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2013 Legal Update for Central City Staff Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


“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


10 Things NOT to Say in an IEP Meeting


All of our students must...


Refusal to Individualize  Victoria Ind. Sch. Dist., (Tex. 2010) • Student with fetal alcohol syndrome • Gen Ed Teacher E-mailed Parent • Parent privately placed

 Unified Sch. Dist. No. 259 (Ks. 1999) • Student with dyslexia • Attended magnet school • Teacher told parent she had done every thing she could for student


Refusal to Individualize  Montgomery Co. Bd of Ed., (Ala 2005) • Student suspended for fighting • Homebound services for 45 days: ‾ 3 hours per week ‾ AlphaSmart 3000 ‾ Social skills training


Instead Say Things Like:  We believe this will be successful for your child  We have had success with this approach with similar children  This approach meets your child’s individual needs


That will cost a ton. Our school just can’t afford it.


Cost doesn’t matter  Santa Clara (CA) Unif. Sch. Dist, (OCR 2009) • "back-to-basics" school - lottery • Only 3% sped (15% elsewhere) • No resource staff • OCR: discrimination against disabled students


Cost doesn’t matter  Modoc County (CA) Office of Educ. (OCR 1996) • Parents wanted adaptive PE • School could find cert. • Private consultant too expensive • Waiver for teacher provisionally cert • $40,000.00 per year vs. $1200.00


Instead Say Things Like:  We believe you child can make academic progress without ____  We believe the program we’ve designed for your child will meet your child’s individual need  Can you provide us with more information about this?


I have 19 other students in my classroom to worry about too.


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


Instead Say Things Like:  I will make sure to implement the team’s modifications  I am committed to Johnny’s success  Working together we can find strategies that will be successful


We don’t provide ABA for autistic kids


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


Instead Say Things Like:  We use a multi-curricular approach  We don’t use exclusively one curriculum  What strategies would you like us to consider


We only have to provide you a Ford, not a Cadillac.


Just because it’s true doesn’t mean you say it


Instead Say Things Like:  We believe this will provide Sally with a great deal of education benefit  We are excited to see the progress Sally will make with the plan


I don’t have time for this, I have to get to practice


Take Time to Build Relationships  This is the most important IEP meeting in this person’s life  Parents’ perception of team is crucial


Instead Say Things Like:  Delighted that we can take time to visit about Sally  Have each educator come prepared to share an anecdote


That’s not appropriate, but if you want it, we’ll put it in the IEP.


You say it, you pay it  Letter to Veir (OCR 1993)  Must implement every aspect of IEP  Must be able to defend every aspect of IEP


Instead Say Things Like:  I just cannot support that goal because I don’t think it is appropriate for Sally  I understand your desire for ___, but based on my training I truly believe that is not necessary/will be harmful


That has nothing to do with your child’s disability. We don’t need to address it in the IEP.


Once a Child is Verified, Address Whole Child The IEP Team must— In the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior §300.324(a)(2)(i)


Instead Say Things Like:  Need to address Johnny’s behavior so that we can be sure he’s getting the education he needs and deserves  We need to help Johnny understand that these behaviors are not appropriate


My caseload is full.


Carefully manage caseloads (away from parents)  In re: Student with a Disability (NY SEA 2002) • Student needed phys therapy esy • Teacher told parents school “would try”

 In re: Student with a Disability (W. Va. SEA 2002) • Tech teacher RIF’d • Parents sued

 IDEA ≠ I Do Enough Already


Instead Say Things Like:  We don’t know exactly who will be providing these services, but that person will be highly qualified  I hope I’m the one who gets to serve Sally, but we have several excellent speech paths.


This won’t take much time, we’ve already got the IEP drafted and all you have to do is sign.


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


Instead Say Things Like:  We have drafted this for your input  Are there any changes you would like us to make  Mark document “draft” on every page  Keep notes of edits


When Parents Walk out  Advise parents that you’ll continue the meeting without them  Indicate when parents left in notes  Finalize IEP (if ready to do so)


IDEA, ADA & Section 504


ADA and Section 504 • Rehabilitation Act doesn’t define “major life activity” • Courts have used ADA; congress amended to include - Concentrating - Reading - Learning


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


504 • Disability substantially limits one or more major life activities • LEA sets qualification standards • Accommodations do not modify curriculum or change standards • Parents may be on team, MUST have input • Plan review periodically

IDEA • disability interferes with ability to learn • Rule 51 sets qualification standards • Accommodations may modify curriculum, instruction, materials and assessments • Parents MUST be on team • Plan review annually


When is a district 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


When is a district 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


When is a district 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


When is a district 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


What constitutes a “substantial limitation?”  504 regs do not define: “The Department does not believe that a definition of this term is possible at this time.”  Phrase is to be defined by local education agency


“substantial limitation?” Congress: a major life activity is substantially limited when “the individual's important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.”


“Disability� Defined by 504 A person has a disability under Section 504 if he or she has a mental or physical impairment, has a record of such impairment, or is regarded as having such an impairment which substantially limits one or more major activities.


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 major life 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.”


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!


Transferring Students


Transferring Students  Students may have a 504 in one district and not in another  Not like IDEA, where school has to implement IEP until MDT meets  Each district is responsible for determining for itself what the phrase “substantially limits” means Letter to McKethan, 23 IDELR 504 (OCR 1994)


Do Not Take Shortcuts!


Can we just provide modifications without creating a 504 plan?  No!!  Remember: disability education law is about PROCESS not RESULTS  Temple (TX) ISD, 25 IDELR 232 (OCR 1996)


School Law and Technology Update


This is not your Grandma’s Inservice


Agenda  Social Networking by teachers  Social Networking by students • Cyberbullying of Staff • Cyberbullying of Students


Social Networking  Examples • Facebook • YouTube • Twitter • Tumblr • Linkedin • Yelp


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


Nebraska Law  NEB. REV. STAT. §§79-824, 79-827  Reasons for Termination and/or Cancellation: • Unprofessional Conduct • Immorality • Other conduct which interferes substantially with the continued performance of duties


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     

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


Social Media and Politics


Cyberbullying of Staff


J.S. v. Blue Mountain Sch. Dist. Middle School Student made fake MySpace profile for principal • Included photo from school website • Initially public; then limited • Students could only access off campus • Student suspended for 10 days; parents sued


Layshock v. Hermitage Sch. Dist High School Student made fake MySpace profile for principal • Included photo from school website • Other students created similar and more offensive profiles • Students only accessed off campus • Student suspended for 10 days; placed in alt. sch, banned from extracurriculars, no commencement


J.S. and Layshock Inconsistent  Third Circuit granted en banc rehearing  Oral Argument June 3, 2010  Decision issued June 13, 2011  The Bottom Line? • Schools lost both cases


J.S. and Layshock  Key legal points • School can’t punish off-campus speech because it is vulgar, inappropriate or even criminal • School can only punish off-campus speech that is substantially disruptive


What About the Staff? “We recognize that vulgar and offensive speech such as that employed in this case – even made in just – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights of JS.” • i.e. “We don’t care”


2013 Legal Update for Central City Staff Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

Central City Staff 2013 Inservice  

Central City Staff 2013 Inservice

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