Wellness Update: Smart Snacks, Fundraisers, and the USDA

The Nebraska Department of Education has released its state specific rules in compliance with the Healthy, Hunger-Free Kids Act of 2010. All boards must fully comply with the requirements of the final rule by June 30, 2017. The USDA has released a new requirement that all boards must have a Charged Meal Policy in place by July 1st , 2017. KSB Policy Service Subscribers will receive policy options on this new requirement in our School Meal Policy, but we’ll discuss it here since it’s in the Wellness Wheelhouse (trademark pending).

The Healthy, Hunger-Free Kids Act

The new federal regulations focus on higher nutrition standards, more physical activity, and more community involvement. One question not answered by the federal regulations was whether or not food sold during fundraisers was exempt from the new wellness standards. The regulations leave that decision to the state education agencies.  NDE has decided not to issue an exemption. This means that all fundraiser items sold during the school day must follow the Smart Snacks in School nutrition standards provided by the USDA.

Before you deliver this news to your school support groups and concessions stand operators, this only applies during the school day. Concession stands at student events and after-hours fundraisers are still permitted to stock delicious food items with little or no nutritional value. Even during the school day, fundraising items sold in bulk intended be consumed at home (e.g., tubs of cookie dough) are not subject to the Smart Snacks standard.

Of course individual schools are welcome to adopt a more stringent standard. Examples of policy language are available that offer the full “Carrots & Celery” policy, which bans birthday cupcakes, celebration snacks brought by parents, and general happiness. NDE has posted a webinar complete with sample policy wording, which can be found here. If you are a KSB Policy Service subscriber, we will be sending you a policy consistent with our philosophy which will give schools the maximum flexibility while still complying with the new legal requirements. Any board that would like a more robust and restrictive policy can contact us, and we would be happy to help you craft a custom policy.

USDA Charged Meal Policy Requirement

The new USDA requirement states that boards must have a published policy that details what the school will do in the event a student lacks funds to purchase a meal, has not brought a meal, and is not enrolled in a free meal program (AKA a “Charged Meal Policy”). The USDA does not dictate the policy specifics, only that each board have a published policy, even if their state has not created one. In our experience, every district has a practice on what happens when students don’t have enough money in their school meal accounts. This regulation now requires that this practice be written out in policy and approved by the board.

If you have additional questions about compliance with the Wellness Standards, or the new Charged Meal policy requirements, you should consult with your school district’s attorney, or call Karen, Steve, Bobby, or Tim.

Breaking: Transgender Update

There has been a significant change in the status of the pending transgender

case before the Supreme Court.

The Trump Administration Moved Away from Obama Administration

Positions, and the Supreme Court Took Notice. As we explained in our

last update, the Departments of Education and Justice have withdrawn the

“Dear Colleague Letter” which required schools to treat students consistent

with their gender identity. This change in position for the federal government

has now affected the G.G. v. Gloucester County case which was scheduled to

begin argument before the Supreme Court this month. We had hoped it

would provide clarity on this issue, but instead the questions presented will

be delayed even further.

The Court has “vacated” the decision of the Fourth Circuit and sent the case

back down to the lower courts for further deliberation after the federal

agencies withdrew the transgender guidance issued under the Obama

Administration. As you may recall, the Fourth Circuit’s position was that

courts should listed to the Obama Administration’s Department of Education

and Department of Justice when they interpreted Title IX regulations about

rights of transgender students. They had previously said schools should

defer to students’ gender identity. Because that guidance has changed, it

remains unclear how this case will resolve.

Transgender Issues Remain Unsettled. These events make one thing

obvious: the law in this area remains unsettled, and the federal

government’s position is in flux. Interestingly, both sides did tell the

Supreme Court that the questions at issue were still ripe for adjudication.

However, this decision signals that the Court likely believes the Trump

Administration should have the opportunity to participate at the lower court

level if it chooses to do so.

There are several other transgender cases pending at various levels of the

federal court system which could now come into play down the road. Some

of those cases have found for the student and others for the school. So, it is

possible one of those cases will work its way up to the Supreme Court, but

that likely will not be this year.

What are the next steps for Nebraska boards of education? As

frustrating as this is, we continue to believe that the best decision is to wait

for further developments in the law. We believe boards can continue

operating under their antidiscrimination policies as written, without

specifically including “gender identity.” Our best practical advice is for

boards to permit their administrators to work with families one-on- one with

accommodation requests. At its core, Title IX expects individualized

consideration of student needs, so avoiding the sweeping policy decisions

makes sense to us.

A Note on Public Statements. We anticipate that agencies like the ACLU

will continue to take the position that students are protected from

discrimination and should be accommodated on the basis of their gender

identity. As board members and administrators, you do have the right to

form your own personal opinions, and you have First Amendment rights to

free expression. However, as school attorneys we believe that our job in

defending your board’s decisions could be more difficult if administrators and

board members make sweeping public pronouncements about this issue.

We are encouraging board members and administrators keep their own

counsel and refrain from making statements about the issue of transgender

student rights in their official capacities, even as parents, patrons, and

others may have very strong viewpoints on either side of this issue. We

certainly believe personal convictions can and should drive policy in your

community; however, on this particular issue we believe your district will be

in the best position to defend its actions if the discussion of these issues is

focused on the legal questions. Because those remain so unclear, waiting

for additional clarification makes sense to us.

If you have questions or concerns about these or any related issues or are

interested in your board’s policy options, we recommend that you consult

with your school district’s attorney or call Karen, Steve, Bobby, or Tim, our

new attorney here at KSB.

The First Four Weeks: What We Know So Far

During the first month of the Trump presidency, the news headlines have been

filled with things the new president has done and how the country is responding to

those actions. There’s a lot of noise out there, but there were not many changes

of substance for schools. That has changed over the past few days. We have

sorted through the executive orders and other actions to date and want to pass

along this update on the education-related issues which are evolving in Trump’s

administration.

DOJ/DOE Repeal Transgender Guidance. On February 22, the Departments of

Justice and Education (DOJ and DOE) withdrew two prior guidance documents

regarding the rights of transgender students in schools. The more famous of the

two documents, the “Dear Colleague Letter” released in May 2016, is the letter

which definitively stated the enforcement positions of both departments and

prohibited schools from doing things like prohibiting transgender students from

using facilities (like restrooms and locker rooms) consistent with their gender

identity as opposed to their biological sex. Combined with the passage of the

Nebraska School Activity Association policy on participation of transgender

students in school activities, this issue got a lot of attention and news headlines in

Nebraska and nationwide. Now, those guidance documents have been repealed.

You can find the DOJ’s letter repealing the transgender guidance here, and the

DOE’s version here. A general theme of the statements by the DOJ and DOE is

that “there must be due regard for the primary role of the States and local school

districts in establishing education policy.” The agencies have vowed to “more

completely consider the legal issues involved.”

The focus now turns to two issues: first, how the DOJ and DOE will enforce Title IX

with respect to transgender students, and second, what will happen with cases

making their way through the court system in light of the withdrawal of the

guidance document. In particular, the G.G. v. Gloucester County School Board

case is set for argument before the Supreme Court on March 28, 2017. The G.G.

case may still answer some of the legal questions on this issue, but more will

become clear on that in the coming weeks. For now, our sentiment on this issue

remains the same. It’s best to proceed slowly and with caution until there is more

certainty. Schools have always done what’s best for all students and addressed

student needs on a case-by- case basis. We continue to think that approach makes

a lot of sense.

Supreme Court Rules in Fry v. Napoleon. Speaking of the Supreme Court, on

February 22, the Court ruled in the case of Fry v. Napoleon. This case asked an

important question for public schools: if students and parents file a lawsuit under

the American’s with Disabilities Act (ADA) or the Rehabilitation Act (which includes

Section 504) for something like denying a service dog, are they first required to

“exhaust their administrative remedies” by challenging a school’s special education

decision in an administrative hearing prior to going to court. The Court answered,

“no,” the importance of which is best illustrated by the facts of the case.

The Fry’s daughter was diagnosed with cerebral palsy. When she was 5 and

getting ready to enroll in kindergarten, her parents bought her a service dog (a

goldendoodle named Wonder) to assist her at school. The school denied the

request, saying they had staff members and programs which would be able to

assist a young kindergarten student with everything the dog was going to do, like

help the student use the bathroom and pick up things she had dropped.

Under the Individuals with Disabilities Education Act (IDEA), parents are not

allowed to challenge a school’s decisions in court until they first challenge them in

the state’s administrative proceedings. In Nebraska, for example, if a school made

an IEP decision which parents disagreed with, the parents would first have to go

through a hearing in front of a Nebraska Department of Education hearing officer

or some similar process before they went to court. That’s because the IDEA, as

opposed to the other disability protection laws, requires the administrative process

to determine if there was a denial of a “Free Appropriate Public Education” (FAPE)

before lawsuits can be filed. The other discrimination laws, like the ADA and

Rehabilitation Act, don’t have that requirement.

In this case, the Frys skipped the IDEA administrative challenge process and filed

a lawsuit in a Michigan federal court under the ADA and Rehabilitation Act. The

school’s argument was simple: courts can’t decide if the school violated the

student’s rights under the disability laws until the parents challenge the school’s

decision through the administrative process. The school initially won the case, but

yesterday the Supreme Court reversed the lower courts and said the analysis of

whether the administrative exhaustion is required must be made on a case-by-

case basis, considering the substance of the challenge made by the parents.

This is a significant case for schools who may face challenges to their decisions

regarding special education services under the IDEA and other accommodations

made under the ADA and the Rehabilitation Act. While this may not lead to more

complaints, it provides a clearer path forward to analyze the requirements prior to

a lawsuit for both schools and families.

PPACA (aka “Obamacare”) Repeal Process. As business officials across

Nebraska finalize their PPACA reporting forms, there have been several

Congressional hearings on the various aspects of replacing Obamacare and/or

fixing aspects of the federal healthcare laws and markets. This will be an issue to

monitor moving forward due to the decisions made by boards to comply with

Obamacare the last several years. For now, the law remains in effect, but the

Trump Administration continues to promise that an alternative proposal will be

rolled out soon.

ESSA Regulations Delayed and Challenged. Recently, Congressional

Republicans have introduced measures to delay some of the prior administration’s

proposals to implement the Every Student Succeeds Act, which replaces No Child

Left Behind. These include efforts to rescind school accountability and teacher

training regulations.

The Trump administration has also delayed these and other regulations

implementing ESSA. Several sets of regulations were set to go into effect in

January, but the administration delayed their implementation in order to review

them. While they focused primarily on issues which did not immediately impact

schools, the statement by the DOE was important:

In accordance with the memorandum of January 20, 2017, from the

Assistant to the President and Chief of Staff, entitled “Regulatory

Freeze Pending Review,” published in the Federal Register on

January 24, 2017, the Department delays the effective dates of the

following regulations until March 21, 2017: ...Accountability and

State Plans (ESSA Accountability and State Plans)...; Open

Licensing Requirement for Competitive Grant Programs (Open

Licensing)...; and Family Educational Rights and Privacy Act

[FERPA].

Additionally, the administration dispensed of the standard “notice and comment”

functions of rulemaking for these regulations. This may signal that regulations will

go into effect without comments from interested groups—which could be good or

bad for schools.

We will keep you updated on the latest policy initiatives which may be arriving

from Washington or Lincoln. If you have questions about these issues or others,

we recommend that you consult with your school district’s attorney or call Karen,

Steve or Bobby.

Fasten Your Seatbelts! It’s Going to be a Bumpy Ride, But We’ll Give You A Front Row Seat....

Across Nebraska this week, board members will be sworn in to serve their school

districts and ESUs. Next week, Donald J. Trump will be sworn in to serve our

country. What does one have to do with the other? That’s why we’re writing

today.

During President Obama’s administration, we saw some big legislative action.

However, a great deal of federal education and related policy was set by

administrative regulation and guidance. That means the incoming administration

could change directions fairly quickly. On the other hand, the Trump camp was

not very detailed about plans for federal education policy during the campaign and

we don’t know at this point what, exactly, a Trump administration plans to do.

This is precisely why, for several years now and across multiple looming federal

issues, KSB’s position has been simple: schools should sit back, wait for clarity,

and not make decisions on incomplete information when they are not required to

do so. For now, we think boards of education are smart to consider a “wait and

see” approach, with the understanding that educators should be on alert for

emerging information and ready to move quickly on a range of issues if necessary.

Some of the major issues we at KSB will be tracking after the inauguration include

the following:

Wellness and School Meal Regulations. The Department of Agriculture

released new regulations related to student wellness and the school lunch and

breakfast programs earlier this year. According to the Department of Agriculture,

“The final rule expands the requirements to strengthen policies and increase

transparency.” The regulations will require some changes to most school districts’

wellness policies and some changes to practices and public input relating to these

programs. Some schools have begun to make changes to their policies, which is

perfectly acceptable.

We want to emphasize, however, that the deadline is not until June 30, 2017.

Some entities have put out “sample” policies which, in our view, are incredibly

complex and much more onerous than necessary. Of course, your board is

entitled to use such a policy, but we want our policy subscribers to see their range

of options prior to potentially telling the booster club they can’t sell cookies

anymore. If your board wishes to consider a more complex policy, you would be

wise to do so now. You can review a more complex model wellness policy that

was “[t]horougly review by USDA Food and Nutrition Service” and updated to

reflect the USDA Final Rule here. Unlike the safety and security policy package we

rolled out earlier this year, we believe these wellness and food program changes

may land on the list of things the new administration will review early in the term.

As will be the case at the state and federal level, a lot will change and much more

will be known between now and June 30, which is precisely why we continue to

wait to roll out our draft changes to wellness and food program policies.

Fair Labor Standards Act. We’ve been writing about this one for a while. You

can follow along with the series of events relating to the regulatory changes of the

FLSA by looking through our past updates here, here, and here. Most recently,

and most importantly, the regulations increasing the minimum salary

requirements for exempt employees remain blocked by a federal court in Texas.

While an appeal is underway, there have been headlines nationally claiming that

the Trump administration will drop the lawsuit and potentially repeal the

regulations outright. That leaves schools who made changes to account for the

now-delayed increases with a decision: do you go back to the “status quo” or stick

with the changes? Because several clients used these changes as an opportunity

to address other FLSA issues, we do not believe there is a “right” or “wrong”

answer. Instead, from our view as long as your current setup is legal you can

afford to wait a few more weeks to see what the Trump administration will do.

Accommodations for Transgender Students. Last May, the Departments of

Education and Justice released a “Dear Colleague” letter which informed schools

that the Departments believe that schools are legally obligated to honor the

choices of transgender students on issues like restrooms, locker rooms, and

activity participation. The guidance is based on the Education Department's

interpretation of Title IX of the Education Amendments of 1972, which bars

discrimination based on sex in federally funded educational programs. The

Education and Justice Department stated that they “treat a student's gender

identity as the student's sex for purposes of Title IX and its implementing

regulations." The "Dear Colleague" letter concludes, "This means that a school

must not treat a transgender student differently from the way it treats other

students of the same gender identity."

On August 21, a Texas judge issued an injunction which prohibited the

administration from enforcing this transgender guidance nationwide. After that

order was issued, the United States Supreme Court agreed to hear a case related

to the restroom use of a transgender student from the Fourth Circuit, Gloucester

County School Board v. G.G. Earlier this week, the Department of Justice filed an

appeal in the Texas case asking the judge to lift the nationwide block of the

transgender guidance and defer instead to the Supreme Court in the G.G. case.

As we have been saying for a few years now, this issue is far from settled. Taking

strong policy stances on either side of these issues comes with risk and should

only be done knowing all of those risks.

Educational Benefit to Special Education Students. Today, the Supreme

Court heard oral argument in the Endrew F. case. This is the case asking the

Supreme Court to review the level of educational benefit required to provide a

“free appropriate public education” (aka “FAPE”) to students eligible for special

education services. Federal courts are split on this issue, with one side saying you

must only provide “some” benefit and the other saying you must provide

“meaningful” benefit. Nebraska is in the Eighth Circuit, which only requires

“some” benefit. This case will cement and reaffirm the current lower standard, or

it will increase the required level of benefit Nebraska schools must provide. If the

Court elects the higher standard, that probably means training for your staff, more

parental challenges, and increased costs. That makes this a big case which we’ll

be following closely.

Supreme Court Vacancy. Given Endrew F., G.G., and other important cases in

front of the Court this term, it is almost certain that one of the administration’s

first priorities will be to name a Supreme Court nominee to fill the seat of Justice

Antonin Scalia, who passed away last February. It is much less clear whether

Justice Scalia’s seat will be filled before oral argument is heard in the G.G. case,

and the Endrew F. case was heard with only 8 Justices today. The timing of these

oral arguments and the seating of a new Justice will impact one another.

Supreme Court rules permit re-argument in cases when a new Justice is sworn in

pending a decision from the Court.

Guidance on Seclusion and Restraint. On December 28, 2016, the Office for

Civil Rights, a division of the United States Department of Education, released a

Dear Colleague letter regarding the seclusion and restraint of students.

Specifically, OCR asserted that students with disabilities are inappropriately

subjected to seclusion and restraint more often than non-disabled students, and

the Department views this disparity as evidence of discrimination by schools

against disabled students. The letter included an extensive question-and- answer

section and a fact sheet that encourages parents to contact the Office for Civil

Rights to report concerns about the use of seclusion and restraint by schools.

The issue of seclusion and restraint is one that will continue to develop over time.

The data does clearly establish that students with disabilities are subjected to

seclusion and restraint more often than typically-developing students, although it

is far less clear that this disparity is the result of schools doing something wrong.

The Every Student Succeeds Act (“ESSA”—which replaces No Child Left Behind)

requires state departments of education to develop plans that include statewide

strategies to reduce bullying and harassment, restraint and seclusion, and

suspensions and expulsions. These plans were initially due to the federal

education department in March or July 2017, but on November 28 th , the

department released new regulations that pushed the submission dates to April or

September. Exactly what states will be required to submit could change under the

new administration and it is also possible that the deadline for these state plans

will be pushed back yet again.

For now, we think every educator should review the current seclusion and restraint

policy that has been adopted by their board of education, and they should comply

with that policy with fidelity. Everyone who works with students with disabilities

should be mindful that these students shouldn’t be restrained or secluded

inappropriately, and educational teams should work hard to craft behavior

intervention plans that provide students with positive behavioral supports. We do

not recommend making major changes to otherwise lawful seclusion and restraint

practices based on this last-minute Dear Colleague letter from the outgoing

administration, because the next administration could take a completely different

approach to this issue. We do think that educators should watch this issue closely.

In particular, we will be tracking the relevant elements of the plan the Nebraska

Department of Education is crafting for submission to the federal agency.

PPACA (aka, “Obamacare”). Finally, no news cycle will go by in the next

several weeks without discussion of Congress’s possible actions relating to

Obamacare. If you’ve followed this issue at all recently, you’ve heard it’s possible

for an “outright repeal,” “partial repeal,” “repeal and replace,” and most recently,

“repeal and delay”—where Congress would repeal the law with a delayed timeline

for the various requirements to be lifted while replacements are crafted. It’s also

possible the repeal will happen piecemeal over the next several weeks, months, or

even years.

The practical reality of this uncertainty is that we have no idea how long the

onerous requirements of the law will remain in place. Business officials must

continue preparing the required reporting documents while the law remains in

effect, for example. Even if you assume the law will be repealed, boards will face

difficult decisions. Many schools and ESUs have offered classified staff members

with access to health insurance or increased insurance benefits in the last year. If

the law is repealed, will boards eliminate that benefit? Will employees who have

purchased insurance on healthcare.gov now clamber for the school to offer

insurance for purchase? Will all of the other employers in local communities revert

to their prior benefit practices (which will affect school employees whose spouses’

insurance options change)? Not to sound too redundant, but all these unanswered

questions mean it’s a good time to be patient and wait to see what your

continuing obligations, if any, will be under federal health care law.

Conclusion. As we have consistently said with many of these requirements over

the past several years, it is best not to act prior to having all the information

needed to make the best decision possible for your school or ESU. We will track

all federal and state law actions diligently on behalf of our clients and educational

entities throughout the state. We will continue to provide these updates via social

media and through direct e-mails to any school, ESU, administrator, or board

member who would like to receive them. We also know other legal experts,

professional groups (like NCSA and NSBA) and publications (such as Education

Week), will be monitoring these changes. Opinions on certain issues,

requirements, and the urgency to act may vary, so your board should secure

information from sources you trust. Because we will provide our updates free of

charge to anyone interested in them (and will be posting them to our website

regularly), please just let us know if others in your school or ESU would like to

receive them directly via e-mail.

If you are a policy service subscriber, you will receive updated policies from KSB

as they are required along with explanations of the changes which will highlight

areas where your board must make decisions. If you are not a subscriber, you will

continue to receive these updates free of charge. If you do not wish to receive

these updates via e-mail, please reply to any of the e-mails you receive

transmitting the update, and we will be happy to remove you from the list. If you

have questions about these issues or others, we recommend that you consult with

your school district’s attorney or call Karen, Steve or Bobby. In the meantime,

keep those seatbelts buckled and watch things unfold!

Substantial Likelihood of Injury

In 2016, a 15 year old special education student wrote his own rap lyrics in

a school journal. Salem City Bd. Of Educ., EDS 01159-16 (2016). He wrote

“U better dip like a chip because I got a new gun with 2 clips I can’t wait to

use it better yet shoot it…” The student did not give the lyrics to anyone or

perform them. The student had previously been warned that discussing

shooting a gun is not appropriate at school. There was no written policy

prohibiting students from making gun references. The student informed the

Superintendent that he does not own a gun and no one in his household

owns a gun. The Superintendent recommended suspending the student and

placing him at an alternative school. The police were contacted but no

charges were filed. The Board held a hearing where it confirmed the

Superintendent’s recommendation of suspension and alternate placement for

making terroristic threats. The student’s Case Manager testified that the

Child Study team had not been consulted about disciplining the student. The

parent testified that when he spoke to the Superintendent, he felt that the

decision to place the student in an alternate placement had already been

made.

Under the Individuals with Disabilities Education Act (“IDEA”), a school

district can place a student in an alternative placement without determining

whether the behavior is a manifestation of the students disability for 45 days

or less if the student: brings a weapon to school; inflicts serious bodily injury

on someone while at school; or knowingly has, uses, sells, or solicits the sale

of a controlled substance while at school, on school premises, or at a school

function. If the student’s current placement is substantially likely to result in

an injury then the district can request an expedited due-process hearing. A

hearing officer may return the student to their current placement or order an

alternate placement for 45 days or less if the hearing officer determines that

the current placement is substantially likely to result in injury.

The Department of Education held that the District provided no evidence that

the student made terroristic threats since the lyrics were not aimed at

anyone and were not shared with anyone. The District did not determine

whether the behavior was a manifestation of his disability as the Child Study

team was not consulted. Without determining that, the District cannot

remove the student to an alternate placement since the student did not

bring a weapon to school or inflict serious bodily injury (see above

paragraph). The Department of Education also held that the Board did not

show a substantial likelihood of injury in his current placement. The

Department then noted that there was no proof of physical violence which is

sufficient for finding a substantial likelihood of injury. It was also noted that

threats of violence are unlikely to result in a substantial likelihood of injury

without physical violence. Since the school does not have a policy prohibiting

references to guns, the Department of Education held that the student had

not violated the school’s policy. The Board could not remove the student to

an alternate placement but the issue of whether the student’s due process

rights had been violated was not determined.

Before a school district even considers whether the current placement is

substantially likely to cause injury, the district should determine whether the

student’s behavior is a manifestation of their disability. If it is determined

that the behavior was a manifestation of their disability, then the Board can

consider whether the current placement is substantially likely to cause

injury. Vague statements relating to violence are generally not sufficient.

Even threats directed at someone may not be sufficient if there is not also

physical violence. The IDEA and regulations do not includes factors to

consider so the Board must use its judgment and previous cases in making

the determination.

If you have questions about how to determine whether an alternate

placement is justified, we recommend that you consult with your school

district’s attorney or call Karen, Steve or Bobby.

IDEA Parents Visiting the School

Sometimes parents of students with disabilities would like to visit the school

and observe their children. The Individuals with Disabilities Education Act

(“IDEA”) expanded parent’s roles in the identification, evaluation, and

placement of their child. The IDEA does not, however, give parents a general

entitlement to observe their children at the school, although school districts

and parents are encouraged to work together and there may be some

circumstances where access may need to be provided. Generally, the

parents are still able to be full and equal participants in developing the

Individualized Education Program (“IEP”) without observation, except in

those circumstances where access may need to be provided such as when

the right to an independent educational evaluation has been invoked.

There has been a focus on what other ways the parents are being included in

their child’s education to determine whether the parent should have been

allowed to observe. In Bd. Of Ed. Of the Carmel Central School Dist., 48

IDELR 144 (2007), a special education student’s parent received services

through the IDEA and requested to observe the student for a full school day

in order to prepare for their annual review. The school denied the request.

The parent then requested to observe two classes back to back, in order to

both observe the classes and the student walking between classes. The

school denied this request but offered the opportunity to observe one class

of the school’s choice. A written test was given during the class so the

parent felt that the observation was useless.

After the annual review, the parent filed a due process complaint stating that

she needed to observe the student to evaluate the environment, student’s

skills, and safety. The hearing officer found that there was no statutory or

regulatory right to observe the student in class and that the school had

discretion in whether to grant observation. The hearing officer did direct the

school to allow the parent to observe one class period where there is

instruction however.

The parent appealed the decision to the New York State Educational Agency

stating that the restrictions on her observation by the hearing officer are a

procedural violation of IDEA. The Agency held that parents must be given an

opportunity to participate in developing their student’s IEP, but that does not

give a general entitlement to observe the student. The Agency also stated

that schools and parents should work together in order to meet their needs.

The parent was generally able to have her questions answered and received

regular progress and report cards so her ability to participate in developing

the student’s IEP was not significantly hindered.

Hearing officers and educational agencies have stated many times that a

parent does not have an unlimited right to observe their child in school. See

In re: Student with a Disability, 43 IDELR 214 (2005); Letter to

Mamas, 42 IDELR 10 (2004). Parents do have the right to be provided with

an opportunity to meaningfully participate in identification, evaluation and

educational placement of their child however. Districts and parents are then

encouraged to work together to meet both of their needs which may include

allowing observations.

If a District would like to deny a parent of a special education student’s

request to observe the student, the District should consider in what other

ways the parent is able to participate in the student’s education. The parent

should still have an opportunity to meaningfully participate in developing the

student’s IEP, and educational plan. The District should also consider how

they could work with the parents to meet both their needs.

Another concern about refusing to allow parents to observe is that the

parent may claim that the denial is in retaliation for the parent’s advocacy.

One of the best defenses to this claim would be to consistently enforce the

district’s visitor policy. This policy should limit the number and duration of

visits as well as be widely publicized.

If you have questions regarding parental observations, we recommend that

you consult with your school district’s attorney or call Karen, Steve or

Bobby.

When Overtime Can be Offset

Nobody likes paying overtime but everybody likes receiving overtime.

Recently, a company tried to avoid paying overtime by offsetting it with paid

lunch breaks in Smiley v. E.I. DuPont De Nemours & Co., 839 F.3d 325 (3 rd

Cir. 2016). Their employees were required to be on site before and after

their shift for between 30 and 60 unpaid minutes per day. The company

provided paid breaks throughout the day which exceeded the amount of the

unpaid time at the beginning and end of the day. These paid breaks were

included in their compensation when calculating their regular rate of pay.

The Fair Labor Standards Act (“FLSA”) requires that employers pay their

employees for all hours worked. Lunch breaks may be paid but are not

required to be. Paid lunch breaks may be considered hours worked,

depending on whether the parties agreed to treat them as such.

Compensation cannot offset overtime when there is already an agreement to

treat noncompensable time as hours worked and the compensation is

included in the regular rate of pay.

