concurring in part, concurring in result in part and dissenting in part with opinion.
I concur with the majority’s decision that the trial court improperly granted summary judgment on the Lyonses’ ITCA claims because a genuine issue of material fact remains as to when the Lyonses could have learned of RCSC’s alleged acts or omissions and whether that was within 180 days of filing their notice of claim. I, however, would also hold that the Lyonses have made a case for tolling the time period in which they could file their notice of claim because of fraudulent concealment. I also respectfully dissent from the majority’s decision that that trial court properly granted summary judgment to RCSC on the Lyonses’ Section 1983 claims. As to all other aspects of the majority opinion, I concur.
I believe many of the things that raise a question of fact as to when the Lyonses should have discovered their cause of action also raise a question of fact as to whether RCSC was fraudulently concealing material facts concerning the Lyonses’ cause of action. RCSC Principal Bergdoll was present at two meetings on the day of the incident. In one meeting, Bergdoll and LaRue met with cafeteria employees and told them not to discuss the incident with anyone.- Allegedly, this was a reminder about HIPAA regulations and RCSC confidentiality policies. However, assuming RCSC was a covered entity required to comply with the HIPAA Privacy Rule,6 HIPAA would not preclude any disclosures to Megan’s parents about the in*489cident. See 45 C.F.R. § 164.502(g) (concerning implementation of the Rule with respect to unemancipated minors). There is no indication this distinction was made clear to employees at the meeting. Moreover, a cafeteria worker’s eyewitness account of the incident would not be protected health information subject to the Privacy Rule. RCSC’s confidentiality policy is not part of the record, but I believe it is unlikely it would preclude disclosures to parents in situations such as this. La-Rue told the cafeteria employees the sanction for speaking about the incident would be immediate termination of employment. Neither Bergdoll nor LaRue asked the workers if they had seen anything. In the second, Bergdoll held a meeting with school administrators, including vice principal Hensley, to recap what had happened and discuss what could have been done differently. The existence of the cafeteria video surveillance tape was also discussed at that meeting. Despite the acknowledgement of the video during this meeting, it was never viewed and it was not preserved. Bergdoll stated during a deposition that she had not watched the video because she saw no reason to.
While Megan was still in the hospital, Hensley told the Lyonses that she had been without oxygen for a very short period of time. Although that phrase is susceptible to more than one interpretation, “very short time” in this context would not likely be understood by anyone to be as long as fifteen to twenty minutes, the time Megan was actually without oxygen. Two or three times, the Lyonses asked to sit down with Hensley and go over what had happened. The last time, prior to RCSC graduation ceremonies on June 14, 2009, Hensley told them to contact him after graduation. One hundred and eighty days after Megan’s choking incident was June 7, 2009.
There are two types of fraudulent concealment: active and passive. Garneau v. Bush, 838 N.E.2d 1134, 1142 (Ind.Ct.App.2005), trans. denied. Active concealment occurs when there is an intention to mislead, to hinder a plaintiff from obtaining information by the use of ordinary diligence, or to prevent inquiry or elude investigation. Hopster v. Burgeson, 750 N.E.2d 841, 854 (Ind.Ct.App.2001). Passive concealment can be merely negligent and arises from failure to disclose material information when a special relationship exists between the parties. Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind.1995). Although fraudulent concealment is an equitable doctrine, where it is an issue subsidiary to the statute of limitations defense which is in turn subsidiary to an action at law, factual questions relevant to the statute of limitations are generally for a jury to determine. Fager v. Hundt, 610 N.E.2d 246, 253 n. 5 (Ind.1993).
In my opinion, the Lyonses have presented enough evidence to at least raise a question of fact as to whether the doctrine of fraudulent concealment applies in this case, and, if so, whether the concealment was active or passive, when the statute of limitations began to run, and ultimately, whether they filed their notice within a reasonable time. The Lyonses designated evidence that Hensley was less than forthright with them in answering their question about how long Megan was without oxygen or agreeing to meet with them to discuss the incident; that not only did the school not preserve a video that would have shown the incident, but did not even bother to view it; and that employees who were in the vicinity were threatened with termination if they discussed the incident. The Lyonses relied on Hensley’s assertion that Megan had been without oxygen for a “very short period of time” and believing there was no way to know exactly what happened in the cafeteria that day until *490Swearingen contacted them, did not suspect anything more egregious than that their child, who had known eating issues, had simply choked and died despite everyone doing everything they could to save her. LaRue did not speak directly to the Lyonses, but in speaking to her employees, including Swearingen, and possibly misrepresenting their obligations under the law, she might have kept her employees from speaking to the Lyonses, further keeping them unaware of the actual course of events. Mrs. Lyons testified during her deposition that she and her husband “always said we had to believe, we had to believe that everything was done and should have been done, until we found out differently. And we had told ourselves if anything went wrong that day and things didn’t happen the way we were told or the way things should have happened, it would come out.” Appellants’ App. at 300-01. Whether or not RCSC’s actions and inac-tions, through its employees, constituted fraudulent concealment, is not an issue I believe the trial court should decide on summary judgment because it requires weighing the evidence to determine whether there was intent and reasonable reliance. Therefore, I would also reverse the trial court’s grant of summary judgment on this ground.
I also respectfully dissent from the majority’s decision affirming the trial court’s grant of summary judgment on the Lyons-es’ Section 1983 claims. I believe there is at least a question of fact as to whether there was a special relationship between RCSC and Megan. Hasenfus v. LaJeunesse, 175 F.3d 68 (1st Cir.1999), cited by the majority, see op. at 485 n. 4, does note that circuits that have considered whether a student is similar to a prisoner or a patient with respect to whom a special duty of care exists have “uniformly rejected” the argument. Id. at 71. However, Hasenfus also quotes Vemonia Sch. Dist. v. Acton, 515 U.S. 646, 655, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), in which the Supreme Court stated, “[W]e do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional ‘duty to protect.’ ” (Emphasis added.) Hasenfus posits the Supreme Court’s language does not foreclose “now and forever” liability for a due process violation for inaction by a school toward a pupil, but leaves open the possibility that “in narrow circumstances there might be a ‘specific’ duty.” 175 F.3d at 71-72. Those narrow circumstances are limited to “behavior so extreme as to ‘shock the conscience’ ... [or] conduct that is truly outrageous, uncivilized, and intolerable.” Id. at 72.
“In the context of educating children, the in loco parentis doctrine is particularly important based on Indiana’s compulsory education laws mandating the availability of public education for its citizens and the ensuing recognition that schools need to stand in the position of parents and guardians to the students.... ” Griffin v. Simpson, 948 N.E.2d 354, 358 (Ind.Ct.App.2011); see also Vernonia Sch. Dist., 515 U.S. at 655, 115 S.Ct. 2386 (“[W]e have acknowledged that for many purposes ‘school authorities ac[t] in loco paren-tis!.]’ ”)• Even more than with a typical high school student, RCSC was acting in loco parentis with respect to Megan, who, because of her disabilities, was labeled “severely and profoundly handicapped.” Appellant’s App. at 325. Although Megan was seventeen years old, she was nonverbal and functioned at the level of a two- or three-year old child. Megan was incapable of caring for herself and required supervision at all times. RCSC was not so much providing educational resources to Megan as assisting her with developmental goals. It was not just her guardian during *491the school day, but also her caretaker. The State of Indiana implemented Individual Education Programs for Megan that recognized her special needs, including in the area of food consumption, and RCSC assigned a one-on-one paraprofessional to Megan to attend to her needs. Mrs. Lyons testified that “[w]e knew she a had [sic] one-on-one para who was there and could have and should have responded to any immediate need. I always thought that was Ms. Vicki, and I had the comfort that it was Ms. Vicki because of the relationship she had with Megan.” Appellants’ App. at 300. Lett had been Megan’s paraprofessional for at least two years pri- or to this incident, but on the day Megan choked, a different paraprofessional was assisting her at lunch unbeknownst to her parents. Despite knowing that choking was a known danger of Megan’s condition, the school had no apparent protocol in place for handling a situation such as this, either for Megan or any other student, and when Nurse Provance was called to the cafeteria, she was not alerted to the emergency nature of the call. Whether, under these circumstances, RCSC failed to protect Megan from a danger it created (by giving her a different paraprofessional on this day) or made worse (in its response to the emergency), and whether its conduct “shocks the conscience” is a fact issue I believe inappropriate for summary judgment. See King ex rel. King v. East St. Louis Sch. Dist. 189, 496 F.3d 812, 818 (7th Cir.2007) (“The inquiry into whether official conduct shocks the conscience in a given case is a necessarily fact-bound inquiry.”). I would therefore reverse the entry of summary judgment on the Lyons-es’ Section 1983 claim.
. HIPAA applies to “covered entities,” defined as a health plan, a health care clearinghouse, or a health care provider who transmits health information in electronic form in connection with covered transactions. 45 C.F.R. § 160.103. Most schools, even those that may have health information, are not required to follow HIPAA because they do not engage in covered transactions.