The IRS Does it Again: 1094-C and 1095-C Reporting Deadlines Extended

Now that most “Applicable Large Employer” school districts and ESUs (whose

“large employer number” is 50 or greater) have begun filling out the 1094-C

and 1095-C reporting documents, the IRS has extended the deadlines to file

these reports.

The 1095-C, which was previously due by January 31, 2016, is now due to

employees and the IRS by March 31, 2016.

The 1094-C, which was due by February 29, 2016 if filed in paper form and

March 31, 2016 if filed electronically, is now due either May 31, 2016

(paper) or June 30, 2016 (electronically).

The IRS issued Notice 2016-4 on December 28, 2015 to explain the

extensions and provide guidance to individuals who may elect to file their

tax returns before their employers issue their 1095-C forms. Keep in mind

that the 1095-C’s will be made a part of an individual’s income tax filings,

much like the W-2. If you have been using this time to fill out the reporting

forms over the break without students and staff in the building, we think

you’ve made the smart decisions. While you now have additional time to file

these reports, hopefully you will avoid confusion and a lot of questions from

staff members by completing them early!

If you have questions or concerns about these or any other issues related to

the PPACA reporting obligations, we recommend that you consult with your

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

Cash Is Not King: IRS Issues New Guidance on Cash-in- Lieu and Other Arrangements Which Will Impact PPACA Compliance and Reporting

Yesterday, December 16, 2015, around the same time that Karen and Bobby

were giving a statewide presentation regarding PPACA reporting, the IRS

issued Notice 2015-87 (Notice). The Notice includes many important

updates on issues we’ve addressed yesterday and at other times, including

tax penalty amounts, special rules for “educational organizations” (think

subs and coaches), COBRA coverages, and many others. We will cover

these in detail at upcoming presentations. However, because PPACA

reporting will begin in a few short weeks, we want to draw your attention to

the issues which specifically impact reporting in this update.

The Notice addresses cash-in- lieu and other “flex cash out” arrangements.

This is one of the more troublesome reporting issues we’ve been discussing

for months and which Karen and Bobby discussed yesterday. As we feared,

the IRS has taken the approach which could significantly impact school

districts with these arrangements.

As part of the required reporting, the IRS requires each employer with 50 or

more employees report the employee’s cost of the cheapest available single

insurance plan. If you require an employee to pay $100 toward the cost of

their insurance each month, you would report $100 on each month of the

applicable form 1095-C. The IRS will then take this cost information and

compare it to the employee’s household income to determine if your

district’s offer of insurance was “affordable.”

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The Cash-in- Lieu Issue. For those of you who “speak PPACA,” this new

Notice document confirms our fear that in addition to the actual employee

cost, the IRS will now require employers to put their cash-in- lieu options into

the “cost” section of the form 1095-C, Line 15. The theory behind it is

simple: if you offer cash-in- lieu, the employee is required to give up the

cash in order to enroll in the insurance. The IRS now confirmed that they

consider this part of the “cost” to enroll. This concept is best illustrated by

way of example. Assume, like above, that you require an employee to pay

$100 toward their insurance premium, or they can decline insurance

coverage and receive $50 a month cash instead. If you had not offered the

cash-in- lieu, the IRS would require you to report only the $100 per month

you require the employee to pay in Line 15 of form 1095-C. However, the

$50 cash-in- lieu amount must be included, as well. So, the per-month

“cost” for that employee is now the $100 actual cost and the $50 cash

amount, for a total of $150 per month.

This is even more significant considering some of the offers made in

collective bargaining agreements to certificated staff. Some districts offer up

to the amount of a full family premium cost as a cash-in- lieu, upwards of

$20,000. That means for every employee who is offered the cash, their

1095-C must include the full $20,000 (or whatever the actual number is) in

the employee’s “cost” section. (Remember, however, that on the 1095-C,

the “cost” you are reporting on is the cost of a single premium. Think of it

this way: how much money could an employee get if he/she did not take

the single insurance? That amount is the “cost” of the cash-in- lieu.)

HRA’s, Flex Credits, and the Cash Out Problem. In the Notice, the IRS

confirmed its position that in some cases an employer may count the

employer’s contributions toward health reimbursement arrangements (HRA)

and flex credits in the calculation of the employee’s “cost.” For HRA’s, the

rules are complicated. If you have an HRA, you should contact your

district’s attorney to discuss whether you may consider it as part of your

employer contribution and whether it complies with other market reforms

under PPACA and the implementing regulations.

As it relates to flex accounts, generally for these arrangements to “count”

the employee must be able to use the amounts to pay for certain medical

expenses. Again, you should contact your attorney and/or accountant to

determine whether your flex plan meets the use requirements. However, the

most important question as it relates to calculating employee “cost” asks

whether the employee has the option to “cash out.” Many districts have

structured their Section 125 and other flex-type plans to permit an employee

cash-out option to avoid negative tax consequences. Now, however, the

IRS’s position in the Notice makes clear that if the employee is permitted to

withdraw from the flex account a taxable cash amount, the contribution

made by the employer will not qualify and cannot be used to offset the

employee’s reported “cost.” That means if you have a cash option out of

your 125 plan, you will have to list the amount that could be flexed out on

line 15 of form1095-C for employees regardless of whether they take

insurance.

The Notice does provide a type of transition relief for HRAs and flex plans

prior to 2017, in some cases. If you have an HRA or flex plan, we encourage

you to speak with your district’s attorney or accountant on the ability to use

an otherwise non-qualifying HRA or flex plan contribution to offset employee

costs for the next few years.

Delayed Enforcement and Alternative Arrangements. As we read the

Notice, the IRS will release regulations on these issues relatively soon. In

addition to the de facto transition relief for many HRAs and flex plans, it

appears the IRS will not enforce the cash-in- lieu reporting until it can release

final regulations. As the Notice states: “[The] IRS anticipate[s] that the

regulations generally will apply only for periods after the issuance of final

regulations.” If you meet one of these conditions, you do not have to list

your cash-in- lieu amount in line 15 for 2015 only:

1. The employer offered the cash “opt out” (i.e., cash-in- lieu)

arrangement with respect to health coverage provided for a plan year

including Dec. 16, 2015;

2. A board, committee, or similar body or authorized officer of the

employer specifically adopted the opt-out arrangement before Dec. 16,

2015; or

3. The employer had provided written communications to employees on

or before Dec. 16, 2015 indicating that the opt-out arrangement would

be offered to employees at some time in the future.

If you have always had a cash-in- lieu arrangement, we believe the

continuing contract obligations in Nebraska will support every school’s

argument that they meet at least one of these tests, assuming they do not

otherwise meet them. If your board is currently negotiating for a new

or “substantially increased” cash-in- lieu payment of any sort, you

should contact your attorney before reaching any new agreement

with your teachers’ union. If you have a long-standing cash-in- lieu

program, you should be entitled to the flex payment transition relief

that was announced yesterday.

As part of these regulations, the IRS also seems likely to permit districts

with cash-in- lieu options now and in the future to impose “other meaningful

requirements…such as a requirement to provide proof of coverage provided

by a spouse’s employer.” Assume, for example, your district says that

employees are only entitled to the cash-in- lieu if they provide proof of

insurance through a spouse or other means. The IRS’s eventual regulations

may permit you to forego including the cash-in- lieu in the employee’s “cost”

if you have a condition like that in place. Obviously we do not know what

the IRS will ultimately decide, but its Notice indicated that the IRS at least

appears open to this concept.

Penalty Amounts for 2016. Lastly, we want to point out that the Notice

document clarifies the IRS’s long-held position that the “tax” (i.e., penalty)

amounts for both the 4980H penalties (“death penalty” and “unaffordable

penalty”) will be increased each year based on the “premium adjustment

percentage” in the ACA, tied to increases in premiums in the health

insurance market. For 2016, the “death penalty” (for failing to offer to 95%

of all full-time staff after transition relief) will be $2,080. The “unaffordable

penalty” (failing to offer “affordable” insurance to “full time” employees after

transition relief—which differs for 50-99 versus 100+ large employers) will

be $3,120.

This new Notice provides the clarity that we have been hoping for. However,

unless your district is proactive in learning how and when it will impact your

offerings, you may face increased penalty possibilities and other unintended

consequences. We strongly encourage you to address these matters with

your boards, and if you have questions or concerns about these or any

related issues, we recommend that you consult with your school district’s

attorney or call Karen, Steve, or Bobby.

