Sped smorgasbord updated

A Special Education Smorgasbord Karen Haase Harding & Shultz (402) 434-3000

khaase@hslegalfirm.com H & S School Law @KarenHaase

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Duration of Related Services

Letter to Matthews 55 IDELR 142 (2010)

 School attorney wrote OSEP  Federal IDEA regulations do not require that an IEP include the exact number of minutes a district must devote to each session, as long as the document outlines the overall amount of time to be devoted to that service

Letter to Matthews 55 IDELR 142 (2010)

 School proposed IEP: “The student will receive 600 minutes per semester of counseling in 16 weekly sessions. Session times may vary per session according to the Student's responsiveness, session activity, and individual needs.”  OSEP said this met federal regs.

Letter to Matthews 55 IDELR 142 (2010)

 “The LEA would be in compliance with its obligation under 34 CFR § 300.320(a)(4) and (7) to reflect frequency, location and duration of services through such a statement in a student's IEP”

Letter to Matthews 55 IDELR 142 (2010)

 Texas Dep’t of Ed rule required exact number of minutes per session  OSEP said Texas could require this in its state rule

Poll: Questions or comments on duration of ser...

Poll: What topic would you like to discuss nex...

Behavior Intervention Plans

Behavior Intervention Plans  “In the case of a child whose behavior impedes his or her learning or that of others, the IEP team shall consider the use of positive behavioral interventions, and supports and other strategies to address that behavior.”  That is not a BIP

Behavior Intervention Plans  BIP required if removing child from his/her placement for discipline: • 016.02D2 Receive, as appropriate, a functional behavior assessment, behavior intervention services and modifications, that are designed to address the behavior violation so that it does not recur.

Behavior Intervention Plans  BIP required if removing child from his/her placement for discipline: • 016.02D2 Receive, as appropriate, a functional behavior assessment, behavior intervention services and modifications, that are designed to address the behavior violation so that it does not recur.

 Doesn’t have to be a free-standing document (but it can be)

Poll: Does your district deal with disruptive ...

Pennsbury Sch. Dist v. C.E., (PA 2012)

 Student with SLD, and severe attentional difficulties  2d grade re-eval: problems with inattention and distractibility seriously impacted his ability to learn.  3d grade IEP indicated that the student's behaviors did not impede his education.  Student struggled behaviorally and academically

Pennsbury Sch. Dist v. C.E., (PA 2012)

 Mom placed in private school, sued for tuition reimbursement  School: No BIP, but interventions in place adequate to meet the student's behavioral needs.

• preferential seating • repetition of instructions • pre-teaching

Pennsbury Sch. Dist v. C.E., (PA 2012)

 Court: “Although these interventions and supports were already being used, the school district's supervisor of elementary special education admitted that, with respect to writing, [the student] ‘was not making meaningful progress,’”  Awarded tuition reimbursement and compensatory education

Overton Pub Sch Dist (NE 2011)

 Parent concerned that daughter inattentive  Didn’t verify; determined inattention was not adversely affecting her academics and, thus, she was ineligible for special education and related services under the IDEA at that time

Overton Pub Sch Dist (NE 2011)

 Student verified OHI  Teachers provided • flip sheets to assist with organization • communication notebook • sensory breaks by way of the hallway separations • Shortened assignments • Preferential seating • Sticker chart • Para assistance with planner

Overton Pub Sch Dist (NE 2011)

 Parent filed complaint alleging failure to provide BIP  SpEd Teacher believed implementing the IEP functioned as a behavior intervention plan, • Classroom teacher working in inattention • Sped Teacher was working on social interactions with her peers and teachers

Overton Pub Sch Dist (NE 2011)

 OCR: • There is no requirement that District provide BIP • District's actions in addressing behaviors were taken as part of the IEP process • decision to provide accommodations rather than BIP an educational decision • Student not denied FAPE by failure to provide BIP

Council Rock Sch. Dist v. M.W (PA 2012)

 Student had 22Q Deletion syndrome • characterized by multiple brain and physical atypicalities.

• Caused behavioral issues

 Began demonstrating new behaviors • Stealing to attract attention to himself • Hostility toward peers • Inappropriate interest in female student

 Parents privately placed and sued for reimbursement

Council Rock Sch. Dist v. M.W (PA 2012)

 Court: • teachers were aware of and concerned about the behavior when it surfaced • One teacher described the behavior as “worrisome” and urged the parents to seek psychiatric help for the student.

 “Despite this, the IEP . . . did not address these issues and there was no behavior management plan in place . . . nor was one recommended by his teachers”

Council Rock Sch. Dist v. M.W (PA 2012)

 Failure to address behavioral needs resulted in denial of FAPE  Tuition reimbursement, compensatory education, attorney fees awarded

L.F. v. Houston Ind. Sch. Dist.

(5th Cir. (TX) 2012)

 5th grade student with emotional disturbance  Placed student in self-contained behavior classroom.  Evidence showed • IEP team considered several alternative placements before recommending the behavior classroom • Team conducted FBA • Team developed a BIP based on FBA

Poll: Questions or comments on BIPs?

