           United States Court of Appeals
                      For the Eighth Circuit
                  ___________________________

                          No. 18-3444
                  ___________________________

D. L., by next friend Frances Landon, by next friend MollyJayne Landon

                                Plaintiff - Appellant

                                   v.

                    St. Louis City School District

                             Defendant - Appellee
                   ___________________________

                          No. 18-3497
                  ___________________________

D. L., by next friend Frances Landon, by next friend MollyJayne Landon

                                Plaintiff - Appellee

                                   v.

                    St. Louis City School District

                              Defendant - Appellant
                            ____________

              Appeals from United States District Court
            for the Eastern District of Missouri - St. Louis
                            ____________
                           Submitted: December 11, 2019
                              Filed: March 2, 2020
                                  ____________

Before ERICKSON, MELLOY, and KOBES, Circuit Judges.
                          ____________

ERICKSON, Circuit Judge.

       D.L., through his parents, brought an Individuals with Disabilities Education
Act (“IDEA”) due process challenge to the St. Louis City School District’s individual
education plan and school placement before the Missouri Administrative Hearing
Commission (“AHC”). D.L.’s parents sought reimbursement for a private placement
based on the alleged IDEA violations. The AHC affirmed the plan and placement and
denied reimbursement. D.L. appealed to the district court, which reversed the AHC
but limited the reimbursement award based on equitable considerations. We have
jurisdiction under 28 U.S.C. § 1291. Because we find that the school district violated
the IDEA and the district court erred in limiting the award, we affirm in part and
reverse in part.

I. Background

      A. Medical and Educational History

       D.L. is a thirteen-year-old boy with medical diagnoses of autism spectrum
disorder, post-traumatic stress disorder, attention deficit hyperactivity disorder,
disruptive mood regulation, encopresis, and enuresis. As a result of the latter two
conditions, D.L. has toileting issues. He may also suffer from fetal alcohol syndrome.
D.L.’s individual education plans (“IEPs”) note his medical diagnoses and provide
an educational diagnosis of other health impairment (“OHI”). D.L. was neglected,
likely abused, fostered at age five, and lived with eight families before he was

                                         -2-
adopted in 2015. Since kindergarten, D.L. has displayed disruptive and alarming
behaviors at school. At times he hits, scratches, kicks, and bites himself and others,
screams, refuses activities, soils his pants, makes animal noises, threatens to kill
himself and others, and runs away from school.

       D.L.’s educational history is complex. He attended kindergarten and first grade
at Epworth City School, a private separate placement in the St. Louis City School
District (“the District”). D.L. was first involved in a sensory diet in the first grade,
shortly after he was diagnosed with autism. A sensory diet is a regime under which
the student is given regular periodic preemptive stimulation during the day in order
to help regulate behavior. D.L. was hospitalized in January 2014 due to recurring
suicidal and homicidal ideation. His April 2014 IEP contained his medical diagnoses,
referred to his educational diagnosis, and emphasized the importance of a therapeutic
environment, sensory support throughout the day, and added occupational therapy
(“OT”). D.L.’s autism diagnosis was also confirmed in April 2014 at Mercy
Children’s Hospital’s Autism Center. D.L. was once again hospitalized between May
18 and June 5, 2014, for suicidal ideations following an attack on his teacher.

       In second grade D.L. was moved to Mullanphy Elementary School, a public
school for students with educational disabilities. At Mullanphy D.L. was placed in
a classroom for students with autism and provided daily sensory supports. Even
though D.L. continued to have behavioral issues, he did better under the new regime
and his outbursts decreased from 5-7 to 2-3 times per week. D.L. was not
hospitalized in the second grade and developed a love for reading. He did, however,
begin self-stimulating behaviors this year, which are common in people suffering
from autism and include such things as repetitive hand gestures, rocking, repeating
words or phrases and the like. D.L.’s parents sought to have his educational
diagnosis changed to reflect his medical diagnosis of autism but the District resisted,
claiming that his language and verbal scores were too high for an educational



                                          -3-
diagnosis of autism even though the IEP continued to include his medical diagnosis
of autism.

