Category Archives: Dawg Bones

Dawg Bones

Parents Accuse District of Medicaid Fraud

Sometimes a dispute over special education can blow up into something bigger.  That’s what happened in Houston ISD, culminating in a lawsuit alleging that the district was falsifying claims to Medicaid, thereby engaging in fraud.  Parents of students with disabilities alleged in the suit that the district was tailoring special education services in a way designed to maximize Medicaid billing, thereby defrauding the government.

The court tossed the suit out, dismissing it “with prejudice.” This means the plaintiffs do not have the opportunity to amend their complaint and try again.  The problem, according to the court, was that the plaintiffs did not provide enough specifics in their suit. This was a False Claims Act case (FCA), which is a whistleblower-type statute. Under the FCA a citizen who reports fraud by a government contractor, such as a school district, can file a private lawsuit.  If successful, the plaintiff can recover a portion of any money damages awarded by the court.

The FCA requires the plaintiff to be very specific about what kind of fraud was committed, who did it, how they did it, and when they did it. In this case, the plaintiffs did not name anyone specifically, provided only a broad range of dates, and failed to provide specifics as to what fraudulent Medicaid bills were submitted.  Thus the case was dismissed.

Nevertheless, this is a good reminder of the importance of careful practices with regard to Medicaid billing. This will not be the last time a district is accused of defrauding the federal government. The case is Gregory G. v. Houston ISD, decided by the federal court for the Southern District of Texas on September 30, 2016.  You can find it at 2016 WL 5661701.

DAWG BONE: MAKE SURE YOUR MEDICAID BILLING PRACTICES ARE IN FULL COMPLIANCE WITH THE LAW.

File this one under: LIABILITY

Tomorrow: Toolbox Tuesday!!

Dawg Bones

Guess what, Dawg? We are 0-7. Can we fire the coach NOW????

I’m not sure why you keep asking if you can fire the coach. Of course you can fire the coach.  A lawyer can never stand in the way of you doing what you want to do. It’s just that we feel that it’s important that we point out that certain actions carry risk.  Firing a coach solely because of a losing record happens routinely in pro and college football.  In high school, there are risks. Coaches are also teachers and they have contracts.  Termination of contract is a big deal, requiring proof of good cause. Nonrenewing the contract at the end of the year is a bit easier, but even then you need some evidence other than the losing record.

Maybe there are other reasons for your team losing every game. Did you ever think of that?  Maybe there are no good football players in your town.  Maybe Knute Rockne, Vince Lombardi, Tom Landry and Erik Taylor would all flop in your school because nobody is very good at football.

We don’t know. We’re just hear to remind you that these things can be risky.  Good luck tonight.

DAWG BONE: THIS GUY IS GETTING TIRESOME.  WHEN DOES BASKETBALL SEASON START?

Dawg Bones

The votes are in!! Dawg’s Presidential Poll Results!

I concluded my annual Back to School tour last week.  This year we went to 11 regions of the state, presenting the program in Austin, Fort Worth, Kilgore, Mt. Pleasant, Midland, Houston, San Antonio, Lubbock, Wichita Falls, Corpus Christi and Richardson. We always like to have some fun along the way by taking an opinion poll of the participants. This year’s poll question was a no-brainer: who ya gonna vote for?

Giving people just two options in the vote would be boring. Besides that, we read the newspapers and are well aware of the fact that a lot of people this year are dissatisfied with both of the major party candidates. So our ballot provided six options:

1. I WILL VOTE FOR HILLARY

2. I WILL VOTE FOR DONALD

3. I WILL VOTE FOR HILLARY, BUT MOSTLY BECAUSE OF DONALD

4. I WILL VOTE FOR DONALD, BUT MOSTLY BECAUSE OF HILLARY

5. I WILL VOTE FOR SOMEONE ELSE

6. I WILL NOT VOTE

The results:

REGION 13 (Austin): The People’s Republic of Austin showed its liberal roots by supporting Mrs. Clinton 31-17. The biggest single category of votes was a simple “for Hillary”—19 of those.  Then she had 12 who were voting anti-Trump, which gave her the total of 31.  This was our first stop on the tour. As we traveled elsewhere, Hillary’s lead evaporated quickly.

REGION 11 (Ft. Worth): Cowtown went for The Donald, but it was pretty close: 49-41.  This is where the overall trend first showed up—there were more “anti-Hillary” votes than anything else.  36 of Trump’s 49 supporters were more anti-Hillary than pro-Donald.   Hillary’s unpopularity in Texas became more pronounced as we headed east.

REGION 7 (Kilgore):  Our friends behind the Pine Cone Curtain voted strongly for Trump—39-15.  There were 37 “anti” votes and only 17 “for” someone.  Of the 37 “antis” 29 of them were anti-Mrs. Clinton.

REGION 8 (Mt. Pleasant/Pittsburg):  Even worse for the Dems: 40-9 for Trump. Only 6 of those were for Mr. Trump.  His other 34 supporters just don’t like Hillary.

REGION 18 (Midland):  The trend continues: Trump wins here 34-12.

HARRIS COUNTY DOE (Houston):  Hillary scores her first victory since Austin—winning this one 37-30.

REGION 20 (San Antonio): Clinton’s winning streak continues with a narrow 40-37 victory. We also notice another trend.  This is the third place where Hillary’s support came more from the people who were actually for her, as opposed to those who were anti-Trump.  That never happened for Trump.

REGION 17 (Lubbock):  69-14 for Trump. Surprised?  Me neither.

REGION 9 (Wichita Falls):  30-6 for Trump, and not a single voter actually in favor of Hillary. All six of those who will vote for Hillary will do so because of Trump.

REGION 2 (Corpus Christi):  31-21 for Clinton.

REGION 10 (Richardson/Dallas):  Deadlock!  It was a tie: 37-37.

STATEWIDE TOTALS:

For Hillary: 122

For Donald: 93

For Hillary Because of Donald: 151

For Donald Because of Hillary: 310

Total for Hillary: 273

Total for Donald: 403

Someone Else: 101

This included Rick Perry (before Dancing with the Stars), Shane Buechele (after UT beat Notre Dame, but before the subsequent losses), Jose Altuve, Les Miles, Alicia Florrick, Mickey Mouse, Big Foot, Jesus, God, Jill Stein, Gary Johnson, Roger Staubach, a shot of tequila, Darth Vader, Ty Duncan, Alice Cooper, Colin Powell, Paul Ryan, Ted Cruz, Peyton Manning and Pedro.

No Vote: 25

People Voting FOR someone: 215

People Voting AGAINST someone: 461

DAWG BONE: THANK YOU FOR YOUR PARTICIPATION! NOW GET OUT THERE AND VOTE ON NOVEMBER 8!!

Tomorrow: Can we fire the coach NOW?

Dawg Bones

Feds Slap Down T.E.A. on Special Ed Numbers

The power of the press. Less than one month after publication of a front page story in our state’s largest newspaper, the federal government has effectively ordered T.E.A. to drop one of the key indicators by which special education programs are measured. As many readers of this publication know, T.E.A. has included an “indicator” in the PBMAS system—no more than 8.5% of your students should be in your special education program. For years, some people have wondered if that specific number might cause districts to deny services to kids who need them. Two years ago a disability advocacy group complained about the 8.5% figure, but the complaint got little traction. Now the media has the story…and everything has changed.

Let’s acknowledge that the story in the Houston Chronicle has brought into the daylight an issue that has been subterranean until now. Outside of special ed types, very few people knew about the PBMAS, Indicator 10, the 8.5% figure, or the way that special ed numbers have declined over the past five years. Now, we are all talking about it. Good.

This is a classic “teachable moment” for educators. T.E.A. will certainly abandon Indicator 10, thus relieving districts of any outside pressure with regard to the proper identification of students.

So let’s double down on our efforts to get this right. If a parent asks about special education services—regardless of how the parent asks about it—the school should respond in one of two ways. Either we obtain parental consent and promptly begin the process of obtaining a full, individual evaluation. Or we decline to do so by providing the parent with two documents: Prior Written Notice of Refusal to Evaluate; and a copy of the Notice of Procedural Safeguards. What we don’t do is to put the parent off by telling the parent that their referral is premature, or we are just now beginning RTI efforts. A parent referral is never premature; and RTI should not delay that referral.

Our firm does a lot of training on this issue, and would be happy to help you out. Let us know if we can help.

DAWG BONE: WATCH FOR CHANGES IN THE PBMAS.

File this one under: SPECIAL EDUCATION

Tomorrow: Results of the Law Dawg’s Annual Survey of Educators—the Presidential Poll!!

Dawg Bones

It’s Toolbox Tuesday!!

The Toolbox is a full day training program focusing on appropriately and safely serving students with disabilities who engage in problematic behaviors. We call it the “Toolbox” because we organized the program around ten specific things, ten “tools,” that are available to the school officials.

If you are interested in a Toolbox training in your district, or your ESC, let me hear from you. As you read this, I’m doing a Toolbox training in Region 7. Thursday I will be doing one in Region 6. The Toolbox will return to Region 6 on December 6. And we are already booked at Region 16 next summer—June 26.

The Toolbox is completely compatible with Restorative Practices—something I am trying to emphasize in these trainings. So let me know if you’d like more information.

DAWG BONE: HAVE TOOLBOX. WILL TRAVEL.

Tomorrow: What to make of that Houston Chronicle article about special education.

Dawg Bones

State Created Danger Theory of Liability

Last week we told you about the horrific case from Pennsylvania in which the plaintiff alleges that a kindergarten teacher released a five-year old to a stranger, who sexually assaulted the child.  The Third Circuit held that the facts as alleged were sufficient to impose personal liability on the teacher for the sexual assault of the student. Today, we will focus on the court’s reliance on the “state created danger” theory of liability.

Background: the general rule is that the state is not required to protect all of us from all forms of harm.  If I am injured due to the actions of a private party, I should look for recourse from that individual—not from the police department that failed to protect me.  Our Constitution protects us from the government—not from each other.

That’s the general rule. One exception to the general rule is the “state-created danger” theory.  This theory of liability has not been accepted by all of our Circuit Courts.  Importantly, the 5th Circuit, where we live, has not adopted it. The closest it came to recognizing this type of legal theory was in the litigation that resulted from the Texas A&M Bonfire tragedy in 1999.

Nevertheless, lawyers in Texas need to know about this theory. It keeps coming up, has been adopted by several Circuit Courts, and will continue to be pressed as a viable cause of action here in Texas.

In this case, the court identified four necessary elements in a “state-created danger” case:

1. The harm ultimately caused was foreseeable and direct;

2. A state actor acted with a degree of culpability that shocks the conscience;

3. A relationship existed between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s act, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and

4. A state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.

In this case, the court concluded that the facts—as alleged—satisfied all four elements.  Releasing a five-year old to someone we don’t know, and who fails to provide any identification, “shocks the conscience” of the court.

The 5th Circuit decided a case in 2012 with facts that may be even worse, and yet, it decided there would be no liability. The case involved a nine-year old who was allegedly released to a man claiming to be her father, but who actually had no relationship to the child and was not listed on the “check out” card. This happened not once, but six times. The suit alleged that the man sexually assaulted the child each time, and then brought her back to school. This was not bad enough for the 5th Circuit to recognize the “state-created danger” theory.  Doe v. Covington County School District, 675 F.3d 849 (5th Cir. 2012, en banc).

I have no explanation for that other than the obvious: different judges view things differently.  Present two judges with identical fact situations and one will rule for the plaintiff, while the other goes for the defendant. It’s just the nature of the law.

This Pennsylvania case is L.R. v. School District of Philadelphia, decided by the 3rd Circuit on September 6, 2016.

DAWG BONE: STATE-CREATED DANGER THEORY WILL KEEP COMING UP.

File this one under: LIABILITY

Tomorrow: Toolbox Tuesday!!

Dawg Bones

We are now 0-6. How bad does it have to get before we can fire the coach?

Dear Dawg: Our school is demoralized due to the abject failure of our football team. It got so bad last Friday that the entire drum section of the band pulled paper bags over their heads to hide their shame. We hear that the brass section intends to join in on this action at tonight’s game.

Dawg, you know very well that a winning football team lifts the hearts of the entire community. But the opposite is true also. Can’t we fire this loser????  SICK AND TIRED OF BEING SICK AND TIRED.

DEAR SICK AND TIRED: He might be a loser, but at least his players are not pulling paper bags over their heads.  We suggest you focus your attentions on the band director!

DAWG BONE: BUT IF YOU DO FIRE HIM, WE HEAR THAT LES MILES IS AVAILABLE

Dawg Bones

Kindergarten Teacher Sued in Federal Court???

The most likely person in a school district to be named as a defendant in a lawsuit is the superintendent. The least likely to be sued is the kindergarten teacher. But a kindergarten teacher in Philadelphia has been sued personally. And the 3rd Circuit Court of Appeals has held that the teacher may be held personally liable for violating a student’s constitutional rights.

This case is noteworthy for two reasons. First, it is one of the few in which a court refuses to grant “qualified immunity” to an educator. For educators, this is the main “takeaway” from today’s post. Secondly, this case endorses the legal theory of “state created danger” as a vehicle for imposing liability on school districts and school officials. This point will be of more interest to the lawyers than the educators, and we will expand on this next Monday.

What happened? The suit alleges that the kindergarten teacher allowed an unauthorized adult to take a five-year old out of class. The adult showed no identification. School policy did not allow this person to take the child out of class. The teacher asked for ID and the adult did not produce any. But the teacher allowed the adult to take the child out of class anyway. The adult sexually assaulted the child later that day. None of these allegations have been proven in court, but this is what the suit alleges. The teacher’s attorney filed a Motion to Dismiss the case, arguing that even if these facts turn out to be true, the teacher is protected by “qualified immunity.”

In its opening paragraph the court notes that teachers are usually protected from personal liability by the doctrine of “qualified immunity.” But the court also noted that “there are exceptions and this is one of those cases.” Here is the Key Quote:

We hold that the parent’s allegations sufficiently state a constitutional violation of the young child’s clearly established right to be free from exposure by her teacher to an obvious danger. In short, we conclude that it is shocking to the conscience that a kindergarten teacher would allow a child in his care to leave his classroom with a complete stranger.

It would be a good idea to double down on staff training on this issue. Let’s not let kids walk off with someone who is not authorized to take them.

The case is L.R. v School District of Philadelphia, decided by the 3rd Circuit Court of Appeals on September 6, 2016.

DAWG BONE: DOUBLE CHECK ON YOUR PROTOCOLS FOR TAKING KIDS OUT OF SCHOOL.

File this one under: LIABILITY

Tomorrow: When will this miserable football season end????

Dawg Bones

Is Video Surveillance the Best Way to Guarantee Safety?

By now, many of you are working in school districts that have installed video surveillance cameras in the self-contained special education classrooms. This is now legally required in Texas, when a request from a proper person is received. The purpose of the law is to protect the safety of the kids in those self-contained classrooms. Those kids are typically among our most vulnerable.

The Dawg hopes that the cameras advance the cause of safety. But let’s all remember that there are other, more basic steps that all districts can take to guarantee student safety.

The most important thing the district can do is to be very careful about who they put in charge of that self-contained classroom. We should put as much care into the selection of the Life Skills teacher as we do the head football coach.

Second, we should support that teacher with adequate resources to do the job properly. This means personnel (aides), training, equipment and supplies.

Third, administrators should keep an eye on things. I am certain that the vast majority of teachers in self-contained classrooms maintain a loving, nurturing, safe classroom. However, there are cases that end up in litigation over student injuries inflicted by teachers or aides in the self-contained classrooms. Sometimes a bad situation is allowed to fester in that classroom because no one is monitoring. So we encourage administrators to pay attention. Drop in. Make yourself a presence in that classroom.

Fourth, administrators should pay particular attention to the paraprofessionals who work in the self-contained classroom. Many cases that end up in litigation fall into a category that I call “aide v. teacher.” The aide comes forward after a period of time and confides in someone at the school that she is troubled by some of the teacher’s practices. Sometimes, the aide has kept silent about this for over a year. It would be wise for campus principals to maintain a climate of openness whereby aides, or others, feel free to report things that they find troubling.

Technology is a wonderful thing, but it is no substitute for a good teacher, supported by strong and wise leaders.

DAWG BONE: GET THE BEST TEACHER YOU CAN FIND FOR THE MOST CHALLENGING ASSIGNMENTS.

File this one under: SPECIAL EDUCATION

Tomorrow: A suit against a kindergarten teacher.

Dawg Bones

What’s the Proper Role for our SRO?

It’s Toolbox Tuesday!! We like to highlight the Toolbox on Tuesdays—a full day training program focused on the ten “tools” schools can employ to maintain safety and provide appropriate services to the students who sometimes present challenging behaviors.

The last of the ten tools is “calling the cops.”  We know that things happen at school that will sometimes require school administrators to reach out to law enforcement.   Still, we hope that this tool is the one that schools use the least.  Most school discipline problems can, and should, be addressed by teachers and school administrators.

That’s one of the main points made by the Department of Education’s “Dear Colleague” letter on this subject (September 8, 2016).  The letter encourages districts to “incorporate [SROs] responsibly into school learning environments and ensure that they have no role in administering school discipline.” The letter strongly suggests that schools should “eliminate overreliance on SROs in schools” by making sure that teachers and administrators are “well trained to address behavioral issues through a variety of corrective, non-punitive interventions, including restorative justice programs and mental health supports.”

DOE has creates a new resource to assist with this: the Safe School-based Enforcement Through Collaboration, Understanding and Respect (SECURe) Rubrics:    http://www2.ed.gov/policy/gen/guid/school-discipline/files/sro-state-and-local-policy-rubric.pdf

The Dear Colleague Letter can be found here:  http://www2.ed.gov/policy/gen/guid/school-discipline/files/ed-letter-on-sros-in-schools-sept-8-2016.pdf

If you are responsible for the discipline program in your school, it would be well worth your time to peruse these resources.

And if you are interested in Toolbox training, let me know.  I’ve got one coming up in Region 7 on October 11, and another in Region 6 on October 13.

DAWG BONE: LET’S CALL IN THE COPS ONLY WHEN NECESSARY.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: More on cameras in the classroom.