Special Education Leadership Network November 10, 2011

1. Special Education Leadership NetworkNovember 10, 2011

2. Cell Phones, Marijuana, 504 Jim Walsh

3. Background Glendle Cain transferred into Owensboro H.S. “subject to the recommendation of the school Principal and the approval of the Superintendent.” Glendle is a high school student in general education.

4. Problems February, 2008: Glendle confides in the assistant principal and counselor. Feeling a lot of pressure over football and school. Smoking pot. Has a suicide plan.

5. School Responds School officials talk to the parents about all this, and recommend an evaluation by an outside agency. No mention of special ed or 504. But in August, 2008, Glendle begins meeting with the school’s “Prevention Coordinator.”

6. We Learn More Glendle informs the Prevention Coordinator that he is now using pot weekly. P.C. sends parents a list of drug treatment facilities. No mention of 504 or special ed.

7. Discipline Problems 11-17-08: Fighting in the locker room. 1-6-09: Cell phone violation. 3-5-09: Leaves school w/o permission, cell phone and tobacco violations. A.P. recommended an evaluation by a mental health professional.

8. Next School Year? As of the end of the 2008-09 school year, the principal recommended that Glendle not return. Superintendent gave him “one more chance.” Remember: he is a transfer student and transfer can be revoked.

9. Final Straw 9-2-09: another cell phone violation after which Glendle “threw a fit.” Superintendent revokes transfer. No hearing. No referral for 504/IDEA services.

10. The Lawsuit Student sues district, the superintendent, the principal, and two assistants. Originally the suit claimed violations of 1st, 4th and 14th Amendments. Later, they added a claim under 504.

11. 14th Amendment Court concluded that student still lived outside of district, though this was much contested. As transfer student, he did not have a “property interest” in attending Owensboro H.S. No property interest = no process is due. Student not entitled to a hearing.

12. 4th Amendment Court concluded the administrators had “reasonable suspicion” sufficient to search the cell phone. “Considering Cain’s cell phone violation and his unauthorized leaving of the school building in light of his previous disciplinary history, drug use and expressions of suicidal thoughts, reasonable grounds existed…..”

13. A Limited Search “School officials did not search Cain’s entire cell phone, but only read the text messages on the day the cell phone was taken. These limited searches of the cell phone were no more intrusive than necessary to [determine] whether Cain was a danger to himself or others or whether Cain was violating either the law or the rules of the school.”

14. 1st Amendment The argument was that reading the text messages on the cell phone violated the student’s right to free speech. Student cited no legal authority in support of this argument. Court noted student was not punished for the content of text messages, but for using cell phone in violation of rules.

15. 504 No child find violation here. School officials acted on the basis of his drug use—not any suspicion of a disability. Court noted that 504 excludes protections for students engaged in illegal drug use “when there is no evidence of any other handicapping condition.”

16. Furthermore….. 504 claims require proof of bad faith or gross misjudgment. No evidence of that. “Failure to timely assess and diagnose a student’s disability alone is not evidence of bad faith or gross misjudgment.”

17. Take Note School officials shared sensitive information with each other. School did address the drug use and suicidal thoughts through non-special ed interventions. There was no evidence of school-related problems other than due to drug use and disciplinary infractions.

18. The Case Cain v. Owensboro Public Schools U.S. District Court, Western District of Kentucky 111 LRP 69470 November 4, 2011

19. Contact JIM WALSH Walsh, Anderson, Brown, Gallegos and Green, P.C. P.O. Box 2156 Austin, TX 78768-2156 Phone: 512/454.6864 Fax: 512/467.9318 Email: jwalsh@wabsa.com Web: www.WalshAnderson.com

20. The information in this handout was created by Walsh, Anderson, Brown, Gallegos and Green, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.

21. Serving Children with Disabilities Placed by Their Parents in Private Schools

22. New topics • Location of Services and Transportation • Property, Equipment, and Supplies • Out-of-State Children with Disabilities • Home-School Children with Disabilities • Children in For-Profit Private Schools NEW

23. Location of services And transportation

24. Location Part B regulations states that services to parentally placed private school children with disabilities may be provided on the premises of private, including religious, schools to the “extent consistent with law.” Under Dept. of Ed. This means that the provision of services must take place in a manner that does not violate the First Amendment of the US Constitution and applicable State constitutions. Unless there is a compelling rationale for these services to be provided off-site, the district should provide services on-site at the child’s private school Location of services is one of the subjects that must be discussed during the consultation process. After consultation and giving due consideration to the views of the private school officials, the district makes the final decision.

25. Transportation If necessary for the child to benefit from or participate in the services provided under the private school provisions, a district must provide transportation from the child’s school or the child’s home to a site other than the private school; and from the service site to the private school or the child’s home depending on timing of the services. The district is not required to provide transportation from the child’s home to the private school. A district may include the cost of the transportation in calculating whether it has spent the proportionate share of funds on providing services.

