SpEd Update for CNSSP Superintendents Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
“hot topics” in SpEd Law Child find/referral Prescription pad verification 504/health care plans Discipline Transfers Extracurriculars
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”
ADA and 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
Primary Differences Definition of disability is unique to each statute No funding under 504 504 encompasses • Students • Employees • Patrons
Similarities School districts must evaluate and determine eligibility Both require • • • •
transportation, accommodation/ modification related services
LRE requirement
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 Letter to Mentink, 19 IDELR 1127 (OCR 1993)
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.” Appendix A, p. 419. Phrase is to be defined by local education agency Letter to McKethan, 23 IDELR 504 (OCR 1994).
What constitutes a “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.” [House Report No. 101-485(II) p. 52.].
504/Health Plans Tyler (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 Plans Opelika city (AL) Sch. Dist., (OCR 2010) • health care plan for diabetic students • Required to evaluate under 504 Jan. 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!
Discipline • SpEd students may be disciplined • First 10 days “free” • After 10 days, must make “manifestation determination” – MDT team makes decision – Was misconduct “caused by, or had a direct and substantial relationship to, the student’s disability”
Discipline
(con’t)
• If misconduct IS manifestation – no discipline – but IEP may be changed to address
• If misconduct IS NOT manifestation – may be punished like regular ed. – but “interim alternative educational setting”
• Drugs, weapons, serious injury
Discipline Flow Chart Student’s misbehavior
Does student No have an IEP?
Does incident trigger need for a referral?
No
Yes Yes
Use reg. discipline procedures
No
Make referral and ask
Behavior No >10 days >10 days No Intervention cumulatively? consecutively? Plan? Yes
Yes
Yes
Plan functional Yes behavior assessment
Pattern of exclusion?
No No and Yes
Yes
and ask
Is behavior a manifestation? Yes
Use IEP procedures
Was FAPE provided? No
Transferring districts • If before eval: – Old district must work with new – New must complete eval. w/i 60 days
• If after eval: – Old district must transfer files – New district must provide “comparable services” until new IEP – May adopt old IEP or create new
Extracurricular Activities • IEP must include ‾ Statement of services and aids ‾ Program modifications ‾ With specific reference to participation in extracurricular and nonacademic activities ‾ NOT required to be tied to FAPE
IDEA • IEP team must ‾ Consider supplementary aids, support, modifications ‾ Afford children with disabilities an equal opportunity to participate
IDEA • IEP team must ‾ “[Ensure] that each child with a disability participates with nondisabled children . . . to the maximum extent appropriate to the needs of the child.”
Athletics
Maryville City (TN) • Baseball tryouts ‾ Student has Tourette's ‾ Coach evaluated on speed, balance, coordination, catching, hitting, etc. ‾ Two openings on team, student finished 8/14
Maryville City (TN) • Parents argued that coach knew of behavioral issues and discriminated against student • OCR ‾ Coach used clear metrics ‾ Student had “equal opportunity” ‾ No evidence of discrimination other than allegations
McDowell Schools (WV) • Cheerleading tryouts ‾ Student had growth hormone deficiency ‾ 24 tried out for 12 spots ‾ 5 impartial judges and an extensive rubric ‾ Student scored lowest of 24
McDowell Schools (WV) • OCR found no discrimination ‾ Students must be given reasonable accommodations, but must meet performance standards ‾ Grading was tied to performance standards (i.e. essential functions)
Northshore (WA) • • • •
Cheerleader fell below 2.8 GPA School policy deemed her ineligible Parents claimed discrimination OCR focused on 2 issues ‾ Was GPA policy a necessary function for cheerleading? ‾ Would modifying the policy “fundamentally alter” program?
Northshore (WA) OCR: • Not necessity: 2.8 Minimum was arbitrary, higher than athletic requirement • Fund. Alter: 2 other district H.S.’s considered exceptions, and student was in regular ed. classroom; disab. affected grades
Field Trips
St. John’s County (FL) • Student with learning disability excluded from field trip ‾ Student had been behaving badly and disobeying ‾ Parents argued discrimination ‾ OCR: school kept other, nonSPED kids out on behavior grounds; no discrimination
SpEd Update for CNSSP Superintendents Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase