All posts by Jim Walsh

Dawg Bones

Dear Dawg: I’m a bus driver. I’ve got 57 kids on my bus. I’ve got notes for 34 of them that they have to sit in the front row. What do I do—stack them up?

I got this real question from a bus driver one day many years ago, and was completely stumped.  Hmmm—I don’t know what you do in a case like that.  The question made me realize what practical problems bus drivers encounter.  I suppose that if you have 34 out of 57 kids who are supposed to sit up front you have a glitch in your system.  We can’t be making promises that we can’t keep.

Bus drivers play a crucial role.  They are Ambassadors of First Impressions.  While their primary responsibility is to transport the kids safely, they also set the tone for the school day.  A warm and personal greeting by the bus driver starts the day off well.

Unless you have an aide on the bus, the driver is left alone, the only adult supervising a large number of kids.  That’s a very tough job.  One thing you should be sure about is that the bus driver has adequate information about any special needs or concerns involving the students.

Can confidential information be shared with the bus driver?  Yes.  Take a look at your Policy FL Local. This is where your district has defined the terms “school officials” and “legitimate educational interest.”  Under FERPA, you can share information from educational records with a “school official” who has a “legitimate educational interest.”  The typical FL Local adopted by most districts defines “school official” broadly enough to cover all school employees; and “legitimate educational interest” means, among other things, that the employee is working with a student.

Bus drivers will meet that definition. They are responsible for safety and order on the bus. They are responsible for preventing acts of bullying or harassment. To do their jobs well, they may need to know some things about some of the students. For example: does Amber have a behavior plan that the driver needs to know about? Does Carlos have special medical conditions that might be important?

Of course there is a lot of information about students that the bus driver does not have a “legitimate educational interest” in.  The driver does not need to know who is on the honor roll, who just flunked the math test, or who got sent to the principal’s office today.  The driver does not need to  know who is in a special ed or 504 program, unless there are implications for the time on the bus.  So the transportation director and the principal should come up with some guidelines for the type of information that should be shared.

Drivers also need to have some training on FERPA, particularly to make sure they understand the duty to maintain confidentiality.

We can help with this. If you have a need for training of your bus drivers on some of these issues, or help with coming up with a protocol for the sharing of information, give us a call at the law firm.

Just don’t ask me what to do with those 34 kids.

DAWG BONE: GOD BLESS THE BUS DRIVERS OF THE WORLD.

File this one under: CONFIDENTIALITY

 

Dawg Bones

What to do when parent requests a specific reading program.

Parents are entitled to “meaningful participation” in the ARDC process, and have a voice in every component of a student’s IEP.  So when a parent is enthused about a specific reading program, and wants the district to use it, the other members of the ARDC should listen, and ask some good questions.  What about this program sounds good?  Why does the parent believe that it will be beneficial? Does the parent have personal experience with this program?  What has the parent read about it?

Members of the Committee should ask other questions as well: What does the research tell us about this program?  Have we used it before? Is it similar to programs we already use?

Notice that when you are discussing what reading program to use, you are not talking about the child’s present levels of performance, the annual goal, short term objectives, performance criteria or measuring stick.  In other words, you are not talking about the things that the law requires in an IEP. You are talking about a teaching methodology, and the general rule is that the educators decide on methodology.

However, when it comes to legal issues and choice of methodology, there are two mistakes that schools sometimes make. The first mistake is to not listen, not take the parent’s preference into account.  That might be viewed as denying meaningful participation. The second mistake is to specifically include in the IEP the method that the parent requested, and then not use it.  That might be viewed as a material failure to implement the IEP.

That’s what happened in a recent case from Maine.  The court held that the district unilaterally decided not to provide the specific reading program that was called for in the IEP. The court held that this was a material failure to implement the IEP, even though the student made progress with the method that the district used. The district argued that this was a methodology dispute and the parent does not get to dictate the method. The court agreed with that general proposition, but noted that in this case the specific reading program was incorporated into the IEP. The program was SPIRE: Specialized Program Individualizing Reading Excellence.

The case is Ms. M. v. Falmouth School Department, decided by the federal district court for the State of Maine on May 31, 2016.  We found it at 67 IDELR 265.

DAWG BONE: IF YOU SPECIFY A METHOD IN THE IEP….USE THAT METHOD!!

File this one under: SPECIAL EDUCATION

Tomorrow: The Bus Driver Blues

Dawg Bones

DOE Listening Sessions Focus on T.E.A.

There continues to be a lot of controversy over the drop in the number of kids in Texas who are receiving special education services.  As most of you know, the Houston Chronicle has brought attention to this issue through a series of articles that accuse T.E.A. of intentionally keeping needy kids out of our special education programs.  In December, the Department of Education conducted five “listening sessions” across the state to get public input about this and other issues.

So let’s start off this year with an effort to be clear about this.  Nobody at T.E.A. can dictate who gets into your special education program.  Decisions about eligibility are made on a case by case basis, ARD meeting by ARD meeting, based on the evaluation information that the ARD Committee reviews.

It would be a good idea for you to examine what has happened to the numbers in your district over the past several years.  T.E.A. has had in place for over a decade an “indicator” in the PBMAS system that placed your district in certain categories based on the percentage of kids you serve in special education. Many people assert that this indicator has had the effect of lowering the percentage of kids we serve.  No doubt that’s true.  But there are other factors at work as well.

So we think you would be wise to take a look at what’s happened in your district.  If the numbers in special education in your district have gone down because you have found other programs and services that are serving students well, then good for you.  But if the numbers have gone down because someone in your district thinks that the PBMAS standard is more important than appropriate services for each kid, you are missing the mark.  No T.E.A. guideline should ever stand in the way of an appropriate education.

DAWG BONE: IF YOU ARE CONSIDERING ELIGIBILITY OF A STUDENT, LET THAT DECISION BE BASED EXCLUSIVELY ON THE EVALUATION DATA, THE NEEDS OF THE STUDENT AND THE LEGAL STANDARDS FOR ELIGIBILITY.  LET THE PBMAS NUMBERS FALL WHERE THEY MAY.

Tomorrow: parent wants us to commit to specific reading program. What do we do?

Dawg Bones

Welcome to 2017!

Welcome back, Readers!  I hope you had a restful and enjoyable break, and are ready to tackle the challenges of the new year with enthusiasm.  2017 promises to be a doozy.  We have the legislature coming to town, a broken school finance system, a new president on the way with a Secretary of Education who favors charter schools and wide open choice more than traditional schools.  Supporters of public education have their work cut out for them.

Here at Daily Dawg HQ, as we enter our third year of daily blogging, we will continue to seek to serve our mission: helping the people who help the kids, by providing timely, relevant, practical and easily understood information about legal issues.   I’ll keep writing. I thank you for keeping reading.

DAWG BONE: LET’S MAKE THIS A GREAT YEAR.  

By the way, I am doing an audio conference on special education discipline next Wednesday, January 11.  This will be from 10 to noon.  I hope to provide good, practical information, much of it drawn from our firm’s Toolbox workshop.  So sign up!  Go to www.walshgallegos.com. 

 Tomorrow: Are your special ed numbers going down?

Dawg Bones

Merry Christmas! Happy Hannukah!! Have a Great Break!!!

The Dawg is outta here for a while, and I expect you are too.  As the calendar year ends, let me say a big THANK YOU for subscribing to this blog.  We hope we are providing content that is not too much, not too little, and helpful to you in doing your work.  Have a restful and blessed holiday.  See you next year.  The Daily Dawg returns on January 3.

DAWG BONE: HO! HO!! HO!!!

Dawg Bones

Bulletin: DAD Bites Kid

Jeff was a very good service dog. He was certified as a DAD—Diabetic Alert Dog—and he came to school each day with a little boy identified in the case as A.P.  Jeff was trained to alert when the boy’s blood sugar level needed attention.

Jeff started coming to school in February, 2015, when the boy was in 2nd grade.  Jeff was a regular at the school for the rest of that year, and most of the next.  But on March 23, 2016, something happened, and the district expelled Jeff for misconduct.

The kids were sitting in the hallway that morning on either side of the hall just before classes began in the morning. Jeff was tethered to A.P.  When a 3rd grader ran down the hall and attempted to leap over Jeff, the dog “lunged, snapped, and bit” the student.  The bite went all the way through the jeans and punctured the skin.

The parents, who had paid $15,000 for Jeff, sued the school, claiming that the exclusion of the dog was a violation of the ADA and Section 504.  Initially the parents sought an injunction to allow Jeff to continue to accompany the boy at school. The court denied the injunction, noting that the evidence showed that the dog presented a direct threat.  Key Quote:

This is not a case in which the District denied the use of a service dog as a reasonable accommodation because of unfounded assumptions about the service animal. Rather, the District appropriately excluded this particular service animal under the explicit provisions of the implementing regulations, based on the known and observed inappropriate actions of this particular service animal—biting a student in school.

 

The case is A.P. v. Pennsbury School District, decided by the U.S. District Court for the Eastern District of Pennsylvania on August 26, 2016.  We found it at 68 IDELR 132.

 DAWG BONE: IF THE SERVICE DOG BITES, HE GOES TO THE DOGHOUSE!

File this one under: ADA/504

Dawg Bones

How long should a special education hearing take?

Not as long as the one in Missoula County, Montana.  The court tells us that the hearing lasted 15 days, involved 30 witnesses and 176 exhibits.  The hearing officer rendered a 60-page decision, which is way longer than most Supreme Court decisions.

It just shouldn’t take that long.  Our hearing officers in Texas do a good job of conducting hearings in an orderly and fairly efficient manner. But cases like this show how the system can get out of control.

The case is J.K. and J.C. v. Missoula County Public Schools, 68 IDELR 68 (D. Mont. 2016).

DAWG BONE: WATCH FOR CHANGES IN THE DUE PROCESS SYSTEM WHEN CONGRESS RE-AUTHORIZES IDEA.

File this one under: SPECIAL EDUCATION

Note to readers: I am aware that many of you are headed home for a few weeks.  The Daily Dawg will be published on Monday and Tuesday of next week for the benefit of you stalwarts still  manning or womanning your post.  Then we will also take a break, to return on January 3rd. 

Dawg Bones

Watched Ferris Bueller’s Day Off Lately?

As your holiday break approaches, we just want to put in a plug, especially for all of you overworked, underappreciated principals and assistant principals.  Take some time over the break to watch Ferris Bueller’s Day Off.  Now that you have become Ed Rooney, does the movie seem as funny as it once did?  I didn’t think so.

Right thinking Americans have long known that Ferris Bueller’s Day Off is the most subversive piece of film making Hollywood has produced in the last 50 years.  Rooney was right about Bueller.  You, too, are right about a lot of things. Keep the faith.

DAWG BONE: AS ROONEY WOULD PUT IT: “I DID NOT ACHIEVE THIS POSITION IN LIFE BY HAVING SOME SNOT-NOSED PUNK LEAVE MY CHEESE OUT IN THE WIND.” WORDS TO LIVE BY.

Dawg Bones

If the board had its mind made up ahead of time, there may be a problem

Mr. Falash claims that he was wrongfully terminated by Inspire Academics, an online charter school. The board gave Mr. Falash a hearing, but Mr. Falash claims that his firing was a done deal beforehand, and thus the hearing was mere “window dressing.”   According to the federal court in Idaho, Mr. Falash may have a good case.

The issue here is procedural due process.  Mr. Falash had a property right in continued employment with Inspire, and thus, he was entitled to “due process” before that right could be taken from him. Inspire claimed in the lawsuit that it provided due process by giving him that hearing before the board. The problem, however, was that Inspire produced written documentation prior to the board hearing that spoke of his termination in the past tense.  Consider this:

Your termination was related to your performance and complaints received regarding your behavior.

Hmmm. That sure sounds like the guy is already gone. Key Quote:

…where a board of representatives has predetermined the outcome of a due process hearing, there may be a denial of due process.

A hearing does not comport with due process if it “is totally devoid of a meaningful opportunity to be heard” because the decision-makers have predetermined the outcome of the hearing.

The court held that there was enough evidence of predetermination that it could not simply toss the case out of court. Mr. Falash will have his day in court.

The case is Falash v. Inspire Academics, Inc. decided by the federal court in Idaho on September 12, 2016. We found it at 68 IDELR 163.

DAWG BONE: BOARD MEMBERS MUST HAVE AN OPEN MIND WHEN HEARING A TERMINATION CASE

 File this one under: DUE PROCESS     LABOR AND EMPLOYMENT

Dawg Bones

It’s Toolbox Tuesday!! Let’s talk about physical restraint

The Toolbox is an all day training program highlighting ten “tools” available to school staff when addressing difficult, disruptive or even violent behavior from students with disabilities. One thing we talk about quite a bit is physical restraint.  A recent court case from the District of Columbia serves as a good reminder of how important it is to follow proper protocol when restraint is necessary.

In the case, the court held that the district’s use of physical restraint denied a FAPE (Free Appropriate Public Education) to the student.

Was that because restraint was used too often?  No.

Was it because restraint was used in non-emergency situations?  No.

Was it because the student was physically injured as a result of the restraint?  No.

Was it because of the instructional time the student missed out on when restrained?  No.

It was because the district did not comply with district policy.  The district did not call for an IEP Team meeting after each of the six incidents when restraint was used.  By not calling for that meeting, the district violated D.C. policy. The court held that this had the effect of preventing the parent from engaging in meaningful participation in the child’s education.

Let’s compare the D.C. protocol with ours in Texas.  They are virtually identical with respect to when restraint can be used and how long it is to last.  They are very similar, but not identical, with regard to parental notification:

District of Columbia
Verbal notice to parent within one hour
Written notice within one day
IEP Team meeting within 5 days
Meeting must include everyone involved		 Texas
Good faith effort to notify parent that day
Written notice within one day
ARD to consider each incident when it meets

Notice the key difference—D.C. requires a meeting after each incident, with all of the people who were involved to be present at the meeting.  Texas requires documentation of the incident to be placed in the child’s special education folder so that it can be discussed at the next ARD meeting. But Texas does not require a special meeting, nor does it require the attendance at the meeting of everyone involved in the restraint episode.

My point is not to suggest that one set of regs is better than the others.  The point is to be sure that you comply with whatever your regulations are. As this case shows us, failure to comply with applicable regulations can have serious consequences.

The case is also an important reminder of how controversial physical restraint is.  In the Toolbox training, we discuss the pros and cons of addressing this issue in a student’s BIP, and the importance of being very clear with parents about how, when and why physical restraint might be used.

The case is Beckwith v. District of Columbia, decided by the federal court for the District of Columbia on June 27, 2016. We found it at 68 IDELR 155. The court’s decision is very short, affirming a magistrate’s recommendation that can be found at 116 LRP 40087.

DAWG BONE: IF YOU HAVE TO USE PHYSICAL RESTRAINT, BE SURE TO DOT YOUR I’s AND CROSS YOUR T’s. 

 File this one under: SPECIAL EDUCATION DISCIPLINE