five will get you ten

Five will Get you Ten:Nebraska Special Education

Decisions Since 2005Decisions Since 2005

Karen Haase H di & Sh lHarding & Shultz

(402) 434-3000( )[email protected]

Lancaster Co. Sch. Dist. 001, 110 LRP 51715 (Sept. 10, 2010)

F tFacts►Student aggressive autistic third-graders►Parents had elected private placement for

substantial portions of education►Use of baskethold an issue►Sent to Kennedy Krieger Institute for 5 y g

months►When returned, could not agree to plan►When returned, could not agree to plan►Parents privately placed and sued


L l ILegal Issues►Disciplinary Removal

• Not punishing bad behavior


“Cl l b h i l bl t h l“Clearly behavioral problems at school were caused by and had a direct and

b t ti l l ti hi t tisubstantial relationship to autism. … However it is equally clear that [the t d t] t di i li d f thstudent] was not disciplined for those

behaviors, and that there was not a h f l t d ib d bchange of placement as described by

[section 16 of Rule 51].”



• Not punishing bad behavior• No removal


“ [Th t d t] t d d f“ [The student] was not suspended from school, nor was expelled. Neither was th i h l i Whilthere an in school suspension. While the amount of time spent in the general d ti l i d d theducation classroom varied, and as the

semester went on decreased, [the t d t] i d i th l tstudent] remained in the placement

provided for by the IEP.”



• Not punishing bad behavior• No removal• Since not discipline, no requirement for

manifestation


L l ILegal Issues►Disciplinary Removal►FAPE under Rowley

• Hearing officer: Best and Better aren’t grelevant

• Not a comparative standardp


“ I t f l t t P i i“ In support of a placement at Prairie Hill, the Petitioners argued that Prairie Hill b tt l f [th t d t]Hill was a better place for [the student] behaviorally, that [the student] made b tt d ti ll d th tbetter progress educationally and that [the student] was better integrated with

h di d t d t ”non-handicapped students.”


“Th t h l k“These arguments, however, overlook the very basic premise that the

i i f f i tprovision of a free appropriate education is not a comparative test and

t b d t d d f hnot based upon a standard of where a student can receive the best education.”


L l ILegal Issues►Disciplinary Removal►FAPE under Rowley►LRE

• Parents argued private actually more mainstreamed with peersp

• H.O.: first preference is for home district, even if more mainstreamed at distanteven if more mainstreamed at distant placement


L l ILegal Issues►Disciplinary Removal►FAPE under Rowley►LRE►Predetermination

• School refused to implement experts’School refused to implement experts recommendations re baskethold, etc.

• H O : good faith in accepting some• H.O.: good faith in accepting some, reasonably rejecting others


L l ILegal Issues►Disciplinary Removal►FAPE under Rowley►LRE►Predetermination►Damages►Damages

• Parents asked for $430,184 plus tuitionH O t t d lik IEE• H.O.: treated like IEE

Sidney Public Schools, 110 LRP 19430 (Jan. 23, 2010)

F tFacts►Student came to district verified as SLD,

i fitesting confirmed►Behavior increasingly disruptive, non-

compliant and bizarre►Family reluctant to share medical and other

information ►Student ultimately placed in a homebound

placement pending additional medical information from family.


L l ILegal Issues►Classification

• District verified SLD• Mom: should have been OHI: ADD• H.O.: verification doesn’t matter so long

as FAPE providedp• Richardson v. D.C. Sch. Dist., 541 F. Supp.

2d 346 (D.D.C. 2008)2d 346 (D.D.C. 2008)


L l ILegal Issues►Classification►Failure to Accommodate Mom’s Handicap

• Provide SpEd documents in accessible pformat

• Provide homework in accessible format• H.O.: district accommodated with SpEd

documents, not necessary for homeworkdocuments, not necessary for homework


L l ILegal Issues►Classification►Failure to Accommodate Mom’s Handicap►LRE

• School provided clear continuum • Lack of student successLack of student success • Disruption of peers

H O di t i t li d ith• H.O.: district complied with regs


L l ILegal Issues►Classification►Failure to Accommodate Mom’s Handicap►LRE►Unilateral change to BIP

• Mom: followed doc’s advice withoutMom: followed doc s advice without consulting mom

• H O : team agreed to follow doc• H.O.: team agreed to follow doc• H.O.: any violation de minimus

Lexington Sidney Public Schools, Case No. 08-04 SE (Nov. 16, 2009)

F tFacts►Student verified as OHI due to Tourette’s

S f i iSyndrome, left district and later returned►Poor behavior, non-compliant, contentious

relationship with family ►For 2008-09 school year, team drafted BIP,

mom objected refused to participate►Student discovered skipping class, sent to

ISS, mom removed from district and sued

Lexington Sidney Public Schools,

L l ICase No. 08-04 SE (Nov. 16, 2009)

Legal Issues►Predetermination

• Mom: BIP and plan drafted before meeting therefore predetermination

• H.O.: nothing wring with having documents drafted

• H.O.: “good idea to provide parent a copy” but not legally required

• H.O.: Opportunity for input is key


L l ICase No. 08-04 SE (Nov. 16, 2009)

Legal Issues►Predetermination ►FAPE


L l ICase No. 08-04 SE (Nov. 16, 2009)

Legal Issues►Predetermination ►FAPE ►ISS for skipping classpp g

• Disciplinary limitations not implicated because less than 11 daysy

• Doctor’s note

Twin River School District, 109 LRP 73701 (Aug. 4, 2009)

F tFacts►Student verified as OHI:ADD. ►Before 12th grade IEP, district received

prescription pad diagnosis of Asperger's Disorder

►Highly successful student►Student commenced but did not graduate►Ill-defined “social skills” component only►Ill defined social skills component only

remaining element of IEP

Twin River School District,

L l I109 LRP 73701 (Aug. 4, 2009)

Legal Issues►Evaluation and Re-evaluation►IEP and FAPE

• Parents: no independent living goals, no p g g ,daily living skills, no transition

• H.O.: only required when necessary for y q ystudent to receive FAPE; not here

Twin River School District,

L l I109 LRP 73701 (Aug. 4, 2009)

Legal Issues►Evaluation and Re-evaluation►IEP and FAPE►Predetermination►H.O.: “The evidence shows that [student] is

not a child with a disability as defined by y yIDEA, its implementing regulations, the Nebraska Special Education Act, and NDE Rule 51 and therefore is not entitled to further services under IDEA.

South Sarpy School Dist. No. 46, 109 LRP 73699 (Jan. 29, 2009)

F tFacts►Student verified as DD, then SLD►Parents dissatisfied with progress►Obtain Munroe-Meyer of Asperger'sy p g►No evidence of autism at school►Parents withdraw student and place►Parents withdraw student and place

privately

South Sarpy School Dist. No. 46,

L l I109 LRP 73699 (Jan. 29, 2009)

Legal Issues►To recover tuition, parents must prove:

• School failed to provide FAPE• Private placement appropriatep pp p• Parents complied with notice

requirementsq

South Sarpy School Dist. No. 46,

L l I109 LRP 73699 (Jan. 29, 2009)

Legal Issues►FAPE

• Parents: social promotion, no actual progression, poor social skills

• H.O.: belied by test scores and testimony• No evidence of autism at school, but ,

district still promptly integrated some but not all of Munroe-Meyer’s suggestions

Elmwood Murdock Public Schools, 109 LRP 73697 (Oct. 24, 2007)

F tFacts►Student verified as BD brought a knife to

school►Team determined NOT a manifestation,

expelled►Parents sued

Elmwood Murdock Public Schools,

L l I109 LRP 73697 (Oct. 24, 2007)

Legal Issues►Participants in Manifestation:

• IEP team members all there, but not as many regular ed teachers as parents wanted to attend

• H.O.: rule says “relevant” team members


L l I109 LRP 73697 (Oct. 24, 2007)

Legal Issues►Participants in Manifestation►Manifestation

• BD caused him to “piddle” with things. p gAlso caused him to forget he even had knife in his pocket when he brought it to school.


L l I109 LRP 73697 (Oct. 24, 2007)

Legal Issues“Even if [the student] somehow forgot that

if i i i[he] had the knife in [his] possession when [he] went to school that day, [he] did not forget that [he] had it when [he] was fixingforget that [he] had it when [he] was fixing the handle, did not forget that [he] had it when [he] was lying to Mr Allemang aboutwhen [he] was lying to Mr. Allemang about having the knife, and did not forget that [he] had it when he gave it to another[he] had it when he gave it to another student to conceal it from Mr. Allemang.”


L l I109 LRP 73697 (Oct. 24, 2007)

Legal Issues►Participants in Manifestation►Manifestation► Predetermination

• H.O.: “Principal’s recollection oddly vague” about draft documents.g

• H.O.: nothing wrong with having a draft


L l I109 LRP 73697 (Oct. 24, 2007)

Legal Issues►Participants in Manifestation►Manifestation► Predetermination►Removal for more than 45 days

• That’s lawful if (1) misbehavior is not aThat s lawful if (1) misbehavior is not a manifestation and (2) school provides an interim alternative educational settinginterim alternative educational setting


L l I109 LRP 73697 (Oct. 24, 2007)

Legal Issues“Even though parents and guardians play a

i ifi isignificant role in the IEP process, that role does not allow them to control the process or have veto power over the IEP Theor have veto power over the IEP . . . . The Petitioners were entitled to attend the Manifestation Determination and IEPManifestation Determination and IEP meetings, give their input and have it considered by the Respondent. They wereconsidered by the Respondent. They were not, however, entitled to control the outcome of either.”

Omaha Public Schools, 107 LRP 62538 (Sept. 28, 2007)

F tFacts►Student with Down Syndrome, placed in

i i f imultiple categorical self-contained classroom

►When district remodeled buildings, moved entire classroom to another school

►Parents sued claiming change in placement

Omaha Public Schools,

L l I107 LRP 62538 (Sept. 28, 2007)

Legal Issues►Is this a change in placement?

• Parents: duh! • H.O.: placement is a program, not a p p g ,

geographic location

Omaha Public Schools,

L l I107 LRP 62538 (Sept. 28, 2007)

Legal IssuesA change in placement only occurs when the

“ i i fchange “will result in a fundamentally substantive change in or elimination of a basic element of [the student]’s educationalbasic element of [the student]’s educational program or substantially interfere with [the student]’s ability to learn ”student] s ability to learn.

Ogallala Public School, 106 LRP 913 (Dec. 15, 2005)

F tFacts►Student with Down Syndrome transitioning

f ifrom elementary to middle school►Parents disagree with program and

methods►Some sexualized misbehavior►Limits placed on volume of communication ►Refuse to sign IEP, ultimately file suit►Refuse to sign IEP, ultimately file suit

Ogallala Public School,

L l I106 LRP 913 (Dec. 15, 2005)

Legal Issues►Discipline

• Team determined misbehavior WAS a manifestation, then placed student in intensive social skills program

• Parents: served as a removal from his educational program, punitive

• H.O.: team determined it was an educational need


L l I106 LRP 913 (Dec. 15, 2005)

Legal Issues►Discipline►Predetermination

• Parents: they never did what we told ythem to.

• H.O.: “While the IDEA emphasized the pimportance of parental involvement in a child’s educational process, the wishes of the parents are not controlling.”


L l I106 LRP 913 (Dec. 15, 2005)

Legal Issues►Discipline►Predetermination►Communication Ban

• Parents: prevented meaningful input• H O : school entitled to maintain controlH.O.: school entitled to maintain control

over time, manner and method of communication to employeescommunication to employees


L l I106 LRP 913 (Dec. 15, 2005)

Legal Issues►Discipline►Predetermination►Communication Ban►Methodology

• H O : school gets to decideH.O.: school gets to decide


L l I106 LRP 913 (Dec. 15, 2005)

Legal Issues►Discipline►Predetermination►Communication Ban►Methodology►IEE►IEE

• H.O.: district’s requirement that evaluators be approved by NDEevaluators be approved by NDE acceptable


L l I106 LRP 913 (Dec. 15, 2005)

Legal IssuesA change in placement only occurs when the

“ i i fchange “will result in a fundamentally substantive change in or elimination of a basic element of [the student]’s educationalbasic element of [the student]’s educational program or substantially interfere with [the student]’s ability to learn ”student] s ability to learn.

Elkhorn Public Schools, 106 LRP 910 (Nov. 30, 2005)

F tFacts►Student with autism, family moved to

f C if iElkhorn from California►Parents want district to adopt California

IEP and implement private experts’ directives

►School declined, used some suggestions but created own plan

►Refuse to sign any of the IEPs district uses (3 years), ultimately file suit

Elkhorn Public Schools,

L l I106 LRP 910 (Nov. 30, 2005)

Legal Issues►Parent Input“The Petitioners have not agreed with any

IEP prepared by Respondent for [student]. They also assert that they have been shut out of the IEP process. Apparently, this is based on [the parent]’s belief that the IEPbased on [the parent]’s belief that the IEP should be a ‘consensus,’ which [she] takes to mean that it should not include anythingto mean that it should not include anything that [she] does not want in the IEP.”

Elkhorn Public Schools,

L l I106 LRP 910 (Nov. 30, 2005)

Legal Issues►Parent Input►ESY

• Parents cited court cases rejecting j gregression and recoupment as standards for ESY eligibility

• H.O.: That’s not Nebraska

Bennington Public Schools, 106 LRP 917 (Nov. 14, 2005)

F tFacts►Student with multiple, profound disabilities ►IEP team (including parents) agree to out-

of-district placement►Student placed at Brook Valley; family

changes mind and moves student to private religious school

►Parents want district to pay private tuition

Bennington Public Schools,

L l I106 LRP 917 (Nov. 14, 2005)

Legal Issues►To recover tuition, parents must prove:

• School failed to provide FAPE• Private placement appropriatep pp p• Parents complied with notice

requirementsq


L l I106 LRP 917 (Nov. 14, 2005)

Legal Issues►Did Brook Valley provided FAPE►Was Madonna appropriate

• No OT, PT, vision, assistive technology, , , , gy,sensory diet, work program

• Expected Bennington to provide these p g psupplementary services

• The fact that Madonna wasThe fact that Madonna was geographically closer didn’t make it LRE


L l I106 LRP 917 (Nov. 14, 2005)

Legal Issues►Brook Valley provided FAPE►Madonna not appropriate►Predetermination

• Visiting with parents prior to out-of-district placement by IEP team p yappropriate

Lessons from The Big Ten

O t id t ll ’t

Lessons from The Big Ten

►Outside experts usually aren’t ►Parent input is not a veto ►Accommodating inappropriate parent

demands will hurt you (and the kid) in the llong run

►Classification doesn’t matter: services do►Predetermination doesn’t mean lack of

planning►DO consider and adopt some parent

suggestions/ requests

Five will Get you Ten:Nebraska Special Education

Decisions Since 2005Decisions Since 2005

Karen Haase H di & Sh lHarding & Shultz

(402) 434-3000( )[email protected]

five will get you ten

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