26. Property, equipment and supplies

27. Property, Equipment, and supplies The district may place equipment and supplies in a private school, but only for the period of time needed to meet the equitable participation requirements. The district must ensure that equipment and supplies placed in the private school are used only for Part B purposes and can be removed from the private school without remodeling the private school facility. The district must remove the equipment and supplies when they are no longer needed or if removal is necessary to avoid unauthorized use of the equipment and supplies. Part B funds for equitable services may not be used for repairs, minor remodeling, or construction.

28. Out-of-state Children with disabilities

29. The district where the private school is located has the responsibility for child find activities in each of the private, including religious, schools within its jurisdiction. It doesn’t matter in what State or district the child resides. Parental consent must be obtained before any personally identifiable information about the child is released between the district officials. Children from out-of-state that are eligible for sped and related services under IDEA are eligible for proportionate share and must be included in the group of children with disabilities whose needs are considered in determining which student will be served and the types and amounts of services to be provided.

30. Home Schooled Children with disabilities

31. Home schools Generally, the district where the child resides is responsible for conducting child find activities, including initial evaluations and reevaluations, for children who are homeschooled. Whether home-schooled children with disabilities are considered parentally placed private school children with disabilities is determined under state law. The State of Texas recognizes home-schools as private elementary and secondary schools, therefore, children with disabilities in home-schools must be treated in the same way as other parentally placed private school children with disabilities. In Texas a local public school could allow a child to participate in classes. The policy on this matter is established by the locally elected school board. At this time, a local public school could allow your child to play in the band or other such activities. The policy on this matter is established by the locally elected school board. However, the student would not be allowed to participate in events sponsored by the University Interscholastic League (UIL), such as athletic competitions or band and choir contests, because of a UIL rule requiring all participants to be full-time students enrolled in public schools.

32. for-profit private schools

33. FOR-PROFIT PRIVATE SCHOOLS • Not included in proportionate share calculations • District is responsible for child find activities The regulations define parentally placed private school children with disabilities as children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary school or secondary school. The definitions of elementary and secondary school specify that the school must be nonprofit. Would not be The school must be non-profit before it can be included in the proportionate share calculation or be eligible for equitable services.

34. LEA’s Responsibilities • Locating • Identifying • Evaluating However, the state must ensure that all children with disabilities who are in need of special education and related services are identified, located, and evaluated. Generally, the district responsible for this is the district in which the child resides. Who are you? Where are you? Let’s test

35. peims PARENTALLY PLACED PRIVATE SCHOOL STUDENTS WITH DISABILITIES States must collect and report data annually on students with disabilities. Districts are required to provide to the state information related to parentally-placed private school children covered under 34 CFR §§300.130-144.

36. PEIMS CODE Student Attribution Code of 12 – Private School Student is a student with a disability enrolled by their parent(s) in a private school (including a home school) but who receives special education and/or related services from the public school district under an individualized services plan (ISP) These parentally-placed private school children are coded on the 101 STUDENT DATA-DEMOGRAPHIC record E1000 This has been inexistence for several years however, districts have not been coding these student correctly for the fall PEIMS snapshot.

37. Who is reported Districts are required to report on parentally-placed private school children with disabilities ages 3-21 who receive special education and/or related services from the public school district under an individualized services plan (ISP). Dually enrolled students ages 3-4 must not be included in this count. These students are considered enrolled as public school students in the district receiving SPED services in a specific setting and should not be reported as private school students. However, students ages 3-4, whose parents declined dual enrollment and who receive SPED and/or related services from the public school district under an ISP must be included in this count. Private Public Age 3-21 Age 3-4 Age 3-4

38. State resources TEA Frequently Asked Questions http://www.tea.state.tx.us/index2.aspx?id=2147492118 TEA Proportionate Share Calculations http://ritter.tea.state.tx.us/special.ed/private/propshare.pdf PEIMS Guidance on Parentally Placed Private School Students with Disabilities http://ritter.tea.state.tx.us/special.ed/guidance/peimspriv.html Commissioner’s Rules http://ritter.tea.state.tx.us/rules/tac/chapter089/ch089aa.html

39. National resources Children Enrolled by Their Parents in Private Schools http://idea.ed.gov/explore/view/p/,root,dynamic,TopicalBrief,5, OSEP Q and A – revised April 2011 http://idea.ed.gov/explore/view/p/,root,dynamic,QaCorner,1, Building the Legacy: IDEA 2004 Children Enrolled by their Parents in Private Schools – This site includes a video clip and a training module http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CTopicalArea%2C5%2C

40. ACCOMMODATIONS update

41. ACCOMMODATIONS update 1 2 3 4

42. 1 2 3 4

43. different 1 2 3 4

44. Disability 1 2 3 4

45. “special needs and disabilities” -2010-2011 Accommodations Manual

46. a student with an identified disability who receives special education services and meets established eligibility criteria for certain accommodations (ARD committee decision) • a student with an identified disability who receives Section 504 services and meets established eligibility criteria for certain accommodations (Section 504 placement committee decision) • a student with a disabling condition who does not receive special education or Section 504 services but meets established eligibility criteria for certain accommodations (campus level team decision)

47. triangle 1 2 3 4

49. optional 1 2 3 4