Time to Evaluate Probationary Employees

The month of December is a busy one for school administrators. In

addition to supervising basketball and wrestling contests, printing programs for

the holiday concert, and rounding up members of the PTO to provide cookies

for the teachers’ holiday tea, administrators must be sure they have evaluated

all probationary teachers during the first semester.

All probationary employees must be evaluated during the first

semester of the 2015-2016 school year. You also must schedule a post

conference for each probationary teacher’s evaluation prior to the

beginning of second semester so that there is no confusion about

whether the evaluation truly occurred during first semester. See NEB.

REV. STAT. § 79-828(2).

The evaluation statute applies to probationary teachers and probationary

administrators, such as principals and athletic directors. The failure to

evaluate probationary certificated employees in the manner required by statute

can result in a loss of the school district's ability to nonrenew a poorly-

performing employee.

In the hustle of finalizing probationary evaluations, administrators are

tempted to short-circuit the evaluation process. Remember that probationary

employees must be evaluated based upon an “actual classroom observation.”

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Evaluate all probationary teachers-- not just those who appear to have

deficiencies. Sometimes significant problems with probationary employees

appear for the first time late in the second semester.

If you have employees who perform a combination of teaching and non-

teaching jobs, such as a librarian who teaches one study skills course, you

must evaluate during classroom time. The Commissioner of Education takes

the position that if a probationary employee teaches even one class, his or her

evaluation must be based on that instruction rather than on an overall review

of his or her performance in all duties.

Particularly during the Christmas season, you may be tempted to sugar-

coat or soften criticisms or concerns you may have about a teacher’s

performance. Using kid gloves and veiling true weaknesses with flowery and

imprecise language is EXACTLY why we school attorneys have so much work to

do each spring. Being too nice or unclear does a disservice to both the teacher

and to you and can hurt your school district in the long run.

If you have any questions about the evaluation of probationary

employees or would like us to review proposed evaluations, please don’t

hesitate to contact Karen, Steve or Bobby.

We’ve read the ACLU’s email regarding gender identity, and we’re sure you have, too!

On October 27, 2015, the Nebraska ACLU’s legal counsel, Amy Miller, sent

an email to Nebraska school administrators entitled “ACLU guidance related

to transgender students.” The email provides information regarding the

alleged obligations of school districts as they relate to transgender students.

Ms. Miller notes that a similar email went to the Nebraska School Activities

Association in light of their considerations regarding activity participation for

transgender students. We certainly appreciate the ACLU adding their voice

to the already-robust discussion of these issues in Nebraska public schools.

We agree that boards of education should make informed decisions on these

important issues with all available information, which compels us to clarify

several points from Ms. Miller’s email.

Ms. Miller states that students have “clear legal rights” regarding gender

identity. We disagree that the law and these “rights” are clear in all cases.

Neither Nebraska’s Unicameral nor Congress has passed laws clearly

establishing “gender” as a legally protected class like they have for sex,

national origin, and age, to name a few. In fact, legislation attempting to

add “gender” as a protected class has categorically failed at both levels.

Similarly, no court case and none of the cases cited in the email, such as

Mathis, Hart, and Doe, establish gender as a protected class or fully clarify

the obligations of Nebraska schools. Mathis is a Colorado Human Rights

Commission case, not a court case with precedent applying to Nebraska

schools. Hart was an employment discrimination case from a lower

Maryland federal court. Doe was a case interpreting Maine’s state law

regarding gender identity, not a federal law or Nebraska law. In short, there

is no definitive court case on this issue.

Ms. Miller is correct that the U.S. Supreme Court and other courts have

prohibited discrimination based specifically on “gender norms,” but they

have not deemed transgender citizens to be a protected class. This is an

important legal distinction. We believe schools across Nebraska are

appropriately addressing any perceived discrimination, harassment, or

bullying based on gender norms, but that is a separate question from

schools’ obligations regarding all matters involving gender identity.

If the law was as clear as Ms. Miller states, we would not have court

decisions such as G.G. v. Gloucester Cnty. Sch. Bd., No. 15-54 (E.D.Va.

Sept. 17, 2015). In G.G., a federal court in Virginia declined to issue a

preliminary injunction requiring a school to permit a transgender student to

use the bathroom consistent with the student’s gender identity. The

Department of Justice (DOJ) made nearly identical arguments to those

contained in Ms. Miller’s email. As the court pointed out, federal regulation

34 C.F.R. § 106.33 specifically permits facilities to be assigned based on

“sex,” and the court noted that the DOJ’s position in the case was

inconsistent with this federal law. Considering the context of Ms. Miller’s

email, it is important to note that the court also concluded that federal

agencies such as the DOJ and the Department of Education’s Office for Civil

Rights (OCR) cannot simply create legal standards by changing their

interpretation of existing federal law to protect gender identity. You can

read the G.G. opinion here.

Ms. Miller is correct that the DOJ and OCR take the position that

discrimination on the basis of gender identity is prohibited by federal law.

Ms. Miller cites to OCR “Resolution Agreements” from Downey Unified School

District and Arcadia Unified School Districts and “guidance” issued by the

DOJ and OCR to support the idea that public schools do have heightened

legal obligations regarding gender identity. These “Resolution Agreements”

are essentially settlement agreements between individual schools and the

OCR, in which the OCR has taken the position that the school must permit

the student to use the restroom and locker room facilities consistent with

their gender identity. The DOJ has taken the same position and has come to

similar agreements with employers and other entities.

However, these “Resolution Agreements” are not court cases binding on

Nebraska schools. These are agreements reached with individual schools to

resolve OCR complaints, with the alternatives for schools being lengthy

investigations and lawsuits aimed at stripping schools of federal funding. As

the Virginia court noted, there are no new laws, just new interpretations. In

response, at least one school is pushing back against the OCR. An Illinois

district is refusing to comply with an OCR directive to permit a transgender

female student to use the female locker room. We are monitoring this case

as it progresses, but it illustrates the point that the law is not clear and that

OCR’s interpretation is not the same as law.

In summary, the law on the issue gender identity and the obligations of

public schools is far from settled. It is true that the DOJ and OCR may deem

your school in violation of federal law if a complaint is filed and you do not

follow their interpretations. It is also true that the DOJ, OCR, and/or ACLU

may file a lawsuit against your district if you do not accept their position.

Under this threat of litigation, the ACLU suggests that your school consider a

policy, much like the NSAA is considering an activity participation policy.

You are not required to establish a formal policy, nor do we

recommend it to our clients at this time. Policies should be clear and simple,

and the law surrounding gender identity is anything but clear and simple.

The law in this area is evolving so frequently that any policy enacted by a

school, regardless of its stance on gender identity, could directly invite

litigation or establish obligations on the district which simply are not

required by state or federal law.

There is an alternative course. We know that school boards, administrators,

and staff strive to treat everyone with respect and provide a top quality

education to all students. We believe school districts are acting completely

appropriately and within the existing legal framework by addressing these

matters on a case-by- case basis, without adopting formal policies. Boards

are certainly free to pass policies regarding gender identity as the ACLU

suggests, but we strongly encourage boards and administrators to

collaborate with legal counsel on all matters involving transgender students

and staff, especially if your board is inclined to pass a policy.

If you have questions or concerns about these or any related issues, we

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

Karen, Steve, or Bobby.

Reggie Jackson Ain’t Got Nothing on Us! In Nebraska, October Means it’s Time for Negotiations

As Major League Baseball enters the postseason, school boards and

administrators in Nebraska need to prepare for an event of a different sort.

School boards should be using October to get ready to negotiate contracts

with their local teachers' unions. Boards of education, administrators, and

teachers should move quickly to work through the negotiations process for

the 2016-17 school year.

The Nebraska education community is growing more comfortable with the

statutory timelines for negotiations, but it is still worthwhile to review the

dates. Board and teacher associations are obligated to begin negotiations

for the 2016-17 contract year by November 1, 2015. This year November 1 st

falls on a Sunday, so we are urging boards to schedule their first

negotiations session no later than the week of October 26. You have only

until February 8 th (100 days from November 1 st ) to finish negotiations. This

means that if you have your school board meetings on the second Monday of

the month, you could wait until your February board meeting to have a draft

agreement ready for board approval. We believe the better practice is to

have the proposed agreement ready for submission to the board at its

regular January board meeting. If the board and association cannot reach

agreement by February 8 th , they must be ready to submit the matter to a

resolution officer.

Recommendations. With all this in mind, we recommend the following:

 Beat the Negotiation Deadline. We strongly encourage boards to

conclude negotiations and have a tentative agreement in place no

later than the scheduled winter break and to ratify the agreement at

the regular January board meeting. Why the urgency? The 100 day

time period includes the Thanksgiving, Christmas, and New Year's

breaks.

 Review Your Entire Negotiated Agreement. Sometimes boards of

education focus on base salary to the detriment of other important

issues. This is the perfect time of year to review your entire contract

for provisions which are poorly-written, unclear, or unwise. Few

school district cases go to the Commission of Industrial Relations, but

we deal with the negative effects of poorly-worded collective

bargaining provisions every day. The Nebraska State Education

Association has very strategically focused on bargaining issues like

paid time off and unlimited prior experience across the state. School

boards who are not aware of the unintended consequences of these

sorts of provisions can agree to include them in their agreement only

to regret that decision later.

 Conduct a Comparability Study. We encourage boards to use a

comparability study as part of the negotiations process. A

comparability study allows the board to negotiate from a position of

power and knowledge rather than guesswork and emotion. If your

school district ever goes before a resolution officer or the CIR, a

comparability study will serve as the basis for determining the

ultimate resolution. Nebraska law requires boards of education to pay

their teachers between 98 and 102 percent of the midpoint of their

array. Boards have no way of knowing if they are hitting this

benchmark from year to year if they do not periodically perform a

formal comparability study.

If you have questions or if you do not believe your school district will be able

to comply with these deadlines, you need to obtain professional advice

promptly. We recommend that you consult with your school district’s

attorney or call Karen, Steve, or Bobby.

Transgender Bathroom Lawsuit Dismissed by Federal District Court

Schools across the country are struggling with the best legal and practical

approaches to deal with the needs of transgendered students. One of the

most emotionally-charged issues is which bathroom a transgendered student

should use. A federal district court in Virginia issued a decision last week in

a case in which a transgendered student sued the high school over the

student’s desire to use a specific bathroom. Although this case is not

binding on Nebraska schools, it provides some interesting insights into how

courts are addressing this issue.

The case, G.G. v. Gloucester Cnty. Sch. Bd., No. 15-54 (E.D.Va. Sept. 17,

2015), was filed by the ACLU on behalf of a student who is biologically

female but who identifies as male. The student and mother informed the

school that the student would like to use the boys’ bathrooms at the school.

With permission from school administrators, the student used the boys’

restroom for almost two months. After receiving complaints from some

parents and residents of Gloucester County, the school board adopted the

new policy which limits the use of boys’ and girls’ bathrooms to students of

the “corresponding biological gender.” Under the policy, trangender

students who do not wish to use the bathroom designated for their biological

sex are permitted to use separate unisex bathrooms. The ACLU filed suit

against the school arguing that the school board’s policy excluding the

student from using the boys’ restroom based on gender identity amounted

to sex discrimination in violation of Title IX.

The court dismissed the student’s Title IX claim. The court relied on a US

Department of Education regulation that expressly “allows schools to provide

separate bathroom facilities based upon sex, so long as the bathrooms are

comparable.” The court reasoned that, since schools are allowed to maintain

separate bathrooms based on sex, the school’s policy “did not run afoul of

Title IX by limiting G.G. to the bathrooms assigned to his birth sex.”

Significantly, the court specifically rejected the ACLU’s argument that the

term “sex” could only mean gender identity. Instead, the court ruled that

“under any fair reading, sex in Section 106.33 clearly includes biological

sex.”

The ACLU and the U.S. Department of Justice argued that the school had to

provide the student with access to the boys’ bathroom based on a “Dear

Colleague Letter” which was sent to schools by the Office for Civil Rights.

That letter stated that “Under Title IX, a recipient must generally treat

transgender students consistent with their gender identity in all aspects of

the planning, implementation, enrollment, operation, and evaluation of

single-sex classes.”

The district court flatly rejected the reasoning in that letter. “To defer to the

Department of Education’s newfound interpretation would be nothing less

than to allow the Department of Education to ‘create defacto a new

regulation’ through the use of a mere letter and guidance document.”

In sum, the district court concluded that the school “seeks to protect an

interest in bodily privacy that the Fourth Circuit has recognized as a

constitutional right while G.G. seeks to overturn a long tradition of

segregating bathrooms based on biological differences between the sexes.”

It found that “[b]ecause G.G. has failed to show that the balance of

hardships weighs in his favor, an injunction is not warranted while the Court

considers this claim.”

Obviously this is only one case, and the litigation between schools and

transgendered students will continue. Even this specific lawsuit is not

completely resolved. The student’s claims that the school violated the Equal

Protection Clause of the United States Constitution will continue to be

litigated by the parties, and the ACLU will likely appeal last week’s decision.

Schools should deal with the needs of transgendered students with care and

sensitivity, but it is important for schools to know that the law related to

transgendered students is far from settled.

The Intersection of HIPAA and FERPA

As school attorneys, we are constantly admonishing school staff to be

mindful of their obligation to keep student information confidential pursuant

to FERPA and the IDEA. However, we also frequently encounter confusion

among staff about the Health Insurance Portability and Accountability Act

(HIPAA) on school districts. HIPPA is a federal law which, among other

things, provides the first national privacy law for individual health

information. HIPAA mandates actions that “covered entities” must take to

protect the privacy of an individual’s health information. The U.S.

Department of Health and Human Services (“HHS”) has issued rules to

implement and enforce these privacy requirements. Generally, entities

covered by HIPAA may release or receive “protected health information”

about an individual only if that individual gives permission or the Act

expressly permits its release.

HIPAA defines “covered entity” to mean a health plan; a health care

clearinghouse; or a health care provider who transmits any health

information in electronic form in connection with a transaction covered under

the Act. “Protected health information” is defined as individually identifiable

health information that is transmitted by electronic media; maintained in any

medium meeting the definition of electronic media; or transmitted or

maintained in any other form or medium.

Under a final rule issued by HHS, health information contained within

student educational records that are subject to the Family Educational Rights

and Privacy Act (“FERPA”) is exempt from the requirements of HIPAA. (See

HIPAA, 24 CFR 164.501.) “Educational record” includes individually

identifiable health information of students under the age of 18 created by a

nurse in a primary or secondary school receiving federal funds. In addition,

medical records that are excepted from FERPA’s definition of “education

records” under FERPA section 99.3 are also exempted from coverage by

HIPAA. The HHS reasoned that subjecting districts to both FERPA and HIPAA

requirements as to these records would be confusing and unduly

burdensome. Of course, districts must continue to ensure that these records

are received, maintained and transmitted in a manner consistent with

FERPA.

The regulations suggest that school-based health centers may qualify

as “health care providers.” This will only be an issue where centers are

sponsored by health care entities covered by HIPAA, such as health

departments, hospitals or community health centers. Those entities are

subject to the HIPAA privacy requirements and will be responsible for

compliance. This may result in health information kept in the school district

being treated as FERPA records, and the same information kept in the health

facility being covered by HIPAA.

For example, when a center is performing school health functions or

implementing health mandates on behalf of the school board, and the health

information of students who use the facility are entered into the educational

record, the information is covered by FERPA. Any health care information

that is retained by the health care provider will be covered by HIPAA.

Protected health information that exists only in the office of a health care

provider may not be released to school personnel or other third parties

without parental authorization. Districts may need to coordinate with these

centers in drafting HIPAA-compliant authorizations if the school requires

health information that is produced and available only outside of the school

district. These health care providers will most likely be able to provide

forms for this purpose.

A confusing aspect of HIPAA is whether school nurses who are

employees of the district are subject to HIPAA as “health care providers.”

The regulations are silent on this precise point, but the 2000 regulations

state, “The educational institution or agency that employs a school nurse is

subject to our regulation as a health care provider if the school nurse or the

school engages in a HIPAA transaction.”

