An Individualized Education Program (IEP) must be individualized to the student. In North East Independent School District v. I.M., 163 F.4th 193, 125 LRP 34991 (5th Cir. Dec. 23, 2025), vacating and superseding 160 F.4th 630, 125 LRP 31441 (Nov. 21, 2025), the Fifth Circuit concluded that an IEP fell short where it did not adequately address the student’s individual needs, including the duration of needed extended school year (ESY) services, and therefore denied a free, appropriate public education (FAPE).
The student had autism, a speech impairment, and an intellectual disability. He communicated primarily through gestures, facial expressions, and a communication app on an iPad. His behaviors included hitting furniture and walls, jumping, doing handstands, spinning, running away from the school building, and problems with toileting. After second grade, the district placed him in a three-week, half-day summer program, where he frequently ran away. By the start of third grade, he had regressed significantly and was running away on 40% of his school days. He regressed again after spring break and urinated in class twice, which had not happened before.
The parent requested full-day ESY services for the summer after third grade. The district instead offered six weeks of half-day instruction, leaving a month-long break before fourth grade. When fourth grade began, the student had again regressed. He ran away from school three times in a two-week period and had 20 toileting incidents during the first six weeks, even though he had no toileting incidents during the ESY program. He also ran away from the school bus and, on another occasion, exited an unlocked school gate, crossed a busy street, and had to be restrained by bystanders.
The parent requested due process and sought ESY services for all breaks, a GPS tracker, and an IEP goal for safe bus riding. The hearing officer concluded that the district had failed to provide an appropriate education and ordered full-summer ESY services and year-round access to a voice-assisted communication device. The district court agreed, and a panel of the court of appeals affirmed. After the district sought rehearing en banc, the circuit court denied that request and treated the petition as one for rehearing by the original panel. The panel maintained its affirmance but substituted a new opinion and withdrew its earlier one.
In the revised opinion by Judge Graves, the court treated the question of appropriate education as a mixed question of law and fact and applied the framework in Cypress-Fairbanks Independent School District v. Michael F., 118 F.3d 245, 253 (5th Cir. 1997). The court found no clear error in the district court’s conclusion that the student’s IEP was not adequately individualized. Although the district adopted numerous interventions, the student continued to regress after school breaks. The IEP team recognized the problem and concluded that he would benefit from extended ESY. Even with additional weeks, however, regression continued, and his elopement presented life-threatening danger. The district had a behavior intervention plan for elopement but lacked a plan to implement the needed accommodations. As the court put it, “Overall, even though the School District implemented behavioral strategies, IM’s breaks from school frustrated their benefit. The district knew the summer ESY program improved toileting and elopement, and admitted it was too short. It refused to offer full-summer services even so.” 163 F.4th 193, 201.
The court also concluded that the student’s continuing behavioral regression outweighed the academic benefits of the IEP. It rejected the argument that the district court had focused only on remediating the student’s disability and distinguished Klein Independent School District v. Hovem, 690 F.3d 390 (5th Cir. 2012). The student in Klein was highly intelligent, graduated from high school, and went on to college. I.M., by contrast, was functioning at a kindergarten level in fourth grade. The district court had considered progress across different areas. The student made academic progress while in school but showed documented regression after breaks, particularly in toileting and elopement. The court explained that “the record reflects that the behavioral interventions were not working. Even though the School District implemented strategies for toileting and elopement over several years, IM regressed nevertheless. His worst period was in fourth grade when he had his most dangerous elopement yet. Although the School District provided minor behavioral interventions, his regression on toileting and elopement shows that more was needed.” Id. at 204.
The significance of the opinion lies in its focus on individualization. The student’s academic progress did not overcome the documented behavioral regression that followed school breaks, particularly where the district knew the ESY program improved toileting and elopement but was too short. In this case, the IEP failed because the duration of the ESY services did not sufficiently address the student’s individual needs.