ISD No. 283 v. E.M.D.H., a minor

United States Court of Appeals
For the Eighth Circuit
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No. 19-1269
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Independent School District No. 283

Plaintiff - Appellant

E.M.D.H., a minor, by and through her parents and next friends, L.H. and S.D.

Defendant - Appellee

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Council of Parent Attorneys and Advocates, Inc.; Mid-Minnesota Legal Aid;
Minnesota Disability Law Center; National Alliance on Mental Illness Minnesota

Amici on Behalf of Appellee(s)
___________________________

No. 19-1336
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Independent School District No. 283

Plaintiff - Appellee

E.M.D.H., a minor, by and through her parents and next friends, L.H. and S.D.

Defendant - Appellant

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Council of Parent Attorneys and Advocates, Inc.; Mid-Minnesota Legal Aid;
Minnesota Disability Law Center; National Alliance on Mental Illness Minnesota

Amici on Behalf of Appellant(s)
____________

Appeals from United States District Court
for the District of Minnesota
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Submitted: March 10, 2020
Filed: June 3, 2020
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Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
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ERICKSON, Circuit Judge.

E.M.D.H., a student in St. Louis Park, Minnesota, Independent School District
No. 283 (the “District”), is plagued with various psychological disorders. E.M.D.H.
and her parents, L.H. and S.D., filed a complaint with the Minnesota Department of
Education, asserting the District’s failure to classify E.M.D.H. as disabled denied her
the right to a “free appropriate public education (“FAPE”) under the Individuals with
Disabilities Act (“IDEA”), 20 U.S.C. § 1400 et seq. After a seven-day evidentiary
hearing, a state administrative law judge (“ALJ”) concluded that the District’s
treatment of E.M.D.H. violated the IDEA and related state special-education laws. The
District filed this action in federal court for judicial review of the ALJ’s decision, as the
IDEA authorizes. See 20 U.S.C. § 1415(i)(2). The district court denied the District’s
motion for judgment on the administrative record and granted, in part, E.M.D.H.’s
motion for judgment on the record, modifying the award of compensatory education.
We affirm, in part, and reverse, in part, reinstating the ALJ’s award for compensatory
education.

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I. Background

E.M.D.H. (“Student”) carries a plethora of diagnoses: generalized anxiety
disorder, school phobia, autism spectrum disorder (with unspecified obsessive-
compulsive disorder traits), panic disorder with associated agoraphobia, attention
deficit hyperactivity disorder (“ADHD”), and severe recurrent major depressive
disorder. The Student’s problems became manifest early in her life. By age four she
was prone to tantrums and outbursts. By the second grade she was in therapy. Even
though the Student had some attendance issues, she progressed through and excelled
in elementary school.

Middle school proved more challenging. By the fall of her eighth-grade year, in
2014, the Student began to be more frequently absent from school, telling her mother
that she was afraid to go. By the last quarter of eighth grade, the Student was
consistently absent from school and was placed in a psychiatric day-treatment facility.
The Student’s teachers were aware that her absences were due to her mental-health
issues and noted her schoolwork as incomplete rather than entering failing grades. The
District dis-enrolled the Student in the spring of her eighth grade year.

Before the Student entered the ninth grade in the fall of 2015, her parents alerted
the ninth-grade guidance counselor that the Student had not been present for the latter
part of eighth grade due to anxiety and school phobia. Notwithstanding these past
difficulties, the Student was enrolled in the ninth grade. The Student’s attendance was
inconsistent and then she quit going to school altogether and was admitted to a
psychiatric facility for treatment. By November the District dis-enrolled her again.

In the spring of 2016, the District discussed evaluating the Student as a candidate
for special education. The ninth-grade guidance counselor spoke to the Student’s
parents about an evaluation, leaving them with the impression that decisions related to
special education were theirs to make, but noting that if the Student availed herself of

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special-education opportunities she would not be allowed to remain in her honors
classes. The parents did not request the evaluation and one was not undertaken by the
District. The student was once again dis-enrolled that spring.

The Student spent most of the summer in 2016 at a treatment facility receiving
therapy for her anxiety, depression, and ADHD. The staff at the facility noticed that
while the Student struggled with increased sensory awareness she was able to manage
her symptoms with assistance well enough to be gradually reintroduced to her academic
work and daily routine. When the Student entered her tenth-grade year, the District
developed a plan that allowed her extra time on assignments, adjustments in workload,
breaks from class to visit the counseling office, and the use of a fidget spinner.
However, even with these accommodations, the Student was unable to maintain
consistent attendance. After the first six weeks, the Student attended almost no classes,
resulting in another dis-enrollment by the District.

In January 2017 school staff met with the parents to reexamine the possibility of
providing special education. Once again, the parents were told that if the Student was
placed in special education, she would be removed from her honors classes, effectively
placing her in course work that would not challenge or stimulate her intellectually. At
the end of the first semester, the District had yet to perform a special-education
evaluation. The Student attended only one day during the second semester. The
District dis-enrolled her again in February.

In April 2017, the parents requested that the District evaluate the Student’s
eligibility for special education. The request came three days after the Student had
been readmitted to a psychiatric facility. While at the facility, Dr. Denise K. Reese
performed a comprehensive psychological evaluation of the Student, diagnosing her
with major depressive disorder, autism spectrum disorder, ADHD, generalized anxiety
disorder with panic and obsessive-compulsive-disorder features, and symptoms of
borderline-personality disorder. Dr. Reese concluded that the Student’s spate of mental

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illnesses had “resulted in an inability to attend school, increasing social isolation, and
continued need for intensive therapeutic treatment.”

The Student’s problems continued unabated into her junior year. She attended
three partial days of the eleventh grade in the District’s PAUSE program, which is
designed for students with emotional and behavioral disorders. She ceased attending
school after September 11, 2017. At this point, the Student had earned far less than
half of the 46 credits necessary to graduate. Most of the Student’s credits were from
instruction she received at treatment facilities, with only two credits coming from
regular District coursework.

It was not until November 2017 that the District provided the parents with a
report evaluating the Student’s eligibility for special education. The report concluded
that the Student did not qualify. The District’s conclusion prompted the parents to hire
a team of doctors and other professionals to conduct an independent educational
evaluation of the Student. The evaluation confirmed the Student’s diagnoses and
included a recommendation that she receive special education that would allow her to
complete rigorous coursework while managing the symptoms that had made doing so
difficult, if not impossible, in the past. The District rejected the recommendations,
persisting in its initial assessment, which led to the parents filing a due-process
complaint with the Minnesota Department of Education.

The complaint alleged that the District violated the IDEA and state law when it
failed to identify the Student as eligible for special education services and did not
provide her with such services. During the due-process hearing, testimony was taken
from 20 witnesses, and almost 80 exhibits were received. The ALJ concluded the
District acted unlawfully when it failed to: (1) identify the student as a child with a
disability, (2) conduct an appropriate special-education evaluation, (3) find the Student
qualified for special education, and (4) provide the Student a FAPE. The ALJ ordered:

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(1) the Student eligible for special education and related services;
(2) the District to develop an Individualized Education Plan (“IEP”)
providing the Student with a FAPE;
(3) the District to conduct quarterly meetings to consider changes to the IEP;
(4) the District to reimburse the parents in an amount over $25,000 for past
diagnostic and educational expenses they incurred; and
(5) the District to pay for compensatory services in the form of private
tutoring and the cost of attendance of the Student’s psychiatrist and
private tutor at IEP meetings.

In its appeal to the district court, the District requested leave to supplement the
administrative record. The court denied the motion to supplement and affirmed the
ALJ’s decision, except for the order to pay for future private-tutoring services, which
the district court reversed. The parties cross-appeal.

II. Discussion

This case raises issues under both the IDEA and related state laws, which exist
“to ensure that all children with disabilities have available to them a free and
appropriate public education that emphasizes special education and related services
designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A). On appeal, the
District asserts that the court abused its discretion by denying its request to supplement
the administrative record. The District also asserts that the court and ALJ erred when
they concluded that the District’s special-education evaluation, eligibility
determination, and child-find activities were flawed and inadequate. Both the District
and the Student contest the court’s remedial award. The District, on the one side,
contends the Student is owed neither reimbursement of her expenses nor compensatory
services while, on the other side, the Student contends that the court erred when it
reversed the ALJ’s award of compensatory private tutoring.

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A. Record Supplementation

The District sought to supplement the administrative record by including two
declarations from District staff about the progress the Student had made since the
ALJ’s original order. Although the IDEA allows a party to supplement the
administrative record in the district court, 20 U.S.C. § 1415(i)(2)(C)(ii), “[r]endering
a decision on the record compiled before the administrative agency . . . is the norm,”
W. Platte R-II Sch. Dist. v. Wilson ex rel. L.W., 439 F.3d 782, 785 (8th Cir. 2006).
A party seeking to supplement the administrative record is required to demonstrate a
“solid justification” to deviate from this norm. Indep. Sch. Dist. No. 283 v. S.D. ex rel.
J.D., 88 F.3d 556, 560 (8th Cir. 1996) (quotation marks omitted). We review the
district court’s denial of the motion to supplement for an abuse of discretion. Indep.
Sch. Dist. No. 283, 88 F.3d at 561.

The proposed supplementation elucidating how the Student was performing after
the ALJ had entered his order and the District had implemented the Student’s IEP is
immaterial to the merits of the Student’s due process complaint. The complaint alleged
that the services the District offered the Student prior to the initiation of an
administrative proceeding were insufficient. Evidence tending to show that the Student
was making progress with the educational support she claims she was due all along
would not have aided the determination of whether the ALJ properly found in favor of
the Student. See W. Platte R-II Sch. Dist., 439 F.3d at 785 (affirming denial of
supplementation where “additional evidence that the District attempted to provide
related to the progress and status of [student] subsequent to the administrative
hearing”); Indep. Sch. Dist. No. 283, 88 F.3d at 560–61 (same). The district court’s
decision denying supplementation was not an abuse of discretion. But even if it were,
the abuse would have amounted to harmless error. See Fed. R. Civ. P. 61; Stringer v.
St. James R-1 Sch. Dist., 446 F.3d 799, 805 (8th Cir. 2006).

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B. IDEA Issues

We review the IDEA issues de novo, bearing in mind that under the Act the
courts “render an independent decision based on a preponderance of the evidence in
the administrative record.” C.B. ex rel. B.B. v. Special Sch. Dist. No. 1, 636 F.3d 981,
988 (8th Cir. 2011). We give “‘due weight’ to the results of the administrative
proceedings and [do] not substitute [our] ‘own notions of sound educational policy for
those of the school authorities which [we] review.’” Id. at 989 (quoting Bd. of Educ.
of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 205–06 (1982)); Indep.
Sch. Dist. No. 284 v. A.C. ex rel. C.C., 258 F.3d 769, 773–74 (8th Cir. 2001).

1. Eligibility Evaluation

Notably, Minnesota regulations require school districts to provide the student
regular and special-education services, whether or not the student is disabled, when a
student spends extended time at home or in a medical facility being treated for illness.
Minn. Stat. § 125A.515; see also id. §§ 125A.15 and 125A.51. Nevertheless, once the
parents requested the District evaluate the Student for a disability, the applicable
regulations under the IDEA required the District to “conduct a full and individual
evaluation . . . to determine if [she] is a child with a disability.” 34 C.F.R. §
300.301(a)–(b). The District was also required to “ensure that . . . the evaluation [was]
sufficiently comprehensive to identify all of the child’s special education and related
services needs.” Id. § 300.304(c)(6).

Although the District contends that its evaluation met the regulation’s
requirements, its position cannot be squared with the requirement for a “full” and
“sufficiently comprehensive” evaluation under the IDEA or Minnesota law. Id. §§
300.301(a), 300.304(c)(6). Minnesota’s special-education regulations require that
when a student is evaluated for “emotional or behavioral disorders” and the “other
health disabilities” categories of disability, the evaluation “must be supported by

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current or existing data from,” among other sources, a “functional behavioral
assessment” and “systematic observations in the classroom or other learning
environment by a licensed special education teacher.” Minn. R. 3525.1329 subp. 1, 3
(emotional or behavioral disorders), id. 3525.1335 subp. 1, 3 (other health disabilities).

The District admits that it did not conduct either a functional behavioral
assessment or make systematic observations of the Student. The District argues that
it should be absolved of this duty because the Student was chronically absent,
especially in the eleventh grade when the District’s evaluation took place. We
acknowledge that while the Student’s absences might have made a comprehensive
evaluation more difficult, the evidence does not support the conclusion that task was
impossible to undertake. A functional behavioral assessment, which “identifies the
antecedents, consequences, and reinforcers that maintain the behavior,” does not
depend on the Student’s presence in the classroom. Minn. R. 3525.0210 subp. 22.
And Minnesota’s regulations make plain that “systematic observations” can be made
both “in the classroom,” and in “other learning environment[s]” as well. Id. at
3525.1329 subp. 3.

The record reflects that the District made no effort to assess the Student in her
virtual classroom, at home, or in any one of the psychiatric facilities from which she
earned school credits. The District’s failure to avail itself of these possibilities or
develop another way of gathering the necessary data is virtually conclusive evidence
that the District’s evaluation of the Student was insufficiently informed and legally
deficient.

2. Eligibility Determination

The District’s evaluation, resting as it did on incomplete data, concluded that the
Student is not eligible for special education. On appeal, the District stands by that
conclusion and asserts that the determinations of the ALJ and district court to the

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contrary are erroneous. To be eligible for a FAPE that includes special education and
related services, a student must be a “child with a disability.” 20 U.S.C. §§ 1401(3),
(9), 1414(d), 34 C.F.R. § 300.500(a), (c); see Endrew F. ex rel. Joseph F. v. Douglas
Cty. Sch. Dist. Re-1, 137 S. Ct. 988, 993–94 (2017). The IDEA defines a child with
a disability as “a child . . . with,” among other ailments, a “serious emotional
disturbance” or “other health impairments . . . who, by reason thereof, needs special
education and related services.”1 20 U.S.C. § 1401(3).

A “serious emotional disturbance” is:

[A] condition exhibiting one or more of the following characteristics over
a long period of time and to a marked degree that adversely affects a
child’s educational performance:

(A) An inability to learn that cannot be explained by intellectual,
sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears
associated with personal or school problems.

34 C.F.R. § 300.8(c)(4)(i). An “other health impairment” means:

1
“Serious emotional disturbance” and “other health impairments” are the federal
analogs of Minnesota regulations denominating “emotional or behavioral disorders”
and “other health disabilities,” respectively. Compare 34 C.F.R. § 300.8(c)(4)(i)
(serious emotional disturbance), and id. § 300.8(c)(9) (other health impairment), with
Minn. R. 3525.1329 (emotional behavioral disorders), and id. Minn. R. 3525.1335
(other health disabilities).

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having limited strength, vitality, or alertness, including a heightened
alertness to environmental stimuli, that results in limited alertness with
respect to the educational environment, that—

(i) Is due to chronic or acute health problems such as asthma, attention
deficit disorder or attention deficit hyperactivity disorder, diabetes,
epilepsy, a heart condition, hemophilia, lead poisoning, leukemia,
nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and

(ii) Adversely affects a child’s educational performance.

Id. § 300.8(c)(9).

Under the District’s analysis the Student’s symptoms are simply insufficient to
constitute a “serious emotional disturbance” or “other health impairments.” However,
the preponderance of the evidence in the administrative record indicates the Student
has both conditions. For years the Student has suffered from a panoply of mental-
health issues that have kept her in her bedroom, socially isolated, and terrified to attend
school. Cf. Indep. Sch. Dist. No. 284, 258 F.3d at 776 (discussing eligibility for
special education where the facts “show[ed] that [student’s] truancy and defiance of
authority result[ed] from a genuine emotional disturbance rather than from a purely
moral failing”). The Student was absent from the classroom not as a result of “bad
choices” causing her “to fail in school,” for which the IDEA would provide no remedy,
but rather as a consequence of her compromised mental health, a situation to which the
IDEA applies. Id. at 775.

The administrative record demonstrates the Student has a serious emotional
disturbance as she is unable “to build or maintain satisfactory interpersonal
relationships with peers and teachers.” 34 C.F.R. § 300.8(c)(4)(i)(B). The Student
also displayed “[i]nappropriate types of behavior or feelings under normal
circumstances” and has been living with a “general pervasive mood of unhappiness or
depression.” Id. § 300.8(c)(4)(i)(C), (D). The evidence in the record also shows that
the Student suffers from “limited . . . vitality” and “a heightened alertness to

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environmental stimuli” that are “due to chronic or acute health problems,” including
ADHD, all of which are symptoms of “other health impairments.” Id. § 300.8(c)(9).
The Student’s absences from the classroom has put her well behind her peers in, among
other things, earning the number of credits needed to graduate, and has therefore
adversely affect[ed] her educational performance.” Id. at 300.08(c)(9)(ii); see id. §
300.320(a)(2)(i)(A) (requiring special education be “designed to . . . enable the child
to be involved in and make progress in the general education curriculum”).

