D.K. Ex Rel. Stephen K. v. Abington School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________________

No. 10-2189

__________________

D. K., a minor, by and through his parents,

Stephen K. and Lisa K.; STEPHEN K.; LISA K., adults,

individually and on their own behalf,

Appellants

v.

ABINGTON SCHOOL DISTRICT

___________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 08-cv-04914)

District Judge: Honorable Cynthia M. Rufe

___________________

Submitted Under Third Circuit LAR 34.1(a)

July 9, 2012

Before: FUENTES, HARDIMAN

and ROTH, Circuit Judges.

(Filed: October 11, 2012)

Michael E. Gehring

Dennis C. McAndrews

McAndrews Law Offices

30 Cassatt Avenue

Berwyn, PA 19312

Attorneys for Appellants

Claudia L. Huot

Michael D. Kristofco

Wisler Pearlstine

460 Norristown Road

Suite 110

Blue Bell, PA 19422-0000

Attorneys for Appellee

____________________

OPINION OF THE COURT

___________________

HARDIMAN, Circuit Judge.

This case requires us to decide whether a public school

district’s failure to designate a struggling student as disabled

violated the Individuals with Disabilities Education Act (IDEA),

20 U.S.C. §§ 1400–1419, or § 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794. In making this determination, we

delineate for the first time the scope of the statutory exceptions

to the IDEA’s statute of limitations.

I

2

A

In the fall of 2003, D.K. began attending kindergarten in

a half-day program at Copper Beech Elementary in the

Abington, Pennsylvania, School District (the School District).

During that year, he struggled with reading and misbehaved

regularly. According to the School District’s psychologist, Dr.

Suzanne Grim, and the Copper Beech principal, Dr. Jan Kline,

D.K. failed to progress in several areas, including: following

oral directions, listening to and acknowledging the contributions

of others, exhibiting self-control, following rules, producing

neat and legible work, completing class work in the time

allotted, and using non-instructional time appropriately. At the

same time, Dr. Grim stated that while some preschool and

kindergarten students have difficulty following directions, it

does not necessarily indicate a disorder. A conference form

completed by D.K.’s kindergarten teacher indicated that D.K.

exhibited “much growth.” D.K. received “proficient,” “basic,”

and “below basic” marks in various reading skills, and received

one-on-one reading services from a specialist. At the conclusion

of the year, the School District recommended that D.K. repeat

kindergarten.

Although D.K.’s second year of kindergarten was a more

intensive full-day program, he showed little maturation. In

conference forms, D.K.’s teacher noted D.K.’s proficiency in

reading and advanced scores in math, but she expressed concern

about his behavior, his tendency to rush through classwork and

turn in incomplete assignments, and his difficulty controlling

himself, especially when he became upset. Indeed, D.K. threw

temper tantrums and was “defiant” and “extremely

argumentative.” His teachers documented forty-three tantrums

between March 14 and May 24, 2005.

3

In response, D.K.’s teachers implemented “behavior

plans,” including a sticker chart and a system using popsicle

sticks, but they did not conduct a functional behavioral

assessment. D.K.’s parents were optimistic about, and

cooperative in, these behavioral improvement plans. In the

meantime, D.K. was “doing very well academically,” and, for

the most part, “play[ing] well with others,”. Nevertheless, at the

end of the year, having witnessed little behavioral progress,

D.K.’s parents and teachers shared a “major concern” about

“how well [he] [would] handle a first grade classroom.”

Within the first two months of D.K.’s first-grade year, his

teacher convened a parent-teacher conference to discuss D.K.’s

“listening/following directions and organizational weaknesses.”

D.K. had been copying another student’s work, was unable to

recall instructions, exhibited poor organizational and planning

skills, misplaced his work, stuttered, and often lost his train of

thought. To resolve these problems, the teacher recommended,

among other things, measures D.K.’s parents could implement at

home. The possibility of a formal evaluation was not discussed

at that time.

At a second conference held the following month, D.K.’s

parents learned that he continued to struggle in the classroom

and was making obscene gestures towards his classmates. At a

third conference following the issuance of D.K.’s first report

card in December 2005, his teacher noted continuing behavioral

challenges, explained that she was “providing as many supports

as [she could] to aid” D.K., and opined that while “it was too

soon to discuss testing (because he [was] not failing), that might

be an option down the road.” The teacher’s notes reflect that

D.K.’s parents saw “no significant problem” and attributed his

behavior to “[D.K.] being [D.K.]”.

4

In January 2006, D.K.’s poor social skills led the School

District to place him in a special social skills group run by Dr.

Grim. According to Dr. Grim, D.K. was “on par with” other

students in the group.

That same month, D.K.’s parents requested an evaluation

of D.K., and on April 24, 2006, the School District administered

a cognitive ability test, which measures “innate ability,” and a

visual-motor integration test. Dr. Grim also administered a

Wechsler Intelligence Scale for Children–Fourth Edition and a

Wechsler Individual Achievement Test–Second Edition, and

observed D.K. in the classroom setting. She prepared an

Evaluation Report using the Behavior Assessment System for

Children (BASC), specifically assessing whether D.K. suffered

from Attention Deficit/Hyperactivity Disorder (ADHD). She

concluded that D.K.’s various scores placed him in average and

low-average ranges, and that D.K. was not in need of special

education services. Based on the BASC ratings, which are

completed by a student’s parents and teachers, D.K. was not in

an “at risk” or “clinically significant” range. His math and

reading tests showed he was proficient in both. D.K.’s parents

signed a Notice of Recommended Education Placement form

approving the April 2006 evaluation results, and D.K. was

promoted to second grade beginning in the fall of 2006.

Plaintiffs claim that despite extra help in math and

reading—which consisted of 30 minutes and 180 minutes per

week, respectively, —D.K. continued to struggle academically

during second grade. The School District, on the other hand,

contends that D.K. made “considerable progress.” The record

shows his grades improved compared with first grade, but he

fought with other children on the playground and on the bus.

5

Around January 2007, D.K. began seeing private

therapist Dr. Linn Cohen. At the end of March 2007, Dr. Cohen

informed D.K.’s teachers and the School District that she was

“[e]xtremely convinced” D.K. needed special placement. D.K.’s

teachers discussed the results of the April 2006 testing with Dr.

Cohen, who mentioned the possibility of re-testing D.K. At the

end of the school year, D.K.’s father notified the school that

outside testing had diagnosed D.K. with “auditory processing”

and “sensory stimulation” problems.

Before D.K. began third grade, in July 2007, his parents

formally requested a second, more comprehensive evaluation.

Additionally, despite improvement in D.K.’s behavior and

academic performance at the beginning of his third-grade year,

in September 2007 D.K.’s parents obtained a private pediatric

neurological evaluation from Dr. Peter R. Kollros. Dr. Kollros

diagnosed D.K. with ADHD and opined that D.K.’s “learning

would be enhanced if he were to have the usual kinds of school

accommodations for children with ADHD, including if needed

preferential seating, taking tests in an environment without

unnecessary distractions, organization support, and possibly

extra time for tests.” Two months later, the School District’s

own second round of testing determined that D.K. was eligible

for special education services as a student with “other health

impairment,” and he was offered an Individualized Education

Program (IEP) on November 30, 2007.

B

On January 8, 2008, in the midst of finalizing D.K.’s IEP,

his parents requested a due process hearing pursuant to the

IDEA and requested an award of compensatory education for

September 2004 through March 12, 2008, after D.K.’s IEP was

6

finalized and implemented. 1 After four hearings, the state

agency hearing officer denied Plaintiffs’ claims. The appeals

panel found no abuse of discretion and affirmed the hearing

officer’s findings. Having exhausted their administrative

remedies, Plaintiffs sought review of those decisions in the

District Court. 2 See 20 U.S.C. § 1415(i)(2)(A).

The District Court affirmed the state agency in all

1

The IDEA requires states to provide parents “[a]n

opportunity . . . to present a complaint . . . with respect to any

matter relating to the identification, evaluation, or educational

placement of the child, or the provision of a free appropriate

public education to such child.” 20 U.S.C. § 1415(b)(6)(A);

accord Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,

550 U.S. 516, 525 (2007). The parents later may “request an

‘impartial due process hearing,’ which must be conducted either

by the local educational agency or by the state educational

agency, and where a hearing officer will resolve issues raised in

the complaint.” Winkelman, 550 U.S. at 525 (citations omitted)

(citing 20 U.S.C. § 1415(f)(1)(A), (3)). Pennsylvania state

regulations provide that parents “may request an impartial due

process hearing” if they “disagree with [a] school district’s . . .

identification, evaluation, or placement of, or the provision of a

free appropriate public education to the student.” 22 Pa. Code

§ 14.162(b).

2

Under the IDEA, a reviewing federal court “(i) shall

receive the records of the administrative proceedings; (ii) shall

hear additional evidence at the request of a party; and (iii)

basing its decision on the preponderance of the evidence, shall

grant such relief as the court determines is appropriate.” 20

U.S.C. § 1415(i)(2)(C).

7

respects. It concluded that the IDEA’s statute of limitations,

which was passed in 2004, barred Plaintiffs from seeking relief

for any of the School District’s conduct prior to January 8, 2006,

(two years before Plaintiffs requested a due process hearing),

D.K. v. Abington Sch. Dist., No. 08-4914, 2010 WL 1223596, at

*6 (E.D. Pa. Mar. 25, 2010), and that Plaintiffs were ineligible

for two statutory exceptions to the IDEA statute of limitations,

id. at *4–6. In concluding that the School District did not

violate its obligation to identify students in need of special

education, the District Court opined:

[P]rior to receiving a diagnosis of ADHD and

conducting its second evaluation, the [School]

District had insufficient reason to believe that

D.K. was a student with a mental impairment that

substantially limited one or more of his major life

activities. The Court agrees with the Hearing

Officer’s logic that one must take into account the

fact that children develop cognitively and socially

at different rates. In this instance, the problems

experienced by D.K., which later triggered a

second special education evaluation, were not so

pronounced in his earlier development.

Id. at *7. The Court also rejected Plaintiffs’ argument that the

School District failed to provide D.K. a free appropriate public

education (FAPE) before November 2007, when it designed an

IEP for him. The Court found that D.K.’s behavior did not

require the school to conduct a functional behavioral assessment

as part of the April 2006 evaluation and that the testing

8

performed at that time was legally adequate. 3 Id. at *8–9.

Finally, the District Court denied Plaintiffs’ request to introduce

additional evidence, namely: (1) a report by Dr. Emily Perlis

offering a post hoc analysis of the appropriateness of the School

District’s responses to D.K.’s behavioral problems during each

of his school years; and (2) the Pennsylvania Department of

Education Guidelines, which set forth non-binding best

practices. Id. at *10–11. Plaintiffs timely appealed, and we now

consider the state agency and District Court decisions rejecting

their claims.

II

The District Court had jurisdiction pursuant to 20 U.S.C.

§ 1415(i)(2) and 28 U.S.C. § 1331. We have jurisdiction over

its final order under 28 U.S.C. § 1291.

In cases arising under the IDEA, we apply a “modified de

novo” standard of review, “giv[ing] ‘due weight’ and deference

to the findings in the administrative proceedings.” P.P. ex rel.

Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 734 (3d

Cir. 2009) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206

(1982); S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d

260, 269–70 (3d Cir. 2003)). Like the District Court, we “must

accept the state agency’s credibility determinations unless the

non-testimonial, extrinsic evidence in the record would justify a

contrary conclusion.” Shore Reg’l High Sch. Bd. of Educ. v.

