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D. K., A Minor, By and Through His Parents, Stephen K. and Lisa K v. Abington School District

October 11, 2012


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

The opinion of the court was delivered by: Hardiman, Circuit Judge.


Submitted Under Third Circuit LAR 34.1(a) July 9, 2012

Before: FUENTES, HARDIMAN and ROTH, Circuit Judges.


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.



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.

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.]".

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.

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.


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 finalized and implemented.*fn1 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.*fn2 See 20 U.S.C. § 1415(i)(2)(A).

The District Court affirmed the state agency in all 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 performed at that time was legally adequate.*fn3 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 ...

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