1. Trending Topics in #SpEd Law Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

2. Trending Topics Child Find Predetermination Section 504 and Health Care Plans Truancy Residency Prescription Pad IEPs Describing Services Recording Meetings Bullying/Harassment

3. #Child Find

4. Child Find meets RTI Lots of new (hard) questions Federal Rule allows parents to refer at any time School can refuse MUST issue PWN, notice of rights, etc. Better concession to RTI is extension upon agreement BUT MUST DOCUMENT

5. Cases re Child Find/RTI Austin Indep. Sch. Dist. (Tex. 2010) –3 rd grader underachieving –Neurosurgeon called principal –School initiated RTI – told grandma no verification until completed RTI –Reading consultants e-mail –Student verified; grandma sued –Ct. denied relief because student responded well to interventions

6. Cases re Child Find/RTI Scott v. Dist. of Colombia (2006) –Mom contacts school about ADHD diagnosis –Agrees to alternative strategies –Sues for failure to identify –Ct: agreeing to interventions did not affect the schools child find duties –Informal agreement withdrawal of request to evaluate

7. Cases re Child Find/RTI El Paso ISD v. R.R. (Tx. 2008) –Mom asks school to evaluate –School proposes SAT instead –Parent agrees, later sues for failure to identify –Ct: school refused testing and did not provide notice of refusal or notice of rights

8. Child Find (referral) Compton Unif. Sch. Dist. V. Addison (9 th Cir. 2010) –9 th grade student –like a stick of furniture –Colored with crayons, played with dolls at her desk –Occasionally urinated on self –School respected parents desire that child not be pushed

9. The Bottom Line Dont close your eyes to need for verification If a parent asks for eval and you dont agree, provide procedural safeguards, etc. RTI does NOT trump IDEA Respond to parent requests for evaluation immediately

10. #Pre-determination

11. Pre-determination Deal v. Hamilton Co. Bd. Of Ed., (6 th Cir. 2004) Lancaster Co. Sch. Dist. 001, (Nebraska 2011)

12. Pre-determination W.A. v. Patterson Joint Univ. Sch. Dist. (E.D. Cal. 2011) Predetermination can be a two way street. M.C.E. v. Board of Ed. of Fredrick Co. (D. Md. 2011) open mind, not blank mind Mark M. v. Hawaii (Hawaii 2011) School refused to consider data

13. The Bottom Line Preparation OK Educators can have a tentative plan Show evidence of openness to parental input Be ready to establish parental predetermination

14. The Bottom Line

15. #Section504

16. ADA and Section 504 Rehabilitation Act doesnt define major life activity Courts have used ADA; congress amended to include -Concentrating -Reading -Learning

17. 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

18. 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

19. 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!

20. #Truancy

21. Neb. Rev. Stat. § 79-209 If the child is absent more than twenty days per year or the hourly equivalent, the attendance officer shall file a report with the county attorney of the county in which such person resides. The county attorney may file a complaint against a person violating section 79-201... or may file a petition under the Nebraska Juvenile Code...

22. Special Ed. and Truancy No health exception – 504 not a free pass Consider changing students placement Communicate with your attendance officer

23. LB 933 Three choices for 20 day report The absences are due to documented illness School requests additional time to work with family Hang em high If legal action necessary school chooses location of meeting

24. LB 933

25. #Residency

26. #PrescriptionPadIEPs

27. Prescription pad IEP Marshall Sch. Dist. v. C.D. (7 th Cir. 2010) Student had genetic condition Ct.: physician cannot just diagnose an IEP

28. Prescription pad IEP Riverside Unified Sch. Dist., (SEA California 2007) School dismissed boy from SpEd Private evaluation indicated serious deficits. Ct: school considered Doc Schools data trumped Doc.

29. 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.

30. Responding to Prescription pad IEP Thank you FERPA Release mild cross examination

31. #DescribingServices

32. Describing Services in IEP Do NOT identify provider Mix up para and others enhanced adult assistance Give yourself some room OSEP: 600 minutes per semester in 16 weekly sessions sufficient Stock items to consider Ability to comply with discipline Necessary modifications for extracurriculars

33. #RecordingMeetings

34. Recording IEP Meetings E.H. v. Tirozzi, 735 F. Supp. 53 (D. Conn 1990) V.W. v. Favolise, 131 F.R.D. 654 (D. Conn 1990) B.O. v. Cold Spring Harbor Cent. Sch. Dist. (EDNY 2011)

35. Dealing with Recordings Assume every phone call is being recorded Ask at every IEP meeting – are you recording this? Dueling tape recorders

36. #FERPA

37. FERPA L.S. v. Mount Olive Board of Ed. (D.N.J. 2011) Catcher in the Rye Assignment Teacher and school psych. liable – other school defendants dismissed

38. Trending Topics in SpEd Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase