Education Law

What's the Rule on Cyber-Bullying? Who knows.

Kyle Berman — Thu, 19 Jan 2012 09:58:16 -0500

Well, it's official. There is still no single rule on schools disciplining students who post things on the internet from home that would break school rules if done when under the jurisdiction of the school. This week the U.S. Supreme Court decided not to hear appeals from Pennsylvania or West Virginia, letting stand the prior decisions of the Third and Fourth Circuits. Unfortunately, it appears that those circuit court decisions came to opposite conclusions on the issue, and even in the Third Circuit the two cases do not give us a very clear rule.

To illustrate the point, here in Pennsylvania, the Third Circuit at one point had two cases with almost identical facts. In each case the student made a MySpace page about a school administrator alleging various false and unsavory facts. After the principal found out, he punished the student and the families sued. The two lower courts split, one saying it was ok for the school to punish and the other said it was not. The cases were appealed to the Circuit Court. There, at first, individual panels each upheld the lower courts' differing rulings. Realizing that was a problem, the court withdrew those rulings and issued new ones that both said those schools could not punish for this off-campus behavior in these particular circumstances.

Unfortunately, those Third Circuit decisions came to their single conclusion using different bases. In fact, when you factor in the concurrences, there are many differing ways of reaching that end. As a result, the rule here in the Third Circuit is not really clear. Hooray for students' free speech rights, right? Well ....

In Pennsylvania, the School Code includes a section on bullying (§1303.1-A), which includes what we would normally consider cyber-bullying. It gives schools jurisdiction over bullying activity taking place outside the school setting so long as there is an impact either on the school environment or on a student's education. This is good, right? Well, this is essentially the Tinker standard that the Third Circuit could not figure out if it wanted to follow. Maybe because it involves student-on-student misbehavior it will be upheld in any future challenge.

This brings us to the Fourth Circuit. That case, also turned down by the U.S. Supreme Court, did involve a student harassing another student online. And there, the court ruled that it is ok to discipline the bullying student, finding that some sort of disruption was foreseeable.

I would hope that Pennsylvania schools do not ignore cyber bullying based upon the Third Circuit cases and that they follow the model of the Fourth. Until there is a clearer rule from the various courts, the school administrators should examine those situations and decide if they need to get involved to protect the students attending their schools.

Hold the Phone!

Pamela Halpern — Mon, 16 Jan 2012 14:04:24 -0500

A new federal rule prohibiting commercial drivers from using a hand-held cell phone while operating a commercial truck or bus went into effect on January 3, 2012. For us educationally minded individuals, the next logical question becomes does this new ban on hand-held phone use also apply to school bus drivers? The answer as it so often is: it depends. It depends on the school bus driver’s employer.

The new ban clearly does not apply to school district employed school bus drivers. Although school buses meet the definition of a commercial motor vehicle ("CMV"), if the driver of the CMV is employed by a State or a political subdivision of a State, like a school district bus driver, then Federal Motor Carrier Safety Administration ("FMCSA") safety regulations do not apply, even if the school district employed bus driver is engaged in interstate transportation.

The twist here is that many school districts are using private transportation companies, like Durham or First Student, to provide their transportation services. As a result, for school districts using such private transportation services, the ban on hand-held phone use by bus drivers is in fact applicable.

However, while the FMCSA safety regulation may not apply to school district employed school bus drivers, school district bus drivers are still going to have to abide by state or local traffic laws (e.g., Maryland, Philadelphia, and Harrisburg all prohibit the use of hand-held phones) like everyone else.

PA Schools: Firing Employees with Old Convictions

Kyle Berman — Wed, 14 Dec 2011 12:33:35 -0500

The Pennsylvania Department of Education is taking a hard-lined and politicized view on what has to happen to an employee who self-reports an old conviction for an offense listed in §1-111(e). Although not supported by the statute, in a new Basic Education Circular issued December 12, 2011, PDE tells school officials that they have a duty to fire such an employee.

I am not taking a position here whether it would be better or not to fire those school employees, but the statute says what it says. If the legislature wanted such people fired, it would have had to say so in the statute. As you can see, this issue has me all fired up. You can read more of my thoughts about it below. (I usually try to keep my posts fairly short, but this one is a bit longer than my norm, sorry).

