Category Archives: Dawg Bones

Dawg Bones

Toolbox Tuesday: Counseling. Special Ed Counseling. Is there a difference?

On Tuesdays around here we like to put the spotlight on The Toolbox.  This is a full day training program that our firm provides, focusing on the more challenging behaviors we sometimes see from kids with disabilities.

In the Toolbox training we talk a lot about BIPs and other means of encouraging appropriate student behavior. Often, this involves counseling. And that leads to today’s topic: Is there a difference between “counseling” and “special ed counseling”?

Looking into this recently, I discovered that our laws never use the term “special education counseling.”  However, our laws do refer to two different types of counseling: there is “counseling” and then there is “counseling as a related service.”  I expect when people refer to “special ed counseling” they are referring to “counseling as a related service.”

Counseling as a related service is available under federal law (IDEA) just as any other “related service.”  That means that the services are “required to assist a child with a disability to benefit from special education.”  34 CFR 300.34(a).

But students with a disability can also receive general counseling.  Consider a student with a disability who is pregnant.  Our state laws authorize counseling for that student.  She does not need counseling to benefit from instructional services. She needs counseling to cope with this new and scary reality in her life.  The same might be true for a student whose parents are getting divorced, or the student whose father just got incarcerated.

Take a look at your local policy.  Many of you have adopted a version of EJ Local that authorizes counseling to deal with school attitudes, self-confidence, healthy relationships, life satisfaction and other worthy objectives.  None of these are directly tied to a need to benefit from the special education instruction services offered by the school.

So the ARDC should decide if counseling is needed in order to benefit from the special education services. If so, the IEP should reflect that the student will receive “counseling as a related service.”  That also means that the IEP should specify the frequency, duration and location of services.   But whether “counseling as a related service” is needed or not, the student remains eligible for general ed counseling services, just like any other student.

DAWG BONE: AS USUAL, IT COMES DOWN TO THE ARD COMMITTEE’S CALL.

File this one under: SPECIAL EDUCATION

Tomorrow: Can the middle school have a Gay-Straight Alliance club?

Dawg Bones

Big verdict vs. Keller ISD tossed out

In October, 2013, a jury awarded the Rideau family $1,000,000 in damages.  Keller ISD was ordered to pay that amount to compensate for injuries to a student with a disability and his parents.  But since that time, that big jury award has been whittled down, and now it has been wiped off the books altogether.

The case has a complicated procedural history, but the main point for today is that the court concluded that the evidence the jury heard was not sufficient for them to reach the verdict that they reached.  Some of you may be wondering: can a judge do that?  Can a judge set aside a jury verdict because the judge thinks the evidence was lacking, even though the jury does not?  The answer is yes. Judges can do that, and in this case, the judge did that.

The school district’s argument was that the evidence simply did not show “deliberate indifference.” This is a case in which a teacher was accused of mistreatment of a student with a disability.  The court did not dispute the fact that the teacher mistreated the student. But that fact is not enough to impose liability on the school district. The jury has to have evidence to show that the school knew what was happening and responded with “deliberate indifference.”  After recounting how the various administrators responded to the information they received, the court concluded that “the jury did not have a legally sufficient evidentiary basis to find that Keller was deliberately indifferent.”

“Deliberate indifference” is very hard to prove.   As the court’s opinion in this case points out, you can be “inept” and yet not be “deliberately indifferent.”  Despite that reality, administrators should remember that documentation of what you knew, when you knew it, and what you did about it is the key to showing that you were neither “inept” nor “deliberately indifferent.”

While the standard for avoiding legal liability is low (avoiding “deliberate indifference”) the standard for educator accountability should be high.  If a teacher mistreats a student, the first thing for the school administration to do is to hold the teacher accountable through appropriate consequences.  Let the lawyers worry about the legal standards for liability if it should come to that. Focus on student safety and teacher professionalism…and set a high bar for that.

The case is Plainscapital Bank v. Keller ISD, decided by the U.S. District Court for the Northern District of Texas on November 29, 2016.  We found it at 116 LRP 49954.

DAWG BONE:  WHAT DID YOU KNOW? WHEN DID YOU KNOW IT? WHAT DID YOU DO ABOUT IT?

 File this one under: LIABILITY

Tomorrow: have you ever wondered about the distinction between “counseling” and “special ed counseling”?

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.