the untenable situation of choosing between the lesser of two evils: either
leaving their child in an unsatisfactory situation while waiting for a lengthy administrative appeals
process to play out in order to preserve their right to compensatory education as a remedy, or
remedying the situation immediately by moving the child to a new [district] while forfeiting any
right they had to an administrative review and any subsequent compensatory education. The
Court is not prepared to place that burden on parents.
L.R.L. ex rel. Lomax v. D.C., 896 F. Supp. 2d 69, 82 (D.D.C. 2012). But these concerns seem overstated because
Thompson and its progeny do not require the full exhaustion of all administrative remedies, including the full
hearing, before the child is removed from the district. Rather, Thompson requires merely the filing of a complaint
“to put the school district on notice of a perceived problem” before the child is moved. Thompson, 144 F.3d at 579
(8th Cir. 1998). Additionally, Eighth Circuit precedent leaves open the possibility, and the hearing panel below
explicitly held, that there is an exception to the rule barring untimely claims when “an immediate transfer was
necessary for [the student’s] physical and psychological safety.” C.N., 591 F.3d at 631, 632 n.8. Despite arguing
below that A.H. meets this exception, D’Avis has abandoned this argument on appeal.
8
public school district to ensure that the school district is adequately notified of the alleged
problem and given an opportunity to cure it”).
While there is some disagreement among federal district courts, the Eighth Circuit is
presently the only federal circuit court to have directly addressed this issue. And the law in the
Eighth Circuit is clear: an IDEA claim is barred when the guardian does not request a hearing
before the child leaves the District. C.N., 591 F.3d at 636. Because the Eighth Circuit is the
only federal appellate court to have interpreted this aspect of federal legislation, and it has an
obvious geographic connection with Missouri, we find its interpretation of federal law highly
persuasive. “While federal court decisions are not binding on this court, they are persuasive
authority.” Dilley v. Valentine, 401 S.W.3d 544, 552 (Mo. App. W.D. 2013); Buemi v.
Kerckhoff, 359 S.W.3d 16, 22 (Mo. banc 2011) (“‘While not binding authority, the federal cases
[interpreting federal rules nearly identical to Missouri’s] are highly persuasive.’” (quoting
Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 451 (Mo. banc 1994))).
Moreover, there is nothing unreasonable about the Eighth Circuit’s timely filing
requirement. The IDEA is based largely on equitable principles. A court “shall grant such relief
as the court determines is appropriate,” 20 U.S.C. § 1415(i)(2)(C)(iii); “equitable considerations
are relevant in fashioning relief,” Burlington, 471 U.S. at 374; “and the court enjoys ‘broad
discretion’ in so doing.” Florence Cnty. Sch. Dist. Four v. Carter By & Through Carter, 510
U.S. 7, 16 (1993) (quoting Burlington, 471 U.S. at 369); E.M. v. New York City Dep’t of Educ.,
758 F.3d 442, 453 (2d Cir. 2014) (A “broad spectrum of equitable relief [is] contemplated under
the IDEA.”). It is hardly unusual, when fashioning equitable relief, for “the courts also [to]
establish equitable preconditions to relief.” C.N., 591 F.3d at 636 (Colloton, J., concurring).
Under Thompson, all that is required is for the parent to put the specific concerns in writing “to
9
put the school district on [formal] notice of a perceived problem,” because “[o]nce the school
district receives notice, it has the opportunity to address the alleged problem.”9 Thompson, 144
F.3d at 579; C.N., 591 F.3d at 636 (Colloton, J., concurring) (“Thompson is best understood as
applying a similar equitable consideration that requires notice to the school district of an alleged
deficiency, and an opportunity to resolve the problem, before a student may obtain relief under
the IDEA.”).
Additionally, the refusal to follow the Eighth Circuit would place the tribunal responsible
for hearing appeals—the Administrative Hearing Commission under current law—in an
untenable position. § 162.961.1. The question of whether an individual has timely filed a due
process complaint bears upon whether the hearing tribunal is barred from hearing the complaint.
And an appeal from a final decision of the tribunal can go either to state or federal court. 20
U.S.C. § 1415(i)(2)(A) (appeals may be brought “in any State court of competent jurisdiction or
in a district court of the United States.”). Thus, whether a due process complaint stated a claim
would depend entirely upon whether the appeal of the tribunal’s decision were filed in state or
federal court, something that cannot be known at the time that the action before the
administrative tribunal is commenced. Thus, the tribunal would be placed in the impossible
position of having to make a threshold decision regarding whether a claim is barred, based solely
on blind speculation about a future action that a party might take: filing an appeal in state court,
federal court, or not at all. We find such an approach to be untenable.
D’Avis also argues that Thompson did not bar her claim because she is seeking
prospective relief in the form of tuition reimbursement. D’Avis argues that the United States
9
While D’Avis also cites Missouri law, she makes no state law claim distinct from her argument that her
appeal should be allowed to continue as a matter of interpretation of federal law. Thus we do not address whether
Missouri law, including Chapters 536 or 162, provide for a broader right to administrative review of due process
complaints than the IDEA as presently interpreted by the Eighth Circuit.
10
Supreme Court has recognized “that IDEA authorizes reimbursement for the cost of private
special-education services when a school district fails to provide a FAPE,” even if the child no
longer attends school in the district. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 237-38
(2009). But Forest Grove never addressed the issue of whether a parent must timely file a due
process complaint in order to preserve an IDEA challenge. In Forest Grove, the Supreme Court
“granted certiorari to determine whether [the IDEA] establishes a categorical bar to tuition
reimbursement for students who have not previously received special-education services under
the authority of a” school district. 557 U.S. at 236-37. The Court does not address issues that
“fall[] outside the question on which [it] granted certiorari.” Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26, 43 n.5 (1998); U.S.S.C. Rule 14.1(a) (“Only the
questions set forth in the petition [for certiorari], or fairly included therein, will be considered by
the Court”). Thus the Court was not presented with, and did not address, whether the failure to
file a due process complaint before leaving the school district serves as a bar to challenging
whether the district offered a FAPE while the student attended the district.
It is true that if the guardian of a disabled child believes that the school district has failed
to provide the child with a FAPE as required under the IDEA, she is permitted to place the child
in a private school, at her own financial risk, and seek tuition reimbursement from the school
district. Forest Grove, 557 U.S. at 237-38; 20 U.S.C. § 1412(a)(10)(C)(i) (The IDEA does not
“require a [district] to pay for the cost of education, including . . . related services, of a child with
a disability at a private school or facility if that agency made a [FAPE] available to the child and
the parents elected to place the child in such private school or facility.”). But that does not mean
that the claim for reimbursement does not need to be preserved by the timely filing of a
complaint. Indeed, Thompson involved a claim for certain tutoring costs, and thus the court
11
addressed the issue of reimbursement. “‘Recovering tuition [or costs] is a remedy only if the
free and appropriate public education (FAPE) guarantee has been violated, exhaustive
administrative remedies have been tried before placement, and the school has been notified.’”
Thompson, 144 F.3d at 579 (quoting CINDY L. SKARUPPA, ANN BOYER & OLIVER EDWARDS,
Tuition Reimbursement for Parent’s Unilateral Placement of Students in Private Institutions:
Justified or Not?, 114 Educ. Law Rep. 353, 354 (West 1997)). While the statement in Thompson
regarding tuition may be dicta, that statement is consistent with the Thompson court’s finding
regarding other costs associated with removing the child from district schools and with the
underpinning for the Thompson court’s entire rationale: “a school would be potentially liable for
unanticipated costs for alleged problems of which it is totally unaware” if parents were allowed
to file complaints after the child leaves the district. Id.
Courts have recognized that various types of compensatory relief, 10 as well as tuition
reimbursement, are available when a district fails to provide a FAPE. However, even after
Forest Grove, the Eighth Circuit has continued to require the timely filing of a due process
complaint before tuition reimbursement or other compensatory relief can be sought. In J.B.
ex rel. Bailey v. Avilla R-XIII School District, in which the plaintiffs sought “compensatory
education, reimbursement for IEP-related expenses, and attorneys’ fees” for an alleged IDEA
violation, the court held that “the IDEA’s exhaustion requirement remains the general rule,
10
Where a school district has failed to provide a FAPE, “‘a court will evaluate the specific type of relief
that is appropriate to ensure that a student is fully compensated for a school district’s past violations of his or her
rights under the IDEA and develop an appropriate equitable award.’” D.F. v. Collingswood Borough Bd. of Educ.,
694 F.3d 488, 498-99 (3d Cir. 2012) (quoting Ferren C. v. Sch. Dist. of Philadelphia, 612 F.3d 712, 720 (3d Cir.
2010)). Where a student’s claim “concerns obligations the District allegedly had in the past and failed to meet[, t]he
remedy sought is compensatory.” Indep. Sch. Dist. No. 284 v. A.C. ex rel. C.C., 258 F.3d 769, 774 (8th Cir. 2001).
