SPECIAL EDUCATION AND THE LAW



SPECIAL EDUCATION AND THE LAW

EDLPS 516/EDSPE 504

Winter 2010

Mid-Term Case Scenarios

There are two midterm questions. PLEASE ANSWER ONE QUESTION. We will discuss both during class on February 18. 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.

← Refer to statutes and regulations that are relevant to your conclusions but citations to specific statutory and regulatory sections are NOT REQUIRED.

← 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.

← DUE DATE: Please bring a hardcopy to class on February 11.

QUESTION #1

Adam Brozer is a 12 year old middle 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 as it interfered with his learning. At that time, the school district recommended that Adam be placed in a special center in another school district in order to appropriately implement behavior intervention strategies outlined on the IEP. The parents initially resisted and argued for placement in their neighborhood elementary school, but then acquiesced to the school district's proposal. That program ran for the last 2 years of Adam's elementary schooling. Adam received B and C grades and his behavior deteriorated badly with increasing periods of violence and disruption.

In the spring of 5th grade the school district called a meeting to discuss the move to middle school and stated 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 as it was the “transition site” for the elementary program that Adam had been attending. The school was pleased with his academic performance (B and C) but agreed that the behavioral control was not improving.

The parents were very resistant because that would largely be a continuation of the school's proposal that had failed for two years to reduce the problem behaviors and because the school district was apparently still unwilling to consider placement in their own district. The parents insisted on a program in their neighborhood middle school. The school district finally agreed but stated that it did not have adequate support services at that site. The school offered social work counseling and disciplinary sanctions of detentions and solitary lunches when the behaviors were disruptive. The IEP was written to reflect these services and Adam started the neighborhood middle school.

The middle school experience was tough. Adam's academic performance and his behavior deteriorated and he spent a lot of time in detention and eating alone; he was miserable and didn’t have friends. The Brozers requested that the school conduct a new evaluation which they agree to do. That evaluation did not reveal anything new from the initial evaluation. The family got an independent evaluation that concluded that the main issue is that Adam has a learning disability and that he is also severely depressed. The parents blame the inadequate public school programming for their son’s inappropriate behaviors and poor academic performance. They continue to think all services can be provided on a regular school campus, preferably his neighborhood school but also that the school has missed the boat by not evaluating him for learning disabilities. The school district considers Adam behaviorally disordered as a result of their evaluations and deny that he is eligible for services based on the learning disability. However, they agree that he has slipped far behind in academic achievement and that they will need to provide interventions to help him catch up. They maintain that the only placement that will provide the support he needs is a separate program with other behaviorally disordered students. The parents adamantly refuse this and request 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:

Spring Lake School District has recently experienced severe budget cuts and 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 returned 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 due to 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 the MD’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 questions. Neither Ms. Finlon nor the aide had personally fed through a gastro button, but had attended a class on how it worked. Ms. Finlon told the aide that this is now her job and to call Jack’s mother if she is concerned about it. However, the aide refuses. She also refuses to continue providing CIC to Jack stating that she will quit if asked to do any nursing jobs.

The second note was a Do Not Resuscitate (DNR) order signed by Jack’s parents and physicians. Both the DNR order and note stated that no emergency intervention should be provided. The primary MD’s card was attached also stating 911 should not be called.

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 DNR order.

You are the Special Education Director. Please advise Ms. Finlon on these issues:

1. How should she respond to the mother’s note 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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