A little background: prior to the amendment, there is no question that the statute only applied to prospective employees. PDE even says as much in the BEC. So, where the preliminary portion of §1-111(e) in the pre-amendment version of the statute used to say:

No person subject to this Act shall be employed in a [school] where the report of criminal history record information indicates the applicant has been convicted, within five (5) years immediately preceding the date of the report, of any of the [listed] offenses

the "no person ... shall be employed" needs to be understood to mean "hired." That is partially because the whole statute was read as applying to applicants, but partially because the above quoted language actually says it only applies to applicants.

All of that above quoted preliminary language survives in the amendment -- including the word "applicant" -- with only a change that is not relevant to this issue. That change was to eliminate the limiting parenthetical (the "within five (5) years immediately preceding the date of the report").

The first rule of statutory interpretation is to use the statute's "plain meaning." In doing so, the courts are required to give meaning to every word in the statute. The assumption is that the legislature chose their words with some care. Therefore, the "plain meaning" of a statute must incorporate all the statute's words. Here, and as above, to interpret the "no person" phrase, one must do so without ignoring the later part of the sentence which says "... where the [rap sheet] indicates the applicant has been convicted ...." Using the later phrase, "no person" therefore means "applicant", which emans that the "shall be employed" means "hired." This excludes current employees from that prohibition.

Another interpretation rule is that where only some of the language of a statute changes, the unchanged portion retains the same meaning as it had previously. Here, as I noted, the only change to this language was to remove the limitation language, making it so no applicant who had ever been convicted of a listed offense could ever be employed by the school. But the rest of the language -- and especially the part giving meaning to the "no person" phrase -- must keep the same meaning as it had before.

I noted above that even PDE admits within the BEC that the pre-amendment version of the statute only applied to prospective applicants. Since this language is unchanged, there is no basis to change its meaning.

There are more reasons in the event this ever gets to a court and we have to argue about this. Which brings up the final point: school administrators are now caught in the middle and schools may want to get a court to indicate the correct path to follow.

PDE's position is that any current employee with a prior §1-111(e) conviction must be fired even if the person was properly hired previously. Further, the statute gives PDE authority to take action against any administrator that does not do as required. On the other hand, the employee, and especially one represented by a union with the means to fight such a termination, will likely fight such an action. Thus, where an administrator finds an employee with a prior conviction either step will be wrong from someone's perspective.

This is the type of problem where the courts can get involved to issue a "declaratory judgment" to clarify the law and indicate people's responsibilities under it.

If you wish to review the BEC on your own, it can be found here.

Contracting for Professional Services Under Pennsylvania Law

Jeffrey Sultanik — Thu, 01 Dec 2011 11:50:25 -0500

Recently, our office has gotten many more questions regarding the legal requirements for contracting with custodial service, security service, and maintenance service firms under Pennsylvania law.

Custodial Services and Security Services. Pennsylvania public school districts are not required to competitively bid, nor solicit quotes for, custodial services or security services. Accordingly, school districts in Pennsylvania would not be required to solicit bids or quotes. However, as a practical matter, a school district may want to know whether or not Marsden rates are competitive. So, a school district may decide to solicit bids or quotes periodically to make sure that the rates are competitive for their geographic area.

Although custodial and security services do not need to be competitively bid or solicited via quotes, the services offered must be purely services and not cross over into the realm of the provision of supplies or the provision of construction services (as the purchase of supplies needs to be competitively bid/quoted under Section 8-801.1 of the School Code and construction needs to be competitively bid/quoted under Section 7-751 of the School Code). For example, the custodial service agreement should not include the purchase of toilet paper, paper towels, cleaning supplies, and so on; and the security service agreement should not include the purchase or installation of security equipment; and so on.

Maintenance Services. Pennsylvania public school districts are required to competitively bid and solicit quotes for maintenance work under Section 7-751 of the School Code. Competitive bids are required for maintenance work greater than or equal to $10,000 (threshold will be increased to $18,500 effective January 1, 2013), and quotations are required for maintenance work greater than or equal to $4,000 but below $10,000 (threshold will be increased to $10,000 effective January 1, 2013). There is an exception for maintenance performed by school personnel under Section 7-751(d) of the School Code, and such work does not need to be bid/quoted regardless of value.

The Pennsylvania Department of Education has provided some guidance on this issue, by posting a table of action required for non-reimbursable projects. PDE has indicated that "MAINTENANCE BY DISTRICT PERSONNEL: Care, cleaning, servicing, and refinishing surfaces, equipment, and property" does not require the solicitation of quotes or competitive bids. PDE has indicated that "MAINTENANCE BY CONTRACTORS: Care, cleaning, servicing, and refinishing surfaces, equipment, and property" does require the solicitation of quotes or competitive bids. Finally, PDE has indicated that "SERVICE CONTRACTS: Equipment operation, normal maintenance does not require the solicitation of quotes or competitive bids. Thus, certain equipment, usually specialized equipment (e.g. elevators, HVAC systems, etc.) are often serviced by a third party contractor who specializes in their upkeep, and such preventative maintenance contracts do not need to be solicited by quote or competitively bid -- but repair/replacement of such equipment would need to be solicited via quotes or competitively bid. Also, some public school districts do not solicit bids for groundskeeping or snow removal, as they view this purely as a service, and not maintenance work. Most, do, however, voluntarily solicit quotes to make sure they are receiving competitive pricing for groundskeeping and snow removal.

PA School Districts Not To Pay for Pre-K Charter/Cyber Charters

Kyle Berman — Tue, 29 Nov 2011 13:06:25 -0500

On Wednesday, November 23, 2011, the PA Supreme Court issued its decision on whether a school district has to pay for a student to attend a charter or cyber charter school’s kindergarten when the student would be too young to attend the district’s program.

The answer was a clear and unambiguous "no."

The facts of the case were that some parents in Slippery Rock enrolled their four year old daughter in a cyber charter school's kindergarten. The school district's minimum age for kindergarteners was and is 5. The cyber charter school sought payment from the district and the district refuse. The district claimed that it had the sole power to determine the age at which a kindergartener may start attending school. As above, the PA Supreme Court agreed with the district.

To start, I have a hard time accepting that a cyber charter school can offer a kindergarten class. While young kids are using computers ealier and earlier -- I have seen it -- I cannot believe that a four-year old would be able to sit through computer based instruction requiring keyboarding and sitting still to interact for extended periods.

Regardless, this decision is just as applicable to 'brick and mortar' charter schools. In those, it is conceivable that the charter could have used the Charter School Law as a vehicle to offer glorfied day care to younger kids. This decision will put a stop to that if it was happening.

What it will also likely stop is charter and cyber charter schools offering pre-K programs. Why? Because if the school districts do not have to pay for it, and the law forbid the schools from collecting that tuition from the residents, then there will be no one paying the school.

For those who believe in starting early education, this is likely viewed as a defeat. But for those managing school district budgets, I am sure it is a win.

You're Outta Th ... huh ... no? Still Working in PA's Schools

Kyle Berman — Tue, 29 Nov 2011 09:59:14 -0500

I recently received yet another call from a current school employee (working at a school Fox Rothschild does not represent) who had a problem because of old criminal conduct. Obviously, with all this continuing interest, it is a good topic for discussion.

This call came from a non-professional employee (i.e. someone not requiring a certificate to work in the school) who had an old prior conviction for a §1-111(e) offense. At the time the school hired him, his conviction was more than 5 years old. Therefore, under the old version of the law he was eligible for employment.

Before going any further, it is important that this is a non-professional employee. PDE is interpreting 24 P.S. §2070.9a(2) to mean that all old §1-111(e) offenses (even those that did not used to fall into that category) that a school learns about through the new self-report must be passed-on to the Professional Standards and Practices Commission. Action by that commission can impact on a teacher's license which can then cause the teacher to be fired.

But back to the non-professional employees.

The new language for §1-111(e) starts off with

[n]o person subject to this act shall be employed in a public or private school, intermediate unit or area vocational-technical school where the report of criminal history record information indicates the applicant has been convicted of any of [the listed offenses].

However, this language is directed at "applicants" not at current employees. Restated, the above says 'no school may offer employment to a person where that applicant's criminal record shows a conviction for ....' Oddly, there are some school administrators that are ignoring the plain language of the statute and interpreting that language to mean that current employees who were properly hired need to be fired.

