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					       Clue: “THIS IS JEOPARDY!”
      Answer: WHAT ARE ESE LEGAL ISSUES?



ISRD MID-YEAR CONFERENCE FOR ESE ADMINISTRATORS


                  Gainesville, Florida
                  January 25-26, 2011

                 Julie J. Weatherly, Esq.
           Resolutions in Special Education, Inc.
                   6420 Tokeneak Trail
                    Mobile, AL 36695
                      (251) 607-7377
                    JJWEsq@aol.com
               www.specialresolutions.com
                    CATEGORY ONE: SPECIFIC ESE TOPICS

I.     CLUE FOR $200: THIS IS THE ONLY MAJOR PROVISION IN THE
       IDEA THAT HAS NEVER BEEN AMENDED BY CONGRESS

       Question: What is LRE and how do we make better LRE decisions?

A.     INTRODUCTION

        The issue of providing special education services in the Least Restrictive
Environment (LRE) can be particularly challenging, whether the school district is
proposing a more restrictive or less restrictive environment than that requested by the
parents. Most of the Circuit Courts of Appeal have established a legal standard for
making a determination of what is the LRE for students with disabilities. Regardless of
the restrictiveness of the environment for placement that is being proposed, educators
need to know how to make defensible recommendations when faced with placement
questions for students with disabilities.

       This section is designed to provide an overview of the LRE mandate generally, as
well as an overview of the current LRE legal standards enunciated by the courts.
Specifically, this presentation will also detail emerging trends in recent case law
concerning inclusion/LRE and practical guidance will be provided for Directors to take
back to their IEP Teams to ensure that LRE determinations are made in a defensible
manner.

B.     THE IDEA’S LRE PROVISIONS

       1.     The Statute

       The IDEA’s LRE provision is one that has not changed since its original
enactment in 1975. Specifically, the IDEA provides that each State must establish
procedures to assure that—

       to the maximum extent appropriate, children with disabilities...are
       educated with children who are not disabled, and special classes, separate
       schooling, or other removal of children with disabilities from the regular
       educational environment occurs only when the nature or severity of the
       disability of a child is such that education in regular classes with the use of
       supplementary aids and services cannot be achieved satisfactorily.

20 U.S.C. § 1412(a)(5).

       2.     The IDEA Regulations

       The IDEA regulations generally restate the statutory LRE provision at 34 C.F.R. §
114 but also add somewhat to it. For instance, the regulations require school districts to



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ensure that a “continuum of alternative placements” is available to meet the needs of
children with disabilities for special education and related services. The continuum must
include—

         the alternative placements listed in the definition of special education
         under [the regulations] (instruction in regular classes, special classes,
         special schools, home instruction, and instruction in hospitals and
         institutions) and make provision for supplementary services (such as
         resource room or itinerant instruction) to be provided in conjunction with
         regular class placement.

34 C.F.R. § 300.115.

        When determining the educational placement of a child with a disability, the
regulations also require school districts to ensure that placement decisions are made by a
group of persons, including the parents, and other persons knowledgeable about the child,
the meaning of the evaluation data, and the placement options. 34 C.F.R. §
300.116(a)(1). In addition, a child's placement is to be determined at least annually; be
based upon the child’s IEP; and be as close as possible to the child’s home. 34 C.F.R. §
116(b).

        The regulations further provide that unless the IEP of a child with a disability
requires some other arrangement, the child is to be educated in the school that he or she
would attend if nondisabled and that consideration must be given to any potential harmful
effect on the child or on the quality of services that he or she needs when selecting the
LRE. 34 C.F.R. § 300.116(c) and (d). Finally, placement teams must also ensure that a
child with a disability is not removed from education in age-appropriate regular
classrooms solely because of needed modifications in the general education curriculum.
34 C.F.R. § 300.116.1

C.       COURT-CREATED LRE STANDARDS GENERALLY

         Several Circuit Courts of Appeal have established certain standards and/or factors
that IEP Teams are to follow/use generally in making LRE decisions, and the standards
are very similar. As an initial matter and depending upon the jurisdiction of the school
district, relevant standards should be followed when determining what the LRE is for a
student with autism.

       The generally applicable court-created LRE standards enunciated thus far are as
follows:

1
  Although beyond the scope of these materials, it is important to note that there is also an LRE
“nonacademic settings” provision in the IDEA regulations. Specifically, 34 C.F.R. § 300.117 provides that
school districts must ensure that each child with a disability participates with nondisabled children in
extracurricular services and activities to the maximum extent appropriate to the needs of that child and that
the child has the supplementary aids and services determined by the child’s IEP Team to be appropriate and
necessary for the child to participate in nonacademic settings.


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        Second Circuit: P. v. Newington Bd. of Educ., 51 IDELR 2, 546 F.3d 111 (2d
Cir. 2008). “We conclude today that the two-pronged approach adopted by the Third,
Fifth, Ninth, Tenth, and Eleventh Circuits provides appropriate guidance to the district
courts without ‘too intrusive an inquiry into the educational policy choices that Congress
deliberately left to state and local school officials.’ Daniel R.R., 874 F.2d at 1046.
Pursuant to that test, a court should consider, first, ‘whether education in the regular
classroom, with the use of supplemental aids and services, can be achieved satisfactorily
for a given child,’ and, if not, then ‘whether the school has mainstreamed the child to the
maximum extent appropriate.’”

        Third Circuit: Oberti v. Board of Educ. of the Borough of Clementon Sch. Dist., 19
IDELR 908, 995 F.2d 1204 (3d Cir. 1993). Adopts the Fifth Circuit’s test in Daniel R.R.
and notes that in looking at the first prong of the two-part mainstreaming test, the court
should consider several factors, including: (1) whether the school district has made
reasonable efforts to accommodate the child in a regular classroom; (2) the educational
benefits available to the child in a regular class, with appropriate supplementary aids and
services, as compared to the benefits provided in a special education class; and (3) the
possible negative effects of the inclusion of the child on the education of the other
students in the class. “If, after considering these factors, the court determines that the
school district was justified in removing the child from the regular classroom and
providing education in a segregated, special education class, the court must consider the
second prong of the mainstreaming test whether the school has included the child in
school programs with nondisabled children to the maximum extent appropriate.”

        Fourth Circuit: DeVries v. Fairfax County Sch. Bd., 441 IDELR 555, 882 F.2d 876
  th
(4 Cir. 1989). While not actually enunciating an LRE “standard” per se, the court held that
mainstreaming is not required where (1) the disabled child would not receive an
educational benefit from mainstreaming into a regular class; (2) any marginal benefit
from mainstreaming would be significantly outweighed by benefits which could feasibly
be obtained only in a separate instructional setting; or (3) the disabled child is a
disruptive force in a regular classroom setting.

        Fifth Circuit: Daniel R.R. v. State Bd. Educ., 411 IDELR 433, 874 F.2d 1036 (5th
Cir. 1989). First, we ask whether education in the regular classroom, with the use of
supplemental aids and services, can be achieved satisfactorily for a given child. If it
cannot and the school intends to provide special education or to remove the child from
regular education, we ask, second, whether the school has mainstreamed the child to the
maximum extent appropriate.

        Sixth Circuit: Roncker v. Walter, 554 IDELR 381, 700 F.2d 1058 (6th Cir.), cert.
denied, Cincinnati City Sch. Dist. v. Roncker, 464 U.S. 864 (1983). In a case where the
segregated facility is considered superior, the court should determine whether the services
which make that placement superior could be feasibly provided in a non-segregated
setting. If they can, the placement in the segregated school would be inappropriate under
the Act. Removing a child from the mainstream setting is permissible when “the
handicapped child would not benefit from mainstreaming,” when “any marginal benefits



                                            4
received from mainstreaming are far outweighed by the benefits gained from services
which could not feasibly be provided in the non-segregated setting,” and when “the
handicapped child is a disruptive force to the non-segregated setting.”

         Seventh Circuit: Beth B. v. Van Clay, 36 IDELR 121, 282 F.3d 492 (7th Cir.
2002). “We find it unnecessary at this point in time to adopt a formal test for district
courts uniformly to apply when deciding LRE cases. The Act itself provides enough of a
framework for our discussion: if Beth’s education at Lake Bluff Middle School was
satisfactory, the school district would be in violation of the Act by removing her. If not,
if its recommended placement will mainstream her to the maximum appropriate extent,
no violation occurs.”

        Eighth Circuit: A.W. v. Northwest R-1 Sch. Dist., 558 IDELR 294, 813 F.2d 158
(8th Cir. 1987). Adopts Sixth Circuit’s standard in Roncker but emphasizes that the
statutory language “significantly qualifies the mainstreaming requirement by stating that
it should be implemented to the ‘maximum extent appropriate’… and that it is
inapplicable where education in a mainstream environment ‘cannot be achieved
satisfactorily’….”

        Ninth Circuit: Sacramento City Unif. Sch. Dist. Bd. of Educ. v. Holland, 20
IDELR 812, 14 F.3d 1398 (9th Cir. 1994). District court’s use of four factor balancing test
is affirmed, where court considered (1) the educational benefits of placing the child in a
full-time regular education program, (2) the non-academic benefits of such a placement,
(3) the effect the child would have on the teacher and the other students in the class, and
(4) the costs associated with this placement.

         Tenth Circuit: L.B. v. Nebo Sch. Dist.., 41 IDELR 206, 379 F.3d 966 (10th Cir.
2004). Because the Sixth Circuit’s Roncker test is most apposite in cases where the more
restrictive placement is considered a superior educational choice, it is unsuitable in cases
where the least restrictive placement is also the superior educational choice. For that
reason, the Roncker test is not appropriate in all cases. The Fifth Circuit’s Daniel R.R.
test, on the other hand, better tracks the language of the IDEA’s least restrictive
environment requirement and is applicable in all cases.

       Eleventh Circuit: Greer v. Rome City Sch. Dist., 18 IDELR 412, 950 F.2d 688
(11th Cir. 1991), withdrawn, 956 F.2d 1025 (11th Cir. 1992), reinstated, 967 F.2d 470
(11th Cir. 1992). Adopts the Fifth Circuit’s standard in Daniel R.R.

D.     RECENT LRE CASES

A.G. v. Wissahickon Sch. Dist., 54 IDELR 113 (3d Cir. 2010) (unpublished). Though
the parent wanted the nonverbal 18-year-old to spend the entire school day with
nondisabled peers, the district’s placement in only one academic class with regular
education students is appropriate given the student’s cognitive deficits and disruptive
behavior. In this case, the student can not be satisfactorily educated full-time in a regular
class, even with accommodations.            While the district implemented numerous



                                             5
supplemental aids and services, including modifying the curriculum, the student reaped
little academic or social benefit from mainstreaming. However, she made significant
progress in her life skills class. Further, the student was prone to loud vocalizations, was
not toilet trained, and engaged in other behavior that would negatively affect her
classmates.

C.P. v. Department of Educ., 54 IDELR 218 (D. Haw. 2010). Self-contained classroom
is the LRE for 9-year-old student where student’s aggressive behaviors, which included
hitting staff and other students, throwing a stapler, upending furniture and urinating in
public had a negative impact upon teachers and classmates. In addition, the student made
behavioral progress after three weeks of one-to-one instruction in the self-contained
classroom, and the IEP team reconsidered his placement and amended the IEP to provide
for gradual re-integration into the general student population based upon that progress.

Las Virgenes Unif. Sch. Dist. v. S.K., 54 IDELR 289 (C.D. Cal. 2010). Based upon the
autistic student’s significant cognitive and communication deficits, he would not reap any
benefit from the parents’ desired full-time mainstream placement. Because the parent’s
desired placement would confer no academic or social benefit to the student, the district
did not violate the IDEA’s LRE mandate when it offered a blended placement instead.

M.H. v. New York City Dept. of Educ. 54 IDELR 221 (S.D. N.Y. 2010). Based upon the
testimony of a psychologist that the autistic student required one-to-one instruction and
that the presence of typically developing peers would have distracted him, school district
must reimburse parents for private school tuition. The student would have obtained no
benefit from a less restrictive environment or exposure to peers.

B.S. v. Placentia-Yorba Linda Unified Sch. Dist., 51 IDELR 237 (9th Cir. 2009)
(unpublished). School district’s recommended placement of 4th grader with autism in the
more restrictive SDC placement for language arts instruction, rather than in general
education language arts class, is appropriate as necessary to meet student’s unique
abilities and needs. School district had no obligation to offer mainstream placement,
since educational and non-academic benefits to be derived from mainstream program
were minimal.

M.S. v. Fairfax County Sch. Bd., 51 IDELR 148, 553 F.3d 315 (4th Cir. 2009). District
court’s denial of reimbursement and conclusion that parents’ placement of teenager with
mild to moderate autism at private Lindamood-Bell facility was highly restrictive is
affirmed. Issue of least restrictive environment was proper for consideration in
determining appropriateness of parental placement for purposes of reimbursement award.
“Although we have never held that parental placements must meet the least restrictive
environment requirement, the district court’s consideration of Lindamood-Bell’s
restrictive nature was proper because it considered the restrictive nature only as a factor
in determining whether the placement was appropriate under the IDEA, not as a
dispositive requirement.”




                                             6
E.G. and M.G. v. City School District of New Rochelle, 52 IDELR 228, 606 F. Supp.2d
384 (S.D.N.Y. 2009): Parents’ claim for reimbursement is denied on grounds that they
failed to show kindergarten student with autism was denied FAPE in least restrictive
environment. School district’s proposed program, which includes only five half days of
regular classroom time is appropriate in light of student’s educational needs requiring
highly structured environment to develop social and language skills. Parents’ desire for
additional time in regular classroom with 1:1 aide is not appropriate.

Seladoki v. Bellaire Local Sch. Dist. Bd. of Educ., 53 IDELR 153 (S.D. Ohio 2009).
School district satisfied its obligation to provide FAPE in the least restrictive
environment to 6-year-old autistic student, where IEP proposed that student would
receive special education in public school program by teacher and aides outside of
regular education classroom for more than 60% of school day. While some students with
autism may require extensive ABA services, neither IDEA nor judicial decisions require
a set amount of ABA (such as 30 to 40 hours per week of ABA).

E.     WHAT ABOUT ONE-TO-ONE AIDES AND LRE?

       Some situations where a school district assigns a one-to-one aide to a student with
autism could actually create the most restrictive environment for the student. IEP teams
must be very careful to craft a plan for “weaning” or “fading” the aide from the student to
ensure that skills of independence are developed, where appropriate.

A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 51 IDELR 147, 553 F.3d 165
(2d Cir. 2009). District court’s decision that school district’s program was inappropriate
because the provision of a one-to-one aide promoted “learned helplessness” is
overturned. Clearly, the State Review Officer’s findings should have been affirmed, as
the evidence identified ways in which the school district developed M.C.’s independence,
for example, by decreasing the level of prompting where it was no longer needed. In
addition, the IEP stressed independence in following daily routines and the application of
reading and math skills. The student with autism also made progress toward
independence in co-taught classes and a progress report indicated that he had mastered
the goal of independently following classroom routines. Among other things, the student
no longer needed prompting and an escort to use the bathroom.

F.     TIPS FOR MAKING BETTER LRE DETERMINATIONS

1.     Remember that the LRE mandate does not trump FAPE. The pertinent overall
       question for every student is “what is the least restrictive environment where this
       student can receive meaningful (rather than minimal or de minimis) educational
       benefit?

       a.      Education with nondisabled peers is required to the “maximum extent
               appropriate,” not to the “maximum extent possible.”




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2.   Specifically identify the individual needs/target skills of the student and prioritize
     them, taking into consideration the nature/severity of the student’s disability and
     the student’s age:

     a.     Academic needs/skills (strengths/challenges)

     b.     Nonacademic needs/skills (behavioral, socialization/interpersonal,
            communication, motor, modeling language/behavior, skills of
            independence/personal responsibility, generalization)

3.   Determine what level of services/supports is necessary to meet the defined needs
     and to support progress on goals/objectives.

     a.     Intensive/one-to-one instruction

     b.     Supplementary aids and services

            i.      resource room
            ii.     itinerant instruction
            iii.    modification of curriculum
            iv.     teacher training
            v.      behavior management
            vi.     classroom aide
            vii.    personal aide
            viii.   assistive technology devices/services

4.   Determine whether the student’s needs can be met satisfactorily in the regular
     education classroom with/without supplementary aids and services.

     a.     Level of disruption in the regular education environment

            i.      Acting out behavior(s)
            ii.     Deprivation of teacher attention/benefit to other students in class

     b.     Cost

     c.     Harmful effects upon the student

     d.     Meaningful educational benefit




                                           8
5.   Identify what efforts the school has made to educate in the regular education
     classroom and to try less restrictive options.

     a.     Identify efforts made/supplemental services provided

     b.     Consider consulting with LRE/inclusion expert regarding attempts

     c.     Review data regarding progress/meaningful benefit

6.   If needs can not be/have not been satisfactorily met in the regular education
     classroom, slowly move along the continuum of alternative placements beginning
     with less restrictive options and moving to the most restrictive to determine where
     meaningful benefit can be received:

     a.     regular classroom instruction for the entire school day, with some
            modifications to the regular instructional program;

     b.     regular classroom instruction for the entire school day, with
            individualization of instruction by the classroom teacher for part of the
            school day;

     c.     regular classroom instruction for the entire school day, with individualized
            instruction services by a special education teacher or related service staff
            member for part of the school day;

     d.     regular classroom instruction for most of the school day, with
            individualized instruction or services provided in another setting for part
            of the school day;

     e.     regular classroom instruction for most of the school day, with special
            education instruction in basic skills areas and/or related services provided
            in a resource room for part of the school day;

     f.     resource room instruction for part of the school day, with instruction in the
            regular classroom for part of the school day;

     g.     self-contained classroom instruction, with instruction in the regular
            classroom for part of the school day;

     h.     full-time instruction in self-contained classroom with opportunities for
            participation with non-eligible students in non-academic and
            extracurricular activities;

     i.     full-time instruction in a self-contained (separate) school;




                                          9
       j.      instruction provided in a hospital or residential facility settings on an
               individual or group basis;

       k.      homebound instruction.

7.     If the parent disputes the school’s LRE recommendation, using a
       contrast/compare approach, define and weigh the academic and nonacademic
       benefits of the proposed placement versus the parents’ desired placement.

8.     If removal from the regular classroom is determined to be appropriate, determine
       what alternative mainstreaming opportunities, to the maximum extent appropriate,
       can be or have been made available.

       i.      P.E., Art, Music, Electives
       ii.     Lunch
       iii.    Nonacademic and extracurricular activities
       iv.     Reverse mainstreaming

9.     When LRE is at issue, consider negotiating the “stay-put” in order to implement a
       “trial” placement that will not alter the “stay-put.”

G.     FINAL JEOPARDY QUESTIONS IN THE LRE AND PLACEMENT
       CATEGORY

1.     With the push for inclusion, class size, and Response to intervention and the use
       of ESE to provide these services, what are other districts doing for the students
       that are failing in these settings already identified as ESE?

2.     If we as a district say that only students on alternate assessment can be in self-
       contained ESE classroom, how does that work with LRE? It seems we are
       limiting the continuum of services, and is that legal?

3.     Residential Placements?

II.    CLUE FOR $400: THIS IS THE MOST FRUSTRATING ESE LEGAL
       ISSUE FOR LOCAL SCHOOL ADMINISTRATORS

       Question: What is Discipline and what are the key rules for compliance?

A.     Key Rule #1: Maintain Clear and Compliant Discipline Procedures and
       Adequately Training Disciplinarians on the Procedures

        First and foremost, school districts should have clear procedures in place that
direct school disciplinarians as to how to handle disciplinary infractions committed by
students with disabilities. These should be as clear and concise as possible, so that there
is not a lot of room for discretion in terms of the actions that are to be taken.



                                            10
        Assuming clear and compliant procedures are in place, school disciplinarians
must be trained with respect to those procedures. The failure to train can not only leave
the disciplinarian in potential legal trouble, but has the strong potential for landing the
entire school district in legal hot water for maintaining a “custom or policy” of failing to
address the issue.

         Under 42 U.S.C. § 1983, there is a good deal of judicial authority that a school
district/governmental entity can be held liable for damages if there is a “custom or
policy” on the part of the school district of failing to ensure that school disciplinarians are
trained properly to address disciplinary infractions committed by students with
disabilities. In addition, there is significant judicial authority to support money damages
remedies under Section 504/the Americans with Disabilities Act for intentional
discrimination, “deliberate indifference to” or “reckless disregard for” discriminatory
activity in the context of discipline of students with disabilities.

B.     Key Rule #2: Remember that It is Really All about “Change of Placement”

        Appropriate and compliant disciplinary procedures applicable to students with
disabilities are best understood by considering, as an initial matter, whether a
contemplated disciplinary removal will amount to a “change of placement.” Of course,
“placement” is generally defined by the student’s IEP and the educational and related
services set forth in it, not the actual school site or location. If the IEP-based services are
changed or removed via unilateral disciplinary removal, a potential “change of
placement” has occurred and certain procedures must be followed to ensure that the
“change of placement” is made in accordance with the law. Thus, determining whether a
particular disciplinary removal will constitute a “change of placement” for a student with
a disability is essential for then determining what process needs to be followed in order to
ensure legal compliance. When in doubt, call upon the IEP Team to take action to ensure
that appropriate procedures are followed in questionable cases.

        Clearly, for purposes of removals of a child with a disability from the child’s
current educational placement, a change of placement occurs if the removal is for more
than 10 consecutive school days. 34 C.F.R. § 300.536(a)(1). This does not mean that a
student with a disability can not be removed for disciplinary purposes for more than 10
consecutive days, however. Rather, it means that should such a “change of placement”
occur, applicable “change of placement” procedures must be followed via the IEP Team
process.

        For purposes of removals of a child with a disability from the child’s current
educational placement, a change of placement occurs if the child has been subjected to a
series of removals that constitute a pattern because the series of removals total more than
10 school days in a school year; because the child’s behavior is substantially similar to
the child’s behavior in previous incidents that resulted in the series of removals; and
because of such additional factors as the length of each removal, the total amount of time
the child has been removed, and the proximity of the removals to one another. 34 C.F.R.



                                              11
§ 300.536(2). Using this standard, an administrator and the student’s special education
teacher, at a minimum, are required to determine whether a pattern of removals
constitutes a change of placement.

        Unfortunately, the “10-day cumulative” language is not clear with respect to
exactly which removals for more than 10 school days in a school year are a “change of
placement” and which ones are not. For that reason, it has been common practice for
school districts nationally to treat any removal beyond 10 days in a school year as a
“change of placement” and follow the applicable procedures for such a “change of
placement” to ensure that a removal is appropriate and will not be legally challenged. In
addition, suspensions for more than 10 days in a school year are considered significant by
the U.S. Department of Education (and, therefore, the Florida Department of Education)
in its monitoring process.

C.     Key Rule #3: Keep Appropriate and Accurate Data with Respect to the Use
       of Suspension or other Disciplinary Removals from School

        For several reasons, keeping appropriate and accurate data with respect to the use
of suspension with students with disabilities is vital. First, the Florida Department of
Education is required to monitor the extent to which suspension is used with students
with disabilities to ensure that school districts are not over-suspending disabled students
generally and are not suspending students disproportionately in accordance with race or
other discriminatory indicators. That data must be tracked and reported accurately.

       Another reason for keeping and tracking appropriate data with respect to the
number of suspensions to which a student is subjected is to ensure that illegal “changes of
placement” have not occurred. Procedures must be in place for “red-flagging” instances
where students are coming close to a “change of placement” due to the use of unilateral
suspensions/removals from school for disciplinary reasons.

        Not only is data-keeping important to ensuring legal compliance in the area of
discipline of students with disabilities, it is also important to ensure that data is entered
correctly to reflect what actually occurred. For instance, if a “change of placement” is
made using the correct IEP-based decisionmaking process and a student’s placement is
changed (i.e., to the alternative school, etc.), that is not a “suspension” and should not be
recorded as such. Instead, this is an appropriate change of placement made through the
IEP process.

D.     Key Rule #4: Track Disciplinary Removals from School other than Those
       that are Suspensions or Expulsions

        Do not forget to consider removals that are not called “suspension” or “expulsion”
as part of ensuring that illegal changes of placement do not occur. For instance, asking
parents to keep the student home for several days for “home time out” or a “cool-down
period” could count as removals that amount to a change of placement. Similarly,
moving the student to the principal’s office all day every day will eventually constitute a



                                             12
change of placement that runs afoul of the IDEA’s procedures. In-school suspension
must also be considered in determining whether a disciplinary change of placement has
occurred. Again, any disciplinary removal must trigger the question: “is this going to
constitute a change of placement for this student as defined by this student’s IEP?”

E.     Key Rule #5: Make Appropriate Manifestation Determinations

        Perhaps the mistakes that occur in the process of making manifestation
determinations lie in the fact that some educators do not understand the purpose of the
manifestation determination. Under the 2004 IDEA, the questions to consider changed
significantly from previous law to require the following:

       …[W]ithin 10 school days of any decision to change the placement of a child with
       a disability because of a violation of a code of student conduct, the local
       educational agency, the parent and relevant members of the IEP Team (as
       determined by the parent and local educational agency) shall review all relevant
       information in the student’s file, including the child’s IEP, any teacher
       observations, and any relevant information provided by the parents to determine:

       (i)   If the conduct in question was caused by, or had a direct and
       substantial relationship to, the child’s disability; or

       (ii)  if the conduct in question was the direct result of the local educational
       agency’s failure to implement the IEP.

        If the local educational agency, the parent, and relevant members of the IEP Team
determine that either [(i) or (ii) above] is applicable for the child, the conduct shall be
determined to be a manifestation of the child’s disability. 20 U.S.C. § 1415(k)(1)(E). In
addition, the IDEA regulations provide that, if the LEA, the parent, and members of the
child’s IEP Team determine that the child’s behavior was the direct result of the LEA’s
failure to implement the child’s IEP, the LEA must take immediate steps to remedy those
deficiencies. 34 C.F.R. § 300.530(e)(3).

       If the local educational agency, the parent, and relevant members of the IEP Team
make the determination that the conduct was a manifestation of the child’s disability, the
IEP Team shall:

       (i)     conduct a functional behavioral assessment, and implement a behavioral
       intervention plan for such child, provided that the local educational agency had
       not conducted such assessment prior to such determination before the behavior
       that resulted in a change of placement (one that would exceed 10 days or a 45-day
       interim alternative placement);

       (ii)   in the situation where a behavioral intervention plan has been developed,
       review the behavioral intervention plan if the child already has such a behavioral
       intervention plan, and modify it, as necessary, to address the behavior; and



                                            13
       (iii)   return the child to the placement from which the child was removed,
       unless the parent and the local educational agency agree to a change of placement
       as part of the modification of the behavioral intervention plan.

20 U.S.C. § 1415(k)(1)(F).

F.     Key Rule #6: Use the 45-day “Special Circumstances” Removal Provision
       Correctly

       The 45-day “special circumstance” removal provision in the IDEA is a commonly
misunderstood one. Not only do many educators incorrectly interpret the 45-day removal
provision as an absolute bar to what can be done, there is much misinterpretation of the
circumstances to which it is to be applied. With respect to certain dangerous students, the
IDEA provides that:

       School personnel may remove a student to an interim alternative
       educational setting for not more than 45 school days without regard to
       whether the behavior is determined to be a manifestation of the child’s
       disability, in cases where a child—

       (i) carries or possesses a weapon to or at school, on school premises, or to
       or at a school function under the jurisdiction of a State or local educational
       agency;

       (ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of
       a controlled substance, while at school, on school premises, or at a school
       function under the jurisdiction of a State or local educational agency; or

       (iii) has inflicted serious bodily injury on another person while at school,
       on school premises, or at a school function under the jurisdiction of a State
       or local educational agency.

20 U.S.C. § 1415(k)(1)(G).

       Perhaps the most common mistake that is made lies within a common
misunderstanding that when a student is involved in one of the “special circumstances”
(weapon, drug or serious bodily injury), the only action that the school district can take is
removal of that student to an alternative setting for up to 45 school days. This is clearly
not the case, however. This provision of the law was intended to provide school
personnel, in cases involving these special circumstances, up to 45 school days to
appropriately address the infraction that occurred. In the meantime, a unilateral removal,
without regard to manifestation, can be made. However, an IEP Team can convene
during that time and propose a more permanent change of placement via the IEP Team
process. The 45-day removal provision, therefore, imposes a limitation upon what an




                                             14
individual disciplinarian can do alone, but does not limit what an IEP Team can
determine is appropriate.

        Another common mistake made is with respect to an over-interpretation of the
special circumstances to which the 45-day removal provision applies. Specifically, the
definition of “serious bodily injury” under the IDEA references the definition contained
in 18 U.S.C. § 1365(3)(h). There, the term ''serious bodily injury'' means bodily injury
which involves: (a) a substantial risk of death; (b) extreme physical pain; (c)
protracted and obvious disfigurement; or (d) protracted loss or impairment of the
function of a bodily member, organ, or mental faculty. While this language may be
somewhat unclear, school personnel should interpret this provision to include only the
worst of situations that clearly fall within the restrictive definition. When there is serious
question, the school should convene an IEP Team meeting and properly seek a change of
placement for the student via the IEP Team process.

G.     Key Rule #7: Remember that Students Identified under Section 504 also
       have Special Disciplinary Rights

        Essentially, the bulk of the rules for disciplining students with disabilities have
their “roots” in Section 504. This is so because Section 504 of the Rehabilitation Act of
1973 prohibits discrimination on the basis of disability. Thus, in terms of discipline, the
general notion is that students with disabilities should not be deprived of educational
services if the conduct for which they are being disciplined is “based upon” (a/k/a “a
manifestation of”) their disabilities. For the most part, the Office for Civil Rights (OCR)
applies the same rules of discipline for students under Section 504 that exist for those
students who are also disabled under the IDEA, particularly the requirement for making
manifestation determinations when a disciplinary change of placement occurs.

H.     FINAL JEOPARDY QUESTIONS IN THE DISCIPLINE CATEGORY

1.     Student is expelled and prohibited from graduation exercises by the school board.
       Board policy did not specifically address this issue. Parent hired an attorney, not
       to dispute expulsion, but exclusion from graduation exercises. There are no
       parental concerns about home instruction currently, nor are there any other
       concerns about placement options. ESE office has remained neutral during these
       proceedings. Please comment.

2.     Legality of SRO interventions at schools.

3.     Is there ever a situation, other than weapons or drugs, where a principal can
       override the IEP team and place a child unilaterally in another setting?

4.     What is the best option with students who are suspended because of
       drugs/weapons, etc.?




                                             15
5.         Students who have been placed in a self-contained classroom for behavior and
           continue to stay in that placement for years. These students do not seem to be
           given a chance to show what they are capable of, instead they are labeled and
           stuck in this setting? How are districts using PBS and RTI to move them back
           into the gen ed setting?

6.         Student transfers from another school district, having had alternate placement at
           prior school. Current school meets with parent and IEP team to discuss
           placement options. It is agreed that student will attend alternative school. An IEP
           meeting is then scheduled to be held at that school site. Please comment.

7.         I have heard that there may be a change in the 45 day requirement for
           Alternative Placement for ESE students charged with felonies (drugs and
           Weapons). Is that something that might be passed?

8.         Legality of someone not trained in the selected training using restraint.

9.        10 day rule in Florida--guidance seclusion timeout--usage in Florida districts and
          guidance.
10.       Restraint/Seclusion – what are courts looking for as far as safety, documentation,
          and other issues?
11.       Should a manifestation determination meeting be held for a student who is failing
          to respond to RTI (behavior) interventions?

III.      CLUE for $800: THIS IS WHAT IS GENERALLY REQUIRED BEFORE
          A STUDENT MAY BE REFERRED FOR ESE CONSIDERATION

          Question: What is RtI and what are the “real world” legal issues?

        In the age of RtI, the “real world” legal issues that are arising primarily have to do
with alleged child-find violations. As would be expected, there are increasing claims that
a school district has failed to timely refer and evaluate a child for suspected disability, as
well as increasing challenges to determinations that a student, once referred and
evaluated, does not qualify for services. Below are child-find/identification/eligibility
do’s and don’ts to keep in mind.

A.        CHILD FIND/REFERRAL PROCESS

DO train all school personnel to take the “Child Study Team” process seriously and to
understand the role of such Teams.

        To prevent disproportionality/overrepresentation based upon race or ethnicity.
        To prevent overidentification of students in special education generally.




                                               16
DO be aware of the requirements relative to disproportionality and keep accurate
identification data by race, ethnicity and disability areas.

DO train all school personnel (including, importantly, regular education teachers and
those who serve on Child Study Teams) on the overall legal requirements applicable to
the identification and education of students with disabilities.

      Individuals with Disabilities Education Act (IDEA)
      Americans with Disabilities Act (ADA)
      Section 504 of the Rehabilitation Act of 1973 (Section 504)
      Family Educational Rights and Privacy Act (FERPA)
      No Child Left Behind (NCLB)
      Applicable State Statutes, Regulations and/or Rules

DO ensure that if/when developing and implementing an RtI approach to child-
find/referral, the process is implemented with fidelity and that a student is referred
without delay when progress monitoring data indicates insufficient response to
interventions.

       Jamie S. v. Milwaukee Pub. Schs., 48 IDELR 219, 519 F.Supp.2d 870 (E.D. Wis.
       2007). District failed to refer children with suspected disabilities in a timely
       fashion and improperly extended the initial evaluation process. In addition, the
       State DOE violated its legal responsibility to properly supervise and monitor the
       LEA’s compliance. [Note: The State DOE settled the case with the class
       plaintiffs, requiring the LEA to take extensive action and to be monitored by an
       outside authority. The LEA objected to the settlement, but the district court found
       it to be fair. 50 IDELR 127 (E.D. Wis. 2008). The court then went on to order
       additional remedies against the school district. 52 IDELR 257 (E.D. Wis. 2009)
       [where district has made only minimal efforts to remedy its systemic child find
       violations, additional interventions are necessary, including the appointment of a
       special education professional to monitor the district’s review of each student’s
       compensatory education needs.          The independent monitor will establish
       guidelines for deciding which individuals qualify as class members, evaluating
       each class member’s eligibility for compensatory services and determining the
       amount, type and duration of the services. In addition, a “hybrid IEP team” will
       apply those guidelines in assessing each student’s right to compensatory
       education. The hybrid IEP team will include at least four permanent members,
       selected from district personnel, and “rotating” members who are knowledgeable
       about each student’s unique needs. In addition, the district must notify potential
       class members of the remedial scheme and students whose evaluations were
       delayed during the relevant time period are to receive individualized notice of the
       class action, and for all other potential class members, the district can provide a
       general notice on its web site].

       Montgomery Co. Bd. of Educ., 51 IDELR 259 (SEA Ala. 2008). School district
       was not required to refer fourth-grade student for an evaluation where the AAC



                                           17
requires districts to implement “pre-referral” interventions for at least 8 weeks
before referring a student for a special education evaluation. Indeed, the district
referred the student to her school’s student intervention team after she had
received an F in math. Because she earned a C in math after receiving
interventions, the district did not err in determining that a special education
evaluation was not necessary. Although the student had some inappropriate
behaviors, it was proper to conclude that they were not severe enough to qualify
the student as having ED. Notably, the district developed a positive behavior plan
for the student and notified the parent that an FBA would be done when the
student started fifth grade.

Stone County (MS) Sch. Dist., 52 IDELR 51 (OCR 2008). Where district placed
a 6th grade student with ADHD on academic interventions pursuant to its RTI
model in August 2007, district did not err when it refused to conduct an
evaluation in October at parent’s request. The district based its decision on the
fact that the student was already receiving Tier II interventions, that his grades
had improved, and that he had done well on standardized tests and on the
district’s screening tests the prior year. The district was not required to evaluate
the student, given its supported belief that he did not need special education
services.     The information the district reviewed after receiving the parent’s
request indicated that the student was making academic progress, that his grades
improved as a result of interventions, and that he was capable of performing well
on tests. Importantly, however, the district did violate 504 by neglecting to notify
the parent of its decision not to evaluate or to provide notice of the 504 procedural
safeguards.

El Paso Indep. Sch. Dist. v. Richard R., 50 IDELR 256, 567 F.Supp.2d 918 (W.D.
Tex. 2008), aff’d in part and rev’d in part on other grounds, 53 IDELR 175, 59
F.3d 417 (5th Cir. 2009), cert. denied, 110 LRP 44853 (2010). District violated its
child find obligations by repeatedly referring a student with ADHD for
interventions rather than an evaluation. While the interventions included Section
504 accommodations, additional tutoring, and Saturday tutoring camps, the
interventions did not demonstrate positive academic benefits. Not only did the
student continue to struggle in reading, math and science, he failed the Texas
Assessment of Knowledge and Skills test for three years in a row. “Why [the
district’s] STAT committee would have suggested these measures, knowing that
[the student] had undertaken each of these steps in the past three years and that
none had helped him achieve passing TAKS scores, simply baffles this court.”

A.P. v. Woodstock Bd. of Educ., 50 IDELR 275 (D. Conn. 2008). District did not
err in failing to refer student for a special education evaluation. Although the
student had some difficulties in the classroom, the evidence showed that he
responded well to interventions, received As, Bs and Cs on his report card, and
performed “on goal” on a statewide assessment without any accommodations. In
addition, the teacher had regular contact with the parents about the student’s
progress. “This is decidedly not a case in which a school turned a blind eye to a



                                     18
       child in need….To the contrary, [the teacher] acted conscientiously,
       communicating regularly with [the mother] and utilizing special strategies to help
       [the student] succeed.” Although the student was ultimately found eligible for
       services in 6th grade (as a student with a nonverbal LD), the district did not err in
       failing to evaluate sooner due to the student’s response to interventions.

DO remember that the concept of “continuous progress monitoring” is applicable--
regardless of whether an overall RtI approach for identification is used--in order to ensure
that a student’s difficulties are not due to an overall lack of “appropriate”
(scientific/research/evidence-based) instruction.

       Letter to Zirkel, 50 IDELR 49 (OSEP 2008). When asked to clarify whether an
       SLD evaluation team must consider continuous progress monitoring, regardless of
       whether the approach used is RtI, OSEP responded that the eligibility group must
       consider data-based documentation of repeated assessments of achievement at
       reasonable intervals, reflecting formal assessment of student progress during
       instruction, which was provided to the child’s parents, in order to ensure that
       underachievement in a child suspected of having a SLD is not due to lack of
       appropriate instruction in reading or math. “The regulation does not use the term
       ‘continuous progress monitoring.’”        “‘A critical hallmark of appropriate
       instruction is that data documenting a child’s progress are systematically collected
       and analyzed and that parents are kept informed of the child’s progress.’ We
       believe that this information is necessary to ensure that a child’s
       underachievement is not due to lack of appropriate instruction.”

DO stress the importance and affirmative nature of IDEA’s child find requirements,
watch carefully for “referral flags” and do not wait for parents to initiate a referral.

    Action required when there is “reason to suspect” that the student may be a child
     with a disability.
    Action required when there is “reason to believe” the student is a child in need of
     special education.

       Compton Unified Sch. Dist. v. Addison, 54 IDELR 71, 598 F.3d 1181 (9th Cir.
       2010). Where failing 10th grade student was referred by the school to a mental
       health counselor (who ultimately recommended an evaluation), her teachers
       indicated that her work was “gibberish and incomprehensible,” she played with
       dolls in class and urinated on herself, district can not avoid a child find claim
       based upon an argument that it did not take any affirmative action in response to
       high schooler’s academic and emotional difficulties because the parent did not
       request an evaluation. Where the district argued that the IDEA’s written notice
       requirement applies only to proposals or refusals to initiate a change in a student’s
       identification, evaluation or placement and its decision to do nothing did not
       qualify as an affirmative refusal to act, the argument is rejected. The Court will
       not interpret a statute in a manner that produces “absurd” results and the IDEA’s
       provision addressing the right to file a due process complaint is separate from the



                                            19
written notice requirement. “Section 1415(b)(6)(A) states that a party may present
a complaint ‘with respect to any matter relating to the identification, evaluation,
or educational placement of the child,’” and the IDEA’s written notice
requirement does not limit the scope of the due process complaint provision. By
alleging that the district failed to take any action with regard to the student’s
disabilities, the parent pleaded a viable IDEA claim. (Note: The dissent in this
case noted that determining that a “refusal” to identify or evaluate requires
purposeful action by the district and the parent did not have the right to bring a
child find claim without a request and a “refusal” on the part of the district).

D.K. v. Abington Sch. Dist., 54 IDELR 119 (E.D. Pa. 2010). To establish a child-
find violation, a parent must first show the district knew, or should have known,
that the child was a student with a disability. Before the district learned of his
ADHD diagnosis, it had insufficient reason to suspect a disability. Rather, the
student did not stand out from his classmates and his inattentiveness could be
explained by his young age. Although the school psychologist acknowledged
after the fact that the student may have had some behavior consistent with ADHD,
there was also evidence that the student’s difficulties were less pronounced when
he was first evaluated and found ineligible and were typical of a 5 or 6-year-old.

Richard S. v. Wissahickon Sch. Dist., 52 IDELR 245 (3d Cir. 2009). District
court’s ruling that district did not fail to timely identify student as disabled prior
to the eighth grade is affirmed. The district court found that the district did not
focus solely upon the ability/achievement analysis to determine that there was no
evidence of LD at the relevant time. In addition, the district court considered the
testimony of the student’s teachers that the student was not one who had problems
with attention, impulsivity, or hyperactivity during the relevant period. Indeed,
the district court pointed to extensive evidence that, in the seventh and eighth
grades, the student was perceived by professional educators to be an average
student who was making meaningful progress, but whose increasing difficulty in
school was attributable to low motivation, frequent absences and failure to
complete homework.

Anello v. Indian River Sch. Dist., 53 IDELR 253 (3d Cir. 2009). District did not
violate the IDEA in failing to evaluate a transfer student for LD until the middle
of her third grade year, because the district had no reason to suspect a disability
before the parents requested an evaluation. The parents’ claim that the student’s
struggles under her 504 plan should have alerted the district to the need for an
IDEA evaluation is rejected. Rather, the student was successful under her 504
Plan, as the student’s grades had been improving in all subjects. Although the
student ultimately failed third grade and a statewide standardized assessment, the
district could not have predicted the student’s failure.

Regional Sch. Dist. No. 9 Bd. of Educ. v. Mr. and Mrs. M., 53 IDELR 8 (D.
Conn. 2009). Where district violated its child find obligation, it must reimburse
the parents for the student’s therapeutic placements. Although the student’s



                                     20
hospitalization did not in itself qualify her as a child with an emotional
disturbance, "[t]he standard for triggering the child find duty is suspicion of a
disability rather than factual knowledge of a qualifying disability.” The parent
completed a health assessment form just one week before the student’s
hospitalization, when she enrolled the student in her local high school. The form
stated that the student had been diagnosed with depression the previous year and
was taking an antidepressant. Those statements, combined with the student’s
subsequent hospitalization, should have raised a suspicion that the student
suffered from an emotional disturbance over a long period of time. Based upon
private evaluations, the student is eligible for IDEA services and her parents are
entitled to reimbursement.

Hawkins v. District of Columbia, 49 IDELR 213, 539 F.Supp.2d 108 (D. D.C.
2008). Where district made no effort to locate a child referred by the Head Start
program, even after being ordered to do so by a hearing officer, the district denied
FAPE to the child. “The sad truth is that if [the district] had complied with the
July 2006 [administrative order] by contacting [the parent’s] counsel to coordinate
a meeting, it is entirely possible—indeed likely—that [the child] could have been
‘located’ then.” The child find provision applies to all children, regardless of
whether they are enrolled in school. The parent’s failure to enroll the child in his
neighborhood school did not excuse the district’s failure to comply with child find
obligations.

Wilson County (NC) Pub. Schs., 51 IDELR 137 (OCR 2008). District could not
avoid liability for its child find violation merely by pointing out that the 7th-
grader’s parents never requested a special education assessment. The student’s
poor grades, inappropriate behaviors and ADHD tendencies should have given the
district reason to suspect the existence of a disability. Along with poor academic
performance, the student was suspended from the school bus on several occasions
for offenses that included throwing objects, moving from seat to seat, and hitting
fellow classmates. In addition, the student failed math and social studies and will
repeat 7th grade. Furthermore, an evaluation conducted in 2005 showed that the
student tested in the “at-risk to clinically significant” range for ADHD. All of
these factors should have put the district on notice of potential disability.

Los Angeles Unif. Sch. Dist. v. D.L., 49 IDELR 252, 548 F.Supp.2d 815 (C.D.
Ca. 2008). Although the LAUSD did not conduct its own evaluation of the
student before he moved to another district and, therefore, was not required to pay
for an IEE conducted by the new school district on that basis, LAUSD is still
ordered to fund the evaluation conducted by the new school district. This is so
based upon the fact that the ALJ found it significant that between October 17 and
25, 2005, the student was disciplined by his teacher on 4 occasions and her notes
show that he engaged in significant disruptive behavior, including roaming the
playground, falling out of his chair, making noise, failing to follow directions,
walking on tables, and tearing up other students’ work. Although the court did
not reach the legal issue of whether LAUSD was “duty-bound” to assess the



                                    21
        student upon the parent’s request, the parties have not challenged the factual
        findings of the ALJ. Based on the facts pertaining to behavior while attending
        school at LAUSD, the repeated requests of his mother for an assessment, his
        diagnosis of ADD, and the new school district’s determination that the student
        should be assessed, it appears at least arguable that LAUSD should have
        performed an assessment while he was a student there. Thus, LAUSD must make
        arrangements for payment of the assessment done after the student moved to the
        new school district.

        N.G. v. District of Columbia, 50 IDELR 7 (D. D.C. 2008). Where student
        exhibited at least two of the five characteristics of SED (pervasive depression and
        inappropriate types of behaviors), her academic performance was adversely
        affected as a result, and DCPS knew it, the school district should have evaluated
        her, particularly after being informed of her ADHD diagnosis. In addition, she
        failed four of her seven classes when she had previously been an A/B student.

DON’T ignore parent and/or staff referrals or requests for an evaluation.

      When there’s debate, evaluate!

        Charlotte-Mecklenburg Bd. of Educ. v. B.H., 51 IDELR 71 (W.D. N.C. 2008).
        District’s alleged failure to identify and evaluate a child ultimately found to have
        a fatal neurological condition is more than a mere FAPE violation. The parents’
        complaint suggests that the district acted in bad faith or with gross misjudgment
        when it failed to take any action in response to the kindergarten teacher’s IDEA
        referral and when he was sent to the kindergarten classroom when unable to
        complete work in first grade. Thus, the parents have sufficiently stated a claim
        under Section 504.

DO utilize a Team approach to review a referral for an evaluation.

DO seek input from the parents, even if they cannot attend meetings.

DO document attempts to include parents in all decisionmaking.

DO look for specifics regarding the reason for a referral and gather all relevant
information prior to a referral meeting (e.g., Child Study Team information, medical
information, report cards, cumulative record, work samples, recent evaluations, Response
to Intervention (RtI) data, student referral forms).

DO gather additional relevant information from parents and all other Team members.

DON’T forget to refer back to the Child Study Team if a determination is made that the
student will not be referred.

B.      EVALUATION/REEVALUATION PROCESS



                                            22
DO obtain written consent prior to initial evaluation or prior to any reevaluation that
contemplates the administration of an assessment, including some functional behavior
assessments (FBAs).

       Letter to Sarzynski, 49 IDELR 228 (OSEP 2007). As to whether evaluations of
       student progress are “evaluations” requiring consent, OSEP responds that
       evaluations of student progress occur as a regular part of instruction for all
       students in all schools. If such evaluations are designed to assess whether the
       child has mastered the information in, for example, chapter 10 of the social
       studies text, and are the same or similar to such evaluations for all children
       studying chapter 10, parental consent would not be required for such an
       evaluation. If, however, the evaluation specific to an individual child is “crucial
       to determining a child’s continuing eligibility for services or changes in those
       services,” such evaluations would require parental consent.

       Letter to Christiansen, 48 IDELR 161 (OSEP 2007). If an FBA is being
       conducted for the purpose of determining whether the positive behavioral
       interventions and supports set out in the current IEP for a particular child with a
       disability would be effective in enabling the child to make progress toward the
       child’s IEP goals/objectives, or to determine whether the behavioral component of
       the child’s IEP would need to be revised, OSEP believes that the FBA would be a
       reevaluation. However, if the FBA is intended to assess the effectiveness of
       behavioral interventions in the school as a whole, parental consent would
       generally not be applicable to such an FBA because it would not be focused on
       the educational and behavioral needs of an individual child.

       Harris v. District of Columbia, 50 IDELR 194, 561 F.Supp.2d 63 (D. D.C. 2008).
       For purposes of seeking an IEE, a functional behavioral assessment is an
       educational evaluation under IDEA and the parent can seek an independent FBA
       if she disagrees with one conducted by the school district. “The FBA is essential
       to addressing a child’s behavioral difficulties, and, as such, it plays an integral
       role in the development of an IEP.” In addition, failure to act on a request for an
       IEE is “certainly not a mere procedural inadequacy; indeed, such inaction
       jeopardizes the whole of Congress’ objectives in enacting the IDEA….D.H. has
       languished for over two years with an IEP that may not be sufficiently tailored to
       her special needs. The intransigence of DCPS as exhibited in its failure to
       respond quickly to plaintiff’s simple request has certainly compromised the
       effectiveness of the IDEA as applied to D.H. and it thereby constitutes a
       deprivation of FAPE.”

DO remember that where a parent refuses consent to an initial evaluation or reevaluation,
the district may, but is not required to, initiate mediation or due process to obtain the
evaluation/reevaluation.




                                           23
DO also remember that when a parent refuses consent to a reevaluation and the district
chooses not to seek to override the refusal, the district is not required to continue to
provide FAPE to the child if the district determines that, based upon existing data, the
child does not continue to meet special education eligibility criteria. However, the
district must provide the parent with prior written notice of its proposal to discontinue
services.

       OSERS Questions and Answers on IEPs, Evaluations, and Reevaluations,
       Question D-2 (2007).

DO consider whether parents are actually refusing an evaluation by imposing too many
conditions on the district’s evaluation.

       G.J. v. Muscogee County Sch. Dist., 54 IDELR 76 (M.D. Ga. 2010). Where
       parents placed numerous restrictions on how a reevaluation would be conducted,
       including the requirement for a specific evaluator, parental approval for each
       instrument and meetings before and after the evaluation, this was not really
       consent for a reevaluation.

DO consider conducting your own evaluations, by professionals of the school system’s
choosing, for purposes of determining eligibility.

       M.L. v. El Paso Indep. Sch. Dist., 52 IDELR 159, 610 F.Supp.2d 582 (W.D. Tex.
       2009). While the IDEA permits a reevaluation only one time per year unless the
       parties agree otherwise, this does not restrict a hearing officer or reviewing court
       from overriding lack of parental consent to a reevaluation. Under the
       circumstances and where the parent wants the child to continue to receive special
       education services, the district is entitled, indeed obligated, to conduct a
       reevaluation, because it has determined that the student warrants one. Plaintiff
       may not continue to assert that the student is entitled to special education services
       while simultaneously refusing to allow the district to evaluate A.L. to determine
       what those services may be.

       Independent Sch. Dist. No. 701 v. J.T., 2006 WL 517648, 45 IDELR 92 (D.C.
       Minn. 2006). Where district agreed to use former district’s evaluation when it
       prepared IEP, when parent asked for IEE and was able to prove former district’s
       evaluation was inappropriate, new district is required to fund the IEE.

       Fort Atkinson (WI) Sch. Dist., 46 IDELR 142 (OCRV, Chicago (WI) 2006). The
       Office for Civil Rights (OCR) found that the district did not comply with 504
       regulations when it agreed to accommodate a student's SLD with a 504 Plan
       without first evaluating the student’s need for special education services.
       Although the student objected to a proposed special education evaluation, the
       district still had an obligation to evaluate the student before providing services.
       The district improperly allowed the student's preference not to undergo evaluation
       to trump its obligation to evaluate the student.



                                            24
       Shelby S. v. Kathleen T., 45 IDELR 269, 454 F.3d 450 (5th Cir. 2006). School
       district has justifiable reasons for obtaining a medical evaluation of the student
       over her guardian’s refusal to consent. If the parents of a student with a disability
       want the student to receive special education services under the IDEA, they are
       obliged to permit the district to conduct an evaluation.

       M.T.V. v. DeKalb County Sch. Dist. , 45 IDELR 177, 446 F.3d 1153 (11th Cir.
       2006). Where there is question about continued eligibility and parent asserts
       claims against District, District has right to conduct reevaluation by expert of its
       choosing.

       Marissa F. v. William Penn Sch Dist., 46 IDELR 154 (3d Cir. 2006). Where
       parents never consented to a district evaluation and never enrolled LD student in a
       district school, district was not afforded the opportunity to provide FAPE to the
       student and, therefore, her parents’ claim for tuition reimbursement for private
       schooling is barred.

DON’T suggest to parents that they are responsible for obtaining educationally-relevant
evaluations.

       N.B. v. Hellgate Elementary Sch. Dist., 50 IDELR 241, 541 F.3d 1202 (9th Cir.
       2008). Where the parents had disclosed that the student had once been privately
       diagnosed with autism, but school district staff suggested that the parents arrange
       for an autism evaluation, the school district committed a procedural violation that
       denied FAPE to the student. The school district clearly failed to meet its
       obligation to evaluate the student in all areas of suspected disabilities after
       becoming aware of the medical diagnosis.

DO utilize qualified personnel to administer evaluations.

DO seek input from parents regarding the evaluation and/or reevaluation.

DON’T use a single assessment to identify a disability.

       Draper v. Atlanta Indep. Sch. Sys., 49 IDELR 211, 518 F.3d 1275 (11th Cir.
       2008). Where the district failed to identify the student’s SLD for five years and
       had determined that he was eligible for services as a mildly intellectually disabled
       student based upon just one assessment, the school district denied FAPE. The
       district court did not abuse its discretion in ordering the school district to pay up
       to $38,000 per year until 2011 for private placement as a remedy. The relief
       awarded was not disproportionate to the IDEA violations, as the district failed to
       identify the student’s SLD for five years and transferred him from a self-
       contained class to a regular education program without considering his severe
       reading deficiencies. In addition, the district continued to use an ineffective
       reading program for three years, despite the student’s clear lack of progress.



                                            25
DO a comprehensive evaluation and DO evaluate in all suspected areas of suspected
need, whether commonly linked to the suspected disability or not.

       D.B. v. Bedford County Sch. Bd., 54 IDELR 190 (W.D. Va. 2010). Student with
       ADHD and found eligible for services as OHI was denied FAPE where district
       did not properly consider and evaluate for possible SLD. Despite the fact that the
       evidence strongly suggested the student was SLD, the IEP team failed to assess
       for SLD or even discuss SLD. In addition and contrary to the hearing officer’s
       finding, the student’s services might well have changed had he been fully
       evaluated in all areas of suspected disability. “Although the [hearing officer]
       observed that [the student] was promoted a grade every year…this token
       advancement documents, at best, a sad case of social promotion” where, after four
       years, the student is unable to read near grade level. Thus, the parents are entitled
       to reimbursement for private schooling.

       Compton Unified Sch. Dist. v. A.F., 54 IDELR 225 (C.D. Cal. 2010). Where
       student displayed violent and disruptive behaviors and his grandparents requested
       a functional analysis assessment (FAA), FAPE was denied when the district failed
       to assess the 6-year-old in all areas of suspected disability. While the school
       psychologist completed an initial psychoeducational assessment, the district’s
       failure to conduct an FAA prevented the IEP team from developing an appropriate
       IEP and making an offer of placement that provided FAPE. An FAA would have
       enabled the Team to consider strategies to address the behavioral issues that
       impeded the student’s learning.

DO remember that state evaluative requirements are typically minimal requirements for
establishing eligibility and that an IEP Team can determine whether any additional
assessment data are needed.

DO timely reevaluations and/or make timely decisions as to whether reevaluation is
needed.

   When there’s debate, re-evaluate!

DO consider results from independent educational evaluations.

       T.S. v. Ridgefield Bd. of Educ., 808 F. Supp. 926 (D. Conn. 1992). The
       requirement for IEP team to take into consideration an IEE presented by the
       parent was satisfied when a district psychologist read portions of the independent
       psychological report and summarized it at the IEP meeting.

       DiBuo v. Board of Educ. of Worcester County, 309 F.3d 184 (4th Cir. 2002).
       Even though school district procedurally erred when it failed to consider the
       evaluations by the child’s physician relating to the need for ESY services, this
       failure did not necessarily deny FAPE to the child. A violation of a procedural
       requirement of IDEA must actually interfere with the provision of FAPE before



                                            26
      the child and/or his parents are entitled to reimbursement for private services.
      Thus, the district court must determine whether it accepts or rejects the ALJ’s
      finding that the student did not need ESY in order to receive FAPE.

DON’T forget to inform parents of their right to request an Independent Educational
Evaluation at public expense (IEE) if they disagree with an evaluation completed by
and/or obtained by the school system.

      P.L. v. Charlotte-Mecklenburg Bd. of Educ., 55 IDELR 46, 2010 WL 2926129
      (W.D. N.C. 2010). Where parents obtained an IEE without waiting for the school
      district to respond and provide a list of approved evaluators, parents are not
      entitled to reimbursement for their IEE because they failed to follow IDEA’s
      requirement for obtaining a publicly-funded IEE. In addition, the parents were
      not able to show that the district’s response came too late and they jumped the
      gun by obtaining and paying for an IEE eight days after mailing their request for
      an IEE. Although there was disagreement as to when the parents received the
      district’s response that it would pay $800 for an IEE from its approved list of
      examiners, all of the asserted dates of receipt fall within the 60 days the district
      had to respond or request due process under North Carolina’s statute of
      limitations.

      D.Z. v. Bethlehem Area Sch. Dist., 54 IDELR 323 (Pa. Comm. Ct. 2010).
      Parent’s request for an IEE was premature where the parent’s disagreement with
      the school district’s findings pertained to a district evaluation that was not
      complete. The parent first agreed to the district’s reevaluation but later revoked
      her consent to it because she did not agree with the scope of the testing proposed.
      She subsequently e-mailed the district, asking for an IEE. The district refused and
      sought a due process hearing seeking permission to proceed with the reevaluation.
      The hearing officer was correct in refusing to consider the parent’s request for an
      IEE as part of the hearing, as the parent’s right to request an IEE does not vest
      until there is an evaluation completed by the district with which the parent
      disagrees. [NOTE: The court also ruled in a separate decision that where this
      parent had requested 14 due process hearings for her two children between 2001
      and 2009 and the district was the prevailing party each time, there is a reasonable
      likelihood that the parent brought the requests for an “improper purpose.” Thus,
      the district could proceed with its attorney’s fee action against the mother. See,
      Bethlehem Area Sch. Dist. v. Zhou, 54 IDELR 311, 2010 WL 2928005 (E.D. Pa.
      2010)].

      C.S. v. Governing Bd. of Riverside Unif. Sch. Dist., 52 IDELR 122 (9th Cir. 2009)
      (unpublished). Parental request for IEE reimbursement was made before
      receiving an assessment from the school district and after obtaining the IEE.
      Thus, denying reimbursement to the parents for the IEE was not an abuse of
      discretion by the district court.




                                          27
       Letter to Zirkel, 52 IDELR 77 (OSEP 2008). School districts are not required to
       fund a parent’s IEE obtained during the RTI process where the school district has
       not completed an evaluation. A parent is not entitled to an IEE at public expense
       before the district completes its evaluation simply because the parent disagrees
       with the district’s decision to use data as to the child’s RTI as part of its
       evaluation to determine whether the child is a child with a disability. OSEP
       added that its answer would be the same, even if the district notified the parent
       that the child responded successfully to RTI and that it would not proceed to a
       formal evaluation for SLD eligibility. In addition, when a parent requests
       reimbursement for an IEE prior to the completion of the district’s evaluation, the
       district may deny the request for reimbursement without filing for due process.

DO respond to a request for an IEE within a “reasonable” period of time.

       J.P. v. Ripon Unif. Sch. Dist., 52 IDELR 125 (E.D. Cal. 2009). Parent’s
       argument that school district was tardy in its request for a due process hearing to
       show that its evaluations were appropriate is rejected. Though the parent
       requested the IEEs on December 21, 2006, the parties discussed the provision of
       the IEEs through a series of letters and did not reach a final impasse until
       February 7, 2007, less than three weeks before the district’s request for a hearing.
       In addition, the district’s Winter break began immediately after the parent’s IEE
       request, which is a factor that must also be considered in determining the
       timeliness of the district’s due process request. Given the circumstances here, the
       Court cannot find that “unnecessary delay” was present that would invalidate the
       underlying request made by the district.

       School Bd. of Lee County v. Andrews, 49 IDELR 251, 2008 WL 687259 (M.D.
       Fla. 2008). Parent’s letter simply requesting “independent evaluations,” without
       specifying what evaluations were being sought was too vague to trigger any
       obligation concerning an IEE by the School Board. The School Board’s request
       for clarification and asking parent’s counsel to specify the evaluations being
       requested was both reasonable and necessary and not a procedural violation. The
       Court also rejects the ALJ’s view that a mere request for an IEE triggers the right
       to have the School Board comply with the request or seek a due process hearing.
       Rather, if the School Board does not comply with the request, the burden is on the
       parents to present a complaint and to request a due process hearing.

DON’T impose unreasonable conditions on independent evaluators.

       Letter to LoDolce, 50 IDELR 106 (OSEP 2007). A school district does not have
       the right to dictate policies to independent educational evaluators that restrict the
       use of age and grade level scores in their reports because, in some cases and
       depending on a child’s individual needs, it may be necessary for an evaluator to
       conduct an assessment that includes age and grade level scores in order to gather
       relevant information about the child that may assist in determining the content of
       the child’s IEP, including information related to enabling the child to participate



                                            28
       in the general education curriculum. Because a public agency cannot prohibit its
       own evaluators from including age and grade level scores in evaluation reports, it
       cannot prohibit independent evaluators from doing so. Similarly, if a public
       agency prohibits its own evaluators from making recommendations pertaining to
       specific methodologies and/or use of materials, it could preclude independent
       evaluators from doing so.

DON’T forget the responsibility to conduct a FAPE evaluation, even of a student placed
by the parent in a private school located in another jurisdiction.

       Letter to Eig, 52 IDELR 136 (OSEP 2009). The home district must evaluate a
       parentally placed private school student for FAPE upon parental request, even if
       the parent has placed the student in a non-profit private school located within the
       jurisdiction of another LEA. If a parent asks the home district to evaluate a
       private school student’s eligibility for IDEA services (rather than eligibility for
       “equitable services”), the home district can not refuse to do so on the grounds that
       the student attends private school in another LEA, even if the other LEA has done
       an evaluation for purposes of “equitable services.”

DON’T forget those evaluation timelines and document compliance with them!

       J.G. v. Douglas County Sch. Dist., 51 IDELR 119, 552 F.3d 786 (9th Cir. 2008).
       The school district did not violate the IDEA when it delayed evaluations of two
       preschoolers but not because it complied with Nevada’s evaluation timeline, but
       because it was not aware that the young twins might have autism. The court was
       critical of the school system’s defense that the evaluation, conducted within 38
       days, fell within the state’s required evaluation timeline of 45 school days. While
       the state’s timeline is not inconsistent with the former IDEA, it did not provide
       the district with a “safe harbor” for conducting evaluations. “Regardless of
       compliance with a state regulatory requirement, [the] IDEA requires that districts
       act within a reasonable time to evaluate [a student suspected of having a
       disability].” Whether an evaluation is conducted within a reasonable time
       depends upon the child’s circumstances and not whether the district complies with
       a state-established timeline. Under the circumstances here, the district conducted
       the evaluations on a timely basis once it was contacted by the twins’ private
       service provider in July and told that the students might be autistic. Thus, the
       parents could not recover the cost of private services they obtained while the
       evaluations were pending. The Court also noted that it “makes sense to allow
       school districts a degree of leeway during summer vacation.”

       Integrated Design and Electronics Academy Pub. Charter Sch. v. McKinley, 50
       IDELR 244 (D. D.C. 2008). District’s failure to comply with D.C.’s 120-day
       timeline for completing an evaluation amounted to a denial of FAPE. The
       evidence did not support the school’s claim that the parent was uncooperative in
       providing information and scheduling.




                                           29
DO remember that where a parent has revoked consent to special education services and
the student has been dismissed from services, if the parent subsequently asks for re-
enrollment, the district must conduct an initial evaluation.

       73 Fed. Reg. 73014-15 (OSEP Commentary to 2008 regulations).

DON’T forget that when a transfer student moves in from out of state, any evaluation
conducted of the student by the new district is considered an initial evaluation.

       71 Fed. Reg. 46682 (OSEP Commentary to 2006 regulations).

3.     ELIGIBILITY PROCESS

DO adhere to applicable State eligibility requirements, such as definitions, criteria and
minimally required evaluations.

DO thoroughly and accurately document adherence to State criteria and required
evaluations.

DO make timely eligibility determinations.

       Letter to Weinberg, 55 IDELR 50 (OSEP 2009). While there is no set timeframe
       for making an eligibility determination under the IDEA, it must occur within a
       “reasonable period of time” after the initial evaluation. While the IDEA does
       require an initial evaluation to be conducted within 60 days of receiving parental
       consent for the evaluation (or within a state’s timeframe), the IDEA does not
       require that a district make an eligibility determination within a specific number
       of days after a parent requests an evaluation, after the district receives consent for
       it, or after the evaluation is completed. However, consistent with its child-find
       duties, a public agency must make an eligibility determination within a reasonable
       period of time after the evaluation is conducted to ensure the receipt of FAPE
       without undue delay. In addition, a parent who believes that the district is
       unreasonably delaying an eligibility decision may address the matter through the
       IDEA’s dispute resolution procedures.

DO utilize an appropriate Eligibility Committee, with required participants, including the
parent(s).

DO provide the parent an opportunity to fully and meaningfully participate in the
eligibility decision.

DON’T forget to document attempts to involve the parent(s), including consideration of
all information that parents bring to the meeting.

DO consider all relevant information when determining eligibility, in addition to the
minimum evaluative components and results set forth by State requirements.



                                             30
DON’T rely solely on test scores when determining eligibility/ineligibility.

       Jaffess v. Council Rock Sch. Dist., 46 IDELR 246 (E.D. Pa. 2006). In a dispute
       as to whether a 16 year-old student diagnosed as LD continued to need specially
       designed instruction (SDI), it is clear that the student did not. Expert witness
       testimony submitted by the parents relied heavily on test scores, but neither expert
       observed the student’s in-class performance, which unequivocally demonstrated
       that the student did not need SDI. In addition, all of the student’s teachers and
       district staff universally agreed that he did not require SDI to meaningfully benefit
       from his educational program. This conclusion was based upon data collected by
       classroom teachers, evaluation reports, reports regarding student’s writing ability
       prepared by the State, report card grades, interim reports from teachers and
       conversations with all team members. In addition, student’s chemistry, study
       skills, French, geometry, English and American Studies teachers all testified that
       he did not need SDI to succeed in their classrooms.

DON’T limit the definition of “educational performance” to academic performance when
determining whether there is a condition that adversely affects educational performance
(unless you are in the Second Circuit, perhaps).

       Mr. I v. Maine Sch. Admin. Dist. No. 55, 47 IDELR 121, 480 F.3d 1 (1st Cir.
       2007). In Maine, “educational performance” is more than just academics and
       there is nothing in IDEA or its legislative history that supports the conclusion that
       “educational performance” is limited only to performance that is graded. In
       addition, “adversely affects” does not have any qualifier such as “substantial,”
       “significant,” or “marked.” Thus, district court’s holding that any negative impact
       on educational performance is sufficient is upheld. Student with Asperger’s
       Syndrome who generally had strong grades, had difficulty in “communication,”
       which is an area of educational performance listed in Maine’s law. That makes
       her eligible for special education services.

       Board of Educ. of Montgomery County v. S.G., 47 IDELR 285, 230 Fed. Appx.
       330 (4th Cir. 2007). 15-year-old student with schizophrenia is eligible for special
       education services because her emotional disturbance adversely affected her
       educational performance in a regular classroom. Therefore, school district must
       fund S.G.’s attendance at a therapeutic school.

       C.B. v. Department of Educ. of the City of New York, 52 IDELR 121 (2d Cir.
       2009). Though there is no dispute that the student has co-morbid bipolar disorder
       and ADHD, the conditions do not make her eligible as an OHI student because
       they do not adversely affect her educational performance. The student’s grades
       and test results demonstrate that she continuously performed well both in public
       school before she was diagnosed, and at the private school thereafter. Relevant
       evaluations indicate that she tested above grade-level and do not find that her
       educational performance has suffered. Thus, the evidence is insufficient to show
       that she has suffered an adverse impact on her educational performance.



                                            31
       Williamson County Bd. of Educ. v. C.K., 52 IDELR 40 (M.D. Tenn. 2009).
       Gifted student with ADHD should have been made eligible for special education
       services as Other Health Impaired. “Under the law, it is not enough that C.
       managed to earn average to above average grades overall by the end of each
       school year in order to advance to the next grade level. Each state ‘must ensure
       that FAPE is available to any individual child with a disability who needs special
       education and related services, even though the child has not failed or been
       retained in a course or grade, and is advancing from grade to grade.’”

       A.J. v. Board of Educ. of East Islip Union Free Sch. Dist., 53 IDELR 327 (E.D.
       N.Y. 2010), (unpublished). Where New York law does not define “educational
       performance” and “adverse effect,” applicable authority provides that
       “educational performance” must be assessed by reference to academic
       performance “which appears to be the principal, if not only, guiding factor.”
       Where the kindergartner with Asperger Syndrome was performing at average to
       above-average levels and was making academic progress in the classroom, there
       was no adverse effect on educational performance for purposes of IDEA
       eligibility.

       Maus v. Wappingers Cent. Sch. Dist., 54 IDELR 10 (S.D. N.Y. 2010). While
       neither the IDEA nor New York law define the term “adverse effect on
       educational performance,” the Second Circuit has indicated that “educational
       performance” refers only to academics. Thus, where 7th grader with social and
       emotional difficulties as a result of ADHD, Asperger syndrome and generalized
       anxiety disorder consistently earned above-average grades in all of her classes and
       performed at an 8th grade level in reading and written expression and a 12th grade
       level in math, she is not disabled. While her conditions might impede her social
       and emotional functioning, they do not impede her ability to obtain an educational
       benefit.

DON’T forget about the third prong for determining eligibility: whether the student’s
condition adversely affects educational performance to the degree that the student needs
special education and related services.

       Loch v. Edwardsville Sch. Dist. No. 7, 52 IDELR 244 (7th Cir. 2009). Student’s
       claim that her anxiety prevented her from attending classes at a public high school
       and that she was, therefore, disabled under the IDEA is rejected, as there is no
       evidence that the student required special education or related services. The
       student was not taking medication for her anxiety and had not seen her
       psychiatrist or her therapist in the previous six months. Moreover, the student
       received satisfactory grades until she stopped attending class in her sophomore
       year. There was no medical evidence that the student’s anxiety or diabetes had
       progressed to the point that she was unable to attend school. “Indeed, [the
       student’s] doctors reported that when she was not attending classes, her health
       was good and should not have interfered with her school attendance.” In addition,
       the student left high school to enroll in community college courses, where she



                                           32
received A’s and B’s. Given the student’s performance at the community college,
she could not demonstrate that she needed special education services at the high
school level to receive an educational benefit.

