Chapter Five Individuals with Disabilities Presented by Cathy

Chapter Five, Individuals with Disabilities Presented by: Cathy Hardison, JD, Ph. D Associate Dean, Heritage University Attorney-at-Law AND Charles Wheaton, Ph. D Online Curriculum Specialist/Faculty Trainer Heritage University Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 1

Before We Begin § Before we begin… § Do you have any questions? § Case Law § What is your reaction to Irving Independent School District v Tatro? (page 145) § How about Cedar Rapids Community District v. Garret F. ? (page 145 -146) § Are these rulings fair? What about costs you pay as a taxpayer? Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 2

Special Education and the Law § Special Education is far reaching in its scope and has many possible liabilities for a school district. § Can you name some possible lawsuits that might be brought? Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 3

Washington State Spec Educ Categories (WAC 392 -172 A-01035) Use WAC 392 -172 A-01035 Handout to help you understand these categories—define for us (a)(i) Autism (b) Deaf-Blindness (c) Deafness (d) (i) Developmental Delay (e) (i) Emotional/behavioral disability (f) Hearing Impaired (g) Mental Retardation (h) Multiple Disabilities Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 4

Washington State Spec Educ Categories (WAC 392 -172 A-01035) (i) Orthopedic impairment (j) Other health impairment (k) (i) Specific learning disability (l) Speech or language impairment (m) Traumatic brain injury (n) Visual impairment Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 5

What is Section 504? § Students have disabilities, BUT § Do not qualify for IDEA (Do not meet criteria) § 504 definition much more comprehensive § Both IDEA and Section 504 eligible students are of special concern for the school employee, because discipline procedures for these students are more restrictive as to the actions of school staff Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 6

Section 504 Definition § “Any person who § (i) has a physical or mental impairment which substantially limits one or more major life activities, § (ii) has a record of such an impairment, or is regarded as having such an impairment. ” Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 7

Section 504 Definition § Further definition of a physical or mental impairment meaning § “(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; speech sense organs, respiratory; including speech and lymphatic; skin or endocrine; or § (B) any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. ” Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 8

504 Definition(con’t) § Major life activities are defined as: § “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working. ” § By its very nature the 504 definition includes many categories not thought to be impairments by school staff; therefore § A tension between parents, student advocates and the school can likely occur. Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 9

Special Education Discipline § FIRST, accept that regular education rules are not always the same for Sped because § Have to ask if student’s behavior is related to his/her disability § If related to disability, then must follow sped rules regarding discipline Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 10

Special Education Discipline § Sped students cannot be punished for conduct that is a manifestation of their disability § Using regular school rules, can be disciplined for any behavior not associated with their disability § Must ensure that punishment does not materially and substantially interrupt the child’s education. Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 11

Special Education Discipline § Materially and substantially interrupt child’s education § Expulsions: Permanent separation from the school district § Suspensions: Removes the disruptive student from the school environment temporarily § Transfers: Student is moved to another environment § If not related to disability, Sped student is responsible to follow rules and can be disciplined accordingly Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 12

Special Education Discipline § Discipline and Optional Sanctions § Violates school rule, code of conduct uniformly applicable to all students § Can place Sped student in interim alternative educational setting or other setting for up to 10 days (if also may use same sanction for all students) § Can suspend Sped student up to 10 days (if also may use the same sanction for all students), stay put provision applies--meaning what? § Can place the student in an IAES for up to 45 days (same sanction, etc. ) if § carries a weapon to school § Illegally uses drugs or sells or solicits the sale of a controlled function (stay put does not apply for weapons & drug discipline) § Inflicts serious bodily injury upon another person Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 13

Referrals After the Fact § Called preemptive strike. § Parents can use or abuse the opportunity to have their student receive special education status after an incident occurs. § The claim has to be that the LEA knew that the students had a disability BEFORE the incident occurred Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 14

Referrals After the Fact § LEA deemed to have known student had a disability if: § Parent expressed concern IN WRITING the student is in need of services § Parent has requested a nondiscriminatory evaluation § Student’s behavior demos a need for services § Student’s teacher/other school personnel HAVE a concern AND have expressed the concern to the sped director or other personnel Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 15

Sped Students and Crimes § LEA may report crimes committed by sped students § If reported, sped students lose all special status, treated as if a regular education student § When report crime, LEA must provide law enforcement with sped and discipline files Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 16

Essex Recommendations Do You Agree? § Provide children with disabilities equal access. § Lack of funds cannot be used to deny services § Understand the difference between medical and related services § Staff dev is needed for staff (coherent, continuous, and well supported Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 17

Essex Recommendations Do You Agree? § Staff need to be aware of liability concerns if do not provide services § Parental rights must be respected as to evaluation and IEP processes § Children with disabilities should be punished for behavior associated with disabilities § Long term suspension triggers need for placement changes, but cannot deny services Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 18

Essex Recommendations Do You Agree? § If parent prevails, can be awarded attorney fees, § § § if district does, then they can collect attorney fees from parent Burden of Proof rests with school district as to whether misbehavior is attributable to disability Architectural barriers must be removed if prevent program services or activities School districts may have to provide additional services beyond the school year, so carefully consider this option. Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 19

Your Recommendations § How can you protect yourself or children as § A Teacher? § A Parent? § An Administrator? Ch. 5, Indiv w Disab 2011 -12 Hardison/Wheaton, HU 20