Are You Missing the Red Flags? Chronic Absenteeism and a School’s Response

Since the COVID pandemic in 2020, the education world has been fundamentally altered.  Ask any school administrator what they have noticed over the last four years, and they will certainly say the increase in chronic absenteeism and truancy.  Reports indicate that is the case nationwide.  The rise in chronic absenteeism has generated campaigns from both the Nebraska Department of Education and the South Dakota Department of Education to encourage regular attendance.  Chronic absenteeism is a broad term but is generally defined as a student missing 10% or more of school days and includes all absences such as excused and unexcused.  The impact of chronic absenteeism is long lasting for students and can contribute to high school dropout rates, juvenile delinquency, and declining grades.  State laws already require schools to address absenteeism in a number of ways for all students.  Additionally, students with disabilities have substantially higher rates of chronic absenteeism throughout all grade levels, and that is the focus of this post.  Are there red flags that your school may be missing, and how should you respond as a district?

Red Flag #1 - Chronic absenteeism may indicate a child find obligation for the District under both the IDEA and Section 504.  Multiple cases across the country have indicated that if a student has a large number of absences, the District may have reason to evaluate the student for a disability, especially if the absences are believed to be disability-based.  How does a school know if the absences are related to a disability?  That is a difficult question, but if the student has anxiety or depression, for example, the district should address child find obligations to determine if the disability is contributing to the absences.

Red Flag #2 - The student qualifies for special education, but the IEP does not address chronic absenteeism.  If a District notices an increase in absenteeism for a student with a disability, the District should reconvene the student’s IEP team to address the absenteeism.  If the District is not addressing the absenteeism, there may be a claim that the District denied the student FAPE.  The team should consider interventions such as a behavior intervention plan, positive behavioral interventions and supports, or related services which may improve attendance such as transportation or counseling services.  Even if your team determines that absences are entirely unrelated to a disability, you should still address the impact on the student’s current services and have the discussion with the parents.

Red Flag #3 - The student’s placement may need to be addressed in order to provide the student with FAPE.  The IEP team should consider a student’s placement, especially if the chronic absenteeism is related to the student’s current placement.  For example, if a student with severe anxiety and depression is engaging in school refusal because the classroom setting is anxiety-inducing and is no longer making educational progress, it may be necessary for the IEP team to consider changes to the structure of a student’s day or even an outside  program to address the student’s mental health needs.  Additionally, IEP teams should consider a comprehensive psychoeducational evaluation to assess mental health needs of a student when there is evidence to suggest an evaluation is needed.      

Chronic absenteeism is a pervasive issue in both Nebraska and South Dakota, and state and federal departments of education are focusing on it.  That usually goes hand-in-hand with an increase in that area from an enforcement and compliance perspective.  As a school, you have obligations to respond to these students.  We encourage you to work with your teams to spot red flags and address issues early and often.  If you have any questions about special education or chronic absenteeism, please reach out to the KSB crew at ksb@ksbschoollaw.com or give us a call at 402-804-8000.

March Madness: South Dakota Legislative Update and Ed Update

Name a better season in the country than March Madness?  The time we collectively take bets on nineteen year old youths who are majoring in communications.  While March Madness might have us all glued to the television and regularly refreshing our bracket rankings, let’s not forget the madness, or lack thereof, that occurred this South Dakota legislative session.  For the most part, this legislative session was a quiet one.  Below are the bills that will have the greatest impact on schools. 

HB 1020: This bill amends the previous law regarding suicide awareness and prevention training.  Prior to employment, and every five years after employment, certified employees (teachers and administrators) must complete a youth suicide awareness and prevention training.  The SDDOE will make a list of approved training available to schools.

HB 1055: This bill increases the threshold for a political subdivision, like a school district, to sell surplus property through a private or public sale without notice.  The amount was modified from $500 to $2,500.

HB 1187: This bill creates a one-year career and technical education educator permit.  The bill allows for applicants to apply if they have an associates of applied science degree or at least 2,000 hours of work experience in a related CTE field.  

HB 1197: This bill requires school district computers to be equipped with software to limit a student’s access to obscene matter or materials (hopefully all schools already have this technology in place given existing obligations like COPPA, CIPA, and e-Rate rules). Additionally, boards must adopt a policy regarding the measures to restrict minors from accessing obscene materials by January 1, 2025.  For our KSB policy subscribers, we will include a policy as part of our annual updates. 

HB 1220: This bill reduces  the time in which a party may appeal the decision of a hearing officer in a  special education due process hearing to thirty days.  The appeal period was originally ninety days.  

SB 75: This bill defines the requirements for a legal newspaper.  A legal newspaper must have a minimum paid circulation of at least two hundred or meet additional requirements for online subscribers.  

SB 127: The teacher compensation bill. TLDR; we have heard from many business managers the frustrations of this bill. 

SB 203:  This bill expands those who may carry a firearm on school premises to include: an individual who is 21 or older, holds an enhanced permit to carry a concealed pistol, and has written permission from “the principal of the school or other person who has general control and supervision of the building or grounds.”  KSB policy subscribers should be on the lookout for a policy regarding this change during our annual updates. 

SB 212: This bill authorizes  the school district to pay certain bills prior to the school board meeting if the board approves the vendor and the maximum amount of payment.

Good news, if you stuck with us through this long blog post, there is an additional legal update.  The SDDOE recently updated the open enrollment form.  As you will notice, there is no longer a reference to a student’s disability and IEP.  School administrators - we will be issuing guidance in the future as to what this change means for schools.  As always, if you have any questions regarding school law or legislation, shoot us an email at ksb@ksbschoollaw.com. 

P.S. Go UConn Huskies!  March Madness bets and predictions may also be submitted to ksb@ksbschoollaw.com 

Ain’t No Sunshine…When It’s March: LB 43, OMA and Public Records

Here we were, patiently waiting for flowers to bloom and tee sheets to open.  Now we’ve got snow, cold, and dispositive Unicameral activity in late March.  We didn’t sign up for this.

Last week with the passage of LB 43 (another smash-6-into-1 bill), the Unicameral made changes to Nebraska’s two “sunshine” laws on open meetings and public records. Here’s the TLDR: while you’ll hear a lot about LB 43 in the coming months and during policy update time, it’s unlikely anything in LB 43 will change your policies or practices…yet.

Beginning in July, the Open Meetings Act will require each public body to “allow members of the public an opportunity to speak at each meeting.”  There may be some exceptions that school lawyers figure out for narrow special meetings, such as for things like personnel hearings and student discipline appeals, but you should plan on allowing for public comment as a matter of course at the vast majority of your meetings.

The public records law changes are a mixed bag.  The good news for schools is that beginning in July, you will be able to charge for all hours (including the first 4) for employees “searching, identifying, physically redacting, copying, or reviewing” records responsive to requests made by individuals who are not residents of Nebraska or by entities (like SmartProcure).  Schools will also be able to charge these requestors for attorney time needed to “review the requested public records.”  This is a big deal when those statewide requests come in from entities outside of Nebraska with incredibly broad scopes.

However, that’s a tradeoff for the changes made when the request is from a “resident” of Nebraska.  Once the changes are effective in July, schools will not be allowed to charge any fee for searching, identifying, redacting, or copying until after the first 8 hours of employee time.  Nor can you charge a fee for an attorney “or any other person” to review the request seeking a legal basis to withhold records.  How this will square with a fairly new Nebraska Supreme Court case on the issue of time spent “reviewing” records is unclear.  More on that soon during policy update time for KSB policy subscribers.

LB 43 contains a few other important items of note for schools and ESUs.  It establishes the “First Freedom Act,” which protects religious expression and exercise with particular protections for wearing tribal regalia on school grounds and at school functions.  It also adds an exception to disclosure of public records containing cybersecurity measures of the state and political subdivisions, along with a couple other new laws we’ll hit on at a later date.

For now, don’t believe everything you’ve read about LB 43, unless you read it here or in Justin Knight’s (of the Perry Firm) nice summary from last Friday.  Administrators, you should touch base with your board members or forward this like it’s hot, just in case they’ve only seen the (incorrect) summaries of LB 43 in the media, which are saying that all these changes are effective immediately.  If you have any other questions about LB 43 or the existential despair set on by our 4th winter in Nebraska this year, reach out to us at ksb@ksbschoollaw.com.

Bad Patrons, Bad Patrons: Whatcha Gonna Do? Responding To Unruly Parents and Patrons

The end-of-week grogginess has set in.  It is time to name that tune!  If you watched any television from 1989 through the present, you likely recognize the title’s nod to the iconic show Cops.  Just as the law enforcement in Cops is faced with a variety of unruly and out-of-control individuals, school administrators are oftentimes faced with similar conduct at sporting events by parents, patrons, and students.  Not only is this a nationwide issue, schools in the Midwest are facing similar challenges. 

For example, a school district in northern South Dakota recently came under scrutiny in the news for the student sections’ racial slurs against the opposing team.  This event prompted the South Dakota High School Activities Association to update its Racial Harassment, Violence, and Taunting policy.  The updated policy states, “Any spectator violating the Racial Harassment portion of this policy shall be immediately removed from the facility by contest administration and/or contest officials.”  A second policy clarifies the SDHSAA stance on taunting.  For our Nebraska clients, the NSAA has a “Conduct and Sportsmanship” policy that states: “Members schools shall maintain proper crowd control and enforce the principles of good sportsmanship and ethics during all interscholastic contests.”       

How do these policies work with district policies and state law?  In South Dakota, SDCL 13-32-1 explicitly states “Superintendents, principals, supervisors, and teachers have disciplinary authority over all students while the students are in school or participating in or attending school sponsored activities whether on or off school premises.”  (emphasis added).  This statute gives broad authority to administrators to remove and discipline students who are engaged in racial harassment, taunting, or other behaviors that violate school policy.  Similarly, Neb. Rev. Stat. 79-267 provides: “[T]he following student conduct shall constitute grounds for long-term suspension, expulsion, or mandatory reassignment, subject to the procedural provisions of the Student Discipline Act, when such activity occurs on school grounds, in a vehicle owned, leased, or contracted by a school being used for a school purpose or in a vehicle being driven for a school purpose by a school employee or by his or her designee, or at a school-sponsored activity or athletic event.” (emphasis added).  Additionally, this is a reminder to review your board policies on access to school premises or activities.  For KSB policy subscribers in both Nebraska and South Dakota, that is policy 3018.  

Generally, schools in both states have broad authority to remove unruly patrons, parents, and students from a school activity.  Those individuals have little recourse against the school or administration if they are dissatisfied with the ejection or removal.  Further, if the behavior is highly problematic or disruptive, the District can provide the patron or parent a “Stay Away” letter informing the individual that they are no longer allowed on school property or at school activities.  We encourage our administrators to use such tools to address problematic behavior.

If you have any questions about premise access, unruly parents, or would like assistance drafting “Stay Away” letters or board policy, do not hesitate to reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at 402-804-8000 or give us all an email at ksb@ksbschoollaw.com.   

Landmark Case Involving Mother of School Shooter

In November 2021, a school shooter opened fire at Oxford High School in Michigan killing four students.  Prior to the shooting, the shooter’s father assisted the high school student in purchasing a gun.  Additionally, the shooter’s mother took the student to the gun range.  The school district alerted the parents to concerns that the shooter was searching for ammunition on his cell phone during class and that violent drawings had been found in the shooter’s possession in school.  The parents did not take the school’s concerns seriously and instead brushed them off.  The shooting occurred the day the school staff met with parents to notify them of the District’s concerns.

On December 3, 2021, both parents, James and Jennifer Crumbley, were charged with involuntary manslaughter for failing to prevent their son from harming others.  Claims included the parents' alleged failure to secure guns and ammunition in their home and failure to assist their son in receiving mental health services.  On January 23, 2024, Jennifer Crumbley stood trial on involuntary manslaughter charges.  This case was one of first impression where there was an attempt to place criminal responsibility on the parents for the school shooting.  

Interestingly, you can sum up a lot of the mother’s defense strategy as, “This was really the school’s fault.”  While probably not surprising to educators, the case involved discussion of many common areas where public misunderstanding of school obligations tend to occur: mental health, searches, safety and security, child find and evaluation under disability laws, and others.   On February 6, 2024, the jury convicted Jennifer Crumbley on four counts of involuntary manslaughter.  This is the first time in U.S. history that a parent was convicted in connection with a mass school shooting committed by their child. 

This case sets up what could be a fascinating precedent for parents who are gun owners and also highlights the importance of parents paying attention to mental health warning signs exhibited by their children.  More courts may now consider whether parents who own guns  properly store their guns and prevent unsupervised access of weapons to minors.  It also highlights the significance of parents’ diligence surrounding their children’s actions and mental health.  For our school administrators, this case shows the importance of early warnings and having frank, honest conversations with parents about mental health concerns and other warning signs educators see with students in the school setting.  Of course, we naturally found ourselves considering any IDEA and Section 504 implications as these mental health warning signs emerged.  If you have any questions about these issues or school safety obligations, please reach out to us at ksb@ksbschoollaw.com or call us at 402-804-8000.   

We’re Back! ACLU of Nebraska Record Request Follow-Up

On January 25, we blogged about the record request from ACLU of Nebraska that many schools received.  We’re not yet sure if it was sent to every school in Nebraska.  If you didn’t receive the request from the ACLU, please exit the blog post and enjoy the rest of your day!  If you did receive the request, read on…

The ACLU listed 11 separate requests, mostly pertaining to SRO programs and use of seclusion and restraint.  If you received the request, first you should consider whether or not you actually have an “SRO” assigned to your school or any specific school building.  

In order to have an “SRO” as defined by Nebraska law, the officer must be assigned specifically to your school as the officer’s “primary duty.”  While that’s not defined, we think the best starting point is to consider if a local officer is assigned to be in your school at all.  Do they have regular hours they spend in the school?  Or do they just drop in from time-to-time (even regularly) while on their normal patrol duties?  If they are assigned to your school or a specific school building and spend the majority of their duty time working with you in the school, you probably have an SRO.  Most situations should be pretty clear, but if not, contact your school attorney to decide.

Please note that even if you don’t have an SRO and you did receive the request, not all of the 11 items requested are tied to having an SRO.  For example, request #9 asks for “[a]ny and all documents reflecting current policies and practices with respect to the restraint and seclusion of students.”  Responding to the limited requests that don’t include an SRO is still something you’ll have to do.

Instead of the usual 4 business days, the ACLU has given schools until February 20, 2024 to respond.  You’ve got time, but there’s no time like the present to form a plan for your response.

As we promised in our last post, we’ve put together some guidance for our clients to help them respond, specifically focused on walking you through the SRO law, restraint and seclusion legal obligations, and which documents are possibly responsive.  We plan to charge a set small fee for the guidance memo and a template of the letter you can use to respond to the ACLU.  This flat rate helps to spread the cost for responding around across schools and also maintains attorney-client privilege for your response.  You will have to consider legal implications and our advice for your school specifically, and by sending it to you individually, the ACLU doesn’t get a chance to see our advice to you.  If you are a KSB policy subscriber and/or have used our model MOU for your SRO program (if you have one), we can point you to most of the items you’ll need to send, including specific policies.  Even if you aren’t a subscriber, we’re happy to share our guidance with you.  We have also reached out to Justin Knight at the Perry Law Firm to discuss the ACLU request.  Both law firms agree on how to respond, and if you are a Perry Client, we’re certain Justin or another Perry attorney will be happy to assist you in crafting your response.  If you are interested in KSB’s guidance and response letter template or have any questions about the request, drop one of us a line or shoot an email to all of us at ksb@ksbschoollaw.com.  

Look Beyond the Dollar Sign: The Cost of Failing to Provide FAPE

School administrators, we are willing to bet you have experienced several contentious IEP meetings during your career.  If we were to guess the percentage of those contentious IEP meetings that focused on placement questions, we are going to guess approximately 50%.  Discussions regarding placement are often emotion-filled from the perspective of the parents and budget conscious from the perspective of the district.  However, if the IEP team fails to consider the data and options available for the placement of a student, it can result in costly litigation for the district.  Recently, the Chamberlain School District was ordered to reimburse parents $90,000 (plus attorney’s fees) for failing to develop an appropriate IEP for a student, which included the student’s placement. 

In this case, the Chamberlain School District had a student who qualified for special education services.  The student’s health conditions caused him to exhibit many behaviors such as shouting, swearing, cheating, disobeying the rules, and sexualized conduct.  

Because of all these behaviors, the school changed the student’s placement to homebound in January of his junior year.  The student was supposed to receive education from recorded videos and Google classroom.  However, there was a communication breakdown between the general education and special education teachers which resulted in the failure to upload content for the student.  In April, the parents contacted the District about possibly changing the student’s placement to a residential facility in Utah.  However, the District was unenthused about this option, as it would not receive Medicaid funds for the costs associated with the student’s attendance.  As of May, the District had no plans on how to provide the student with educational services for his senior year.  In August, the parents unilaterally placed the student at the facility in Utah and sued for tuition reimbursement. 

A due process hearing was filed where the hearing officer determined the District failed to provide the student with a free appropriate public education (“FAPE”) by failing to develop an IEP for the 2019-2020 year, failing to provide a FAPE for the 2018-2019 year, and failing to develop behavior plan.  The hearing officer stated: “As the evidence shows, the home placement was not working and was not providing a FAPE for [the student.  The school district’s administration] knew that [the student] could not be placed within the school and the home placement was not working.”  The hearing officer ordered the District to pay the cost of the private school tuition.

The District appealed the hearing officer’s decision.  The South Dakota Federal District Court affirmed the hearing officer’s decision.  The District appealed the District Court decision to the Eighth Circuit Court of Appeals.  On appeal, the District lost, and the lower court decision was affirmed.  [If you are counting, that is three losses for the District.] 

Because this case was litigated in the Eighth Circuit, which governs federal law in both Nebraska and South Dakota, it is crucial our school administrators understand the following:

1. Placement decisions cannot be decided simply based on cost alone.  It is not appropriate to deny a placement request because the District cannot afford the placement, or Medicaid won’t reimburse for the placement. 

2. Communication between special education staff and general education staff is crucial, especially for students who are homebound.  All individuals responsible for implementing a student’s IEP must be informed of and understand their responsibilities.

3. If a student’s behaviors, including sexualized behaviors, impede learning, it may be appropriate to conduct a Functional Behavioral Assessment and implement a Behavior Intervention Plan.  Additionally, it may be appropriate to convene the IEP team and consider potential goals or strategies, such as specialized curriculum, to address sexualized behaviors. 

4. The District is ultimately responsible for providing a student with a free appropriate public education. 

If you have any questions regarding placement or special education matters, please do not hesitate to contact us at ksb@ksbschoollaw.com or give us a call at 402-804-8000. 