Pohorecki v. Anthony Wayne Local Sch. Dist., 53 IDELR 22 (N.D. Ohio 2009).
The IDEA does not require children be classified by their disability. Rather, it
requires that a child who needs special education and related services be regarded
as a child with a disability and receive an appropriate education. The label
assigned merely assists in developing the appropriate education provided. In
addition, there was ample evidence that the student met the IDEA’s definition of
ED and that classification was a reasonable one.

E.M. v. Pajaro Valley Unif. Sch. Dist., 53 IDELR 41 (N.D. Cal. 2009). Where
the student performed very well in class with the use of general education
interventions, the district’s determination that he is not SLD is upheld and the
administrative decision in the district’s favor is upheld.         The student’s
performance showed that he did not require specialized instruction to receive an
educational benefit. Though the student was distractible and failed to complete
homework assignments, his performance improved when his teacher used
interventions, such as small group settings. “When viewed as a whole, the
observational and anecdotal evidence describes a student who was distracted
easily but who also responded to various forms of classroom intervention.”

Alvin Indep. Sch. Dist. v. A.D., 48 IDELR 240 (5th Cir. 2007). Student with
ADHD is not a student with a disability because he does not need special
education and related services. The “adversely affects a child’s educational
performance” standard is a subpart of the definition of “other health impairment”
under the IDEA, but the student does not meet the second prong required to be
eligible for special education—that is, “by reason thereof, needs special education
and related services.” The determination of ineligibility was not just based upon
academic success and the district court considered a variety of sources, including
aptitude and achievement tests, parent input, and teacher recommendations, as
well as information about the student’s physical condition, social, and cultural
background.

Hood v. Encinitas Union Sch. Dist., 107 LRP 26108, 486 F.3d 1099 (9th Cir.
2007). Parents’ reimbursement claim for placement at a private school for LD
students is denied because student is not eligible for special education services.
Prior to the student’s removal from public school, she was consistently receiving
average or above-average grades and she did not, therefore, need special
education services to obtain a meaningful educational benefit. The student’s 504
Plan (based upon a seizure disorder) included preferential seating, use of a
graphic organizer and Alpha Smart keyboard, one-step directions, visual support
for instruction and concepts, etc. Because any severe discrepancy reflected in
testing could be corrected within the regular instructional program, she was not
eligible as SLD or OHI.



                                    33
       M.P. v. North East Indep. Sch. Dist., 107 LRP 68824 (W.D. Tex. 2007). Student
       with undeniable ADHD is not a child with a disability under the IDEA because
       student could not prove that he has an educational need for special education
       services caused by the ADHD. Rather, student’s behaviors were voluntary and,
       as several of his teachers testified, he could control his behavior when he wanted
       to.

       Ashli and Gordon C. v. State of Hawaii, 47 IDELR 65 (D. Haw. 2007). School
       district’s decision that student with ADHD was not eligible for services is upheld.
       Parent’s argument that the school should have considered the effects of ADHD on
       student’s educational performance without taking into consideration the fact that
       the classroom teacher provided differentiated instruction is rejected. Without a
       definition of “adversely affects” in state law, it refers to the ability to perform in a
       regular classroom designed for non-disabled students and if a student is able to
       learn and perform in the regular classroom taking into account his particular
       learning style without specially designed instruction, the fact that his health
       impairment may have a minimal adverse effect does not render him eligible for
       special education services. Adverse means “causing harm” and where a student is
       able to learn and function at an average level in the regular classroom and
       experiences only a slight impact on his educational performance, it can not be said
       that the student is harmed.

DON’T forget that there is a difference between SED and BAD, but be careful!

       Mr. and Mrs. N.C. v. Bedford Cent. Sch. Dist., 51 IDELR 149, 300 F. App’x 11
       (2d Cir. 2008). Determination that student was not eligible as an SED student is
       affirmed. Student’s inappropriate behavior fell short of qualifying him as SED, as
       an expert saw his drug use as the root of the student’s problems in school. This
       conclusion is “more consistent with social maladjustment than with emotional
       disturbance.” Parents did not produce enough evidence of an “accompanying
       emotional disturbance beyond the bad conduct.”

       Eschenasy v. New York City Dept. of Educ., 52 IDELR 66 (S.D. N.Y. 2009).
       Teenager diagnosed with mood disorder, conduct disorder, trichotillomania,
       borderline personality features and expressive language disorder should have been
       found eligible for special education services as an SED student. Clearly, the
       student exhibits inappropriate types of behavior or feelings under normal
       circumstances and has a generally pervasive mood of unhappiness or depression.
       Her symptoms clearly adversely affect her educational performance, as she had
       failing grades, repeated expulsions and suspensions and a need for tutors and
       summer school. The school district’s assertion that her inappropriate behavior is
       just bad behavior is rejected. While it is undisputed that the student repeatedly
       misbehaved in school by cutting class, taking drugs and stealing, she also engages
       in hair pulling and cutting herself, was diagnosed with a mood disorder,
       diagnosed with personality disorder and attempted to commit suicide. Thus, it is
       more likely than not that all of the student’s problems, not just her misconduct,



                                             34
       underlie her erratic grades, expulsions and need for tutoring and summer school.
       Thus, parents are entitled to reimbursement for placement at the Elan School,
       which was appropriate for her.

DON’T rely solely on medical diagnoses or recommendations for determining eligibility!

       Marshall Joint Sch. Dist. No. 2 v. Brian and Traci D., 54 IDELR 307 (7th Cir.
       2010). Where the ALJ’s decision that the student continued to be eligible for
       special education under the IDEA focused solely on the student’s need for
       adapted PE, the district court’s decision affirming it is reversed. The ALJ’s
       finding that the student’s educational performance could be affected if he
       experienced pain or fatigue at school is “an incorrect formulation of the
       [eligibility] test.” “It is not whether something, when considered in the abstract,
       can adversely affect a student’s educational performance, but whether in reality it
       does.” The evidence showed that the student’s physician based her opinion that
       he needed adapted PE on information entirely from his mother and upon an
       evaluation that lasted only 15 minutes with no testing or observation of the
       student’s actual performance. In contrast, the student’s PE teacher testified that
       he successfully participated in PE with modifications. “A physician cannot
       simply prescribe special education; rather, the [IDEA] dictates a full review by an
       IEP team” and while the team was required to consider the physician’s opinion, it
       was not required to defer to her view as to whether the student needed special
       education. Further, the student’s need for PT and OT did not make him eligible
       for special education under the IDEA, as those services do not amount to
       specialized instruction.

       Brado v. Weast, 53 IDELR 316 (D. Md. 2010). Although hospital/homebound
       teaching qualifies as specialized instruction, teenager with chronic pain is
       ineligible for IDEA services. Though the parents’ argument is correct that in-
       home instruction amounts to specialized instruction under the IDEA, regardless of
       whether that instruction is altered in content or form, the evidence at the hearing
       indicates that the student does not need home-based instruction. Rather, all of the
       accommodations the student requires--frequent breaks, adjusted workloads,
       alternative test scheduling, and personalized instruction—can be provided under a
       Section 504 plan. “With the exception of [the student’s] primary care physician...,
       no medical expert suggests that [the student] required [home and hospital
       teaching]….” As such, the district correctly found the student ineligible for IDEA
       services.

       S. v. Wissahickon Sch. Dist., 50 IDELR 216 (E.D. Pa. 2008). Although the
       student was diagnosed with ADHD in the second grade, he earned As and Bs
       throughout elementary school. Though his grades slipped when he entered
       middle school, his teachers testified that he was attentive in class and performed
       well on quizzes and tests and that his poor performance stemmed from a lack of
       motivation rather than ADHD. Importantly, the court observed that the district




                                           35
       devised strategies to help the student, which included the use of progress reports,
       an agenda book, and parent conferences.

       M.P. v. Santa Monica-Malibu Unif. Sch. Dist., 50 IDELR 220, 2008 WL 2783194
       (C.D. Cal. 2008). Where everyone agreed that the student could perform well
       academically when motivated, the “Court agrees that the evidence shows that
       M.P. is capable of completing independent school work when motivated, but the
       evidence also shows that because of his ADHD he is not capable, without help, of
       being motivated. This is the very definition of a discrepancy between ability and
       achievement.” Therefore, the student has demonstrated the requisite severe
       discrepancy in ability and achievement to become eligible for services as an SLD
       student.

       Strock v. Independent Sch. Dist. No. 281, 49 IDELR 273, 2008 WL 782346 (D.
       Minn. 2008). The mere existence of ADHD does not demand special education
       services. When the student actually completed required work, he received
       average or above-average grades. “Children having ADHD who graduate with no
       special education or any §504 accommodation are commonplace.” The fact that
       the student was required to take remedial courses when beginning at the
       community college is “neither unusual or evidence of ‘unsuccessful transition,’ an
       entirely undefined term.”

       Brendan K. v. Easton Area Sch. Dist., 47 IDELR 249, 2007 WL 1160377 (E.D.
       Pa. 2007). Evidence supports determination that student diagnosed with, among
       other things, ADHD is not eligible for special education services. Rather,
       “[t]eenagers, for instance, can be a wild and unruly bunch. Adolescence is,
       almost by definition, a time of social maladjustment for many people. Thus a
       ‘bad conduct’ definition of serious emotional disturbance might include almost as
       many people in special education as it excluded. Any definition that equated
       simple bad behavior with serious emotional disturbance would exponentially
       enlarge the burden IDEA places on state and local education authorities. Among
       other things, such a definition would require the schools to dispense criminal
       justice rather than special education.”

       P.R. v. Woodmore Local Sch. Dist., 46 IDELR 134 (N.D. Ohio 2006). Student
       diagnosed with ADHD is not eligible as a student with a disability or OHI under
       IDEA. Student’s doctor based her conclusions that student was OHI on the
       mother’s observations and never interviewed any of the student’s teachers, the
       student’s guidance counselor, or any of the school’s special education personnel.
       District personnel’s determination that his difficulties in school were no different
       than those of many boys in their junior year of high school is upheld.

DO ensure that reevaluation of eligibility occurs at least once every three years unless the
parent and the school system agree that a reevaluation is not necessary.




                                            36
DO give parents a copy of the eligibility decision and all relevant evaluative and
eligibility documentation.

DON'T forget to refer the child back to the appropriate school team when determined
ineligible and provide appropriate notice/rights regarding the decision.

B.     FINAL JEOPARDY QUESTIONS IN THE RTI CATEGORY

1.     What is the best advice to give to HS teachers who feel that providing
       accommodations to students is altering their curriculum?

2.     Parents are complaining about the length of time the RtI process takes and state
       that there is no legal basis for prolonged interventions. In fact, an entire tier could
       be completed in one week. I see this emerging into a legal issue. What do you
       suggest as a response?

3.     We are seeing FBA/BIP referrals during RTI, when there are no formal discipline
       records to support the referrals. Teachers are often reluctant to document behavior
       problems in the classrooms, even though a student is seen in the office on a daily
       basis, and many parent contacts initiated. Please comment.

                                  CATEGORY 2
                             MISCELLANEOUS TOPICS

THE DAILY DOUBLE: THIS IS THE MISCELLANEOUS SESSION THAT
ALWAYS LEADS TO A LOT OF DISCUSSION!

       Question: What is the Question & Answer session and what are the top legal
       happenings of 2010?

A.     TOP LEGAL HAPPENINGS OF 2010

1.     TOP LEGAL ISSUE #1: SECLUSION AND RESTRAINT

Congressional/Federal Action and Status

       The use of restraint/seclusion in schools rose to the level of becoming a
national/federal concern in 2008. In January of 2009, Congressman George Miller (D-
CA) asked the U.S. Government Accountability Office (GAO) to investigate allegations
of deadly and abusive seclusion and restraint in schools. At that time, the “Stop Child
Abuse in Residential Programs for Teens Act of 2009” was already in the works and was
ultimately passed by the House on February 23, 2009 (HR 911).

       On May 19, 2009, the Government Accountability Office (GAO) issued a
requested study of its examination of the use of seclusion and restraint in schools and a
hearing was held by the House Education & Labor Committee, chaired by Congressman



                                             37
Miller. At the hearing, the testimony of the author of the GAO report was heard, along
with testimony from several parents whose children were injured or died from the use of
restraints or seclusion in school.

        The GAO report indicated that hundreds of cases of alleged abuse and death
existed based upon the use of seclusion and restraint in schools, but that there was no
federal legislation to prevent these deaths and abuses from happening. At the hearing,
there was apparent consensus among the Committee members that uniform standards
were needed across the country with respect to how and when to use seclusion/restraint in
schools, if ever. Still others countered that additional federal laws may not be necessary,
since many states already had laws in place addressing the use of seclusion/restraint in
schools.

       On May 20, 2009, Education Secretary Arne Duncan informed the House
Education and Labor Committee that he would be asking states to submit plans by the fall
of 2009 for ensuring that children were not necessarily restrained or secluded in school.
That seemed to indicate that current state plans, laws, procedures, etc. would be reviewed
before any federal or further Congressional action would be taken.

        Notwithstanding the fact that it appeared that Congress was going to hold off on
federal legislation, Congressman Miller introduced H.R. 4247 in the House--known as
the “Preventing Harmful Restraint and Seclusion in Schools Act”--on December 7, 2009.
This bill was approved by Congressman Miller’s Committee on February 4, 2010 and
passed by the House on March 3, 2010 as the “Keeping All Students Safe Act.”

        On the Senate side, many were uncertain that the bill would be passed there,
based upon an apparent lack of GOP support for a similar measure that was introduced,
Senate Bill 2860, known at the “Preventing Harmful Restraint and Seclusion in Schools
Act.” Senator Chris Dodd (D-CONN), however, on September 29, 2010 introduced a
rewritten version of the original Senate Bill 2860 as the “Keeping All Students Safe Act,”
now known as Senate Bill 3895 and still pending before the Senate Health, Education,
Labor and Pensions Committee.

         The proposed Senate bill differs from the original Senate (and the House) version
in at least three respects:

1.     It would permit physical restraint and seclusion to be included in an IEP or
       student plan under certain circumstances (if the language conforms to the bill’s
       minimum standards on the use of such techniques—a prohibition on mechanical
       restraint; chemical restraint; physical restraint/escort that restricts breathing; and
       any “aversive behavioral intervention that compromises health and safety”); if the
       student has a history of dangerous behavior; and if a functional behavioral
       assessment has been conducted and a BIP put in place;

2.     It would not apply to as many private schools and cover only those students
       whose education is paid for under the IDEA—either because they have been



                                            38
       placed there by an LEA or because they have been unilaterally placed there by a
       parent who has succeeded in a claim for reimbursement;

3.     It grants no new powers to protection and advocacy organizations. The original
       gave such groups power to “investigate, monitor and enforce” the bill’s
       protections.

        Some say that the bill’s prospects, at this time, are not good, as Senator Chris
Dodd did not run for re-election and will not be a part of the 112th Congress. However,
he is looking for someone to pick up where he left off.

The Claims and Cases

        Though there is no specific federal law in place yet concerning the use of
seclusion/restraint in public schools, arguments have been made and cases brought for
years alleging that the use of certain procedures is a violation of a student’s constitutional
rights. In addition, an argument could be made in appropriate circumstances that some
uses of seclusion/restraint violate a child’s overall right to a free appropriate public
education (FAPE) under the IDEA. Even in the absence of any actual federal or state law
regulating the use of restraint/seclusion, there are causes of action that may be sustainable
based upon federally protected rights, whether there is a specific federal law in place or
not.

       Constitutional Claims/Cases

         There have been several reported cases alleging that the use of seclusion or
restraint was unconstitutional. Many of these cases are based upon the Fourteenth
Amendment’s guarantee of due process, the Fifth Amendment’s liberty interest and the
Fourth Amendment’s prohibition against unreasonable seizures. Still others have been
brought under the theory that the use of such techniques is “cruel and unusual
punishment” in violation of the Eighth Amendment. In all of the cases, money damages
(i.e., damages for “pain and suffering,” “emotional distress,” “wrongful death,” punitive
damages) are sought via 42 U.S.C. § 1983 and, typically, violations of state personal
injury laws.

               Fourteenth/Fifth Amendment cases

        With respect to the use of seclusion/restraint in schools, liberty interest and due
process challenges are typically rejected if their use is deemed “reasonable” under the
circumstances. In addition, where individual educators have been sued, they may be
entitled to the defense of qualified immunity in appropriate cases.

a.     Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452 (1982). An individual has a
       constitutionally protected liberty interest in reasonably safe conditions of
       confinement and freedom from unreasonable bodily restraint. In determining
       what is “reasonable,” the Court will defer to the judgment of qualified



                                             39
     professionals. [Note: Case involved restraint of an intellectually impaired adult
     confined to a state hospital].

b.   Honig v. Doe, 108 S.Ct. 592, 484 U.S. 305 (1988). With respect to students with
     disabilities who are considered dangerous or disruptive, they may be disciplined
     with the use of study carrels, timeouts, detention or the restriction of privileges, as
     well as suspension for up to ten days. The Court also noted that these procedures
     allow school administrators to protect the safety of other students and provide for
     a “cooling down” period during which school officials can initiate an IEP review
     and seek to persuade parents to agree to a change in placement.

c.   Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir. 1987). Teacher and
     principal do not have qualified immunity in a case where a second grade student
     was tied to a chair for the entire school day and for a substantial portion of the
     second day as an “educational exercise,” with no suggested justification such as
     punishment or discipline. The student was denied access to the bathroom and no
     other student received such treatment. If these facts are proved, this would
     implicate the student’s Fifth and Fourteenth Amendment rights to substantive due
     process, specifically the right to be free from bodily restraint. “We are persuaded
     that in January 1985, a competent teacher knew or should have known that to tie a
     second grade student to a chair for an entire school day…was constitutionally
     impermissible.”

d.   Metzger v. Osbeck, 841 F.2d 518 (3d Cir. 1988). A decision to discipline a
     student, if accomplished through excessive force and appreciable physical pain,
     may constitute an invasion of the child’s Fifth Amendment liberty interest in his
     personal security and a violation of the substantive due process prohibited by the
     Fourteenth Amendment. Where it is alleged that the coach put his arm around the
     neck and shoulders of the student while verbally admonishing him over the use of
     foul language (and the student lost consciousness and fell to the floor), a
     reasonable jury could find that the restraints employed exceeded the degree of
     force needed to correct the behavior and that the injuries served no legitimate
     disciplinary purpose.

e.   Heidemann v. Rother, 24 IDELR 167, 84 F.3d 1021 (8th Cir. 1996). The use of a
     “blanket wrapping” technique with a 9-year-old student with severe mental and
     physical disabilities was not an unreasonable bodily restraint which violated the
     student’s constitutional rights to due process. Since the school employees were
     following the recommendations of a licensed professional therapist in the
     implementation of the technique, the school professionals are entitled to qualified
     immunity.

f.   Brown v. Ramsey, 33 IDELR 216, 121 F.Supp.2d 911 (E.D. Va. 2000). Case is
     decided in favor of teachers who used “basket hold” on a 6-year-old student with
     Asperger Syndrome. The hold was performed "by clasping the (student) at his
     wrists, crossing his arms in front of his body, and pushing his head into his chest."



                                           40
     The parent claimed that the teachers used the hold approximately 40 times and
     that its use suffocated the student, but the teachers stated that they performed the
     hold only when the student posed a danger to himself or others. At times, the
     student threw items around the classroom, jumped onto desks and tables, and
     scratched or struck other students. Clearly, the student did not suffer the requisite
     severe injury and the parent never took the student to a doctor for treatment of any
     injuries caused by the alleged abuse. The parent also failed to show that the use of
     the 'basket hold' was not appropriate to address the student's actions. It "was not
     administered arbitrarily but instead only occurred in connection with his being
     placed in time-out." Further, the student's IEP contained a behavior management
     plan that allowed for restraint in some instances. Finally, the court determined
     that the teachers' use of the hold was not "so inspired by malice or sadism" that it
     was "literally shocking to the conscience."

g.   M.H. v. Bristol Bd. of Educ., 169 F.Supp.2d 21 (D. Conn. 2001). In denying the
     school district’s motion for summary judgment in a case alleging inappropriate
     use of physical and mechanical restraints, the court found that it was without facts
     concerning the circumstances of when restraint was necessary for the safety of the
     student or others; whether each of the individual school defendants followed the
     prescribed rules for using restraints, and whether they received adequate training
     to use such restraints in an appropriate manner. In addition, the school defendants
     have not provided the court with sufficient information about their level of
     expertise and experience for the court to conclude that they were each
     “competent,” whether by education, training, or experience, to make the particular
     decision [regarding the use of restraint with M.H.].”

h.   Doe v. State of Nevada, 46 IDELR 124 (D. Nev. 2006). Case alleging negligence
     on the part of a teacher and an aide will not be dismissed where parents alleged
     that both assaulted a 3 year-old student with autism. The parents alleged a
     violation of due process rights when school staff, among other things, allegedly
     twisted the child’s arm behind his back, lifted him up and threw him toward a
     wall and grabbed his wrists. When viewed in the light most favorable to the
     parents, the allegations supported the parents’ negligence claim and, therefore,
     would not be dismissed. However, the claims against the school district under
     Section 504, the ADA and Section 1983 were dismissed because there was no
     evidence that the district acted with deliberate indifference; rather, the evidence
     showed that teachers and staff were trained by the district in behavior
     management and education of students with autism.

i.   Colon v. Colonial Intermed. Unit 20, 46 IDELR 75, 443 F.Supp.2d 659 (M.D. Pa.
     2006). Where complaint alleged that teacher used physical restraints; placement
     in a “time out’ room for an entire day; and deprivation of benefits generally
     available to students in the program, such as hot lunches, bathroom privileges and
     regular breaks, cause of action against teacher may proceed under Section 1983
     for alleged IDEA violations. The evidence was inconclusive as to whether the
     teacher used these strategies for safety reasons or for punishment for behavior that



                                          41
     was a manifestation of the student’s disability. Punitive damages may also be
     sought by the parent because of the possibility that the teacher acted with reckless
     or callous disregard of, or indifference to, the student’s rights.

j.   W.E.T. v. Mitchell, 49 IDELR 130 (M.D. N.C. 2008). Although educators can
     use reasonable force to restrain or correct students and maintain order, 10-year-
     old student with severe asthma, partial blindness and CP has sufficiently plead a
     cause of action under Section 1983 for extensive mental and emotional damages.
     Student’s special education teacher is not entitled to qualified immunity where it
     is alleged that she sharply rebuked the student for talking to a classmate, taped his
     mouth shut with masking tape and ripped it off when he tried to speak to her
     through the tape. A reasonable educator would have known that forcefully taping
     the mouth of a child with asthma amounted to a constitutional violation.

k.   O.H. v. Volusia County Sch. Bd., 50 IDELR 255 (M.D. Fla. 2008). Allegations
     that an autistic student was confined to a dark bathroom as punishment for off-
     task behaviors were sufficient to support a Section 1983 claim against a special
     education teacher. The teacher’s alleged actions of strapping the student into a
     classmate’s wheelchair and confining him to the dark bathroom may have been
     out of proportion to his conduct and could support a claim that excessive force
     was used.

l.   King v. Pioneer Regional Educational Service Agency, 53 IDELR 196 (Ga. Ct.
     App. 2009), cert. denied, 688 S.E.2d 7(Ga. 2010), cert. denied, (U.S. 11/01/10)
     (No. 10-108). Lawsuit filed under Section 1983 is dismissed where student’s
     death was not the result of a constitutional violation and no “special relationship”
     existed and, therefore, no affirmative duty was owed to the student. While the
     decision of certain employees to allow the student to keep a makeshift rope used
     as a belt when he was locked in a timeout room may have amounted to
     negligence, the parents have pointed to no policy, procedure or custom on the part
     of the school agency that violated a privilege under Section 1983.

m.   D.D. v. Chilton County Bd. of Educ., 54 IDELR 157 (M.D. Ala. 2010). Where a
     teacher velcroed a 4-year-old student with PDD for less than 10 minutes in a
     toddler/Rifton chair that he chose to sit in, this did not rise to the level of
     “shocking the conscience,” at least in a constitutional sense. As the teacher
     explained, she placed the student in the chair to keep him from kicking people by
     applying the velcro waist strap so that he would not fall and sitting him in the
     hallway facing the wall until his mother arrived. The child sustained no physical
     injury from the measure and the restraint was not a sufficient deprivation of
     liberty that would require advance notice and a hearing. However, this ruling
     does not reflect on whether the teacher’s actions were lawful under state tort law.




                                          42
            Fourth Amendment cases

a.   Rasmus v. Arizona, 24 IDELR 824, 939 F. Supp. 709 (D. Ariz. 1996). Where an
     eighth grade student with attention deficit disorder and an emotional disability
     was assigned to a "time out room" by a teacher's aide for about ten minutes, this
     was sufficient to constitute a “seizure” under the Fourth Amendment, since the
     student was required to enter the time out room. In addition, the claims may
     proceed to trial as to whether the district's time out practices were reasonable,
     where the room was a small, lighted, unfurnished, converted closet which could
     be locked from the exterior and was used for disciplinary purposes. Reviewing
     recommendations from state agencies regarding time out rooms that suggested
     that the school develop a written behavior management plan as part of the IEP
     that governs the use of time out, that schools use time out only with the written
     consent of the parents and never use locked time out rooms, the court denied the
     district’s motion for summary judgment.

b.   Doe v. State of Hawaii Dept. of Educ., 334 F.3d 906 (9th Cir. 2003). Vice
     principal is not entitled to defense of qualified immunity where he taped the
     student’s head to a tree for disciplinary purposes and the student’s only offense
     had been “horsing around” and refusing to stand still. Taping his head to a tree
     for 5 minutes was so intrusive that even a 5th grader observed that it was
     inappropriate. There was no indication that the student was fighting or imposed a
     danger to others and there is sufficient evidence for a fact finder to conclude that
     the vice principal’s behavior was objectively unreasonable in violation of the
     Fourth Amendment.

c.   A.C. v. Indep. Sch. Dist. No. 152, 46 IDELR 242 (D. Minn. 2006). Claims for
     general and punitive damages for the types of injuries alleged by student are not
     available under the IDEA. Therefore, IDEA cannot serve as a basis for a § 1983
     claim for such damages. However, student’s Fourth Amendment claims based
     upon confinement against his will may proceed relative to the alleged
     inappropriate use of a 70 square-foot, window-less “storage closet” as the
     student’s classroom.

d.   Couture v. Board of Educ. of the Albuquerque Pub. Schs., 535 F.3d 1243 (10th
     Cir. 2008). The repeated use of a timeout room as punishment for the student’s
     behavior did not violate the Fourth Amendment, as the timeout room was justified
     at its inception, the length in timeouts were reasonably related to the school’s
     objective of behavior modification, and placement in the timeout room did not
     implicate procedural due process requirements. Assuming that the use of time-out
     is a “seizure” under the Constitution, the use of time-out in this case was not
     unreasonable. Based upon the student’s behavior, which included repeatedly
     swearing at teacher and classmates, physically attacking them and threatening
     bodily harm, “temporarily removing [the child] given the threat he often posed to
     the emotional, psychological and physical safety of the students and teachers, was
     eminently reasonable” and did not rise to the level of a constitutional violation. In



                                          43
       addition, timeouts were expressly prescribed by his IEP as a mechanism to teach
       him behavioral control. Thus, the Section 1983 claims against the teacher should
       be dismissed.
e.     C.N. v. Willmar Pub. Schs., 50 IDELR 274 (D. Minn. 2008), aff’d, 110 LRP 1305
       (8th Cir. 2010). Where it was alleged that a teacher overzealously applied the
       seclusion and restraint provisions of a third-grader's BIP, this was not enough to
       sustain a Section 1983 claim for Fourth Amendment violations. Because the
       teacher's conduct was reasonable, the court held she was entitled to qualified
       immunity. The qualified immunity defense turns on the reasonableness of an
       official's conduct at the time of the alleged offense. If a teacher's treatment of a
       student with a disability does not substantially depart from accepted professional
       judgment, practice or standards, her actions are reasonable. In this case, the
       standard for accepted practice was set by the student's IEP. Because the IEP
       expressly permitted the teacher to use seclusion and restraint as behavior
       management techniques, the teacher did not depart from accepted professional
       judgment when she used those techniques with the student. "Indeed, [the teacher]
       was required to follow the IEP and use these techniques to help manage [the
       student's] behavior." [It is important to note that a state investigation did find
       “maltreatment” of the student when she denied access to the bathroom].

              Eighth Amendment cases

a.     Hayes v. Unified Sch. Dist., 559 IDELR 249, 669 F. Supp. 1519 (D. Kan. 1987).
       Parents can not use the Eighth Amendment to challenge the school’s imposition
       of time-out.

              FAPE claims/cases

       While the IDEA does not address the use of restraint/seclusion specifically, there
could be claims brought that the use of such violates the IDEA and its requirement to
provide FAPE.

                      OSEP guidance

a.     Letter to Weiss, 55 IDELR 173 (OSEP 2010). It is up to states as to whether the
       use of seclusion and restraint is permitted in schools. Although the IDEA
       encourages the use of positive behavioral interventions and supports, it does not
       prohibit other measures when appropriate to address student behavior. Thus, the
       decision of whether to allow such measures is left to each state and the U.S. DOE
       does not have the authority to regulate in this area. However, DOE recently
       collected state policies and guidelines on seclusion and restraint to post on its
       website and proposed that Civil Rights Data Collection identify the number of
       students subjected to restraint and seclusion as categorized by their race/ethnicity,
       sex, LEP and disability status and include data on the total number of times that
       restraint or seclusion is used.




                                            44
b.   Letter to Trader, 48 IDELR 47 (OSEP 2006). New York’s state regulations
     allowing for the use of aversive behavioral techniques do not conflict with the
     IDEA. While the IDEA requires a student’s IEP team to consider the use of
     positive behavioral intervention supports and strategies, neither the IDEA nor its
     regulations contain a “flat prohibition on the use of aversive behavioral
     interventions. Whether to allow IEP Teams to consider the use of aversive
     behavioral interventions is a decision left to each State.”

c.   Letter to Anonymous, 50 IDELR 228 (OSEP 2008). If Alaska law would permit
     the use of mechanical restraints or other aversive behavioral techniques for
     children with disabilities, the critical inquiry is whether their use can be
     implemented consistent with the child’s IEP and the requirement that IEP Teams
     consider the use of positive behavioral interventions and supports when the
     child’s behavior impedes the child’s learning or that of others.

                    OCR guidance

a.   Portland (ME) Sch. Dist., 352 IDELR 492 (OCR 1987). Although OCR rarely
     intervenes in individual cases, this was justified by “extraordinary” conduct,
     where a teacher who unilaterally decided to strap a profoundly disabled student
     into a chair without disciplinary action or an IEP meeting. This violated the
     student’s right to FAPE.

b.   Oakland (CA) Unif. Sch. Dist., 20 IDELR 1338 (OCR 1990). Since evaluations
     and assessments had determined that the student’s behavior was related to his
     disability, taping shut the mouth of an 18-year-old student with mental retardation
     for excessive talking was a violation of Section 504 and the ADA.

                    Court cases

a.   CJN v. Minneapolis Pub. Schs., 38 IDELR 208, 323 F.3d 630 (8th Cir. 2003).
     While the Court expressed regret that CJN was subjected to an increased amount
     of restraint in his third-grade year, that fact alone did not make his education
     inappropriate within the meaning of the IDEA. “Because the appropriate use of
     restraint may help prevent bad behavior from escalating to a level where a
     suspension is required, we refuse to create a rule prohibiting its use, even if its
     frequency is increasing.”

b.   Melissa S. v. School Dist. of Pittsburgh, 45 IDELR 271 (3d Cir. 2006),
     unpublished disposition. Where the student “sat on the floor kicking and
     screaming, struck other students, spit at and grabbed the breast of a teacher,
     refused to go to class, and once had to be chased by her aide after running out of
     the school building,” the school’s use of a time out area in an unused office where
     her aide and others would give her work did not violation IDEA. This did not
     constitute a change in placement and was within normal procedures for dealing
     with children endangering themselves or others.



                                         45
c.   P.T. v. Jefferson County Bd. of Educ., 46 IDELR 3 (11th Cir. 2006), unpublished
     disposition. An Alabama district appropriately considered the safety of the
     students on the school bus when it used a safety harness with an 11-year-old
     nonverbal student with autism. The district did not deny FAPE to the student by
     using a harness to restrain her on the bus because her behavioral outbursts were a
     safety concern that posed a serious risk of bodily injury to all of the passengers.

d.   Mallory v. Knox County Sch. Dist., 46 IDELR 276 (E.D. Tenn. 2006). Action for
     compensatory and punitive damages under 42 U.S.C. § 1983 are dismissed for
     failure to exhaust administrative remedies. Action brought concerning use of
     physical restraint clearly includes claims addressing the student’s IEP, the
     treatment of the student as a special education student, and the district’s alleged
     failures in dealing with the educational environment of the student—all of which
     should be addressed first in a due process hearing. The fact that the parents are
     seeking damages does not take this case out of the IDEA nor does it excuse the
     exhaustion of remedies requirement. Further, the contention that the use of the
     restraint system was abusive does not take this case out of the IDEA’s purview.

e.   Payne v. Peninsula Sch. Dist., 47 IDELR 35 (W.D. Wash. 2007). Parent’s suit for
     money damages and injunctive relief over student’s being allegedly locked in a
     63-inch by 68-inch “safe room” on a regular basis is dismissed. A parent can not
     avoid the IDEA’s exhaustion requirement simply by limiting the prayer for relief
     to money or services that are not available under the IDEA. The parent must seek
     a due process hearing and remedies under IDEA before filing in federal court.

f.   Waukee Community Sch. Dist. v. Douglas and Eva L., 51 IDELR 15 (S.D. Iowa
     2008). The fact that the parents agreed to the use of time-outs and hand-over
     hand interventions to manage their daughter's problem behaviors did not excuse a
     district's over-reliance on those techniques, where the behavior interventions were
     excessive and inappropriate. While the district made "considerable effort" to
     address the child's behavioral needs, the interventions applied were not reasonably
     calculated to manage the student's behavioral problems. The student's
     noncompliant behaviors were escapist in nature, while her aggression against
     peers was an effort to seek attention. "Both parties' experts...testified that the use
     of break time activity in response to non-compliance--an escape-based behavior--
     and the use of hand-over-hand intervention in response to peer aggression--an
     attention seeking behavior- would serve to reinforce the problem behavior and
     was contraindicated by the research." In addition, the interventions were
     excessive and inappropriate as applied. Although the district indicated that it
     would apply "age-appropriate" time-outs, lasting one minute for each year of the
     student's age, the evidence showed that the student sometimes spent several hours
     in isolation. The parents were also unaware that district staffers regularly used
     restraint when applying hand-over hand interventions and the district was required
     to provide prior written notice of its use. By failing to develop and implement
     appropriate behavioral interventions, the district denied the student FAPE.




                                          46
g.     Robert H. v. Nixa R-2 Sch. Dist., 26 IDELR 564 (W.D. Mo. 1997). Placement of
       SED child in a time-out room was allowed as stated in the IEP, to which the
       parents consented. District's refusal to allow child to attend field trip did not
       violate IDEA, since participation was conditioned on completion of homework,
       which the child did not do. In addition, 504 and ADA claims were precluded
       where there was no violation of IDEA.

h.     Rasmus v. State of Arizona, 24 IDELR 824 (D. Ariz. 1996). Section 1983 case
       for damages resulting from student's incarceration in locked time-out room for ten
       minutes. Action allowed to continue on the issue of whether the "seizure" was
       reasonable under a Fourth Amendment analysis.

i.     Hayes v. Unified Sch. Dist., 669 F. Supp. 1519 (D. Kan. 1987), rev'd on other
       grounds, 877 F.2d 809 (10th Cir. 1989). School system used 3 x 5 “time out”
       room to temporarily isolate disruptive children to allow them to calm down and to
       minimize disruption to the rest of the class. Students were never placed in “time-
       out” without good cause. Court found no violation of students’ constitutional
       rights in use of the “time out” room.

2.     TOP LEGAL ISSUE #2: SERVICE ANIMALS IN SCHOOLS

        The issue of service animals in schools portends to be one of the hottest topics in
special education over the next several years. There is little case authority so far on the
issue, but enough reported litigation is “in the works,” such that school districts need to
be prepared to appropriately address requests by parents for service dogs and other
animals to attend school with their children.

       State Law

As an initial matter, the issue of whether a student with a disability is entitled to bring a
service animal to school is one of state law. Educators need to be familiar with what their
state laws provide, if anything, regarding the allowance of service animals (or other
assistance animals) in school.

       Cases decided under particular state laws

a.     Kalbfleisch v. Columbia Community Unit Sch. Dist. Unit No. 4, 53 IDELR 266
       (Ill. App. Ct. 2009). Lower court decision is affirmed allowing a 5-year-old
       student with autism to attend school with his service dog, since Illinois law
       provides that districts must permit service animals to accompany students with
       disabilities to all school functions, whether inside or outside of the classroom.

b.     K.D. v. Villa Grove Comm. Unit Sch. Dist. No. 302, 55 IDELR 78, 2010 WL
       3450075 (Ill. Ct. App. 4th Dist. 2010). Autistic student has the right to have his
       service dog attend school with him, as the dog meets the Illinois statute’s
       definition of “service animal” and the statute on its face permits the dog to attend



                                             47
       school with the student.      The parents are not required to exhaust IDEA’s
       administrative process because the administrative agency’s expertise is not
       involved when the sole question is whether the dog constitutes a service animal
       under the Illinois School Code, a matter that is irrelevant to any educational
       benefit that he provides to K.D. As long as the dog provides some benefit to the
       student--which this one does when it applies deep pressure to calm the child and
       prevents the child from eloping when tethered to the child--it is a “service animal”
       under the Illinois Code. In addition, the district’s argument that an adult-handler,
       and not the student, must control the dog for it to “accompany” the student is
       rejected.

       Guidance under Federal Law

        At this time, there is no final federal law governing the use of service animals in
schools. However, not allowing a service animal to accompany a student to school could
clearly be a form of discrimination under Section 504 or the Americans with Disabilities
Act (ADA), or even an alleged denial of FAPE under the IDEA.

               Regulatory guidance under the ADA

         On July 23, 2010, the Justice Department released amendments to the ADA Title
II regulations for mobility devices and accessible design standards that were published in
the Federal Register on September 15, 2010 and will be effective on March 15, 2011.
Among other things, these amended regulations provide information regarding the
requirement to allow individuals with disabilities to use service animals in Title II
facilities (including public schools).

       Importantly, the new regulations will include a definition of “service animal” as
follows:

       any dog that is individually trained to do work or perform tasks for the
       benefit of an individual with a disability, including a physical, sensory,
       psychiatric, intellectual, or other mental disability. Other species of
       animals, whether wild or domestic, trained or untrained, are not service
       animals for the purposes of this definition. The work or tasks performed
       by a service animal must be directly related to the handler’s disability.
       Examples of work or tasks include, but are not limited to, assisting
       individuals who are blind or have low vision with navigation and other
       tasks, alerting individuals who are deaf or hard of hearing to the presence
       of people or sounds, providing non-violent protection or rescue work,
       pulling a wheelchair, assisting an individual during a seizure, alerting
       individuals to the presence of allergens, retrieving items such as medicine
       or the telephone, providing physical support and assistance with balance
       and stability to individuals with mobility disabilities, and helping persons
       with psychiatric and neurological disabilities by preventing or interrupting
       impulsive or destructive behaviors. The crime deterrent effect of an



                                            48
       animal’s presence and the provision of emotional support, well-being,
       comfort, or companionship do not constitute work or tasks for purposes of
       this definition.

28 C.F.R. § 35.104.

        Other provisions in the new ADA regulations under 28 C.F.R. § 35.136 relative to
service animals can be summarized as follows:

1.     General: Generally, a public entity shall modify its policies, practices and
procedures to permit the use of a service animal by an individual with a disability.

        Exceptions: However, a public entity may ask an individual to remove a service
animal from the premises if (1) the animal is out of control and the animal’s handler does
not take effective action to control it; or (2) the animal is not housebroken.
        If the public entity properly excludes a service animal as provided above, it shall
give that individual the opportunity to participate in the service, program, or activity
without having the service animal on the premises.

2.      Animal under handler’s control: A service animal shall be under the control of its
handler. A service animal shall have a harness, leash, or other tether, unless either the
handler is unable because of a disability to use a harness, leash, or other tether, or the use
of such would interfere with the service animal’s safe, effective performance of work or
tasks, in which case the service animal must be otherwise under the handler’s control
(e.g., voice control, signals, or other effective means).

3.      Care or supervision: A public entity is not responsible for the care or supervision
of a service animal.

4.      Questions about the animal: A public entity can not ask about the nature or extent
of a person’s disability, but may make two inquiries to determine whether an animal
qualifies as a service animal. A public entity may ask if the animal is required because of
a disability and what work or task the animal has been trained to perform. A public entity
shall not require documentation, such as proof that the animal has been certified, trained,
or licensed as a service animal. Generally, a public entity may not make these inquires
about a service animal when it is readily apparent that an animal is trained to do work or
perform tasks for an individual with a disability (e.g., the dog is observed guiding an
individual who is blind or has low vision, pulling a person’s wheelchair, or providing
assistance with stability or balance to an individual with an observable mobility
disability).

5.       Access to areas of the public entity: Individuals with disabilities shall be
permitted to be accompanied by their service animals in all areas of a public entity’s
facilities where members of the public, participants in services, programs or activities, or
invitees, as relevant, are allowed to go.




                                             49
6.      Surcharges: A public entity shall not ask or require an individual with a disability
to pay a surcharge, even if people accompanied by pets are required to pay fees, or to
comply with other requirements generally not applicable to people without pets. If a
public entity normally charges individuals for the damage they cause, an individual with
a disability may be charged for damage caused by his or her service animal.

7.      Miniature horses: A public entity shall make reasonable modifications in policies,
practices, or procedures to permit the use of a miniature horse by an individual with a
disability if the miniature horse has been individually trained to do work or perform tasks
for the benefit of the individual with a disability. In determining whether reasonable
modifications in policies, practices, or procedures can be made to allow a miniature horse
into a specific facility, a public entity shall consider (1) the type, size, and weight of the
horse and whether the facility can accommodate these features; (2) whether the handler
has sufficient control of the miniature horse; (3) whether the miniature horse is
housebroken; and (4) whether the miniature horse’s presence in a specific facility
compromises legitimate safety requirements that are necessary for safe operation.

       All of the above requirements also apply to miniature horses.

               Case law guidance

       To date, there has been at least one reported federal court case, one due process
hearing decision and at least one OCR Letter of Finding that provide somewhat useful
guidance to school districts in the development of their procedures for addressing
requests to bring service (or other) animals to school.

a.     Cave v. East Meadow Union Free Sch. Dist., 47 IDELR 162, 480 F. Supp. 2d 610
       (E.D.N.Y. 2007), aff’d, 49 IDELR 92, 514 F.3d 240 (2d Cir. 2008). Despite
       claiming that their son’s request to bring his service dog to school had nothing to
       do with his IEP, the parents of a high schooler with a hearing impairment could
       not pursue Section 504 and ADA claims against the District. The parents’ failure
       to exhaust their administrative remedies under the IDEA barred their
       discrimination suit under the ADA, where the dispute boiled down to a request for
       an IEP modification. Although the parents maintained that the District unlawfully
       prevented the student from accessing a public facility, the District would need to
       make changes to the student’s IEP to accommodate the dog’s presence. “It is hard
       to imagine, for example, how [the student] could still attend the physical
       education class while at the same time attending to the dog’s needs, or how he
       could bring [the dog] to another class where another student with a certified
       allergic reaction to dogs would be present.” While the IDEA did not permit the
       parents to recover the $150 million in compensatory and punitive damages that
       they sought, it did offer a remedy: the parents could request a due process hearing
       and seek to have the service dog identified as an accommodation in the student’s
       IEP. As such, the parents had to exhaust their administrative remedies before
       filing suit. Thus, the case is remanded with instructions to dismiss the case for
       lack of jurisdiction.



                                             50
b.   Collier County Sch. Dist., 110 LRP 7471 (SEA Fla. 2006). Among other things,
     the ALJ found no need to include a service dog in the child’s IEP. Noting that the
     dog’s purpose was to comfort the child in the event of a seizure--a service that
     could be performed by his one-to-one aide--the District was entitled to use any
     methodology that would provide the child FAPE.

c.   Bakersfield City (CA) Sch. Dist., 50 IDELR 169 (OCR 2008). Without deciding
     whether a student’s dog qualified as a “service animal,” OCR found that a
     California district violated Title II and Section 504 by excluding the dog from
     school, because the District did not follow proper procedures for reviewing the
     dog’s training, function, or impact on the student’s education. For instance, the
     District did not conduct a specific inquiry as to whether the dog was an
     appropriately trained service animal or whether its function addressed the
     student’s disability-related needs. Instead, the District unilaterally determined that
     the dog posed a health and safety risk to students and staff. In addition, the
     District failed to conduct a hearing about the dog’s status as a service animal.
     “[T]his denial of a reasonable modification to the student’s disability…should
     have been internally grievable under a Section 504/ADA Title II grievance
     procedure.” Even if the dog did not qualify as a service animal, the District
     should have considered whether the dog’s presence was necessary for the student
     to receive FAPE. Of note was the fact that the student’s behavior improved
     significantly when he brought his dog to class. Moreover, there was no evidence
     that staff or other students complained about the dog’s presence. By failing to
     consider whether the dog was a necessary aid or service under the IDEA, the
     District deprived the student of his procedural safeguards.

d.   Bakersfield City Sch. Dist., 51 IDELR 142 (SEA Cal. 2008). The fact that a
     seventh-grader’s parents produced studies on the benefits of service dogs did not
     require the District to identify the student’s dog as a related service in his IEP,
     because the dog’s presence was unnecessary and overly restrictive. While the
     parents’ experts testified that students with autism and developmental disorders
     make great strides when they work with service dogs, only one of the experts was
     knowledgeable about autism. Further, the studies on which the experts relied
     were anecdotal in nature. “[The dog expert] does not know if [the use of service
     dogs for educational purposes] has been endorsed by autism experts, nor is he
     aware of peer-reviewed studies endorsing the use of dogs for [children with
     autism].” The ALJ also pointed out that the student did not need a service dog to
     receive FAPE, where the District had offered to provide a one-to-one aide, which
     the parents rejected as overly restrictive. Indeed, the dog’s presence would be
     more restrictive than that of the aide, because unlike the aide, who could “fade
     out” and allow the student to redirect his behavior on his own, the dog would be
     constantly at the student’s side. Thus, the District did not err in denying the
     student’s request to have the service dog in class.




                                          51
3.     TOP LEGAL ISSUE #3: RETALIATION

         Retaliation is considered a form of discrimination if a school district retaliates
against someone on the basis of his/her advocacy on behalf of an individual with a
disability. This continues to be a hot topic every year and a frequent claim made in special
education litigation, particularly since the Ninth Circuit decided the case of Settlegoode v.
Portland Pub. Schs., 371 F.3d 503 (9th Cir.), cert. denied, 125 S. Ct. 478 (2004) [verdict
of jury is upheld, where it found that the school district had violated Section 504 and the
state’s whistleblower statute and held for itinerant special education teacher on all claims.
The jury’s award of $500,000 in non-economic damages, $402,000 in economic damages
and $50,000 in punitive damages against both the special education director and school
principal under Section 1983 is upheld. The jury was more than reasonable in finding
that the interests served by allowing the teacher to express herself outweighed any minor
workplace disruption that resulted from her speech. Furthermore, it is well-settled that a
teacher’s public employment cannot be conditioned on her refraining from speaking out
on school matters.

A.     Reinhardt v. Albuquerque Pub. Schs. Bd. of Educ., 40 NDLR 156, 595 F.3d 1126
       (10th Cir. 2010). District court’s ruling on summary judgment in favor of the
       school district is reversed where the speech-language pathologist repeatedly
       complained to her superiors about inaccurate caseload lists, which not only
       deprived qualified students of services but also impacted the staff pathologists’
       contract status and salaries. In addition, the SLP filed an IDEA complaint with
       the state education department which, after conducting an investigation, ordered
       the district to take corrective action. Where the SLP historically received a salary
       increase due to her above-average caseload, after she filed her complaint with the
       state department, the district limited the number of students it assigned to her and
       reduced her to a standard contract. In attempting to protect the rights of special
       education students by complaining to school and state officials, the SLP engaged
       in activity protected under Section 504 and the First Amendment and there is a
       question of fact as to whether the district retaliated against her.

B.     Fox v. Traverse City Area Pub. Schs. Bd. of Educ., 110 LRP 28729, 605 F.3d 345
       (6th Cir. 2010), cert. denied. District did not violate probationary teacher’s First
       Amendment rights when it did not renew her teaching contract, as its decision was
       based upon numerous documented performance deficiencies during her two-year
       probationary period, not because she voiced concerns to the special education
       director and the school principal that her caseload exceeded that allowed by law.
       To establish a First Amendment violation, the teacher was required to show that
       1) her statements were protected speech; 2) she suffered an adverse employment
       action; and 3) the adverse action was motivated at least in part by the exercise of
       her speech rights. In addition, to be protected, an employee’s speech must
       address of matter of public concern, and statements made pursuant to an
       employee’s official duties are not protected by the First Amendment. Here, the
       teacher’s statements concerning class size were made to her supervisor, not to the
       board, the public or to an agency outside the chain of command. Moreover, the



                                             52
     teacher’s comments related to her employment conditions and did not address a
     matter of public concern.

C.   Herrera v. Giampietro, 110 LRP 27767 (E.D. Cal. 2010). Where parent claims
     retaliation under the ADA, the parent must show that 1) she engaged in protected
     activity; 2) the district knew of the activity; 3) the district took adverse action; and
     4) causation. If the district states a legal reason for taking the adverse action, the
     parent must then show that reason is merely a pretext. While the district
     identified a lawful reason for transferring the parent’s nephew out of the district,
     there was a factual question as to whether the district’s explanation was merely a
     pretext for retaliating for the parent’s complaints filed with the CDE about her
     own autistic son’s programming. Thus, case will not be dismissed.

D.   Wilbourne v. Forsyth County Sch. Dist., 38 NDLR 89, 36 F. App’x 473 (11th Cir.
     2009). Dismissal of case is affirmed where teacher argued that district retaliated
     against her by issuing a “letter of directive” to be placed in her personnel file and
     filing a complaint against her with the Professional Standards Commission for
     “unprofessional conduct” after she filed a complaint with PSC regarding an
     incident involving a teacher abusing her disabled son and confronted an
     administrator at her son’s school about the school’s projected discipline of her
     son. To establish a case of ADA retaliation, a plaintiff must show: (1) that she
     engaged in statutorily protected activity; (2) that she suffered an adverse
     employment action; and (3) a causal link between the protected activity and the
     adverse action. Once a plaintiff has established a case of retaliation, the employer
     has an opportunity to articulate a legitimate, non-retaliatory reason for the
     challenged employment action. If this is accomplished, the plaintiff then bears
     the burden of showing that the reason provided by the employer is a pretext for
     prohibited, retaliatory conduct. Here, the teacher presented insufficient evidence
     to establish that the district’s reasons for taking adverse action against her were
     pretext for discrimination.

E.   Stengle v. Office of Dispute Resolution, Stengle v. Office of Dispute Resolution,
     109 LRP 24455 (M.D. Pa. 2009). Case alleging violations of the First
     Amendment and retaliation under Section 504/ADA is decided on summary
     judgment in favor of all the ODR and State Department of Education defendants.
     Defendants clearly articulated non-discriminatory reasons for non-renewing
     plaintiff’s contract as a due process hearing officer. She was not non-renewed
     because of the mere fact that she maintained a blog or because she criticized or
     “bashed” ODR on that blog. Rather, defendants have shown that she was non-
     renewed because the content of the blog caused members of the public, some of
     whom were parties in cases she heard as a hearing officer, to question her
     impartiality, which ultimately inhibited the effective administration of the hearing
     officer system. “Simply put, Plaintiff has failed to adduce any evidence that calls
     into question the legitimacy of ODR Defendants’ first non-retaliatory reason, the
     perceived compromise of her impartiality occasioned by her blog.”




                                           53
F.     Rodriguez v. Clinton, 109 LRP 8413 (N.D. N.Y. 2009). School district did not
       retaliate against a parent of a student with a disability who spoke against the
       district at a board meeting and wrote a letter to the editor on institutional racism in
       school elections when it filed an “educational neglect” report against him. Prior
       to the student’s withdrawal from school, he was found eligible for special
       education and the special education coordinator attempted to work with his
       parents to arrange for home tutoring or residential placement. The student’s
       psychiatrist had recommended a residential placement for the student because he
       was at risk for self harm and drug use. When the coordinator had not heard from
       the parents for almost a month, she recommended to the child study team that a
       CPS report be filed and this had nothing to do with the parent’s speech activities.

G.     Pinellas County (FL) Sch. Dist., 52 IDELR 23 (OCR 2009). Where district’s
       meeting minutes showed that staff discussed not placing the student in a German
       class because there was a pending OCR Complaint, this is sufficient to reflect
       retaliation.

4.     TOP LEGAL ISSUE #4: DISABILITY HARASSMENT

         Educators must be sure to follow good policies and procedures to not only prevent
disability harassment but to also address it properly when it occurs. Disability harassment is
viewed to be a form of discrimination under federal law, for which a school district could be
found liable, either in the form of student-on-student disability harassment or staff-on-
student disability harassment. On October 26, 2010, the Office for Civil Rights (OCR)
issued a “Dear Colleague Letter” (55 IDELR 174 and the ed.gov website) reminding
educational agencies that some bullying incidents may also constitute disability or other
discrimination and require a response that goes beyond the district’s usual approach to
peer teasing, taunting, or hazing. According to OCR, districts must identify whether a
reported incident, no matter how it is labeled, amounts to unlawful discrimination and, if
so, respond in a manner that accords with Section 504, Title II, Title VI (which prohibits
discrimination on the basis of race, color, or national origin), or Title IX (which prohibits
sex discrimination).

A.     M.Y. v. Grand River Academy, 54 IDELR 255 (N.D. Ohio 2010). Dismissal of
       ADA and Section 504 claims brought by private high school student is not
       appropriate where student alleged that he was bullied and harassed by his peers,
       which included being physically assaulted, causing him to become so depressed
       that he threatened to harm himself. According to the complaint, school officials
       not only ignored the student’s reports of peer harassment, but they also told him
       that it was their policy to look the other way when upperclassmen punished or
       hazed younger students. Where the student claimed that the school discriminated
       against him by failing to protect him from harm and by denying him the benefit of
       the educational program and services offered to nondisabled students,
       headmaster’s and school’s motion to dismiss is denied.




                                             54
B.   Patterson v. Hudson Area Schs., 109 LRP 351, 551 F.3d 438 (6th Cir. 2009). This
     case will not be dismissed where a jury must decide whether the school district
     was deliberately indifferent to the harassment of an ED student. At some point,
     the response of the district, which knew that its verbal reprimands were not
     affective against the mistreatment, clearly became unreasonable. “We cannot say
     that a school district is shielded from liability if that school district knows that its
     methods of response to harassment, though effective against an individual
     harasser, are ineffective against persistent harassment against a single student.”
     The student claimed that throughout his middle and high school year classmates
     called him names referencing his sexual orientation and pushed him in the
     hallways. While a staff member would verbally reprimand individual perpetrators
     and the student would stop the conduct, the maltreatment by the student body as a
     whole continued. In addition, the district placed him in a resource room in middle
     school but the high school principal would not allow him to continue there and the
     harassment intensified, culminating in a sexual assault. A district may be liable
     for student-on-student sexual harassment if 1) the harassment was so severe,
     pervasive and offensive as to deprive the victim of educational benefits; 2) the
     district knew about the harassment; and 3) the district was deliberately indifferent
     to the harassment (i.e., if its response is clearly unreasonable in light of known
     circumstances). [NOTE: On remand, the jury found in favor of the student, but
     the federal judge set the jury’s verdict aside because the name-calling was typical
     of middle and high school behavior and constituted bullying, not sexual
     harassment. In addition, the court found that district personnel responded to every
     incident of harassment that was reported by disciplining students whose identities
     were known. In addition district personnel implemented anti-harassment policies
     and publicized them to students and staff. Although the 8th grade resource room
     was no longer available in the 9th grade, the IEP provided that the student could
     report to his preferred teacher for resource room 20-30 minutes per week and on a
     daily basis, as needed. See Patterson v. Hudson Area Schs., 110 LRP 38433
     (E.D. Mich. 2010)].

C.   S.S. v. Eastern Kentucky University, 50 IDELR 91, 532 F.3d 445 (6th Cir. 2008).
     For a finding of liability for student-on-student harassment, it is required that 1)
     the student is an individual with a disability; 2) he was harassed based on his
     disability; 3) the harassment “was sufficiently severe or pervasive;” 4) the school
     agency knew of the harassment; and 5) the school was deliberately indifferent to
     the harassment. In this case, evidence of the LEA’s actions in response to the
     harassment indicated that the allegations were investigated and that the students
     involved were disciplined; that interviews were conducted; that the student was
     monitored and separated from his harassers; that mediation sessions were held;
     that the LEA communicated with the parents; and that training was provided to
     the student body about name-calling. On that basis, proof was lacking as to what
     the LEA could have or should have done differently in order to bring the
     harassment to a stop.




                                           55
D.     Werth v. Board of Directors of the Pub. Schs. of the City of Milwaukee, 47
       IDELR 67, 472 F.Supp.2d 1113 (E.D. Wis. 2007). Damages are not available for
       simple teasing and name-calling. Instead, the conduct must be “serious enough to
       have the systemic effect of denying the victim equal access to an educational
       program or activity.” A plaintiff must demonstrate harassment that is “so severe,
       pervasive, and objectively offensive, and that so undermines and detracts from the
       victim’s educational experience, that the victim-students are effectively denied
       equal access to an institution’s resources and opportunities.” In this case, the
       student lacks sufficient proof that he was harassed because of his disability and he
       does not establish that the shop teacher or any school administrators knew of
       student harassment prior to the two incidents at issue (involving two separate
       students throwing wooden blocks at plaintiff) or that they were deliberately
       indifferent in any way.

E.     Lee County (FL) Sch. Dist., 47 IDELR 18 (OCR 2006). School nurse’s alleged
       statements that a student with diabetes was attempting to get out of work and
       needed to “hurry up” when picking a location for insulin injections were not
       discriminatory. However, in conjunction with the alleged lack of training for and
       coordination of medical treatment and repeated failures to respond to parent’s
       concerns, a “hostile environment” existed. In addition, the district provided no
       documentation that staff were properly managing the student’s treatment and
       should respond to parental complaints and conduct staff training.

F.     Hoover City (AL) Sch. Dist., 47 IDELR 19 (OCR 2006). School district did not
       discriminate or retaliate against sixth-grade student with Asperger’s Syndrome
       when it dropped his math grade based upon a failing assignment and gave him
       two zeros on assignments he did not submit. The student’s grades were based on
       poor performance and failure to submit assignments, not his father’s advocacy.

5.     TOP   LEGAL     ISSUE   #5:   ALLERGIES                     AND      CHEMICAL
       SENSITIVITIES/SECTION 504 ISSUES

        Issues involving allergies and chemical sensitivities seem to be on the rise
recently. It seems that more students are being diagnosed with severe allergies and
chemical sensitivities and, as a result, the need to accommodate these conditions in the
school environment has become an increasing concern. There have been a number of
fairly recent decisions from the Office for Civil Rights (OCR) and some court and
hearing officer opinions on this topic:

a.     Pine-Richland (PA) Sch. Dist., 53 IDELR 200 (OCR 2009). Where the school
       nurse allegedly required the student with allergies to stand in front of her class
       and discuss her milk and egg allergies and what she could not eat, the district
       acted properly to ensure that this would not happen again. Where the parent
       alleged that the district treated the student differently from students without
       disabilities by disclosing her confidential health information without her consent,
       the district acknowledged that this was a one-time occurrence, and that other



                                           56
     students were not treated similarly. Clearly, the district had policies, procedures
     and guidelines governing the maintenance and disclosure of student health
     records, and the school nurse admitted to making a presentation to the student’s
     class about the student’s food allergies, but she believed that this was in
     accordance with the student’s 504 plan and, at the time, believed that the student’s
     parent had authorized the discussion of her daughter’s needs. The district
     addressed the parent’s concerns with the nurse, advising her in writing of her
     obligations under FERPA. Specifically, she was advised that she was not to
     disclose the student’s condition to the class without written authorization from her
     parent. On this basis, the complaint is administratively closed.

b.   Henry County (MO) R-1 Sch. Dist. (OCR 2009). District violated Section 504
     where kindergartner with celiac disease had a 504 plan that provided that she was
     not to have any food containing gluten and that the district was to inform
     substitutes of this so that she would not receive unsafe snacks in class. Evidently,
     food service workers gave her gluten twice, resulting in the child becoming
     seriously ill and having to leave school for treatment. In addition, a substitute
     teacher allegedly gave her candy without checking to ensure that it was gluten-
     free and the student’s teacher indicated that she did not consistently inform
     substitutes of the 504 plan’s gluten provisions, because those appeared in the
     student’s file. In this case, the implementation failures resulted in serious
     physical harm and prevented the student from eating district meals. Thus, the
     failure to provide her with a completely gluten-free diet and to inform substitutes
     of her dietary needs significantly impacted her ability to participate in or benefit
     from her program. Thus, the district executed a resolution agreement to assure
     compliance.

c.   Bethlehem (NY) Cent. Sch. Dist., 52 IDELR 169 (OCR 2009). School district
     violated Section 504 when it precluded a student with peanut, dairy, egg, kiwi and
     crab allergies from enrolling in his school’s culinary arts course. Though the
     district was concerned about airborne allergens, accidental ingestion and even the
     possibility of food fights, that student’s allergist had no objection to the student’s
     participation in the course. The district did not provide a basis for its decision to
     exclude the student, other than its asserted need for additional information from
     the allergist who was on vacation when they tried to initially contact the allergist,
     but no follow up occurred. Moreover, staff members conceded that they could
     have sought the allergist’s additional input prior to excluding the student, but they
     did not do so. Finally, medical documentation indicated that the student could
     safely participate. As a result, the district failed to ensure that the “placement
     decision” was made by a group of persons knowledgeable about the child, the
     data and the placement options.

d.   North Penn (PA) Sch. Dist., 53 IDELR 336 (OCR 2009). The district properly
     implemented the health provisions of a sixth-grader’s IEP. According to his IEP,
     the district was required to regularly maintain the air purifiers in the student’s
     classroom to accommodate his allergies and asthma. The district was also



                                          57
     required to minimize the student’s exposure to known environmental allergens,
     including plants and airborne chemicals. The district provided documentation that
     showed that the purifier units’ filters and the outer shells were cleaned once a
     month, in accordance with the manufacturer's maintenance recommendations.
     Confirming that the health plan was part of the student’s IEP, members of the IEP
     team said they implemented it by removing plants from the student’s classroom,
     having the student wear a mask when necessary to avoid toxic chemicals,
     removing the ceiling tiles, and conducting air quality sample tests to determine
     whether mold was present. In addition, the parent could not identify anything
     specific that the district failed to do when implementing her son’s IEP but instead
     relied on the fact that her son was ill on several occasions during the school year
     as evidence that the district failed to implement his health plan. Since the district
     made various efforts to implement the health provisions of the student’s IEP,
     there was not enough evidence to sustain the parent’s discrimination claim.

e.   South Windsor (CT) Pub. Schs., 49 IDELR 108 (OCR 2007). Although some
     foods containing milk and peanuts occasionally made their way into the
     classrooms of two brothers with milk and nut allergies, there was insufficient
     evidence that the district did not implement their 504 plans. The district’s quick
     response to the parents’ reports of food violations effectively prevented any
     further incidents and the investigation revealed that although the boys’ teacher did
     offer food in class as a treat on one occasion, the district immediately spoke with
     the teacher about the incident. “While this may have constituted a breach of a
     specific provision in [the student’s] Section 504 plan, it was a single exception to
     the general practice of not using food as a treat or a reward, and it never happened
     again.” In addition, the teacher reminded all students about the class “peanut-
     free” policy after she received reports that some children had brought snacks with
     them that contained peanuts. Further, the district removed classmates from the
     other child’s lunch table when they were observed drinking milk from open
     plastic containers rather than closed cardboard containers. Clearly, the district
     took reasonable steps to remediate any 504 plan implementation failures and,
     therefore, did not discriminate against the students.

f.   Gloucester County (VA) Pub. Schs., 49 IDELR 21 (OCR 2007). The district
     violated Section 504 when it determined that a student with a life-threatening
     peanut and tree nut allergy was not entitled to accommodations. This is a “rare
     instance” wherein OCR will address the substance of an eligibility determination
     because the district’s decision presents “extraordinary circumstances” where the
     student is likely to suffer serious harm from the lack of a Section 504 Plan.
     According to a letter from the student's doctor, the student had experienced
     several life-threatening reactions after coming in contact with items that had once
     held tree nuts. While the district did not have any information to contradict the
     doctor’s statements about the severity of the student’s allergies, it nonetheless
     found the student ineligible for accommodations. “Based on the evidence…, we
     have concerns regarding the consistency with Section 504 and Title II of the




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     ‘result’ or substance of the [district’s] determination that the student is ineligible
     for Section 504 services.”

g.   A.S. v. Trumbull Bd. of Educ., 45 IDELR 40, 414 F. Supp. 2d 152 (D. Conn.
     2006). School district did not violate the IDEA when it refused to conduct indoor
     air quality testing before determining the placements for two siblings with asthma
     and severe allergies. Because there is no standard for determining “safe” levels of
     mold, the district made adequate preparations by initiating comprehensive plans
     to eliminate environmental hazards and by developing emergency response plans
     for the siblings. Furthermore, the district made significant efforts to address the
     students’ environmental sensitivities by transferring them to a school that had
     undertaken a mold remediation program, conducting some testing there, and
     accommodating the students by providing services in areas where testing showed
     the minimum amount of health risk.

h.   Smith v. Tangipahoa Parish Sch. Dist., 46 IDELR 282 (E.D. La. 2006). Student
     with an allergy to horses is not disabled under Section 504 or the ADA because
     the allergy was not shown to “substantially limit” the major life activity of
     breathing or learning. In addition, all of the accommodations that the school was
     making pursuant to the demands of the parent and through a Section 504 Plan
     were unnecessary. Ensuring that the student took her medications and making an
     EpiPen readily available were the only accommodations necessary and banning
     horses from campus, wiping off equipment and spraying down the street with
     water or bleach were not.

i.   Saluda (SC) Sch. Dist. One, 47 IDELR 22 (OCR 2006). School district failed to
     develop an appropriate Section 504 plan for a sixth grader with peanut/tree nut
     allergies (PTAs). While the district had done some things to address the issue, the
     district must take additional corrective action regarding accommodations provided
     and, among other things, develop an appropriate Section 504 Plan for the student,
     to discontinue serving products containing nuts in the cafeteria, to provide
     training regarding PTAs to responsible district staff, and to provide sufficient
     notice to all other parents and students of the existence of PTAs and the type of
     cooperation it was requesting of them. With respect to making the school
     environment as safe as possible for the student, OCR notes that “[a]lthough such
     steps do not have to include a total ban on individuals bringing PTs to School,
     they do include providing notice to all parents of students and students at the
     School and on the Student’s bus of: (1) the fact that a student with PTAs attends
     the School and rides the bus; (2) the nature of PTAs and the types of exposure that
     can result in an allergic reaction; (3) the potential harm to students with PTAs of
     exposure to PTs; (4) the measures the District is taking to protect the student with
     PTAs and (5) the type of cooperation the District is requesting of them.”

j.   Pacific Grove (CA) Unif. Sch. Dist., 47 IDELR 138 (OCR 2006). School district
     did not discriminate against a third-grader with a life-threatening nut allergy by
     failing to prevent harassment by the student’s classmates and their parents.



                                          59
     Because the district took adequate steps to quell complaints about the student’s
     accommodations, there was no evidence that the child was exposed to a hostile
     environment. While the student’s IEP provided for daily vacuuming of the
     classroom carpet, daily washing of the classroom desks, hand-washing for all
     individuals who entered the classroom, and maintaining the classroom as a food-
     free area, the district needed the voluntary cooperation of the student’s classmates
     and their parents for the plan to work effectively. “It is reasonable that, without
     animus or a discriminatory purpose, [the classmates and parents] might question
     the necessity of the procedures they were being asked to follow.” Clearly, the
     district took reasonable steps to inform the classmates and their parents about the
     nature of the modifications and provided forums to supply information about the
     severity of food allergies. This action fulfilled the district’s obligations under
     Section 504 and the ADA.

k.   Middleton Sch. Dist., 46 IDELR 298 (SEA N.H. 2006). Parent of 9-year-old
     student with a latex allergy did not show that the presence of tires on the
     elementary school playground rendered the school an inappropriate placement for
     him. The district took all necessary steps to accommodate the student’s allergy
     while taking into consideration his other health issues by planning to implement a
     policy preventing the student’s classmates from interacting with him after playing
     on the playground until they had washed their hands. In addition, the school nurse
     testified that she ensured the district purchased only latex-free equipment,
     including cooking equipment, pencils and balls. Because the district demonstrated
     that it could implement the student’s IEP in a latex-free environment, the school
     was the student’s LRE.

l.   Cascade Sch. Dist., 37 IDELR 300 (SEA Ore. 2002). District’s November 2001
     504 plan offered services and accommodations that allowed the student to safely
     access school as adequately as the district allowed for safe access to students
     without disabilities. Its new 504 plan, proposed in January 2002, also met Section
     504 requirements, as it required the student’s teachers to post a sign reminding
     students to wash their hands if they handle nut products. The district is not
     required to impose a blanket prohibition on any food product without a label or to
     ban parents from sending homemade treats, as this is “an unacceptable
     interference in the individual rights of parents to raise their children as is
     appropriate for their culture, beliefs, languages and finances, even if a list of
     ingredients (label) for homemade treats is included with the treats….” In addition
     and for non-mandatory participation in extracurricular activities, it would be an
     undue administrative burden for the district to police the behavior of other
     participants and prohibit the distribution of any food that might contain nut
     products.

B.   FINAL JEOPARY QUESTIONS IN THE Q & A CATEGORY

1.   Do you have a recommendation for an appropriate evaluation process for 504?
     How do you determine if there is an impact on a major life activity?



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2.   We have private service providers, such as support coordinators, who come to
     the school to observe the students they provide services to. Is that something
     other districts allow? Once they visit, I receive letters detailing everything they
     feel is inappropriate, which is copied to the parent and others. We do not allow
     private providers of speech/etc. to provide those services on school grounds, so it
     would seem that their visitation would be denied.

3.   Autism update.




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