A.H. v. Independence Sch. Dist.
| Decision Date | 07 April 2015 |
| Docket Number | WD 77837 |
| Citation | 466 S.W.3d 17 |
| Parties | A.H., a Minor, by and through her Grandmother and Next Friend, Sandra D'Avis, Appellant, v. Independence School District, Respondent. |
| Court | Missouri Court of Appeals |
Robin K. Carlson and William Vandivort, Kansas City, MO, Attorneys for Appellant.
Duane A. Martin and Thomas C. Smith, Columbia, MO, Attorneys for Respondent.
Before Division Two: Anthony Rex Gabbert, Presiding Judge, and Joseph M. Ellis and Karen King Mitchell, Judges
Sandra D'Avis filed a due process complaint on behalf of her granddaughter, protesting the Independence School District's (District) denial of special education services under the Individuals with Disabilities Education Act (IDEA). The hearing panel dismissed the complaint because it was not filed while D'Avis's granddaughter attended the District. We affirm.
D'Avis is the grandmother and guardian of A.H., a school-aged child who was born prematurely. Complications from A.H.'s premature birth have led to a number of health issues, including lung, vision, and hearing problems. These problems have, at various times, affected A.H.'s ability to learn in the classroom environment.
In the fall of 2009, A.H. attended a Head Start program at Hanthorn Early Childhood Center, a preschool in the District. While at Hanthorn, A.H. was found eligible for services under the IDEA.1 She received an Individualized Educational Program (IEP) that included special education services for speech, occupational therapy, physical therapy, and door-to-door transportation to and from school.
In the 2010–11 school year, A.H. attended kindergarten at Sugar Creek Elementary, a District school. At the beginning of the year, A.H. continued receiving all services she had received at Hanthorn, with the exception of door-to-door transportation. Because A.H.'s IEP had expired, an evaluation team met in November of 2010 to conduct an evaluation of A.H.'s special education eligibility and needs. The team determined that A.H. no longer qualified for services because her educational achievement was commensurate with her ability without special education services. A.H. has not received special education services since this determination.2
Following the determination, D'Avis requested an independent evaluation of A.H. in order to determine whether she qualified for services under the IDEA. The District agreed, and paid for independent evaluations “in the areas of Vision, General Intelligence and Memory, Adaptive Behavior, Motor, ... and Speech.” On June 30, 2011, following the additional testing, the District issued a report determining that A.H. did not qualify for services under IDEA.
On August 16, 2011, A.H. began attending Nativity of Mary, a private school that has no affiliation with the District, but lies within the District's geographical boundaries. A.H. attended Nativity of Mary until 2014, when A.H. began attending Horizon Academy, a private school located in Roeland Park, Kansas, outside the geographic boundaries of the District.
On August 25, nine days after A.H. started school at Nativity of Mary, D'Avis filed a due process complaint with the Department of Elementary and Secondary Education (DESE), challenging the District's determination during the previous year that A.H. was not entitled to services. D'Avis subsequently filed two amended complaints. DESE convened a three-member panel to hear the matter.3 The complaints were not the picture of clarity, but the panel interpreting D'Avis's complaints determined that the issues for review were whether the District erred either: (1) in its November 15, 2010 determination that A.H. did not qualify for special education services; or (2) in its June 30, 2011 determination following the additional testing, that A.H. did not qualify for services. D'Avis cited the District's “[o]ffering only 3 accommodations and no door to door services” as the “two main reasons” for filing her complaint. D'Avis requested that the District either pay for placement in private school and provide occupational and physical therapy services to A.H. during that placement, or place A.H. in a school within the District with door-to-door transportation and other special education services.
Before the hearing, the District filed a Motion to Dismiss the complaint, arguing that A.H.'s enrollment in private school before filing the complaint barred the action under federal authority. The hearing panel ordered the hearing bifurcated in order to first hear testimony and argument on the District's Motion to Dismiss.4 After two days of evidence, the panel agreed with the District that, because A.H. withdrew from the District before filing her due process complaint, her claim was barred.
The Circuit Court of Jackson County affirmed the hearing panel's decision. D'Avis timely appealed.
Any state receiving federal funding under the IDEA must provide a free appropriate public education (“FAPE”) to children with disabilities, and it must be tailored to the unique needs of each child by way of an IEP.6
20 U.S.C. § 1412(a)(1)(A), (a)(4) ; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 181, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Congress enacted the IDEA to ensure that children with disabilities are provided with a FAPE that “ ‘emphasizes special education and related services designed to meet their unique needs [and] to [en]sure that the rights of [such] children and their parents or guardians are protected.’ ” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (). “The primary tool for implementing the aims of the IDEA is the IEP, which ‘tailor[s] the statutorily required “free appropriate public education” to each child's unique needs.’ ” J.B. ex rel. Bailey v. Avilla R–XIII Sch. Dist., 721 F.3d 588, 592 (8th Cir.2013) (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ). “IEPs are created by an ‘IEP Team,’ which is composed of the special education student's parents, at least one regular education teacher, at least one special education teacher and a representative of the local school district qualified to provide special education services.” Dydell v. Taylor, 332 S.W.3d 848, 858 n.6 (Mo. banc 2011) ; see 20 U.S.C. § 1414(d)(1)(B).
“Missouri incorporated the IDEA into state law in [s]ection 162.670....” Hellmann v. Union Sch. Dist., 170 S.W.3d 52, 64 (Mo.App.E.D.2005). The statute provides:
it is hereby declared the policy of the state of Missouri to provide or to require public schools to provide to all handicapped and severely handicapped children within the ages prescribed herein, as an integral part of Missouri's system of gratuitous education, a free appropriate education consistent with the provisions set forth in state and federal regulations implementing the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Section 1400 et seq. and any amendments thereto.
In her single point, D'Avis asserts that we should overturn the hearing panel's dismissal of her claim because: (1) the Eighth Circuit precedent holding that a party must file a due process complaint prior to leaving the District is incorrect as a matter of law and should be rejected; and (2) even if the Eighth Circuit precedent is applicable, her complaint was not barred because she sought prospective relief in the form of tuition reimbursement and attempted to enforce the District's continuing obligation (even after A.H. left the District) to identify, locate, and evaluate A.H. under the IDEA's “child find” provisions. Because we find that the failure to file a due process complaint before A.H. left the District bars D'Avis's claims for both a FAPE from the District and tuition reimbursement, and because the District's child find obligations do not give rise to an individual right that can be enforced through a due process hearing, we affirm.
The IDEA requires that the State provide procedural safeguards intended to protect affected children and guardians. Bailey, 721 F.3d at 592.
These safeguards include the right to examine all relevant records pertaining to the identification, evaluation, and educational placement of their child; prior written notice whenever the responsible educational agency proposes (or refuses) to change the child's placement or program; an opportunity to present complaints concerning any aspect of the local agency's provision of a free appropriate public education; and an opportunity for “an impartial due process hearing” with respect to any such complaints.
Honig, 484 U.S. at 312, 108 S.Ct. 592 (quoting 20 U.S.C. §§ 1415(b)(1), (2) ). “A party aggrieved by the outcome of an IDEA due process...
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