CNSSP Staff

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