There is a School Code provision covering current employees who get convicted of new offenses, but that is found at §5-527(b). Moreover, it only applies to convictions taking place while employed. Convictions prior to employment do not count.

So, as it applies to this guy, the amended §1-111 will keep him from getting a new position in a new school, but should have no impact on his present position. Because he cannot get a position in any other school, it would seem to me that he might want to do what he could to keep this job.

There are lots of reasons a school employee can be fired, and the above school might have one of those reasons. My point is that as it is written, §1-111 should not be used as the sole basis for firing any current employee.

BB Gun Not a 'Weapon' in Florida Schools

Kyle Berman — Mon, 28 Nov 2011 13:41:52 -0500

The Florida courts have come to the interesting conclusion that a BB gun is not a weapon and reversed the resulting school discipline imposed. This could happen to you.

-- More below --

Initially, it is important to note that this is from the Florida state court (not federal) and is interpreting Florida law, so it has no direct application to Pennsylvania schools. Yet the lesson is a cautionary one for schools everywhere.

In that case, a weapon is defined very specifically as a firearm, any one of a number of other specific but inapplicable items, or the catch-all of a "deadly weapon." That later term is also specifically defined within Florida caselaw as "one likely to produce death or 'great' bodily injury."

Even after reading the case, I am not clear why they did not proceed with the BB gun as though it was a firearm -- it fires a projectile in the same fashion -- but that may just be another facet of Florida law. In any event, the question for the court was whether the BB gun was likely to produce death or great bodily injury. The ultimate decision was no.

Because the BB gun could not be defined as a weapon, the disciplinary actions taken by the school, which the school had taken predicated upon the student possessing a weapon, were reversed.

I suspect that the Pennsylvania courts would have found the BB gun here a weapon, but at the same time this would not have been an issue if the policy under which the student was disciplined had not been so narrow in what it prohibited. In the end, that is the cautionary message: figure out exactly what the school wishes to ban and ensure that the policy will accomplish that end.

The Florida case is A.H. v. State of Florida, 2011 WL 4809171 (Fla.App. 4 Dist.). (Sorry, cannot link to it).

Banged up Pennsylvania Students

Kyle Berman — Tue, 22 Nov 2011 15:46:09 -0500

No, this has nothing to do with any current high profile news. Instead, this is to note that apparently, Pennsylvania's students are not as tough as we (and they) through they were.

Our students are injuring their brains playing sports. In response, the Pennsylvania legislature passed a bill that says once a kid starts looking like he or she has a concussion, that student cannot play again until passed by a doctor.

More below.

The new legislation is found in Act 101 of 2011, titled the "Safety in Youth Sports Act," and its text can be found here. It imposes penalties mostly against coaches for not taking the proper action, but it also totally insulates those coaches from civil liability where they take that stated action.

To help ensure that coaches know what to look for, the Act requires annual education of coaches to recognize the signs of a concussion. It also requires a sign-off by student athletes and their parents/guardians. There are a few more optional but encouraged items, too.

I really do not have a gripe about the Act itself. My issue is more systemic. The legislature regularly saddles schools with requirements without giving those schools funds to accomplish the desired ends. Those are called unfunded mandates. I get reminded of how much schools dislike such unfunded mandates when I read Acts such as this with the accompanying "fiscal note' (in this case it is found here).

The fiscal note in this case reassured the General Assembly that the members can pass the legislation without worrying about an impact on Commonwealth funds. Of course, there is nothing there about the impact on the schools that have to implement the Act.

Obviously, being aware of concussions and taking action to avoid them is worthwhile, but that does not change that this is yet another unfunded mandate imposed on the schools of Pennsylvania.

By the way, for those that thought this only applied to public school districts, I have a surprise: it specifically says that it is also applicable to all non-public schools that have elected to be part of the PIAA. It also applies to both interscholastic sports AND club sponsored sports activities AND sports activities sponsored by school-affliated organizations.

Pennsylvania Schools and What Good are the Criminal Background Checks

Kyle Berman — Tue, 11 Oct 2011 15:31:27 -0500

I was working on something or other yesterday when I got a call from a news reporter in the area. No, I did not get quoted, and it was not to get my life story, but his questions about the amendments to the School Code's §1-111 got me thinking about the uselessness of the new amendment. If any of the legislation's sponsors are reading this, I am sorry.

Mostly, I am focusing on the self-reporting requirement for old offenses that appears at §1-111(j)(1-3). And what's my issue? It has no teeth. If a school employee is newly arrested or convicted of one of the listed offenses, the amendment says he has to report it. Fine. If the arrest results in a conviction, he must report that, too. At that point, the School Code's §5-527 requires that the school district fire him.

But what about the old conviction that the employee is required to report? Nothing. Section 1-111(e) bars anyone from being "employed [by a] school ... where the report of criminal history record information indicates the applicant has been convicted of ...." So, first of all, this only refers to prospective employees not current ones, and secondly, the conviction has to appear on the report of criminal history record information, which the self-report is not.

What is a district to do when it gets a completed self-report form that admits to old arrests or convictions? Unfortunately, the statute does not give any authority to act.

There is another minor hole, but one that is really more academic than real.

The criminal history report from the FBI and PA State Police can be up to a year old at the time the person is hired. An applicant could apply, get their criminal clearances done, THEN go out and commit an offense. If they manage to get convicted prior to starting on the new job, the statute does not provide a mechanism to fire such a new employee.

Are school districts or insurance carriers responsible to pay for autistic students to receive services and treatment in a school setting?

Pamela Halpern — Tue, 30 Aug 2011 10:49:23 -0500

Both- according to a recent Philadelphia Court of Common Pleas decision.

Judge Fox ,in the case of Anthony Burke v. Independence Blue Cross, ruled that the PA Autism Insurance Act ("Act 62"), which went into effect on January 1, 2010, requires that if an insurance carrier chooses to cover a type of treatment or service for any other condition, then it must also cover that treatment or service for autism service disorders regardless of setting. Meaning, even if a health insurance policy otherwise excludes services in schools, Act 62 overrides such an exclusion because Act 62 provides that insurers must pay for rehabilitative care, including applied behavioral analysis ("ABA"). While Judge Fox noted the overlap between IDEA and Act 62, he ultimately decided that the legislature, by creating overlapping statutes, purposely chose to pass some of the cost of ABA services to insurance carriers. Of course the decision in Burke has no relevance when Act 62 does not apply, such as in the case of self funded healthcare programs.

Not surprisingly, Independence Blue Cross filed their appeal on August 16, 2011.

W-2 Forms NOT Subject to Right To Know Disclosure in PA

Kyle Berman — Mon, 08 Aug 2011 11:55:26 -0500

After all the prior fighting over requests for W-2 information, the PA Commonwealth Court has finally taken a position on such requests.

Almost exactly two years after she issued her prior Right to Know bombshell, Senior Judge Rochelle Friedman -- this time with a unanimous panel backing her up -- has now put to rest the question of whether a requester may obtain a copy of a public employee's W-2 tax form. Her definitive answer was NO.

The opinion decides the matter entirely on the basis of federal law, but notes that it would likely have come out the same way under Pennsylvania law.

In truth, the opinion is not all that long and the examination of the law is rather straight forward. In fact, when reading this one wonders how the OOR came to a different conclusion.

The case is Office of the Budget v. Campbell, 1745 C.D. 2010 and can be found here.

Failed Cheerleader Does Not Make Squad, Sues

Kyle Berman — Tue, 19 Jul 2011 13:07:27 -0500

Thanks to Aaron Weems of Fox Rothschild's litigation (family law) division for noticing this item detailed in the Dallas Observer's blog. In truth, even though it is from the 5th Circuit, it is quite a good discussion of foundational requirements to prove student on student Sexual Harassment in school. The cases it cites are almost exclusively from the U.S. Supreme Court rather than 5th Circuit matters.

So what was the case about? To quote Circuit Judge Smith:

[r]educed to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.

Hear, hear! You tell them Judge Smith!

The case, Sanches v. Carrollton-Farmers Branch Independent School District, can be read in full here.

Who Taxes the Taxman?

Kyle Berman — Wed, 29 Jun 2011 12:42:44 -0500

So long as they are not intentionally driving the tax collector out of business, and are not being otherwise "arbitrary or capricious," local taxing authorities -- such as PA School Districts -- are apparently allowed to pay their tax collectors however little they would like.

There was a case decided this week that examined this issue. There, it noted that there have been cases where taxing bodies have gone too far, such as when the compensation was lowered to $1 for every tax bill paid with no rationale offered for the change. On the other hand, the move has been upheld where the tax collector complained that the change would mean a 70% reduction in earnings. In the particular case examined, the court said the compensation level was legal. In reaching that decision the court indicated it will look to industry standards for what is reasonable and not at traditional practices.

So the take away from this is that the tax collector, the face of the taxing body, was likely never really appreciated by those being taxed. Now, it appears that those receiving those tax dollars may not have to give much appreciation, either.

The PA Commonwealth Court case is Baker v. Central Cambria School District, 1872 C.D. 2010, and is available here.

May Entirely Deny Access Where Fee Not Paid

Kyle Berman — Tue, 28 Jun 2011 12:04:33 -0500

Apparently, if you want to complain that an agency in PA improperly redacted information from documents, you have to first pay for and receive the redacted documents.

Indiana University of Pennsylvania (IUP) received a request from one of its own journalism professors -- how's that for loyalty -- for documents belonging to IUP's foundation (a separate but contractually connected entity). The foundation cooperated and copied the documents and sent them to IUP. The copying charges were $118. IUP then offered the documents to the requester, with various redactions, upon payment of the copying charges. Instead of paying the copying charges, the requester simply appealed the redactions to OOR.

Although the OOR sided with the requester, the PA Commonwealth Court reversed and said that the request was properly denied.

In fact, the court said that until the requester actually paid the fee, the agency had an absolute right to deny access. This was the case even though IUP notified the requester what it was offering and what was being redacted and that the appeal was based upon that notice.

The case is IUP v. Loomis, 1960 C.D. 2010, and can be found here.

Examining the Public Policy exception to the Essence Test in employment matters

Kyle Berman — Thu, 23 Jun 2011 11:31:00 -0500

Today, the PA Commonwealth Court decided a case that further interpreted and gave a fairly concrete standard for deciding whether a Pennsylvania court may over-rule an employment arbitration award based on public policy.

The process the Commonwealth Court stated should be followed is this:

Determine the conduct leading to the discipline;
See if that conduct implicates a "well defined, [and] dominant" public policy. This policy must be based on "laws and legal precedents and not from general considerations of supposed public interest;"
Figure out if the arbitrator's award "poses an unacceptable risk that it will undermine the implicated policy and cause the public employer to breach its lawful obligations or public duty, given the particular circumstances at hand and the factual findings of the arbitrator."

Because of the particular circumstances of this case, the Commonwealth Court found the arbitrator was within his authority when he reinstated the employee even after finding the employee had stolen money from a member of the public.

The case is City of Bradford v. Teamsters Local Union No. 110, 1804 C.D. 2009, and can be found here.

UPDATE:

As an added note, if you wish to read about the original case that changed the standard to the one the Commonwealth Court applied here, you can read about it in a prior post from this blog here.

Supreme Court Holds that First Amendment Right to Petition Government only Applies to Matter of Public Concern for Government Employees

Timothy Gilsbach — Tue, 21 Jun 2011 11:50:51 -0500

The Supreme Court has held that in order for the actions of a public employee to qualify for protection under the First Amendment’s Petition Clause, it must relate to a public concern. In the case of Borough of Duryea v. Guarniere, the Court ruled that the action of filing a union grievance related to a police chief’s alleged improper termination and changes in duties was not a protected activity and, thus, actions taken by the employer in response to the was not retaliation for exercising First Amendment rights.

The Court explained that government employees can act as citizens and, when discussing public concerns, could engage in petitioning the government and that such actions would be protected under the First Amendment. However, when an employee’s complaint relates to the employee’s own duties, that is not a matter of public concern and, thus, not protected. As the Court explained, “The right of a public employee under the Petition Clause is a right to participate as a citizen through petitioning activity, in the democratic process. It is not a right to transfer everyday employment disputes into matters for constitutional litigation in the federal courts.”

The Court explained in determining whether a particular activity was of public or private concern, the whole record regarding the content, form and context of the petition needed to be reviewed and the forum in which it was raised needed to be considered.

Pa. State Legislature Considers Changing Special Education Funding Again

Timothy Gilsbach — Thu, 09 Jun 2011 07:23:15 -0500

The Pennsylvania State Legislature is again considering changing the manner in which it funds special education in local school districts. You may recall that a similar effort was made two years ago, but the legislation simply got stuck in committee in the Senate after being pasted by the House.

As was noted the last time that a change was considered, the caluculation used to determine the amount of money allocated to each school district presumes that 16% of a school district's students are special education students. There are two bills, House Bill 704 and a corresponding bill in the State Senate.

Both bills were only recently introduced and will likely go through several changes as they make their way through committees. Check back for further details on this legislation.

Parents' Attorneys Beware - Guidance on Fee Shifting

Timothy Gilsbach — Wed, 08 Jun 2011 14:10:24 -0500

In a case out of the Second Circuit Court of Appeals addressing a fee shifting provision similar to the IDEA, which allowed prevailing parties to recover counsel fees under the Fair Labor Standard's Act, the Court found that an attorney could not recover fees for time for which he did not keep contemporaneous time records.

In the case of Scott v. City of New York (2d Cir. 2011), the Court denied the request of the prevailing party's fees for time the attorney spent on the case, but did not contemporaneously keep records of. The only leeway the Court gave was to allow the attorney to recover for time that he spent in court or in conferences with the court for which there was a record of the appearance and a means by which to determine the length of time for the appearance.

This could have implications in other fee shifting cases, including IDEA and Section 504 cases, in the same manner. This case should be a warning to counsel for parents who intend to seek fees to keep accurate and contemporaneous time records and offers schools district counsel a possible weapon to attack fee demands.

School Districts Beware - Limit the Use of "Opt-Out" or Health Benefit "Waivers"

Jeffrey Sultanik — Tue, 17 May 2011 12:52:28 -0500

For many years, school districts have utilized “opt-out” or “waiver” payments to provide an incentive for employees to not take the health benefit plans offered by districts to its employees. These “waivers” were used most heavily when districts provided for 100% of the premiums for health benefit coverage. As the employees’ share for health benefit premiums has increased, these waiver payments have had less success or certainly had less significance that they once had in the overall health benefit planning for an employer.

“Opt-out” provisions are very popular with many employers. However, while they are not yet prohibited, they will come under additional scrutiny due to the new "temporary high risk insurance pool" funded by the federal government, which will remain in existence until January 1, 2014. Basically, the high risk insurance pool will cover those individuals who have high risk claims and have not had health insurance for a period of at least 6 months. It is expected that the government will attempt to recoup any amounts it pays for high risk claims from employers that incentives their employees not to enroll in employer-provided coverage. Therefore, while it is not illegal to provide an opt-out bonus to its employees, the district faces some risk in continuing to do so.

Some Clarification Provided on Duty of Intermediate Units to fund Typical Pre-School

Timothy Gilsbach — Thu, 12 May 2011 12:25:35 -0500

There has been an ongoing dispute in Pennsylvania over when, if at all, the provider of early interventions services, typically an intermediate unit, is require to fund the placement for a student in a typical preschool. A recent Hearing Officer decision on this issue helps to provide some guidance on this issue, although the line of when such services are required still remains unclear.

The first case to decide this issue, B.D., ODR No. 00062-0910 AS (SEA Pa. 2010), found that the student in that case required preschool in order to meet the student’s special education needs, but appeared to suggest a broader requirement to fund such placements despite the clear direction by the Pennsylvania Commonwealth Court that no such duty exists. The more recent case of J.D., ODR No. 01524-1011 AS (SEA Pa. 2011) addresses this issue more directly by explaining that while such programs are clearly beneficial for all children, disabled or not, generally there is no duty on the part of intermediate units to fund such placements. While the J.D. decision suggests that in some cases a student’s needs might require a typical pre-school, the decision puts the burden on the parents to establish the same.

Both decisions are a warning to intermediate units and other providers of early intervention services to carefully draft IEP’s and identify the needs of early intervention students or run the risk of being responsible for funding a typical preschool.