The student, who was thirteen years old at the time of the decision, attended school in the district from kindergarten through sixth grade, before her parents enrolled her in a private school. As early as kindergarten, the student demonstrated academic weaknesses, prompting the parent to request a full psychoeducational evaluation. The district reviewed academic records and determined that such an evaluation was unnecessary, though it did conduct a speech and language evaluation and found the student eligible under IDEA as a student with a Speech or Language Impairment. The student received speech and language services through most of second grade.

Despite those services, the student continued to struggle academically and emotionally in first and second grade, achieving below-average scores and developing emotional difficulties. Those struggles persisted into later grades, and by fourth grade the student scored below basic in math and reading. A private psychologist diagnosed disruptive mood regulation disorder and recommended therapy. The parent requested a Section 504 plan, and after evaluating the student, the district determined she was not IDEA-eligible but agreed to develop a Section 504 plan. Behavioral concerns continued, and a subsequent private evaluator concluded that while the student was not eligible under IDEA’s Emotional Disturbance category, she should be found IDEA-eligible under Specific Learning Disability.

The parents filed a due process complaint alleging that the district denied the student a free appropriate public education (FAPE) under both IDEA and Section 504. They asserted that the district failed to satisfy child-find obligations, failed to timely identify and evaluate the student, incorrectly determined that the student was not IDEA-eligible, and offered an inadequate Section 504 plan. The hearing officer concluded that the district satisfied IDEA child-find requirements, that the Section 504 plan was timely, and that the student did not meet eligibility criteria under IDEA. However, the hearing officer found that the Section 504 plan was overly general and insufficient to address the student’s social-emotional needs, ordered the plan revised, and awarded one hour per week of compensatory education for the period during which an appropriate plan was not in place. The district court affirmed on review of the administrative record.

On appeal, the Third Circuit vacated and remanded. The court emphasized that although IDEA and Section 504 both impose child-find, evaluation, and FAPE obligations, Section 504 defines disability more broadly than IDEA. Section 504 encompasses “any mental or psychological disorder,” 34 C.F.R. § 104.3(j)(2)(i)(B), provided other requirements are met, while IDEA limits eligibility to specified disability categories. The court relied on 20 U.S.C. § 1415(l) to underscore that IDEA does not subsume Section 504 claims. It explained that the district court erred by treating the IDEA determination as effectively resolving the Section 504 claim, relegating the latter analysis to a footnote. 103 F.4th at 964.

The court further explained that the same conduct may give rise to claims under both statutes, but that separate analysis is required because the statutes cover different populations and apply different standards. It pointed to the student’s educational history as an illustration, noting that she received services under IDEA in early grades and under Section 504 in later grades. The court highlighted that the family’s argument turned on the district’s repeated refusal to conduct a comprehensive evaluation that could have identified a Section 504-eligible disability earlier, an issue requiring independent analysis under Section 504. Id. at 964–65.

The court stressed that on remand, the proper inquiry was whether the district violated Section 504’s child-find obligation by failing to conduct a comprehensive evaluation earlier in light of the parents’ repeated requests and Section 504’s broader definition of disability. It also noted that modified de novo review, with deference to hearing officer findings, applies to district court review of IDEA claims.

Taken together, the decision reflects that IDEA and Section 504 child-find obligations are related but distinct, and that resolution of an IDEA claim does not automatically resolve a Section 504 claim where the statutory definitions and timing of alleged violations differ.

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.

Greenhill v. Loudoun County School Board, No. 1:19-cv-868, 2020 WL 855962, 120 LRP 6875 (E.D. Va. Feb. 20, 2020), involved a nine-year-old boy whose parents, concerned with his lack of focus and attention, asked that he be evaluated for special education and furnished with an Individualized Education Program (IEP). The district denied the request for an IEP and ultimately offered a Section 504 plan. The parents requested a due process hearing challenging, among other things, the IEP team’s determination of ineligibility and its failure to consider the parents’ expert’s report.  The parents also alleged that their opportunity to participate in the IEP meeting was significantly impeded. Six of seven witnesses at the hearing were school employees, two of whom were qualified as experts. The parents did not submit expert testimony and did not offer the report of a neuropsychologist and psychopharmacologist who diagnosed the student with, among other things,  ADHD and a specific learning disorder, with mild impairment in reading comprehension and written expression. The parents had put forward that report at the IEP meeting at which the district decided that the child was not eligible for IDEA services. The hearing officer ruled in favor of the school district, holding that the child was not eligible under IDEA. After denying a request for submission of evidence outside the hearing record, including the expert’s testimony, the court affirmed the hearing officer’s decision.

The court said it was obliged to focus on the process by which the hearing officer reached the decision. The court noted that the hearing officer allowed opening statements, heard witness testimony, allowed admission of exhibits, heard objections to evidence, and permitted filing of post-hearing briefs with proposed findings of fact and conclusions of law. The court deemed the decision thorough, saying it included credibility determinations and explicit reasoning with specific references to the record. The court rejected specific challenges to the hearing officer decision: It said the hearing officer was correct in finding that the eligibility team considered the parents’ expert report, that the hearing officer’s credibility determinations were consistent with the evidence and entitled to deference, and that the hearing officer was right in ruling that the parents had the opportunity to participate meaningfully in the eligibility meeting.

On the meaningfully participate claim, the court made two important points. First, the parents contended they were not permitted to meaningfully participate because “they did not understand [their expert’s] report or the entirety of the IDEA process.” The court noted that, while IDEA contains procedural safeguards that provide  parents “the opportunity for meaningful input into all decisions affecting their child’s education,” courts have sensibly rejected an interpretation of IDEA that would “guarantee that parents must fully comprehend and appreciate to their satisfaction all of the pedagogical purposes in the IEP.” Thus the court stated courts have not required “perfect comprehension by the parents” and construe the IDEA to require “serious deprivation” before parents’ participation rights are impacted. Second, the court noted, the parents had an advocate at the meeting and could have obtained access to their expert at any time to explain any aspect of his report they did not understand. The parents failed to use these resources available to them and instead attempt to place the burden on the district to educate the parents to their satisfaction, a burden far beyond the requirement of meaningful participation. Also, the parents had the opportunity to speak at the meeting but declined to say much. “Thus, when given the opportunity to participate meaningfully in the Eligibility Meeting, plaintiffs declined to do so.” Id. at *9

This case provides several lessons for IHOs. The first is, with regard to the application of the “significantly impeded the parents’ opportunity to participate in the decision-making process regarding” the FAPE standard, the facts in each case must be closely analyzed in attempting to arrive at the appropriate balance between the parents’ asserted needs and the extent of the obligations IDEA places on districts in safeguarding the parents’ right of the “opportunity to participate.”  Second, the case exemplifies that when a hearing officer conducts a hearing “in accordance with appropriate, standard legal practice” per 34 C.F.R. §300.511(c)(iii), allowing parties to present evidence and argument appropriately and without unlawful impediments, then writes a well-reasoned decision, the decision is likely to be upheld. Further, it reminds us that credibility findings will be given great deference, when the bases are explained with references to the record.  Finally, parties should not expect to be rescued on appeal from strategic decisions not to introduce an expert report or available testimony at the time of the hearing.

Twelve days later, after a private staff meeting, the district changed course and found the student not eligible for services under the IDEA. The student finished fourth grade with only the Section 504 accommodations and without special education support. The school reported that he had grades of A or B in all his classes and no discipline referrals; the parents said he complained of stress causing stomach aches, and that he was frequently sent home, sometimes more than twice a week. The parents challenged the eligibility denial in a due process hearing. The hearing officer found in the parents’ favor, and they sued for attorneys’ fees in federal district court; the school district filed a counterclaim appealing the merits of the decision. The district court affirmed the hearing officer decision that the student was IDEA-eligible, and the court of appeals affirmed. The court of appeals noted that the school district conceded that the student had a condition that qualified as a disability within the definitions in the IDEA and its regulations. The dispute was whether, as a consequence of the disability, the student needed special education.

The court said that “our task is to assess eligibility with the information available to the ARD committee [Texas’s version of an IEP team] at the time of its decision. An erroneous conclusion that a student is ineligible for special education does not somehow become acceptable because a student subsequently succeeds. Nor does a proper finding that a student is ineligible become erroneous because the student later struggles.” 924 F.3d at 215.

In applying that approach, parental input, teacher information, and other data needed to be taken into account. Grades and test scores should be a consideration, but are not the exclusive considerations. In affirming that the student needed special education, the court emphasized the student’s record of failure in benchmark tests, his attention difficulties and problems with written work, lack of concentration, plus the stomach pains due to distress over academics. The court noted that no meaningful new information was received before the district made its sudden reversal on the student’s eligibility. The hearing officer found the district’s change of position shocking, and the court relied on the hearing officer’s credibility determinations and the extensive testimony and analysis that went into the hearing officer decision. The district court properly afforded due weight to that decision.

Analyzing the record, the court of appeals said there was no reason to believe that the hearing officer was applying a standard that special education was needed to maximize the student’s potential. On the contrary, “The SEHO [special education hearing officer] made its position clear that J.M. meaningfully struggled in general education. Also, the SEHO endorsed the proposition that ‘Special Education is not appropriately used for a student to achieve his maximum potential,’ emphasizing that ‘Special Education will only provide [J.M.] with the same opportunity to succeed as other students, not at all assistance to meet his maximum potential.’” Id. at 219. The court discussed the student’s areas of strength, saying that “students with some baseline writing ability may still need special education.” Id. The court also declared that “Nothing in our opinion today should be read to foreclose the possibility that a student who demonstrates some academic success might still need special education. Indeed, federal regulations specifically provide that IDEA eligibility must be granted to a disabled student ‘who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.’ 34 C.F.R. § 300.101(c)(1).” Id. at 218 n.12.

The case is unusual in the district’s U-turn on the student’s eligibility. But the case is instructive on a different basis. For one thing, the court treated eligibility as a simple issue of fact. The question was not whether the district reasonably found the student not eligible, but whether the student was or was not eligible. Nevertheless, and this is the second thing, according to the court the determination is to be made on the basis of the evidence that was available at the time of the eligibility decision. “Monday morning quarterbacking” is not acceptable on eligibility disputes. Id. at 215. The court also evaluated some of the evidence that might have persuasive force on the question of the need for special education, relying on performance in benchmark tests and parent and teacher input but acknowledging the student’s grades as well. The court’s comments about how students might need special education despite good grades may also merit attention, as might its comments about not applying a maximization standard.