Tuesday, September 20, 2022

Doe v. Aberdeen School District, 42 F.4th 883 (8th Cir. 2022)

When Does Restraint and Seclusion Violate a Child’s Fourth Amendment Rights? 

When May a SPED Parent File a Federal Court Complaint Without First Exhausting Administrative Remedies under the IDEA?

   In 2018, parents of children in special education filed a complaint in federal district court against a school district, special education teacher, and other school staff, in which they claimed, among other things, that when the special education teacher restrained and secluded their children, she violated their  rights under the Fourth and Fourteenth Amendments.

    The defendants moved the court to dispose of the case on the basis that they were protected by qualified immunity against the parents’ claims, and because the parents hadn’t first exhausted their administrative remedies under the IDEA. 

    On September 20, 2021, the federal district court issued its decision granting, denying, and dismissing over forty of the parties' motions and claims, in which it ruled that the parents weren’t required to exhaust their administrative remedies under the IDEA because the most serious parts of their complaint were focused on the abuse their children suffered at school - not on denial of a free appropriate public education under the IDEA. The decision was appealed to the Eighth Circuit Court of Appeals.

   On August 1, 2022, the Eighth Circuit issued its decision. Although it rejected the parents’ Fourteenth Amendment claims, noting that the children did not have records of behaviors that placed them or others in imminent danger of serious physical harm, the court held that the special education teacher committed Fourth Amendment violations when she:

    1.  secluded a child in "the little room,"

    2.     secluded a second child with barriers in a "calm-down corner,"

    3.    forcibly held down a third child, stripped off his clothes, put  him in a bathing suit; and

    4.    grabbed the same child by his arms, pushed him into a swimming pool, and wouldn’t let him get out.

The court further held teacher wasn’t entitled to qualified immunity on these Fourth Amendment claims because she had violated the students’ clearly established federal rights when she:

    1.  curtailed the students' movement severely enough to implicate the Fourth Amendment;

    2.  substantially departed from accepted standards such that she unreasonably seized the students in contravention of their Fourth Amendment rights;

    3.  substantially departed from accepted principles when restraining and secluding the students, she violated clearly established federal rights.

    Citing its decisions holding that an authorized professional's treatment of a student with disabilities is reasonable if the professional’s actions are “not a substantial departure from accepted professional judgment, practice, or standards,” the court found that the standards in this case were "clear cut," and quoted the May 2012 U.S. Department of Education Guidance stating: “Physical restraint or seclusion should not be used except in situations where the child's behavior poses an imminent danger of serious physical harm to self or others and other interventions are ineffective and should be discontinued as soon as imminent danger of serious physical harm to self or others has dissipated. . . . Restraint or seclusion should never be used as punishment or discipline] . . . as a means of coercion or retaliation, or as a convenience.


Wednesday, December 23, 2020

Protecting Your Child's Personal and Health Data Against Identity Theft

On and after October 20, 2020, Iowa parents whose school districts had contracted with Timberline Billing Service, LLC, an Iowa-based company providing Medicaid billing services, began receiving letters from Timberline informing them that their children's data had been subject to a data breach between February 12, 2020 - March 4, 2020, when an unknown attacker had accessed Timberline’s network and exfiltrated students' personally identifiable information (PII) and personal health information (PHI) stored in its system before deploying ransomware.  On October 30, 2020, Timberline reported to the U.S. Department of Health and Human Services that the breach had affected the PII and PHI data of 116,131 students.  

The Iowa Attorney General's Office provides the following information for parents who are seeking to protect their children's PII and PHI against identity theft: 

Placing a Security Freeze on Your Credit Report or Your Child's

Credit to Protect It from Identity Theft 

Each of the three major credit reporting agencies (Equifax, Experian, and TransUnion) offers consumers the ability to place a “security freeze,” or deny access to, their credit reports. A security freeze means that your credit file cannot be shared with potential creditors. A security freeze can help prevent identity theft because businesses will not open credit accounts without first checking a consumer’s credit history. If your credit files are frozen, even someone who has your name and Social Security number probably will not be able to obtain credit in your name.  Placing a security freeze does not affect your credit score – nor does it keep you from getting your free annual credit report.

Frequently Asked Questions (FAQ)

 How much does it cost?

There is NO COST to place or lift a security freeze on your credit reports. There are no joint credit reports.  Everyone has their own, which means a couple would need to place six (6) security freezes (3 for one partner and 3 for the other partner at Equifax, Experian and TransUnion). Parents may want to consider placing security freezes on credit files for children under age 16 and assisting older children. 

How do I place a security freeze?

To place a freeze, you must make a separate request to EACH of the three credit reporting agencies. You must provide identifying information listed below. 

 Write to the addresses listed below, call using the automated system, or log online and provide the following documentation:

#1        Equifax Security Freeze
 P.O. Box 105788, Atlanta, GA 30348
To request a security freeze online, go to www.Equifax.com

 Make a request for a security freeze to the address listed above with the following:

  • Include name, current and former addresses for the last two years, Social Security number, and date of birth.
  • Copy of a utility bill, insurance or bank statement, etc., showing your name and current mailing address.
#2        Experian Security Freeze
 P.O. Box 105788, Atlanta, GA 30348
To request a security freeze online, go to www.Experian.com

Make a request for a security freeze to the address listed above with the following:

·       Include name, current and former addresses for the last two years, Social Security number, and date of birth. Enclose a copy of a government identification card, such as a driver’s license, state ID card or military ID card.

·       Copy of a utility bill, insurance or bank statement, etc., showing your name and current mailing address. 

#3        TransUnion Security Freeze
 P.O. Box 2000, Chester, PA 19022-2000
To request a security freeze online, go to www.TransUnion.com

Make a request for a security freeze to the address listed above with the following:

·       Include name, current and former addresses for the last five years, Social Security number, and date of birth.

How long will the security freeze remain on the credit report?

A security freeze will remain until you request its removal.

Can I open new credit accounts if my files are frozen?

Yes, but you have to lift the freeze to obtain a new credit card or loan. You can lift it for a period of time, you can lift it for a specific creditor, or you can lift it permanently. After you send your letter asking for the freeze, each of the credit reporting agencies will send you a Personal Identification Number (PIN). You will also get instructions on how to lift the freeze. There are a variety of ways to lift the freeze (by mail, phone, or Internet) using your PIN. There is no cost for lifting the freeze.

What will a creditor who requests my file see if it is frozen?

A creditor will see a message or a code indicating that the file is frozen.

Can a creditor get my credit score if my file is frozen?

No. A creditor who requests your file from one of the three credit reporting agencies will only get a message or a code indicating that the file is frozen.

 Will a freeze lower my credit score?


 Can an employer do a background check on me if I have a freeze on my credit file?

No. You would have to lift the freeze to allow a background check or to apply for insurance, just as you would to apply for credit. The process for lifting the freeze is described above.         

Can I order my own credit report if my file is frozen?

Yes. To obtain a FREE copy of your credit report from each of the three credit reporting agencies (Equifax, Experian, and TransUnion) once every 12 months, call toll-free 877-322-8228, or order online at www.AnnualCreditReport.com, or write to P.O. Box 105281, Atlanta, GA 30348-5281. Please note: A free copy of your credit report does not contain your credit score.           

Can anyone see my credit file if it is frozen?

Your credit report can still be released to your existing creditors or to collection agencies acting on their behalf. They can use it to review or collect on your account. Other creditors may also use your information to make offers of credit‑unless you opt-out of receiving such offers. See below for how to opt-out of pre‑approved credit offers. Government agencies may have access for collecting child support payments, taxes, or in the course of a legal proceeding. 

Does freezing my file mean that I won’t receive pre‑approved credit offers?

No. You can stop the pre‑approved credit offers by calling 888‑567‑8688 or go online at www.optoutprescreen.com. This will stop most of the offers that go through the credit reporting agencies. The opt-out is good for five years or you can make it permanent by returning the Opt-out Election Form which will be provided after you initiate your opt-out request.

Do I have to freeze my file with all three credit reporting agencies?

Yes. Different credit issuers may use different credit reporting agencies. If you want to stop your credit file from being viewed, you need a security freeze with Equifax, Experian and TransUnion.

Do I have to lift the security freeze at all three credit reporting agencies?

No. You can ask the potential creditor which credit reporting agency it is going to utilize. Then place a global lift (with a start and end date) or a specific third party lift with that credit reporting agency.

Does my partner’s credit file have to be frozen, too?  What about my children?

Yes. Everyone has their own which means a couple would need to place six (6) security freezes (3 for one partner and 3 for the other partner for Equifax, Experian and TransUnion). Parents may want to consider placing security freezes on credit files for children under age 16 and assisting older children. 

Does a security freeze guarantee that I will not be a victim of identity theft?

No. While a security freeze can help keep an identity thief from opening most new accounts in your name, it will not prevent all types of identity theft (such as; criminal, driver’s license, government benefit, insurance, medical, and Social Security). It will not protect you, for example, from an identity thief who uses your existing credit cards or other accounts. The freeze won’t be able to stop fraudulent activity that has already taken place before the security freeze was initiated. While a security freeze may not be able to protect you in these kinds of cases, it can protect you from the vast majority of identity thefts that involve opening new lines of credit.

