Legal Issues Related to

Special Education For

CNSSP Resource Staff

Karen Haase Harding & Shultz

(402) 434-3000

khaase@hslegalfirm.com

H & S School Law

@KarenHaase

The Yellow Brick Road

Identification

IEP Creation

Serving SpEd Students

Identification

Child find/referral

Prescription pad

verification

Child Find (referral)

Compton Unif. Sch. Dist. v. Addison

(9th Cir. 2010) • 9th grade student

• “like a stick of furniture”

• Colored with crayons, played with

dolls at her desk

• Occasionally urinated on self

• School respected parent’s desire that

child “not be pushed”

Child Find/Referral

Austin Indep. Sch. Dist. (Tex. 2010) • 3rd grader underachieving

• Neurosurgeon called principal

• School initiated RTI – told grandma no

verification until completed RTI

• Reading consultant’s e-mail

• Student verified; grandma sued

• Ct. denied relief because student

responded well to interventions

Take Aways re Referral

Take Aways re Referral

Don’t close your eyes to need for

verification

If a parent asks for eval and you

don’t agree, provide procedural

safeguards, etc.

RTI does NOT trump IDEA

Respond to parent requests for

evaluation immediately

Prescription pad IEP

Marshall Sch. Dist. v. C.D. (7th Cir.

2010)

Student had genetic condition

Ct.: physician cannot just

diagnose an IEP

Prescription pad IEP

Riverside Unified Sch. Dist., (SEA

California 2007)

School dismissed boy from SpEd

Private evaluation indicated

serious deficits.

Ct: school considered Doc

School’s data trumped Doc.

Team must consider ‘scrip

OSEP : reviewed by team,

discussed, and, if not adopted, team

explains the basis for disagreement.

T.S. v. Bd. of Educ. of the Town of

Ridgefield, (2nd Cir. 1993)

“consider” means only to reflect on

or think about with some degree of

care.

Responding to Prescription pad IEP

Thank you

FERPA Release

“mild cross examination”

IEP Creation

IEP Creation

• Team meetings

o Predetermination

• Plans

Recording IEP Meetings

E.H. v. Tirozzi, 735 F. Supp. 53

(D. Conn 1990)

V.W. v. Favolise, 131 F.R.D. 654

(D. Conn 1990)

B.O. v. Cold Spring Harbor Cent.

Sch. Dist. (EDNY 2011)

Dealing with Recordings

Assume every phone call is being

recorded

Ask at every IEP meeting – are

you recording this?

Dueling tape recorders

Describing Services in IEP

Do NOT identify provider • Mix up para and others

• “enhanced adult assistance”

Give yourself some room • OSEP: “600 minutes per semester in

16 weekly sessions” sufficient

“Stock” items to consider • Ability to comply with discipline

• Modifications for extracurriculars

Pre-determination

W.A. v. Patterson Joint Univ. Sch.

Dist. (E.D. Cal. 2011)

• “Predetermination can be a two

way street.”

M.C.E. v. Board of Ed. of Fredrick

Co. (D. Md. 2011)

• “open mind, not blank mind”

Mark M. v. Hawaii (Hawaii 2011)

• School refused to consider data

Instead Say Things Like:

We have drafted this for your

input

Are there any changes you would

like us to make

Mark document “draft” on every

page

Keep notes of edits

Pre-determination & ABA

Deal v. Hamilton Co. Bd. Of Ed.,

(6th Cir. 2004)

Lancaster Co. Sch. Dist. 001,

(Nebraska 2011)

Instead Say Things Like:

We use a multi-curricular

approach

We don’t use exclusively one

curriculum

What strategies would you like us

to consider

When Parents Walk out

Advise parents that you’ll continue

the meeting without them

Indicate when parents left in notes

Finalize IEP (if ready to do so)

Serving Students

Serving SpEd students

FERPA

Seclusion and Restraint

Seclusion and Restraint

Clark v. Special Sch. Dist. (E.D. Mo. 2012)

Student OHI: ADHD, seizure disorder,

“autistic-like behaviors”

Kindergarten year

• Suspended three times

• Lasted 2 months in parochial school

• No meds for ADHD

• Final IEP had three goals, all

behavioral

Clark v. Special Sch. Dist. (E.D. Mo. 2012)

First grade year

• Started school 8/14

• Transferred to parochial school 8/24;

re-enrolled in public school 9/19

• 2:1, still disruptive 50% of time

• Shortened school day implemented

• Transferred to special day school

• Special school used SORs

• Mom called CPS

Clark v. Special Sch. Dist. (E.D. Mo. 2012)

Second grade year

• Parents refused to send to school unless

IEP prohibited use of SOR

• Educators on team resisted

• Third party consultant retained

• IEP team eventually homebound

• Served at public library with some

success

• Mom sued during second semester

Clark v. Special Sch. Dist. (E.D. Mo. 2012)

Mom’s Claims

• Use of SOR deprived student of FAPE

• SOR = seclusion and restraint

• No FBA or BIP

• Student not served in LRE

Court

• SOR didn’t deprive of FAPE

• Seclusion not unlawful

• FBA and BIP can be in IEP

• Restrictive placement appropriate

Lessons from Clark

Documentation pays off

• Chemical restraint – made a record of

refusal

• In and out of parochial school

• Parent statements recorded in IEP

Follow policy on seclusion to the letter

FBA and BIP can be in IEP

Move through continuum of placements

Use homebound to buy time

Legal Issues Related to

Special Education For

CNSSP Resource Staff

Karen Haase Harding & Shultz

(402) 434-3000

khaase@hslegalfirm.com

H & S School Law

@KarenHaase