ACLU SRO Record Request

Good morning!  Everyone at KSB is out of the office January 25-26, 2024 for our law firm’s winter retreat.  We’re really excited to be planning how to better serve our clients and support schools.  BUT…just like it’s inevitable that one of your kids gets sick when your significant other is out of town, another statewide record request started coming in yesterday.  

This time, the ACLU of Nebraska is requesting a host of documents related to school resource officers (SROs).  The request is largely focused on the items a school must have in place under Nebraska state law: MOUs, training, policies, etc.  If you’ve forgotten, in 2019 the Unicameral passed a series of statutes that require these items to be in place for schools that staff or contract for SROs.  If you have an SRO (more on this in a second) and this is news to you…contact us or your school attorney.  KSB has training, sample MOUs, and policies available if you need them.

Deadline.  Before you respond, note on the bottom of the ACLU’s request that they have provided some additional time to respond.  We believe schools would be wise to use this additional time to internally assess whether you have documents that would be responsive to this request and, then to gather and review them before sending a response to the ACLU.  

What’s an SRO?  Before you respond, keep in mind that not every law enforcement officer who may work with or come into your school is an “SRO.”  Section 79-2702 defines SRO this way:

School resource officer means any peace officer who is assigned, as his or her primary duty, to any school district to provide law enforcement and security services to any public elementary or secondary school and does not mean a peace officer responding to a call for service, providing proactive enforcement, providing law enforcement or traffic direction for a school-related event, or providing temporary services as a school resource officer when the assigned school resource officer is not available

If a local officer drops by occasionally or even often, you may call them an SRO but they may not be an SRO as defined by law.  To meet the statutory definition, they must be assigned to your school “as [their] primary duty.”

When we get done with our retreat on Friday, we’ll get to work putting together some guidance to assist our clients (and anyone who may want it) in responding.  Take a breath, sit tight, and keep doing awesome things for kids.  If you have questions about the ACLU’s request or about your compliance with the training, MOU, and policy obligations, please drop us a line at ksb@ksbschoollaw.com or give us a call at 402-804-8000.

Oh, The Weather Outside is Frightful (And So Is Misclassifying Staff Members as Independent Contractors)

The Midwest.  One of the few places in the United States where it can range from 100 degrees in the summer to -40 in the winter.  What a time to be alive!  While the students in your District might continue to sing “Let It Snow!” school administrators (and parents) are ready for a reprieve from the snow, wind, and sub-zero temperatures.  Since you (likely) have no place to go (See what I did there? Frank Sinatra’s classic has so much potential.), today seems like the perfect opportunity to leaf through the newest Department of Labor rules on the classification of independent contractors which go into effect March 11, 2024.

As a reminder, why should you care as a school district?  Failure to comply with the independent contractor rules can be costly.  Misclassification of an employee as an independent contractor can cost the district back taxes and penalties from the IRS.  Sometimes districts attempt to make clever arguments about why an individual is not an employee but an independent contractor.  These arguments usually fail to be successful.  Sadly, the IRS is not an agency that rewards creativity.  

Starting in March, the IRS will apply six factors to determine if an employee is an independent contractor under the FLSA.  The factors include: opportunity for profit or loss depending on managerial skill; investments by the worker and the potential employer; degree of permanence of the work relationship; nature and degree of control; extent to which the work performed is an integral part of the potential employer’s business; and skill and initiative.  None of the factors are dispositive standing alone.  This is a tougher standard than existed in the past. 

Before looking at contracting with an individual for services under the theory the individual would be an independent contractor, a district should conduct an analysis under the six-factor test above.  Additionally, an employee cannot waive their status as an employee to be classified as an independent contractor.  It is the district’s responsibility to ensure that employees are properly classified under the FLSA.

If you are looking at classifying an individual as an independent contractor, consider giving your school attorney a call just to talk through the new test and factors.  We also conduct full FLSA audits for school districts for a flat rate.  You can enjoy a ray of sunshine (that IS what you call the KSB lawyers, right?) in your building and get all of your FLSA issues addressed at one time.  If you’re a KSB client, give any of us a call or drop us a line at ksb@ksbschoollaw.com.  Let it snow?!

Spotted in the News: A Reminder that Title IX Encompasses More Than Sex Harassment

Unless you were born yesterday (which congratulations to Attorney Tyler Coverdale on the newest KSB kid crew member who was born this week! I bet baby Coverdale is equally as excited as school administrators to learn about Title IX from his father.), you have heard us discuss, at length, the 2020 Title IX regulations and the upcoming proposed regulations.  However, as schools focus on the sexual harassment component of Title IX, there is a tendency to forget the breadth of the Title IX regulations.  In particular, many schools overlook the requirement to provide equal athletic opportunities for members of both sexes in high school interscholastic athletic programs—both in terms of numerical opportunities and in equal experiences (such as quality of coaching, facilities, scheduling, etc.).  

Recently, the Sioux Falls School District proposed eliminating the gymnastics program for the 2023-2024 year which resulted in a Title IX lawsuit filed by parents of the participants.  The District cited a variety of reasons for cutting the program including declining participation, inability to find coaches, financial considerations, and interest in other extracurricular activities. The District intended to sell the gymnastics equipment in the fall of 2023; however, Plaintiffs sought a preliminary injunction preventing the sale.  The court granted the preliminary injunction and halted the sale of the equipment on the grounds that the degree to which the District’s girls were already underrepresented among its athletes was unacceptably high (more than 7%) and that ending the girls gymnastics program would only make things worse.  In November, a federal judge upheld the preliminary injunction.  This decision also confirmed the sport would continue for the 2023-2024 season. 

Before schools make a decision to add or cut a sports program, it is crucial to analyze the Title IX requirements and consider the extent to which a school is offering athletic participation opportunities to both boys and girls in numbers substantially proportionate to their respective share of student enrollment.  The law recognizes three separate tests by which schools can show compliance.  If a school meets one prong, it is effectively compliant and in a safe harbor.  Of the prongs, the one typically utilized by schools to determine compliance examines the percentage of athletic “participation opportunities” for each sex and then compares that figure to that sex’s percentage of the overall student enrollment.  The other two prongs are more subjective (which lawyers love) and look at the school’s history of adding opportunities for the underrepresented sex and whether it is sufficiently meeting needs based on current levels of interest.  It’s always worth looking at all 3, even if the focus is on proportionality.

In our experience, schools are well served to examine the state of their current athletic programs and to have an understanding of whether they can show compliance.  This is best done on a regular basis, before you find yourself responding to a request to add or cut an athletic program.  We routinely analyze school district’s athletic programs and provide our advice on the extent to which they can show compliance with their Title IX obligations regarding athletic opportunities and proportionality.  Please note, it is clear under Title IX case law that financial concerns are not a reason to engage in gender discrimination.   If you are interested in knowing how your current program fits within the Title IX requirements or in learning about how adding (or cutting) other sports may affect your ability to show compliance, please reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or shoot us all an email at ksb@ksbschoollaw.com. 

We’re All In This Together (Until We Aren’t): The Consequences of Acquiescing to Parent Requests When Educationally Inappropriate

Ahhh, 2024.  So much optimism.  So many opportunities to achieve our resolutions.  [Bobby’s resolution to learn a new skill (move over golfing - we are picking up pickleball).  Jordan’s resolution to become more organized (Sayonara to a desk littered with water bottles).  Steve’s resolution to attempt to break a Guinness record (which record has yet to be determined, ideas can be submitted to ksb@ksbschoollaw.com).  Reader, please note it is up to you to determine whether these resolutions may or may not be accurate.]  With the new year and second semester ahead of school administrators, now is the perfect time to reflect on sticky situations you may be faced with in a special education context.  (Potential New Year’s resolution for school administrators: Do not acquiesce to parent requests impacting special education students without determining if the request is educationally appropriate based on data!)

In a recent state educational agency decision from New Mexico, a school district was required to provide 300 hours (YES, YOU READ THAT NUMBER RIGHT) of compensatory education and revise its policies.  The student was eligible under OHI for special education due to a variety of medical conditions which required ongoing treatment.  The student was attending in-person classes during the first semester of 2021-2022.  However, during the second semester, the student transitioned to at-home learning for one hour per day.  The District proposed the student receive in person instruction for twenty hours per week for the 2022-2023 school year while the student’s parent requested the student continue at-home instruction.  The school district granted the parent’s request and educated the student in a homebound setting.  The parent subsequently filed a state special education complaint alleging the student was not educated in the student’s least restrictive environment and was denied a free appropriate public education.  

The complaint investigator noted the district “followed a policy of permitting Parent unbound flexibility in maintaining remote instruction at home.”  The District failed to mainstream the child, failed to educate the child in the least restrictive environment, and failed to provide the student a free appropriate public education.  The decision went on to state “[The District] bears the legal responsibility for this denial of FAPE.”  

This case illustrates the frustrating truth that a parent can sue a school when the school does what the parent wants!  Remember, our educational obligation is owed to the student, even if the parent exercises many IDEA rights.  If a request by a parent is educationally inappropriate or is not supported by data, do not just give in and implement the requested service or placement.  Districts have an obligation to provide eligible students FAPE.  If you have any questions regarding this or any other special education related matter, please do not hesitate to contact us at ksb@ksbschoollaw.com or give us a call at 402-804-8000.

What’s Reasonable? Medical Leave Requests and the Americans with Disabilities Act

“KSB, hypothetically speaking (our favorite phrase!) how should I handle an employee who has taken multiple leaves of absence for medical reasons and still provides a doctor’s note that the employee may be unable to work with or without accommodations for an additional three months?”  This is a fan favorite question around the office.  If you know lawyers, our favorite response is always “it depends.”  (This is what three years of law school teaches lawyers.)  

In November, the United States Court of Appeals in the First Circuit decided a case regarding a 9th grade English teacher who requested a four week leave of absence for hip surgery.  After complications arose post surgery, the employee’s doctor provided a note stating the employee would be unable to work with or without reasonable accommodations for an additional three to six months.  At this point, the employee had utilized all her FMLA leave and available paid time off.  The school district ultimately terminated the teacher’s employment and said she could reapply upon being cleared to work.  The teacher filed a lawsuit against the school alleging disability discrimination under the ADA.

While Nebraska and South Dakota are not part of the First Circuit, the ADA is a federal law so the language and rationale the court utilized are insightful.  The court stated the teacher’s argument failed to consider “the school's need to provide continuity and adequacy of instruction in all five of her English classes.”  Additionally, the court noted the teacher did not consider the risk the school faced from the possibility that the substitute teacher, who was paid a daily rate and was not a regularly contracted teacher, could leave the assignment at any time.  Lastly, the Court said “nor does [the teacher] address the school's legitimate concern with its inability to guarantee its ninth-grade English students high-quality education from a full-time, permanent instructor during the 2019-2020 school year as a result of her leave.”  The school district was entitled to summary judgment. (Teacher loses!)

In general, if you have an employee that gives a definitive time when they will be able to return to work and complete their job (with or without a reasonable accommodation) and that amount of time is reasonable, then the school should consider providing additional leave under the ADA.  If the employee has utilized all paid leave and FMLA leave, the school may consider granting additional leave under the ADA if the request is reasonable.  (Remember, you likely will be considering termination of the employee’s health insurance and offering COBRA coverage if FMLA leave has ceased.)  Additionally, for our Nebraska clients, you can always consider an unpaid leave of absence agreement under Neb. Rev. Stat. 79-838.

As you work through long term leave situations, do not forget to consider the FMLA, ADA, leave of absence agreements, or the impact of long term disability policies.  If you have any questions as you work through the analysis of whether medical leave is reasonable, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

270,000

270,000.  The number of PK-12 grade students who are part of the foster care system in the United States.  According to the U.S. Department of Education, these students are more likely to experience steep challenges to school success including lower grades, graduation rates, and attendance.  The Fostering Connections Act in conjunction with the Every Student Succeeds Act provides additional protections for children in foster care.  In addition to the unique needs of students in foster care, schools must consider the IDEA Part B and C considerations for these students. 

For example, is a foster parent a “parent” under the IDEA?  According to the IDEA, the term “parent” includes a foster parent “unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent.”  34 CFR 300.30.  In Nebraska, 92 NAC 51-003.44 defines “parent” to include “a foster parent.”  Similarly, in South Dakota, ARSD 24:05:13:04 defines “parent” as a “foster parent” as well.  

Does that mean if a special education student is in foster care a school should deal with the foster parents and ignore the biological parents?  Not exactly.  In both states when “the biological or adoptive parent, when attempting to act as the parent and when more than one party is qualified to act as a parent, must be presumed to be the parent unless the biological or adoptive parent does not have the legal authority to make educational decisions for the child.” See 92 NAC 51-003.44, ARSD 24:05:13:04.  That means when a student is in foster care and the biological/adoptive parent is trying to be present in the student’s life, the school should involve BOTH the biological/adopting parent(s) AND the foster parent to IEP meetings.  So long as ONE parent shows up, the IEP meeting can proceed.  Under both Nebraska and South Dakota law, a foster parent may make education decisions on behalf of their foster children and may exercise IDEA rights.  Neither state requires the child’s biological parent to provide consent to release information from education records to foster parents.   

How should a school handle evaluations and eligibility?  In July 2013, OSEP issued a letter to state directors of special education clarifying issues surrounding highly mobile children such as those in foster placements.  OSEP confirmed that highly mobile children should have timely and expedited evaluations and eligibility determinations.  It also pointed out that if a school begins the evaluation process and the child transfers to a new school district, the new school district may not delay the evaluation process in order to implement the RTI process.

How does FERPA factor into considerations regarding records of those students in foster care?  FERPA “permits LEAs and schools to disclose education records of students placed in foster care, without consent of the parent or eligible student, to an agency caseworker or other representative of a state or local child welfare agency (CWA) or tribal organization authorized to access a student’s case plan, when such agency or organization is legally responsible, in accordance with state or tribal law, for the care and protection of the student.”  While this FERPA exception is permissive, the SPPO office has stated that schools are encouraged to disclose education records to welfare caseworkers to help ensure the child’s education needs are met.        

All members of the education community should be worried about the data showing abysmal educational outcomes for students in foster care.  We should all do everything we can to make sure foster students’ special education decisions are not reduced or delayed due to confusion about who is the “parent” under the IDEA.  If you have any questions about foster children and the IDEA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000 or send everyone an email at ksb@ksbschoollaw.com.

Social Media: Today’s Equivalent of Cigarettes?

Some of the KSB crew grew up in the 1990s (We know . . . hard to believe) and vividly remember the anti-smoking commercials routinely run on prime time television.  Remember this or this?  The Surgeon General issued countless warnings about the hazards of cigarette use, especially with teens.  While cigarette use has drastically declined with teens since the 1990s, we are now faced with the newest health crisis.  In 2023, the U.S. Surgeon General issued an advisory report sounding the alarm on teenage social media usage and the long term impacts usage may have.  The report is an urgent call for action to policymakers, technology companies, researchers, families, and young people.  Just like the addiction cigarettes cause, many teens report similar addictive feelings towards social media.    

Not only is the federal government concerned about the impact of social media on youth in our country, forty-one states (including Nebraska and South Dakota) have sued Meta, the owner of Facebook, Instagram, Threads, and WhatsApp.  The lawsuit alleges Meta platforms are harming the mental health of young people, are not safe and are designed for compulsive and extended use, interferes with young people’s sleep, promotes body dysmorphia in youth, and violates many Children’s Online Privacy Protection (COPPA) rules.  The lawsuit alleges that Meta has misinformed the public about the substantial dangers of social media in an effort to boost profits at the exploitation of youth health. 

In addition to the concerted efforts from states, several school districts across the country have also sued Meta and other major social media companies.  Similar to the claims of the states, school districts are claiming social media products are harmful to mental health, designed to be addictive, and are specifically targeted to children.  For example, Seattle Public Schools was the leader in the school based lawsuits.  It claims that public schools have been asked to shoulder the mental health crisis caused by teen social media usage.  Schools in Washington, Florida, California, Pennsylvania, New Jersey, Alabama, and Tennessee have all filed similar lawsuits.  Other states have sought to legislate protections for social media usage such as Utah which will bar children under the age of 18 from using social media without parental consent. 

At KSB, we will continue to watch the progress of the lawsuits and determine what, if any, steps our schools can take to combat the mental health concerns facing teens.  As a reminder, we offer the Digital Citizenship student assembly, staff in-service, or parent assembly (or a combination of the three) which discuss teen social media usage, the newest findings from the Surgeon General’s report, and consequences of engaging in cyberthreats or bullying.  If you have any questions or would like to book a Digital Citizenship assembly, please reach out to ksb@ksbschoollaw.com or give us a call at 402-804-8000.

PPACA Webinar 2023!

It's that time of year!  If the subject line in the email didn't get you excited for the holiday season and all of those PPACA forms...I don't blame you.  Please forward this to your business manager or whoever draws the short straw on the PPACA IRS reporting, if they did not receive it.

You can register using THIS LINK.

Here are the details:

When: KSB will host its annual PPACA 1094-C and 1095-C reporting workshop from 9:00 a.m. to 12:00 p.m. Central Time on Wednesday, December 13, 2023. If you cannot attend live at that time, the zoom will be recorded, and all who register will have access to the recording and materials shortly after it is completed live.

Where: The webinar will be conducted via Zoom, and all participants will be able to ask questions during and after the presentation until we hit noon Central.  All registrants will receive a copy of the slides, materials used in the webinar, and this year’s version of the instructions and forms, plus IRS documents establishing affordability, reporting deadlines, etc.

Cost: The cost will be the same as years past, at $250 per school. 

What We'll Cover: If the words "1095-C" and "lines 14, 15, and 16" don't ring a bell, you're either new or have tried to forget it since last year. We'll start with a quick refresher and update on what the Biden Administration has said and done that could impact your compliance.

As always, the bulk of the presentation will dig back into the PPACA reporting requirements, forms, and deadlines.  We'll go through the forms (1094-C and 1095-C) line-by-line and explain the various coding options and data you’ll need to ensure your reporting is accurate.  Even if your software company runs these reports for you, you will have to know and understand the reporting obligations and double check the forms for accuracy. Remember, these forms are what the IRS uses to determine your compliance with PPACA (and assess penalties)!

