Mississippi Directors Conference
Special Education Law:
Lessons Learned
Art Cernosia
June 12, 2013
Consent for Use of Public Insurance
• Final Regulations, effective in March 2013,
eliminated the requirement that consent be
obtained “each time” public insurance or
benefits are accessed.
• Written Notice must be given annually to the
parents before consent is obtained including:
▫ Right to withdraw consent at any time
▫ Withdrawal of consent does not impact the LEA’s
responsibility to ensure all IEP services are
provided at no cost to the parents
Consent for Use of Public Insurance
• The LEA must obtain a one-time written
parental consent
• This consent must specify:
▫ The personally identifiable information that may
be disclosed ;
▫ The purpose of the disclosure; and
▫ The agency to which the disclosure may be made.
• The consent also must specify that the parent
understands/agrees that the LEA may access the
child’s or parent’s public benefits/insurance.
Restraint and Seclusion
U.S. Dept of Education Guidance
• 15 Principles include:
▫ should not be used except in situations where the
child's behavior poses imminent danger of serious
physical harm to self or others
▫ should never be used as punishment or discipline
▫ personnel should be trained regularly on the
appropriate use of physical restraint seclusion and
appropriate alternatives
▫ parents should be informed
▫ each incident involving the use of restraint or
seclusion should be documented
FERPA Amendments
S. 3472
• An agency caseworker or other representative of a State
or local child welfare agency has the right to access the
student’s education records without parental consent
when such agency or organization is legally responsible,
in accordance with State law, for the care and protection
of the student.
• When educational records are ordered to be provided to
comply with a judicial order, or pursuant to any lawfully
issued subpoena and the parent is a party to a court
proceeding involving child abuse and neglect or
dependency matters, and the order is issued in the
context of that proceeding, the school is not required to
provide notice to the parent.
Child Find
Policies and Procedures
• Locate, evaluate and identify
• Residents birth through 21
• Highly mobile children
• Outreach activities
Pre-Referral Interventions
• IDEA allows a parent to request a sp ed
evaluation at anytime and cannot be delayed due
to lack of participation in RTI strategies
Memorandum to State Directors of Sp Ed
• Schools may not require interventions prior to
acting on a parent referral. El Paso Independent
School District v. R.R.
Lesson Learned
• It is vitally important to make sure your local
policies and procedures (and staff training)
include the process for making a special
education referral and a process for receiving
and acting on a parent’s referral.
• Document the referral and send PWN
• In particular, it is important to address the
relationship between the general education
intervention and support system(TST) and the
special education child find system.
Child Find
• School district did not violate its’ child find
obligation since the student was not “in need of
special education” based on an ADHD diagnosis
shared 4 yrs after the diagnosis was made.
• The “IDEA does not penalize school districts for
not timely evaluating students who do not need
special education”.
D.G. v. Flour Bluff Independent School District
Child Find
• No Child Find violation when the school took
measures to assist the student in the classroom and
took proactive steps to afford him extra assistance
and worked closely with his parents.
• Schools need not rush to judgment or immediately
evaluate every student exhibiting below-average
capabilities, especially at a time when young
children are developing at different speeds and
acclimating to the school environment.
D.K. v. Abington School District
Lesson Learned
• Schools must document parent’s referrals for special
education evaluations, the school’s response to the
referral and any input provided by the parents.
needs.
• Evaluation and eligibility determinations should
address not only the ultimate conclusion reached
but it is extremely important to include
documentation as to the Team’s basis for its
decision.
• Courts/Hearing Officers will generally defer to a
Team’s decision when the proper process is followed
and the Team articulates the educational rationale
for its decision.
• Parents could simultaneously request an evaluation from
the LEA of residence (for purposes of FAPE) and the
LEA where the private elementary or secondary school is
located (for purposes of equitable services under a
service plan)
• Both LEAs have responsibilities to evaluate
Letter to Eig
• Parent consent is required before the LEAs share student
information
Evaluating Private School Students
• The IDEA requires a school to evaluate a student
in a private school for purposes of making a
FAPE offer as long as the student is a resident of
the school district
• Residency rather than enrollment triggers the
obligation
Moorestown Township Bd of Ed v. S.D.
Evaluating Private School Students
• If a student is enrolled at a private school by the
parents, the school district does not maintain an
obligation to provide an IEP.
• A parent is entitled to request that the school
conduct a reevaluation of the student's IEP at any
time.
• In this case, the parent never requested that the
school perform such a reevaluation and never
informed the school of any intent to re-enroll the
student in public school.
D.P. v. Council Rock School District
Lesson Learned
• Enrollment in the public school is not a
precondition to evaluating a student and
preparing an IEP if found eligible. Also, the legal
residency of a student placed by their parents is
not determinative of which LEA is responsible
for child find.
Child Find/Procedural Safeguards
• Consideration and use of pre-referral
interventions is not a violation of the IDEA
• IDEA rights do not apply to general education
interventions
• Mere discussion of a possible sp ed referral does
not constitute a referral
A.P. v. Woodstock Bd of Ed
Lesson Learned
• As an essential best practice, keep parents
informed when their child is “referred” to a
general education intervention process and of
the interventions received.
• The IDEA procedural rights do not apply and the
procedural safeguards are not sent to the
parents until or unless a child is referred for a
special education evaluation.
Comprehensive Evaluation
School’s Responsibility
o Failure of the school district to evaluate student
for autism denied FAPE.
o If the school has reason to suspect a disability,
the school must conduct the evaluation not
simply refer the parents to an evaluation center
N.B. v. Hellgate Elementary School District
Medical Evaluations
• A parent cannot be required to provide the
school with a medical diagnosis from the
student’s pediatrician as part of the student’s
special education evaluation
• The school is responsible to ensure all necessary
evaluations are completed
M.J.C. v. Special School District No.1
Lesson Learned
• An LEA has the legal obligation to provide ALL
of the necessary evaluations at no cost to the
parent.
• A school cannot fulfill this responsibility by
making a referral to the parent or asking the
parent to follow up the with child’s Doctor.
Consent for Reevaluations
• Parentally imposed conditions to their written
consent for a reevaluation was determined by
the Court to have the practical effect of their
refusal to consent
• Not entitled to reimbursement for their
Independent Educational Evaluation.
G.J. v. Muscogee County School District
Lesson Learned
• The school has the right to conduct a special
education evaluation or reevaluation with
qualified individuals of its choice.
• The evaluations must follow the standard
conditions established by the maker of the
evaluation instrument.
Independent Educational Evaluations
• Anytime at parent expense
• At public expense if parent disagrees with
district’s evaluation
• District must pay for the IEE or initiate a Due
Process hearing
• Team must consider the IEE
• The IEE must meet the same criteria as the LEA
uses for its evaluations
• Parent entitled to 1 IEE each time the parent
disagrees with LEA evaluation
Independent Educational Evaluations
• The Court upheld the validity of the IDEA regulations
related to publicly funded IEEs
• No requirement that the parent first notify the school of
their intention to seek an IEE at public expense
• No requirement for parents to discuss with the school
why they disagree with the school’s evaluation
Phillip and Angie C. v. Jefferson Cty. Bd of Ed
Independent Educational
Evaluations
• If a school’s evaluation is deemed inappropriate,
the parents “as a matter of law” have a right to a
publicly funded IEE
M.Z. v. Bethlehem Area School District
Eligibility
• Meets One or More of the Disability Categories
• Adversely Affects Educational Performance
• In Need of Special Education
▫ Specially Designed Instruction
Eligibility
• Student with disabilities (CAPD and ADHD) not eligible
for special education since there was no need for “special
education”
• Able to perform well in general education classes with
accommodations and modifications
• General ed classes with small enrollments were not
special ed since they were available to all students who
needed help
C.M. v. Hawaii Department of Education
Lesson Learned
• The Team must consider and document three
criteria: the student has met at least one of the
disability categories; the disability adversely effects
educational performance; and the student is in need
of special education (specially designed instruction).
