Connecticut Education Law Blog

Strip Search by School Officials Was Unconstitutional

mlaubin@bmdlaw.com (Michelle C. Laubin) — Tue, 30 Jun 2009 16:26:26 -0500

Last week, the Supreme Court decided Safford Unified School District #1 et. al. v. Redding, the “strip-search” case. The Supreme Court followed the precedent it created in New Jersey v. T.L.O., which set forth the reasonable suspicion standard for school searches, ultimately holding that the strip-search of the student in this case was unreasonable and violated the Fourth Amendment. Under T.L.O.’s reasonable suspicion standard, a school search “will be permissible . . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

While the vice-principal had reasonable suspicion that justified searching the student’s backpack and outer clothing, the facts did not justify the highly intrusive strip-search. There was no evidence to indicate that the pain-killer medications the student allegedly carried were a danger to other students or that she had hidden them in her underwear. Even though the search was unconstitutional, the vice-principal who ordered the search and the administrative assistant and the nurse who conducted the search were protected by qualified immunity because the law at the time was unclear as to the legality of such a search.

Now that the Supreme Court has rendered a clear statement of law on this issue, school officials would likely not be shielded from liability by qualified immunity in the next case. In addition, the Supreme Court sent the case back to the lower court in order to determine the liability of the school board, which may ultimately be held liable. Since the use of strip-searches in the school setting is likely very rare, school districts will not be greatly impacted by this decision, but this is a reminder that they should be careful to ensure that searches are reasonable and not more intrusive than necessary.

Much Ado About Nothing

mlaubin@bmdlaw.com (Michelle C. Laubin) — Sat, 27 Jun 2009 13:57:59 -0500

The Supreme Court ruling in the Forest Grove School District v. T.A. case was released this week. Maybe it's just me, but I don't see this ruling as changing much of anything in the world of special education disputes, at least as far as Connecticut is concerned. Essentially, the Supreme Court ruled that 20 U.S.C. 1415(i)(2)(C)(iii) continues to allow courts to award reimbursement of tuition in unilateral placement cases if they determine that the school district failed to provide FAPE, even if the student has not previously received special education services from the school district. The Supreme Court seemed offended that the school district could evaluate a child, find the child not eligible for services, fail to provide services, and then benefit from that failure by having the courts deny reimbursement for the parent's unilateral private school placement. Is this really a surprise to anyone?

Yes, those of us who represent school districts had hoped that the Supreme Court might rule in favor of the district, recognizing the public policy concerns that we have about parents who fail to notify the district or request evaluations prior to making a private placement, but those facts were just not presented in this case. The parents in the Forest Grove case did request evaluations, the school district evaluated the student and found him not eligible and did not provide an IEP. The arguments from the school district that the public policies of IDEA require a collaborative relationship between school and parents, and development of an appropriate IEP requires constant adjustment to changing circumstances are real, but they are undercut when the district is determined to have erred in failing to find the student eligible for services in the first place.

So how does life change after Forest Grove? In Connecticut, I would argue, not at all. I am not aware of a single Connecticut hearing officer who has ever denied reimbursement for a unilateral private placement by a parent in a case where the district either failed to evaluate when it should have, or evaluated and erroneously found the child not eligible. The Supreme Court decision seems consistent with that line of decisions. The bigger question, it seems to me, is whether the courts and hearing officers will treat differently (as I believe they should) the case where the parents do not refer the child for special education evaluation until AFTER the child is placed and, according to IDEA, the "child find" responsibilities belong to the district where the school is located, rather than the district of residence.

Free Cyberbullying Curriculum Available from NSBA

mlaubin@bmdlaw.com (Michelle C. Laubin) — Sat, 25 Apr 2009 12:10:32 -0500

A free curriculum is available from the National School Boards Association (NSBA) to address cyberbullying issues at NSBA. NSBA partnered with a group called CyberSmart to produce this curriculum (reported to be "research-based" for those concerned about those things), and it is described on the NSBA website as addressing all of the major issues:

In developing these lessons, CyberSmart! adopted an integrated approach, examining all current research findings and using best practices from the fields of cyber security, school violence prevention, and character education to impact behavioral change. Together, these materials offer schools the opportunity to begin a dialogue with students and build a sustained cyberbullying prevention campaign to continually remind the school community about safe, ethical online use.

If anyone uses or has used the curriculum, please post comments here and/or provide feedback to NSBA - they are promising to make adjustments if there are any problems based on feedback from users.

Free Webinar Series on Food Allergies Hosted by USDA

mlaubin@bmdlaw.com (Michelle C. Laubin) — Thu, 23 Apr 2009 14:10:13 -0500

The School Nutrition Foundation (SNF) and United States Department of Agriculture (USDA) are co-hosting a free webinar series beginning April 29, 2009 on management of food allergies in the schools. More information is available at SNF. The series continues on May 27 and June 3, with each webinar startiing at 2:30 p.m. EDT and lasting about 75 minutes per session. Each webinar features a panel of experts in school health and nutrition to talk about the issues, how to develop a school policy, and how to implement the policy.