3

In the District Court, Plaintiffs also alleged that the IEP

developed in November 2007 following D.K.’s second

evaluation failed to provide a FAPE. D.K., 2010 WL 1223596,

at *9–10. The District Court rejected that argument, id., and

Plaintiffs have abandoned it on appeal.

9

P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (citation,

internal quotation marks, and emphasis omitted). “The statute

of limitations claims and [Plaintiffs’] claims for compensatory

education . . . are subject to plenary review as conclusions of

law.” P.P., 585 F.3d at 735. But “whether [Plaintiffs] proved

an exception to the [2004 IDEA] statute of limitations, and

whether the [School] District fulfilled its FAPE obligations . . .

are subject to clear error review as questions of fact.” Id. (citing

S.H., 336 F.3d at 271). Such “‘[f]actual findings from the

administrative proceedings are to be considered prima facie

correct,’ and if [we] do[] not adhere to those findings,” we must

“‘explain why.’” Id. at 734 (quoting S.H., 336 F.3d at 270). As

the party seeking relief and the party challenging the

administrative decisions, Plaintiffs bear the burden of persuasion

on their IDEA and Rehabilitation Act claims. Ridley Sch. Dist.

v. M.R., 680 F.3d 260, 270 (3d Cir. 2012) (citing Schaffer v.

Weast, 546 U.S. 49, 56 (2005)).

III

“The IDEA protects the rights of disabled children by

mandating that public educational institutions identify and

effectively educate those children, or pay for their education

elsewhere if they require specialized services that the public

institution cannot provide.” P.P., 585 F.3d at 735. Accordingly,

schools must: (1) identify children in need of special education

services (Child Find); and (2) provide a FAPE to disabled

students. Plaintiffs contend that the School District neglected

both duties by failing to identify D.K. as a disabled student

based on his subpar behavioral and academic performances in

kindergarten through third grade, by administering incomplete

testing in April 2006 that was ill-suited to diagnose ADHD, and

by offering inadequate support to D.K. before November 2007.

10

Because our analysis of the School District’s obligations

under the IDEA and § 504 of the Rehabilitation Act is

circumscribed by the IDEA statute of limitations, see P.P., 585

F.3d at 735–37, we begin by delimiting the time period to which

D.K.’s claims apply.

A

The IDEA statute of limitations requires a parent to

request a due process hearing within two years of “the date the

parent . . . knew or should have known about the alleged action

that forms the basis of the complaint.” 4 20 U.S.C.

§ 1415(f)(3)(C); 34 C.F.R. § 300.511(e). Parents have the same

two years to file an administrative complaint alleging a violation

of the IDEA or § 504 of the Rehabilitation Act. 20 U.S.C.

§ 1415(b)(6)(B); 34 C.F.R. § 300.507(a)(2). We have held that

the IDEA statute of limitations applies to claims brought after it

was passed in 2004, even if the conduct occurred before its

passage. Steven I. v. Cent. Bucks Sch. Dist., 618 F.3d 411, 413–

16 (3d Cir. 2010). We have also held that the IDEA statute of

limitations applies to § 504 claims premised on IDEA

obligations, such as those invoking Child Find and FAPE duties.

P.P., 585 F.3d at 735–37. Therefore, the IDEA statute of

limitations applies to all of Plaintiffs’ claims at issue in this

appeal.

4

The IDEA statute of limitations also permits parents to

request a hearing “in such time as the State law allows,” “if the

State has an explicit time limitation for requesting such a

hearing.” 20 U.S.C. § 1415(f)(3)(C). Pennsylvania has adopted

the IDEA statute of limitations regulations in their entirety. 22

Pa. Code § 14.102(a)(2)(xxix)–(xxx).

11

Plaintiffs do not dispute that because they requested a due

process hearing on January 8, 2008, the statute of limitations

generally would limit their claims to the School District’s

conduct after January 8, 2006. Nevertheless, they seek refuge in

two exceptions to the statute of limitations and, alternatively,

equitable tolling doctrines.

The two exceptions upon which Plaintiffs rely state that

the statute

shall not apply . . . if the parent was prevented

from requesting the hearing due to—

(i) specific misrepresentations by the local

educational agency that it had resolved the

problem forming the basis of the

complaint; or

(ii) the local educational agency’s

withholding of information from the parent

that was required under this subchapter to

be provided to the parent.

20 U.S.C. § 1415(f)(3)(D)(i)–(ii); accord 34 C.F.R.

§ 300.511(f)(1)–(2). Invoking subsection (i), Plaintiffs argue

that the School District misrepresented D.K.’s success by

advising that his academic, behavioral, and social deficits could

be addressed through individualized supports short of special

education placement. Citing subsection (ii), Plaintiffs also

assert that the School District did not provide them with a

permission to evaluate form until January 5, 2006.

While district courts within the Third Circuit have

interpreted the statute of limitations exceptions on several

12

occasions over the last few years, the scope of these exceptions

is an issue of first impression for United States Courts of

Appeals.

1

a

The first exception to the statute of limitations is set forth

in § 1415(f)(3)(D)(i). As district courts have noted, “both

statutory and regulatory guidance are lacking” regarding the

contours of the “specific misrepresentations” referenced in that

exception. I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist.,

842 F. Supp. 2d 762, 775 (M.D. Pa. 2012); accord Evan H. ex

rel. Kosta H. v. Unionville-Chadds Ford Sch. Dist., No. 07-

4990, 2008 WL 4791634, at *6 (E.D. Pa. Nov. 4, 2008).

Accordingly, we begin our analysis with the scope and meaning

of subsection (i). In crafting the implementing regulations, see

34 C.F.R. § 300.511(f)(1), regulators did “not believe it . . .

appropriate to define or clarify the meaning of

‘misrepresentations,’ as requested by the commenters[, stressing

that] [s]uch matters are within the purview of the hearing

officer.” 71 Fed. Reg. 46,540, 46,706 (Aug. 14, 2006).

Therefore, while we must delineate the meaning of this

exception so we can review decisions of hearing officers and

appeals panels, we reiterate that significant deference is owed to

their applications of both exceptions and that we review them

for clear error. See P.P., 585 F.3d at 735.

Several district courts and administrative adjudicators

have interpreted the meaning of “specific misrepresentation” in

§ 1415(f)(3)(D)(i). According to the Pennsylvania appeals

panel, the majority view is that in order for the exception to

13

apply, “the alleged misrepresentation . . . must be intentional or

flagrant rather than merely a repetition of an aspect of the FAPE

determination.” In re Educ. Assignment of C.C., Spec. Ed. Op.

No. 1866, at 10 & n.64 (Mar. 5, 2008) (citing cases). Several

district courts have reached the same conclusion. See I.H., 842

F. Supp. 2d at 775 (“‘[A]t the very least, a misrepresentation

must be intentional in order to satisfy [this exception].’” (second

alteration in original) (quoting Evan H., 2008 WL 4791634, at

*6)); Sch. Dist. of Phila. v. Deborah A., No. 08-2924, 2009 WL

778321, at *4 (E.D. Pa. Mar. 24, 2009); Evan H., 2008 WL

4791634, at *6 (“[T]o show a ‘specific misrepresentation,’

Plaintiffs must establish not that the [school’s] evaluations of

the student’s eligibility under IDEA were objectively incorrect,

but instead that the [school] subjectively determined that the

student was eligible for services under IDEA but intentionally

misrepresented this fact to the parents.”). But see J.L. ex rel.

J.L. v. Ambridge Area Sch. Dist., No. 06-1652, 2009 WL

1119608, at *11–12 (W.D. Pa. Apr. 27, 2009) (finding negligent

misrepresentation sufficient), abrogated on other grounds by

Steven I., 618 F.3d 411.

We agree that the high threshold articulated by the

district courts reflects a proper interpretation of subsection (i).

In the absence of a showing of “misrepresentation” akin to

intent, deceit, or egregious misstatement, any plaintiff whose

teachers first recommended behavioral programs or instructional

steps short of formal special education might invoke the

exception. Mere optimism in reports of a student’s progress

would toll the statute of limitations. The allegations comprising

a claim that a FAPE was denied or that Child Find obligations

were not met would nearly always suffice to extend the

timeframe beyond that dictated by the statute of limitations. See

I.H., 842 F. Supp. 2d at 775 (“We decline to hold . . . that action

14

which constitutes the basis for the IDEA claim itself can, absent

more, satisfy the exception to the statute of limitations; doing so

would allow the exception to become the rule, and the

limitations period would be all but eliminated.”); Deborah A.,

2009 WL 778321, at *4; Evan H., 2008 WL 4791634, at *6 n.3

(“Plaintiffs would have the Court read ‘misrepresentation’ to

include any occasion in which the actions of a local educational

agency have failed to remedy an educational problem

encountered by a student. Such an exception would swallow the

rule established by the limitation period.”). This cannot be the

intent of the regulation. Rather, we conclude that a rule

demanding at least a school’s knowledge that its representations

of a student’s progress or disability are untrue or inconsistent

with the school’s own assessments best comports with the

language and intent of the provisions. Therefore, we hold that

in order to be excused from the statute of limitations based on

§ 1415(f)(3)(D)(i) because the school “specific[ally]

misrepresent[ed] . . . that it had resolved the problem,” plaintiffs

must show that the school intentionally misled them or

knowingly deceived them regarding their child’s progress.

Unlike subsection (i), the language of the second

exception at § 1415(f)(3)(D)(ii)—“withholding of information

from the parent that was required under this subchapter to be

provided to the parent”—requires little elaboration. The text of

subsection (ii) plainly indicates that only the failure to supply

statutorily mandated disclosures can toll the statute of

limitations. In other words, plaintiffs can satisfy this exception

only by showing that the school failed to provide them with a

written notice, explanation, or form specifically required by the

IDEA statutes and regulations. District courts in this Circuit

have properly limited this exception to such circumstances. See

I.H., 842 F. Supp. 2d at 775; Deborah A., 2009 WL 778321, at

15

*5; Evan H., 2008 WL 4791634, at *7; see also Evan H., 2008

WL 4791634, at *7 (concluding that subsection (ii) “refers

solely to the withholding of information regarding the

procedural safeguards available to a parent,” including “‘filing a

complaint and requesting an impartial due process hearing’”

(quoting D.G. v. Somerset Hills Sch. Dist., 559 F. Supp. 2d 484,

492 (D.N.J. 2008))); D.G., 559 F. Supp. 2d at 490, 492

(applying the exception where the school failed to provide

parents who had repeatedly requested a special-education

evaluation with either “written notice explaining why [it]

refused to evaluate” the student or a procedural safeguards

notice, both of which are required by 20 U.S.C. § 1415(b)(3)(B)

and (c)(1)(A)–(C) when a school refuses to evaluate or change a

student’s educational placement).

Having analyzed subsections (i) and (ii) of

§ 1415(f)(3)(D), the clause that introduces those subsections—

“if the parent was prevented from requesting the hearing due

to”—merits discussion. This language imposes an additional

requirement for invoking either of the two exceptions to the

statute of limitations. Establishing evidence of specific

misrepresentations or withholding of information is insufficient

to invoke the exceptions; a plaintiff must also show that the

misrepresentations or withholding caused her failure to request a

hearing or file a complaint on time. The terms “prevented from”

and “due to” denote a causation requirement. Thus, where the

evidence shows, for example, that parents were already fully

aware of their procedural options, they cannot excuse a late

filing by pointing to the school’s failure to formally notify them

of those safeguards.

b

16

Applying these standards to D.K.’s case, we find no clear

error in the administrative findings below that Plaintiffs failed to

prove the applicability of the exceptions to the IDEA statute of

limitations.

As to subsection (i), neither the School District nor its

individual teachers intentionally or knowingly misled Plaintiffs

regarding the extent of D.K.’s academic and behavioral issues or

the efficacy of the solutions and programs they attempted.

Throughout the relevant school years, D.K.’s teachers held

numerous conferences with his parents at which they described,

often in detail, his misconduct, frustration, challenges, and

development. The majority of these conferences were

specifically aimed to notify his parents of his poor performance.

The School District proposed solutions, but it did not imply, let

alone state with any confidence, that these measures would

succeed or eliminate the eventual need for an evaluation.

Individualized behavioral plans did yield some improvement,

and the School District accurately reported those results to

D.K.’s parents. Notably, neither the conference forms nor the

remainder of the record in this case suggest that the School

District represented that these minor improvements resolved

D.K.’s behavioral challenges or obviated the need for

monitoring and parent-teacher cooperation, i.e. “resolved the

problem forming the basis of the complaint,” § 1415(f)(3)(D)(i).

Moreover, teachers sought parental permission and input at

every step. When one of D.K.’s teachers suggested in 2005 that

testing was not yet necessary, she cautioned that a more formal

evaluation might be beneficial down the road. Thus, the School

District’s statements to D.K.’s parents fall well short of the sort

of intentional or knowing misrepresentation required to toll the

statute of limitations under § 1415(f)(3)(D)(i).

17

With respect to subsection (ii), Plaintiffs claim the School

District provided them with neither a permission to evaluate

form nor a procedural safeguards notification until after they

requested an evaluation of D.K. in January 2006. But the

School District was not obligated to do so in these

circumstances. Procedural safeguard notices must be provided

only when: (1) the student is referred for, or the parents request,

an evaluation; (2) the parents file a complaint; or (3) the parents

specifically request the forms. See id. § 1415(d); see also 22 Pa.

Code § 14.123(c) (requiring schools to keep permission to

evaluate forms available, but mandating that schools provide a

copy only when parents orally request an evaluation).

As for the permission to evaluate form, Plaintiffs’

argument that the School District should have notified them of

the availability of an evaluation pursuant to 34 C.F.R. § 300.304

also fails. While the school “must provide notice . . . that

describes any evaluation procedures the agency proposes to

conduct,” 34 C.F.R. § 300.304(a) (emphasis added); accord id.

§ 300.503, the regulations do not demand that the school

preemptively advise parents of their right to have their child

evaluated. 5 Even if the regulations did require such anticipatory

5

Citing Centennial School District v. S.D. ex rel. Daniel

D., No. 10-4129, 2011 WL 6117278, at *6 (E.D. Pa. Dec. 8,

2011), Plaintiffs assert that their expressions of concern

regarding D.K.’s academic and behavioral progress amounted to

a request for an evaluation, triggering the School District’s duty

to provide them with a procedural safeguards notice and a

permission to evaluate form. We disagree with that reasoning

from S.D. because we cannot conclude that general expressions

of concern constitute a “parental request for evaluation” under

the plain terms of the statute. 20 U.S.C. § 1415(d)(1)(A)(i)

18

notice, Plaintiffs have not established causation; D.K.’s parents

were not “prevented from requesting the hearing” by any such

omission. Their own unprompted request for an evaluation in

January 2006 demonstrates that they were aware of their right to

seek one. Additionally, in December 2005, although the School

District encouraged postponing a formal evaluation, it made

D.K.’s parents aware of that option by noting that it might be an

appropriate step down the road.

2

Plaintiffs argue in the alternative that two common law

equitable tolling doctrines should apply: (1) “minority tolling,”

which applies to plaintiffs who were minors when their claims

accrued; and (2) tolling because the School District prevented

Plaintiffs from learning of the basis for their claims. We

disagree. Although the statute is silent on the matter, legislative

intent and the doctrine of exclusio unius preclude application of

common law equitable tolling principles to save claims

otherwise foreclosed by the IDEA statute of limitations. First,

the legislative and regulatory history of the 2004 amendments to

the IDEA makes clear that only the enumerated statutory

exceptions may exempt a plaintiff from having his claims time-

barred by the statute of limitations. See S. Rep. No. 108-185, at

40 (2003) (“The committee does not intend that common law

determinations of statutes of limitations override this specific

(emphasis added); see also 22 Pa. Code § 14.123(c) (“Parents

may request an evaluation at any time, and the request must be

in writing. . . . If a request is made orally to any professional

employee or administrator of the school entity, that individual

shall provide a copy of the permission to evaluate form to the

parents within 10-calendar [sic] days of the oral request.”).

19

directive . . . .”); 71 Fed. Reg. 46,540, 46,697 (Aug. 14, 2006)

(“It is not necessary to clarify that common-law directives

regarding statutes of limitations should not override the Act or

State regulatory timelines, as the commenters recommended,

because the Act and these regulations prescribe specific

limitation periods which supersede common law directives in

this regard.”). Second, “[w]here Congress explicitly enumerates

certain exceptions to a general prohibition, additional exceptions

are not to be implied, in the absence of a contrary legislative

intent.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616–17

(1980).

Accordingly, IDEA plaintiffs cannot escape its statute of

limitations by invoking equitable tolling doctrines recognized

under state law. They can argue only for the application of one

of the statutory exceptions, as the district courts have correctly

held. See Evan H., 2008 WL 4791634, at *5 (concluding that

the IDEA statute of limitations “is not subject to the continuing

violation or equitable tolling doctrines, but . . . instead, . . . can

be extended only for one of the enumerated statutory

exceptions”); J.L. ex rel. J.L. v. Ambridge Area Sch. Dist., 622

F. Supp. 2d 257, 269 (W.D. Pa. 2008) (“The Court agrees . . .

that the Regulations firmly establish that the two exceptions

specifically set forth in the statute are the exclusive exceptions

to the statute of limitations . . . .”).

In sum, because D.K.’s parents are ineligible for the

statutory exceptions and because common law equitable tolling

doctrines do not apply, their claims are limited to violations after

January 8, 2006.

B

20

We next consider the merits of Plaintiffs’ claim that they

are entitled to the equitable remedy of compensatory education

because the School District failed to identify D.K. as disabled

and to provide him a FAPE. “‘A disabled student’s right to

compensatory education accrues when the school knows or

should know that the student is receiving an inappropriate

education.’” P.P., 585 F.3d at 739 (quoting Lauren W. ex rel.

Jean W. v. DeFlaminis, 480 F.3d 259, 272 (3d Cir. 2007)).

When a school fails to correct a situation in which a disabled

student “is not receiving more than a de minimis educational

benefit,” the “child is entitled to compensatory education for a

period equal to the period of deprivation, excluding only the

time reasonably required for the school district to rectify the

problem.” M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d

389, 391–92 (3d Cir. 1996). “Obviously the case against [a]

school district will be stronger if the district actually knew of the

educational deficiency or the parents had complained,” but

where a school should have known if it had complied with its

statutory duties, a compensatory-education remedy still may be

appropriate. Id. at 397.

The remedy of compensatory education is available only

where a student’s substantive rights are affected by a school

district’s non-compliance with the IDEA. “Accordingly, ‘[a]

procedural violation is actionable under the IDEA only if it

results in a loss of educational opportunity for the student,

seriously deprives parents of their participation rights, or causes

a deprivation of educational benefits.’” M.R., 680 F.3d at 274

(quoting D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d

Cir. 2010)).

“School districts have a continuing obligation under the

IDEA and § 504”—called “Child Find”—“to identify and

21

evaluate all students who are reasonably suspected of having a

disability under the statutes.” P.P., 585 F.3d at 738 (emphasis

added); accord 20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.111. A

school’s failure to comply with Child Find may constitute a

procedural violation of the IDEA. E.g., D.A. ex rel. Latasha A.

v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010)

(calling the Child Find requirement a “procedural regulation[]”);

Bd. of Educ. of Fayette Cnty., Ky. v. L.M., 478 F.3d 307, 313

(6th Cir. 2007) (characterizing noncompliance with Child Find

as a procedural violation).

Child Find extends to children “who are suspected of

[having] . . . a disability . . . and in need of special education,

even though they are advancing from grade to grade.” 34 C.F.R.

§ 300.111(c)(1); accord L.M., 478 F.3d at 313; Taylor v.

Altoona Area Sch. Dist., 737 F. Supp. 2d 474, 484 (W.D. Pa.

2010). As several courts have recognized, however, Child Find

does not demand that schools conduct a formal evaluation of

every struggling student. See, e.g., J.S. v. Scarsdale Union Free

Sch. Dist., 826 F. Supp. 2d 635, 661 (S.D.N.Y. 2011) (“The

IDEA’s child find provisions do not require district courts to

evaluate as potentially ‘disabled’ any child who is having

academic difficulties.”). A school’s failure to diagnose a

disability at the earliest possible moment is not per se

actionable, in part because some disabilities “are notoriously

difficult to diagnose and even experts disagree about whether

[some] should be considered a disability at all.” A.P. ex rel.

Powers v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 226 (D.

Conn. 2008).

Plaintiffs claim that the School District violated its Child

Find duties in three ways: (1) by failing to evaluate D.K. within

a reasonable time after it should reasonably have suspected a

22

disability; (2) by conducting an inappropriate evaluation in April

2006; and (3) by failing to suspect disability when D.K.’s

struggles continued after April 2006.

We have “‘infer[red] a requirement that [schools identify

disabled children] within a reasonable time after school officials

are on notice of behavior that is likely to indicate a disability.’”

M.R., 680 F.3d at 271 (quoting W.B. v. Matula, 67 F.3d 484, 501

(3d Cir. 1995), abrogated on other grounds by A.W. v. Jersey

City Pub. Schs., 486 F.3d 791 (3d Cir. 2007)). This requirement

“is implicit in the ‘child find’ duty.” W.B., 67 F.3d at 501

(holding that a jury could reasonably find a violation of Child

Find where a school failed to conduct an evaluation within six

months after the personal observations of teachers and the

receipt of information from parents provided notice of the

student’s likely disability). Accordingly, such a delay can

constitute a procedural Child Find violation.

Moreover, a poorly designed and ineffective round of

testing does not satisfy a school’s Child Find obligations. See,

e.g., G.D. ex rel. G.D. v. Wissahickon Sch. Dist., 832 F. Supp.

2d 455, 465–67 (E.D. Pa. 2011) (finding that the school’s

reevaluation of an elementary school student with significant

behavioral problems was inadequate because it overemphasized

the student’s academic proficiency and assessed behavioral

issues only cursorily). The IDEA requires that initial

evaluations upon suspicion of a disability

(A) use a variety of assessment tools and

strategies to gather relevant functional,

developmental, and academic information,

including information provided by the parent

. . . [;]

23

(B) not use any single measure or assessment as

the sole criterion for determining whether a child

is a child with a disability or determining an

appropriate educational program for the child; and

(C) use technically sound instruments that may

assess the relative contribution of cognitive and

behavioral factors, in addition to physical or

developmental factors.

20 U.S.C. § 1414(b)(2)(A)–(C); 34 C.F.R. § 300.304(b)(1)–(3).

It further mandates, among other things, that evaluation

materials be “used for purposes for which the assessments or

measures are valid and reliable” and that children be “assessed

in all areas of suspected disability.” 20 U.S.C.

§ 1414(b)(3)(A)(iii), (B); 34 C.F.R. § 300.304(c)(1)(iii), (4).

But while an evaluation should be tailored to the specific

problems a potentially disabled student is having, it need not be

designed to identify and diagnose every possible disability. See

P.P., 585 F.3d at 738–39 (rejecting the parents’ argument that

an evaluation report was deficient because it failed to identify a

math disability and did not test for social and emotional

functioning, reasoning that “those areas were not identified as

suspected disabilities and so were properly excluded” from the

screening).

We agree with the decisions below that Plaintiffs have

failed to establish an unwarranted delay, 6 a deficient April 2006

6

Although more than sixty days elapsed between the date

on which Plaintiffs returned the permission to evaluate form to

the School District, February 11, 2006, and the evaluation on

April 26, 2006, see 20 U.S.C. § 1414(a)(1)(C)(i)(I) (giving

24

evaluation, or evidence showing the School District should

reasonably have suspected D.K. was disabled and in need of

special education services after April 2006.

The School District was not required to jump to the

conclusion that D.K.’s misbehavior denoted a disability or

disorder because hyperactivity, difficulty following instructions,

and tantrums are not atypical during early primary school years.

See L.M., 478 F.3d at 314 (finding no violation where witnesses

testified that the student’s “difficulties would not necessarily

indicate a disability or a need for special education, and that it

would be inappropriate to rush to identify a child that young as

disabled”); id. (noting that “[s]chool personnel . . . testified that

[the student’s] behavioral and learning problems were not

atypical of immature young boys”); see also Scarsdale Union,

826 F. Supp. 2d at 662–63 (finding no Child Find violation

where a high school junior’s absences and difficulty keeping up

with assignments were “not unusual among first-semester

juniors . . . [and] five or six other kids were having similar

problems at the time”). Moreover, D.K.’s report cards and

conference forms indicated intermittent progress and even

academic success in several areas. Cf. L.M., 478 F.3d at 311

schools sixty days to conduct an evaluation after receipt of the

parents’ form), this mere procedural noncompliance is

insufficient to merit compensatory-education relief unless it also

resulted in the substantive denial of a FAPE. See M.R., 680

F.3d at 273; C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 66–

67 (3d Cir. 2010). As we explain infra, we find no such

substantive failure by the School District. Separately, to the

extent Plaintiffs claim the School District violated Child Find by

failing to test D.K. before January 2006, their claim is barred by

the statute of limitations.

25

(finding no violation where a student was “meeting

expectations” in academic areas despite struggling with social

and behavioral problems throughout elementary school).

Nor do we find error in the conclusions that the April

2006 battery of tests was adequate under Child Find. Plaintiffs

contend, among other things, that the School District’s failure to

use a functional behavioral assessment rendered the testing

legally inadequate. But the IDEA and its implementing

regulations do not require that a school use a functional

behavioral assessment when initially testing students for

suspected disabilities. 7 The four tests the School District did

employ covered discrepant skill sets and probed for indicia of

varying disabilities. The mere fact that a subsequent evaluation

of D.K. yielded a different result—i.e. he was found disabled

with an “other health impairment” in November 2007 but did

not qualify in April 2006—does not necessarily render the

earlier testing inadequate. Cf. M.R., 680 F.3d at 264–66 (finding

no Child Find violation where a school’s February 2007

evaluation concluded that a student did not have a learning

disability but its February 2008 testing found reading, math,

reasoning, and writing disabilities). Therefore, we will not

7

The IDEA’s only mention of the functional behavioral

assessment method is in § 1415(k)(1)(D), which requires use of

that technique when a disabled student, who is already being

educated pursuant to an IEP, continues to exhibit behavioral

problems. This neither precludes nor requires use of a

functional behavioral assessment in initial disability evaluations.

As with all evaluations, the component testing mechanisms

must be determined on a case-by-case basis depending on the

suspected disability and the student’s needs. See 20 U.S.C.

§ 1414(b)(2)(A)–(C); 34 C.F.R. § 300.304(b)(1)–(3).

26

second-guess the findings of the state agency or the District

Court on this question. D.K., 2010 WL 1223596, at *7–9.

We are also unpersuaded that the School District violated

its Child Find obligations by failing to suspect D.K. of a

disability after the April 2006 evaluation based on further

misconduct and additional opinions by his parents and private

therapist. See M.R., 680 F.3d at 273 (“When a school district

has conducted a comprehensive evaluation and concluded that a

student does not qualify as disabled under the IDEA, the school

district must be afforded a reasonable time to monitor the

student’s progress before exploring whether further evaluation is

required. . . . The IDEA does not require a reevaluation every

time a student posts a poor grade.”). Plaintiffs’ argument in this

respect is belied by the record and inconsistent with the findings

of the state agency below. D.K. exhibited improvement after his

April 2006 evaluation, and his continuing misbehavior was

typical of boys his age. D.K.’s parents consistently approved

and cooperated with the behavioral plans devised by his

teachers. Moreover, when Dr. Cohen opined in May 2007 that

D.K. required special education, teachers discussed with her the

results of the April 2006 evaluation. The record does not

disclose that she further pressed for formal accommodations.

Finally, the measures the School District did take to assist

D.K. in the classroom militate against finding a Child Find

violation. His teachers did not neglect his difficulties. Far from

it, they and other Copper Beech faculty took proactive steps to

afford him extra assistance and worked closely with his parents

to maximize his potential for improvement. It would be wrong

to conclude that the School District failed to identify D.K. as a

challenged student when it offered him substantial

accommodations, special instructions, additional time to

27

complete assignments, and one-on-one and specialist attention

en route to eventually finding a disability. Cf. M.R., 680 F.3d at

272 (agreeing with a hearing officer’s decision that no Child

Find violation occurred where the school district’s investment in

“addressing [a student’s] needs and providing appropriate

instruction and interventions before rushing to special education

identification” was apparent).

In sum, schools need not rush to judgment or

immediately evaluate every student exhibiting below-average

capabilities, especially at a time when young children are

developing at different speeds and acclimating to the school

environment. Moreover, neither the failure to employ a

functional behavioral assessment nor a subsequent disability

finding is per se indicative of an inappropriate evaluation. The

School District did not breach its Child Find duty by failing to

test D.K. until April 2006, during his first-grade year, or by

declining to label him disabled under the IDEA until his second-

grade year.

Plaintiffs’ claim for compensatory education is further

foreclosed because the hearing officer, appeals panel, and

District Court correctly determined that D.K. was not denied a

FAPE. D.K. demonstrated academic progress in math and

reading as he progressed from grade to grade. During the 2004–

2005 school year, his teachers noted that he possessed advanced

math skills, and between 2003 and 2006, he received numerous

“proficient” and “advanced” marks in reading, social studies,

health and safety, math, music, art, and physical education.

When D.K. became frustrated with reading and communication

skills, the School District provided him with one-on-one tutoring

and gave him additional time to complete tests. To address his

below-average social development, D.K.’s teachers designed

28

individualized systems, which yielded some progress. See L.M.,

478 F.3d at 314 (finding that the school provided a FAPE

where, although it had not identified the student as IDEA-

eligible, its individualized “interventions . . . were moderately

successful” and supplied extra assistance necessary for a

meaningful education); see also M.C., 81 F.3d at 395–96

(denying compensatory education where the school believed in

good faith that it was providing an appropriate education, noting

that “[a] difference of opinion as to the adequacy of an

educational program is not equivalent to a complete and total

failure to provide a child with an education”). Indeed, these are

precisely the types of special measures D.K.’s neurologist

recommended after diagnosing him with ADHD. Therefore, we

conclude that D.K. received a FAPE and is not entitled to a

compensatory education award. 8 See P.P., 585 F.3d at 739.

8

Our analysis and conclusion in this respect govern not

only Plaintiffs’ IDEA claims, but also their arguments premised

on § 504 of the Rehabilitation Act. Section 504 mandates that

“‘[n]o otherwise qualified individual with a disability . . . shall,

solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination’ under any program that receives federal funds.”

M.R., 680 F.3d at 280 (alteration in original) (quoting 29 U.S.C.

§ 794(a)). “As we have explained, § 504’s ‘negative

prohibition’ is similar to the IDEA’s ‘affirmative duty’ and . . .

requires schools that receive federal financial assistance to

‘provide a free appropriate public education to each qualified

handicapped person who is in the recipient’s jurisdiction.’” Id.

(quoting W.B., 67 F.3d at 492–93). As under the IDEA,

providing a FAPE in accordance with § 504 requires a school

district to “reasonably accommodate the needs of the

29

C

Plaintiffs lastly argue that the District Court erred by

excluding the expert report of Dr. Emily Perlis and the

Pennsylvania Department of Education Guidelines, both of

which Plaintiffs offered for the first time in the District Court.

A district court reviewing administrative IDEA decisions “shall

hear additional evidence at the request of a party,” 20 U.S.C.

§ 1415(i)(2)(C)(ii), but “the question of what additional

evidence to admit in an IDEA judicial review proceeding . . .

should be left to the discretion of the trial court,” Susan N. v.

Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir. 1995). As the

District Court reasoned, all a court must do is “consider the

party’s request to admit additional evidence” and “not

summarily reject” it. D.K., 2010 WL 1223596, at *4. The

district court should not automatically “‘disallow testimony from

all who did, or could have, testified before the administrative

hearing,’” Susan N., 70 F.3d at 759–60 (quoting Burlington v.

Dep’t of Educ. for Mass., 736 F.2d 773, 790–91 (1st Cir. 1984)),

but the court need not consider evidence that is irrelevant or

cumulative, see id. at 760.

First, as the District Court found, the Perlis report is

largely duplicative of the evidence given at the administrative

hearings. Six of the report’s nine pages—a summary of D.K.’s

early education—were already introduced as exhibits and

discussed by witnesses before the hearing officer. Moreover,

handicapped child so as to ensure meaningful participation in

educational activities and meaningful access to educational

benefits.” Id. Consequently, our finding that the School District

did not deny D.K. a FAPE is equally dispositive of Plaintiffs’

§ 504 claim.

30

her report offers only a commentary, prepared with the benefit

of hindsight, regarding the evidence and testimony already

presented to the state agency.

Second, contrary to Plaintiffs’ assertions that the

Pennsylvania Department of Education Guidelines should have

been admitted because they set forth “necessary components” of

behavioral support strategies that the School District failed to

incorporate, the Guidelines offer only non-binding best

practices. Holmes v. Milcreek Twp. Sch. Dist., 205 F.3d 583,

591 (3d Cir. 2000). The School District’s failure to adhere to

those Guidelines does not amount to the denial of a FAPE, so

they are of only minor relevance at best. Therefore, we will

uphold the District Court’s discretionary determination to

exclude Plaintiffs’ tardy evidence.

IV

In sum, we conclude that Plaintiffs’ claims are limited to

the two-year time period between January 8, 2006, and January

8, 2008. Having interpreted the IDEA statute of limitations

exceptions as requiring either intentional or knowing

misrepresentation of D.K.’s problems and progress or the

withholding of information expressly required by the IDEA

statutes and regulations to be disclosed to parents, we hold that

neither the District Court nor the state agency clearly erred when

it found Plaintiffs ineligible for the exceptions. Nor may

Plaintiffs invoke common law equitable tolling doctrines in the

face of specifically enumerated exceptions in the governing

federal statute.

We further hold that during the relevant portion of D.K.’s

education at Copper Beech Elementary, the School District

31

consistently monitored, documented, and responded to his

individual educational needs. The School District developed

behavioral improvement systems with his parents’ cooperation

and offered him special attention and testing accommodations.

Under these circumstances, we find no Child Find or FAPE

violation justifying an award of compensatory education.

Accordingly, we will affirm the judgment of the District Court.

32