Special Ed Update

Special Ed Update Harding & Shultz (402) 434-3000 H & S School Law

khaase@hslegalfirm.com @KarenHaase swilliams@hslegalfirm.com @SteveisEsteban btruhe@hslegalfirm.com @btruhe

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Facts      

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

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues 

Disciplinary Removal • Not punishing bad behavior

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“Clearly behavioral problems at school were caused by and had a direct and substantial relationship to autism. …

However it is equally clear that [the student] was not disciplined for those behaviors, and that there was not a change of placement as described by [section 16 of Rule 51].”

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues 

Disciplinary Removal • Not punishing bad behavior • No removal

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“ [The student] was not suspended from school, nor was expelled. Neither was there an in school suspension. While the amount of time spent in the general education classroom varied, and as the semester went on decreased, [the student] remained in the placement provided for by the IEP.”

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues 

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

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues  

Disciplinary Removal FAPE under Rowley • Hearing officer: Best and Better aren’t relevant • Not a comparative standard

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“ In support of a placement at Prairie Hill, the Petitioners argued that Prairie Hill was a better place for [the student] behaviorally, that [the student] made better progress educationally and that [the student] was better integrated with non-handicapped students.�

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“These arguments, however, overlook the very basic premise that the provision of a free appropriate education is not a comparative test and not based upon a standard of where a student can receive the best education.”

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues   

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

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues    

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

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

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues     

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

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)  Deference to H.O. and Schools • Due weight to administrative proceeding • Will not substitute “its own notions of sound educational policy” for school’s because “courts lace the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.”

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)  Burden on party seeking relief  School’s legal obligation: • Comply with IDEA procedures in developing IEP • IEP is reasonably calcuated to enable child to receive educational benefit

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)  Parents must have meaningful participation • Numerous communications and meetings • LPS revised IEP • IEP incorporated most of their expert’s plan

 MDT and FBA not required • Calm-down room is behavioral treatment, not punishment

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)  IEP reasonably calculated to provide “some educational benefit” • • • •

Present levels of education Measurable goals Services and accommodations listed Considered behavioral interventions and strategies

 LPS provided FAPE at LRE

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)  Constitutional Claims • Failed to raise • Would have lost anyway

 Judgment for LPS

M.M. v. LPS – Eighth Circuit (Dec. 28, 2012)  Rejected claim of no FAPE • IEP reasonably calculated to provide “some educational benefit” • Use of calming room approved • LPS “considered” outside evaluations, but not required to adopt recommendations • Methodology is school’s call • BIP contained detailed strategies • Use of calming room based on history with student

M.M. v. LPS – Eighth Circuit (Dec. 28, 2012)  Sheridan is LRE • Neighborhood school • BIP • Even though L.M. may have been mainstreamed for larger % of time at private school

M.M. v. LPS – Eighth Circuit (Dec. 28, 2012)  Procedural requirements satisfied Received notice Attended meetings Gave input “IDEA does not mandate that parental preferences guide educational decisions.”

• Refusal to adopt parental preferences does not equal predetermination • • • •

 District court decision affirmed

The Plan for Today  Recent 8th Circuit Decision  504 Overview  Health Care Plans  Extracurricular activities  Mental Health Issues  Transportation

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Facts      

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

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues 

Disciplinary Removal • Not punishing bad behavior

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“Clearly behavioral problems at school were caused by and had a direct and substantial relationship to autism. …

However it is equally clear that [the student] was not disciplined for those behaviors, and that there was not a change of placement as described by [section 16 of Rule 51].”

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues 

Disciplinary Removal • Not punishing bad behavior • No removal

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“ [The student] was not suspended from school, nor was expelled. Neither was there an in school suspension. While the amount of time spent in the general education classroom varied, and as the semester went on decreased, [the student] remained in the placement provided for by the IEP.”

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues 

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

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues  

Disciplinary Removal FAPE under Rowley • Hearing officer: Best and Better aren’t relevant • Not a comparative standard

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“ In support of a placement at Prairie Hill, the Petitioners argued that Prairie Hill was a better place for [the student] behaviorally, that [the student] made better progress educationally and that [the student] was better integrated with non-handicapped students.�

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“These arguments, however, overlook the very basic premise that the provision of a free appropriate education is not a comparative test and not based upon a standard of where a student can receive the best education.”

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues   

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

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues    

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

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

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues     

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

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)  Deference to H.O. and Schools • Due weight to administrative proceeding • Will not substitute “its own notions of sound educational policy” for school’s because “courts lace the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.”

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)  Burden on party seeking relief  School’s legal obligation: • Comply with IDEA procedures in developing IEP • IEP is reasonably calcuated to enable child to receive educational benefit

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)  Parents must have meaningful participation • Numerous communications and meetings • LPS revised IEP • IEP incorporated most of their expert’s plan

 MDT and FBA not required • Calm-down room is behavioral treatment, not punishment

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)  IEP reasonably calculated to provide “some educational benefit” • • • •

Present levels of education Measurable goals Services and accommodations listed Considered behavioral interventions and strategies

 LPS provided FAPE at LRE

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)  Constitutional Claims • Failed to raise • Would have lost anyway

 Judgment for LPS

M.M. v. LPS – Eighth Circuit (Dec. 28, 2012)  Rejected claim of no FAPE • IEP reasonably calculated to provide “some educational benefit” • Use of calming room approved • LPS “considered” outside evaluations, but not required to adopt recommendations • Methodology is school’s call • BIP contained detailed strategies • Use of calming room based on history with student

M.M. v. LPS – Eighth Circuit (Dec. 28, 2012)  Sheridan is LRE • Neighborhood school • BIP • Even though L.M. may have been mainstreamed for larger % of time at private school

M.M. v. LPS – Eighth Circuit (Dec. 28, 2012)  Procedural requirements satisfied Received notice Attended meetings Gave input “IDEA does not mandate that parental preferences guide educational decisions.”

• Refusal to adopt parental preferences does not equal predetermination • • • •

 District court decision affirmed

504 Overview

ADAAA  ADAAA – Americans with Disabilities Amendment Act (effective Jan. 1, 2009)  Significantly broadened the definition of disability  Diluted requirement of a “substantial impairment” of a major life activity  Heightened the responsibility and potential liability of employers  Applies to schools for Section 504 plans

ADAAA  ADAAA protects those persons who: • Have a disability • Have a record of a disability; and • Are “regarded as” having a disability

Health Plan ≠504 Plan

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!

Medical diagnosis issues  Diagnosis alone not sufficient  Must consider – along with info from other sources  May not require parents to provide medical records  If school determined medical assessment necessary, district must ensure child receives assessment

504 & Extracurriculars

504 & Extracurriculars • South Lyon (MI) Cmty Schs, 54 IDELR 204 (OCR 2009) • Marana (AZ) Unif Sch Dist, 53 IDELR 201 (2009) • Nashville (TN) Sch Dist, 53 IDELR 337 (OCR 2009)

Mental Health Issues  “Future of Children” Report 5/6/12 • 21% of children 9-17 have diagnosable mental disorder • Autism affects 1 in 6 sped students • Most common chronic impairments ‒ ‒ ‒ ‒ ‒ ‒

speech disorder LD ADHD Other mental, emotional or behav. disorder Other developmental disorder Asthma

Mental Health Issues  GAO Report 12/10/12 • Foster children more likely to be in need of mental health services ‒18% of foster children taking psychotropic meds ‒ 48% of foster children in group homes ‒ 6.2% of non-foster medicaid children ‒ 4.8% of privately insured

• 30% of fosters who were in need of mental health treatment didn’t get it

Mental Health Issues  LB 556 (McGill, Ashford, Dubas) • Require HHS and NDE to set up rules for providing telehealth services • Add required training for docs on behavioral health screens • Add behavioral health screens to physical exam required for school • Add 9th grade required physical exam

Transportation  SpEd verification ≠ automatic transportation • IEP team decides IF kid needs transportation • BOARD shall select “efficient and effective means of transportation” at “reasonable cost”

 If transportation is in IEP, LRE and discipline rules apply

Special Ed Update Harding & Shultz (402) 434-3000 H & S School Law

khaase@hslegalfirm.com @KarenHaase swilliams@hslegalfirm.com @SteveisEsteban btruhe@hslegalfirm.com @btruhe