Sad Reminder of Why We Have Anti-Bullying Laws

mlaubin@bmdlaw.com (Michelle C. Laubin) — Mon, 20 Apr 2009 12:31:17 -0500

Parents sue Ohio school over bullied son's suicide

Associated Press; Fri Apr 3, 11:48 am ET

MENTOR, Ohio – An Ohio couple has filed a lawsuit saying school officials failed to stop bullying that they claim led to their 17-year-old son's suicide.

The suit was filed in federal court last week, almost two years to the day when Eric Mohat shot himself in the head. Parents William and Janis Mohat say their son was taunted and harassed by classmates at Mentor High School for months before his death on March 27, 2007.

Their lawsuit accuses the school district about 25 miles northeast of Cleveland of violating the high school junior's civil right to safety.

The teen's father says they would drop the suit if the school system adopted tougher regulations on bullying.

Without commenting on the litigation, school officials say the district takes bullying seriously.

Yahoo News

While we don't know the whole story, we can at least read between the lines in this story to see the pain and loss felt by the family and their belief that the school system could have done more to help their child when he was being bullied by his classmates. In the wake of recent amendments to Connecticut's anti-bullying statutes and the resulting changes to board policies across the state, we continue to parse the language to determine whether an act of insult by one student against another constitutes "bullying" such that it needs to be "verified" and the parents of both parties need to be "notified". While we are doing this, let's not forget that whether it meets the technical definition of bullying under the statute and board policy or not, the act has caused emotional hurt to someone and needs to be addressed in some way so that the child can come to school and learn in a welcoming environment.

Of Resource Officers, Recycling, and Random Data Collection

mlaubin@bmdlaw.com (Michelle C. Laubin) — Fri, 17 Apr 2009 09:31:11 -0500

A brief review of pending legislation currently awaiting action in the Connecticut legislature:

SB 6489: An Act Concerning a Plan for School Resource Officers. This law would be effective 7/1/09, but would require by 1/1/10 the Department of Education, Department of Children and Families, the Judicial Department, and the Connecticut School Resource Officer Association to develop a joint plan for resource officer training including the roles and responsibilities of resource officers, relevant state and federal laws (could take a while), security awareness in the school environment, counseling and conflict resolution, disaster and emergency response, deescalation of student behavior including dealing with students with special education needs, child and adolescent psychology and development, cultural competence, and gender-responsive strategies. This is not to say that the plan would have to be implemented by January 1, 2010 and all training accomplished by that date, just that the plan would need to be established and reported to the legislature by the Department of Education. However, for districts looking to read the tea-leaves for the types of training that should be provided to school resource officers, the legislature has made the tea, drained the cup, and left it sitting on the table for you.

SB 6665: An Act Concerning the Inclusion of Students on Local and Regional Boards of Education. Oddly enough, the heading on this bill on the CGA website says that it has something to do with giving students the opportunity to comment and give feedback on bullying occurring in schools. The language of the bill itself, however, states that at least 2 students from public high schools located in the district shall serve on the board of education as nonvoting members, with the number of students from each high school to be determined by the board and selected through election or some other method prescribed by the board. Although many school boards do have student advisory members sitting with them in some capacity, it appears that this bill would expand that function and require it for all school boards in the state.

SB 940: An Act Concerning the Reporting of Truancy Data. This bill would add once again to the reporting requirements of Connecticut General Statutes section 10-220, and require all school districts in the state to report on data related to truancy as a component of "school performance". Measures of truancy would include data collected by the Department of Education regarding attendance and unexcused absences in compliance with federal reporting requirements. The bill also states that such data would be considered a public record for purposes of chapter 14, which indicates a clear intention to make this data available to the public for purposes of gauging local school performance and demanding accountability. School systems should be reminded of the need for clear definitions of "excused absence" and "unexcused absence" which are generally established locally, so that data reported in compliance with this requirement will be clear, in the event that the bill passes.

SB 947: An Act Concerning High School Credit for Approved Online Coursework. This bill would amend Connecticut General Statutes section 10-221a and allow local and regional boards of education to adopt policies awarding high school credit for online coursework completed in accordance with the policy. The policy would need to ensure, minimally, that the workload for the course is equivalent to that of a conventional classroom course, that the content is rigorous and aligned with curriculum guidelines approved by the State Board of Education, that the course engages students and has interactive components, and that the class is taught either by certified teachers (in Connecticut or another state) who have received training in teaching in an online environment, or that the course is offered by an institution of higher education accredited by the Department of Higher Education "or regionally accredited". Assuming that school boards start to look at establishing policies permitting the granting of credit for coursework completed online as a result of this legislation, we suggest consideration of how many credits the board believes may be completed in this manner, versus the number required to be completed on campus at the student's assigned high school, and under what circumstances the school system will consider awarding credit for classes completed in this manner. For example, may any student apply for credit for work completed online or will in be limited in some way, such as to students required to be homebound for some period of time as a result of injury, illness, or expulsion? Will there be an application and approval process to be completed in advance, and who will bear the cost associated with taking the class (including the cost of books or other materials)?

RB 1011: An Act Concerning Recycling Programs in Schools. Would require each school district to develop a recycling plan at each school under the board's jurisdiction, including recycling receptacles, signage, requirements for appropriate disposal of materials by students and staff, training of custodial staff, and removal by a licensed hauler. If the district can sell its recyclables on the open market, it can use the funds generated for student activities.

SB 6497: An Act Concerning Educational Stability for Children in Foster Care. This bill probably deserves its own entry, but for now, I will just say that it would permit children in the care and custody of DCF to remain in attendance at the school the child attended prior to the change in placement (elsewhere known as the "school of origin") in the event that DCF places the child in a new foster home, and the child will be considered a "resident" of the school district where the school is located during that time. However, in the event that this provision is used to maintain the child in the school of origin, DCF must pay for transportation from the new foster home back to the school of origin. There is a statutory presumption that it is in the best interests of the child to remain in the school of origin unless a "party" objects, in which case the court makes the decision and the child remains in the school of origin during the pendency of the dispute. If the child requires special education, the school of origin must continue to provide and fund those services, subject to the state agency placement reimbursement grant beyond the per pupil expenditure for the prior fiscal year.

U.S. Department of Education Issues Revised FAQ on Section 504

mlaubin@bmdlaw.com (Michelle C. Laubin) — Wed, 08 Apr 2009 19:35:33 -0500

On March 27, 2009, the United States Department of Education issued a revised version of its document entitled Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, updating it to include new information about the implications of the Americans with Disabilities Act Amendments (ADAA) effective January 1, 2009. In addition to the commentary included in the FAQ document, the Office for Civil Rights (OCR) states that it is currently evaluating the impact of the ADAA on its enforcement responsibilities, including whether any changes to regulations are appropriate.

Changes to the FAQ document include Question 21, regarding whether districts may consider mitigating measures in determining whether the student has a disability under Section 504. Consistent with the ADAA, the answer now states that school districts are not permitted to consider mitigating measures that the student is using in determining whether the student has a disability, except for ordinary eyeglasses or contact lenses.

The FAQ document continues to endorse the position that there is no impairment that confers automatic eligibility under Section 504, and that a medical diagnosis is one source of information to be considered among others in determining the student's eligibility.

Question 12 concerning the major life activities that may be impacted by a physical or mental impairment has, consistent with the ADAA, been amended to include reference to the new major life activities mentioned in the ADAA such as standing, lifting, bending, reading, concentrating, thinking, and communicating. It also mentions those major bodily functions that have been conferred "major life activity" status such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The FAQ mentions that the ED believes that its current regulations are consistent with these amendments since they indicate that the list of major life activities in the regulations is not exhaustive, and an activity or function not listed in the regulations can nonetheless be considered a major life activity.

Question 34 concerning temporary impairments has been amended to indicate that an individual should not be "regarded as" an individual with a disability if the impairment is transitory and minor, defined as an impairment with an actual or expected duration of 6 months or less. Also, Question 35 has been revised to indicate that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

We are looking forward to receiving additional guidance from OCR concerning issues such as how to handle children with impairments that now appear to qualify as disabilities under Section 504 but for whom no accommodations in the school environment are currently needed, which is not addressed directly in the FAQ document.

SDOE Issues Memo on School Bullying Requirements

mlaubin@bmdlaw.com (Michelle C. Laubin) — Sun, 05 Apr 2009 22:18:21 -0500

A long-awaited memorandum from the State Department of Education describes in bullet-points the Department's interpretation of the recent changes to the anti-bullying legislation found in Title 10 of the Connecticut General Statutes, and also adds a further gloss in the form of "best practices" for school districts to follow to improve school climate. Among the tips provided by SDOE -

Although no disciplinary action should be taken on the basis of an anonymous report of bullying, schools should consider these reason to investigate.
Parents should be invited to at least one meeting, invitations for which should be in writing and maintained on file at the school. Meetings with parents of alleged victims and parents of alleged perpetrators should be held separately. Notification of consequences must comply with FERPA.
Lists of verified acts of bullying will be collected by SDOE at some unidentified point in the future.
Investigation of bullying allegations may need to include the Title IX Coordinator to ensure that potential class harassment issues are identified and managed.
Revised bullying policies that were supposed to be submitted to SDOE as of February 1, 2009 need to be published in student/parent handbooks by July 1, 2009.
Districts need to implement some form of positive behavioral interventions and supports or evidence-based model for improving safe school climate or preventing bullying.
Although the statute requires surveys to determine the prevalence of bullying, SDOE prefers surveys that will determine school site safety, parent and staff perceptions, and assess the quality of the school climate.

Grade appropriate bullying curricula should also include programs focusing on building safe and positive school communities, developing healthy relationships and preventing dating violence.
School-wide training for adults related to school climate may include Title IX/Sexual Harassment training, Section 504/ADA training, cultural diversity and multi-cultural education and other training in civil rights legislation.
Parents should be invited to participate in improving school climate.
The term "harass" as adopted in the state definition of bullying conduct is tied to potential implications for state and federal statutes pertaining to protected classes (i.e., harassment based on race, ethnicity, gender, sexual orientation etc.).
Districts must complete a brief on-line survey required by SDOE to facilitate compliance with mandates placed on the SDOE.
Districts must upload their policies to the SDOE website if they have not already done so.

SB 1142 Gutted By Education Committee

mlaubin@bmdlaw.com (Michelle C. Laubin) — Fri, 03 Apr 2009 09:34:56 -0500

In a vote taken April 1, 2009, all 30 of the committee members of the Joint Committee on Education present and voting voted in favor of SB 1142, An Act Concerning State Mandates on School Districts (two members were absent). However, substitute bill language was adopted by the committee addressing only the issue of the date that non-renewal notices must be sent (adjusting this from April 1 to May 1) and school readiness grants. The sections addressing the allocation of the burden of proof in a due process hearing and the date for termination of services at age 21 have been removed from the original bill language. Advocates for these provisions will have to wait until the next legislative session to have their positions heard.

Lilly Ledbetter Fair Pay Act of 2009 Signed Into Law

fdugas@bmdlaw.com (Floyd J. Dugas) — Wed, 01 Apr 2009 16:20:22 -0500

On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act (“Ledbetter Act”) into law. Pub. L. No. 111-2. The new law changes litigation of pay discrimination claims in the following ways:

(1) Resets the statute of limitations clock for filing a wage claim each time an employee receives a paycheck, benefits, or “other compensation,” allowing an employee to sue for alleged discrimination based on when she is impacted rather than when the decision occurred.

(2) Applies to alleged discriminatory pay practices based on all protected categories, including race, gender, age, color, disability, national origin and religion.

(3) Expands the definition of an unlawful employment practice to include not only discreet “decisions” regarding compensation, but also any “other practice” that affects an employee’s compensation.

The statute applies retroactively back to May 27, 2007.

The Ledbetter Act was passed in direct response to the United States Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). The Plaintiff worked for Goodyear from 1979 to 1998. After she retired, she filed a gender discrimination claim against Goodyear on the grounds that she received smaller annual pay increases than her male counterparts throughout her employment. While a jury initially found that Goodyear’s pay practices were discriminatory, the Supreme Court nonetheless held that Ledbetter’s claim was time-barred. The Court interpreted Title VII’s statute of limitations for equal pay claims to require that the time for filing a claim begins to run when the discriminatory pay decision is made, rather than each time an employee receives a paycheck affected by the initial decision. The new law reverses this, and does much more. It amends Title VII, the Americans with Disabilities Act of 1990 (ADA), the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1967 (ADEA) to specify that unlawful discrimination occurs when: (1) a discriminatory compensation decision or other practice is adopted, (2) when an individual becomes subject to a discriminatory compensation decision or other practice, or (3) when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

The Ledbetter Act increases employer exposure to pay discrimination claims for alleged discriminatory decisions, even though they may have been made years earlier, based on whether they have continuing impact on an employee’s compensation. In addition, the Act is not limited to claims based on gender discrimination, but also applies to pay discrimination based on race, national origin, religion, age, and disability.

The broad language of the Act also expands the potential pool of plaintiffs in several other respects. The Ledbetter Act re-triggers the limitations period with each paycheck, and whenever “benefits” or “other compensation” are paid. These terms arguably include the full range of entitlements that an employer’s discriminatory decision could impact, including health benefits, paid leave, bonuses, stock options, and pension payments. The Act does make clear it will not allow employees to rely on post-retirement pension payments to stretch the limitations period beyond the end of the employment relationship.

The Ledbetter Act does not alter the limit on recovery of back pay to a maximum of two years preceding the filing of a discrimination charge under Title VII.

More so now than in the past employers must be careful to make sure their compensation and benefit plans are not discriminatory. No doubt passage of the Ledbetter Act will spawn a recurrence of pay discrimination claims throughout the State and across the Country.

SOAPBOX ALERT: Express Support to the Education Committee for SB 1142

mlaubin@bmdlaw.com (Michelle C. Laubin) — Wed, 25 Mar 2009 14:56:13 -0500

Educators and other interested parties may wish to contact the Education Committee of the Connecticut General Assembly to express support for SB 1142, An Act Concerning Relief of State Mandates on School Districts. Among other provisions, this bill would finally bring Connecticut in line with other states and with the 2005 United States Supreme Court decision in Schaffer v. Weast, which held that under IDEA, the burden of proof in a special education due process hearing should be on the party requesting the hearing. Despite this Supreme Court decision, since 2005, Connecticut has failed to remove the provision placing the burden of proof on the school district from the state regulations concerning special education hearings, thereby sending the message to school districts that the programs they develop for children with disabilities should be considered inappropriate unless the school district proves otherwise. Placing the burden of proof on the school district drives up the administrative costs of special education by causing hearings to be longer and more expensive, since every allegation made by a parent needs to be "disproved" by the school district. Perhaps more importantly, there is no correlation between the burden of proof being imposed on the school district and improvement in the quality of services provided to children with special needs. On the contrary, the burden imposed on school districts by lengthy and costly special education hearings often drives talented educators out of the public schools.

Parent advocacy groups are certainly taking advantage of the opportunity to lobby the Education Committee to take this provision out of SB 1142. If you support this provision, time is of the essence to get your comments to them. Mailing Address:
      Education Committee
      Room 3100, Legislative Office Building
      Hartford, CT 06106
      Phone: 860-240-0420
You can find a copy of the bill and track its progress at CGA. Contact information for the legislators on the Education Committee is also available at this website.

Elimination of Secret Ballot Elections in Favor of Union Authorization Cards?

jstanevich@bmdlaw.com (Jason R. Stanevich, Esq.) — Fri, 20 Mar 2009 09:57:10 -0500

In a move patterned after the proposed Employee Free Choice Act, which would apply to private sector employees, the General Assembly’s Labor and Public Employees Committee recently voted favorably (9-2) on a bill that would allow state and municipal employees to unionize without the use of a secret ballot election. HB-6534 would permit a union of public employees to be recognized as the exclusive representative of an employee unit when a majority of the employees sign union authorization cards. The card authorization process would be triggered when (1) a petition for unionization if filed with the State Labor Relations Board, (2) there is a question or controversy regarding union representation, and (3) there is only one union seeking the designation. At that point, a Labor Board agent would investigate and report his or her findings to the Board. The Board, after providing the parties the opportunity to submit briefs, could determine to certify the union based on a card check alone.

Supporters of the bill contend that the existing secret-ballot process does not work because employers spend significant resources to oppose unionization. While that may be true in the private sector, there is little evidence that the existing secret ballot election process fails to effectuate the desires of public employees who are eligible for collective bargaining. Indeed, one only has to compare the percentages of public sector employees who are unionized in Connecticut, with the percentage of private sector employees who have elected union representation, to see that there is no need to eliminate the traditional and democratic method of electing union representation. Unfortunately, HB-6534 is yet another example of unnecessary legislation that is proposed for all the wrong reasons.

Impact of New Federal FMLA Regulations on School Boards

fdugas@bmdlaw.com (Floyd J. Dugas) — Tue, 17 Mar 2009 16:11:34 -0500

Recently the United States Department of Labor promulgated new regulations under the Family Medical Leave Act. School boards should review their policies to assure continued compliance with the FMLA.

Noteworthy highlights from the new regulations include:

(1) Military caregiver leave: Expands FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

(2) Qualifying exigency leave: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs — "qualifying exigencies."

(3) Employer notice obligations: The final rule clarifies and strengthens the employer notice requirements to employees in order that employers will better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.

(4) Employee notice obligations: Under the new regulations, employees must follow their employer’s normal call-in procedures when taking FMLA leave. Under current rules, employees may notify their employer up to two days after an absence on their need for FMLA leave.

(5) Medical certification process: The final rule recognizes the Health Insurance Portability and Accountability Act (HIPAA) and its impact on medical privacy. Responding to concerns about medical privacy, the new provisions prohibit direct supervisors from obtaining employee medical information for FMLA certification.

(6) Light duty: Time spent in "light duty" work does not count against an employee's FMLA leave entitlement, and the employee retains the right to job restoration during the light duty period.

This is the first revision of the Act since it was passed in 1993, but will likely pave the way for a better understanding of the Act for employers, and more adequate communication between school boards and their employees.

Obama's Stimulus Package Offers COBRA Premium Reduction to Involuntarily Terminated Employees

jstanevich@bmdlaw.com (Jason R. Stanevich, Esq.) — Tue, 17 Mar 2009 14:25:52 -0500

The Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) provides for a temporary extension of employer-provided group health coverage, which is commonly referred to as COBRA continuation coverage. The American Recovery and Reinvestment Act (“Act”), which President Obama signed on February 17, 2009, includes several changes to COBRA continuation coverage that employers quickly need to address. The most notable impact is a significant reduction in the COBRA premiums paid by certain employees whose employment is involuntarily terminated. Under the Act, eligible individuals are required to pay only 35% of his or her COBRA premium. The remaining 65% of the COBRA premium will be reimbursed to the employer through a payroll tax credit.

Who is eligible

The subsidy is available to employees terminated involuntarily between September 1, 2008 and before January 1, 2010 due to a covered employee’s involuntary termination of employment. The Act does not define “involuntary termination,” but it does not include employees who were terminated for gross misconduct. The premium reduction, however, may apply to employees who voluntarily resign as part of an agreement in lieu of termination.

Duration of the Subsidy

The subsidy is available for a period of nine months. The subsidy, however, does not extend beyond the end of the maximum period of coverage required under COBRA or the individual’s becoming entitled to coverage under another group health plan.

