October 1999 ~ Volume 13, Issue 2
Ounce of Prevention News
Information and Ideas for Practical Problem Solving in Special Education
Return to the Articles Index Return to the Issues Index
In this issue:
Statewide School Safety Information Policy...............................................................1
Appropriate Legal Standard In Part C Cases............................................................1
Tragedy at Columbine Highlights CASE Conference...............................................2
FAQ's ........................................................................................................................2
No-Fault Insurer Not Obligated to Pay Nursing Services.........................................6
IMPLEMENTING THE STATEWIDE SCHOOL SAFETY INFORMATION POLICY
1999 Public Act 102 directed the Superintendent
of Public Instruction, Attorney General and Director of the State Police to adopt and
publish a Statewide School Safety Information Policy. The Statewide Policy, a sample local
agreement to implement the Policy and a School Safety Response Guide were issued on
October 4, 1999. (Retainer clients can download copies of these documents from our
website.)
Act 102 requires each local school board to meet and confer with the county prosecutor(s) and local law enforcement agencies regarding implementation of the Statewide Policy and begin compliance with it by January 2, 2000. The Policy establishes a list of reportable incidents occurring at school that must be reported to law enforcement agencies and also establishes procedures to be followed when such an incident occurs. The Act defines "at school" as "in a classroom, elsewhere on school premises, on a school bus or other school-related vehicle, or at a school-sponsored activity or event whether or not it is held on school premises."
Reportable incidents under the Policy are:
- armed subject or hostage
- suspected armed subject or hostage
- weapons on school property
- death or homicide
- drive-by shooting
- bomb threat
- explosion
- arson
- sexual assault (criminal sexual conduct)
- robbery or extortion
- unauthorized removal of student
- threat of suicide
- suicide attempt
- larceny (theft)
- intruders
- illegal drug use or overdose
- drug possession or drug sale
- vandalism or destruction of property
- minor in possession of alcoholic liquor or tobacco products
- bus incident and accident
Under the Policy, a "bus incident" includes any of the other reportable incidents that occur on a bus. The Policy does not define what constitutes a "threat of suicide." Physical assaults and fights may be reported but reporting is not mandatory. The Policy recommends reporting of assaults if the victim is a staff member, there is actual or alleged injury, or a weapon is used. For purposes of the School Safety Information Policy, "weapon" is defined as firearms, bombs, silencers, double-edged non-folding stabbing instruments, a switchblade, a blackjack, slingshot, billy club, bludgeon, metallic knuckles, sand club, sand bag, a taser or stun gun, a gas ejecting device that is not a self-defense spray device, or any other article carried or possessed for use as a weapon, e.g. a tire iron, or baseball bat carried for purposes of assault or defense. Additional types of reportable incidents may be added at local discretion.
The Policy establishes specific procedures that are to be followed by staff and the building principal's office in responding to each type of incident. To the extent these procedures differ from procedures districts currently have in place, district staff and administrators will need to be provided training/instruction on their implementation.
The Act expressly provides that reporting of information by school personnel to law enforcement agencies is subject to the requirements of FERPA, which limits the ability of school districts to provide personally identifiable information from student educational records to outside agencies, including law enforcement agencies. Districts will need to review their current FERPA policies and procedures and revise them as necessary to ensure that the mandatory reporting required by the Statewide Policy is done in compliance with FERPA requirements. It should be noted that FERPA does not prevent school officials from disclosing information to law enforcement agencies that is based on personal knowledge or observation and is not obtained from an educational record.
Implications:
There are several aspects of the Statewide Policy of particular note to special education. The first is the definition of the term "weapon" in the School Safety Response Guide. The definition is different than either the federal definition of "dangerous weapon" used in the interim alternative placement provision of IDEA or the definition of "dangerous weapon" in the mandatory expulsion provisions of the Revised School Code. Thus, whenever a "weapon" is used in an incident, the appropriate definition should be reviewed before taking action. For example, a particular "weapon" may trigger mandatory reporting, but not be a basis for placement in a 45-day interim alternative placement or, conversely, be a basis for an interim alternative placement but not trigger mandatory reporting.
The second is the handling of a "threat of suicide." As the term is not defined, what constitutes a threat is a matter of judgment. Districts should already have in place procedures for addressing such threats that include involvement of appropriate district staff and parent notification. A statement or act deemed to constitute threat of suicide must now also be reported to a law enforcement agency but FERPA concerns are particularly acute in this situation. Personally identifiable information from the student's educational records may be released to police without parental consent only if the threat presents an emergency and knowledge of the information by police is necessary to protect the health or safety of the student or others. See, 34 CFR 99.36.