Compensatory education and reimbursement are the two primary compensatory remedies available. J.B. ex rel.
Bailey v. Avilla R-XIII Sch. Dist., 721 F.3d 588, 593-94 (8th Cir. 2013). “Compensatory education is a judicially-
created remedy,” some examples of which include “order[ing the district] to pay [student’s] new district or to
contract with a local provider in his new home in order to provide tutoring, counseling, or other support services,” in
order to make up for the education a student should have received. D.F, 694 F.3d at 496, 499. Reimbursement
“includes reimbursement to parents for private school tuition and related expenses” incurred while the district did
not offer a FAPE. Sch. Comm. of Burlington, Mass. v. Dep’t of Educ., 471 U.S. 359, 367 (1985).
12
regardless of whether the administrative process offers the particular type of relief that is being
sought.” 721 F.3d at 595 (quoting M.P., 326 F.3d at 980).
And courts have continued to hold that parents who unilaterally enroll their child in
private school before filing a due process complaint “cannot [later] attempt to exhaust their
administrative remedies,” regardless of whether the claim is for reimbursement, compensatory
education, or both. See, e.g., A.B. ex rel. Barclift v. Westonka Indep. Sch. Dist. 277, Civil No.
14-0466 (MJD/HB), 2015 WL 321415, at *4 (Jan. 26, 2015) (citing Thompson, 144 F.3d at
578-79); C.N., 591 F.3d at 632; I.E.C. v. Minneapolis Pub. Sch., Special Sch. Dist. No. 1, 34 F.
Supp. 3d 1006, 1016 (D. Minn. 2014) (“The Court is bound by Thompson; its holding is
straightforward and it squarely applies to the present case.”). This is consistent with prior cases
in which Thompson was followed, regardless of the requested remedy. Steven H., 2001 WL
36341690, at *3 (dismissing request for reimbursement where guardian failed to file due process
complaint “while the student [was] attending school in the public school district”); L.K. ex rel.
J.H. v. Bd. of Educ. for Transylvania Cnty., 113 F. Supp. 2d 856, 860 (W.D.N.C. 2000) (parent is
not entitled “to reimbursement for tuition for a private school . . . in which she enrolled [student]
during a time when there were no proceedings pending” with the district); M.P., 326 F.3d at 980
(school district not liable to provide compensatory services when child was placed in private
school prior to filing due process complaint).
D’Avis argues that applying Thompson leaves her without a remedy.11 We disagree.
Although D’Avis cannot seek reimbursement for tuition previously paid, while A.H. attended
11
We note that all D’Avis needed to do in order to preserve her claim was to file a due process complaint
sufficient to put the District on notice of her concerns. Thompson, 144 F.3d at 579. Presumably, this is to allow the
District to change its position or to take interim action, to minimize cost to the District and disruption to the student.
The record demonstrates that D’Avis was aware of the complaint process since at least January of 2011. Despite the
District issuing its decision in June of 2011, D’Avis did not file her due process complaint until approximately two
months later, after A.H. had been enrolled in private school and the fall semester began. At this point, D’Avis was
13
school within the District’s borders, the District remained subject to the requirement of offering
A.H. a FAPE if she requested it. If a student is enrolled at a private school because of a parent’s
unilateral decision, the school district does not have an obligation to maintain an active IEP. 20
U.S.C. § 1412(a)(10)(C)(i). But a guardian is entitled to have the District perform a reevaluation
of the student’s IEP once a year, which the District must complete within 60 calendar days of the
request. 20 U.S.C. § 1414(a)(2)(A)(ii); (a)(1)(C)(i)(I). In other words, D’Avis could have
requested that the District reevaluate A.H. after she began attending Nativity of Mary school.
Nothing “authorizes the school district to ignore a parent’s request that an IEP be developed for a
child simply because the child is presently enrolled in a private school.” D.C. v. Vinyard, 971 F.
Supp. 2d 103, 111 (D.D.C. 2013). “To the contrary, the statute provides that ‘each child with a
disability’ shall be reevaluated at the request of the child’s parent.” Id. (quoting 20 U.S.C.