Special Election Period

Individuals who were involuntarily terminated and who did not elect COBRA continuation coverage as of February 17, 2009 have a sixty day special election period to elect subsidized COBRA continuation coverage. For example, an eligible individual who lost her job on September 19, 2008 could decide in March or April 2009 to elect COBRA continuation coverage. The total eighteen month eligibility period, however, runs from the date when the employee stopped working.

Notice Requirements

Employers are required to modify existing COBRA notices to inform individuals about the availability of the subsidy and the availability of potential lower cost health insurance options. The Secretary of Labor will make model notices available to employers later this month.

Effective Date

The subsidy applies to health insurance premiums paid for COBRA continuation coverage beginning on or after February 17, 2009. The subsidy is not retroactive to individuals who were involuntarily terminated between September 1, 2008 and February 16, 2009.

What Should Employers Do Now

Employers and plan administrators should update COBRA forms, summary plan descriptions and required notices to ensure compliance with the new law. In addition, employers must identify those individuals who are or were COBRA eligible based on an involuntary termination since September 1, 2008 and must notify those individuals of the availability of the subsidy. Moreover, employers should review severance agreements and other separation-related documents to determine the effect of the new law.

Proposed Legislation Would Require Defibrillators in Schools as of July 1, 2009

jstanevich@bmdlaw.com (Jason R. Stanevich, Esq.) — Tue, 17 Mar 2009 10:57:45 -0500

Legislation winding its way through the General Assembly could mandate that local and regional boards of education employ automatic external defibrillators as soon as July 1, 2009. In fact, S.B. 981 as proposed requires schools to train personnel in defibrillator operation and in the use of cardiopulmonary resuscitation at each school under the board’s jurisdiction. In addition, a defibrillator and trained personnel would be required to be accessible during the school’s normal hours of operations, during school-sponsored athletic practices and athletic events that take place on schools grounds, and during school sponsored events that occur before or after normal operational hours.

Moreover, by June 10, 2010, each school with an athletic department or organized athletic program would be required to develop an emergency action response plan to address the appropriate use of school personnel who will respond to incidents that involve an individual who experiences a sudden cardiac arrest or a similar life-threatening emergency while attending or participating in an athletic practice or event on school grounds.

The proposed bill enjoys wide support and will likely become effective in the near future. Boards of education should consider labor relations implications, as well as begin to identify personnel who will require training upon passage of the law. Training is essential even if schools already employ defibrillators. Section of 52-557b of the General Statues, which is also known as the “Good Samaritan Law,” provides immunity to only those school employees who have received training and who do not commit acts that constitute gross, willful or wanton negligence.

Key Revisions to FERPA Regulations

mlaubin@bmdlaw.com (Michelle C. Laubin) — Mon, 16 Feb 2009 10:00:00 -0500

Final revisions to the FERPA regulations were published December 9, 2008 in the Federal Register. Key changes include the following:

"Attendance" at a school for purposes of protection under FERPA includes attendance in person or by correspondence or electronic means for purposes of students not able to be physically present in the classroom;
A definition of "biometric record" has been added for purposes of "directory information" that may be disclosed upon prior notification to parents and students - this would include fingerprints, voiceprints, DNA sequence, retinal and facial characteristics and handwriting;
"Directory information" has been restricted so that it may not include a student's social security number or student ID number, except as specifically provided;
Directory information may include a student ID number if the student ID number cannot be used to gain access to educational records without the use of another access identifier such as a password or other factor known only by the user;
"Disclosure" of an educational record does not include disclosure to the party that provided or created the record;

Grades on peer-graded papers are not educational records before they are collected and recorded by a teacher;
Personally identifiable information includes "information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the educational record relates" [in other words, an other wise anonymous or redacted record could become "personally identifiable" if the person requesting it knows the identity of the student who is the subject of the record - critical in the context of FOIA requests];
Records may be disclosed to another school where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure in for purposes related to the enrollment or transfer, and the annual notification to parents and students must include a notification that this is the policy of the educational agency;
Disclosure to consultants, contractors or other third parties may be considered disclosures to "school officials" if the person performs a function for which the institution would otherwise use employees, is otherwise under the control of the agency with respect to use and maintenance of educational records, and is subject to the conditions of use and redisclosure described in the regulations;
Provisions relating to the disclosure of information for purposes of a research study have been modified;
An educational agency must use reasonable methods to identify and authenticate the identity of parents, students, and school officials requesting information from educational records;
Records must be maintained of each request for access to an educational record and disclosure from an educational record, including names of State and federal officials and agencies requesting access;
A State or federal official who further discloses educational records after receiving them from the school district must record the names of the people to whom the information was disclosed and the legitimate interest in the information, and provide a copy of the record to the school district upon request; the district must obtain a copy of the disclosure listing and provide it to the parent upon request;
An educational agency may disclose information to appropriate parties including parents of an eligible student in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals;
If a disclosure is made under the health and safety exception, the educational agency must record the articulable and significant threat to the health or safety of a student or other individuals forming the basis for the disclosure, and the parties to whom the information has been disclosed.

