In Wehrspann v. Dubuque Community School District, No. 15-CV-1029-LRR, 118 LRP 33775 (N.D. Iowa July 27, 2018) (magistrate judge report and recommendation), adopted, 2018 WL 3865379, 72 IDELR 212 (Aug. 14, 2018), the magistrate judge recommended that the district court reverse and remand the decision of an administrative law judge dismissing the due process complaint brought by the student’s parents, and the amended due process complaint, which added the plaintiff student, then 20 years old, as a complainant. The student alleged that he was diagnosed with a social anxiety disorder in 2006, and his mother informed the school district of his condition. The mother also said she informed the district of his post-traumatic stress disorder in spring, 2012. The allegations further provided that the student had been the target of extreme bullying from elementary school to the first semester of senior year. He finished the final semester of high school by taking online courses at home, and graduated in 2013. He alleged that because of his anxiety, he could not learn social skills to help him cope with the bullying. The school district never identified the student as eligible for IDEA services, although in 2012 it did begin to develop a Section 504 plan, which provided that he could leave the building when a stress reaction occurred. The student received additional diagnoses of autism and Ehlers-Danlos disorder, a connective tissue disorder that creates difficulty with fine manipulation. He alleged that he and his parents were unaware of the autism spectrum disorder that interfered with his education until after he finished high school.
The due process action was filed on May 19, 2015. The district and co-defendant area education agency moved to dismiss, arguing that the complaint was not valid because the student was an adult but only the parents were listed as complainants, and the statute of limitations had run. An amended complaint was filed listing the student as an additional complainant, providing additional details as to the allegations, and requesting compensatory education in the form of mental health therapy, damages, and attorneys’ fees. The ALJ applied a two-year limitation, so that the complaint had to have been filed by May 26, 2015. According to the ALJ, since the original complaint was filed on May 19, 2015, the “actionable period” was May 19 to 26 of 2015. The student argued that the limitations tolled because the district never notified him that the parents’ rights under the IDEA transferred to him when he reached majority. The ALJ concluded that student was not a child with a disability since he was not in need of special education, but only in need of related services. Thus, he did not prevail under the IDEA; the tolling provision never applied to him. The ALJ did not address any claims that might have accrued from May 19 to 25. The parents were also dismissed for want of standing, and the student did not contest that decision before the court.
On appeal to the court, the student argued that the district neglected its child-find duties, since the school was repeatedly made aware of the student’s struggles in school. It eventually offered accommodations, which showed recognition of that fact. Nevertheless, the district neither identified the student under the IDEA, nor provided notice to the parents, including notice of the time in which to file a due process complaint. The student further argued that the ALJ could not have found that he was not a child without a disability without holding a due process hearing.
The magistrate judge concluded that the ALJ lacked sufficient information to determine whether the student was a child with a disability under the IDEA, for the record included only the two due process complaints, a partially redacted high school transcript, and the motions and arguments themselves. “No evidence, however, was either requested, offered, or received . . . . The ALJ did not identify the ‘related services’ plaintiff received, nor did she explain or identify what would have been necessary to make a showing that plaintiff needed special education.” The court said that the case was one in which an eligibility determination could not be made without the opportunity to present evidence and argument on the issue. The court further noted that the defendants at the due process hearing did not assert that the complaints should have been dismissed based on the student’s ineligibility; thus the dismissal on the ground that the student was not a child with a disability was sua sponte on the part of the ALJ, and sua sponte dismissals are disfavored.
With specific regard to the statute of limitations and whether it tolled, the student argued that the failure to evaluate him amounted to a refusal to evaluate, triggering the IDEA’s procedural obligations, which the school did not fulfill. He said the school had notice as early as his third or fourth grade year that he had difficulty learning. Failure to provide notice would toll limitations pursuant to 20 U.S.C. § 1415(f)(3)(D). The court cited cases holding that when a school district is aware the student is struggling or knows of a diagnosis of an impairment such as generalized anxiety disorder, the student must be evaluated. The court further noted that Forest Grove School District v. T.A., 557 U.S. 230 (2009), established that where a school district fails to act in accordance with its child-find obligations and so never identifies a student as a child with a disability, a remedy under IDEA is not barred. The court declared: “It follows that the statute of limitations would be tolled under the IDEA’s tolling provision if procedural safeguard notices are not given as a result of failed child-find obligations.” If an explicit refusal to evaluate were required for that conclusion to apply, “local education agencies could circumvent the tolling provision by disregarding their child find obligations instead of refusing to evaluate.”
The court also said that if the facts on remand show that limitations were tolled, there would be no need to determine if the amended due process complaint related back to the date of the parents’ original complaint. However, the court said that under both federal and state law it did relate back. The substance of the claims was nearly identical and the defendants did not show prejudice. The magistrate judge further recommended denial of the plaintiff’s request for attorneys’ fees under the IDEA, noting that no decision had been reached on the merits of the IDEA claim.
The decision recommending remand for further proceedings and denial of fees was adopted by the district court judge, who pointed out that no objections had been filed. No. 15-CV-1029-LRR, 2018 WL 3865379, 72 IDELR 212 (N.D. Iowa Aug. 14, 2018).
The Wehrspann decision shows a court engaging in a careful process of reasoning to conclude that where child find obligations are ignored, the statute of limitations is tolled. A failure to evaluate when there is a basis to suspect a disability is equivalent to a refusal to evaluate. The case is of a piece with a prominent decision from Maine, Regional School District Unit No. 51 v. Doe, 920 F. Supp. 2d 168, 60 IDELR 197 (D. Me. 2013), which said that the basis for tolling of “withholding of information” under 20 U.S.C. § 1415(f)(3)(D) does not require intentionality on the part of the school.