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Mississippi Directors Conference Special Education Law: Lessons Learned Art Cernosia June 12, 2013.

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1 Mississippi Directors Conference Special Education Law: Lessons Learned Art Cernosia June 12, 2013

2 Consent for Use of Public Insurance Final Regulations, effective in March 2013, eliminated the requirement that consent be obtained “each time” public insurance or benefits are accessed. Written Notice must be given annually to the parents before consent is obtained including: ▫Right to withdraw consent at any time ▫Withdrawal of consent does not impact the LEA’s responsibility to ensure all IEP services are provided at no cost to the parents

3 Consent for Use of Public Insurance The LEA must obtain a one-time written parental consent This consent must specify: ▫ The personally identifiable information that may be disclosed ; ▫ The purpose of the disclosure; and ▫ The agency to which the disclosure may be made. The consent also must specify that the parent understands/agrees that the LEA may access the child’s or parent’s public benefits/insurance.

4 Restraint and Seclusion U.S. Dept of Education Guidance 15 Principles include: ▫should not be used except in situations where the child's behavior poses imminent danger of serious physical harm to self or others ▫should never be used as punishment or discipline ▫personnel should be trained regularly on the appropriate use of physical restraint seclusion and appropriate alternatives ▫parents should be informed ▫each incident involving the use of restraint or seclusion should be documented

5 FERPA Amendments S. 3472 An agency caseworker or other representative of a State or local child welfare agency has the right to access the student’s education records without parental consent when such agency or organization is legally responsible, in accordance with State law, for the care and protection of the student. When educational records are ordered to be provided to comply with a judicial order, or pursuant to any lawfully issued subpoena and the parent is a party to a court proceeding involving child abuse and neglect or dependency matters, and the order is issued in the context of that proceeding, the school is not required to provide notice to the parent.

6 Child Find Policies and Procedures Locate, evaluate and identify Residents birth through 21 Highly mobile children Outreach activities

7 Pre-Referral Interventions IDEA allows a parent to request a sp ed evaluation at anytime and cannot be delayed due to lack of participation in RTI strategies Memorandum to State Directors of Sp Ed Schools may not require interventions prior to acting on a parent referral. El Paso Independent School District v. R.R.

8 Lesson Learned It is vitally important to make sure your local policies and procedures (and staff training) include the process for making a special education referral and a process for receiving and acting on a parent’s referral. Document the referral and send PWN In particular, it is important to address the relationship between the general education intervention and support system(TST) and the special education child find system.

9 Child Find School district did not violate its’ child find obligation since the student was not “in need of special education” based on an ADHD diagnosis shared 4 yrs after the diagnosis was made. The “IDEA does not penalize school districts for not timely evaluating students who do not need special education”. D.G. v. Flour Bluff Independent School District

10 Child Find No Child Find violation when the school took measures to assist the student in the classroom and took proactive steps to afford him extra assistance and worked closely with his parents. Schools need not rush to judgment or immediately evaluate every student exhibiting below-average capabilities, especially at a time when young children are developing at different speeds and acclimating to the school environment. D.K. v. Abington School District

11 Lesson Learned Schools must document parent’s referrals for special education evaluations, the school’s response to the referral and any input provided by the parents. needs. Evaluation and eligibility determinations should address not only the ultimate conclusion reached but it is extremely important to include documentation as to the Team’s basis for its decision. Courts/Hearing Officers will generally defer to a Team’s decision when the proper process is followed and the Team articulates the educational rationale for its decision.

12 Parents could simultaneously request an evaluation from the LEA of residence (for purposes of FAPE) and the LEA where the private elementary or secondary school is located (for purposes of equitable services under a service plan) Both LEAs have responsibilities to evaluate Letter to Eig Parent consent is required before the LEAs share student information

13 The IDEA requires a school to evaluate a student in a private school for purposes of making a FAPE offer as long as the student is a resident of the school district Residency rather than enrollment triggers the obligation Moorestown Township Bd of Ed v. S.D. Evaluating Private School Students

14 If a student is enrolled at a private school by the parents, the school district does not maintain an obligation to provide an IEP. A parent is entitled to request that the school conduct a reevaluation of the student's IEP at any time. In this case, the parent never requested that the school perform such a reevaluation and never informed the school of any intent to re-enroll the student in public school. D.P. v. Council Rock School District

15 Lesson Learned Enrollment in the public school is not a precondition to evaluating a student and preparing an IEP if found eligible. Also, the legal residency of a student placed by their parents is not determinative of which LEA is responsible for child find.

16 Child Find/Procedural Safeguards Consideration and use of pre-referral interventions is not a violation of the IDEA IDEA rights do not apply to general education interventions Mere discussion of a possible sp ed referral does not constitute a referral A.P. v. Woodstock Bd of Ed

17 Lesson Learned As an essential best practice, keep parents informed when their child is “referred” to a general education intervention process and of the interventions received. The IDEA procedural rights do not apply and the procedural safeguards are not sent to the parents until or unless a child is referred for a special education evaluation.

18 Comprehensive Evaluation School’s Responsibility oFailure of the school district to evaluate student for autism denied FAPE. oIf the school has reason to suspect a disability, the school must conduct the evaluation not simply refer the parents to an evaluation center N.B. v. Hellgate Elementary School District

19 Medical Evaluations A parent cannot be required to provide the school with a medical diagnosis from the student’s pediatrician as part of the student’s special education evaluation The school is responsible to ensure all necessary evaluations are completed M.J.C. v. Special School District No.1

20 Lesson Learned An LEA has the legal obligation to provide ALL of the necessary evaluations at no cost to the parent. A school cannot fulfill this responsibility by making a referral to the parent or asking the parent to follow up the with child’s Doctor.

21 Consent for Reevaluations Parentally imposed conditions to their written consent for a reevaluation was determined by the Court to have the practical effect of their refusal to consent Not entitled to reimbursement for their Independent Educational Evaluation. G.J. v. Muscogee County School District

22 Lesson Learned The school has the right to conduct a special education evaluation or reevaluation with qualified individuals of its choice. The evaluations must follow the standard conditions established by the maker of the evaluation instrument.

23 Independent Educational Evaluations Anytime at parent expense At public expense if parent disagrees with district’s evaluation District must pay for the IEE or initiate a Due Process hearing Team must consider the IEE The IEE must meet the same criteria as the LEA uses for its evaluations Parent entitled to 1 IEE each time the parent disagrees with LEA evaluation

24 Independent Educational Evaluations The Court upheld the validity of the IDEA regulations related to publicly funded IEEs No requirement that the parent first notify the school of their intention to seek an IEE at public expense No requirement for parents to discuss with the school why they disagree with the school’s evaluation Phillip and Angie C. v. Jefferson Cty. Bd of Ed

25 Independent Educational Evaluations If a school’s evaluation is deemed inappropriate, the parents “as a matter of law” have a right to a publicly funded IEE M.Z. v. Bethlehem Area School District

26 Eligibility Meets One or More of the Disability Categories Adversely Affects Educational Performance In Need of Special Education ▫Specially Designed Instruction

27 Eligibility Student with disabilities (CAPD and ADHD) not eligible for special education since there was no need for “special education” Able to perform well in general education classes with accommodations and modifications General ed classes with small enrollments were not special ed since they were available to all students who needed help C.M. v. Hawaii Department of Education

28 Lesson Learned The Team must consider and document three criteria: the student has met at least one of the disability categories; the disability adversely effects educational performance; and the student is in need of special education (specially designed instruction). Make sure that everyone on the Team is aware of the three criteria. It is important to clarify that a disability label or medical diagnosis is not itself sufficient to make a student eligible for special education services.

29 “Special Education” under the IDEA The fact that required services may also be considered "best teaching practices" or "part of the district's reg ed program" does not preclude those services from meeting the definition of "special education" or "related services". Even if that type of instruction is being provided to other children, with or without disabilities, in the child's classroom, grade, or building. Letter to Chambers

30 Special Education in the time of Common Core Standards A school cannot rely on any single procedure as the determining criteria in determining eligibility Students with high cognition may still be disabled Educational performance is more than meeting academic standards and includes nonacademic areas Letter to Addressee

31 Interstate Transfer Students A student’s eligibility status in one state is not determinative of the eligibility status in the new state The new school district has the discretion of seeking a new evaluation J.B. v. Lake Washington School District