You can get more information about identity theft by going to the Federal Trade Commission's website at: www.FTC.gov or our website at: www.IowaAttorneyGeneral.gov

If you have complaints or questions, contact our office:

Iowa Attorney General's Office

Consumer Protection Division

1305 East Walnut Street, 2nd Floor

Des Moines, Iowa 50319

Phone:  515-281-5926

Toll-free:  888-777-4590

Email: Consumer@AG.Iowa.gov

 Sample Letter for Disputing Billing Errors 


Letter sent Certified with a Return Receipt Requested

[Name of Creditor]
Attention: Disputes and Billing Inquiries
[City, State, Zip Code]

            RE: [Your Account Number]

Dear Sir or Madam:

I am writing to dispute a billing error in the amount of [$______] on my account. The amount is inaccurate because [describe the problem]. I am requesting that the error be corrected, that any finance and other charges related to the disputed amount be credited as well, and that I receive an accurate statement.

Enclosed are copies of [use this sentence to describe any information you are enclosing, like sales slips or payment records] supporting my position. Please investigate this matter and correct the billing error as soon as possible.


[Your Name]
[Your Address]

[Cell Phone & Email Address]

 Enclosures/   [List the enclosures] 

Report Identity Theft and Get a Recovery Plan 

On the Federal Trade Commission’s website:  www.IdentityTheft.gov, you can click on “Get Started” to make an identity theft report and receive a recovery plan or you can click on “or browse recovery steps”  to get information about special forms of identity theft such as income tax, child, medical and others, scroll to the bottom of the webpage.

Wednesday, March 4, 2020

Due Process Complaint Against Child’s Former School District in Iowa?

[Note:  Because I frequently receive questions from Iowa parents about whether they can file due process complaints against their children's former school districts, with the permission of the parent who sent the following question to me by email, I am publishing the question and my response.]

Q:      May I file a due process complaint against the Iowa school district in which my daughter was enrolled last year? In grades 1-2 she struggled with reading so I asked the school and AEA several times to evaluate her for special education services, and gave them copies of her long-term video EEG reports showing that absence and focal seizures (which are seldom evident to observers) occur during school hours, and explaining that they interfere with her memory and concentration. They told us that because her reading score wasn’t below “proficiency” she didn’t have an “educational disability.” We asked again in 3rd grade when her score fell below proficiency, but they still refused to evaluate her, stating that school personnel hadn't noticed seizure activity. Before the end of the year we moved to another Iowa community across the state. When we gave the new school district and AEA the same medical reports, they immediately evaluated our daughter, found that she has a reading disability and started special education services.
          The difference in our daughter is like night and day. Instead of making self-depreciating remarks when asked about school, she’s excited to talk about what she’s learning and says she’s beginning to feel “smart.” While her former teachers talked about her “poor attitude,” her new teachers talk about how bright she is and how hard she is working to catch up in math and reading.
          We want to hire a tutor to help her catch up. But we think her previous school district and AEA should pay this because we don’t think she would have needed the help if they had provided her with special education services.

A:       The IDEA statute doesn’t prohibit parents from filing a due process complaint against a former school district for denial of a free appropriate public education (FAPE). The only restriction is that parents must file their due process complaint within two years of the date they “knew or should have known” of the alleged violation, except in limited circumstances when certain equitable tolling provisions built into the statute apply.

          However, Iowa is subject to precedent-setting decisions of the Eighth Circuit Federal Court of Appeals, which has held that parents forfeit the right to challenge educational services (or the lack there of), unless the parent requests a due process hearing before the student changes school districts. See Thompson by & Through Buckhanon v. Board of the Special Sch. Dist. No. 1, 144 F.3d 574, 579 (8th Cir. 1998). In 2010, the Eighth Circuit confirmed that a student must "request a due process hearing before transferring from a delinquent district if the student wishes to preserve his or her right to challenge the educational services provided by that district." See C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 631, n.6 (8th Cir. 2010).

