Spring Branch Independent School District v. O.W., No. 18-20274, 2019 WL 4401142, — F.3d —-, 75 IDELR 29 (5th Cir. Sept. 16, 2019), offers impartial hearing officers an analysis of the problems that may arise when a student has severe behavioral disabilities and the schools respond with steps that are other than a prompt evaluation for special education and consistent application of an individualized education program developed to meet the child’s needs. At the same time, the opinion holds that physical restraint and police intervention may, under some circumstances, not conflict with rights under the Individuals with Disabilities Education Act.

The case involved a student who transferred from a private therapeutic school to public school in fifth grade. In August, the parent notified the school district that the student had ADHD and behavior challenges, and the student as early as September engaged in misconduct including verbal and physical aggression, refusal to follow directions, leaving without permission, sleeping in class, taking others’ property, and not completing his schoolwork. He began failing at his academics. On October 8, the school adopted a Section 504 plan that included behavior interventions such as charting misbehavior and providing rewards for good behavior, but the student’s misconduct recurred after a short time and his grades dropped; no referral for special education evaluation was made in October, despite the mother’s testimony that she requested it. In January, the student hit a staff member with a jacket and then physically attacked his fifth grade teacher.

The district convened a Section 504 meeting and referred the student for special education evaluation. The parents agreed to a temporary placement in an alternative school program. The evaluation team rejected a private evaluation’s diagnosis that the student had autism, but concluded that he had emotional disturbance. The district adopted an IEP on March 11. The IEP included specific behavior intervention practices: training the student in replacement behaviors, offering of choices to avoid power struggles, and using calm interaction styles. It did not include use of time outs or restraint. The student was placed in an adaptive behavior program that made extensive use of “take 5” or “take 10” isolation sessions at a desk in the classroom. The student was restrained on eight occasions over 40 days, and police were summoned four times but spoke with the student only once. In early May, after the student physically attacked a teacher and was restrained, then was threatened with arrest by the police, school officials and the student’s mother, without any consultation with the IEP team, put the student on a shortened school day for the last 20 days of the school year, at first a delayed start and then a day that ran just from 9 a.m. to noon. The parents placed the student at a private school the following summer and enrolled him there for the ensuing school year, notifying the public school he would not reenroll less than ten days before the start of the school year. He remained there for that school year and half of the next but was removed after setting a fire in a trash can, and eventually enrolled in a residential school.

The parents filed for due process in October of the year the student left the public school. They sought private placement and tuition reimbursement. The hearing officer found in favor of the parents on child find and free, appropriate public education grounds as well as the district’s failure to comply with the IEP. The hearing officer ordered tuition reimbursement and ongoing tuition. The district court affirmed.

On the child find issue, the court of appeals rejected the parents’ argument that violation of expedited evaluation requirements of 34 C.F.R. § 300.534(d), which relate to disciplinary actions, constituted a violation of child find. The court, however, affirmed the hearing officer and district court decisions that the district committed a child find violation by not initiating the special education evaluation process for the 99-day period from October 8, 2014 to January 15, 2015, rejecting the district’s argument that its use of behavioral interventions in a response-to-intervention program before making the referral was consistent with child find. It was clear that by October 8, general education behavior interventions were not working. On the issue of denial of appropriate education due to failure to implement the IEP through the use of time-outs, physical restraints, and police intervention as forms of discipline and shortening of the school day, the court held that state law effectively prohibited time-outs unless specified on the IEP or behavioral intervention plan and used in conjunction with positive behavior strategies. It further held that the district court did not err in finding that the take-5 and take-10 sessions were time outs. The recurrent time outs amounted to a substantial or significant departure from the IEP. The drop in the student’s grades and his behavioral deterioration during that period demonstrated denial of appropriate education.

The court found that physical restraint is permitted under state law in emergencies, and that the IEP’s intervention methods did not supplant the use of emergency restraint when necessary to prevent serious physical harm to the student or others. The single incident of police intervention was found not to rise to the level of an actionable IDEA violation. The initial curtailing of the school day did not violate the IDEA because it was in a formal document that the parent agreed to, but the later, unwritten modification of the school day to three hours did. Because the award of tuition covered some time periods that the court of appeals ruled did not include denials of appropriate education, the court remanded the case to the district court for reconsideration of the remedy.

The case is of course not binding on impartial hearing officers from outside of Texas, and the parts that are based on Texas law are, needless to say, not applicable outside of Texas. But the decision is instructive in showing a court’s reasoning that it violates the IDEA to wait until January before referring a student for special education, when it was clear the student was repeatedly acting out and response-to-intervention was not solving the problem as early as the beginning of October. The use of time-out sessions not provided for on the IEP was considered a serious departure from the IEP’s terms, and though that conclusion was bolstered by state law, one could imagine it being adopted without the state law’s application. Emergency restraint as authorized by state law will not necessarily violate the IDEA, though the case makes clear that the measure should be a rare last resort to protect against injury rather than a method of behavior intervention.