W.A. v. Hendrick Hudson Cent. Sch. Dist., Nos. 17-3248, 17-3313, 2019 WL 2479164, 927 F.3d 126, 74 IDELR 186 (2d Cir. June 14, 2019), is a case of interest on issues of child-find and tuition reimbursement. The case (actually two cases consolidated) involved a teenager who developed abdominal and conventional migraines in middle school, causing him to miss over 100 school days in his eighth grade year. Eventually, the school district found him eligible for special education, but his parents were unhappy with the district’s proposed ninth and tenth grade programs and placed him at Northwood, a private boarding school. The court said that, “While at Northwood W.E.’s absences from school diminished significantly, and he experienced notable improvement in his social and academic engagement.” Id. at *1.

The migraine condition first appeared when the student was in sixth grade; by the end of seventh grade, the parents requested tutoring from the school’s Section 504 Committee, and the student received accommodations including extra time on assignments and home tutoring. In the student’s eighth grade year, absences mounted, problems developed regarding the tutoring, and the student’s academic performance declined: “Although he did well in some classes, he struggled in others, missed some state exams, and became more socially isolated.” Id. at 3. By April, his parents made a referral for special education and requested a Section 504 meeting. The school offered counseling and recommended a psychiatric evaluation, but the district’s psychiatrist reported he did not evaluate the student, citing the student’s migraines and/or anxiety. The CSE met in May, and August, and the CSE ultimately found the student eligible for special education under the Other Health Impaired category, recommending twice-weekly counseling, access to class notes, nursing services, extra assignment time, and classes with a student-staff ratio of 8:1:1, which would be implemented at a BOCES program.

The student’s parents were dissatisfied with the two suggested BOCES placements, and placed the student for ninth grade at Northwood, a private school with classes smaller than 8:1:1 and extensive nursing services. The program there included organized study periods and seminar-type class sessions, and the student’s specific program included additional time for in-class assignments, preferential seating, graphic organizers or guided notes for lectures, and regular counseling sessions with the school counselor. The student passed all his classes and missed only nine days due to migraines. His social adjustment improved, although there were some behavior problems, and he continued at Northwood for tenth grade. The school district again recommended a BOCES program for the tenth grade school year. The student’s tenth-grade program at Northwood added accommodations, including use of an iPad in class, a supervised study hall, access to a school nurse, and by spring, a weekly meeting with a social worker. The student made academic progress, though he continued to have uneven performance and occasional inappropriate behavior. He participated in athletics and other programs.

The parents requested a due process hearing, asserting denial of free, appropriate education and asking for compensatory counseling services for the eighth grade year, as well as tuition reimbursement for ninth grade. The IHO said the district’s child-find obligation accrued by January 3 of eighth grade in light of the student’s absences and missed assignments, and ordered reimbursement for counseling and evaluation sessions, though the IHO denied additional compensatory education in the form of tutoring. The IHO further found a denial of FAPE for ninth grade for the district’s failure to complete the evaluation on time, but denied tuition reimbursement for that year on the ground that Northwood was not appropriate, saying that it did not address the psychological or emotional issues that triggered the student’s migraines, and had no psychologist or psychiatrist on staff or formal counseling program. The IHO further reasoned that the student continued to have organizational and study skills problems. The parents filed a separate due process request for the tenth grade year, and the IHO in that case found that the district’s proposed IEP was not appropriately tailored to the student’s needs and contained an internal contradiction by providing for an 8:1 student teacher ratio as well as mainstream placement in Math, English, and Science, which would have a 24:1 ratio. That IHO found Northwood appropriate for the student and awarded tuition reimbursement.

The state review officer (SRO) reversed the IHO as to the child-find violation for the eighth grade year, though it permitted reimbursement for counseling on the ground that that part of the order had not been appealed. The SRO agreed that the district violated the IDEA by failing to have a finalized IEP in place at the start of the ninth grade year, but also affirmed the IHO determination that Northwood was not appropriate and affirmed denial of tuition. In the separate appeal of the second IHO decision. the one regarding tenth grade, the SRO affirmed that the student was denied FAPE, but reversed as to the appropriateness of Northwood and denied reimbursement. On appeal to district court, the district judge agreed that the school district did not commit a child-find violation denying the student FAPE for the eighth grade year. The school district did not contest the SRO’s finding of denial of FAPE for ninth and tenth grade, but it challenged the reimbursement award for tenth grade, and the parents challenged the denial of reimbursement for ninth grade. The district judge affirmed the denial of tuition for ninth grade, but reversed it for tenth grade. The judge also vacated the award of compensatory education for the eighth grade year.

The court of appeals affirmed in part and reversed in part, supporting the school district’s position across the board. It emphasized the SRO’s conclusion that the student appeared to be making progress within the general curriculum in eighth grade despite his record of absences. It further noted the SRO’s reliance on statements from the parents indicating satisfaction with the accommodations provided to that point. The court approved the SRO’s reasoning that it was not until the third quarter that the absences caught up with the student, and said the SRO duly considered standardized test scores and teacher evaluations. The court declared:

The question of whether the District should have taken more aggressive steps in the face of competing signals arising from various interactions with the Parents and with the District’s personnel regarding W.E.’s progress in the general education curriculum is an issue that calls for expertise; it is therefore an issue on which we must defer to the educational experts.

Id. at *11. The court said the question was not so much whether there was a basis to suspect a disability so much as whether there was reason to suspect that special education was needed. The court also affirmed the vacating of the counseling services award.

The court then affirmed the SRO with regard to tuition for ninth and tenth grade, concluding that Northwood did not offer FAPE. It noted that the SRO considered evidence of the student’s progress at Northwood but it deferred to the SRO’s view that there was insufficient evidence that the private school’s ninth grade program addressed the student’s tendencies to develop physical symptoms and exhibit school avoidance when under stress, as well as his need to develop coping and organizational skills. The court said that “the question of whether a private school placement provided special education services is precisely a question on which we defer to educational experts.” Id. at *13. Applying similar reasoning, the court overturned the district court and affirmed the SRO in denying tuition for the tenth grade year, noting that the record of absences in ninth and tenth grades was similar and stressing that the SRO took into account improvements in the student’s program due to the use of an iPad and the small classes as well as the lack of evidence that the private school provided specially designed instruction to meet the student’s specific needs. The court said, “We agree with the district court that a resource that benefits an entire student population can constitute special education in certain circumstances.” Thus, small class sizes and use of an iPad can be components of appropriate education, but the court deferred to what it described as “a question of educational policy—such as whether a generally available resource is specially tailored to a particular disabled student’s needs.” Id. at 15.

This latest word from the Second Circuit on child-find and tuition reimbursement is worth the attention of IHOs who frequently confront cases on one or both issues. The hefty amount of deference to the SRO’s decision fits in with earlier Second Circuit case law, though it should be stressed that the court believed strongly that the SRO carefully considered all the relevant evidence and issued detailed and well-reasoned opinions on all the contested issues.