A recent Eighth Circuit case, Independent Sch Dist. No. 283 v. E.M.D.H., Nos. 19-1269, 19-1336, 2020 WL 2892238, — F.3d —-, 120 LRP 17110 (8th Cir. June 3, 2020), covers a number of issues that arise frequently in cases before impartial hearing officers, specifically evaluation and eligibility for a student with psychological disabilities, child find, statute of limitations, and compensatory education. The case involved a high school student with diagnoses including anxiety disorder, school phobia, autism with obsessive-compulsive traits, panic disorder with agoraphobia, ADHD, and severe recurrent major depressive disorder. She was frequently absent from school but performed well academically when present. She stopped attending class in eighth grade and was admitted to a day treatment program. School personnel did not refer her for special education, and instead disenrolled her. She was reenrolled in ninth grade in the fall of 2015, then disenrolled again when she reentered day treatment. In tenth grade the school district disenrolled her twice for absences. Over several years, district personnel told the parents that if the student were in special education she would not be able to take the honors classes that she would otherwise be taking.
After the student entered a psychiatric facility in April 2017, the parents requested a special education evaluation from the school district, and a psychologist at the facility did an independent evaluation. The student attended three days of eleventh grade in fall of 2017, then stopped attending. Her coursework in the district had netted her only two credits of the forty-six she needed for graduation, though she had a number of credits from coursework at treatment facilities. In November 2017, the district concluded that the student was not eligible for special education. The parents then hired additional evaluators and filed for a due process hearing. The Administrative Law Judge ruled against the school district, and the district court affirmed on the parents’ underlying claim but reversed the ALJ’s award of private tutoring as compensatory education.
On cross-appeals, the Eighth Circuit affirmed the lower court’s decision in favor of the parents on the underlying claim. On the issues of the adequacy of the district’s evaluation and determination that the student was not IDEA-eligible, the court held that the district evaluations were deficient, noting that under state law the evaluation should have included systematic classroom observation and a functional behavioral assessment. Moreover, the student’s absenteeism did not excuse that deficiency when the student could have been evaluated away from the public school. The court further held that the student met the eligibility standards for special education under the categories of emotional disturbance and other health impairment. The court worked through the criteria for each of those impairments and found them met, noting specifically that the impairments left her far behind her peers in progress towards graduation, thus adversely affecting her educational performance. The court pointed out that the student’s mental health problems caused the absenteeism and stated:
Despite this evidence, the District maintains that the Student is simply too intellectually gifted to qualify for special education. The District suggests the Student’s high standardized test scores and her exceptional performance on the rare occasions she made it to class are strong indicators that there are no services it can provide that would improve her educational situation. The District confuses intellect for an education. . . . . The IDEA guarantees disabled students access to the latter, no matter their innate intelligence.
Id. at *6.
The court went on to affirm the decision that the district failed its child-find obligation when it was aware no later than spring of 2015 that student stopped attending school due to mental health issues. The two-year statute of limitations did not bar that claim because the failure to evaluate extended into the two-year period before the filing of the due process complaint on June 27, 2017. The court reasoned:
Assuming the parents knew or should have known they had a child-find claim when the Student was an eighth-grader, the District staff responsible for identifying the Student in the ninth and tenth grades likewise failed to fulfill their child-find obligation. In other words, the violation was not a single event like a decision to suspend or expel a student; instead the violation was repeated well into the limitations period. Cf. In re: Mirapex Prods. Liab. Litig., 912 F.3d 1129, 1134 (8th Cir. 2019) (noting that “breaches of continuing or recurring obligations” give rise to new claims with their own limitation periods). Any claim of a breach falling outside of the IDEA’s two-year statute of limitations would be untimely. But, because of the District’s continued violation of its child-find duty, at least some of the Student’s claims of breach of that duty accrued within the applicable period of limitation.
Id. at *7.
The decision thus may be instructive to IHOs as to the adequacy of an evaluation for a student suspected of having psychological and behavioral disabilities, particularly a student who is chronically truant; and, the eligibility of such a student who nevertheless has high intelligence and has a record of performing well academically but who clearly has social/emotional/behavioral needs adversely affecting her functional performance. In addition, the decision points out the important need to apply IDEA’s statute of limitations differently to situations involving child-find obligations when the beginning of the violation occurred outside the limitations period but the violation was repeated and, therefore, extended into the limitations period. This situation is clearly distinguishable from the more common statute of limitations scenario where the violation is but a single event even though the harmful effects may continue into the limitations period.