R. S. v. Highland Park Indep. Sch. Dist.

• Decision Date: 26 February 2020
• Docket Number: No. 19-10458,19-10458
• Citation: 951 F.3d 319
• Parties: R. S., BY AND THROUGH his next friend, RUTH B., Plaintiff - Appellant v. HIGHLAND PARK INDEPENDENT SCHOOL DISTRICT, Defendant - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

951 F.3d 319

R. S., BY AND THROUGH his next friend, RUTH B., Plaintiff - Appellant

v.HIGHLAND PARK INDEPENDENT SCHOOL DISTRICT, Defendant - Appellee

No. 19-10458

United States Court of Appeals, Fifth Circuit.

FILED February 26, 2020

Mark S. Whitburn, Whitburn & Pevsner, P.L.L.C., Arlington, TX, for Plaintiff - Appellant.

Meredith Prykryl Walker, Esq., Nona C. Matthews, Attorney, Walsh Gallegos Trevino Russo & Kyle, P.C., Irving, TX, for Defendant - Appellee.

Before KING, JONES, and DENNIS, Circuit Judges.

PER CURIAM:

R.S. is a developmentally disabled child who attended school and received special education services in Highland Park Independent School District ("Highland Park") within the Dallas-Fort Worth metropolitan area. Through his next friend, his mother Ruth B., R.S. brought a state administrative complaint alleging that the school district violated the Individuals with Disabilities Education Act ("IDEA") by failing to develop and implement an Individual Education Plan (or Program) ("IEP") that was reasonably calculated to provide him with educational benefits appropriate to his circumstances. R.S.’s claims are based primarily on allegations that Highland Park allowed him to fall and injure himself on several occasions, as well as generalized disagreements about the educational methods Highland Park employed. He sought reimbursement for the cost of the private schooling and supplemental services he utilized after he unilaterally withdrew from the school district.

Following a state administrative hearing, the hearing officer concluded that any of R.S.’s IDEA claims that had accrued more than a year prior to his requesting a hearing were barred by Texas’s statute of limitations, which IDEA incorporates, and that the remainder of his claims were without merit. R.S. challenged the ruling in the U.S. District Court for the Northern District of Texas. The court affirmed the administrative decision on summary judgment and dismissed R.S.’s remaining claims, and he now appeals. Because we agree that R.S. has failed to demonstrate an IDEA violation, we AFFIRM.

I.

A.

R.S. suffers from hypotonia, cortical visual impairment ("CVI"), cerebral palsy

, and West Syndrome. As a result, R.S. is non-verbal and non-ambulatory, he has significant optical processing delays and other visual impairment, and he requires assistance for safe participation in all physical activities. This is partially because R.S. does not have automatic protective responses to prevent or minimize injury when he falls or is otherwise threatened with physical harm.

After moving from Virginia to Texas with his mother, Ruth B., R.S. enrolled in Highland Park in January 2012 as a second grader at Hyer Elementary School. Highland Park initially provided R.S. with special education services based on the IEP¹ that his former school district in Virginia had developed. However, the school district soon realized that the existing IEP contained academic goals that did not comport with R.S.’s then-current abilities.

The school district performed its own Full and Individual Evaluation ("FIE") of R.S. from January to May 2012, and on May 11, it classified R.S. as meeting the disability criteria for "intellectual disability, visual impairment, speech impairment, orthopedic impairment, other health impairment (epilepsy

), and multiple disabilities." The FIE was submitted to R.S.’s Admission, Review, and Dismissal Committee ("ARD Committee"), the administrative stake-holder’s group responsible for making decisions about a student’s IEP under Texas law. R.S.’s ARD Committee certified that R.S. met eligibility requirements for special education and related services and adopted a new IEP.

Pursuant to his IEP, R.S. worked with a specialist team that included a teacher of the visually impaired ("TVI"), an assistive technology ("AT") coordinator, a speech language pathologist, an occupational therapist, a physical therapist, a special education teacher, a music therapist, and an adaptive physical education ("PE") teacher. R.S. utilized a variety of equipment during his lessons, including a wheelchair for basic mobility; a standing frame for trunk and leg stretching and lower extremity weight bearing; a gait trainer for daily mobility practice; a "Little Room" that provided him with a safe environment for independent play and sensory-based exploration; and a specialized seat called a "Kaye bench" to work on his postural control. R.S. also used an iPad as an augmented alternative communication ("AAC") device. R.S. and his team employed the AAC device as part of an "object-picture-symbol hierarchy," under which R.S. would first be given an object to hold, then a picture of the object to view, then a symbol representing the object on his iPad to use in communicating.

B.

While attending Highland Park schools, R.S. suffered five falls over the course of three years, which he claims demonstrate Highland Park failed to properly ensure his safety.²

The first three incidents occurred while R.S. was attending Hyer Elementary. First, in October 2012, R.S. fell forward off his Kaye bench while working with an occupational therapist. The bench was eight to nine inches from the ground at the time, and R.S. struck his face on the floor, causing an area under his left eye to become swollen. Following the incident, Highland Park implemented a new protocol that required a second teacher or aide to be present when R.S. was working with a specialist.

R.S. suffered a second injury a year later in October 2013. While R.S. was using his standing frame, his upper body fell forward and he struck his face on an iPad that one of his aides was holding in front of him. R.S.’s face became red and he experienced swelling around the area of impact. Following the incident, Highland Park purchased a soft foam case and stand for R.S.’s iPad and implemented a new protocol requiring that personnel be within arm’s length of R.S. at all times. When Ruth B. expressed concerns to Highland Park about subsequent behavioral problems that she believed were linked to this injury, Highland Park performed a "functional behavior assessment" and developed and implemented a "behavior intervention plan."

The following month, R.S. suffered a third fall. R.S. rolled off a one-and-a-half-foot tall cot used as a changing table when an aide stepped away to dispose of his diaper. He again struck his face, resulting in a black eye and swelling. As a result of the incident, Highland Park installed a safety belt on the changing table and instituted a new protocol for changing R.S. that included additional safety precautions.

In the summer of 2014, R.S. again fell off a Kaye bench and struck his face while working with a TVI and an aide during Highland Park’s Extended School Year service at Armstrong Elementary. Though the school nurse noted only a slight abrasion on his upper lip, R.S. later developed bruising and swelling around his eye. In response to the incident, Highland Park assured R.S.’s parents that they would review R.S.’s IEP and take whatever measures were necessary to ensure his safety.

R.S. transferred to McCulloch Middle School for the 2014-15 school year. On September 14, R.S. fell a fifth time after he leaned too far forward while seated and wearing a seatbelt in his "office chair," a rolling chair without wheel-locks that a Highland Park physical therapist procured after witnessing R.S. demonstrating good posture in a similar chair during a visit to his home. When his aides turned away, R.S. tilted forward until his forehead contacted the floor, and he developed an oval abrasion on his forehead

as a result. In response to his injury, Highland Park began holding additional staff trainings every three weeks to cover safety protocols for R.S.’s care and instruction, implemented a new safety protocol mandating that at least two people be with R.S. any time he was out of his wheelchair, and began to require that a different primary aide work with R.S. in the afternoon than in the morning to avoid fatigue.

C.

At an ARD Committee meeting in October 2013, one year after Highland Park had adopted its IEP for R.S., the Committee considered R.S.’s progress under the new plan. At the meeting, Highland Park acknowledged that R.S. had experienced some regression in skills over the previous year. Although Highland Park stated that much of the perceived regression was attributable to human error in the way data was recorded, the school district conceded that some true regression had occurred. The school district agreed to implement standardized "operational definitions" and a number of other measures to correct for mistakes in recording data, as well as monthly collaborative meetings with R.S.’s parents, teachers, and service providers.

In discussing compensatory services to correct for the regression, R.S.’s parents requested that Highland Park issue a referral for R.S. to attend the Texas School for the Blind and Visually Impaired ("TSBVI"). Though Highland Park was initially resistant to the suggestion because TSBVI represented a very "restrictive environment away from typically developing peers and family members," R.S.’s parents continued to advocate for the placement, and the school district eventually agreed to make the referral and to apply to TSBVI’s outreach program.

TSBVI did not accept R.S. for admission, stating that, based on its evaluation, Highland Park was already providing R.S. with a "Free Appropriate Public Education" ("FAPE")³ and that R.S. would "continue to have meaningful instructional opportunities within [the Highland Park] community." TSBVI nonetheless agreed to provide supplemental services to Highland Park through its outreach program, and Scott Baltisberger, a TSBVI specialist consultant, visited the school district four times between April 2014 and March 2015. After viewing R.S.’s daily activities and visiting his home, Baltisberger made a series of recommendations for R.S.’s education. Most notably, he recommended...