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Disabled Students & Extracurriculars

Laws in Effect • • • •

IDEA Section 504 ADA Regulations

IDEA • 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.”

Section 504 • Students with disabilities shall receive “equal opportunity” to participate in nonacademic and extracurricular activities • May include: counseling, athletics, transportation, health services, clubs, and employment services

ADA • May not discriminate on the basis of disability • Must provide reasonable accommodations • Do not need to alter qualification requirements or essential functions of the activities

OCR’s "Dear Colleague" Letter (1/25/13)

 legal obligation to comply with Section 504 . . . supersedes any rule of the activities association  would violate a school district's obligations under Section 504 to belong to an organization that discriminates on the basis of disability  What about wheelchair track cases?

OCR’s "Dear Colleague" Letter (1/25/13)

 May not rely on generalizations about what students with a type of disability are capable of-one student with a certain type of disability may not be able to play a certain type of sport, but another student with the same disability may be able to play that sport

OCR’s "Dear Colleague" Letter (1/25/13)

 Because the schools have always had to include SpEd students, “providing these aids or services after school to a student with a disability not eligible under the IDEA would rarely, if ever, be a fundamental alteration of its education program.”  What about fundamental alteration cases?

OCR’s "Dear Colleague" Letter (1/25/13)

 Students who cannot participate in the existing extracurricular athletics program should still have an equal opportunity to receive the benefits of extracurricular athletics  School district should create additional opportunities for those students with disabilities

OCR’s "Dear Colleague" Letter (1/25/13)

 “In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district's other athletic activities."

Providing Notice • OCR has found that districts cannot place burden on student to inquire about activities • District must consider the range of impairments when providing notice . . .

Caselaw

Polk County Schools (Fla. 2009)

• 9th grade students with Fragile X syndrome, autism and fetal alcohol syndrome • Parents complained that the district discriminated under special ed. laws for failure to notice of extracurricular activities

Polk County Schools (Fla. 2009)

• District provided notice by: ‾ Marquee outside building ‾ Website ‾ Scroller system on classroom TV ‾ Automated phone system ‾ Notices sent home by teachers

Polk County Schools (Fla. 2009)

• OCR: ‾ Students had access but could not understand information on their own ‾ Parents must be notified on a “consistent basis”

Athletics

Maryville City (TN 1996)

 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 1996)

 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

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 5th-grader autism & Tourette syndrome  Parents requested supplementary aids and services for student to participate in extracurricular/nonacademic activities: • adult supervision after the activity until Student could be picked up • access to cell phone during the activity • ability to miss some games/practices to manage health concerns/stress

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 Parents alleged that district refused to discuss supplementary aids/services at IEP meeting and that district offered 504 meeting instead (!)  District alleged that Parents asked for 504 meeting  Resulting 504 plan did not include requested supplementary aids/services  Parents filed a complaint

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 ED held that district violated IDEA by failing to convene an IEP meeting to discuss supplementary aids/services  App. Ct upheld ED’s decision in part, but held that IEP need only include supplementary aids/services necessary for participation in activities required for the child’s education

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 Minnesota Supreme Court reversed in part, holding that an IEP’s contents are not restricted to extracurricular/nonacademic activities required to educate a student

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 Minn. Sup. Court reasoned: “Requiring disabled students to prove an educational benefit, when nondisabled students need not, does not afford disabled students an equal opportunity to participate in extracurricular and nonacademic activities. Thus, the court of appeals’ holding violates the ‘equal opportunity’ for participation in extracurricular and nonacademic activities required by the plain language of section 300.107.”

S.S. v. Witesboro Cent. Sch. Dist.

(NY 2012)

 Student had panic attacks  Participated in swim team  Parents requested that she be allowed to leave the pool during practice and competitions

S.S. v. Witesboro Cent. Sch. Dist.

(NY 2012)

 Court: There is no reasonable accommodation that a swim team coach could make for an athlete who is suddenly and sporadically afraid of the water and thus has to exit the pool during practices and competitions

S.S. v. Witesboro Cent. Sch. Dist.

(NY 2012)

 Ability to enter and stay in the pool is an essential requirement of being a swim team member  Allowing the student to do otherwise would fundamentally alter the nature of the swim team program

McDowell Schools (WV 2010)

• 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 2010)

• 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 Sch. Dist.

(WA 2006)

• • • •

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 Sch. Dist.

(WA 2006)

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

Maple Lake Sch. Dist.

(Minn. 2007)

 High school student with cerebral palsy, ADHD, ODD, other disabilities  Student’s IEP included transition goal of participating in extracurricular and community activities

Maple Lake Sch. Dist.

(Minn. 2007)

 IEP team offered to introduce student to basketball coach and invited him to help out as team manager  Coach offered to have student assist at home games by filling up water bottles and cups for players  Student was provided with team T-shirt and included in team picture  His name was added to game programs

Maple Lake Sch. Dist.

(Minn. 2007)

 Student began to “blossom” and positive peer interactions increased  However, student was not allowed to travel on the team bus to away games  Per District policy, only competing athletes were allowed to ride bus to away games  Policy was consistently enforced

Maple Lake Sch. Dist.

(Minn. 2007)

 ALJ found that District took appropriate steps to provide extracurricular services and activities to student as necessary to afford him an equal opportunity for participation in those services and activities  District not required to transport to away games because was receiving benefit from home games

Poll: Questions or comments on sports and extr...

Poll: What topic would you like to discuss nex...

Residency

The Joy of 79-215      

Residents Homeless Contracted students Option Students State Wards Non-wards residentially placed

Residents  Students are residents of the district in which they reside  Students are residents of any district where one of their biological parents reside 79-215(1) and (2)

Homeless – Federal Def.  lack a fixed, regular, and adequate nighttime residence  Includes: • • • • • • •

Living with family or in motel Abandoned awaiting foster care Living in cars, parks, etc Migratory children Abused, homeless, not yet in system Aged out of foster and homeless

McKinney-Vento Homeless Ass. Act 42 U.S.C. §11431 et. seq.

 Rights of Homeless students • Right to Remain in School of Origin • Transportation (paid for by district of origin) • Right to Immediate Enrollment (w/o Records) • Liaisons

Kid who moves during year “A school board may allow a student whose residency in the district ceases during a school year to continue attending school in such district for the remainder of that school year�

79-215(4)

Kids contracted to your district  By another district  By parents of children who reside in a neighboring state 79-215(5) and (8)

Option Students  Foster parents can’t option  Parents “eligible” for mileage if qualify for free lunch  Option students placed out of district 79-215(5) and (8) 79-241

State Wards NOT in Foster  Remains resident  State pays if: • Placed in different district • Placed in institution with SpEd program  Resident dist. still obligated for IEP  Resident dist. lists on NSSRS 79-215(9)

State Wards who ARE Foster  Remains resident of home dist.  NOT resident of foster home district  Should continue attending original school unless HHS determines otherwise  DO NOT enroll foster kids as a matter of course 79-215(9)

Fostering Connections to Success and Increasing Adoptions Act of 2008  Amend Title IV (Parts B and E) of the Social Security Act  Provisions promoting education stability and enrollment for youth in foster care  Required states to change child welfare laws

Presumption: Same School  The child’s case plan must include: “an assurance that the state has coordinated with appropriate local education agencies … to ensure that the child remains enrolled in the school in which the child was enrolled at the time of placement” 42 U.S.C.A. 675(1)(G)(ii)

Presumption: Same School  If remaining in the same school is not in the best interest of the child, the child’s case plan must include

“assurances by the State agency and the local education agencies to provide immediate and appropriate enrollment in a new school, with all of the education records of the child provided to the school.”

42 U.S.C.A. 675(1)(G)(ii).

Comparing McKinney-Vento to Fostering Connections  McKinney-Vento Act (Education Law: NCLB) • Best Interest Decision made by SCHOOL

 Fostering Connections (Child Welfare: Title IV-E) • Best Interest Decision made by HHS (CHILD WELFARE AGENCY)

Foster Care Law Changes  Uninterrupted Scholars Act (fed) • Allows schools to release ed records without parental consent to child welfare agencies • Schools can disclose records under court order without notifying parents

 LB 269 • Reimbursement rates for foster parents • Change case plans, manager training,

Foster Care Law Changes  LB 216 • Young Adult Voluntary Services • IEP Transition Plans

 LB 530 • Changes governance of Children and Family Services

Non Wards Residentially Placed  If facility doesn’t have ed. program • resident dist. “shall contract” with facility dist.

• IEP, etc. transfers to facility dist.

• Unless agreement otherwise • If wrong district pays, correct district has to reimburse 110% • NDE appeal process 79-215(10)(a)

Non Wards Residentially Placed  If facility does have ed. program • NDE pays • Resident dist. still responsible for IEP, NSSRS, etc.

79-215(10)(c)

Kid in Detention Facility  State Pays  Statute silent re “residency”  Assume resident dist. still responsible for IEP, NSSRS, etc.

79-215(11)

Poll: Questions or comments on residency?

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

Poll: Questions or comments on mental health i...

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

Harnesses and Other Restraints

Pasadena Unif. Sch. Dist.

(Cal. 2010)

 School used “Posey Belt” restraint on bus and elsewhere  OCR found a violation • No staff training • Belt not designed for this • No behavior expert OK’d • Keeping student on leash

Ferndale Pub. Sch. (MI 2008)

 School used harness during transportation • Student had history of disruptive behavior on bus • Harness did not restrict movement more than seatbelt

 Mom sued; fear of student trapped in accident

Ferndale Pub. Sch. (MI 2008)

 HO: not unreasonable  Danger of being trapped remote; danger of behavior without harness likely  1:1 para not necessary

Disciplinary Removals from Bus  If transportation is in IEP, a change of placement, need to do manifestation  If NOT in IEP, NOT change in placement, no MDT  BUT consider need for BIP based on behaviors

Poll: Questions or comments on transportation?

Poll: What topic would you like to discuss nex...

Poll: Questions? Comments?

A Special Education Smorgasbord Karen Haase Harding & Shultz (402) 434-3000

khaase@hslegalfirm.com H & S School Law @KarenHaase