SPECIAL EDUCATION AND THE LAW



SPECIAL EDUCATION AND THE LAW

EDLPS 516/EDSPE 504

Winter 2008

Mid-Term Case Scenarios

There are three midterm questions. PLEASE ANSWER TWO QUESTIONS. We will discuss them all during class on March 3. Guidelines are as follows:

← Write your answers in either outline (detailed) or narrative form in a maximum of 2 pages (for each question).

← You can use all your notes and texts and there is no time limit. However, my expectation is that you can answer a question in about an hour—30 minutes to think, review the law, outline and 30 minutes to write the final version of your answer.

← Use Wrightslaw to locate statutes and regulations applicable to your answer when necessary. I don’t expect you to cite Washington state statutes and regulations.

← If you need facts that I have not given you in the case study (in order to write your response), state what facts you are assuming in your answer and then answer based on those assumptions.

← You are expected to answer the question independently.

← There are many legal issues in these cases that we haven’t discussed yet in class—if you identify them, great, but I am not expecting you to include anything except what has been assigned reading and the class discussions.

← Answers are due electronically to me on February 25, 2008 by 4:30PM or in class that night. Earlier is always appreciated.

QUESTION #1

Adam Brozer is a 15 year old junior high school student eligible for services under the IDEA, Section 504 of the Rehabilitation Act of 1973, and ADA. Adam was first identified as needing services due to difficulty controlling his behavior in elementary school. The school district recommended that Adam be placed in a special center in another school district. The parents initially resisted but then acquiesced to the school district's proposal. That program ran for the last year and a half of Adam's elementary schooling. Adam received B's and C's and his behavior deteriorated badly with increasing periods of violence and disruption.

That spring, the school district called a meeting to discuss the move to junior high school and indicated that Adam could not go to his neighborhood school because adequate support services would not be available to him at that site. The school district insisted that he be placed at a separate school for students with severe behavior disorders.

The parents were very resistant because that would be a continuation of the school district's proposal that had failed for two years and because the school district obviously was not willing to consider placement on a regular campus. The parents insisted on a program at their home junior high school. The school district finally agreed but still insisted it did not have adequate support services at that site. The school offered social work counseling and disciplinary sanctions of detentions and solitary lunches.

The program was clearly unsuccessful with Adam's academic performance and his behavior deteriorating further. The Brozers think Adam has a learning disability because their independent evaluator reported that to them, and blame the inadequate public school programming for their son’s inappropriate behaviors. They think all services can be provided on a regular school campus, preferably his neighborhood school. The school district considers Adam behaviorally disordered as a result of their initial evaluation in addition to having a learning disability and want him in a separate program with other behaviorally disordered students so that they can address the learning disability adequately. The school district called for a new IEP and repeated their proposal for a separate school for children with severe behavior problems. When the parents adamantly refused, the school district requested a due process hearing.

You are the hearing officer and must write the decision following the hearing. The issue you must decide is whether based on the information above, the school district or parents “win.” Write an opinion that includes—at a minimum—a discussion of FAPE and the provision of related services and how it applies in Adam’s case.

REMEMBER: You should use statutes and regulations (federal) and case law (if applicable) to support any conclusions you make.

QUESTION #2

Elvis has been diagnosed with autism and is qualified for education services under all federal laws. He had been receiving services, per his IEP, in regular classes with a full time aide for two years. The placement has not been easy for Elvis and he has not been making much progress towards his IEP goals. At his annual IEP review just a month ago, the school wanted to continue this placement, but his parents requested that the school pay for Elvis' placement at a private facility that offers full-time intensive programming for children with autism and provides services 12 months a year and seven days a week.

The school followed IDEA procedures and scheduled another meeting of the IEP team two weeks later to discuss this proposal. In addition, they requested another medical evaluation of Elvis. After receiving the evaluation and reviewing the file, they rejected the parents' request, stating that their programming was appropriate. Before this second meeting, the parents placed Elvis in the private school after receiving an independent evaluation from their private psychologist.

The parents have hired a lawyer and are claiming that their son's rights to an appropriate education have been violated and that the school should pay for the cost of the independent evaluation, private school placement, and their attorneys' fees and costs. They are following procedures for administrative review of these issues.

The school board wants to know what the courts have said about the school districts’ obligation to provide services to Elvis under the federal laws. You are requested by the special education director to provide her: 1) with a thorough discussion of FAPE, and extended school year and 2) your professional opinion about the appropriate placement for Elvis.

REMEMBER: You should use statutes and regulations (federal) and case law (if applicable) to support any conclusions you make.

QUESTION #3:

Spring Lake School District has recently experienced severe budget cuts and school nursing staff has been drastically reduced. A registered nurse visits each elementary school one day a month and is available for consultations.

Jack is a ten year old with severe cognitive and physical limitations. He requires clean intermittent catheterization (CIC) during the school day and is fed through a gastro button. His family was new to the Spring Lake School District and on the first day of school, Mom told the teacher, Ms. Lu Finlon, about the need for CIC and demonstrated the procedure to her and the classroom aide. At that time, Jack was fed before and after school. The classroom aide had performed CIC with another student (a girl) during the previous school year and felt comfortable and confident that she could perform the procedure. They welcomed Jack to the class and Mom left for work.

Ms. Finlon attempted to call the school nurse that afternoon—when things quieted down—to clarify the CIC instructions. She was finally able to talk with the nurse several days later and the RN reviewed the procedure with both Ms. Finlon and the aide and watched them perform the CIC. There were no problems with the CIC procedure during the first half of the school year. The school nurse had not come back to Jack’s classroom although she did talk with the teacher about a recurring head lice problem in the building.

In the middle of January, Jack was in the hospital for a month as a result of complications from severe pneumonia. When he finally returned to school (via the school bus), he had two notes for Ms. Finlon from his mother in his backpack. The first stated that the feeding schedule had changed and Jack would need to be fed during the school day. Jack’s mom wrote extensive instructions (and included a physician’s order) and stated that she was confident, based on the CIC experience, that the teacher and aide could handle the new procedure. She was available by phone at work if there were any questions. Neither Ms. Finlon nor the aide had personally fed through a gastro button, but they had attended a class on how it worked. Ms. Finlon tells the aide that this is now her job and to call Jack’s mother if she is concerned about the task. However, the aide refuses. Further, she refuses to continue providing CIC to Jack and says she will quit if she is asked to do any nursing jobs.

The second note in the backpack was a Do Not Resuscitate (DNR) order signed by Mom and Jack’s physician. It stated that no emergency intervention should be provided. Jack’s primary physician’s business card was attached stating that 911 should not be called. This was signed by the Mom.

This second note caused both Ms. Finlon and the aide to panic. They are not aware of any school policy regarding DNR orders. Ms. Finlon immediately called the Special Education Director and decides to ask him about both the gastro button and the DNR order.

You, as the Special Education Director, have the job of advising Ms. Finlon on the following issues:

1. How should she respond to the note from Jack’s mother regarding the gastro button feeding?

2. How should Ms. Finlon handle this DNR request?

3. What are the rights of the paraeducator in this situation and can she refuse to perform the CIC or gastro button service for Jack?

4. What are the professional and legal responsibilities of Ms. Finlon in providing health care services for children with special health care needs?

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