Trending Topics in #SpEd Law Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase.

Trending Topics in #SpEd Law

Karen HaaseHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase

Trending Topics Child Find Predetermination Section 504 and Health Care Plans Truancy Residency Prescription Pad IEPs Describing Services Recording Meetings Bullying/Harassment

#Child Find

Child Find meets RTI Lots of new (hard) questions Federal Rule allows parents to refer

at any time School can refuse

MUST issue PWN, notice of rights, etc. Better concession to RTI is extension

upon agreement BUT MUST DOCUMENT

Cases re Child Find/RTI 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

Cases re Child Find/RTI Scott v. Dist. of Colombia (2006) – Mom contacts school about ADHD

diagnosis– Agrees to “alternative strategies” – 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 instead– Parent agrees, later sues for failure to

identify– Ct: school refused testing and did not

provide notice of refusal or notice of rights

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”

The Bottom Line 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

#Pre-determination

Pre-determination

Deal v. Hamilton Co. Bd. Of Ed., (6th Cir. 2004)

Lancaster Co. Sch. Dist. 001, (Nebraska 2011)

Pre-determinationW.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

The Bottom Line Preparation OK Educators can have a tentative

plan Show evidence of openness to

parental input 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; congress amended to include- Concentrating- Reading- Learning

504/Health PlansTyler (Tx) Indep. Sch. Dist., (OCR

2010) • health care plan for diabetic

students• Required to evaluate under 504

Dracut (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 504

Jan. 19 Guidance Document

Health Plan Action StepsList of all kids with health planList of all kids on medication and

what meds areList of all kids identified by parent

as having health conditionTrain 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 report with the county attorney of the county in which such person resides. The county attorney may file a complaint against a person violating section 79-201 . . . or may file a petition under the Nebraska Juvenile Code . . .

Special Ed. and Truancy No health exception – 504 not a

free pass Consider changing student’s

placement Communicate with your

attendance officer

LB 933 Three choices for 20 day report• The absences are due to documented

illness • School requests additional time to

work with family• Hang ‘em high

If legal action necessary school chooses location of meeting

LB 933

#Residency

#PrescriptionPadIEPs

Prescription pad IEPMarshall Sch. Dist. v. C.D. (7th

Cir. 2010) • Student had genetic condition• Ct.: physician cannot just

diagnose an IEP

Prescription pad IEPRiverside 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 ‘scripOSEP : 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”

#DescribingServices

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• Necessary modifications for extracurriculars

#RecordingMeetings

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

#FERPA

FERPAL.S. v. Mount Olive Board of Ed.

(D.N.J. 2011) • Catcher in the Rye Assignment• Teacher and school psych.

liable – other school defendants dismissed

Trending Topics in SpEd

Karen HaaseHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase