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Trending Topics in #SpEd Law
Karen HaaseH di & Sh ltHarding & Shultz
(402) [email protected]
H & S School Law
@KarenHaase
Trending Topicsg p Child Find Predetermination Section 504 and Health Care Plans Section 504 and Health Care Plans Truancy Residency Residency Prescription Pad IEPs Describing Services Recording Meetings Bullying/Harassment
#Child Find
Child Find meets RTI Lots of new (hard) questions ( ) q Federal Rule allows parents to
refer at any timerefer at any time School can refuse MUST issue PWN, notice of rights,
etc. Better concession to RTI is
extension upon agreementextension upon agreement BUT MUST DOCUMENT
Cases re Child Find/RTI Austin Indep. Sch. Dist. (Tex. 2010) p ( )
– 3rd grader underachieving– Neurosurgeon called principalNeurosurgeon called principal– School initiated RTI – told grandma
no verification until completed RTIno verification until completed RTI– Reading consultant’s e-mail– Student verified; grandma sued– Ct. denied relief because student
responded well to interventions
Cases re Child Find/RTI Scott v. Dist. of Colombia (2006) f ( )
– Mom contacts school about ADHD diagnosisdiagnosis
– Agrees to “alternative strategies” Sues for failure to identify– Sues for failure to identify
– Ct: agreeing to interventions did not affect the school’s child find duties
– Informal agreement ≠ withdrawal of request to evaluate
Cases re Child Find/RTI El Paso ISD v. R.R. (Tx. 2008) ( )
– Mom asks school to evaluate– School proposes SAT insteadSchool proposes SAT instead– Parent agrees, later sues for failure
to identifyto identify– Ct: school refused testing and did not
provide notice of refusal or notice of rights
Child Find (referral)( ) Compton Unif. Sch. Dist. V. p f
Addison (9th Cir. 2010) 9th grade student– 9th grade student
– “like a stick of furniture”C l d ith l d ith– Colored with crayons, played with dolls at her desk
– Occasionally urinated on self – School respected parent’s desire p p
that child “not be pushed”
The Bottom Line Don’t close your eyes to need for y y
verification If a parent asks for eval and you If a parent asks for eval and you
don’t agree, provide procedural safeguards, etc.
RTI does NOT trump IDEA RTI does NOT trump IDEA Respond to parent requests for
l ti i di t levaluation immediately
#Pre-determination
Pre-determination
Deal v Hamilton Co Bd Of Ed Deal v. Hamilton Co. Bd. Of Ed., (6th Cir. 2004)
Lancaster Co. Sch. Dist. 001, (Nebraska 2011)(Nebraska 2011)
Pre-determinationW.A. v. Patterson Joint Univ. Sch.
Dist. (E.D. Cal. 2011)• “Predetermination can be a twoPredetermination can be a two
way street.”M C E B d f Ed f F d i kM.C.E. v. Board of Ed. of Fredrick
Co. (D. Md. 2011)( )• “open mind, not blank mind”
Mark M v Hawaii (Hawaii 2011)Mark M. v. Hawaii (Hawaii 2011)• School refused to consider data
The Bottom Line Preparation OK Preparation OK Educators can have a tentative
lplan Show evidence of openness to p
parental input Be ready to establish parental Be ready to establish parental
predetermination
The Bottom Line
#Section504
ADA and Section 504• Rehabilitation Act doesn’t define “major life activity”• Courts have used ADA; congressCourts have used ADA; congress amended to include
Concentrating- Concentrating- Reading- Learning
504/Health PlansTyler (Tx) Indep. Sch. Dist., (OCR y ( ) p , (
2010) • health care plan for diabetic• health care plan for diabetic
students• Required to evaluate under 504
Dracut (Ma) Pub. Sch., (OCR 2010)Dracut (Ma) Pub. Sch., (OCR 2010)• health care plan for peanut allergy
R i d t l t d 504• Required to evaluate under 504
504/Health PlansOpelika city (AL) Sch. Dist., (OCR p y ( ) , (
2010) • health care plan for diabetic• health care plan for diabetic
students• Required to evaluate under 504
Jan. 19 Guidance DocumentJan. 19 Guidance Document
Health Plan Action StepspList of all kids with health planpList of all kids on medication and
what meds arewhat meds areList of all kids identified by parent
as having health conditionTrain school nurse!Train school nurse!
#Truancy
Neb. Rev. Stat. §79-209If the child is absent more than twenty days per year or the hourly equivalent, the attendance officer shall file a reportthe attendance officer shall file a report with the county attorney of the county in which such person resides The countywhich such person resides. The county attorney may file a complaint against a
i l ti ti 79 201person violating section 79-201 . . . or may file a petition under the Nebraska Juvenile Code . . .
Special Ed. and Truancyp y No health exception – 504 not a
ffree pass Consider changing student’s g g
placement Communicate with your Communicate with your
attendance officer
LB 933 Three choices for 20 day report
Th b d t d t d• The absences are due to documented illness
• School requests additional time to work with familyy
• Hang ‘em high If legal action necessary school If legal action necessary school
chooses location of meeting
LB 933
#Residencyy
#PrescriptionPadIEPsp
Prescription pad IEPp pMarshall Sch. Dist. v. C.D. (7th(
Cir. 2010) • Student had genetic condition• Student had genetic condition• Ct.: physician cannot just
diagnose an IEP
Prescription pad IEPp pRiverside Unified Sch. Dist., (SEA , (
California 2007)• School dismissed boy from• School dismissed boy from
SpEd• Private evaluation indicated
serious deficits.serious deficits. • Ct: school considered Doc
S h l’ d t t d D• School’s data trumped Doc.
Team must consider ‘scrippOSEP : reviewed by team, y ,
discussed, and, if not adopted, team explains the basis forteam explains the basis for disagreement.
T.S. v. Bd. of Educ. of the Town of Ridgefield, (2nd Cir. 1993)Ridgefield, (2nd Cir. 1993) “consider” means only to reflect
thi k b t ithon or think about with some degree of care.
Responding to Prescription pad IEP
Thank youThank you FERPA Release“ ild i i ”“mild cross examination”
#DescribingServicesg
Describing Services in IEPg Do NOT identify provider
Mi d th• Mix up para and others• “enhanced adult assistance” Give yourself some room
• OSEP: “600 minutes per semester inOSEP: 600 minutes per semester in 16 weekly sessions” sufficient
“Stock” items to consider “Stock” items to consider• Ability to comply with discipline• Necessary modifications for
extracurriculars
#RecordingMeetingsg g
Recording IEP Meetingsg g
E H v Tirozzi 735 F Supp 53 (DE.H. v. Tirozzi, 735 F. Supp. 53 (D. Conn 1990)
V.W. v. Favolise, 131 F.R.D. 654 (D. Conn 1990)
B O C ld S i H b C tB.O. v. Cold Spring Harbor Cent. Sch. Dist. (EDNY 2011) ( )
Dealing with Recordings g g
Assume every phone call is beingAssume every phone call is being recorded
Ask at every IEP meeting – are you recording this?
D li t dDueling tape recorders
#FERPA
FERPAL.S. v. Mount Olive Board of Ed.
(D.N.J. 2011) • Catcher in the Rye Assignment• Catcher in the Rye Assignment• Teacher and school psych.
liable – other school defendants dismisseddismissed
Trending Topics in SpEdg p p
Karen HaaseH di & Sh ltHarding & Shultz
(402) [email protected]
H & S School Law
@KarenHaase