Ch. 5, Indiv w Disab 2011-12 Hardison/Wheaton, HU 1 Chapter Five, Individuals with Disabilities Presented by: Cathy Hardison, JD, PhD Associate Dean, Heritage

Ch. 5, Indiv w Disab 2011-12 Ch. 5, Indiv w Disab 2011-12 Hardison/Wheaton, HUHardison/Wheaton, HU

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Chapter Five, Individuals with Chapter Five, Individuals with DisabilitiesDisabilities

Presented by:Presented by:Cathy Hardison, JD, PhDCathy Hardison, JD, PhD

Associate Dean, Heritage University Associate Dean, Heritage University Attorney-at-LawAttorney-at-Law

ANDANDCharles Wheaton, PhDCharles Wheaton, PhD

Online Curriculum Specialist/Faculty TrainerOnline Curriculum Specialist/Faculty TrainerHeritage UniversityHeritage University


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Before We BeginBefore We Begin

Before we begin…Before we begin… Do you have any questions?Do you have any questions?

Case LawCase Law What is your reaction to Irving Independent What is your reaction to Irving Independent

School District v Tatro? (page 145)School District v Tatro? (page 145) How about Cedar Rapids Community District How about Cedar Rapids Community District

v. Garret F.? (page 145-146)v. Garret F.? (page 145-146) Are these rulings fair? What about costs you Are these rulings fair? What about costs you

pay as a taxpayer?pay as a taxpayer?


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Special Education and the LawSpecial Education and the Law

Special Education is far reaching in its Special Education is far reaching in its scope and has many possible liabilities for scope and has many possible liabilities for a school district.a school district.

Can you name some possible lawsuits that Can you name some possible lawsuits that might be brought?might be brought?


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Washington State Spec Educ Washington State Spec Educ Categories (Categories (WAC 392-172A-01035)WAC 392-172A-01035)

Use WAC 392-172A-01035 Handout to help you Use WAC 392-172A-01035 Handout to help you understand these categories—define for usunderstand these categories—define for us

(a)(i) Autism(a)(i) Autism

(b) Deaf-Blindness(b) Deaf-Blindness

(c) Deafness(c) Deafness

(d) (i) Developmental Delay(d) (i) Developmental Delay

(e) (i) Emotional/behavioral disability(e) (i) Emotional/behavioral disability

(f) Hearing Impaired(f) Hearing Impaired

(g) Mental Retardation(g) Mental Retardation

(h) Multiple Disabilities(h) Multiple Disabilities


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Washington State Spec Educ Washington State Spec Educ Categories (Categories (WAC 392-172A-01035)WAC 392-172A-01035)

(i) Orthopedic impairment(i) Orthopedic impairment

(j) Other health impairment(j) Other health impairment

(k) (i) Specific learning disability(k) (i) Specific learning disability

(l) Speech or language impairment(l) Speech or language impairment

(m) Traumatic brain injury(m) Traumatic brain injury

(n) Visual impairment(n) Visual impairment


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What is Section 504?What is Section 504?

Students have disabilities, BUTStudents have disabilities, BUT Do not qualify for IDEA (Do not meet criteria) Do not qualify for IDEA (Do not meet criteria) 504 definition much more comprehensive504 definition much more comprehensive

Both IDEA and Section 504 eligible students are Both IDEA and Section 504 eligible students are of special concern for the school employee, of special concern for the school employee, because discipline procedures for these because discipline procedures for these students are more restrictive as to the actions of students are more restrictive as to the actions of school staffschool staff


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Section 504 DefinitionSection 504 Definition

““Any person who Any person who (i) has a physical or mental impairment (i) has a physical or mental impairment

which substantially limits one or more which substantially limits one or more major life activities,major life activities,

(ii) has a record of such an impairment, or (ii) has a record of such an impairment, or is regarded as having such an is regarded as having such an impairment.”impairment.”


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Section 504 DefinitionSection 504 Definition

Further definition of a physical or mental Further definition of a physical or mental impairment meaningimpairment meaning ““(A) any physiological disorder or condition, (A) any physiological disorder or condition,

cosmetic disfigurement, or anatomical loss affecting cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: one or more of the following body systems: neurological; musculoskeletal; speech sense neurological; musculoskeletal; speech sense organs, respiratory; including speech and organs, respiratory; including speech and lymphatic; skin or endocrine; orlymphatic; skin or endocrine; or

(B) any mental or psychological disorder such as (B) any mental or psychological disorder such as mental retardation, organic brain syndrome, mental retardation, organic brain syndrome, emotional or mental illness, and specific learning emotional or mental illness, and specific learning disabilities.”disabilities.”


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504 Definition(con’t)504 Definition(con’t)

Major life activities are defined as:Major life activities are defined as: ““functions such as caring for oneself, performing functions such as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, manual tasks, walking, seeing, hearing, speaking, breathing, learning, working.”breathing, learning, working.”

By its very nature the 504 definition includes many By its very nature the 504 definition includes many categories not thought to be impairments by school categories not thought to be impairments by school staff; thereforestaff; therefore

A tension between parents, student advocates and A tension between parents, student advocates and the school can likely occur.the school can likely occur.


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Special Education DisciplineSpecial Education Discipline

FIRST, accept that regular education rules are FIRST, accept that regular education rules are not always the same for Sped because not always the same for Sped because

Have to ask if student’s behavior is related to Have to ask if student’s behavior is related to his/her disabilityhis/her disability

If related to disability, then must follow sped If related to disability, then must follow sped rules regarding disciplinerules regarding discipline


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Sped students cannot be punished for conduct Sped students cannot be punished for conduct that is a that is a manifestationmanifestation of their disability of their disability

Using regular school rules, can be disciplined for Using regular school rules, can be disciplined for any behavior not associated with their disabilityany behavior not associated with their disability Must ensure that punishment does not Must ensure that punishment does not materially materially

and substantiallyand substantially interrupt the child’s education. interrupt the child’s education.


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Materially and substantiallyMaterially and substantially interrupt child’s education interrupt child’s education Expulsions: Permanent separation from the school districtExpulsions: Permanent separation from the school district Suspensions: Removes the disruptive student from the Suspensions: Removes the disruptive student from the

school environment temporarilyschool environment temporarily Transfers: Student is moved to another environmentTransfers: Student is moved to another environment

If not related to disability, Sped student is responsible to If not related to disability, Sped student is responsible to follow rules and can be disciplined accordinglyfollow rules and can be disciplined accordingly


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Special Education DisciplineSpecial Education Discipline Discipline and Optional SanctionsDiscipline and Optional Sanctions

Violates school rule, code of conduct uniformly applicable to Violates school rule, code of conduct uniformly applicable to all studentsall students Can place Sped student in interim alternative educational setting Can place Sped student in interim alternative educational setting

or other setting for up to 10 days (if also may use same sanction or other setting for up to 10 days (if also may use same sanction for all students)for all students)

Can suspend Sped student up to 10 days (if also may use the Can suspend Sped student up to 10 days (if also may use the same sanction for all students), stay put provision applies--same sanction for all students), stay put provision applies--meaning what?meaning what?

Can place the student in an IAES for up to 45 days (same sanction, Can place the student in an IAES for up to 45 days (same sanction, etc.) if etc.) if

carries a weapon to schoolcarries a weapon to school Illegally uses drugs or sells or solicits the sale of a controlled function (stay Illegally uses drugs or sells or solicits the sale of a controlled function (stay

put does not apply for weapons & drug discipline)put does not apply for weapons & drug discipline) Inflicts serious bodily injury upon another personInflicts serious bodily injury upon another person


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Referrals After the FactReferrals After the Fact

Called preemptive strike. Called preemptive strike. Parents can use or abuse the opportunity to Parents can use or abuse the opportunity to

have their student receive special education have their student receive special education status after an incident occurs.status after an incident occurs.

The claim has to be that the LEA knew that The claim has to be that the LEA knew that the students had a disability BEFORE the the students had a disability BEFORE the incident occurred incident occurred


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Referrals After the FactReferrals After the Fact

LEA deemed to have known student had a LEA deemed to have known student had a disability if:disability if: Parent expressed concern IN WRITING the student Parent expressed concern IN WRITING the student

is in need of servicesis in need of services Parent has requested a nondiscriminatory Parent has requested a nondiscriminatory

evaluationevaluation Student’s behavior demos a need for servicesStudent’s behavior demos a need for services Student’s teacher/other school personnel HAVE a Student’s teacher/other school personnel HAVE a

concern AND have expressed the concern to the concern AND have expressed the concern to the sped director or other personnelsped director or other personnel


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Sped Students and CrimesSped Students and Crimes

LEA may report crimes committed by sped LEA may report crimes committed by sped studentsstudents

If reported, sped students lose all special status, If reported, sped students lose all special status, treated as if a regular education studenttreated as if a regular education student

When report crime, LEA must provide law When report crime, LEA must provide law enforcement with sped and discipline filesenforcement with sped and discipline files


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Essex RecommendationsEssex RecommendationsDo You Agree?Do You Agree?

Provide children with disabilities equal Provide children with disabilities equal access.access.

Lack of funds cannot be used to deny Lack of funds cannot be used to deny servicesservices

Understand the difference between Understand the difference between medical and related servicesmedical and related services

Staff dev is needed for staff (coherent, Staff dev is needed for staff (coherent, continuous, and well supportedcontinuous, and well supported


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Staff need to be aware of liability concerns if do Staff need to be aware of liability concerns if do not provide servicesnot provide services

Parental rights must be respected as to Parental rights must be respected as to evaluation and IEP processesevaluation and IEP processes

Children with disabilities should be punished for Children with disabilities should be punished for behavior associated with disabilitiesbehavior associated with disabilities

Long term suspension triggers need for Long term suspension triggers need for placement changes, but cannot deny servicesplacement changes, but cannot deny services


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If parent prevails, can be awarded attorney fees, If parent prevails, can be awarded attorney fees, if district does, then they can collect attorney if district does, then they can collect attorney fees from parentfees from parent

Burden of Proof rests with school district as to Burden of Proof rests with school district as to whether misbehavior is attributable to disabilitywhether misbehavior is attributable to disability

Architectural barriers must be removed if Architectural barriers must be removed if prevent program services or activitiesprevent program services or activities

School districts may have to provide additional School districts may have to provide additional services beyond the school year, so carefully services beyond the school year, so carefully consider this option.consider this option.


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Your RecommendationsYour Recommendations

How can you protect yourself or children How can you protect yourself or children as as A Teacher?A Teacher? A Parent?A Parent? An Administrator?An Administrator?

Documents

Ch. 5, Indiv w Disab 2011-12 Hardison/Wheaton, HU 1 Chapter Five, Individuals with Disabilities Presented by: Cathy Hardison, JD, PhD Associate Dean, Heritage