§ 1414(a)(2)). And if the reevaluation results in either an IEP that the guardian does not believe
provides a FAPE, or the refusal to offer an IEP at all, the guardian may file a complaint. Forest
Grove, 557 U.S at 238-39. Such complaint may include a request that the district pay for private
school tuition, which is an available remedy under IDEA.12 Id. But again, the district’s
obligation to offer an IEP is contingent on “the child’s [guardian] request[ing] a reevaluation,”
20 U.S.C. § 1414(a)(2)(A)(ii), and D’Avis does not allege that she has ever requested a renewed
IEP following A.H.’s departure from the District.
already incurring costs, the District is not in a good position to make an accommodation, and the student has already
been subject to disruption.
12
It may seem incongruous at first blush that the parent can request another IEP after a denial and then file
a complaint requesting essentially the same remedy the next year. But this result makes sense in at least two
respects. First, while a school district should not be held liable for potentially costly remedial measures for periods
in which it was not adequately put on notice to remedy any potential problems, a subsequent request for IEP and, if
necessary, timely complaint, will allow a district to engage more fully with the child and parent in order to attempt
to reach a mutually beneficial outcome. Second, especially considering that the IDEA often involves young
children, in a year’s time a given claimant’s situation may have changed substantially enough that the district and
parent would agree that the child should be returned to the district and/or provided with specified services.
Additionally, even where a parent timely files a claim and loses on the merits, nothing within the IDEA explicitly
bars a parent from requesting an IEP the following year and then filing a challenge to the new IEP, potentially
making similar claims and seeking similar relief. See 20 U.S.C. § 1415.
14
Because D’Avis neither filed a complaint that the District was not providing a FAPE, nor
requested reimbursement for private tuition until after A.H. withdrew from the District, D’Avis’s
claims are barred.
B. The District’s child find requirements do not revive D’Avis’s claim.
D’Avis next argues that, even if this Court follows Thompson, the hearing panel
nevertheless erred in dismissing her complaint because the District has an ongoing obligation to
provide services to A.H. under the “child find” provisions of the IDEA. Specifically, D’Avis
argues that, because A.H. attended school within the geographic boundary of the District at the
time of the hearing, the District had a continuing obligation to identify, locate, and evaluate
A.H.’s needs; therefore, prospective relief was available and her claims were not barred. 13 This
argument fails because D’Avis misapprehends the nature of the District’s child find obligations
in that she incorrectly assumes the child find provision provides an individual right to access
special education services that is subject to due process procedures.
In addition to the FAPE requirements, the IDEA provides that any state receiving federal
funding must have policies and procedures in place to identify, locate, and evaluate all disabled
children residing in the state who are in need of special education and related services. 20
U.S.C. § 1412(a)(3)(A). This is known as the “child find” obligation, and applies to all children
with disabilities in need of special education, regardless of whether they are enrolled in public or
private schools. Id., § 1412(a)(10)(A)(ii)(I); 34 C.F.R. § 300.131(a) (“Each [district] must
locate, identify, and evaluate all children with disabilities . . . in private, including religious,
elementary schools and secondary schools located in the school district . . . .”). And once the
13
The District claims that this argument was not preserved because it was not presented to the hearing
panel. Indeed, D’Avis’s complaint contains no reference to child find requirements and no allegations that the
District failed to identify, locate, and evaluate A.H. while she was enrolled in private school. D’Avis responds that
she raised the District’s child find obligations in response to the District’s motion to dismiss. Because we determine
that child find does not provide an individual right, we need not determine whether a child find claim was preserved.
15
District has made a determination of the number of students requiring special education services
attending private school within the District, it is obligated “to allocate a proportionate amount of
funds received from the federal government to [provide services to] eligible students in private
schools.” D.L. ex rel. K.L. v. Baltimore Bd. of Sch. Comm’rs, 706 F.3d 256, 260 (4th Cir. 2013);
20 U.S.C. § 1412(a)(10)(A)(i).14
However, the child find obligation is not a requirement that the District provide special
education services to every qualified child attending a private school. Child find does not require
Districts “to pay the costs of special education services for a particular child; [Districts] are
required only to spend proportionate amounts [of federal funds] on special education services for
this class of students as a whole.” Foley v. Special Sch. Dist. of St. Louis Cnty., 153 F.3d 863,
865 (8th Cir. 1998); 20 U.S.C. §§ 1412(a)(10)(A)(i)(I), 1412(a)(10)(C)(i); D.L., 706 F.3d at 260
n.2 (“states only ha[ve] to allocate a proportionate amount of funds received from the federal
government to [services for] eligible students in private schools.”).
In her briefing, D’Avis appears to assume, incorrectly, that the child find requirements
place a duty on the District to provide individualized services to students such as A.H, and thus
give A.H. an individualized right that she can enforce through a due process hearing. But, the
child find provision creates no individualized right to special education and related services.