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.
See Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 13 (1993)
(“IDEA was intended to ensure that children with disabilities receive an education that
is both appropriate and free.”). The IDEA guarantees disabled students access to the
latter, no matter their innate intelligence. More practically, the positive results of the
private tutoring and online learning indicate that the nearly three years where the
Student foundered were not inevitable but the direct result of insufficient individualized
attention under an appropriate IEP. The record demonstrates that the Student’s intellect
alone was insufficient for her to progress academically and that she was in need of
special education and related services.

This Student may not present the paradigmatic case of a special-education
student, but her situation does not vitiate the District’s duty under the IDEA to provide
her with a FAPE. “The IDEA requires public school districts to educate ‘a wide
spectrum of handicapped children,’” C.B. ex rel. B.B, 636 F.3d at 989 (quoting
Rowley, 458 U.S. at 202), including those whose handicap is not cognitive. See Indep.
Sch. Dist. No. 284, 258 F.3d at 777 (“If the problem prevents a disabled child from
receiving educational benefit, then it should not matter that the problem is not cognitive

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in nature or that it causes the child even more trouble outside the classroom than within
it.”). In Independent School District No. 284, for example, the court held that an
educational placement in a residential facility pursuant to the IDEA was necessary for
a student whose psychological infirmities contributed to her truancy and consequent
lack of academic credit, even though she “ha[d] no learning disability” and “tests
reveal[ed] [her] to be a shrewd problem solver.” 258 F.3d at 777–78.

The Student is eligible for special education and a state-funded FAPE like every
other “child with a disability.” 20 U.S.C. § 1401(3). This “specially designed
instruction,” whether “conducted in the classroom, in the home, in hospitals and
institutions, [or] in other settings,” id. §1401(29), must be “reasonably calculated to
enable [her] to make progress” and “appropriately ambitious in light of [her]
circumstances,” Endrew F. ex rel. Joseph F., 137 S. Ct. at 999–1000.

3. Child-Find Obligation

The ALJ and district court determined that the District breached its obligation
to identify the Student by the spring of her eighth-grade year as a child eligible for
special education. In addition to a FAPE, an essential aspect of the IDEA is the
requirement that “children with disabilities . . . who are in need of special education
and related services, are identified, located, and evaluated” by states. 20 U.S.C. §
1412(a)(3)(A); see Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009)
(describing this requirement as one of “paramount importance”). The District contends
it had no duty to identify the Student as eligible for special education, at least not until
the parents requested an evaluation in the spring of the Student’s junior year. The
District also contends that if such a duty existed the Student’s claim is barred by the
IDEA’s two-year statute of limitations. We are not persuaded by the District’s
arguments.

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As early as the spring of 2015 the District knew that the Student was missing
significant time at school as a result of her mental-health issues. The dean of students
at her middle school knew that the Student was receiving day treatment at a psychiatric
facility. Confronted with this situation, the dean of students met with the Student’s
teachers to discuss the situation, focusing on how to grade her in her classes given her
absences. Despite their knowledge that the Student was suffering from mental-health
issues that impacted her ability to attend school, District staff did not refer the Student
for a special-education evaluation because she had above-average intellectual ability.
The District continued to embrace this decision until the parents requested an
evaluation near the end of the Student’s sophomore year. Even if the District was
confronted with an unusual case marked by some confusion, in just the same way that
the Student’s eligibility for special education was not foreclosed by her intellect, the
District’s child-find obligation was not suspended because of her innate intelligence.
The preponderance of the evidence supports the conclusion that the District breached
its child-find obligation.

The District contends that even if it breached its child-find obligation, the breach
occurred in the spring of 2015 and the IDEA’s two-year statute of limitations had run
by the time the Student’s parents requested a due-process hearing on June 27, 2017.
See 20 U.S.C. § 1415(f)(3)(C) (“A parent or agency shall request an impartial due
process hearing within 2 years of the date the parent or agency knew or should have
known about the alleged action that forms the basis of the complaint . . . .”).2
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:
2
Under these circumstances, we do not need to reach the issue of whether the
IDEA’s statute of limitations represents an occurrence rule or a discovery rule. See
Avila v. Spokane Sch. Dist. 81, 852 F.3d 936, 941–42 (9th Cir. 2017); G.L. v. Ligonier
Valley Sch. Dist. Auth., 802 F.3d 601, 611–13 (3d Cir. 2015).