The employees in Smiley sued the employer (“DuPont”) for failing to pay the

employees overtime for the time spent before and after their shift. The

employees worked four 12 hour shifts per week which included one paid 30

minute lunch break and two nonconsecutive 30 minute breaks. The 12 hour

shift did not include the 30-60 minutes that employees were required to

spend before and after their shift changing in and out of their uniforms and

updating the next shift. This extra unpaid time would be overtime since it

would be in excess of 40 hours worked per week. DuPont claimed that

because it was not required to provide compensation for meal breaks, the

compensation from meal breaks could be used to offset the unpaid overtime.

The court held that all monetary compensation, except for the statutory

exclusions, is included in calculating the regular rate of pay. Compensation

that has already been paid to an employee may only be used to offset

overtime when that compensation is statutorily excluded from being used to

calculate the regular rate of pay. Meal periods are not included in the

statutory exclusions and thus are included in calculating the regular rate of

pay. The court found that since the meal breaks were included in the regular

rate of pay, the meal breaks could not qualify as extra compensation and

thus could not be used to offset the overtime due.

Three types of compensation are allowed to offset overtime. The FLSA allows

compensation to offset overtime when: (1) the employee has been paid at a

premium rate for working more than 8 hours in a day, more than the

maximum workweek under the FLSA or more than their regular working

hours; (2) when the employee receives a premium rate of not less than 1 ½

times their regular rate for working Saturdays, Sundays, holidays or regular

days of rest; and (3) when the employee receives a premium rate of not less

than 1 ½ times their regular compensation for work outside the regular

workday or workweek per their employment contract or collective bargaining

agreement.

In order to offset overtime, the employer must at least already be paying

the employee at a premium rate. This way, a premium rate is offsetting a

premium rate. If the paid break were allowed to offset overtime, it would be

counted twice. The first time as regular compensation for hours worked, and

the second time as statutorily required compensation for other hours of

work. Also, the paid break compensation is already owed to the employee so

crediting the money would be withholding compensation that the employee

is entitled to by statute.

It can be difficult to determine when overtime needs to be paid and when it

can be offset. If you are paying an employee for their time, it probably

counts against your 40 hours for the week even if you were not required to

pay them for the time. Overtime can only be offset when it meets one of

those three statutory exclusions. If an employee is not exempt and you pay

them for more than 40 hours a week, the amount of time over 40 hours will

need to be compensated as overtime unless it meets one of the exclusions.

Teachers are exempt from overtime but this may apply to some of your

other employees.

If you have questions about when overtime needs to be paid or can be

offset, we recommend that you consult with your school district’s attorney or

call Karen, Steve or Bobby.

Who Needs a Copy of the IEP?

Special education attorneys frequently warn school staff about the legal

problems which arise when schools fail to keep student information

confidential. However, schools can also run into legal trouble if they keep a

student’s IEP too confidential. A good example of this issue is Prince

George’s County Public Schools, 66 IDELR 203 (MD SEA 2015).

In this case, a school district in Maryland was found to have violated the

IDEA when it failed to provide a bus driver with a complete copy of the IEP

of a student with autism. The IEP required several bus accommodations and

supports. The bus driver was given a “route sheet” which indicated some of

the accommodations required but did not list every accommodation or

support. The school had no documentation to prove that the bus driver was

notified about the accommodations or supports that weren’t listed on the

route sheet. The Maryland State Department of Education held that the

school had failed to properly implement the IEP. The Department reasoned

that since the school district is required to ensure that the student receives

the services required by the IEP, so it is also up to the school district to

ensure that every teacher and service provider who is responsible for its

implementations have access to the student’s IEP.

It is school district’s responsibility to ensure every staff member who

implements the IEP has access to the document. This may involve

implementing a procedure to determine who needs a copy of the IEP and

ensuring that those people receive a copy. Many schools rely on an

accommodations checklist similar to the route sheet used in Prince George’s

County. This case should serve as a warning that if schools are providing

something other than the full IEP to staff, that separate document must

include all the accommodations and supports a student is entitled to receive.

If you have questions about how to communicate with staff about special

education students or any other questions, we recommend that you consult

with your school district’s attorney or call Karen, Steve or Bobby.