When we first began following the “over-diagnosis” issue through the courts, comparisons to medical malpractice standards continually sprang to mind. Indeed, if a doctor performed an unnecessary treatment, he or she can be held liable. So, can schools, which are staffed with professional educators and evaluators, be held liable if they provide special education to a student as if he or she were disabled, but it is later determined that the student was not disabled?

In a case of first impression, the U.S. Court of Appeals for the Third Circuit thought not. The panel explained its reasoning in the recent opinion, S.H. v. Lower Merion School District, 2013 U.S. App. LEXIS 18458 (3d Cir. Pa. Sept. 5, 2013). The panel held that a school can avoid liability under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act and/or Section 202 of the Americans with Disabilities Act (ADA) if it innocently diagnoses a student with a disability even if it is later discovered that the student never had a disability of any nature. However, the panel was silent on future “over-diagnosis/misdiagnosis” suits suggesting that such suits will still be allowed provided that the student has a disability at the time of the filing. Further, the panel discussed the ADA’s and Rehabilitation Act’s “intentional discrimination” language at length; the implications of the panel’s treatment of these claims are less clear, but any practitioner dealing with the ADA or Rehabilitation Act should take note of the language.

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