In S.H. v. Issaquah School District, No. 2:21-CV-00137-DGE, 2022 WL 279139, 80 IDELR 134 (W.D. Wash. Jan. 31, 2022), the district court issued a ruling that may be instructive for impartial hearing officers as to the application of statutes of limitations, notice rights, and tuition reimbursement awards.
The case involved a student with anxiety issues who experienced difficulties in school as early as fourth grade. In seventh grade, the school counselor encouraged the parent to obtain counseling for the student; the student was absent for 20 school days that year and tardy for 26 class periods. The family moved within the school district for eighth grade in 2016-17, hoping that the student would start fresh at a new school, avoid previous issues with being bullied, and improve her academic performance. A private evaluator found that the student had moderate to severe ADD and a specific learning disability in reading and math. Before a meeting with the school guidance team, the district received the evaluator’s report. On October 28, 2016, the district produced an action plan to assist the student and said it would evaluate the interventions for four to six weeks, then consider whether to initiate a Section 504 plan. An additional private evaluator found that the student understood only about half of the sixth-grade math topics assessed and was not ready for algebra. The district received the report on October 29, 2016, and suggested a private summer program or the district summer school.
The guidance team met again on February 16, 2017, then adopted a Section 504 plan on March 31, 2017. Despite significant concerns about the student’s mental health and learning disabilities during the 2016-17 school year, the school counselor’s admission that the student had a disability and it was interfering with her academics, the district’s awareness of the student’s comments about suicide and being cyberbullied, and the adoption of a partial day schedule in April 2017 because of lack of success at school, the district did not initiate a special education referral, provide the parents with an IDEA procedural safeguards notice, or discuss special education at the guidance team meetings. The parents moved to Texas in April 2017, in part to permit the student to have a fresh start in school. The student refused to attend school there despite trying a large school, then a smaller school. The student enrolled in an intensive outpatient counseling program, then a specialized placement. The parents moved back to the Washington school district in January 2018 and remained until December 31, 2018. At the district high school, the student failed all her classes, was absent 40 times, and was either tardy or absent from first class period 64 times; she also faced discipline for drugs and/or alcohol. The district never referred the student for special education evaluation.
The parents placed the student at a residential treatment center in Utah from July 24, 2018, to September 3, 2019, following the student’s third alcohol overdose in July 2018. On August 22, 2018, after discussions with the treatment center, the parents requested an IEP. The district declined to send an evaluation team to Utah, disenrolled the student without formal notice to the parents, but ultimately evaluated the student in December 2018 over holiday break. The family moved to a different Washington school district near the end of December 2018 so that the student would have a fresh start after discharge from the treatment center. The district found the student IDEA-eligible on February 6, 2019, and gave its evaluation report to the parents on February 8, 2019. It conducted an IEP meeting on March 14, 2019, where the district learned that the family had moved, and proposed an IEP offering placement at a comprehensive high school with therapeutic support. The treatment center personnel disagreed with the recommendation. The student left the treatment center on September 3, 2019, and returned home but did not enroll in the district again.
The parents filed their due process complaint on October 14, 2019, and amended it on January 23, 2020. They contended that the district denied the student FAPE during each of the school years from 2016-17 through 2018-19; they sought reimbursement for private placement and a private evaluation. The ALJ denied the claim for 2016-17 on the basis of the two-year statute of limitations. As to 2017-18, the ALJ found a failure to refer to evaluation and denial of FAPE, and that the private placement was appropriate and reimbursement proper, but that the reimbursement right terminated on December 31, 2018, when the parents moved out of the district. The ALJ awarded 25% of the private placement costs and related expenses incurred after December 31, 2018, as a form of compensatory education. The ALJ did not address a March 2019 IEP on the ground the parents had moved from the district.
On review, the district court concluded that the date the parents knew or should have known of the actions forming the basis of the 2016-17 school year claim was no later than September 2017, as found by the ALJ, with the court stating: “It is evident that by October 2017 the Parents knew the District’s interventions during the 2016-2017 school year were ineffective. Parents had not observed any successes such as attending class, passing grades, or any positive peer or teacher relationships. Parents acknowledged the issues were much greater than grade levels or attendance at a small versus large school. Parents otherwise recognized something different was needed as the Parents were seeking any type of outside help they could find.” 2022 WL 279139, at *11 (citations to record omitted).
Nevertheless, the court concluded that further findings were needed to determine if the exception to limitations in 20 U.S.C. § 1415(f)(3)(D)(ii) for withholding information from the parent was met. The court noted that the ALJ never determined whether the district violated its child-find obligation under 20 U.S.C. § 1412(a)(3) during the 2016-17 school year, or whether the student was entitled have the procedural safeguards provided to her parents as a student with disabilities under the IDEA or one “whose identification, evaluation, or placement is at issue” under state law. The parents thus might be able to show they were prevented from requesting due process due to withholding of the notice.
The court further held that tuition reimbursement should not have terminated upon the date of the family moving out of the district. Neither party disputed that the district failed to offer the student FAPE during the 2017-18 school year or that the residential treatment center was an appropriate placement. The court said the issue was not the ongoing obligation to provide FAPE since the student was already in Utah. Rather, “[t]he reimbursement analysis should have focused on the District’s failure to provide a FAPE in the first instance, which resulted in Student’s proper placement in Utah. . . There is no requirement that a child or parent remain living within a school district to qualify for reimbursement under the IDEA when a school district fails to provide a FAPE.” 2022 WL 279139, at *15. The court quoted D.F. Collingswood Borough Board of Education, 694 F.3d 488, 497 (3d Cir. 2012) (“Continuity of residence cannot be a prerequisite to the grant of compensatory education…. [A] rule that rendered IDEA claims for compensatory education moot upon a move out of district would allow ‘a school district [to] simply stop providing required services to a student with the underlying motive of inducing this student to move from the district . . . .”).
The court remanded for consideration the amount of reimbursement, noting multiple considerations supporting an award of the full amount and any additional compensatory education. These factors included the failure of the district to meet its FAPE obligation at the time the private placement began, the lack of disadvantage to the district of its belated knowledge of the private placement, the undisputed propriety of the private placement, and the failure to offer an IEP for the parents to consider as an alternative to private placement. “Having considered the reimbursement de novo, the Court concludes reimbursement is owed to Plaintiffs for Solstice RTC costs and expenses through March 19, 2019, the date when an IEP was produced. However, the matter is remanded to determine whether the proposed  IEP would have provided Student a FAPE.” 2022 WL 279139, at *17.
Among the lessons that IHOs may draw from the case are that it may take some critical and fact intensive analysis to determine the date when the parent knew or should have known (KOSHK), particularly where as here the parent is alleging a failure to obey child-find obligations over a lengthy period of time. Also, this case is one of the few requiring a determination as to whether the exception to the statute of limitations of “withholding [required] information from the parent” applies, here the alleged failure to provide notice of due process hearing rights when the child is suspected of being a child with disabilities. In addition, in considering reimbursement, it is important to consider the reasoning of the court in this case and the Third Circuit in D.F. v. Collingswood that the end of the district residency of the parents does not terminate rights to reimbursement of tuition. Equitable considerations of course do affect the amount of reimbursement, but the lack of prejudice to the district from late notice of the private placement weighs heavily in that determination.