       During the third grade D.L. was placed in a cross-categorical classroom for
students with differing educational disabilities and his condition deteriorated
substantially. D.L. was hospitalized four times in third grade for reasons including
self-harm, cognitive regression, and assaultive behaviors. He also regressed with his
toileting and needed to be placed back in pull-ups. D.L.’s third grade IEP notes
memorialized his regression during the year but failed to mention his hospitalizations.

       The District continued with D.L.’s placement in a cross-categorical classroom
in the fourth grade with disastrous results. D.L. only managed to attend school for
seven days, which were marked by attacks on classmates and staff and self-harm.
D.L. had particular difficulty with stimulation surrounding the beginning and end of
the school day. In order to minimize the problem, D.L.’s parents dropped him off late
and picked him up early each day to avoid the noise of pickup and drop-off. For three
of these seven days D.L. attended school he was accompanied by a therapist. During
this time D.L. also refused sensory support and continued self-stimulating behaviors.
Because of the problems at school, D.L.’s initial IEP meeting was cancelled. D.L.’s
parents placed him in treatment at Great Circle, a school and residential facility for
educationally disabled children. When D.L. began residential treatment at Great
Circle, the District disenrolled him without notifying his parents.

      D.L.’s residential treatment at Great Circle was a medical necessity. He
attended a classroom program for children with autism from September 6, 2016, to
November 11, 2016. His teacher had a provisional special education certificate, but
had never taught in a classroom for educationally disabled children and had little
experience with the sensory needs of children with autism. While D.L. had access to
sensory supports and OT at Great Circle and participated for the first two weeks, he
thereafter refused the supports. When upset, D.L. would slam his head against walls

                                         -4-
and doors. His Great Circle teacher, upon D.L.’s parents’ advice, began to ignore the
head-slamming and noticed that it dissipated more quickly when ignored. Based on
this behavior and refusing sensory supports, the teacher concluded that D.L. had no
sensory needs and his behavior was wholly attention-seeking. Notwithstanding this
belief, D.L. continued to engage in self-stimulating behaviors.

       As the time approached for D.L.’s discharge from Great Circle, his parents
contacted the District hoping to construct an IEP that implemented many of the
promising strategies used by Great Circle with a goal of continuing D.L.’s upward
trajectory. Instead, D.L.’s parents discovered that he had been disenrolled and that
Mullanphy did not have adequate staff or space for him to return. The District
informed his parents that, because D.L. was not enrolled and his prior IEP did not
expire until March 2017, they would not schedule an IEP meeting. Eventually, the
District relented and agreed to re-enroll D.L. on November 7, 2016, and hold an IEP
meeting for him the same day.

      D.L.’s fourth grade teacher drafted an IEP in connection with the November
7 meeting. On the same day that D.L.’s teacher provided a meeting notice to D.L.’s
parents, they provided the District with a detailed educational history for D.L.,
including his psychiatrist’s recommendations for D.L.’s future school placement.
D.L.’s psychiatrist is the director of the Division of Child Psychiatry at Washington
University’s School of Medicine. At the time of the hearing, he had five-years’
experience with D.L. and had treated over one thousand children with autism since
1990. The psychiatrist’s letter recommended that D.L. receive a proactive sensory
diet and full-time direct OT at a program addressing autism rather than general
educational disability.

      The IEP team convened and discussed possible placement at Great Circle but
eventually voted against it after Great Circle staff suggested it would not be an
appropriate placement. Instead the IEP team decided to eliminate all direct OT from

                                         -5-
D.L.’s IEP and, two and a half hours into the meeting, voted to place D.L. at
Educational Therapeutic Support at Madison (“Madison”), a school for children with
educational and behavioral difficulties. After the vote to send D.L. to Madison, his
parents provided the District a note explaining their intention to seek private
education at public expense and left the meeting. D.L.’s November 2016 IEP
contained a near-verbatim recitation of his behavior description from previous IEPs,
ignoring the improvement in his behavior while at Great Circle. The IEP goals also
remained substantially the same, despite his medically-necessitated residential
treatment and inability to complete more than seven days at Mullanphy.

       On November 10, D.L.’s parents requested the IEP in preparation for a meeting
with D.L.’s psychiatrist to plan next steps. On November 16, they toured Madison
with its principal. They were accompanied by a licensed clinical social worker from
the city. D.L.’s parents and the social worker felt Madison was not a proper
placement for D.L. Madison had no students with autism or toileting issues, no
sensory room or other autism-focused supports and resources, its staff and principal
were unfamiliar with the sensory and educational needs of students with autism, and
the school aimed to reform students with voluntary behavioral issues rather than
behavior symptomatic of an underlying medical condition. D.L.’s parents were
particularly concerned that Madison’s “recovery room,” the closest resource
resembling a sensory room, was used as a punishment when students misbehaved
rather than as a therapeutic resource.

      At this time, D.L.’s parents were also exploring the possibility of sending him
to Giant Steps, a private school providing therapeutic education for students with
autism. On November 14, D.L.’s parents submitted an application and vaccination
records to Giant Steps. D.L. then participated in a three-day trial visit to Giant Steps.
On December 5, 2016, D.L.’s parents submitted a payment authorization to Giant
Steps and D.L. began attending the same day.



                                          -6-
      B. Procedural History

      On November 18, 2016, D.L.’s parents filed a due process complaint alleging
the District violated the IDEA when the District approved the November 2016 IEP
and placed him at an inappropriate school, Madison, thereby denying D.L. a free
appropriate public education (“FAPE”). The AHC held a hearing and received the
testimony of District employees, Great Circle staff, one of D.L.’s parents, D.L.’s
psychiatrist, Madison’s principal, and others familiar with D.L.’s medical and
educational history. By the time the hearing was held, Madison had constructed a
sensory room and admitted three students with medical diagnoses of autism. The
AHC held that the IEP and placement complied with the IDEA’s promise of a FAPE.

       D.L. appealed the AHC’s decision to federal district court. The district court
found that D.L. was denied a FAPE when his direct OT was eliminated and he was
placed at Madison. The district court limited the tuition reimbursement, only
awarding reimbursement for D.L.’s attendance before the AHC hearing, “when
Madison had no autism-related sensory supports.” D.L. continued to attend Giant
Steps after the AHC hearing, but the AHC hearing presented the first evidence that
Madison had constructed a sensory room and admitted students with a medical
diagnosis of autism. At that point the district court found that Madison was an
appropriate placement for D.L. D.L. moved for an amended judgment granting
tuition reimbursement in full and the district court denied the motion.

        D.L. appeals the district court’s decision seeking full tuition reimbursement.
The District cross-appeals, asserting five points of error: (1) the AHC and district
court lacked jurisdiction over the due process complaint; (2) the issue of prospective
relief is now moot; (3) the district court misstated the burden of proof at the AHC
hearing; (4) the district court erred in finding the District denied D.L. a FAPE; and
(5) the district court erred in finding Giant Steps is an appropriate placement for D.L.



                                          -7-
II. Analysis

      A. Jurisdiction, Mootness, and Burden of Proof

       Before reaching the merits of the FAPE denial and reimbursement, we will
briefly address the District’s three procedural challenges. We review issues of subject
matter jurisdiction, including mootness, de novo. Davis v. Anthony, Inc., 886 F.3d
674, 677 (8th Cir. 2018). Proper allocation of the burden of proof is also a legal issue
subject to de novo review. Scenic Holdings, LLC v. New Bd. of Trs. of Tabernacle
Missionary Baptist Church, Inc., 506 F.3d 656, 666 (8th Cir. 2007).

       The District first contends that the AHC lacked jurisdiction over D.L.’s due
process claim because D.L. was enrolled at Giant Steps prior to the commencement
of the due process challenge. The right to challenge prior educational services is
forfeited when a student changes school districts prior to requesting a due process
hearing. Thompson v. Bd. of Special Sch. Dist. No. 1, 144 F.3d 574, 579 (8th Cir.
1998). The rule is intended to provide the school district with notice and an
opportunity to address the problem. Id. Where a student remains enrolled within the
school district at the time of the complaint, an argument that jurisdiction is lacking
under Thompson is without merit. M.M. ex rel. L.R. v. Special Sch. Dist. No. 1, 512
F.3d 455, 460 (8th Cir. 2008).

