R.S. v. Highland Park Independent School District, No. 19-10458, 2020 WL 914703, ___ F.3d ___, 120 LRP 7549 (5th Cir. Feb. 25, 2020), presents the issue of accrual of claims for purposes of the statute of limitations for due process hearing requests. It also contains a discussion of free, appropriate public education in the context of services for a nonverbal, non-ambulatory student diagnosed with several conditions, including hypotonia, cortical visual impairment, and cerebral palsy. A major concern of the parents was that in the three years attending the defendant’s public schools, the student suffered five falls. Various measures were undertaken in response, including staffing changes and the use of restraining devices. An October 2013 IEP meeting revealed that the student had regressed somewhat in skills under his IEP, though school officials believed that much of the apparent regression was due to recording error.

A consultant from the Texas School for the Blind and Visually Impaired made recommendations for changes in the student’s program. Although the parents ultimately agreed with the suggestions and the public school adopted them, the parents remained dissatisfied overall with whether the goals the school set for the student were challenging enough. They requested a due process hearing on April 13, 2015, then withdrew the student from public school and placed him at a very small special needs private school. The hearing officer found that the public school did not violate the Individuals with Disabilities Education Act, and denied tuition reimbursement for the placement. The parents filed an appeal in federal court, and the court ruled in favor of the school district, holding that claims accruing more than a year before the hearing request were barred by the state’s statute of limitations and that the school district did offer the student a free, appropriate public education.

The court of appeals affirmed. As to limitations and accrual, it declared that “a claim challenging the substantive sufficiency of an IEP must be linked to a specific act adopting, changing, or declining to change the IEP, and such a claim accrues when a parent knew or should have known that the action resulted in a deficient IEP.” 2020 WL 914703, at *6. If the complaint concerns “a specific education choice, the alleged unsuitability of the IEP will generally be immediately apparent when the school district adopts, changes, or refuses to change the IEP.” Id. On the other hand:

Where, as here, the claim is instead based on a generalized allegation that an IEP is not reasonably calculated to confer benefits, accrual will depend on the more fact-intensive inquiry of when the alleged deficiency became sufficiently apparent that the parent knew or should have known of the problem, including from a child’s lack of progress under the IEP.

Id. The court said it did not need to apply the test to the facts of the case, because it ultimately held that there was no IDEA violation.

The court explained why it rejected the parents’ claim that the district denied the student an FAPE. Citing Board of Education v. Rowley, 458 U.S. 176 (1982) and Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), the court said that the IDEA does not require maximization of the child’s potential. Applying the Fifth Circuit’s test from Cypress-Fairbanks Independent School District v. Michael F., 118 F.3d 245 (5th Cir. 1997), the court found the program sufficiently individualized on the basis of the student’s assessment and performance, administered in the least restrictive environment appropriate to the child’s needs, sufficiently coordinated as to administration, and found that the student gained academic and non-academic benefits.

The court said the falls the student experienced did not demonstrate a lack of attention to individual needs, and were instead a byproduct of the efforts to make the student function more independently. The court characterized the regression that occurred as minor and said it was made up for by prompt compensatory services following the consultant’s recommendations.

The court developed its analysis of the least restrictive environment issue by applying the framework of Daniel R.R. v. State Board of Education, 874 F.2d 1036 (5th Cir. 1989), stating that the parents did not argue that the student should be educated in the regular education classroom, but rather that he was excluded from contact with peers without disabilities. The court found evidence of exclusion ambiguous at best and said there were examples of interaction such as a peer tutoring program, physical education, lunch in the cafeteria, and the student’s job delivering items throughout the campus.

The court further found the program to be sufficiently well coordinated and said the district engaged the parents collaboratively through monthly meeting as well as phone calls, emails, and other communication. The court embraced the district court’s findings that after some initial regression, the student made substantial progress in the district program: “he eventually learned to independently use his AAC device to answer yes or no questions; identify his name, school, and basic needs; and make choices—skills he did not consistently demonstrate prior to Highland Park’s instruction.” 2020 WL 914703, at *11. He also made gains in mobility and fine motor skills. The court rejected the parents’ challenge to these findings. The court said that even if gains are small and take time, the education may still be appropriate to the child’s needs.

The court’s decision puts forward a somewhat elaborate analysis of accrual for purposes of due process complaint limitations, one that distinguishes complaints about decisions regarding the specific content and implementation of an IEP from more general complaints about the IEP’s overall sufficiency. The case also provides one court’s follow-up to Endrew F. in applying the FAPE requirement to a child with very severe disabling conditions whose services were not alleged to be inadequate with respect to behavior-related goals but whose services were instead challenged with regard to developmental skills and communication.