Central City Staff 2013 Inservice

2013 Legal Update for Central City Staff

Karen HaaseHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase

“That’s a SpEd Issue”

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/ReferralAustin 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

10 Things NOT to Say in an IEP Meeting

All of our students must...

Refusal to Individualize Victoria Ind. Sch. Dist., (Tex. 2010)

• Student with fetal alcohol syndrome• Gen Ed Teacher E-mailed Parent• Parent privately placed

Unified Sch. Dist. No. 259 (Ks. 1999)• Student with dyslexia• Attended magnet school• Teacher told parent she had done every

thing she could for student

Refusal to Individualize Montgomery Co. Bd of Ed., (Ala 2005)

• Student suspended for fighting • Homebound services for 45 days:‾ 3 hours per week‾AlphaSmart 3000‾ Social skills training

Instead Say Things Like:

We believe this will be successful for your childWe have had success with this

approach with similar children This approach meets your child’s

individual needs

That will cost a ton. Our school just can’t afford it.

Cost doesn’t matter Santa Clara (CA) Unif. Sch. Dist,

(OCR 2009) • "back-to-basics" school - lottery• Only 3% sped (15% elsewhere)• No resource staff • OCR: discrimination against disabled

students

Cost doesn’t matterModoc County (CA) Office of Educ.

(OCR 1996)• Parents wanted adaptive PE• School could find cert. • Private consultant too expensive• Waiver for teacher provisionally cert• $40,000.00 per year vs. $1200.00

Instead Say Things Like:

We believe you child can make academic progress without ____We believe the program we’ve

designed for your child will meet your child’s individual need Can you provide us with more

information about this?

I have 19 other students in my classroom to worry about too.

MUST follow IEP IEP is staff’s “safe harbor” District liable for failure to follow:

• Due Process• OCR Complaint• Rule 51 Complaint

Personal Liability• Doe v. Withers,

(WV. 1993)• PPC claim

Instead Say Things Like: I will make sure to implement the

team’s modifications I am committed to Johnny’s

successWorking together we can find

strategies that will be successful

We don’t provide ABA for autistic

kids

Pre-determination

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 approachWe don’t use exclusively one

curriculumWhat strategies would you like us

to consider

We only have to provide you a Ford,

not a Cadillac.

Just because it’s true doesn’t mean you say it

Instead Say Things Like:

We believe this will provide Sally with a great deal of education benefitWe are excited to see the progress

Sally will make with the plan

I don’t have time for this, I have to

get to practice

Take Time to Build Relationships

This is the most important IEP meeting in this person’s life Parents’ perception of team is

crucial

Instead Say Things Like:

Delighted that we can take time to visit about SallyHave each educator come

prepared to share an anecdote

That’s not appropriate, but if you want it, we’ll

put it in the IEP.

You say it, you pay it

Letter to Veir (OCR 1993) Must implement every aspect of

IEPMust be able to defend every

aspect of IEP

Instead Say Things Like:

I just cannot support that goal because I don’t think it is appropriate for Sally I understand your desire for ___,

but based on my training I truly believe that is not necessary/will be harmful

That has nothing to do with your child’s disability. We don’t need to address it in

the IEP.

Once a Child is Verified, Address Whole Child

The IEP Team must—In the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior

§300.324(a)(2)(i)

Instead Say Things Like: Need to address Johnny’s

behavior so that we can be sure he’s getting the education he needs and deserves

We need to help Johnny understand that these behaviors are not appropriate

My caseload is full.

Carefully manage caseloads (away from parents)

In re: Student with a Disability (NY SEA 2002)• Student needed phys therapy esy• Teacher told parents school “would try”

In re: Student with a Disability (W. Va. SEA 2002)• Tech teacher RIF’d• Parents sued

IDEA ≠ I Do Enough Already

Instead Say Things Like:

We don’t know exactly who will be providing these services, but that person will be highly qualified

I hope I’m the one who gets to serve Sally, but we have several excellent speech paths.

This won’t take much time, we’ve already got the IEP drafted and all you have to do is sign.

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 makeMark document “draft” on every

pageKeep notes of edits

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)

IDEA, ADA & Section 504

ADA and Section 504• Rehabilitation Act doesn’t define “major life activity”• Courts have used ADA; congress amended to include- Concentrating- Reading- Learning

Similarities School districts must evaluate and

determine eligibility Both require

• transportation, • accommodation/modification• related services• manifestation determination LRE requirement

Primary Differences Definition of disability is unique to

each statute No funding under 504 504 encompasses

• Students • Employees • Patrons

504 IDEA• Disability substantially

limits one or more major life activities

• LEA sets qualification standards

• Accommodations do not modify curriculum or change standards

• Parents may be on team, MUST have input

• Plan review periodically

• disability interferes with ability to learn

• Rule 51 sets qualification standards

• Accommodations may modify curriculum, instruction, materials and assessments

• Parents MUST be on team

• Plan review annually

When is a district required to make a 504

referral? When district believes that the student

has a physical or mental impairment that substantially limits one or more major life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

When is a district required to make a 504

referral? When district believes that the student

has a physical or mental impairment that substantially limits one or more major life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

When is a district required to make a 504

referral? When district believes that the student

has a physical or mental impairment that substantially limits one or more major life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

When is a district required to make a 504

referral? When district believes that the student

has a physical or mental impairment that substantially limits one or more major life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

What constitutes a “substantial limitation?”