D.L., 706 F.3d at 260; 34 C.F.R. § 300.137(a) (“No parentally-placed private school child with a
disability has an individual right to receive some or all of the special education and related
services that the child would receive if enrolled in a public school.”). To interpret the child find
provision to impose an individualized right would “fl[y] directly in the face of the limitations
14
“The amount of funds a state receives from the federal government is only a small fraction of the cost of
providing for the special education of students.” D.L. ex rel. K.L. v. Baltimore Bd. of Sch. Comm’rs, 706 F.3d 256,
260 n.2 (4th Cir. 2013). “As such, a state is only required to allocate a proportionate amount of this small fraction to
eligible private school students.” Id.
16
that Congress imposed on school districts’ obligations under IDEA.” D.L., 706 F.3d at 260.
Because the child find requirements provide A.H. with “no individual right under IDEA to the
special education and related services . . . [, D’Avis has] no right to a . . . court decree mandating
that those services be” provided or paid for by the District and no right to a due process hearing
to address her child find claims. Foley, 153 F.3d at 865; Bd. of Educ. of Appoquinimink Sch.
Dist. v. Johnson, 543 F. Supp. 2d 351, 359 n.5 (D. Del. 2008) (“Complaints regarding the
provision of services to parentally-placed private school students are not subject to due process
procedures.”); 34 C.F.R. § 300.140(a).15
At oral argument, D’Avis took the position that even if the child find provision does not
create an individual right subject to due process procedural requirements, the existence of an
ongoing obligation on the part of the District to locate, identify, and evaluate A.H. supports the
conclusion that her claims are not barred. We fail to see how this overcomes the requirement
that a due process complaint be filed before removing the child from the District.
Thus, D’Avis’s request for the hearing panel to order the District to provide special
education services to A.H. while she was attending private school fails because child find does
not create an individual right to services. D’Avis’s request for placement of A.H. in a District
15
To the extent that D’Avis argues that the hearing panel erred in finding her claims were barred because
she is making a prospective claim under the child find provision, her claim is moot because A.H. now attends school
in Kansas and the District has no ongoing child find obligation. The child find requirements are now the
responsibility of the district in which A.H.’s present school is located. “Each [district] must locate, identify, and
evaluate all children with disabilities who are enrolled by their parents in private, including religious, elementary
schools and secondary schools located in the school district . . . .” 34 C.F.R. § 300.131(a). We need not decide
whether, now that A.H. attends school outside of the geographical boundaries of District, the District is required to
provide an IEP upon request, or whether that duty falls solely upon the district in which she is currently attending
school. Compare J.P.E.H. ex rel. Campbell v. Hooksett Sch. Dist., No. CIV. 07-CV-276-SM, 2008 WL 4681827, at
*2 (D.N.H. Oct. 22, 2008) (where the student attended private school in a different district than he resides, “the
responsibility to evaluate [student’s] need for IDEA services passed from the [home district] to the district in which
his private school is located.”); E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., No. 11-CV-5510 ER, 2012 WL
5936537, at *11 (S.D.N.Y. Nov. 26, 2012) (“Simply because a school district ‘may have child find responsibilities
of its own’ as to a disabled child enrolled in a non-public school within the district ‘does not relieve [the district of
residence of the same child] from having to fulfill its own responsibilities . . . to evaluate the student and make
FAPE available.’” (quoting Dist. of Columbia v. Abramson, 493 F. Supp. 2d 80, 86 (D.D.C. 2007))).
17
school with certain accommodations, and payment of A.H.’s private school tuition are not
revived because the child find provision, which relates only to identifying children in need of
special education services who are attending private school so that a proportionate share of
federal funds can be made available for special education services, does not address the
relocation of those students to public schools or the payment of private school tuition. Thus, the
child find provision is irrelevant to the relief sought by D’Avis and does not affect whether
D’Avis adequately stated a claim for relief.
Conclusion
Because D’Avis’s claims that the District did not provide adequate services while A.H
attended the District and that she’s entitled to tuition reimbursement are barred because they
were not timely filed and because there is no right to individual services under child find. Thus
D’Avis’s request for services while A.H. was attending private school fails to state a claim, and
the hearing panel did not err in dismissing her complaint. Accordingly, we affirm.
Karen King Mitchell, Judge
Anthony Rex Gabbert, Presiding Judge, and
Joseph M. Ellis, Judge, concur.
18