It is worth noting that the 2024 affordability percentage has dropped significantly, down to 8.39%! This could have a big impact on offers of insurance you plan to make in the next year, so we'll talk about that, too.
Finally, we'll have plenty of time during and after the presentation to talk through

Be On Alert: The Correct Response to Bullying Under the IDEA

Bullying.  The buzzword of the 2000s which filled assemblies, professional development meetings, school policies, and OCR case loads.  During the 2000s (ah, the decade of the iPod, rise of reality TV, hipsters, and Facebook), administrators and teachers were trained on the public health concerns over bullying.  However, one crucial area that was often overlooked during this time was the implications for special education.  With a renewed focus on bullying and its mental health impacts, especially those caused by social media, districts must ensure special education staff are aware of the necessary responses to bullying.  Additionally, IEP teams should be reminded that the team must address the whole child’s needs, including bullying and chronic absenteeism or truancy. 

For example, the Wisconsin Department of Education recently found that a district denied a student FAPE when it did not address incidents of bullying.  In re: Student with Disability, 123 LRP 30499 (SEA WI 10/03/2023).  Here, the student was diagnosed with autism spectrum disorder and was subjected to three incidents of bullying during the start of the 2022 school year.  During the last incident, the student eloped from the classroom as a result of the bullying.  These bullying incidents caused anxiety in the student that resulted in school avoidance.  As a response to the incidents, the IEP team convened in October to address the anxiety and bullying.  Notably, the IEP team determined the student’s IEP was appropriate and did not discuss any revisions or supports to address the bullying, possibly because those were “new” concerns unrelated to the student’s verification category.  The student continued to have chronic absenteeism and did not return to school.  The parents filed a state special education complaint, and the Department of Education found corrective action necessary.

Districts have an obligation to ensure that students with disabilities who are subjected to bullying continue to receive FAPE.  Bullying can inhibit a student with a disability from receiving a meaningful educational benefit.  To respond appropriately to allegations of bullying, a district should convene the student’s IEP team and determine whether the student’s needs have changed and what additional services could be provided to eliminate the bullying.  For example, it may be necessary to include increased supervision or clarify the reporting process for the student.  If the bullying also resulted in absenteeism, the IEP team should consider positive behavioral interventions and supports to encourage attendance.  And yes, that is true even if the student’s verification category is different from the new issues present because of the bullying.

Please share this blog post with your special education staff and remind them of the implications bullying may have on a district’s response to students with disabilities.  If you have any questions about special education, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

I’ll Be There For You: General Education Teachers’ Responsibilities for Special Education

“So no one told you life was gonna be this way . . . Your job’s a joke, you’re broke, your love life’s DOA.”  This one is for all you Gen X and Millennials out there.  Who can forget the iconic sitcom Friends (especially with the recent and unfortunate passing of Matthew Perry) and its memorable theme song by the Rembrandts?  Just as the theme song reminds the listener of the friends who will be there for you, we are here to remind general education teachers of their responsibility to be there to support special education students and students with disabilities.  One of the primary complaints we have heard lately from administrators is the lack of support for special education from the general education staff.  Many times general education teachers quip “that is a special education problem, not my problem.”  However, general education teachers are tasked with many legal obligations to students with disabilities similar to special education teachers.

For example, general education teachers have a responsibility to implement students’ behavior intervention plans (BIPs) and individualized education programs (IEPs).  This includes tracking program accommodations and also student refusals.  It is critical that school districts ensure general education staff have access to students’ IEPs and BIPs.  It is not uncommon to hear that general education staff were unaware of a student’s BIP or how to appropriately track the data.  District administration should review internal procedures to determine who is responsible for sharing students’ IEPs and BIPs with appropriate staff.  

General education teachers also have child find obligations if the District has reason to suspect a disability.  Red flags that should alert teachers to suspect a disability include: academic performance, behavior issues, attendance/truancy, and changes in student attitude.  It is common for general education teachers to simply forget about potential child find obligations when the child is advancing from grade to grade or the child is really smart.    

In addition to implementation and child find obligations, general education teachers may also be asked to serve on a student’s IEP team.  One regular education teacher must be in attendance at a student’s IEP meeting as a mandatory participant.  General education teachers are critical as IEP team members as they can speak to the student’s placement and progress in the general education classroom.  An area of compliance we see schools struggle with is inappropriately excusing the general education teacher from the IEP team meeting. (ex. General education teacher is the volleyball coach and only attends a portion of the meeting until volleyball practice starts.)  The IDEA provides very specific rules for excusing IEP team members.  In general, the same general education teacher must be present for the entire meeting.  A team member may be excused if parent and public agency agree, in writing, that the attendance of the member is not necessary because the member’s area is not being modified or discussed and the member submits, in writing, input into the development of the IEP prior to the meeting.  34 CFR 300.321 (e). 

Both Nebraska and South Dakota schools have seen increased state special education complaints over the last year.  In order to combat these complaints, we recommend school administrators consider professional development trainings that discuss topics such as “Special Education for General Education Teachers.”  We have several staff in-services prepared regarding these topics and are happy to schedule an in-service with your District.  To reach out to schedule an in-service or ask any questions related to special education, do not hesitate to contact us all at 402-804-8000 or by sending all of us an email at ksb@ksbschoollaw.com.

What’s Trending Now? OCR Affirms the Importance of Legally Sufficient Title IX Grievance Procedures

Lawyers, especially the KSB lawyers school lawyers, are a strange group of people.  (Have you read our bios? Strange group of people . . .)  Nothing brings us more joy than exciting legal updates in the school law world.  For months, we have been waiting with bated breath for the new Title IX regulations to be released.  The Department of Education indicated the new regulations would be released this month, which is looking extremely doubtful. So, good news!  This blog post is not a deep dive into the new Title IX regulations.  Instead, this is a reminder that OCR is still engaged in compliance reviews of K-12 schools under the current Title IX regulations.  

In a recent OCR compliance review involving a school district in Connecticut, OCR determined the District violated Title IX by failing to ensure adequate Title IX coordination, failing to adopt and publish grievance procedures that complied with Title IX, and failed to respond equitably to complaints.  Here, the District provided OCR with its Title IX policies and procedures which included four separate grievance procedures.  Each grievance procedure had a different primary contact and methodology for resolving complaints.  When conducting the investigation, OCR was unable to find the “administrative regulations” referenced in the policies on the District’s website.

As part of its analysis, OCR determined the District’s Title IX grievance procedures were not compliant with the Title IX regulation.  In particular, the District did not provide notice to employees and students about the Title IX grievance procedures.  OCR determined the use of multiple procedures did not provide sufficient notice to complainants and also likely caused confusion if an employee or student attempted to determine which procedure to utilize.  Specifically, “OCR found that the procedures in place were so intertwined that it made it difficult for covered individuals, as well as District staff, to understand relevant rights and the District’s obligations under Title IX.”   

