You Be the Judge: Dueling Attorneys, the Facts, and the Law
Dennis McAndrews (Pennsylvania parent attorney)
Andrew Faust (Pennsylvania school attorney)
Brian Jason Ford (Pennsylvania hearing officer), presenters
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.
In this creative fact pattern, a third grade English Language Learner makes minimal progress in reading/language arts. He receives support through a multi-tiered regular education program and accommodations under Section 504. As he loses confidence and is bullied, the student becomes a truant. Have the school district’s actions been appropriate?
Child Find: The Latest, Thorny Issues
Claire Raj (South Carolina law professor), presenter
Rachel Hitch (North Carolina school attorney), reactor
IDEA’s Child Find mandate has long been the subject of litigation. Initially the litigation concerned whether a district had implemented collective Child Find procedures, but it soon evolved to the modern focus on individual determination of “reasonable suspicion,” including potential indicators, and “reasonable period.” Most recently, various thorny issues have arisen, which will be the focus of this session. What is the statute of limitations for a Child Find claim, including the application of the information-withholding exception? Is there an entitlement for a remedy and/or attorneys’ fees for a child find violation in the absence of a defensible determination that the child meets the eligibility standards of the IDEA? What are the special wrinkles for students in (a) parentally placed private schools, (b) hospital settings, and (c) virtual schools? What is the role of Section 504 for IDEA Child Find and, separately, as a basis for Child Find? Does reasonable period conflate, in some circumstances, with reasonable suspicion?
English Language Learners and the IDEA: The Round Peg and the Square Hole
Craig Goodmark (Georgia parent attorney), presenter
Michael Stafford (Delaware school attorney), reactor
According to the National Center for Education Statistics, the IDEA identification rate of English Language Learners (ELLs) is far below the rate for the rest of the student population. Moreover, for those ELLs who receive an IEP, the provisions that take advantage of their linguistic and cultural differences also fall short of their needs.
Our discussion will focus on the intersection of the IDEA and relevant civil rights laws, Title VI and Section 504, in relation to the proper identification and individualized services for ELLs. We will examine agency policy interpretations, hearing officer decisions, and court decisions that illustrate the available legal sources to date. We will identify points of advocacy and implementation of improvements for the special education process for ELLs, including the red flags, pitfalls, and opportunities .
School Refusal/Avoidance and Other Attendance Issues
Peter Maher (Connecticut school attorney), presenter
Maria Blaeuer (Maryland parent attorney), reactor
Frequent absenteeism can be a challenging obstacle to determining the educational needs of, and providing an appropriate education to, the student. This session will focus on student attendance issues, including school refusal and avoidance, and how these issues may factor into child find obligations, eligibility determinations, and appropriate special education services. In this session, we will review illustrative court decisions and other primary legal authority and discuss this factor from varying perspectives.
Compensatory Education: The Latest Wrinkles
Mary Ann Carroll (Rhode Island school attorney), presenter
Catherine Michael (Indiana parent attorney), reactor
This comprehensive session will include the definition of compensatory education services, the essential elements of the claims, and the various forms of this retrospective remedy. Within this framework, we will focus on recent thorny issues, including the following examples: What is the limitations period for compensatory education for a child find claim that amounts to denial of FAPE? If the family moves out of state, does an award of compensatory education become moot, and, if not, does the responsible party become the original district, the original state, the new district, or the new state? What is the appropriate procedure for calculating an award via the qualitative approach within the regulatory timeline of a due process hearing? Is compensatory education available for a least restrictive environment (LRE) violation? Is student absenteeism, especially if excessive, a factor in determining the amount of compensatory education? What about teacher absenteeism, especially if a properly certified teacher is not available as the substitute? May an award extend to postsecondary education services? When may the award be in the form an escrow or trust fund? What is the proper procedure for enforcing a compensatory education award if the district fails to timely implement it?
The Bullying-Suicide Connection for Students with Disabilities
Michelle Moor (Massachusetts parent attorney), presenter
Dr. Anne McGinnis (New York school attorney), reactor
Bullying is a pervasive problem in public schools that can lead to devastating consequences, including suicide, for students generally but students with disabilities in particular. This session will (1) review recent empirical research regarding bullying and student suicide, and (2) focus specifically on the legal bases and judicial outcomes of litigation resulting from suicide of students with disabilities in the context of bullying. The session will conclude with practical recommendations for schools, parents, legislators, and courts to prevent and address bullying of students with disabilities in K–12 schools.
Comparing Section 504 and the ADA with the IDEA: What Are Not Only the Significant But Also the Subtle Differences?
Dr. Perry Zirkel (Lehigh University Professor Emeritus of Education and Law), presenter
Parris Taylor (Louisiana state official)
In the context of K–12 students, this session will provide a systematic, comprehensive, and up-to-date 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? Which requirements for expulsion of 504-only students differ from the IDEA requirements for expelling students on IEPs? What are the differences between Section 504/ADA and the IDEA with regard to (a) liability for money damages, (b) statute of limitations, (c) expert
Beyond the Basics: “Hot Topics” under Section 504 and the ADA
Julie Weatherly (Alabama school attorney), presenter
Gina DeCrescenzo (New York parent attorney), reactor
In recent years, complicated student issues under Section 504/ADA have been noticeably on the rise, including eligibility determinations and disciplinary and mental health situations. This session will provide a practical review of the “hottest” current 504/ADA questions with defensible answers for effective practice. For instance, how should schools make Section 504 eligibility determinations and respond to doctor “prescriptions” for 504 Plans? How should schools respond to service animal requests, and how are courts/agencies ruling on this issue? What are a school’s obligations under Section 504/ADA with respect to students who have individual health care plans? What about students who have mental health issues? What about participation in nonacademic and extracurricular activities, such as athletics and after-school programs, under Section 504/ADA? What are the nuanced differences between the OCR and judicial routes for parent complaints that are practically significant to both parties? And, the most recent “hot ” question: How does COVID-19 impact Section 504 protections? Two seasoned special education attorneys will provide district and parent perspectives on resolution of these questions.