• Make sure that everyone on the Team is aware of the
three criteria.
• It is important to clarify that a disability label or
medical diagnosis is not itself sufficient to make a
student eligible for special education services.
“Special Education” under the IDEA
• The fact that required services may also be
considered "best teaching practices" or "part of
the district's reg ed program" does not preclude
those services from meeting the definition of
"special education" or "related services".
• Even if that type of instruction is being provided
to other children, with or without disabilities, in
the child's classroom, grade, or building.
Letter to Chambers
Special Education in the time of
Common Core Standards
• A school cannot rely on any single procedure as
the determining criteria in determining
eligibility
• Students with high cognition may still be
disabled
• Educational performance is more than meeting
academic standards and includes nonacademic
areas
Letter to Addressee
Interstate Transfer Students
• A student’s eligibility status in one state is not
determinative of the eligibility status in the new
state
• The new school district has the discretion of
seeking a new evaluation
J.B. v. Lake Washington School District
Transfer Students
• The student’s newly designated IEP Team in the
new school district determines those services that
are comparable to the services in the student’s IEP
from the previous school district
• The IDEA allows the parents and new school to
agree to modify the current IEP to address
temporary goals and comparable services without an
IEP Team meeting
▫ Not if it is the annual IEP Team meeting
Letter to Finch
Intrastate Transfer Students
• A student determined IEP eligible in one district
remains eligible in the new district
• Student remains eligible even if they were last in
attendance in a private school
• Student exits special education
▫ Team determines the student is no longer eligible
based on a reevaluation
▫ Student graduates with a regular diploma
▫ Student ages out
Regional School Unit 51 v. Doe
Lesson Learned
• When a student moves into your school district,
proactively ask the parent if their student was
involved in a special program such as special
education.
• Request from the former school district the
student’s educational records and specifically
request all special education records.
• Consult with the parent to continue “comparable
services” until new IEP is developed
FAPE Standard
• The Supreme Court in the Rowley case
established two criteria in determining FAPE:
▫ Have the procedures been adequately complied
with?
and
▫ Is the IEP reasonably calculated to enable the
child to receive educational benefits?
Procedural Violations
• Neither the IDEA nor its implementing
regulations qualifies any duty imposed on a state
or local educational agency contingent upon
parental cooperation.
• School District has an affirmative duty to revise
the IEP at least annually even if a due process
hearing is pending
Anchorage School District v. M.P. (9th Circuit)
Lesson Learned
• Never let a student’s IEP expire even if there is
a pending due process hearing.
• Schedule the annual IEP Team review weeks
before the expiration of the current IEP allowing
sufficient time to update the evaluation, if
needed, and conduct an IEP Team meeting at a
mutually convenient time.
IEP Process
• The parents must provide written consent before
the first IEP is implemented
• Subsequent IEPs need to be developed at least
annually by the IEP Team
• Additional parental consent is not required
• Parents who disagree with decisions regarding
subsequent IEPs may utilize their procedural
safeguards to challenge the proposed change
K.A. v. Fulton County School District
Prior Written Notice
• The parent must receive prior written notice
when there is a proposal to or refusal to change
the provision of FAPE at an IEP Committee
meeting
• There is no timeline in the IDEA for providing
the written notice so long as it is provided a
reasonable time before the IEP is implemented
Letter to Chandler
Lesson Learned
• Anytime the school is proposing to change or
refusing to change the student’s evaluation,
identification, educational placement or
provision of FAPE, the school must give the
parents prior written notice.
• Such notice is required even if the parent has
attended and participated in the meeting where
the decision was made.
Personnel Decisions
• The school has the power unilaterally to choose the
service provider so long as this choice does not
affect the substantive quality of a student's IEP or
the IEP does not require the services of a particular
provider.
Z.F. v. Ripon Unified School District
Lesson Learned
• Although personnel assignments may be one of
the most important decisions a school makes
regarding a student’s success in school, it is
important to inform the IEP Team which
includes the parent that personnel decisions are
not for the Team to make.
• If the IEP does name a specific service provider
it creates a legal obligation to assign that specific
person to be the student’s service provider
IEP Changes
• Sp Ed Director sought clarification from the
speech provider regarding one speech goal after
the IEP meeting
• Final IEP was then sent to the parents
• Post meeting conversation did not significantly
deprive the parents of meaningful participation
• School complied with both the procedural and
substantive requirements of the IDEA.
J.W. v. Governing Board of East Whittier City
School District (9th Circuit)
IEP “Educational Benefit” Std
• In most cases an assessment of a student’s
potential would be a useful tool for evaluating
the adequacy of his or her IEP
• It is not always feasible to determine the
potential for learning and self-sufficiency with
any precision, particularly where the student’s
disability significantly impairs his or her
capacity for communication.
D.B. v. Esposito
“Peer Reviewed Research”
• The IDEA does not require a school to choose
the program supported by the optimal level of
peer-reviewed research.
• Rather, the peer-reviewed specially designed
instruction in an IEP must be "reasonably
calculated to enable the child to receive
meaningful educational benefits in light of the
student's intellectual potential.“
Ridley School District v. M.R.
Lesson Learned
• Although reference to peer reviewed research is
not an absolute requirement at an IEP Team
meeting, school members of the IEP Team
should be able to articulate the educational basis
of the Team’s decision for proposing the
particular services for the individual student.
FAPE Standard
• IEP was not appropriate since the school made
no effort to obtain updated information on the
student’s progress in the previous school year
• IEP required that the student’s present levels of
performance be included in the IEP
E.S. v. Katonah-Lewisboro
Lesson Learned
• Whether a student has been attending a private
school, being home schooled, not yet in school or
attending another public school, IEP Teams
must make good faith efforts to obtain updated
information to be considered in preparing the
IEP.
• It may be necessary to conduct a reevaluation of
the student prior to revising the IEP
• Parental input is a vital requirement to an IDEA
evaluation.
FAPE Standard
• Under the IDEA academic benefit should "be
measured not by [a student's] relation to the rest
of the class, but rather with respect to the
individual student."
L.F. v. Houston
• “Educational benefit" afforded the student is not
limited solely in terms of weaknesses caused by
his learning disability rather than his overall
academic record.
Klein Ind. School District v. Hovem
FAPE Standard
• Although “positive educational outcomes can
signal that an IEP is appropriate under the
IDEA, the appropriateness of [a student’s] IEP
ultimately turns on whether it was reasonably
calculated to provide an educational benefit and
does not hinge on the showing of an actual
positive outcome.”
S.H. v. Plano Independent School District
Related Services Standard
(Tatro Criteria)
• Child must have a disability and be in need of
special education
• The service must be necessary to aid the child to
benefit from special education
• The service must be able to be performed by a
non-physician
Mapping as a Related Service
• IDEA regulation excluding mapping of a
cochlear implant as a related service upheld as a
a permissible interpretation of the IDEA by the
U.S. Department of Education.
Petit v. United States Dept of Education
Assistive Technology
• Although it was found that the AT evaluation
was untimely which impacted the ability of the
Team to individualize the IEP, the student was
not denied a FAPE.
• The student demonstrated positive academic
and non-academic benefits while using her
previous AT devices
R.P. v. Alamo Heights Independent School
District
Lesson Learned
• Even if the school prevails in a due process case
or litigation, there is a loss of relationship with
the family and an emotional and fiscal cost.
• The Team should appoint a person to take the
lead to track any evaluations or actions the Team
determines necessary for the student.
Least Restrictive Environment
• To the maximum extent appropriate, students with
disabilities shall be educated in classroom and other
activities with peers who are not disabled
• Continuum of Alternative Placements
• IEP shall EXPLAIN the extent, if any, to which the
student will not be educated with peers who are not
disabled
• Supplementary Aids and Services
LRE
• The LRE for siblings with genetic and
neurological disorders resulting in immune
deficiencies was in the school despite the
students’ Doctor’s recommendations
• Testimony from an expert in pediatric infectious
diseases supported the conclusion that the
school environment would not pose any unusual
health risk
Stamps v. Gwinnett County School District
LRE and Preschoolers
• LRE also applies to 3-5 year olds
• IEP Team must consider continuum of
alternative placements
• Options include
▫ Public school preschool programs
▫ Other public preschool programs such as Head
Start
▫ Private preschool programs
▫ Home based services
Letter from the Office of Special Ed Programs
LRE and Preschoolers
• The LRE for a preschooler with autism was in a
school’s special class for preschoolers with
autism
▫ Class initiated a “reverse-inclusion” component
• Evidence did not support that the student would
benefit from modeling appropriate behavior
from peers who are non-disabled in an inclusive
preschool
L.G. v. Fair Lawn Board of Education
LRE and Preschoolers
• The LRE was a private preschool allowing the
student to interact with typical peers developing
her social skills at a critical stage in her
development
• The IEP never stated that placement in a
mainstream classroom would be inappropriate,
much less explained why that might be the case.
G.B. v. Tuxedo Union Free School District
Lesson Learned
• Ensure that the Team has a continuum of placement
options to discuss for preschoolers with disabilities.
• If the student will not be placed in a setting which
allows interaction with peers who are non-disabled,
the IEP must document what the Team considered
and why the Team made its placement decision.
• The unavailability of an integrated public preschool
program is not a legal basis for making a placement
decision.
LRE
• The LRE for a student with an intellectual
disability and speech impairment was in a
special education class not a general education
class for social studies and science
• Although extensive accommodations were
provided the student did not derive academic or
nonacademic benefits in the general education
class
J.H. v. Fort Bend Independent School District
Predetermination of Placement
• While school officials may form opinions prior to
IEP meetings, decisions must be made at the IEP
Team meeting.
• The school went beyond forming opinions and,
instead, became impermissibly and deeply wedded
to a single course of action which amounted to a predetermination of placement.
• The parents were denied a meaningful opportunity
to participate in the development of the IEP
resulting in a denial of FAPE.
P.C. v. Milford Exempted Village Schools
Lesson Learned
• Although staff may discuss the students needs and
prepare a draft IEP prior to the meeting, the IEP
Team must have an “open mind” to consider other
suggestions and recommendations from the parent.
• Send any draft IEP to the parent before the meeting.
• Ask the parent at the meeting if they have any
questions, recommendations or suggestions for the
Team to consider.
• Of course, document!
Placement v. Location
• “Placement” refers to the points along the
continuum of placement options
• “Location” is the physical surrounding such as
the particular classroom.
• The school should have the flexibility to assign
the child to a particular school or classroom
provided that it is consistent with the placement
determination.
Comments to the IDEA Regs,Page 46588
Placement Changes
Students With Autism
• Unplanned transition for children with autism, as
opposed to other students with disabilities, is likely
to affect their learning rate and learning sequences.
• Moving the students with autism to a different
school, under these facts, constitutes a change in
their "educational placement" under the IDEA.
• “The school cannot categorically deny parents the
opportunity to provide input and receive notice
about the educational placement of their autistic
child.”
P.V. v School District of Philadelphia
Lesson Learned
• Courts are now starting to look at how
transitioning a student with autism to a new
physical environment will impact the student’s
ability to be successful.
• Consideration should be given and discussed at
the IEP Team meeting to any supports the
student may need if the student will be attending
a new placement/location.
Unilateral Placements
• Parents initiate placement over a dispute
regarding the provision of FAPE
• Requesting full payment or reimbursement of
tuition and costs
Unilateral Placements
Factors for Reimbursement
• IEP did not provide FAPE, and
• Parental Placement is Appropriate
 Need not be an approved special education facility
 Personnel need not be credentialed
• Equitable Factors
 Parental notice of disagreement and intent to make a
unilateral placement requesting public payment
 Providing school opportunity to evaluate student
 Unreasonable actions by the parents
Burlington v. Department of Education
Florence County v. Carter
Previous Special Education
Eligibility Not Required
• Parents were able to pursue reimbursement for the
private placement of their son who was never
identified as a special education student
• Parents still have the burden of proving that their
child should have been found eligible and required a
private placement as a result
Forest Grove School District v. T.A.
Appropriateness of Private Placement
• Although the IEP did not offer FAPE, no
reimbursement since the private school was not
appropriate
• Services deemed necessary by the IEE were not
provided at the private school
• Educational success at the private school is
relevant but not determinative
▫ Must show that the student’s unique needs were
met
R.S. v. Lakeland Central School District
IEP Appropriateness
• In a unilateral placement case, evidence cannot
be considered as to what services would be
provided to the student in the public placement
if they are not in the IEP
• School cannot present evidence as to what
specific staff members (classroom teacher,
paraprofessionals, etc.) would be assigned to
work with the student
R.E. v. New York City
Lesson Learned
• Most Courts have interpreted the offer of FAPE
to be only those services included in the IEP.
• IEPs should include all the services and supports
that the Team determines are required for a
student to receive educational benefit.
Standard for Private Placements
• While a parental placement is not subject to the
same exacting standards “the restrictiveness of
the school environment ‘remains a consideration
that bears upon a parent's choice of an
alternative placement and may be considered by
a hearing officer in determining whether the
placement was appropriate’."
• Academic progress alone is not dispositive of
appropriateness.
D.D-S v. Southold Union Free School District
Medical v. Educational Placements
• In determining whether a residential placement
is required under the IDEA in a unilateral
placement, the placement must be:
▫ essential in order for the child with a disability to
receive a meaningful educational benefit.
and
▫ primarily oriented toward enabling the child to
obtain an education.
Jefferson County School Dist. R-1 v. Elizabeth E.
Standard for Private School
Placements
• A private placement is "proper" if it "'provides
educational instruction specially designed to
meet the unique needs of a handicapped child,
supported by such services as are necessary to
permit the child to benefit from instruction”
M.N. v. Hawaii Department of Education
Behavioral Intervention Plans
• IEP Team determination based on the
evaluation results
• If behavior impedes his/her learning or that of
others, IEP must include:
 Positive behavior interventions
 Strategies
 Supports
Behavioral Restrictions
• Use of a desk restricting the student’s movement
did not violate the student’s Constitutional rts.
▫
▫
▫
▫
Student not required to sit in any unusual way
Student not removed from class
Student could remove herself from desk
Restrictions not attached to the student’s body
• No damages
Ebonie S. v. Pueblo School District
Seclusion Rooms
• Use of a secure observation room was an
appropriate behavior intervention
• Student was subject to continuing observations and
evaluations
• Numerous strategies and interventions designed
with specific positive behavior goals were
implemented
• There was not indiscriminate use of the SOR, but
rather it was a "last resort" after all other strategies
had failed
• Use drastically decreased by the end of the year
Clark v. Special School District of St. Louis County
Lesson Learned
• A behavioral component of an IEP should
include a series of positive supports and
interventions.
• It is extremely important that the school
maintain data on the effectiveness of any
intervention/support and review the use of such
intervention periodically.
Calming Room
• Although an IEP team must "consider" the
results of independent educational evaluations,
not all such recommendations need be adopted.
• The use of the calming room was upheld because
of the belief by the Team that it was important
for the safety and development of the student.
M.M. v. District 1 Lancaster County
Lesson Learned
• The IEP Team must consider any input provided by
the parent including any Independent Educational
Evaluation Reports.
• When considering IEEs it may be very important to
have a discussion with the evaluator to determine
how they reached their recommendations.
• Remember also, the Team must provide the parent
with written notice if it is proposing or refusing to
incorporate the IEE’s recommendations in the
student’s IEP.
IEP Behavior Components
• “The IDEA does not require a school district to
eliminate interfering behaviors. It requires only
that the school district "consider the use" of
positive behavioral interventions and supports
to address the behavior.”
• The school met this responsibility by having a
behavioral component to the IEP.
J.W. v. Unified School District of Johnson
County
Bus Suspensions
• Bus suspensions are treated as any other type of
suspension if transportation is in the IEP as a
related service
• School is not relieved of this obligation even if
the student’s family voluntarily chooses to
provide transportation
Letter to Sarzynski
Lesson Learned
• If transportation is listed in the student’s IEP as
a related service, any suspension from the bus
will be treated as a disciplinary suspension
unless the school offers an alternative
transportation plan.
• If the parent truly volunteers to transport their
student, the school should consider offering the
parent mileage reimbursement since all services
in the IEP must be provided at no cost to the
parent.
Hearing Officer Authority
Regarding Discipline
• There may be instances where a hearing officer,
in his discretion, would address whether such a
violation of the student conduct code has
occurred.
• The IDEA neither preclude nor require that a
hearing officer determine whether a certain
action by a student with a disability amounts to a
violation of the school district's Student Code of
Conduct.
Letter to Ramirez
Lesson Learned
• All students, including all students with
disabilities, must be afforded a disciplinary
hearing if the school is considering suspending
the student for a violation of the student conduct
code.
• The manifestation team should verify that the
student has been afforded this process.
Involvement of Law Enforcement
• “the minimal amount of force that was used to seize
[the student] for his safety and the safety of those
around him was, as a matter of law, reasonable
under the circumstances”.
• The Court dismissed the lawsuit against the school
district, school staff and the police department for
unlawful detention, assault and battery, intentional
and negligent infliction of emotional distress, and a
violation of the student’s civil rights under the
Constitution.
E.C. v. County of Suffolk et.al.
Lesson Learned
• Should there be a disciplinary incident that resulted
in a student needing to be restrained and/or the
police called, staff involved should document the
events independently while their recollection is
current.
• Such notes can be very important and relevant
should there be subsequent legal proceedings
initiated.
• Parents should be immediately notified.
• It is recommended that the school appoint one
person to be the main contact with the authorities
and the family.
FAPE and Bullying
• When responding to bullying incidents, which may
affect the opportunities of a special education
student to obtain an appropriate education, a school
must take prompt and appropriate action
▫ Investigate
▫ Take steps to prevent it from happening
• Not necessary to show that the bullying prevented
all opportunity for an appropriate education, but
only that it is likely to affect ed opportunity
T.K. v. New York City Dept of Ed
Lesson Learned
• Ensure that your staffs are aware of their
responsibilities to report bullying incidents
under your local policy.
• If a student with a disability is either the
perpetrator or victim of bullying, the Team
should consider addressing the behavior in the
IEP in terms of interventions, supports, and/or
supervision.
Mississippi Statute (S.B.2015)
• “Bullying or harassing behavior" is any pattern
of gestures or written, electronic or verbal
communications, or any physical act or any
threatening communication, or any act
reasonably perceived as being motivated by any
actual or perceived differentiating characteristic,
that takes place on school property, at any
school -sponsored function, or on a school bus.
Mississippi Statute
• The conduct must:
▫ Place a student or school employee in actual and
reasonable fear of harm to his or her person or
damage to his or her property; or
▫ Create or is certain to create a hostile environment
by substantially interfering with or impairing a
student's educational performance, opportunities
or benefits
Bullying
• Parents sued for damages under the IDEA and
Sec. 504 for the alleged bullying of their student
• Court dismissed the lawsuit since the parents
did not exhaust the administrative process by
first requesting a due process hearing
• No damages available under the IDEA
Wright v. Carroll County Board of Education
Liability
• The Court reinstated a lawsuit alleging that
abuse reports were made in retaliation for her
attempts to get the necessary accommodations
for her student.
• The evidence provided could permit a
reasonable jury to find that the abuse reports
were not made in good faith but were motivated
by a desire to retaliate
A.C. v. Shelby County Board of Education
Lesson Learned
• Don’t take matters personally!!
• No matter how difficult a staff member or a
parent is, take a deep breath and make sure that
you don’t engage in what could be perceived as
retaliation.
Liability
• The Court dismissed the lawsuit by a student who
was physically attacked by another student in her
class who had a disability and had a history of
emotional outbursts and aggressive behaviors.
• There was no evidence to suggest that the behavior
of the student with a disability was ever focused on
the student victim such that she would have been a
“known victim” of an unprecedented assault.
Dixon v. Alcorn County School District
Liability
• The parent of a student with a disability initiated
a lawsuit alleging that the school district and
staff violated the student’s Constitutional due
process rights.
• The Court dismissed the lawsuit holding, as a
general rule, school districts are not responsible
under Section 1983 for harm caused by third
parties.
Colomo v. San Angelo Independent School
Adult Students-Due Process Hearings
• The parents of an adult student had no legal right to
request a due process hearing
• Rights transfer to the adult student once they reach
the age of majority
▫ Exception if a Court has deemed the adult student
incompetent
Ravenna School District v. Williams
Note: In Mississippi, the student becomes an adult
student at age 21.
Lesson Learned
• When working with an adult student who has
not been placed under legal guardianship by a
Court, all parental rights transfer to the adult
student.
• The parents still maintain the right to receive all
required notices.
• The transfer of rights must be addressed in the
IEP at least one year beforehand.
Due Process Issues
• The Court held by "injecting" an issue that was
not raised in the due process complaint the
hearing officer erred since a hearing is limited to
the issues raised in the due process complaint.
District of Columbia v. Pearson
Resolution Sessions
• Although not specifically provided for under the
IDEA, it would be appropriate to offer the
parents alternative means of participating
assuming they cannot attend in person
Letter to Eig
Administrative Complaints
• School district did not have the right to a judicial
appeal of the State Department of Education’s
complaint report finding the school district out
of compliance
Yolo County Office of Education v. State of
California Department of Education
IEP Consent Revocation and Sec.504
• The parents withdrew consent for their student
to receive IDEA services, but requested that the
school provide him with accommodations under
Section 504
• Revocation of consent for services under IDEA is
tantamount to revocation of consent for services
under Section 504 and the ADA.
Lamkin v. Lone Jack C-6 School District
IEP Consent Revocation and Sec. 504
• Revocation of consent under the IDEA does not impact the
school’s obligation under Section 504
• A school has a “continuing obligation under Section 504 and
the ADA to protect [the student] from discrimination while
she remains a qualifying student with a disability”
• A school is required to convene a Section 504 meeting and
develop a 504 plan after the parents revoked consent for
IDEA services.
Kimble v. Douglas County School District (U.S. District Court,
Colorado (2013)).
Lesson Learned
• Since the Courts are not in agreement regarding
Section 504 protections for a student whose parents
have revoked consent for IEP services, the safest
approach to take is to include in the schools written
notice in response to the revocation that the student
is protected by Section 504.
• Consider inviting the parent, if they choose, to
contact the school to discuss what steps the school
will take to take to develop a Section 504 plan.
• Of course, document the parent’s response.
Monetary Damages
• The IDEA does not provide a remedy of
compensatory, punitive or even nominal
monetary damages
• Court overturned the award of $1 against the
school district’s attorney based on the parent’s
retaliation claim
C.O. v. Portland (9th Circuit)
Private School Students and Sec.504
• Section 504 does not create an affirmative
obligation on school districts to provide services
to private school students.
• Administrative guidance, statutory purpose, case
law, and policy considerations compel the
holding that such student is not entitled to
Section 504 services if he/she remains enrolled
at a private institution.
D.L. v. Baltimore City Board of School
Commissioners
Confidentiality
• Custodial and noncustodial parents alike have full
rights under FERPA unless the school has been
provided with evidence that there is a court order,
State statute, or other legally binding document
specifically revoking these rights.
• In a situation where there is evidence that a student,
custodial parent, or other individual may be in
physical danger from a noncustodial parent, the
FERPA office would not require the school to
provide the noncustodial parent with the address,
telephone listing, or related information regarding
the student, parent, or other individual.”
Letter to Lianides
Mahalo!!!