five will get you ten

Five will Get you Ten: Nebraska Special Education Decisions Since 2005 Karen Haase Harding H di & Shultz Sh l ((402)) 434-3000 khaase@hslegalfirm.com

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) F t Facts ►Student

aggressive autistic third-graders ►Parents had elected private placement for substantial portions of education ►Use of baskethold an issue ►Sent to Kennedy y Krieger g Institute for 5 months ►When returned, could not agree to plan ►Parents privately placed and sued

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) L l Issues Legal I ►Disciplinary

Removal • Not punishing bad behavior

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) “Clearly “Cl l b behavioral h i l problems bl att school h l were caused by and had a direct and substantial b t ti l relationship l ti hi to t autism. ti …

However it is equally clear that [the student] t d t] was nott di disciplined i li d for f those th behaviors, and that there was not a change h off placement l t as d described ib d b by [section 16 of Rule 51].”

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) L l Issues Legal I ►Disciplinary

Removal • Not punishing bad behavior • No removal

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) “ [The [Th student] t d t] was nott suspended d d ffrom school, nor was expelled. Neither was th there an iin school h l suspension. i While Whil the amount of time spent in the general education d ti classroom l varied, i d and d as the th semester went on decreased, [the student] t d t] remained i d iin th the placement l t provided for by the IEP.�

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) L l Issues Legal I ►Disciplinary

Removal • Not punishing bad behavior • No removal • Since not discipline, no requirement for manifestation

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) L l Issues Legal I ►Disciplinary

Removal ►FAPE under Rowley • Hearingg officer: Best and Better aren’t relevant • Not a comparative p standard

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) “ In I supportt off a placement l t att P Prairie i i Hill, the Petitioners argued that Prairie Hill was a better b tt place l for f [the [th student] t d t] behaviorally, that [the student] made b tt progress educationally better d ti ll and d th thatt [the student] was better integrated with non-handicapped h di d students.� t d t �

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) “These arguments, “Th t h however, overlook l k the very basic premise that the provision i i off a free f appropriate i t education is not a comparative test and nott b based d upon a standard t d d off where h a student can receive the best education.”

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) L l Issues Legal I ►Disciplinary

Removal ►FAPE under Rowley ►LRE • Parents argued private actually more p mainstreamed with peers • H.O.: first preference is for home district, even if more mainstreamed at distant placement

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) L l Issues Legal I ►Disciplinary

Removal ►FAPE under Rowley ►LRE ►Predetermination • School refused to implement experts’ experts recommendations re baskethold, etc.

• H.O.: H O : good faith in accepting some, some reasonably rejecting others

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010) L l Issues Legal I ►Disciplinary

Removal ►FAPE under Rowley ►LRE ►Predetermination ►Damages • Parents asked for $430,184 plus tuition • H.O.: H O treated t t d like lik IEE

Sidney Public Schools, 110 LRP 19430 (Jan. 23, 2010) F t Facts ►Student

came to district verified as SLD, testing i confirmed fi ►Behavior increasingly disruptive, noncompliant and bizarre ►Family reluctant to share medical and other information ►Student ultimately placed in a homebound placement pending additional medical information from family.

Sidney Public Schools, 110 LRP 19430 (Jan. 23, 2010) L l Issues Legal I ►Classification

• District verified SLD • Mom: should have been OHI: ADD • H.O.: verification doesn’t matter so long p as FAPE provided • Richardson v. D.C. Sch. Dist., 541 F. Supp.

2d 346 (D.D.C. 2008)

Sidney Public Schools, 110 LRP 19430 (Jan. 23, 2010) L l Issues Legal I ►Classification ►Failure

to Accommodate Mom’s Handicap • Provide SpEd p documents in accessible format • Provide homework in accessible format • H.O.: district accommodated with SpEd documents, not necessary for homework

Sidney Public Schools, 110 LRP 19430 (Jan. 23, 2010) L l Issues Legal I ►Classification ►Failure

to Accommodate Mom’s Handicap

►LRE

• School provided clear continuum • Lack of student success • Disruption of peers • H.O.: H O district di t i t complied li d with ith regs

Sidney Public Schools, 110 LRP 19430 (Jan. 23, 2010) L l Issues Legal I ►Classification ►Failure

to Accommodate Mom’s Handicap

►LRE ►Unilateral

change to BIP • Mom: followed doc doc’ss advice without consulting mom • H.O.: H O : team agreed to follow doc • H.O.: any violation de minimus

Lexington Sidney Public Schools, Case No. 08-04 SE (Nov. 16, 2009) F t Facts ►Student

verified as OHI due to Tourette’s S Syndrome, left f district i i and later returned ►Poor behavior, non-compliant, contentious relationship with family ►For 2008-09 school year, team drafted BIP, mom objected refused to participate ►Student discovered skipping class, sent to ISS, mom removed from district and sued

Lexington Sidney Public Schools, Case No. 08-04 SE (Nov. 16, 2009) L l Issues Legal I ►Predetermination

• Mom: BIP and plan drafted before meeting therefore predetermination • H.O.: nothing wring with having documents drafted • H.O.: “good idea to provide parent a copy” but not legally required • H.O.: Opportunity for input is key

Lexington Sidney Public Schools, Case No. 08-04 SE (Nov. 16, 2009) L l Issues Legal I ►Predetermination ►FAPE

Lexington Sidney Public Schools, Case No. 08-04 SE (Nov. 16, 2009) L l Issues Legal I ►Predetermination ►FAPE ►ISS

for skipping pp g class • Disciplinary limitations not implicated y because less than 11 days • Doctor’s note

Twin River School District, 109 LRP 73701 (Aug. 4, 2009) F t Facts ►Student

verified as OHI:ADD. ►Before 12th grade IEP, district received prescription pad diagnosis of Asperger's Disorder ►Highly successful student ►Student commenced but did not graduate ►Ill Ill-defined defined “social social skills skills” component only remaining element of IEP

Twin River School District, 109 LRP 73701 (Aug. 4, 2009) L l Issues Legal I ►Evaluation

and Re-evaluation ►IEP and FAPE • Parents: no independent p living g ggoals,, no daily living skills, no transition • H.O.: onlyy required q when necessary y for student to receive FAPE; not here

Twin River School District, 109 LRP 73701 (Aug. 4, 2009) L l Issues Legal I ►Evaluation

and Re-evaluation ►IEP and FAPE ►Predetermination ►H.O.: “The evidence shows that [student] is not a child with a disabilityy as defined byy IDEA, its implementing regulations, the Nebraska Special Education Act, and NDE Rule 51 and therefore is not entitled to further services under IDEA.

South Sarpy School Dist. No. 46, 109 LRP 73699 (Jan. 29, 2009) F t Facts ►Student

verified as DD, then SLD ►Parents dissatisfied with progress ►Obtain Munroe-Meyer y of Asperger's p g ►No evidence of autism at school ►Parents withdraw student and place privately

South Sarpy School Dist. No. 46, 109 LRP 73699 (Jan. 29, 2009) L l Issues Legal I ►To

recover tuition, parents must prove: • School failed to provide FAPE • Private p placement appropriate pp p • Parents complied with notice q requirements

South Sarpy School Dist. No. 46, 109 LRP 73699 (Jan. 29, 2009) L l Issues Legal I ►FAPE

• Parents: social promotion, no actual progression, poor social skills • H.O.: belied by test scores and testimony • No evidence of autism at school,, but district still promptly integrated some but not all of Munroe-Meyer’s suggestions

Elmwood Murdock Public Schools, 109 LRP 73697 (Oct. 24, 2007) F t Facts ►Student

verified as BD brought a knife to

school ►Team determined NOT a manifestation, expelled ►Parents sued

Elmwood Murdock Public Schools, 109 LRP 73697 (Oct. 24, 2007) L l Issues Legal I ►Participants

in Manifestation: • IEP team members all there, but not as many regular ed teachers as parents wanted to attend • H.O.: rule says “relevant” team members

Elmwood Murdock Public Schools, 109 LRP 73697 (Oct. 24, 2007) L l Issues Legal I ►Participants

in Manifestation ►Manifestation • BD caused him to “piddle” p with things. g Also caused him to forget he even had knife in his pocket when he brought it to school.

Elmwood Murdock Public Schools, 109 LRP 73697 (Oct. 24, 2007) L l Issues Legal I “Even if [the student] somehow forgot that [he] had the knife if in i [his] i possession i when [he] went to school that day, [he] did not forget that [he] had it when [he] was fixing the handle, did not forget that [he] had it when [he] was lying to Mr Mr. Allemang about having the knife, and did not forget that [he] had it when he gave it to another student to conceal it from Mr. Allemang.�

Elmwood Murdock Public Schools, 109 LRP 73697 (Oct. 24, 2007) L l Issues Legal I ►Participants

in Manifestation ►Manifestation ► Predetermination • H.O.: “Principal’s recollection oddly g about draft documents. vague” • H.O.: nothing wrong with having a draft

Elmwood Murdock Public Schools, 109 LRP 73697 (Oct. 24, 2007) L l Issues Legal I ►Participants

in Manifestation ►Manifestation ► Predetermination ►Removal for more than 45 days • That That’ss lawful if (1) misbehavior is not a manifestation and (2) school provides an interim alternative educational setting

Elmwood Murdock Public Schools, 109 LRP 73697 (Oct. 24, 2007) L l Issues Legal I “Even though parents and guardians play a significant i ifi role in i the IEP process, that role does not allow them to control the process or have veto power over the IEP . . . . The Petitioners were entitled to attend the Manifestation Determination and IEP meetings, give their input and have it considered by the Respondent. They were not, however, entitled to control the outcome of either.�

Omaha Public Schools, 107 LRP 62538 (Sept. 28, 2007) F t Facts ►Student

with Down Syndrome, placed in multiple i categorical i self-contained f i classroom ►When district remodeled buildings, moved entire classroom to another school ►Parents sued claiming change in placement

Omaha Public Schools, 107 LRP 62538 (Sept. 28, 2007) L l Issues Legal I ►Is

this a change in placement?

• Parents: duh!

• H.O.: p placement is a p program, g , not a geographic location

Omaha Public Schools, 107 LRP 62538 (Sept. 28, 2007) L l Issues Legal I A change in placement only occurs when the change “will “ i result in i a fundamentally f substantive change in or elimination of a basic element of [the student]’s educational program or substantially interfere with [the student]’ss ability to learn student] learn.”

Ogallala Public School, 106 LRP 913 (Dec. 15, 2005) F t Facts ►Student

with Down Syndrome transitioning f from elementary to middle i school ►Parents disagree with program and methods ►Some sexualized misbehavior ►Limits placed on volume of communication ►Refuse to sign IEP, ultimately file suit

Ogallala Public School, 106 LRP 913 (Dec. 15, 2005) L l Issues Legal I ►Discipline

• Team determined misbehavior WAS a manifestation, then placed student in intensive social skills program • Parents: served as a removal from his educational program, punitive • H.O.: team determined it was an educational need

Ogallala Public School, 106 LRP 913 (Dec. 15, 2005) L l Issues Legal I ►Discipline ►Predetermination

• Parents: theyy never did what we told them to.

• H.O.: “While the IDEA emphasized p the importance of parental involvement in a child’s educational process, the wishes of the parents are not controlling.”

