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presented by BETSEY HELFRICH & JOSH DOUGLASS Mickes O’Toole

BACK TO BASICS

THE IDEA

•  IDEA is a funding law that provides that •  Children with disabilities have available “special

education and related services designed to meet their unique needs.” • At public expense; • Meet SEA standards; • Pre-school, elementary and secondary school; • Provided in conformity with IEP.

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IDEA LEGAL JEOPARDY

What are the risks?

•  DESE Child Complaint

•  Due Process Complaint & Appeal in Federal Court •  Attorneys’ Fees •  Remedy: Private placement, compensatory

education, etc…

IDEA – CHILD FIND

•  Child Find – affirmative obligation of the school to seek out and find all students with disabilities in that jurisdiction.

•  Provides a free appropriate public education (FAPE) to all children with disabilities between the ages of 3 and 21 who reside in the state.

CHILD FIND •  The affirmative, ongoing obligation of states and local districts to identify, locate,

and evaluate all children with disabilities residing within the jurisdiction that either have, or are suspected of having, disabilities and need special education as a result of those disabilities.

34 C.F.R. 300.111(a)(1)(i), SP p. 21

•  The IDEA Regulations note that child find also must include children who are suspected of being a child with a disability and in need of special education, even though they are advancing from grade to grade.

34 C.F.R. 300.111(c), SP p. 21

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ST. LOUIS CITY SCH. DISTRICT MISSOURI AHC 2018 •  Grandparent filed due process against District. •  Student has medical diagnosis of ADHD and

Disruptive Mood Dysregulation Disorder. •  Years of behavior concerns. •  After 2015 evaluation, team determined student

ineligible. •  After 2017 evaluation, team determines student

eligible as ED.

ST. LOUIS CITY SCHOOL DISTRICT (CONT.) •  Grandparent argues District denied student FAPE by

failing to identify student under IDEA in 2015. •  Also, District failed to assess student for OHI in 2015. •  AHC Determined: District did not err by finding

student ineligible for ED in 2015 – student was only 7 years old at the time and had attended school for less than 3 semesters.

ST. LOUIS CITY SCHOOL DISTRICT (CONT.)

•  AHC: Although District had ADHD diagnosis in 2015, it did not assess student for OHI.

•  This was a procedural violation of the IDEA. •  This denied grandparent the opportunity to meaningfully participate in the IEP

process. •  Also, District violated child find duties after receiving IEE from parent in 2016. •  “District ignored clear evidence of Student's ED and therefore violated the

IDEA’s child find requirement resulting in a denial of FAPE.”

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ST. LOUIS CITY SCHOOL DISTRICT (CONT.) •  Student awarded four school months of

compensatory education in math and reading. •  88 hours of math and 88 hours in reading. •  District also ordered to reconvene IEP and evaluate

whether ADHD adversely affects his education to determine whether he is eligible under OHI.

DEFINITION OF DISABILITY - IDEA Child with a disability means a child with intellectual disability, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments or specific learning disabilities and “who, by reason thereof, needs special education and related services.”

The Three Prongs for Eligibility

Student has a Disability

Adverse Educational

Impact

Needs Special Ed and Related

Services Eligibility under

IDEA

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NEED FOR SPECIAL EDUCATION

•  Special education, by definition, is something other than regular education.

•  Federal regulations – “means specially designed instruction to meet the unique needs of a child with a disability.”

WENTZVILLE, MO SCHOOL DISTRICT MO DUE PROCESS DECISION 2013

•  Hearing panel upheld District’s determination that 3rd grader was ineligible for IDEA services

•  Student had medial diagnoses including: asthma, anxiety, ADHD, sensory processing disorder, and Asperger’s.

•  Evaluation data demonstrated that student’s impairments had no adverse effect on the student’s educational performance.

•  “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 INDIVIDUALIZED EDUCATION PROGRAM •  The IEP offers FAPE to the disabled student. •  Written document that contains present level, goals,

statement of services, accommodations and modifications among other things.

•  Assistive technology, related services, BIPs, ESY. •  IEP team meetings – including the parents and, in some

cases, the student. •  Must be reviewed and, if appropriate, revised at least on

an annual basis.

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WHAT IS FAPE? See Supreme Court Case: Endrew F. v. Douglas County Sch. Dist. (3/22/17). •  “Some educational benefit” v. “meaningful educational benefit” •  Parents of student with autism sought reimbursement for private placement. •  Parents argued heightened standard applied in determining whether school

provided son FAPE. •  Solicitor general urged Supreme Court to hear the case – stating 10th Circuit

standing by Rowley standard is incorrect. •  New Standard: “offer student IEP reasonably calculated to enable a child to

make progress appropriate in light of the child’s circumstances.”

FOR THE SUPERINTENDENT

•  A student may be assigned a personal aide/paraprofessional in their IEP.

•  An individual staff member’s name should not go in the IEP (personnel, not team decision).

•  Pay attention to extracurriculars! •  Decisions should not be made based on cost of a service. •  Avoid generalized statements. •  Help prevent pre-determination.

SECTION 504

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SECTION 504

•  Section 504 of the Rehabilitation Act of 1973, (Sept. 26, 1973), codified at 29 U.S.C. § 701 et seq.

•  First U.S. federal civil rights protection for people with

disabilities •  Nondiscrimination law

AMERICANS WITH DISABILITIES ACT •  Protects qualified individuals with disabilities from discrimination

•  Not limited to programs and activities receiving federal funds

•  Title II of ADA applies to all state and local governments

•  Passed in 1990, ADA Amendments Act was signed into law by President George W. Bush on Sept. 25, 2008, and took effect on Jan. 1, 2009

•  Amended regulations went into effect October 16, 2016

SECTION 504

Section 504 of the Rehabilitation Act provides, in pertinent part, that “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

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SECTION 504 LEGAL JEOPARDY

What are the risks?

•  Internal appeal per policy manual

•  Office for Civil Rights Complaint

•  State or federal disability discrimination lawsuit •  Missouri Human Rights •  Supreme Court decision – Fry v. Napoleon

SECTION 504 LEGAL JEOPARDY

•  A parent contacts you and tells you that little Billy recently received a medical diagnosis of ADHD. She asks if Billy could please sit closer to the teacher and also have extra time while taking math tests as he finds it difficult to concentrate and perform on timed tests. She says she will bring you prescription from Billy’s doctor that states: “504”

What do you do?

MEDICAL DIAGNOSES

•  OCR – a medical diagnosis, including medication, is neither necessary or controlling in determining disability status.

•  A medical diagnosis is simply evidence that the individual has an impairment.

•  Use terminology correctly.

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504 LEGAL JEOPARDY

A parent makes a Section 504 referral because their child has epilepsy. This student has had one major seizure that you know of but it did not happen at school and you speak with the student’s teachers and there is no educational impact so you deny the referral under Section 504.

DEFINITION OF DISABILITY Any person who has a physical or mental impairment which substantially limits one or more of such person’s major life activities, has a record of such an impairment, or is regarded as having such an impairment. 29 U.S.C. § 705(20)(B)

DEFINITIONS OF DISABILITY

IDEA •  Students with

disabilities are those children who have been properly evaluated as having , . . . other health impaired, . . . and, who because of that disability, require special education and related services.

504/ADA •  A person who has a

mental or physical impairment that substantially limits a major life activity.

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DEFINITION OF DISABILITY - SECTION 504 Who is a student with a disability under Section 504? •  2008 Amendments – changed how definition is interpreted

– broad coverage. •  Definitions must be construed in favor of broad coverage

of individuals to the maximum extent permitted. •  “The question of whether an individual’s impairment is a

disability under the ADA should not demand extensive analysis.”

SECTION 504 - IMPAIRMENT DEFINED

•  Any physiological disorder or •  condition, cosmetic disfigurement, or anatomical loss

affecting one or more body systems, such as: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

•  Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.

SECTION 504 - IMPAIRMENT DEFINED •  Physical or mental impairment:

•  includes, but is not limited to, contagious and noncontagious diseases and conditions such as the following: orthopedic, visual, speech, and hearing impairments, and cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.

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MAJOR LIFE ACTIVITIES – WHAT DO THEY ENCOMPASS? •  Major life activities include, but are not limited to, caring for

oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

•  A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

MAJOR LIFE ACTIVITIES (CONT.)

… reaching, lifting, bending, writing, communicating

and interacting with others. *reflected in 2016 Final Rule

SUBSTANTIAL LIMITATION: WHAT IS THE BAR? •  Must be determined on individual basis. •  Look at whether the identified impairment impacts

the identified major life activities. •  Impairment must neither “prevent, nor severely

restrict” a major life activity in order for an individual to qualify with a disability.

•  Conduct the analysis by looking at the individual without mitigating measures in place.

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PROCESS

•  When to refer: if the student, because of a disability, needs or is believed to need special education or modification to regular education. OCR Guidance 2009.

•  A practice that limits 504 evaluations to situations

where parents expressly request them is unlawful. Oxnard Elementary School Dist. 2011.

ELIGIBILITY DETERMINATION PRACTICAL GUIDANCE - 504 •  SPECIFIC TYPES OF IMPAIRMENTS

•  “While there are no per se disabilities under Section 504 and Title II, the nature of many impairments is such that, in virtually every case, a determination in favor of disability will be made. Thus, for example, a school district should not need or require extensive documentation or analysis to determine that a child with diabetes, epilepsy, bipolar disorder, or autism has a disability under Section 504 and Title II.”

Dear Colleague Letter, (OCR 2012)

IDEA V. 504

•  IDEA requires an individualized program for every student subject to its protections.

•  504 requires the following with respect to academics: •  A recipient…shall make such modification to its

academic requirements/programming as are necessary to ensure that such requirements/programming do not discriminate or have the effect of discriminating, on the basis of disability, against a qualified disabled applicant or student.

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EXTRACURRICULARS

•  Focus of OCR •  Both IDEA and 504 require individual analysis of

student’s desire to participate in extracurriculars and the equal opportunity to do so.

•  Make sure teachers and coaches are aware of their obligations regarding extracurriculars!

OCR: IN RE DEAR COLLEAGUE LETTER (2013) •  A District must conduct an individualized inquiry to determine

whether reasonable modifications or necessary aids and services would provide a student with a disability with an equal opportunity to participate in an extracurricular activity.

•  Provision of an equal opportunity “does not mean every student with a disability has the right to be on an athletic team, and it does not mean that school districts must create separate or different activities for students with disabilities.” •  Letter provided examples

•  light with starter pistol for deaf runner

FIELD TRIPS

•  May prohibit disabled student from participating if participation presents unacceptable risk to student’s health or safety. Must demonstrate reason/justification.

•  Must provide reasonable accommodation for equal opportunity.

•  Can’t require parent to accompany if similar obligation not imposed on other parents.

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504 PLAN RED FLAGS TO AVOID

•  Avoid listing specific staff members. •  Avoid accommodations we cannot provide. •  Do not generalize. •  Be mindful of Health plans! •  Don’t forget extracurriculars!

DISTRIBUTION OF 504 PLANS & IEPS

•  Who has a legitimate educational interest? •  Districts may disclose personally identifiable

information concerning a student to "school officials" within the institution who have a "legitimate educational interest" in the student. FERPA regulations allow the school to determine which individuals possess such an interest. 34 CFR 99.31(a)(1).

•  Keep documentation!

IDEA - WHO GETS A COPY? Federal Regulations: •  Accessibility of child's IEP to teachers and others. Each public

agency must ensure that— (1) The child's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation; and(2) Each teacher and provider described in paragraph (d)(1) of this section is informed of—(i) His or her specific responsibilities related to implementing the child's IEP; and(ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.

34 CFR 300.323(d)

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WHO SHOULD RECEIVE A COPY? •  Durant (IA) Community School District, (OCR 04/22/13), students are not

responsible for informing staff members about the contents of their IEPs. •  A ninth-grader approached his high school principal on the first day of

school and asked where he should eat lunch. Although the student mentions past difficulties with peers, the principal tells the student to eat in the cafeteria with the rest of the student body. Student has a fight in the cafeteria that results in a three-day suspension and criminal charges for assault.