          The majority of decisions in cases involving this question by federal district courts outside the Eighth Circuit have concluded that when a student leaves a school district alleged to have failed to provide a FAPE, the district remains subject to a due process complaint whether or not the parent filed it before transferring the child to a new district. For example, in a Pennsylvania case in which the parents did not file the due process complaint until after transferring their child to a different school district, when the school district argued that point, the court found that in order to ensure that the student receives a FAPE, compensatory education must be available for a student who has moved from the school district after he has already been deprived of a FAPE, and further explained that otherwise "a school district could simply stop providing required services to a student with the underlying motive of inducing this student to move from the district, thus removing any future obligation under IDEA which the district may owe to the student. Such a result would frustrate the purposes of IDEA in that a student would be denied his right to a FAPE. Surely, Congress, in creating and ensuring a disabled student's right to public education, would not allow a school district to suspend the educational rights of a disabled child without a remedy." See Neshaminy Sch. Dist. v. Karla B. ex rel. Blake B., No. 96-3865, 1997 U.S. Dist. LEXIS 3849, at *13-18 (E.D. Pa. Mar. 20, 1997).

          Returning to the Iowa and other states covered by the Eighth Circuit, in the above-mentioned C.N. case, the parent filed a due process complaint after transferring her daughter, C.N., who had autism, from a public school at which the child’s special education teacher used seclusion and restraint procedures contained in C.N.'s BIP, The parent alleged that the teacher used those procedures improperly and excessively, and mistreated C.N., including yelling and shouting at her, demeaning and belittling her, pulling her hair, making her sit at a "thinking desk" and either hold a physical posture for a specified time or suffer restraint or seclusion, and once denied C.N. use of the restroom, causing an accident. A state investigation had previously found that the teacher had violated a number of C.N.’s rights as a child with a disability and had maltreated her by denying her access to the restroom. Despite these allegations and findings, the Eighth Circuit concluded that the parent’s due process complaint failed as a matter of law because she did not file it until after transferring her daughter out of the school district.  

        After reading this, you may think the the Eighth Circuit “got it wrong,” and wonder if it might modify its position. While this seems unlikely absent a decision of the U.S. Supreme Court that would require such a change, it is worth noting that in his written concurrence with the decision, one of the judges indicated that that the court might consider an exception if the facts of a case demonstrated that the continued enrollment of the child while a parent filed a due process complaint before transferring the child would likely would result in physical harm or serious emotional harm to the child. 

Wednesday, May 23, 2018

Iowa School Seclusion Incidents 2015-2016

Under Iowa law, a student is secluded when school personnel place him or her into an enclosure from which his or her egress is restricted.  According to data reported to the U.S. Department of Education Office of Civil Rights by Iowa’s 335 public school districts, during the 2015-2016 school year, 101 of those districts placed children in seclusion rooms as a form of discipline, for a total of 11,065 times.

The following ten school districts reported the highest numbers of incidents of seclusion:

Des Moines          3,051
Council Bluffs      1,106
Iowa City         786
Cedar Rapids        612
Johnston         552
Waterloo         483
Ottumwa         413
Davenport            306
Burlington        281

Wednesday, December 6, 2017

Special Education and Retaliation

“A school can do about whatever it wants to do until a parent gets a lawyer.”

- Several school and AEA administrators

I want to hire a lawyer to represent me in a special education mediation, but I’m afraid the school district will retaliate against me or my daughter. What can I do?

The best way to protect against or deal with retaliation is to engage the services of a lawyer who specializes in representing parents and children in special education law matters. You can obtain a list of special education attorneys practicing in Iowa by contacting the Iowa Department of Education, or the ASK Resource Center at (800) 450-8667 or TDD: 1(800) 735-2942.

After I have filed a request for mediation, due process, or a state complaint with the Iowa Department of Education, and served it on the school district, I have never had a parent report retaliation. The reason for this is that school districts know retaliating after a parent has engaged a lawyer would be an incredibly stupid thing to do.

Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) protect entitled individuals with disabilities against discrimination, and protect their parents when acting appropriately on their behalf to ensure their rights. Specifically, Section 504, which references Title VI of the Civil Rights Act of 1964, states that recipients of Federal funds, which would include school districts, “shall not intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by the Act, or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.”

Instead of retaliating, after school districts are served with a legal action, some “clean up their act” to avoid creating additional evidence that would support or substantiate the parent's case.

Monday, December 4, 2017

Child Find and Initial Evaluation

The Individuals with Disabilities Education Act (IDEA) includes the Child Find mandate (20 U.S.C. § 1412(a)(3)), which essentially requires schools to identify, locate and evaluate all children with disabilities, regardless of severity, including children who receive passing grades and are “advancing from grade to grade,” children who attend private schools and public schools, highly mobile children, migrant children, homeless children, and children who are wards of the state. 34 C.F.R. § 300.101; 281 I.A.C. 41.101.

Iowa’s Rules of Special Education require that a child be evaluated when the school or AEA is aware of facts and circumstances that would cause a reasonably prudent school or AEA to suspect that the child might have a disability for which the child might be eligible for special education and related services. If it is suspected that a child’s educational difficulties arise from a disability and that the child may need special education services, the AEA and school district are obligated to promptly seek parental consent to conduct a Full and Individual Initial Evaluation (FIE).

Although a school district may attempt to resolve educational difficulties before deciding to conduct a FIE, this must not delay an appropriate evaluation if the child is suspected of having a disability, regardless of the number of days, tiers, or levels in such interventions the child has completed, if any. As stated by the United States Department of Education concerning “pre-referral interventions,” the school district “in conjunction with the AEA “cannot refuse to conduct the evaluation or delay the evaluation until the alternative strategies have been tried if the school district  suspects the child has a disability.” Letter to Anonymous, 19 IDELR 498 (OSEP 1992). 
Occasionally, some school personnel do not “suspect” a child has a disability, although the parent has provided copies of the child’s diagnostic report, and symptoms of the disability are significantly interfering with the child’s functioning at school. When this problem confronted an Iowa parent, she contacted me.  With a few changes to conceal her identity and her written permission, I am posting the first parts of our initial email exchange. I was especially pleased that the parent contacted me to address this matter before her child missed further school and became more frustrated at school.  

How can we get the school to evaluate our first grade son for special education services? He was diagnosed with and has been treated for ADHD since he was three. At home we keep problems to a minimum by using a visual schedule, clearly explaining rules and checking to make sure he understands (at at time when he isn’t tired, hungry or upset), preparing him in advance for transitions, and positive reinforcement. His doctor and preschool teachers told us that punishments will backfire, so we keep them brief and to a minimum. However, punishments seem to be the only way the school deals with his symptomatic behaviors.

This year, he has been suspended four times in three months. The first time the principal had me pick him up because at recess he tried to go to the playground by crawling out a (ground floor) window. The next time he was given an in-school suspension for telling the principal, “I hate you,” after he was sent to her office for chewing his pencil after being told to stop. The next time she had me take him home because he wouldn’t stand still on the risers while rehearsing for the Thanksgiving concert. He was suspended for the rest of the day and not allowed to participate in the concert. He is currently on a day-and-a-half suspension for a “weapons violation” (at recess he was using his bare hand as a "gun" and “shooting” at other boys who were falling down very dramatically). 

I have given the principal copies of his evaluation reports from 2016 and 2017, and have provided a report from his speech therapist (he has articulation difficulties), and asked her at least seven times (in person and by email) to have him evaluated. Each time she has responded, “In Iowa we don’t like to put labels on children. While he may have ADHD, Iowa is a ‘noncategorical’ state in which special education is for children who have ‘educational disabilities,’ not medical diagnoses.” When I pointed  out that the behaviors for which he is punished at school reflect his ADHD symptoms, she responded, “Whether or not he has ADHD, he needs to learn to stop making bad choices.”

This is very frustrating. I would like to talk with his teacher, but the principal has told me that I can only communicate through her. . . .

To make a long story short, the parents and I resolved this matter through a state-facilitated mediation. The child now has an appropriate IEP and BIP, and is receiving compensatory education to make up for the class time he missed while being suspended from school. The school district’s attorney educated the principal in regard to the District’s duties under Child Find, the parents are now able to communicate as needed with their child’s classroom teacher, and some other issues were satisfactorily addressed.

Wednesday, November 22, 2017

Parents' Rights and the Procedural Safeguards Manual

Question:  Is there one piece of advice you think is important for all parents of children in special education?

Answer:  Absolutely.  Every parent should carefully read the Procedural Safeguards manual that you were given at your child’s IEP meeting. Procedural Safeguards means Parents Rights.

Congress believed that informed parents are so important that in the Individuals with Disabilities Act (IDEA), it required schools to provide this booklet to parents.

The Procedural Safeguards Manual provides a general overview of information about special education and the rights available to parents and children under the IDEA. and the Iowa Administrative Rules of Special Education. Some of the areas reviewed in the manual are:
  • Written notice to parents
  • Parental Consent
  • How to Obtain Your Child’s Records
  • Evaluations
  • School Discipline
  • What You Can Do If You Disagree with Your Child’s IEP, or What’s Happening At School
  • State Complaints, Due Process, Mediation

 Although the Procedural Safeguards Manual won’t answer every question a parent may have, it covers much of what parents most need to know.

If you have misplaced your copy, you may download a copy from the Iowa Department of Education’s website at: https://www.educateiowa.gov/pk-12/special-education/parent-information/procedural-safeguards-manual-parents-rights-children-ag-0  Downloadable copies of Iowa's Procedural Safeguards manual are available in English, and in Arabic, Bosnian, Loatian, Serbo-Croatian, Spanish and Vietnamese.