Ogallala Public School, 106 LRP 913 (Dec. 15, 2005) L l Issues Legal I ►Discipline ►Predetermination ►Communication

Ban • Parents: prevented meaningful input • H.O.: H O : school entitled to maintain control over time, manner and method of communication to employees

Ogallala Public School, 106 LRP 913 (Dec. 15, 2005) L l Issues Legal I ►Discipline ►Predetermination ►Communication

Ban

►Methodology

• H.O.: H O : school gets to decide

Ogallala Public School, 106 LRP 913 (Dec. 15, 2005) L l Issues Legal I ►Discipline ►Predetermination ►Communication

Ban

►Methodology ►IEE

• H.O.: district’s requirement that evaluators be approved by NDE acceptable

Ogallala Public School, 106 LRP 913 (Dec. 15, 2005) L l Issues Legal I A change in placement only occurs when the change “will “ i result in i a fundamentally f substantive change in or elimination of a basic element of [the student]’s educational program or substantially interfere with [the student]’ss ability to learn student] learn.”

Elkhorn Public Schools, 106 LRP 910 (Nov. 30, 2005) F t Facts ►Student

with autism, family moved to Elkhorn from f California C if i ►Parents want district to adopt California IEP and implement private experts’ directives ►School declined, used some suggestions but created own plan ►Refuse to sign any of the IEPs district uses (3 years), ultimately file suit

Elkhorn Public Schools, 106 LRP 910 (Nov. 30, 2005) L l Issues Legal I ►Parent

Input “The Petitioners have not agreed with any IEP prepared by Respondent for [student].

They also assert that they have been shut out of the IEP process. Apparently, this is based on [the parent]’s belief that the IEP should be a ‘consensus,’ which [she] takes to mean that it should not include anything that [she] does not want in the IEP.”

Elkhorn Public Schools, 106 LRP 910 (Nov. 30, 2005) L l Issues Legal I ►Parent

Input

►ESY

• Parents cited court cases rejecting j g regression and recoupment as standards for ESY eligibility • H.O.: That’s not Nebraska

Bennington Public Schools, 106 LRP 917 (Nov. 14, 2005) F t Facts ►Student

with multiple, profound disabilities ►IEP team (including parents) agree to outof-district placement ►Student placed at Brook Valley; family changes mind and moves student to private religious school ►Parents want district to pay private tuition

Bennington Public Schools, 106 LRP 917 (Nov. 14, 2005) L l Issues Legal I ►To

recover tuition, parents must prove: • School failed to provide FAPE • Private p placement appropriate pp p • Parents complied with notice q requirements

Bennington Public Schools, 106 LRP 917 (Nov. 14, 2005) L l Issues Legal I ►Did

Brook Valley provided FAPE ►Was Madonna appropriate • No OT,, PT,, vision,, assistive technology, gy, sensory diet, work program • Expected p Bennington g to p provide these supplementary services • The fact that Madonna was geographically closer didn’t make it LRE

Bennington Public Schools, 106 LRP 917 (Nov. 14, 2005) L l Issues Legal I ►Brook

Valley provided FAPE ►Madonna not appropriate ►Predetermination • Visiting with parents prior to out-ofplacement by y IEP team district p appropriate

Bennington Public Schools, 106 LRP 917 (Nov. 14, 2005) L l Issues Legal I ►Brook

Valley provided FAPE ►Madonna not appropriate ►Predetermination • Visiting with parents prior to out-ofplacement by y IEP team district p appropriate

Lessons from The Big Ten ►Outside O t id

experts t usually ll aren’t ’t ►Parent input is not a veto ►Accommodating inappropriate parent demands will hurt you (and the kid) in the long run ►Classification doesn’t matter: services do ►Predetermination doesn’t mean lack of planning ►DO consider and adopt some parent suggestions/ requests

Five will Get you Ten: Nebraska Special Education Decisions Since 2005 Karen Haase Harding H di & Shultz Sh l ((402)) 434-3000 khaase@hslegalfirm.com