•  Had the district informed relevant staff members that the student had an IEP requiring him to eat lunch apart from his peers, incident and OCR investigation could have been avoided.

SUBSTITUTES

Don’t forget substitutes! •  St. Paul Pub. Sch. Dist, 115 LRP 1476 (OCR 2014) –

District discriminated against student based on her disability by failing to implement her 504 plan when it didn’t inform substitute about need to redirect student behaviors before issuing discipline.

•  Develop written procedures for informing substitutes. •  Place a copy of 504 plan in substitutes file. •  Don’t forget cafeteria workers and substitute nurses!

IMPLEMENT THE PLAN!

•  Teachers must implement the provisions of 504 plans! •  OCR Guidance 2009.

•  If a modification is no longer appropriate or needed, team should convene to determine whether the plan should be changed.

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LEGAL JEOPARDY: SERVICE ANIMALS

Dear Sir: This email is to notify you that starting tomorrow, my daughter will be bringing her new service animal, Lucky, on bus route number 5. Lucky is very nice, but the bus driver will need to assist Lucky in taking a bathroom break. Sincerely, Parent, who also happens to be a lawyer

RESPONSE:

Dear Parent, who also happens to be a lawyer: I am happy to hear about Lucky. Unfortunately, we have a child who has an allergy to dogs on Bus No. 5. This will be a big problem. You can either drive your daughter and Lucky to school yourself or Lucky will have to help your daughter while at home only. Thank you, Superintendent

DOE V. U.S. SECRETARY OF TRANSPORTATION ET. AL (S.D.N.Y. 2018)

•  Student has chronic asthma and allergies, including an allergy to dogs. •  Student started middle school and started having more allergy symptoms

than normal. •  Parents asked District to exclude dogs from her school building. •  Parents requested Section 504 plan; school found her eligible and

developed plan for her. •  After several alleged violations of the plan, parents filed a complaint and an

impartial hearing officer found the District in violation of Section 504 and ordered the District to develop a new plan regarding how visitors with dogs would be kept away from Student.

•  Plaintiffs alleged District did not comply with this order.

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DOE V. U.S. SECRETARY OF TRANSPORTATION (CONTINUED)

•  Parents also alleged that during various flights to visit relatives, services animals were on their flights and that service animals were in places of public accommodation including summer camp and they had to limit their patronage to certain commercial facilities.

•  Against the school, the parents alleged that the District’s various 504 plans were insufficient to reasonably accommodate Student.

•  Court found the District was not free to ban all dogs from Jane’s school and she was not “entitled to a perfect accommodation or the very accommodation most strongly preferred by her.”

•  “Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals.”

•  Both the student with the service animal and the student with an allergy should be accommodated. •  Example: assigning different classrooms.

AVOIDING LEGAL JEOPARDY

•  Review Board Policy.

•  Know what questions you can ask.

•  Requirements for the handler.

DISCIPLINE OF

DISABLED STUDENTS

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45 DAY INTERIM ALTERNATIVE PLACEMENT

•  School personnel may remove a student to an interim alternative educational setting for up to 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability if the child:

•  Carries a weapon to, or possesses a weapon, at school, on school premises, or at a school function, under the jurisdiction of a state or local educational agency;

•  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; or

•  Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function.

34 CFR 300.530(g)

SERIOUS BODILY INJURY DEFINED

•  “Serious bodily injury" has the same definition found at Section 1365(h)(3) of the U.S. Criminal Code. 34 CFR 300.530(i)(3).

•  That provision defines serious bodily injury as bodily injury that involves: 1) a substantial risk of death; 2) extreme physical pain; 3) protracted and obvious disfigurement; or 4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. 18 USC 1365(h)(3); and 71 Fed. Reg. 46,722 (2006).

DISCIPLINARY PROTECTIONS •  Students protected under Section 504 & IDEA receive additional disciplinary

protections.

•  As a general rule, suspension and expulsion of students with disabilities have been treated the same way under both the IDEA and Section 504.

•  One key exception

•  Procedure to notify Superintendent of disabled student upon referral

•  Must conduct manifestation determination under both laws if change in placement!

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CHANGE OF PLACEMENT

When is a removal a CHANGE OF PLACEMENT?

•  More than 10 consecutive school days OR

•  A series of removals that exceed 10 cumulative school days and constitute a pattern

IS IT A “PATTERN” OF SUSPENSIONS?

•  >10 days cumulatively in the school year

•  Behavior must be substantially similar to behavior in previous disciplinary incidents

•  Additional Factors to be considered. . . •  Length of each removal •  Total amount of time of the removals •  Proximity of the removals to one another

* School staff determine if a pattern exists.

ACTIONS REQUIRED FOR LONG-TERM SUSPENSIONS •  MUST provide parents with Procedural Safeguards

•  When the decision is made to long-term suspend the student

•  MUST hold a Manifestation Determination Meeting to determine if conduct is related to the child’s disability •  Within 10 school days of the decision to change

placement

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THE MANIFESTATION DETERMINATION MEETING

WHEN is it held? •  Within 10 school days of

decision to long-term suspend

WHO attends? •  LEA representatives •  Parents •  Relevant members of the

IEP team

WHAT to consider? •  Student’s file, the IEP,

teacher observations and relevant information provided by parents

WHY? •  Is there a direct and

substantial relationship between behavior and disability

•  Did behavior result from not implementing the IEP?

MANIFESTATION DETERMINATIONS

Upper Darby Sch., 117 LRP 48405 (SEA PA 2017):

•  Middle school student with ADHD finding a knife, bringing it to school, and possessing it at school were not impulsive.

SPECIAL SCH. DIST. & PARKWAY SCH. DIST., 2018 10th grade student •  OHI (due to medical diagnosis of ADHD) •  Student had numerous short suspensions during year •  During year numerous days ISS, students work in

administrator’s office and given work to complete, they do not receive instruction from teachers.

•  In March was given 15 days OSS for possession of a stolen laptop

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•  District conducted manifestation determination meeting. •  Team found that possession of laptop did not have a

direct and substantial relationship to the student’s disability.

•  Parent challenged, hearing officer agreed with District, not related.

•  Hearing officer did find that student did not receive any special education while on suspension and the Districts denied student FAPE during suspension.

CONDUCT IS RELATED TO THE DISABILITY Student CANNOT be long-term suspend •  IEP team must. . .

1.  Conduct or review an FBA*** of the student 2.  Develop or review/revise a BIP** for the student 3.  Make a placement decision

1.  Return child to current placement with BIP in place 2.  Change placement with BIP in place 3.  In case of 45 day suspension for drugs, weapons, or serious bodily

injury, continue the placement in the interim alternative educational setting determined by LEA

CONDUCT IS NOT RELATED TO THE DISABILITY Student CAN be long-term suspend •  LEA may apply the same discipline consequences as

peers •  IEP team must. . .

1.  Determine services and placement beginning on the 11th day that allow the student to. . . a)  Receive educational services to continue to participate in general education

just in an alternate setting during the suspension b)  Progress towards IEP goals c)  Receive an FBA, if appropriate

2.  Provide parent with NOA for change of placement

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WHAT ABOUT IN-SCHOOL SUSPENSIONS? •  Commentary to IDEA Regulations explain that placement

in an in-school suspension (“ISS”) will NOT count toward the 10 cumulative days as long as the student: •  Continues to have an opportunity to progress in the

general curriculum; •  Continue with services in their IEP; and •  Continue to participate with non-disabled peers to the

same extent they would in their current placement.

WHAT ABOUT PARTIAL-DAY REMOVALS? •  The same commentary for ISS states that partial day

removals are to be counted toward calculating the number of removal days.

•  However, the commentary provides no explanation for how to calculate a partial day.

•  Strongly recommend developing policy on this issue: e.g., perhaps use State requirements for students to be in school on any given day less the amount of time for removal as result of student being sent home for disciplinary reasons.

REPORTING CRIMES

•  An agency reporting a crime committed by a student with a disability must ensure that copies of the student’s special education and disciplinary records are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.

34 CFR 300.535(b)(1) •  This disclosure must comply with FERPA.

34 CFR 300.535(b(2) •  Obtain prior written consent from parent.

34 CFR 99.30

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SECLUSION AND

RESTRAINT

IDEA

Seclusion and Restraint: •  U.S. Department of Education in Jan 2019

announced an initiative to address the possible inappropriate use of restraint and seclusion in schools

•  See U.S. Department of Education Resource Document on Seclusion and Restraint (2012) • Found on Department of Education website

A.T. V. DRY CREEK JOINT ELEM. SCH. DIST. 72 IDELR 122 (E.D. CAL. 2018) •  District’s motion to dismiss parent’s lawsuit based on

4th Amendment violation was denied. •  Parents alleged that District employees restrained

their son 112 times over a three year period. •  Parents also allege District didn’t notify them after

each incident of restraint. •  The number of restraints was sufficient to state a

claim under the 4th Amendment.

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KNOW YOUR BOARD POLICY

MCE Policy 2770

•  "Seclusion" means the confinement of a student alone in an enclosed space from which the student is physically prevented from leaving by locking hardware.

POLICY 2270

Isolation •  Isolation, as defined in this policy, may only be used by

authorized school personnel, as defined in this policy: •  After de-escalating procedures have failed; •  In an emergency situation as defined in this section; or •  As specified in a student's Individualized Education

Program (IEP), Section 504 plan, or other parentally agreed-upon plan to address a student behavior.

ISOLATION •  Use of isolation requires all of the following:

•  The student to be monitored by an adult in close proximity who is able to see and hear the student at all times. Monitoring shall be face-to-face unless personal safety of the child or staff member is significantly compromised, in which case technology-supported monitoring may be utilized.

•  The total time in isolation is to be reasonably calculated by District personnel on a case-by-case basis based on the age of the child and circumstances, and is not to exceed 40 minutes [District option to alter the time limit] without a reassessment of the situation and consultation with parents and/or administrative staff, unless otherwise specified in an IEP or Section 504 Plan or other parentally agreed-upon plan to address a student's behavior.

•  The space in which the student is placed should be a normal-sized meeting or classroom commonly found in a school setting.

•  The space in which the student is confined is comparable in lighting, ventilation, heating, cooling, and ceiling height to those systems that are in use in other places in the school.

•  The space in which the student is placed must be free of objects that could cause harm. •  Isolation shall never be used as a form of punishment or for the convenience of school personnel.

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POLICY 2770 •  Parental Notification

Except as otherwise specified in a student's IEP or Section 504 plan: •  Following a situation involving the use of seclusion, isolation or restraint the

parent or guardian of the student shall be notified through verbal or electronic means of the incident as soon as possible, but no later than the end of the day of the incident.

•  The parent or guardian shall receive a written report of the emergency situation within five (5) school days of the incident. The written incident report shall include all of the following: •  Date, time of day, location, duration, and description of the incident and de-escalation interventions. •  Event(s) that led up to the incident. •  Nature and extent of any injury to the student. •  Name of a school employee the parent or guardian can contact regarding the incident, and contact

information for that employee.

MSBA POLICY JGGA:

•  Physical Restraint – The use of person-to-person physical contact to restrict the free movement of all or a portion of a student’s body. It does not include briefly holding a student without undue force for instructional or other purposes, briefly holding a student to calm the student, taking a student’s hand to transport him or her for safety purposes, physical escort, or intervening in a fight.

EMERGENCY SITUATION FOLLOW-UPS: •  Following any emergency situation involving the use of seclusion,

isolation or restraint, a meeting shall occur as soon as possible but no later than two (2) school days after the emergency situation. The meeting shall include, at a minimum, a discussion of the events that led to the emergency and why the de-escalation efforts were not effective; any traumatic reactions on the part of the student, other students or school personnel; what, if anything, could have been done differently; and an evaluation of the process. All staff members directly involved with the emergency situation will be included in the meeting, which will be scheduled and led by the building principal or designee.

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EXCEPT AS OTHERWISE SPECIFIED IN A STUDENT’S IEP OR SECTION 504 PLAN, FOLLOWING AN EMERGENCY SITUATION INVOLVING THE USE OF SECLUSION, ISOLATION OR RESTRAINT, THE PARENT/GUARDIAN OF THE STUDENT SHALL BE NOTIFIED THROUGH VERBAL OR ELECTRONIC MEANS OF THE INCIDENT AS SOON AS POSSIBLE, BUT NO LATER THAN THE END OF THE DAY OF THE INCIDENT.

The parent/guardian shall receive a written report of the emergency situation within five (5) school days of the incident. The written incident report shall include all of the following: 1.  Date, time of day, location, duration and description of the incident and interventions. 2.  Event(s) that led up to the incident. 3.  Nature and extent of any injury to the student. 4.  Name of an employee the parent/guardian can contact regarding the incident. 5.  Plan to prevent the need for future use of seclusion, isolation or restraint.

STUDENTS WITH DISABILITIES If the IEP or Section 504 plan of a student with a disability includes the use of seclusion, isolation, restraint or aversive behavior intervention: 1.  The IEP or Section 504 plan must specify the conditions under which seclusion,

isolation, restraint or aversive behavior intervention may be used. 2.  The IEP or Section 504 plan must include steps to eliminate the need for the use

of seclusion, isolation, restraint or aversive behavior intervention. 3.  Any use of seclusion, isolation, restraint or aversive behavior intervention must

be limited to what is set forth in the IEP or Section 504 plan. •  Before adding the use of seclusion, isolation, restraint or aversive behavior

intervention to an IEP or Section 504 plan, the student must have undergone appropriate assessments including, but not limited to, a formal functional behavior assessment, and the student must have a BIP in place.

OCR

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OCR JURISDICTION •  Title VI of the Civil Rights Act of 1964 (Discrimination on the basis of race, color, and national

origin); •  Title IX of the Education Amendments of 1972 (Sex discrimination); •  Section 504 of the Rehabilitation Act of 1973 (Disability discrimination); and •  Age Discrimination Act of 1975 (Age discrimination). •  Title II of the Americans with Disabilities Act of 1990 (prohibiting disability discrimination by

public entities, whether or not they receive federal financial assistance). •  Boy Scouts of America Equal Access Act (Section 9525 of the Elementary and Secondary

Education Act of 1965, as amended by the No Child Left Behind Act of 2001) •  (no public elementary school or State or local education agency that provides an opportunity

for one or more outside youth or community groups to meet on school premises or in school facilities before or after school hours shall deny equal access or a fair opportunity to meet to, or discriminate against, any group officially affiliated with the Boy Scouts of America, or any other youth group listed in Title 36 of the United States Code as a patriotic society.)

OCR JURISDICTION

•  state education agencies •  elementary and secondary school systems •  colleges and universities •  state vocational rehabilitation agencies

WHO CAN FILE AN OCR COMPLAINT?

•  “A complaint of discrimination can be filed by anyone who believes that an education institution that receives Federal financial assistance has discriminated against someone on the basis of race, color, national origin, sex, disability, or age. The person or organization filing the complaint need not be a victim of the alleged discrimination, but may complain on behalf of another person or group.”

https://www2.ed.gov/about/offices/list/ocr/aboutocr.html

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CASE PROCESSING MANUAL

•  Recent updates to case processing manual

•  Expanded dismissal options

THE OCR INVESTIGATION LIFECYCLE

1.  Evaluation – considers jurisdiction, works with complainant to identify allegations

2.  Investigation – issues notice letters and data request to recipient; conducts interviews

3.  Resolution – identifies “compliance concerns” if any, proposes resolution agreement.

4.  Closure – determines insufficient evidence of a compliance concern (or some other grounds for dismissal)

5.  Monitoring – ensures implementation of agreement

OCR COMPLAINT RESOLUTIONS

•  Rapid Resolution Process •  Facilitated Resolution Between the Parties •  Voluntary Resolution •  Investigative Determinations

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PREVENT DISABILITY DISCRIMINATION •  Open lines of communication

•  Share information with those with a “legitimate educational interest”

FERPA, 34 CFR 99.31

•  Consider anti-discrimination/harassment & Section 504 training on a regular basis

PUBLISH NOTICE OF NONDISCRIMINATION •  Notice of Non-discrimination – in major publications and website

•  The (Name of Recipient) does not discriminate on the basis of race, color, national origin, sex, disability, or age in its programs and activities and provides equal access to the Boy Scouts and other designated youth groups. The following person has been designated to handle inquiries regarding the non-discrimination policies:

•  Name and/or Title Address Telephone No.

LIABILITY PREVENTION IDENTIFY COORDINATORS •  Identify and train your Title IX and Title II/Section 504

Coordinators. •  Make sure your coordinators know compliance.

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LIABILITY PREVENTION KEEP RECORDS •  Document all activities with civil rights implications. •  Keep track of comparators. •  Rely on your board policies. •  An exception for one can be an exception for all.

VIRTUAL INSTRUCTI

ON

•  “The educational rights and protections afforded to children with disabilities and their parents under IDEA must not be diminished or compromised when children with disabilities attend virtual schools…”

•  Dear Colleague Letter, 68 IDELR 108 (OSERS/OSEP 2016)

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MISSOURI VIRTUAL SCHOOL PROGRAMS •  Missouri Law - Section 161.670 RSMo (Aug 2018):

A district shall allow any eligible student to enroll in a virtual school course or a

full-time virtual school option

MoVIP has now become … Missouri Course Access and Virtual

School Program

“MoCAP”

MISSOURI VIRTUAL SCHOOL PROGRAMS

•  DOE Office of Inspector General will examine oversight of virtual school implementation for children with disabilities

Top Tip: Visit the Center on Online Learning and Students

with Disabilities www.centerononlinelearning.res

.ku.edu/

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PROCEDURES REGARDING VIRTUAL LEARNING

•  Be thoughtful about procedures for inclusion and provision of FAPE for special education students

•  Develop process for enrollment of students with existing 504/IEPs

Adopt/Review Procedures to address

virtual learning and special education

PLAN AHEAD FOR EQUAL ACCESS

•  Consider access to technology issues

•  Review applicability of IDEA/504 instruction & accommodations

•  Reconsider assistive technology

•  Accessibility of online materials

•  Train teachers & parents

CHILD FIND

Students without IEP/504 at time of enrollment: •  Develop procedure/screenings to identify children

who may need to be referred •  example: questionnaires filled out by virtual

instructors & parents •  Pay attention to reason stated for wanting online

education •  example: anxiety, health issues

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FAPE

•  How are special education minutes being provided? •  Individualize •  How should 504 be modified for virtual learning?

•  example: changes in timing, formatting, setting, scheduling

Revisit IEP/504 plan before student moves to online environment

or blended learning begins

ACCESSIBILITY

•  Title II and Section 504 prohibit educational agencies from affording individuals with disabilities with an opportunity to participate in or benefit from aids, benefits, and services that is unequal to the opportunity afforded others •  28 CFR 35.130(b)(1); 34 CFR 104.4(a)(ii)

This includes benefits that are provided through the use of technological devices, software programs, online content, and other technology.

ACCESSIBILITY

•  “Title II and Section 504 regulations apply even if the online content is developed by a third party”

•  Dear Colleague Letter, 43 NDLR 75 (OCR 2011)

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ACCESSIBILITY

•  “Districts must either ensure that the technology is accessible to students with disabilities or provide them an alternative way of receiving the same benefits”

•  Dear Colleague Letter: Electronic Book Readers, 110 LRP 37424 (OCR/DOJ 2010)

MISSOURI LAW ON ACCESSIBILITY

•  All virtual courses must meet the standards of 161.935 RSMo to assure compliance with federal accessibility laws

5 CSR 20-100.230

•  Section 161.935 •  Ensure that the information technology allows program

participants access to and use of information and data that is comparable to the access by individuals without disabilities

Betsey Helfrich bhelfrich@mickesotoole.com

Josh Douglass jdouglas@mickesotoole.com