The third is the relationship between reporting and the district's continuing responsibilities. IDEA provides that schools may report crimes committed by children with disabilities to law enforcement agencies. The Statewide Policy makes reporting mandatory for certain crimes. Reporting, however, has no effect on the district's right to take appropriate disciplinary action or on its ongoing obligation to continue to provide educational programs and services to the student until and unless the student is confined in a facility that provides educational services (e.g., a juvenile detention facility) or is located outside the boundaries of the district (e.g., a county jail).
A Federal District Court Addresses The Appropriate Legal Standard in Part C Cases
IDEA-97 moved the provisions dealing with infants and toddlers with disabilities from Part H to Part C of that law. In one of the first reported cases decided under Part C, a federal district court has held in Wagner v. Short, 31 IDELR §53 (D MD, 1999), that the proper standard for determining the appropriateness of an Individualized Family Service Plan (IFSP) is whether it is reasonably calculated to provide the child with developmental benefit.
In Wagner, the parents of a 21 month old toddler diagnosed with autism contacted the county infant and toddlers program, which was responsible for providing Part C services. The parents advised the county that they wanted the child enrolled in an intensive applied behavior analysis (ABA) program operated by a private organization.
The private program normally did not accept children until they reached age three and placements were made through the school district. The county requested releases to review all of the parents' private evaluations and a consent to perform its own evaluation. A draft IFSP was created that included a commitment to work with the school district to obtain the child's admission into the private ABA program.
The parents provided one of five private evaluations and refused consent for the county to evaluate. The county met with the school district to discuss admission into the private ABA program but the district expressed concern with the lack of information about the child's needs.
The parents then requested a due process hearing and refused to cooperate. Following a two-day hearing, the hearing officer upheld the draft IFSP on the basis that it was reasonably calculated to provide the child with developmental benefit. The parents then appealed to federal district court. The procedural safeguards section of Part C of IDEA, in § 1439(a)(1), provides for an administrative process to resolve parental complaints and then provides for appeals to state or federal courts in language identical to the Part B language in § 1415(i)(2). The court observed that, while the focus of Parts B and C are different in that Part B promotes educational benefit while Part C is concerned with meeting the developmental needs of infants and toddlers, "the basic structure and purpose of Parts B and C are strikingly similar and the standard for Part B cases provides much guidance in Part C cases."
The court in a Part C case has the same authority as it does in a Part B case to grant "such relief as the court determines is appropriate." The county moved to dismiss the case as moot because the child was now three years old and no longer eligible for Part C services. Relying on cases decided under Part B awarding compensatory education, the court ruled that the case was not moot because the court could award compensatory services if it found that the child had been deprived of appropriate services under Part C.
The court rejected the parents' contention that Part C services are "virtually unlimited." The court found that the hearing officer had properly analogized the Part B standard established by the U.S. Supreme Court in Rowley (whether the services offered were reasonably calculated to enable the child to receive educational benefit) in determining the appropriate legal standard in a Part C case. The court agreed with the hearing officer that the proper standard is whether the early intervention services offered were reasonably calculated to provide the child with developmental benefit.
Applying this standard, the court affirmed the decision of the hearing officer that the proposed services in the draft IFSP were appropriate. The court observed that the appropriateness of the parents' proposed program could not be determined because of their refusal to cooperate and provide information and "it would defy logic to fault" the county because of the parents' unwillingness to cooperate.
Implications:
In this case, the court adopted a legal standard that puts a meaningful limitation on the scope of services required to be provided under Part C. The court squarely rejected the claim that Part C services are open-ended. The services offered must provide meaningful developmental benefit to the child but they do not have to be the "best" or maximize the child's potential. Although in Michigan some Part C eligible children may also be eligible under the Michigan Mandatory Special Education Act, court decisions interpreting Michigan's maximum potential standard have held that this standard "may be more precatory than mandatory" and that it does not require the "best" or a "model education." (See OP News, Vol. 12, Issue 12 for a discussion of Renner v. Board of Education of Ann Arbor Public Schools and the 6th Circuit's take on maximum potential.)
Equally significant is the court's reliance on caselaw developed under Part B. The United States Court of Appeals for the Second Circuit took the same approach several years ago in deciding a case under former Part H. (Still v. DeBuono, 25 IDELR 32 (2nd Cir, 1996). There is, of course, now a well-developed body of caselaw under Part B. We can expect that when hearing officers and courts consider Part C cases, they will look to these Part B decisions for guidance, as the court did here in ruling that compensatory services could be awarded under Part C.
Tragedy at Columbine Highlights CASE Conference
There was not a dry eye in the audience as Marilyn Saltzman, Manager of Communication Services for the Jefferson County Schools, Jefferson County, Colorado, gave a keynote address at the recent 10th Annual CASE Conference in Chandler, Arizona. Entitled "The Columbine Crisis: Managing the Unthinkable," her address described how Jefferson County Schools handled the Columbine tragedy as it unfolded, and the steps taken since to deal with the emotional aftermath and hopefully to prevent future incidents of violence.
The irony of Columbine is that it occurred the same day as the Jefferson County Schools' "Good News Breakfast" which had been instituted several years earlier because of a desire to focus on the good things that were happening in the community. Another irony is that the district had just recently finished reviewing its crisis management plan.
Procedures that were used during the incident included:
Ms. Saltzman indicated that in the days immediately following the event there was an incredible need for information. This was true both with respect to the community and with respect to the media in general. Community needs were addressed by having a closed meeting with the parents, and by daily staff meetings. "One clear voice" (one primary contact person) and "Will it help the students heal?" became key rules of thumb for dealing with the media.
When school resumed at an alternative site, the district experienced the need for increased staff, for example, homebound teachers to assist students who were physically or psychologically unable to attend school; mental health counselors for the "safe room" where students or staff could go if experiencing post-traumatic stress, and on-call substitute teachers to relieve teachers experiencing stress during the instructional day.
Prospectively, Jefferson County Schools has two goals: safety and healing. While the media is a fact of life, Jefferson County Schools has taken the position that the district does not need to apologize for protecting students from the media. Again, the key question with regard to any media access is "Does this activity help the students heal?"
In terms of preventing future violence, Ms. Saltzman reported that Jefferson County Schools is looking at "high tech" and "high touch" measures. The district has decided not to install metal detectors, but is looking at more security staff and magnetic card as opposed to keyed entry. The district has installed tip boxes and tip lines so that students and citizens can inform authorities if they suspect that there is a risk of school violence. In the "high touch" area, the district is looking to create an environment where every student feels safe and valued. Using the coach-athlete relationship as a model, the district is seeking to provide a mentor relationship for every student. The district has also implemented "safety" programs including "bully-proofing" the schools, conflict mediation, peer mediation, peer advisement, and diversity efforts.
Bottom line, relationships seem to be the best crisis prevention plan; and relationships with community agencies, police, and hospitals are the key to crisis management once violence has occurred.
Q. Is the biological father of a child with a disability automatically considered to be a "parent" for purposes of IDEA?
A. No. Neither the definition of "parent" in IDEA nor the definition in the implementing regulations address the issue of how one acquires the status of a "parent." The position of the Office of Special Education Programs (OSEP) has always been that state law governs the rights and responsibilities of parents under IDEA. See, e.g., Letter to Shisk, EHLR 211:179 (OSEP, 1979).
Under Michigan law, if a child is conceived or born during a marriage, the husband and wife are considered the parents unless there has been a judicial determination that the husband is not the child's father. If the mother is not married, however, the father does not acquire the legal status of a "parent" unless certain required actions are taken. Merely placing the father's name on the birth certificate does not make him a "parent."
Under the Acknowledgment of Parentage Act, the mother and father can jointly complete an acknowledgment of parentage form. When the form is signed by both, notarized and filed with the state registrar of vital records, the father acquires the rights and responsibilities of a "parent." Alternatively, a court can enter an order of filiation under the Paternity Act, determining that a person is the child's father and imposing the rights and responsibilities of a "parent" upon him.
Once a father acquires the status of a "parent," that status can be ended only by a court order terminating parental rights. As long as he has the status of a "parent," he is entitled to notice under IDEA. Whether he has a right to consent to IEPs or to request a due process hearing will depend on whether he has a right to participate in educational decision-making for the child and will generally depend on whether he and the mother are now married or share joint legal custody.
Farmers Insurance Exchange v. South Lyon Community Schools, 31 IDELR § 4 (Mich App, 1999) involved a student who became disabled as a result of an automobile accident. The student is a quadriplegic, has a tracheostomy, is ventilator-dependent and requires 24-hour-a-day nursing care. The no-fault insurer had paid for nursing services at school for several years. It brought suit, seeking a declaration that the school district was required to provide the services during school hours and reimbursement for money it had paid for such services.
The Michigan "no-fault" statute requires a set-off of benefits provided or required to be provided under state or federal law if they serve the same purpose as no-fault benefits and are as a result of the same accident. The insurer is entitled to the set-off if the benefit is available, even if the injured person does not seek or receive it.
In this case, the IEP did not provide for nursing services as a related service but the district stipulated in the lawsuit that the student required nursing services to be able to attend school. The court thus found that the nursing services were a "supportive service" under IDEA because without them the student could not benefit from special education and, under the U.S. Supreme Court's recent decision in Cedar Rapids Community School District v. Garret F., were not an excludable medical service. The court thus found that they were a "related service" under IDEA and the insurer was entitled to a set-off under the no-fault act and reimbursement of amounts already paid.
Implications:
In light of this decision, insurers will undoubtedly refuse to pay for health-care services that students who are disabled as a result of automobile accidents require to be able to attend school. Districts will need to address this issue in IEPs and provide required services as a related service. It is up to the IEP to determine the services actually required. In many cases, a trained health-care aide may be sufficient.