Dave Richards Julie Weatherly

Must a 7 year-old’s ESY program match her school year services?

An IEP for a 7 year-old student with multiple disabilities included one hour of OT and one hour of speech therapy per week, which was provided during the summer of 2005.

For the next school year, the child’s therapy services were increased to two hours per week and the student made significant progress.

For the summer of that year, the district offered 90 minutes of OT and speech services per week for the summer.

The parents requested a due process hearing, but the school district would only provide the 90 minutes per week of each therapy during the summer.

Did the school violate the IDEA by providing only 90 minutes of OT and

speech during ESY?

A. Yes. The services were clearly inappropriate given the gains the child made during the school year when she received two hours of therapy.

B. No. The parents failed to prove the child needed more than 90 minutes of therapy each week to receive educational benefit.

C. Yes. The IDEA requires the district to provide two hours of each therapy per week while the hearing is pending.

D. No. The district not only satisfied IDEA but increased the child’s ESY services by 50% over the previous year.

Dept. of Educ. v. A.F.47 IDELR 252 (D. Haw. 2007)

ANSWER: CThe IDEA’s “stay-put” provision, triggered by the due process hearing request, required the district to maintain the child’s current level of services until the dispute over ESY is resolved. The district’s argument that it only provided the child with one hour of each therapy the previous summer is rejected.

Dave Richards Julie Weatherly

Is the school required to allow use of a hand-held calculator on a district-wide

assessment?An 8th grade student with a learning disability sought to use a hand-held calculator on the MAP test, a district-wide assessment.

The MAP test is taken on the computer. An on-screen calculator is available for a portion of the exam, then disappears so that students must perform computations on their own.

Success on the MAP test is 1/3 of the rubric for students wanting access to the district’s selective enrollment high schools.

The student’s IEP allowed use of a calculator in the classroom, and required that the student will participate in district and state assessments “with allowable accommodations/modifications that are necessary to measure academic achievement and functional performance.”

Did the school violate Section 504 & the ADA by refusing to allow use of the

calculator?

A. Yes. Having determined that the student requires the calculator in class, the district must provide it on all assessments as well.

B. Yes. Without the accommodation, the student will be denied, on the basis of disability, equal participation in the MAP assessment, and consequently denied access to selective enrollment high schools.

C. No. Section 504 and ADA Title II specifically exempt district-based assessments utilized primarily for intra-district enrollment decisions, as long as parents have access to procedural safeguards.

D. No. Use of the accommodation would create an unfair advantage.

K.P. v. City of Chicago School District #299

65 IDELR 42 (N.D. ILL. 2015)

ANSWER: D“Allowing K.P. to use a calculator to answer questions that are designed to assess her ability to perform math calculations is not an accommodation that in the plaintiffs’ words ‘level the playing field.’ Quite the contrary. It would permit K.P to replace her allegedly limited computational skills with a mechanical tool of infinite capacity (at least in the context of this case) that likely exceeds the computational capabilities of perhaps all—and certainly most—non-disabled students. That is not a reasonable accommodation but a substitution of artificial intelligence for the very skill the Test seeks to measure.”

Dave Richards Julie Weatherly

Do repeated “raps” to the paraprofessional’s head justify the

child’s removal to an IAES?12 year-old, 83-pound student with an undisclosed disability struck the parapro on the head four times with his closed fist with knuckles twice the normal size because of his history of hitting things.

Para immediately felt pain, experienced headaches and had blurred vision. She rated her pain a 7 on a scale of 1 to 10. She walked promptly to the school nurse, who confirmed that the para was unable to focus. The para later complained to the ambulance driver of a headache and neck and back pain.

The para spent an hour at the hospital and was advised to take Advil. She was “fine” the next day.

The MD review team determined that the conduct was related to the student’s disability but moved him to an IAES based upon the student’s infliction of serious bodily injury.

May the district place the child in an IAES?

A. No. The district determined that the incident was a manifestation of the student’s disability.

B. No. The paraprofessional did not suffer extreme physical pain sufficient to constitute serious bodily injury.

C. Yes. The student inflicted serious bodily injury that caused extreme physical pain.

Student with a Disability, 54 IDELR 139 (SEA KS 2010)

ANSWER: BThe facts showed that while the para suffered

headaches and discomfort, her injury did not fit the statutory definition of “extreme physical pain” sufficient to constitute serious bodily injury for purposes of placement in an IAES. The fact that the para was not prescribed a narcotic and her symptoms subsided after taking over- the-counter medication indicates that she was not in excruciating pain. Minor symptoms from raps to the head by a small child with enlarged knuckles, “while without a doubt very uncomfortable,” do not meet the statutory definition of extreme physical pain.

Dave Richards Julie Weatherly

Was a regular education student’s receipt of homebound services a Section

504 violation?The student was diagnosed with Type-1 diabetes and required insulin. The charter school developed a health plan to address his needs.

State rules required that a licensed health-care provider conduct an annual individualized assessment and interpret medical orders to develop the individualized health plan.

The two nurses who provided these services did not renew their contracts for the 2009-10 school year, and the charter was unable to find qualified folks to do the required assessments.

The charter looked to the SEA for help. The state provided the charter with two options for the 2009-10 school year: (1) locate and hire a nurse OR (2) provide in-home educational services to the student.

Did the school violate Section 504 in its provision of homebound instruction?

A. Yes. The school removed the student from the regular classroom because of his disability, without a Section 504 evaluation.

B. No. Since Section 504 eligibility is not required to access home instruction under Oregon law, there can be no 504 violation. Home instruction is available to regular education students.

C. No. The school followed, to the letter, the state’s procedures for health plans, and utilized one of the options provided by the state when a nurse could not be found. Following guidance from the SEA creates a “safe harbor” from OCR complaints.

D. No. Since home instruction via regular education was sufficient to meet the student’s needs, no move to a higher tier of intervention (Section 504) was required.

Lourdes (OR) Public Charter School57 IDELR 53 (OCR 2011)

ANSWER: A“Because LPCS made a significant change in the

student's placement without conducting an evaluation of the student's disability-related needs, LPCS failed to comply with 34 C.F.R. 104.35(a). Further, because LPCS placed the student in an in-home tutoring environment, which was a more restrictive environment than what the student had previously and subsequently been provided, LPCS failed to comply with 34 C.F.R. 104.34(a).”