Trending Topics in #SpEd Law

Karen HaaseH di & Sh ltHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

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) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase