Ponca pd day

Ponca Staff PD Day Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

Welcome to your afternoon of legal PD!

“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/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

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

504 Overview

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

When is school 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

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 activityâ€? has expanded Now 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 activityâ€? has expanded Now 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 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.”

Do Not Take Shortcuts!

Can We Just Provide Help without creating a plan?  No!!  Remember: disability education law is about PROCESS not RESULTS  Temple (TX) ISD, (OCR 1996)

Legal Issues with Education and Technology

Social Networking  Examples • Facebook • Twitter • Snapchat • Vine • Kik

Teacher Use  Causes for Concern • Drug/Alcohol Use • Sexual Inappropriateness • Inappropriate Communication with Students • Inappropriate Communication about Students • Selling School Property

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      

Facebook Privacy Tutorial?

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

The 411 on 504 Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase