You Be the Judge: Dueling Attorneys, the Facts, and the Law
Matt Cohen (Illinois parent attorney)
Andrew Faust (Pennsylvania school attorney)
William Culleton (Pennsylvania hearing officer), presenters
A young musical prodigy on the Autism Spectrum clings to her place at the private jazz-oriented Miles Davis Academy, and so do her parents. Her parents unilaterally placed the tenth grader, and in a previous proceeding that started with a due process hearing a federal district court ordered her local school district to pay all costs. Now the district invites this future star to return to her neighborhood public high school with an elaborate IEP, but she anxiously resists the change. Her parents share her concern with the public school setting; it is too big, too noisy and distracting, and the IEP does not offer a specialized autism support classroom for their child. They also fear that old bullies will troll their daughter again, and the district’s transition plan hits nothing but a sour note by maintaining that transition services are only required for postsecondary, not school-to-school, purposes. In July, the district cuts off all future funding for the private school. In August, parents go back to due process. How would you decide? Does the district IEP offer renewed discord or FAPE to our young Coltrane? Where is her “stay put”? Should the district help her plan a career in New York or redouble her supportive reading and speech therapy services? It’s your turn to sort out and do justice as two powerful special education litigators and an experienced hearing officer grapple with issues that we all see every day. You will hear their take, and then give your own.
Transition Services under the IDEA: The Unfolding Legal Landscape
Matt Cohen (Illinois parent attorney), presenter
Michael Stafford (Delaware school attorney), reactor
The IDEA mandates that the provision of FAPE include individualized transition services before the student with a disability turns sixteen and that the plan reflect the student’s strengths, preferences, and interests. However, IEP teams face legal requirements and functional realities as they make these consequential decisions. This session will address the following questions and conclude with a challenging scenario to encourage group discussion. Does the Supreme Court’s Endrew F. decision shift the substantive FAPE standard as it relates to transition planning? What are the required contents for the initial assessment and the resulting provisions as the student progresses through school? How do transition goals relate to the regular IEP goals? What are the unique transition challenges for students that are functioning reasonably well academically, but struggling in other areas? To what extent are adult agencies integrated into transition planning? How do transition needs relate to graduation requirements? In sum, how are the courts interpreting these school district obligations?
Restraints, Seclusion, and Abuse: Aversive Legal Consequences?
Selene Almazan (Maryland parent attorney), presenter
Gabrielle Gotham (Pennsylvania school attorney), reactor
An essential building block to the educational success of students with disabilities is a safe environment based upon sound research-based techniques of instruction and behavioral intervention. Schools continue to use seclusion, restraints, and other aversives despite lack of evidence of their efficacy. This session will discuss (a) state laws, (b) the case law under the U.S. Constitution, the Individuals with Disabilities Education Act, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act and state common law; and (c) strategies that are more effective for the physical safety and educational success of students with disabilities.
Should I Stay or Should I Go?: Exploring the Many Faces of “Stay Put”
Michele Kule-Korgood (New York parent attorney), presenter
Brooke Say (Pennsylvania school attorney), reactor
The IDEA intended its status quo (“stay put”) provision to be a straightforward protection, enacted to maintain a child with a disability in the student’s current educational placement during due process hearings and judicial appeals. However, “stay put” has oft become a complex source of contention, and at times, a major, stand-alone issue to be litigated. After examining the history and purpose of the “Stay Put” provision, we will consider a variety of different situations in which disputes over pendency arise. Join a duo of experienced attorneys (both sides) to ascertain answers to these and other pendency questions: What is the meaning of “placement” in the context of the stay-put provision and to what extent is it a continuum that applies to more than the educational setting? If the previous, agreed upon placement is no longer feasible, what is the child’s “stay-put” placement? What are the limits on “stay put” during transitions (i.e. transfers from Part C to Part B, graduation or aging out, and after a move within and between states)? What triggers the beginning and ending of a child’s stay-put placement, including the start of funding, in tuition reimbursement cases?
Dyslexia: The Expanding Legal Issues of Eligibility and Intervention
Stephen Fogarty (New Jersey school attorney), presenter
Dr. Stephen Jacobson (Pennsylvania parent attorney), reactor
In a class of 20 students, three or four students will likely have some symptoms of dyslexia. Not all of these students will qualify for special education; however, they will likely benefit from early identification and intervention. This session will analyze the nuances and intersections of the IDEA, Sec. 504, and state laws in relation to students with dyslexia, with a focus on the eligibility and intervention obligations of school districts. We will examine the practical implications of different choices, such as using the discrepancy model or the response to intervention model for IDEA SLD eligibility and such as the use of particular methodologies for intervention, and how to avoid common pitfalls that can result in adverse adjudicative decisions.
The Impact of Endrew F.: More than A Year Later
Isabel Machado (New Jersey school attorney), presenter
Gerry McMahon (Connecticut parent attorney), reactor
For decades, school districts and courts alike have relied upon the Supreme Court’s guidance in Rowley (1983) to determine whether the proposed program was “reasonably calculated to enable the child to receive educational benefits.” The various jurisdictions split as to whether the requisite level of educational benefit was “some” or “meaningful.” On March 22, 2017, The Supreme Court decided Endrew F. to revise the Rowley substantive standard for FAPE. The Court held that the IEP must be “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Although the decision has offered greater clarity regarding school districts’ FAPE obligation, questions still remain about the specific application of Endrew F. As a snapshot 15 months after the Endrew F. decision, this session will review the various interpretations and offer practical recommendations for fulfilling the FAPE mandate.
Exploring the Differences between Section 504 and the ADA: The Basics and the Nuances
Dr. Perry Zirkel (Lehigh University Professor Emeritus of Education and Law), presenter
In the context of K–12 students, this session will provide a systematic and comprehensive comparison among Section 504, the ADA, and the IDEA in terms of the respectively applicable legislation, regulations, and case law. The comparison addresses successive student-specific issues, such as eligibility, services, procedural safeguards, discipline, enforcement, and litigation. Section 504 questions that are often the subject of confusion and that will be addressed directly in the context of this comparison include, for example, the following: 1) Does Section 504 and/or the ADA require school districts to provide evaluation or other services for students enrolled in private, including parochial, schools? 2) Does child find apply to 504-only students? 3) Does the ADA provide more stringent requirements than does the IDEA for (a) hearing impaired students and/or (b) service animals? Does Section 504 have any requirements for expulsion of 504-only students that differ from the IDEA requirements for expelling students on IEPs?
Beyond the Basics: Top Current Issues under Section 504 and the ADA
Julie Weatherly (Alabama school attorney), presenter
Tanya Alvarado (Pennsylvania parent attorney), reactor
In recent years, tough student issues under Section 504/ADA have been noticeably on the rise. From eligibility determinations to disciplinary actions, this session will provide a practical review of the “hottest” current 504/ADA issues with defensible answers for effective practice. For instance, what is a school’s responsibility to consider a private physician’s diagnosis of ADHD and accompanying “prescription” for a 504 Plan? What about a “prescription” for a service dog or miniature horse? Should a school develop a rubric for determining what constitutes a “substantial limitation” of a major life activity? What are the school nurse’s obligations under Section 504/ADA with respect to students who have individual health plans? What must the football coach do when the parents insist that their child’s 504 Plan requires participation on the varsity football team? Two seasoned special education attorneys will provide district and parent perspectives on resolution of these questions, along with a lively culminating case for group discussion.