504 regs do not define: “The Department does not believe that a definition of this term is possible at this time.”

Phrase is to be defined by local education agency

“substantial limitation?”

Congress: a major life activity is substantially limited when “the individual's important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.”

“Disability” Defined by 504A person has a disability under Section 504 if he or she has a mental or physical impairment, has a record of such impairment, or is regarded as having such an impairment which substantially limits one or more major activities.

Changes to ADA

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) The ADA Amendments Act of 2008

increased the number of individuals who qualify for accommodation under both the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

Major Changes

First, the definition of “major life activity” has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major Changes

First, the definition of “major life activity” has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major Changes

Second, interpretation of “substantially limits” has been changed• Must evaluate impairment that is episodic or in

remission in active state• Must not consider mitigating measures

Episodic Impairments Asthma Chron’s Disease IBS Any other disease that can “come and

go” or has good and bad days

No “Mitigating Measures”

A student may be eligible under Section 504 even if the student’s disability or condition is controlled or mitigated, whether by medication, technology, etc. This means you may be evaluating

a hypothetical student

Mitigating Measures

Mitigating Measures Medication Medical supplies, equipment, appliances Low-vision devices (NOT ordinary

eyeglasses or contacts) Prosthetics Hearing aids/cochlear implants Learned behavioral or adaptive

neurological modifications Reasonable accommodations or other

auxiliary aids or services

Transitory Impairments

A “transitory impairment” is defined as an impairment with an actual or expected duration of six months or less. “Any impairment the duration of

which is less than six months would not constitute a disability.” James A. Garfield (OH) Local School

Dist., 52 IDELR 142 (OCR Feb. 19, 2009).

What if the major life activity impaired is not

learning? The child may still need a 504 plan The focus is on the effect on the student,

not the type of disability “Students may have a disability that in

no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning.”

Health Plan ≠ 504 Plan

504/Health PlansTyler (Tx) Indep. Sch. Dist., (OCR 2010) • health care plan for diabetic students• Required to evaluate under 504Dracut (Ma) Pub. Sch., (OCR 2010)• health care plan for peanut allergy• Required to evaluate under 504

504/Health PlansOpelika city (AL) Sch. Dist., (OCR 2010) • health care plan for diabetic students• Required to evaluate under 504Jan. 19 Guidance Document

Health Plan Action Steps List of all kids with health plan List of all kids on medication and

what meds are List of all kids identified by parent

as having health condition Train school nurse!

Transferring Students

Transferring Students

Students may have a 504 in one district and not in another Not like IDEA, where school has to

implement IEP until MDT meets Each district is responsible for

determining for itself what the phrase “substantially limits” means

Letter to McKethan, 23 IDELR 504 (OCR 1994)

Do Not Take Shortcuts!

Can we just provide modifications without creating a 504 plan? No!! Remember: disability education

law is about PROCESS not RESULTS

Temple (TX) ISD, 25 IDELR 232 (OCR 1996)

School Law and TechnologyUpdate

This is not your Grandma’s Inservice

Agenda

Social Networking by teachers Social Networking by students

• Cyberbullying of Staff• Cyberbullying of Students

Social Networking Examples

• Facebook• YouTube• Twitter• Tumblr• Linkedin• Yelp

Teacher Use Causes for Concern

• Drug/Alcohol Use• Sexual Inappropriateness• Inappropriate Communication

with Students• Inappropriate Communication

about Students• Selling School Property

Nebraska Law NEB. REV. STAT. §§79-824, 79-827 Reasons for Termination and/or

Cancellation:• Unprofessional Conduct• Immorality• Other conduct which interferes

substantially with the continued performance of duties

My Suggestions Make a professional page separate

from your personal page Don’t “friend” students or parents

on your personal page Don’t let yourself be depicted

behaving unprofessionally Ask: will this affect my classroom?

Privacy Settings Set your profile as “private” Only let “friends” see pics Require notification before tagging Turn off geo-tags Friend Facebook on Facebook

Social Media and Politics

Cyberbullying of Staff

J.S. v. Blue Mountain Sch. Dist.Middle School Student made fake MySpace profile for principal

• Included photo from school website• Initially public; then limited• Students could only access off campus• Student suspended for 10 days; parents

sued

Layshock v. Hermitage Sch. DistHigh School Student made fake MySpace profile for principal

• Included photo from school website• Other students created similar and

more offensive profiles • Students only accessed off campus• Student suspended for 10 days; placed

in alt. sch, banned from extracurriculars, no commencement

J.S. and Layshock Inconsistent Third Circuit granted en banc

rehearing Oral Argument June 3, 2010 Decision issued June 13, 2011 The Bottom Line?

• Schools lost both cases

J.S. and Layshock Key legal points

• School can’t punish off-campus speech because it is vulgar, inappropriate or even criminal

• School can only punish off-campus speech that is substantially disruptive

What About the Staff?“We recognize that vulgar and offensive speech such as that employed in this case –even made in just – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights of JS.”• i.e. “We don’t care”

2013 Legal Update for Central City Staff

Karen HaaseHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase