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SpEd Law Do’s and Don’t Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


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There are worse things than due process


How Due Process Works  Petition filed with NDE • Hearing Officer Assigned • Mandatory Resolution within 15 days • If not resolved w/i 30 days, case proceeds • Hearing officer has 45 days to rule

 Prehearing • Written discovery • Depositions or Interviews • Get your lawyer ALL of your documents


How Due Process Works  Stay Put • During pendency of case, child remains in “current educational placement” • Courts have interpreted as “last agreed-to placement”

 Special rules for • Student who brings a weapon • Student who brings drugs • Student who inflicts serious bodily injury


How Due Process Works  The Hearing • Usually held at school • Court reporter will transcribe • You’ll be sworn • Sequestration likely • Public/private – at parents’ discretion • Direct and cross exam • You’re an expert: can give opinions • DON’T BE SQUISHY


How Due Process Works  The Decision • Not made immediately • Usually 30 days • Mailed to attorneys

 Appeals • To state court: 2 years • To federal court: 90 days


What Due Process Issues Involve School Psychs?


Assessment/Verification  Ed. Psychs play key role


Highland Park Ind. Sch. Dist., 57 IDELR 147 (Tx. 2011)

Facts • Mom wanted student assessed for SLD • Team developed an evaluation plan that included formal testing in the areas of Language, Intellectual/Adaptive Behavior, and Academic Performance


Highland Park Ind. Sch. Dist., 57 IDELR 147 (Tx. 2011)

Psych’s Report •

• •

Downplayed ADHD. e.g. scores showed inattention; but stated that the student did not appear inattentive and score was the result of low processing speed Did not report one teacher's information as provided because she believed it to be inaccurate Didn’t assess for ED despite reports that the student's extreme withdrawal and selfisolation have an adverse impact on his learning


Highland Park Ind. Sch. Dist., 57 IDELR 147 (Tx. 2011)

Hearing Officer: • •

Parent entitled to reimbursement for an IEE Although no evidence that the psychologist intentionally misrepresented the data, the discrepancies undermined the validity of the evaluation “This is particularly true because each of the reporting errors went in one direction -- toward minimizing [the student's] level of disability or need in the classroom.”


Meridian Joint Sch. Dist., 60 IDELR 282 (ID. 2013)

High schooler with Asperger syndrome had social difficulties in juvenile detention facility District refused to verify • Relied on eval from jail • No need for SpEd • Not time for reeval Parents sued seeing IEE at public expense.


Meridian Joint Sch. Dist., 60 IDELR 282 (ID. 2013)

Court • significant restrictions imposed by the detention setting • evaluation could not have identified all of the student's disability-related needs. • School told parents to request new eval when kid changed schools


San Luis Coastal Unif. Sch. Dist., 112 LRP 54638 (Cal. 2012)

6 year old with autism transferring from private to public school • Parents provided private eval; district wanted to do its own • Parents refused consent because of identity of psych • District filed for due process


Sch. Bd. Of Norfolk v. Brown, 112 LRP 54638 (Cal. 2012)

11-year old with cerebral palsy • Had some prior behavior problems • Left threatening messages on principal’s voice mail • School psych. labeled behavior “bizarre” • Student long term suspended • MDR found no manifestation


Sch. Bd. Of Norfolk v. Brown, 112 LRP 54638 (Cal. 2012)

Aunt sued claiming violation of child find and that long-term suspension not LRE Court • No official records of behavior problems • Psych’s and counselor's records, showed enough to place school on notice of mental health issues


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 on 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


Suggestions re Assessment  Assess all areas of suspected disability  Consider all data  Eliminate environmental factors  Use your clinical opinion  Communicate with team and admin all the time


Poll: Questions or comments on assessment and ...


Section 504 of the Rehab. Act


Poll: Are you familiar with Section 504 of the...


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


When is school 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 school 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 school 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 school 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


“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


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


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


What if the 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.”


Suggestions re 504  Be aware it exists!  Not a consolation prize  Know who the 504 coordinator is


Poll: Questions or comments on Section 504?


IEP Development


Ridley Sch. Dist. v. M.R., 58 IDELR 217 (Penn. 2012)

Grade school student with reading difficulties • Parents asked for eval in first grade • Psych: avg to low avg scores; relative weakness in retaining numbers • Student struggled; parents asked for reeval, then verified


Ridley Sch. Dist. v. M.R., 58 IDELR 217 (Penn. 2012)

Parents sued • Violation of child find • Seeking specific reading program • Parents: psych was not competent to recommend programming Court:  No child find violation  School selects programming


G.W. v. Rye City Sch. Dist., 113 LRP 13325 (N.Y. 2013)

Private school student • Parents privately placed; kept telling school student would return next year • Parents sued claiming draft IEPs inadequate and predetermined Court: • Solicited input from private sch. • Psych. goal based on private sch.


Poll: Questions or comments regarding IEP deve...


FBAs


What is an FBA?  Ed. Psychs’ definition (?): • Behavioral assessment methods used to identify the functional relationship between behaviors, antecedents, and consequence events

 Consists of • Descriptive analysis • Functional analysis


Poll: Have you ever done an FBA?


What is an FBA? Rule 51: Functional behavioral assessment means the process of gathering information that may be used to maximize the effectiveness and efficiency of behavior support (direct observation must be included). It involves a description of the problem behavior, the identification of antecedents which occasion the behavior and consequences which maintain it, the function the behavior serves (e.g., attention, communication, task avoidance), and the selection of alternative behaviors which will provide the same function.


What is an FBA? Rule 51: Functional behavioral assessment means the process of gathering information that may be used to maximize the effectiveness and efficiency of behavior support (direct observation must be included). It involves a description of the problem behavior, the identification of antecedents which occasion the behavior and consequences which maintain it, the function the behavior serves (e.g., attention, communication, task avoidance), and the selection of alternative behaviors which will provide the same function.


What is an FBA? Rule 51: Functional behavioral assessment means the process of gathering information that may be used to maximize the effectiveness and efficiency of behavior support (direct observation must be included). It involves a description of the problem behavior, the identification of antecedents which occasion the behavior and consequences which maintain it, the function the behavior serves (e.g., attention, communication, task avoidance), and the selection of alternative behaviors which will provide the same function.


What is an FBA? Rule 51: Functional behavioral assessment means the process of gathering information that may be used to maximize the effectiveness and efficiency of behavior support (direct observation must be included). It involves a description of the problem behavior, the identification of antecedents which occasion the behavior and consequences which maintain it, the function the behavior serves (e.g., attention, communication, task avoidance), and the selection of alternative behaviors which will provide the same function.


What is an FBA?


San Diego Unif. Sch. Dist., 34 IDELR 205 (Cal. 2000)

Facts • 8 year old with Down; school wanted to remove to special day class • Mom: not LRE

Hearing Officer • Mom asked for FBA; school said no need • Inconsistent to remove for behavior and claim FBA not needed


Ingram Indep. Sch. Dist., 35 IDELR 142 (Tx. 2001)

Facts • 8th grader identified as LD, ADHD and ED • School created FBA/BIP* • Outside consultant created FBA/BIP* • Mom sued after a pattern of removals

Hearing Officer • School’s FBA and BIP inadequate • “Mom made us do it” is no defense


P.R v. Central Autism Team, 52 IDELR 222 (Tx. 2009)

Facts • 4th grader with autism or reactive detachment disorder • School hired team to do FBA and BIP • Parents removed from school • Sued contracted professionals

Court • Case not preempted • Sent to state court


Bridge City Ind. School Dpt., 102 LRP 12499 (Tx. 2002)

Facts • 9th grader with ADHD • Brought knife to school after altercation with another student • Witnesses: clinical psych; PhD professor of SpEd; LSSP

Hearing Officer • LSSP most persuasive • Consequences for ADHD recommended by pediatricians*


South Portland School Dpt., 33 IDELR 256 (Me. 2000)

Facts • Student identified with speech/lang • Team terminated sped in 7th grade • In 12th grade, re-identified, team performed FBA and BIP • Parents sued after graduation

IHO • IDEA violation • No damages; no attorney fees


Heiden v. Minn. Dpt. Ed., 109 LRP 75617 (Mn. 2009)

Facts • 1st grader was a runner • FBA and IEP directed removal to resource room and “NO VERBAL OR VISUAL COMMUNICATION” • Minn. Dept. Ed: found phys abuse

Court • Witnesses suspect • Following FBA/IEP


In re: Student with a Disability, 110 LRP 10846 (NY. 2003)

Facts • 9 year-old “mentally retarded” student • Having behavior issues in classroom • School Psych consulted

Court • No writing = No FBA • IEP calls for BIP; can’t now claim not necessary


Ind. Sch. Dist. No. 2310, 102 LRP 12767 (Mn. 1998)

Facts • Student had behavior problems at school but not at home • LGSW consulted – wrote report

HRO • LGSW’s report inadequate FBA • Independent report* more credible


The Lawyer’s suggestions for FBAs


Suggestions for FBAs 1. 2. 3. 4. 5.

Should be in writing Should be separate document Include your qualifications Include narrative Use Headings that track or approximate Rule 51 6. Recommend the possible, not the perfect


Suggestions for FBAs 7. Rely on your own professional judgment; don’t try to appease parents 8. Gather input from parents and educators in addition to observations 9. Stay on the same page as your team


Poll: Questions or comments about FBAs?


Let’s Practice!


Poll: What are the good qualities of this FBA?


Poll: What would you improve about this FBA?


Psychs as STAR Witnesses


Lincoln Unif. Sch. Dist. 111 LRP 74067 (Cal. 2011)

 LD Student • History of violence, profanity, defiance • Librarian asked him to remove headphones • Expulsion proposed

 MDT determined misbehavior not a manifestation of student’s disability  Parents appealed


Lincoln Unif. Sch. Dist. 111 LRP 74067 (Cal. 2011)

 BIP: “When [Student] is confronted or redirected in an authoritative manner by school staff members, he will respond back with obscenities and verbalizing physical threats that can escalate into physically aggressive behavior”

 Ct: the plan all but predicted the occurrence of the conduct that ultimately led to his expulsion


Lincoln Unif. Sch. Dist. 111 LRP 74067 (Cal. 2011)

 But: the Psych saves the day!  Psych testified: • Student SLD, not ED • Nothing in IEP could have prevented outburst • Behavior not a manifestation

 School won based on Psych’s testimony


Danny K. v. Hawaii DOE 111 LRP 63834 (Hawaii 2011)

 ADHD student blew up bomb in bathroom  Psych testified re manifestation determination • IEP appropriate • ADHD did not have a direct and substantial relationship to the misconduct • Misconduct took planning


Danny K. v. Hawaii DOE 111 LRP 63834 (Hawaii 2011)

 Parents: confession impulsive  Psych • Reasonable to believe student told the truth • ADHD does not cause deception

 Court: misconduct at issue is explosion


Andover Public Sch. 112 LRP 46291 (Mass. 2012)

 14-year-old student with Asperger’s Syndrome  Behaviors: • Violent cartoons • Outbursts/oppositional behavior • Physical aggression

 School proposed day treatment placement for high school


Andover Public Sch. 112 LRP 46291 (Mass. 2012)

 Psych: • Low risk of harm to self or others • Cartoons not predictive of behavior • Major concern, “isolation in fantasy life and disinterest in engaging in worlds of others” and “fundamental distrust of the wider world” • Student not making progress on social engagement


Andover Public Sch. 112 LRP 46291 (Mass. 2012)

 Court: • Psych credible • Placement at HS not appropriate • Student should be placed at an appropriate day treatment program


How to Testify


How to Testify  Be prepared  Tell the truth  Typical questions  Prepare a curriculum vitae  Review all documents carefully  Revisit the scene of any incident which plays an important part in the case


How to Testify  Establish a chronological list of events  Review your testimony thoroughly with your attorney  Learn what you can about the other attorney(s)  Dress in a comfortable but businesslike manner


How to Testify  Witnesses may be sequestered.  Stay calm and relaxed.  Establish eye contact with the decision maker, parents, or attorneys while speaking.  Be yourself.  Speak to the decision maker.


How to Testify  Be positive.  Do not argue.  Explain the case.  Avoid using abbreviations, acronyms, and education jargon.  Listen to the entire question. Be patient.


How to Testify  Think before you speak.  “Tell it like it is.” If you must relate profanity, preface it with something like, “These are not my words, but a direct quote from what little Timmy said to me.”  Your demeanor and presentation are important.


How to Testify  Acknowledge differences or weaknesses.  Meeting with the district’s attorney is proper.  Answer the question and stop.  Do not volunteer information.  Good answers: “yes, ”no,” or “I don’t know”


How to Testify  Don’t guess or speculate.  Hearsay.  You can qualify your answer.  Objections.  Do not try to be funny.


Poll: Questions? Comments? Positive behavior...


SpEd Law Do’s and Don’t Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


SpEd Law for School Psychs  

SpEd Law for School Psychs

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