What should you add to your homework list?  Review your Title IX policy.  We strongly recommend having only one Title IX policy that covers both employees and students.  Additionally, review your website and ensure the Title IX policy is easily accessible and that the Title IX coordinator is listed.  

If your Title IX policy is not legally sufficient, we have a Title IX package available for purchase which includes a Title IX policy, all necessary forms, and a flow chart.  Please reach out if your District has any questions about the current Title IX regs or the proposed regs, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at 402-804-8000 or by sending all of us an email at ksb@ksbschoollaw.com.

23-24 Quarterly Webinars Offered by KSB

After some delay, and waiting to see what the Federal Government was going to do, we’ve decided to go forward with our Quarterly Webinar Series.  As in the past these will be from 9:00 AM to 12:00 PM central. We will also record the webinars and make them available with the materials if you are not able to join us live.  More details on the dates and topics are below.  You can use THIS LINK to register. 

November 28, 2023

Where is Tom Osborne When We Need Him? Mastering the Option (Enrollment)

For years, the Huskers stymied opponents with the deceptively simple triple option.  A well practiced quarterback can read a defense and make strategic decisions as a play unfolds.  Nebraska’s option enrollment program can be similarly deceptive in that the law seems simple, but can be complex when it is actually applied.  The Unicameral’s most recent changes to the option enrollment statutes have created even more subtle complexity that has caused confusion within the education community.  This webinar will explain the option enrollment statutes with the speed of Ahman Green, the tenacity of Cory Schlesinger and the dazzle of Tommy Frasier.

*Participants will receive access to updated option enrollment forms, including capacity resolutions, revised option policies and response letters.

January 17, 2024

What To Do While Counting Down from 504: Strategies to Comply Now to Get Ready to Comply Later

The training that Nebraska schools have most frequently requested for the 2023-24 school year is a review of the requirements of Section 504 of the Rehabilitation Act.  This is perfectly understandable, given the explosion of parent requests for accommodations and the crisis of poor student mental health.  We all anxiously await the release of the revised 504 regulations from the US Department of Education.  However, schools that have solid compliance processes applying the current regulations will be miles ahead in getting ready to comply with the new regs.  This quarterly webinar will provide three hours of practical advice on how to comply with Section 504 using lots of real world examples, including advice on how to best utilize the new 504 forms from SRS.  

March 20 , 2024

Knock knock 

Who's there? 

FERPA 

FERPA who? 

Sorry, I can't tell you that.... 

The Federal Education Rights and Privacy Act has been in effect since the 1970’s – a decade known for hippies, protests, drug use and litigation in schools.  In other words, the more things change, the more things stay the same.  However, FERPA predates email, social media, apps, and other technology common in public education today. KSB’s attorneys will explain how schools can balance FERPA’s requirements with the complex information demands of today.  We’ll detail FERPA considerations when districts interact with law enforcement, use video and security recordings in the discipline context, and operate in an era where parents and other stakeholders expect instant information. 

June 25, 2024

Dude, Where are My Regulations? Unpacking the Current (and New?) Title IX Regulations

All of the legal and political experts insist that the new [new] Title IX regulations will be released before the end of the 2023-24 school year.  These new regulations forecast significant changes to the definition of sex harassment and the process that schools must follow to investigate allegations of sex harassment.  They will also likely include issues surrounding LGBQTI+ students, including students who want to participate in sports and other extracurricular activities.  Every member of a school district's Title IX team should plan on attending this session.    

36 Days Until Thanksgiving! A Refresher on Calculating FMLA Leave During A Holiday Break

Is it too early to start thinking of Christmas break?  We know many administrators in September were thinking “wake me up when September ends.”  (Bonus points for all readers who sang the Green Day song there.)  With the school year in full swing, according to our calculations, the next major holiday break is a mere 36 days away.  For those in our office who love football (everyone) and enjoy a mighty helping of Thanksgiving delights (The turkey! The stuffing! The pie!), we already have the holidays on our minds.  With holiday breaks comes the telephone calls and emails asking for clarification on calculating FMLA leave.  Fortunately for all you FMLA nerds, the DOL blessed us with a recent opinion letter in May 2023 regarding this very topic.

Under the FMLA, when a holiday falls during a week in which the employee is taking a full week of FMLA leave, the entire week is counted towards the individual’s FMLA leave usage.  For example, if you have a staff member who has a baby on November 16 and requests FMLA leave for the birth of the child, the whole week of November 20 through the 24th counts as FMLA leave.  The school should count one full week instead of 2/5 of a week.  It is irrelevant that the district does not have school November 22, 23, and 24.  

What about a staff member who requests intermittent FMLA leave?  The DOL confirmed its previous stance stating:   

Under the FMLA, the employee’s normal workweek is the basis of the employee’s leave entitlement. If a holiday occurs during an employee’s workweek, and the employee works for part of the week and uses FMLA leave for part of the week, the holiday does not reduce the amount of the employee’s FMLA leave entitlement unless the employee was required to report for work on the holiday. Therefore, if the employee was not expected or scheduled to work on the holiday, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would include the holiday).

To illustrate, let’s assume a school has a custodian who needs to undergo scheduled cancer treatments.  The custodian utilizes intermittent FMLA leave to do so.  The custodian works November 20 and 21 and plans to utilize intermittent FMLA leave on November 22 and 24.  This employee normally works a five day week and is required to work November 22 and 24 normally.  Because he takes two days of FMLA leave and Thanksgiving is part of the week, the school would count the employee as using 2/5 of a workweek as FMLA leave.   

In the opinion letter, the DOL reiterates its policy stance on the treatment of intermittent leave by explaining:

Holidays regularly occur during normal workweeks and should be counted when they fall within weekly blocks of leave. On the other hand, the Department believes that where leave is taken in less than a full workweek, the employee’s FMLA leave entitlement should only be diminished by the amount of leave actually taken.
More guidance on the calculation of FMLA leave usage is available from the DOL here. Additionally, we drafted a whole series on the FMLA which is available starting with this post.  If you have any questions about calculating leave under the FMLA or the use of intermittent leave, please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or send us all an email at ksb@ksbschoollaw.com.