32 Transfer Students The student’s newly designated IEP Team in the new school district determines those services that are comparable to the services in the student’s IEP from the previous school district The IDEA allows the parents and new school to agree to modify the current IEP to address temporary goals and comparable services without an IEP Team meeting ▫Not if it is the annual IEP Team meeting Letter to Finch

33 Intrastate Transfer Students A student determined IEP eligible in one district remains eligible in the new district Student remains eligible even if they were last in attendance in a private school Student exits special education ▫Team determines the student is no longer eligible based on a reevaluation ▫Student graduates with a regular diploma ▫Student ages out Regional School Unit 51 v. Doe

34 Lesson Learned When a student moves into your school district, proactively ask the parent if their student was involved in a special program such as special education. Request from the former school district the student’s educational records and specifically request all special education records. Consult with the parent to continue “comparable services” until new IEP is developed

35 FAPE Standard The Supreme Court in the Rowley case established two criteria in determining FAPE: ▫Have the procedures been adequately complied with? and ▫Is the IEP reasonably calculated to enable the child to receive educational benefits?

36 Procedural Violations Neither the IDEA nor its implementing regulations qualifies any duty imposed on a state or local educational agency contingent upon parental cooperation. School District has an affirmative duty to revise the IEP at least annually even if a due process hearing is pending Anchorage School District v. M.P. (9 th Circuit)

37 Lesson Learned Never let a student’s IEP expire even if there is a pending due process hearing. Schedule the annual IEP Team review weeks before the expiration of the current IEP allowing sufficient time to update the evaluation, if needed, and conduct an IEP Team meeting at a mutually convenient time.

38 IEP Process The parents must provide written consent before the first IEP is implemented Subsequent IEPs need to be developed at least annually by the IEP Team Additional parental consent is not required Parents who disagree with decisions regarding subsequent IEPs may utilize their procedural safeguards to challenge the proposed change K.A. v. Fulton County School District

39 Prior Written Notice The parent must receive prior written notice when there is a proposal to or refusal to change the provision of FAPE at an IEP Committee meeting There is no timeline in the IDEA for providing the written notice so long as it is provided a reasonable time before the IEP is implemented Letter to Chandler

40 Lesson Learned Anytime the school is proposing to change or refusing to change the student’s evaluation, identification, educational placement or provision of FAPE, the school must give the parents prior written notice. Such notice is required even if the parent has attended and participated in the meeting where the decision was made.

41 Personnel Decisions The school has the power unilaterally to choose the service provider so long as this choice does not affect the substantive quality of a student's IEP or the IEP does not require the services of a particular provider. Z.F. v. Ripon Unified School District

42 Lesson Learned Although personnel assignments may be one of the most important decisions a school makes regarding a student’s success in school, it is important to inform the IEP Team which includes the parent that personnel decisions are not for the Team to make. If the IEP does name a specific service provider it creates a legal obligation to assign that specific person to be the student’s service provider

43 IEP Changes Sp Ed Director sought clarification from the speech provider regarding one speech goal after the IEP meeting Final IEP was then sent to the parents Post meeting conversation did not significantly deprive the parents of meaningful participation School complied with both the procedural and substantive requirements of the IDEA. J.W. v. Governing Board of East Whittier City School District (9 th Circuit)

44 IEP “Educational Benefit” Std In most cases an assessment of a student’s potential would be a useful tool for evaluating the adequacy of his or her IEP It is not always feasible to determine the potential for learning and self-sufficiency with any precision, particularly where the student’s disability significantly impairs his or her capacity for communication. D.B. v. Esposito

45 “Peer Reviewed Research” The IDEA does not require a school to choose the program supported by the optimal level of peer-reviewed research. Rather, the peer-reviewed specially designed instruction in an IEP must be "reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential.“ Ridley School District v. M.R.

46 Lesson Learned Although reference to peer reviewed research is not an absolute requirement at an IEP Team meeting, school members of the IEP Team should be able to articulate the educational basis of the Team’s decision for proposing the particular services for the individual student.

47 FAPE Standard IEP was not appropriate since the school made no effort to obtain updated information on the student’s progress in the previous school year IEP required that the student’s present levels of performance be included in the IEP E.S. v. Katonah-Lewisboro

48 Lesson Learned Whether a student has been attending a private school, being home schooled, not yet in school or attending another public school, IEP Teams must make good faith efforts to obtain updated information to be considered in preparing the IEP. It may be necessary to conduct a reevaluation of the student prior to revising the IEP Parental input is a vital requirement to an IDEA evaluation.

49 FAPE Standard Under the IDEA academic benefit should "be measured not by [a student's] relation to the rest of the class, but rather with respect to the individual student." L.F. v. Houston “Educational benefit" afforded the student is not limited solely in terms of weaknesses caused by his learning disability rather than his overall academic record. Klein Ind. School District v. Hovem

50 FAPE Standard Although “positive educational outcomes can signal that an IEP is appropriate under the IDEA, the appropriateness of [a student’s] IEP ultimately turns on whether it was reasonably calculated to provide an educational benefit and does not hinge on the showing of an actual positive outcome.” S.H. v. Plano Independent School District

51 Related Services Standard (Tatro Criteria) Child must have a disability and be in need of special education The service must be necessary to aid the child to benefit from special education The service must be able to be performed by a non-physician

52 Mapping as a Related Service IDEA regulation excluding mapping of a cochlear implant as a related service upheld as a a permissible interpretation of the IDEA by the U.S. Department of Education. Petit v. United States Dept of Education

53 Assistive Technology Although it was found that the AT evaluation was untimely which impacted the ability of the Team to individualize the IEP, the student was not denied a FAPE. The student demonstrated positive academic and non-academic benefits while using her previous AT devices R.P. v. Alamo Heights Independent School District

54 Lesson Learned Even if the school prevails in a due process case or litigation, there is a loss of relationship with the family and an emotional and fiscal cost. The Team should appoint a person to take the lead to track any evaluations or actions the Team determines necessary for the student.

55 Least Restrictive Environment To the maximum extent appropriate, students with disabilities shall be educated in classroom and other activities with peers who are not disabled Continuum of Alternative Placements IEP shall EXPLAIN the extent, if any, to which the student will not be educated with peers who are not disabled Supplementary Aids and Services

56 LRE The LRE for siblings with genetic and neurological disorders resulting in immune deficiencies was in the school despite the students’ Doctor’s recommendations Testimony from an expert in pediatric infectious diseases supported the conclusion that the school environment would not pose any unusual health risk Stamps v. Gwinnett County School District

57 LRE and Preschoolers LRE also applies to 3-5 year olds IEP Team must consider continuum of alternative placements Options include ▫Public school preschool programs ▫Other public preschool programs such as Head Start ▫Private preschool programs ▫Home based services Letter from the Office of Special Ed Programs

58 LRE and Preschoolers The LRE for a preschooler with autism was in a school’s special class for preschoolers with autism ▫Class initiated a “reverse-inclusion” component Evidence did not support that the student would benefit from modeling appropriate behavior from peers who are non-disabled in an inclusive preschool L.G. v. Fair Lawn Board of Education

59 LRE and Preschoolers The LRE was a private preschool allowing the student to interact with typical peers developing her social skills at a critical stage in her development The IEP never stated that placement in a mainstream classroom would be inappropriate, much less explained why that might be the case. G.B. v. Tuxedo Union Free School District

60 Lesson Learned Ensure that the Team has a continuum of placement options to discuss for preschoolers with disabilities. If the student will not be placed in a setting which allows interaction with peers who are non-disabled, the IEP must document what the Team considered and why the Team made its placement decision. The unavailability of an integrated public preschool program is not a legal basis for making a placement decision.

61 LRE The LRE for a student with an intellectual disability and speech impairment was in a special education class not a general education class for social studies and science Although extensive accommodations were provided the student did not derive academic or nonacademic benefits in the general education class J.H. v. Fort Bend Independent School District

62 Predetermination of Placement While school officials may form opinions prior to IEP meetings, decisions must be made at the IEP Team meeting. The school went beyond forming opinions and, instead, became impermissibly and deeply wedded to a single course of action which amounted to a pre- determination of placement. The parents were denied a meaningful opportunity to participate in the development of the IEP resulting in a denial of FAPE. P.C. v. Milford Exempted Village Schools

63 Lesson Learned Although staff may discuss the students needs and prepare a draft IEP prior to the meeting, the IEP Team must have an “open mind” to consider other suggestions and recommendations from the parent. Send any draft IEP to the parent before the meeting. Ask the parent at the meeting if they have any questions, recommendations or suggestions for the Team to consider. Of course, document!

64 Placement v. Location “Placement” refers to the points along the continuum of placement options “Location” is the physical surrounding such as the particular classroom. The school should have the flexibility to assign the child to a particular school or classroom provided that it is consistent with the placement determination. Comments to the IDEA Regs,Page 46588

65 Placement Changes Students With Autism Unplanned transition for children with autism, as opposed to other students with disabilities, is likely to affect their learning rate and learning sequences. Moving the students with autism to a different school, under these facts, constitutes a change in their "educational placement" under the IDEA. “The school cannot categorically deny parents the opportunity to provide input and receive notice about the educational placement of their autistic child.” P.V. v School District of Philadelphia

66 Lesson Learned Courts are now starting to look at how transitioning a student with autism to a new physical environment will impact the student’s ability to be successful. Consideration should be given and discussed at the IEP Team meeting to any supports the student may need if the student will be attending a new placement/location.

67 Unilateral Placements Parents initiate placement over a dispute regarding the provision of FAPE Requesting full payment or reimbursement of tuition and costs

68 Unilateral Placements Factors for Reimbursement IEP did not provide FAPE, and Parental Placement is Appropriate  Need not be an approved special education facility  Personnel need not be credentialed Equitable Factors  Parental notice of disagreement and intent to make a unilateral placement requesting public payment  Providing school opportunity to evaluate student  Unreasonable actions by the parents Burlington v. Department of Education Florence County v. Carter

69 Previous Special Education Eligibility Not Required Parents were able to pursue reimbursement for the private placement of their son who was never identified as a special education student Parents still have the burden of proving that their child should have been found eligible and required a private placement as a result Forest Grove School District v. T.A.

70 Appropriateness of Private Placement Although the IEP did not offer FAPE, no reimbursement since the private school was not appropriate Services deemed necessary by the IEE were not provided at the private school Educational success at the private school is relevant but not determinative ▫Must show that the student’s unique needs were met R.S. v. Lakeland Central School District

71 IEP Appropriateness In a unilateral placement case, evidence cannot be considered as to what services would be provided to the student in the public placement if they are not in the IEP School cannot present evidence as to what specific staff members (classroom teacher, paraprofessionals, etc.) would be assigned to work with the student R.E. v. New York City

72 Lesson Learned Most Courts have interpreted the offer of FAPE to be only those services included in the IEP. IEPs should include all the services and supports that the Team determines are required for a student to receive educational benefit.

73 Standard for Private Placements While a parental placement is not subject to the same exacting standards “the restrictiveness of the school environment ‘remains a consideration that bears upon a parent's choice of an alternative placement and may be considered by a hearing officer in determining whether the placement was appropriate’." Academic progress alone is not dispositive of appropriateness. D.D-S v. Southold Union Free School District

74 Medical v. Educational Placements In determining whether a residential placement is required under the IDEA in a unilateral placement, the placement must be: ▫essential in order for the child with a disability to receive a meaningful educational benefit. and ▫primarily oriented toward enabling the child to obtain an education. Jefferson County School Dist. R-1 v. Elizabeth E.

75 Standard for Private School Placements A private placement is "proper" if it "'provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction” M.N. v. Hawaii Department of Education

76 Behavioral Intervention Plans IEP Team determination based on the evaluation results If behavior impedes his/her learning or that of others, IEP must include:  Positive behavior interventions  Strategies  Supports

77 Behavioral Restrictions Use of a desk restricting the student’s movement did not violate the student’s Constitutional rts. ▫Student not required to sit in any unusual way ▫Student not removed from class ▫Student could remove herself from desk ▫Restrictions not attached to the student’s body No damages Ebonie S. v. Pueblo School District

78 Seclusion Rooms Use of a secure observation room was an appropriate behavior intervention Student was subject to continuing observations and evaluations Numerous strategies and interventions designed with specific positive behavior goals were implemented There was not indiscriminate use of the SOR, but rather it was a "last resort" after all other strategies had failed Use drastically decreased by the end of the year Clark v. Special School District of St. Louis County

79 Lesson Learned A behavioral component of an IEP should include a series of positive supports and interventions. It is extremely important that the school maintain data on the effectiveness of any intervention/support and review the use of such intervention periodically.