       D.L. was enrolled in the District on the day of his November 2016 IEP meeting.
At that meeting his parents gave notice that they would seek private education at
public expense by providing a note to the District. In the eleven days between that
meeting and the due process complaint, D.L.’s parents worked toward transitioning
D.L. to Giant Steps but did not enroll him or enter into any payment agreement. At
the same time, they requested a copy of the November 2016 IEP and toured Madison
with its principal just two days before filing the due process complaint. The record
reflects that when D.L.’s parents filed their complaint: (1) D.L. was still enrolled

                                          -8-
with the District; (2) he had not yet enrolled at Giant Steps; and (3) his parents had
already provided notice to the District at the November 2016 IEP meeting.
Thompson is inapplicable under the facts of this case and the District’s jurisdictional
challenge is without merit.

      The District next contends D.L.’s claims for prospective relief are moot
because he now resides outside the District. The District misapprehends the claims
before us. D.L. is making no claim for prospective relief, rather he seeks only
compensation for past obligations incurred while he resided in the District. Such
claims may be sought after a student leaves a school district. Independent Sch. Dist.
No. 284 v. A.C., 258 F.3d 769, 774-75 (8th Cir. 2001). The District’s mootness
challenge also fails.

       The District’s final procedural challenge is that the district court erred in
reciting the burden of proof before the AHC. It is indisputable that the party seeking
relief carries the burden of proof in an administrative hearing challenging an IEP.
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62 (2005). In this case, D.L.’s
parents sought relief before the AHC and therefore carried the burden of proof
throughout the administrative hearing. The district court stated: “During the state
administrative proceedings, the school district has the burden of proving that it
complied with the IDEA. On appeal to federal court, the party challenging the
outcome of state administrative hearings has the burden of proof.” The district court
erroneously described the burden of proof at the AHC hearing. Placing the burden
of proof on the incorrect party in an IDEA due process challenge is reversible error
unless the issue is immaterial. M.M. ex rel. L.R., 512 F.3d at 459. Though the
district court misstated the burden applied in the prior AHC hearing, it also correctly
stated that it must “give due weight to the results of the administrative process
below.” The misstatement of law in this case was immaterial. The statement did not
assign a burden of proof, it incorrectly described a past proceeding. The district court
properly placed the burden on D.L. in the proceeding before it and correctly stated the

                                          -9-
standard of review on appeal. Any error in inaccurately describing the burden of
proof before the AHC is harmless under these circumstances.

      B. Denial of FAPE

      We review de novo whether the District provided D.L. with a FAPE, affording
due weight to the outcome of the AHC’s decision and accepting the district court’s
factual findings as true unless they are clearly erroneous. Albright v. Mountain Home
Sch. Dist., 926 F.3d 942, 948 (8th Cir. 2019).

       Schools receiving federal funding must provide qualifying disabled children
with a FAPE tailored to meet the unique needs of the disabled child. Blackmon ex
rel. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 658 (8th Cir. 1999)
(citing 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A)). A FAPE does not necessarily fit
precise parental preferences, maximize a student’s potential, or provide the best
possible education at public expense. Id. Rather, it must provide a student with
“some educational benefit” consistent with the goals of their specific IEP. Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200, 203
(1982). The IEP itself must be “reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph
F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).

      The AHC’s findings actually establish that placement at Madison would not
provide D.L. with a FAPE. The AHC found: (1) Madison’s principal was not very
familiar with autism; (2) at the time D.L.’s parents toured Madison it had no students
with autism and no autism-specific resources; (3) Madison staff had no experience
dealing with toileting issues; and most strikingly (4) “a student who has no control
over his behaviors would not benefit from instruction at Madison.” One of the
hallmarks of autism is that the behavioral issues associated with it are involuntary.
The AHC found Madison could not benefit a student with involuntary behavioral

                                        -10-
issues while simultaneously finding that the IEP “acknowledged [D.L.’s] medical
diagnosis of autism and addressed his autistic needs.” The District cannot provide
D.L. with a FAPE based on an acknowledgment of his medical diagnosis of autism
by placing him in a school limited to correcting purely voluntary behavior.

       Madison’s principal testified that he was unfamiliar with autism and that
Madison would not be appropriate if D.L.’s autism-driven behavior was involuntary.
His testimony describes Madison as “a school for behavior” for children who have
made “poor choices” to learn to “discipline themselves.” The principal testified that
Madison aims “to be that activated charcoal, take those impurities out so we can have
a better student” because in “the real world . . . [n]obody’s going to care if you’re
autistic.” We do not disparage the important work the principal and Madison staff
do to help their students with behavioral issues. Many children with such issues
would benefit from the program at Madison. In fact one of D.L.’s parents testified
that she respected the principal and felt Madison would be a great placement for some
other children she had fostered. But D.L. required a school equipped to manage his
medically-diagnosed autism, not placement in a school designed to correct “poor
choices” resulting in bad behavior.

       The AHC upheld placing D.L. at Madison and eliminating his direct OT after
hearing testimony from Great Cirlce staff that: (1) some of D.L.’s behavior was
attention-seeking or in response to non-preferred activity, and (2) D.L. at times
refused sensory items. Specifically, one of D.L.’s teachers testified that D.L. did not
have significant sensory needs and that his difficulty completing class work was
mainly manipulative and attention-seeking. The behavior that the teacher specifically
pointed to in support of her thesis was D.L.’s head-banging, which would subside
when ignored.

      That D.L. engaged in some misbehavior for attention does not negate the
undisputed fact that other behaviors he engaged in, such as self-stimulation, are

                                         -11-
involuntary and autism-driven. It is inconsistent with the IDEA’s promise of a FAPE
for the District to conclude that an eight-year-old’s occasional attention-seeking
behavior is sufficient to negate years of medical diagnoses, recommendations, IEPs,
and other indicia that D.L.’s problems are undisputedly autism-driven behaviors. The
AHC questioned whether D.L.’s tendency to act out in response to non-preferred
activity was, as Great Circle staff believed, voluntary and attention-seeking behavior
or, as D.L.’s psychiatrist opined, symptomatic of medical conditions. Both the
psychiatrist’s testimony and D.L.’s original autism evaluation support a conclusion
that D.L.’s condition deteriorated when he transitioned to a non-preferred activity.
This does not render D.L.’s behaviors voluntary rather than autism-driven. Rather,
this deterioration is entirely consistent with autism.

       Great Circle staff also concluded D.L. did not have sensory needs because he
declined sensory supports in the final three weeks of his five-week stay at Great
Circle. All children, including those with autism, sometimes refuse things they need.
This rejection does not diminish the need, rather it demonstrates that sometimes
children are not the best judges of what is good and necessary for them. Sensory
support is treatment, not an activity. An ill child may not prefer the taste of medicine
and resist taking it, but that does not mean that the medicine is unnecessary. D.L.’s
reluctance to engage with sensory supports for a three-week period is insufficient
evidence to determine that he does not need sensory supports. By contrast, his
documented sensory needs have been recorded for years in his IEPs, multiple medical
diagnoses, and the recommendations of his doctor. The District denied D.L. a FAPE
as required by the IDEA when it placed him at Madison without direct OT or a
sensory diet plan in place to address his autism-related issues.

      C. Giant Steps and Reimbursement

     D.L. must establish that Giant Steps is an “‘appropriate’ placement within the
meaning of the IDEA” in order to receive reimbursement for tuition there. Sneitzer

                                         -12-
v. Iowa Dept. of Educ., 796 F.3d 942, 948 (8th Cir. 2015) (quoting Forest Grove Sch.
Dist. v. T.A., 557 U.S. 230, 242-43 n.9 (2009). Because the AHC made no findings
on Giant Steps’ appropriateness, the district court reviewed de novo and found it was
an appropriate placement. We review the district court’s decision de novo. C.B. ex
rel. B.B. v. Special Sch. Dist. No. 1, 636 F.3d 981, 989 (8th Cir. 2011).

       Giant Steps was an appropriate placement for D.L. Giant Steps provided D.L.
sensory and speech support, weekly OT, autism-focused resources and experienced
staff, and a personalized education to successfully keep him in class. D.L. made
academic progress at Giant Steps, which we have found is a significant factor in
determining an appropriate placement. See CJN v. Minneapolis Pub. Schs., 323 F.3d
630, 642 (8th Cir. 2003) (“[T]he fact that [a student] is learning is significant
evidence that [their] behavioral problems have . . . been attended to.”). Because Giant
Steps was an appropriate placement for D.L., we turn to D.L.’s parents’ request for
reimbursement for private tuition.

       When a school district fails to provide a FAPE, “parents [have] a right of
unilateral withdrawal and a right to reimbursement for private tuition, so long as the
placement was proper under the [IDEA] and the award furthers the purposes of the
Act.” C.B. ex rel. B.B., 636 F.3d at 991 (cleaned up). The IDEA permits federal
district courts to “grant such relief as the court determines is appropriate.” 20 U.S.C.
§ 1415(i)(2)(C)(iii). A district court may calculate an appropriate amount of
reimbursement based on relevant equitable considerations. Florence Cty. Sch. Dist.
Four v. Carter, 510 U.S. 7, 16 (1993). We review the district court’s denial of
reimbursement de novo giving due weight to the AHC’s findings. T.F. v. Special
Sch. Dist. of St. Louis Cty., 449 F.3d 816, 818 (8th Cir. 2006).

      The district court crafted its award limitation based on Madison constructing
a sensory room and admitting three students with autism. The district court denied
reimbursement for D.L.’s attendance after Madison’s principal’s testimony that those

                                         -13-
improvements were made. We conclude that an award limitation based on
improvements to Madison is inappropriate and inconsistent with the purposes of the
IDEA because the District failed to give any notice to D.L.’s parents. When D.L.’s
parents toured Madison, the school had no autism-focused resources or sensory
supports and no students with autism attending. By the time of the AHC hearing,
Madison had built a sensory room and enrolled three students with a medical
diagnosis of autism. It is undisputed that the District did not provide notice of these
improvements.

      Limiting an award based on improvements not communicated to D.L.’s parents
is inconsistent with the IDEA’s purpose. This standard would place an unfair
obligation on parents justified in seeking tuition reimbursement, contrary to the
IDEA’s purposes of protecting the rights of parents who seek appropriate educational
services for their disabled children. 20 U.S.C. §§ 1400(d)(1)(A), 1400(d)(1)(C).
Imposition of this standard would require parents to constantly monitor schools
inappropriate for their children in anticipation of the first improvement that could
conceivably provide an academic benefit. In this case those improvements took
months. In other cases they could take much longer.

        Testimony at the AHC hearing from Madison’s principal did not provide
sufficient notice to the parents that they risked reducing eligibility for tuition
reimbursement if they continued D.L.’s enrollment at a private school. Determining
the amount of tuition reimbursement based on a school principal’s testimony about
a sensory room, without the District holding an IEP meeting, another vote on
placement at Madison, or even offering D.L.’s parents another opportunity to tour
Madison does not comport with the purposes of the IDEA. The principal merely
testified that Madison had a sensory room and students with autism. This was
insufficient notice arising in the midst of litigation before a state administrative
hearing officer. Moreover, there is no evidence that D.L.’s parents have been
informed of how the three enrolled students with autism are faring at Madison,

                                         -14-
whether the sensory room is being used as therapy or punishment, or whether
Madison has obtained other necessary autism-related resources and staff. Because
the District failed to notify D.L.’s parents of any improvements to Madison, we
decline to limit tuition reimbursement.

III. Conclusion

       For the foregoing reasons, we affirm in part and reverse in part. We affirm the
district court’s holding that the District violated the IDEA when it denied D.L. a
FAPE by eliminating his direct OT and placing him at Madison. We reverse the
district court’s limitation of tuition reimbursement and award full tuition
reimbursement to D.L. for his attendance at Giant Steps.
                        ______________________________




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