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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.

4. Relief

Having found violations of the IDEA, we turn to the parties’ dispute regarding
the appropriate relief. The IDEA confers “broad discretion” upon hearing officers and
courts to order remedies that are “‘appropriate’ in light of the purpose of the Act.”
Sch. Comm. v. Dep’t of Educ., 471 U.S. 359, 369 (1985); see also 20 U.S.C. §
1415(i)(2)(C)(3) (“[T]he court . . . basing its decision on the preponderance of the
evidence, shall grant such relief as the court determines is appropriate.”). The District
asserts the court improperly ordered it to reimburse the parents the amount expended
on: (1) Dr. Reese’s comprehensive psychological evaluation, (2) the independent
educational evaluation, and (3) and private educational services. The District also
asserts the court erred when it ordered quarterly IEP meetings to take place until the
Student graduates.

A review of the record demonstrates that the costs incurred as a result of Dr.
Reese’s work and that of other professionals hired by the parents would have been
unnecessary but for the District’s failure to timely identify and properly evaluate the
Student as a child in need of special education. We conclude the award of these costs
was within the broad discretion of the ALJ and district court. See Sch. Comm., 471
U.S. at 370 (“[W]e are confident that by empowering the court to grant ‘appropriate’
relief Congress meant to include retroactive reimbursement to parents as an available
remedy in a proper case.”). Similarly, the parents’ retention of a private tutor was the
result of the District’s inaction in the face of the Student’s debilitating mental illness

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and its adverse effects on her academic progress. Id. (noting that parents who pay for
private education rather than suffer a school’s insufficient IEP would score an “empty
victory” if a court subsequently ruled that they were right but that the school was not
obligated to reimburse them for the expenditures). Lastly, given the difficulties the
District had correctly diagnosing the Student’s situation, as well as its prolonged
mishandling of her education, quarterly IEP meetings are appropriate in order to assure
that the Student’s education remains on track.

The Student challenges the district court’s conclusion that the ALJ’s award of
compensatory education in the form of private tutoring was inappropriate. Although
compensatory damages are unavailable through the IDEA, compensatory education is
allowed. J.B. ex rel. Bailey v. Arvilla R-XIII Sch. Dist., 721 F.3d 588, 593 (8th Cir.
2013); see also Minn. Stat. § 125A.091, subd. 21 (describing compensatory educational
services as any “direct and indirect special education and related services designed to
address any loss of educational benefit that may have occurred” as the result of a FAPE
denial). Here, the court reversed the ALJ’s award for compensatory private tutoring
because the record was silent as to whether the District could provide comparable
services going forward. While we commend the court’s impulse to limit the remedy
and taxpayer expense, by doing so in this case the court failed to consider the purpose
of a compensatory-education award: “imposing liability for compensatory educational
services on the defendants merely requires them to belatedly pay expenses that they
should have paid all along.” Miener ex rel. Miener v. Missouri, 800 F.2d 749, 753 (8th
Cir. 1986) (alterations and quotation marks omitted). Whether the District is able to
provide the Student a FAPE prospectively is irrelevant to an award of compensatory
education. Because of this backward-looking nature, the purpose of any compensatory-
education award is restorative–and the damages are strictly limited to expenses
necessarily incurred to put the Student in the education position she would have been
had the District appropriately provided a FAPE. See Indep. Sch. Dist. No. 284, 258
F.3d at 774 (explaining that a present or future obligation to develop a new IEP is
immaterial to the decision to award compensatory education). The administrative

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record supports the ALJ’s conclusion that the services of a private tutor are appropriate
until the Student earns the credits expected of her same-age peers. We therefore
reinstate the ALJ’s award of these services, to be provided only so long as the Student
suffers from a credit deficiency caused from the years she spent without a FAPE.

III. Conclusion

We affirm, in part, and reverse, in part, reinstating the ALJ’s award for
compensatory education.
______________________________

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ISD No. 283 v. E.M.D.H., a minor

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