80 Calming Room Although an IEP team must "consider" the results of independent educational evaluations, not all such recommendations need be adopted. The use of the calming room was upheld because of the belief by the Team that it was important for the safety and development of the student. M.M. v. District 1 Lancaster County

81 Lesson Learned The IEP Team must consider any input provided by the parent including any Independent Educational Evaluation Reports. When considering IEEs it may be very important to have a discussion with the evaluator to determine how they reached their recommendations. Remember also, the Team must provide the parent with written notice if it is proposing or refusing to incorporate the IEE’s recommendations in the student’s IEP.

82 IEP Behavior Components “The IDEA does not require a school district to eliminate interfering behaviors. It requires only that the school district "consider the use" of positive behavioral interventions and supports to address the behavior.” The school met this responsibility by having a behavioral component to the IEP. J.W. v. Unified School District of Johnson County

83 Bus Suspensions Bus suspensions are treated as any other type of suspension if transportation is in the IEP as a related service School is not relieved of this obligation even if the student’s family voluntarily chooses to provide transportation Letter to Sarzynski

84 Lesson Learned If transportation is listed in the student’s IEP as a related service, any suspension from the bus will be treated as a disciplinary suspension unless the school offers an alternative transportation plan. If the parent truly volunteers to transport their student, the school should consider offering the parent mileage reimbursement since all services in the IEP must be provided at no cost to the parent.

85 Hearing Officer Authority Regarding Discipline There may be instances where a hearing officer, in his discretion, would address whether such a violation of the student conduct code has occurred. The IDEA neither preclude nor require that a hearing officer determine whether a certain action by a student with a disability amounts to a violation of the school district's Student Code of Conduct. Letter to Ramirez

86 Lesson Learned All students, including all students with disabilities, must be afforded a disciplinary hearing if the school is considering suspending the student for a violation of the student conduct code. The manifestation team should verify that the student has been afforded this process.

87 Involvement of Law Enforcement “the minimal amount of force that was used to seize [the student] for his safety and the safety of those around him was, as a matter of law, reasonable under the circumstances”. The Court dismissed the lawsuit against the school district, school staff and the police department for unlawful detention, assault and battery, intentional and negligent infliction of emotional distress, and a violation of the student’s civil rights under the Constitution. E.C. v. County of Suffolk

88 Lesson Learned Should there be a disciplinary incident that resulted in a student needing to be restrained and/or the police called, staff involved should document the events independently while their recollection is current. Such notes can be very important and relevant should there be subsequent legal proceedings initiated. Parents should be immediately notified. It is recommended that the school appoint one person to be the main contact with the authorities and the family.

89 FAPE and Bullying When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action ▫Investigate ▫Take steps to prevent it from happening Not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect ed opportunity T.K. v. New York City Dept of Ed

90 Lesson Learned Ensure that your staffs are aware of their responsibilities to report bullying incidents under your local policy. If a student with a disability is either the perpetrator or victim of bullying, the Team should consider addressing the behavior in the IEP in terms of interventions, supports, and/or supervision.

91 Mississippi Statute (S.B.2015) “Bullying or harassing behavior" is any pattern of gestures or written, electronic or verbal communications, or any physical act or any threatening communication, or any act reasonably perceived as being motivated by any actual or perceived differentiating characteristic, that takes place on school property, at any school -sponsored function, or on a school bus.

92 Mississippi Statute The conduct must: ▫Place a student or school employee in actual and reasonable fear of harm to his or her person or damage to his or her property; or ▫Create or is certain to create a hostile environment by substantially interfering with or impairing a student's educational performance, opportunities or benefits

93 Bullying Parents sued for damages under the IDEA and Sec. 504 for the alleged bullying of their student Court dismissed the lawsuit since the parents did not exhaust the administrative process by first requesting a due process hearing No damages available under the IDEA Wright v. Carroll County Board of Education

94 Liability The Court reinstated a lawsuit alleging that abuse reports were made in retaliation for her attempts to get the necessary accommodations for her student. The evidence provided could permit a reasonable jury to find that the abuse reports were not made in good faith but were motivated by a desire to retaliate A.C. v. Shelby County Board of Education

95 Lesson Learned Don’t take matters personally!! No matter how difficult a staff member or a parent is, take a deep breath and make sure that you don’t engage in what could be perceived as retaliation.

96 Liability The Court dismissed the lawsuit by a student who was physically attacked by another student in her class who had a disability and had a history of emotional outbursts and aggressive behaviors. There was no evidence to suggest that the behavior of the student with a disability was ever focused on the student victim such that she would have been a “known victim” of an unprecedented assault. Dixon v. Alcorn County School District

97 Liability The parent of a student with a disability initiated a lawsuit alleging that the school district and staff violated the student’s Constitutional due process rights. The Court dismissed the lawsuit holding, as a general rule, school districts are not responsible under Section 1983 for harm caused by third parties. Colomo v. San Angelo Independent School

98 Adult Students-Due Process Hearings The parents of an adult student had no legal right to request a due process hearing Rights transfer to the adult student once they reach the age of majority ▫Exception if a Court has deemed the adult student incompetent Ravenna School District v. Williams Note: In Mississippi, the student becomes an adult student at age 21.

99 Lesson Learned When working with an adult student who has not been placed under legal guardianship by a Court, all parental rights transfer to the adult student. The parents still maintain the right to receive all required notices. The transfer of rights must be addressed in the IEP at least one year beforehand.

100 Due Process Issues The Court held by "injecting" an issue that was not raised in the due process complaint the hearing officer erred since a hearing is limited to the issues raised in the due process complaint. District of Columbia v. Pearson

101 Resolution Sessions Although not specifically provided for under the IDEA, it would be appropriate to offer the parents alternative means of participating assuming they cannot attend in person Letter to Eig

102 Administrative Complaints School district did not have the right to a judicial appeal of the State Department of Education’s complaint report finding the school district out of compliance Yolo County Office of Education v. State of California Department of Education

103 IEP Consent Revocation and Sec.504 The parents withdrew consent for their student to receive IDEA services, but requested that the school provide him with accommodations under Section 504 Revocation of consent for services under IDEA is tantamount to revocation of consent for services under Section 504 and the ADA. Lamkin v. Lone Jack C-6 School District

104 Revocation of consent under the IDEA does not impact the school’s obligation under Section 504 A school has a “continuing obligation under Section 504 and the ADA to protect [the student] from discrimination while she remains a qualifying student with a disability” A school is required to convene a Section 504 meeting and develop a 504 plan after the parents revoked consent for IDEA services. Kimble v. Douglas County School District (U.S. District Court, Colorado (2013)). IEP Consent Revocation and Sec. 504

105 Lesson Learned Since the Courts are not in agreement regarding Section 504 protections for a student whose parents have revoked consent for IEP services, the safest approach to take is to include in the schools written notice in response to the revocation that the student is protected by Section 504. Consider inviting the parent, if they choose, to contact the school to discuss what steps the school will take to take to develop a Section 504 plan. Of course, document the parent’s response.

106 Monetary Damages The IDEA does not provide a remedy of compensatory, punitive or even nominal monetary damages Court overturned the award of $1 against the school district’s attorney based on the parent’s retaliation claim C.O. v. Portland (9 th Circuit)

107 Private School Students and Sec.504 Section 504 does not create an affirmative obligation on school districts to provide services to private school students. Administrative guidance, statutory purpose, case law, and policy considerations compel the holding that such student is not entitled to Section 504 services if he/she remains enrolled at a private institution. D.L. v. Baltimore City Board of School Commissioners

108 Confidentiality Custodial and noncustodial parents alike have full rights under FERPA unless the school has been provided with evidence that there is a court order, State statute, or other legally binding document specifically revoking these rights. In a situation where there is evidence that a student, custodial parent, or other individual may be in physical danger from a noncustodial parent, the FERPA office would not require the school to provide the noncustodial parent with the address, telephone listing, or related information regarding the student, parent, or other individual.” Letter to Lianides

109 Mahalo!!!

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