School districts will need to review and revise their policies concerning disclosure of educational records to bring them into compliance with the new regulations, and will need to revise their annual disclosure statements published in student handbooks and other similar materials.

Broadened Employer Obligations Under the Americans With Disabilities Act

fdugas@bmdlaw.com (Floyd J. Dugas) — Thu, 12 Feb 2009 10:11:53 -0500

Recent amendments to the Americans with Disabilities Act (“ADA”) are certain to have a far-reaching impact on employers, as the new amendments expand the ADA’s reach and reverse an employer-friendly trend in court decisions that interpreted the statute. By expanding certain key definitions, the 2008 ADA Amendments bring within coverage of the statute a large number of individuals previously excluded. Although the ADA maintains its primary definition as to what it means to be disabled (those with “a physical or mental impairment that substantially limits one or more major life activities” or those “regarded as disabled”) the amendments expand what it means to “substantially limit,” what constitutes a “major life activity,” and alters the “regarded as disabled” analysis. The new legislation became effective on January 1, 2009.

The 2008 ADA Amendments provide broader protections to disabled workers and to reverse employer-friendly court decisions that Congress deemed too limiting. The ADA now prohibits the consideration of mitigating factors, including medication, physical or other aids, in determining whether or not someone is disabled. As such, even where the assistance of such items allows an individual to function as well as his or her non-disabled counterparts, he or she will now be protected by the ADA.

Moreover, the 2008 ADA Amendments expand the definition of a “major life activity” to include additional activities. A second new list of “major life activities” contained in the amendments include major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Additionally, the amendments clarify that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when the condition is active. The effect of these changes are to classify more individuals as disabled and, thus, eligible for accommodations.

Employers will likely encounter more accommodation requests and will see a rise in the number of claims brought for alleged violations of the ADA, as the number of those eligible to sue grows exponentially. The law is being hailed as one of the most significant pieces of civil rights legislation in recent years.

Employers would be well advised to be exacting regarding the process to be followed in addressing ADA issues, including the necessary "interactive dialogue" with an employee who seeks an accommodation, and to seriously consider making accommodations where feasible.

SDOE Memo Denies Excess Cost Grant Reimbursements

mlaubin@bmdlaw.com (Michelle C. Laubin) — Tue, 10 Feb 2009 10:00:00 -0500

The October 31, 2008 memorandum issued by Anne Louise Thompson, Bureau Chief for Special Education, bears a second reading this time of year as districts prepare to submit excess cost grant applications for the spring of 2009. The memo, issued in the fall, caused shock waves in the special education community initially, as directors absorbed the news that they would no longer be able to obtain excess cost grant funding related to costs incurred through settlement agreements with parents who reject the IEP offered by the district make unilateral placements for their children in private schools. Unless the district "accepts programmatic responsibility for the child's education" through the development of the IEP, and pays the entire cost of the placement, the district will not be eligible for excess cost grant funding for these agreements. On the other hand, if the district makes the placement through the PPT (at an approved school), or goes to due process and loses and the hearing officer orders reimbursement of the costs of tuition, the district is eligible to apply for excess costs.

Here is a brief summary of the memo, in bullet form:

District makes placement in approved facility > eligible for excess costs.
District makes placement in non-approved facility > not eligible for excess costs.
District makes placement in private preschool > maybe eligible for excess costs if certain conditions met.
District places student in transition services program approved by another state agency > eligible for excess costs if student not working toward regular high school diploma.
District places student in transition services program not approved by another state agency > not eligible for excess costs.
Parent makes unilateral placement at approved school > eligible for excess costs if district "adopts" responsibility for placement and pays all costs.
Parent makes unilateral placement at approved or non-approved school for "other than educational reasons > eligible for excess costs if district agrees to pay the educational costs, parent and district enter into agreement providing the placement is appropriate and no other state facility is available to meet child's needs, district writes an IEP and is responsible for ensuring that the facility implements the IEP, and district states that it is ready and willing to offer an appropriate program to the student.
Parent makes unilateral placement at non-approved school and district loses due process hearing > eligible for excess costs if hearing officer finds district failed to offer FAPE, private placement is providing FAPE, and district is ordered to fund placement.
Parent makes unilateral placement in approved or non-approved school and parties enter into settlement agreement providing for district taking no responsibility for programming > not eligible for excess costs.
State agency makes placement in approved or non-approved residential school and district must assume responsibility for educational costs > eligible for state agency placement grant.
State agency makes placement in approved or non-approved day school > state agency placement grant not available.

Is this memo impacting your budget this year?

More Tips for Surviving SDOE Compliance Investigations

mlaubin@bmdlaw.com (Michelle C. Laubin) — Sat, 07 Feb 2009 15:44:56 -0500

For our special education administrator friends, figuring out how to comply with the state and federal special education regulations and proving that to the Bureau of Special Education is no easy task. Just when you think you have all the rules figured out, the "interpreters" of the regulations manage to invent new requirements. So, a couple of tips culled from recent experiences:

(1) Proving compliance with the 5-day rule for sending out the IEP following the PPT meeting: Parents seem to be increasingly concerned about your compliance with the rule that a copy of the IEP should be mailed to them within 5 days following the PPT meeting. Even if a separate complaint is not filed on this point, it is almost always included on the list entitled "And Another Thing". Although it is stated nowhere in the regulations that you must retain documentation of this, you will find that the letter from the Bureau inquiring as to your compliance with this rule will ask you for copies of your documentation proving that you have sent a copy of the IEP to the parent within 5 days following the meeting. A couple of ideas for keeping such documentation: Enter the mailing of the IEP as an entry on your log for "documentation of attempts to secure parental participation". Send a (dated) cover letter with the IEP and keep a copy of the letter in the file along with other correspondence and copies of PPT invitations. Paperwork reduction act, anyone?

(2) Ensuring continued delivery of FAPE when there is an interruption in the delivery of related services: Every year, there seems to be some crisis in the delivery of related services such as OT, PT and speech and language therapy. Someone quits or takes an emergency leave, leaving the school unable to comply with IEP'd services for children. Sometimes the district is able to shuffle people around and fulfill the IEP's; other times, there are lengthy gaps in services. Although most times, the services can be made up later in the year, there are times when the gap in services is lengthy and the delivery of FAPE is threatened. Again, although there is no mention made of this in the regulations, you should expect that in the case of a lengthy gap in services, if a complaint is filed with SDOE, you will be asked whether you gave the parents the option of obtaining the services privately and being reimbursed, or whether you offered to fund private services at a clinic in the community for some period of time until a service provider becomes available within the district. Wait a minute, you say, aren't related services supposed to be "related" to the delivery of special education services in the student's IEP? And if the services are being provided in a clinic somewhere in an isolated setting, how does that help the student in terms of the delivery of the IEP? Despite these concerns, senior officials at the SDOE take the position that the offer to fund private services in the community should be made as a way of delivering the IEP when the school district is unable to provide qualified staff for an extended period of time. How long is this "extended period of time"? Each situation is reportedly considered on a "case by case basis".

Do you have other tips learned "the hard way" from compliance investigations? Were you surprised at the way the regulations were interpreted by SDOE officials? Post your tips here...

9th Circuit Decision Calls into Question 45-Day Evaluation Timeline

mlaubin@bmdlaw.com (Michelle C. Laubin) — Thu, 22 Jan 2009 19:12:02 -0500

A decision recently issued by the 9th Circuit Court of Appeals in J.G. v. Douglas County School District, 108 LRP 71106 (9th Cir. 2008), calls into question the validity of relying on the 45-school-day evaluation timeline in the state special education regulations for the completion of an initial special education evaluation as "reasonable". In this case, a referral to special education of twins with developmental delays came into the school district in early May, and the twins were scheduled for evaluation consistent with Nevada's 45-school-day evaluation timeline, which stopped during the summer months and picked up again in the fall. In the middle of the summer, while the evaluations were in progress, the school district received word that there was a possibility that the twins might be autistic. The evaluation plan was revised to include evaluations for autism, and meanwhile the children were identified as eligible for services based on a developmental delay, and were provided with an IEP. Once the autism evaluations were completed in the fall, the IEP's were revised to include the autism diagnosis and additional services appropriate for children with autism. The parents argued that the school district unreasonably delayed the evaluation of the twins and provision of appropriate services, and the school district argued that the evaluation timeline was reasonable, in part because it complied with the state's 45-day regulatory requirements.

The court found that the mere fact that the school district had complied with the state's 45-day timeline did not necessarily mean that the evaluations were completed within the "reasonable" timeframe required by the federal regulations from 1999. However, in this case, because the school district did not know that the twins might be autistic until mid-July and then had to revise the evaluation plan and complete the autism evaluations within a reasonable period of time, the court found that the evaluation timeline was reasonable. The implication seems to be that if the school district had known earlier in the evaluation process that there was a possibility that the twins were autistic, relying upon the 45-school-day standard evaluation timeline might not have been considered "reasonable", even though it would have been in compliance with the state requirements.

The court specifically noted that all of the events in this case occurred in 2003, which was prior to the 2004 IDEA amendments, so its decision was not intended to interpret new statutory and regulatory language from 2004 and 2006. The new language provides that evaluations must be completed within 60 calendar days or "if the State establishes a timeframe within which the evaluation must be concluded, within such timeframe". Like Nevada, Connecticut has also established a 45-school-day timeline for completion of the evaluation process, which timeline in our case is measured from referral to the offering of an IEP if the student is eligible for such services.

We think it would come as a surprise to most school districts to find out that they might comply with Connecticut's 45-day timeline and still be found out of compliance with the federal statutory scheme. Hopefully, the 2004 IDEA amendments took care of this issue and future cases will not need to deal with this ambiguity. Look for new edits to this language in the 2010 Reauthorization.