Some sources interpret this regulation to mean that school nurses, as

health care providers, are covered entities under HIPAA only if they transmit

health information electronically in connection with a HIPAA transaction. This

language suggests that when a school nurse is not billing electronically but

simply providing care pursuant to an IEP or section 504 plan, the

information generated by the care becomes an educational record covered

under FERPA, but not subject to HIPAA.

Another area of concern is the release of health information relating to

student athletes, as in when an athletic trainer is asked to disclose

information regarding an injury to a player. While it is disputed that such a

disclosure to the coaching staff would violate HIPAA (as FERPA applies), the

safest course is for personnel to refrain from discussing such injuries with

third parties outside the school/district (such as the media) absent a specific

authorization. There is nothing in the regulations, however, that would limit

the trainer from sharing this information with other school staff members.

Student confidentiality is an important legal issue, but staff should not

be so fearful of violating HIPAA that they neglect to adequately share

information with other district staff that could better serve students. If you

have questions, we recommend that you consult with your school district’s

attorney or call Karen, Steve or Bobby.

Teacher Oath of Office and Pledge: to Administer or Not Administer?

School districts across Nebraska have received an email from the ACLU

regarding the pledge contained in NEB. REV. STAT. § 79-8,108. This statute and

NEB. REB. STAT. § 11-101.01, which contains an oath of office for state

employees, both require anyone “paid from public funds for their services,

including teachers and all other employees paid from public school funds” to

take an oath of employment and pledge. Section 11-101.01 also requires

the oaths to be filed with the Department of Administrative Services or the

county clerk.

Section 11-101.01 states in full:

All persons in Nebraska, with the exception of executive and

judicial officers and members of the Legislature who are required

to take the oath prescribed by Article XV, section 1, of the

Constitution of Nebraska, who are paid from public funds for

their services, including teachers and all other employees paid

from public school funds, shall be required to take and subscribe

an oath in writing, before a person authorized to administer

oaths in this state, and file same with the Department of

Administrative Services, or the county clerk of the county where

such services are performed, which oath shall be as follows:

“I, .........., do solemnly swear that I will support and
defend the Constitution of the United States and the
Constitution of the State of Nebraska, against all
enemies, foreign and domestic; that I will bear true
faith and allegiance to the same; that I take this
obligation freely, without any mental reservation or
for purpose of evasion; and that I will faithfully and
impartially perform the duties of the office of ..........
according to law, and to the best of my ability. And I
do further swear that I do not advocate, nor am I a
member of any political party or organization that
advocates the overthrow of the government of the
United States or of this state by force or violence;
and that during such time as I am in this position I
will not advocate nor become a member of any
political party or organization that advocates the
overthrow of the government of the United States or of this state by force or violence. So help me God.”

— NEB. REV. STAT. § 11-101.01.

Section 79-8,108 states in full:

All persons engaged in teaching in the public schools of the State

of Nebraska and all other employees paid from public school

funds, shall sign the following pledge:

“I, .........., do believe in the United States of America
as a government of the people, by the people, for
the people; whose just powers are derived from the
consent of the governed; a democracy in a republic;
an indissoluble nation of many sovereign states; a
perfect union, one and inseparable; established upon
those principles of freedom, equality, justice and humanity
for which American patriots sacrificed their lives and fortunes.
I acknowledge it to be my duty to inculcate in the
hearts and minds of all pupils in my care, so far as it
is in my power to do, (1) an understanding of the
United States Constitution and of the Constitution of Nebraska,
(2) a knowledge of the history of the nation and of the sacrifices
that have been made in order that it might achieve its present
greatness, (3) a love and devotion to the policies and institutions
that have made America the finest country in the
world in which to live, and (4) opposition to all
organizations and activities that would destroy our
present form of government.”

— NEB. REV. STAT. § 79-8,108.

The Oath and Pledge are Probably Unconstitutional, if Required.

As you can see, both statutes require a signed document. It’s an “oath” for

purposes of section 11-101.01 and a “pledge” for section 79-8,108. If you

have never administered, signed, or even heard of these things, you are not

alone. In fact, it has long been our position that requiring all school

employees to comply with these laws probably violates the United States

and Nebraska Constitutions. At a minimum, as the ACLU mentions, you may

face litigation if you force employees to comply.

Although Nebraska does not have a Nebraska Supreme Court case

interpreting the constitutionality of the oath, the ACLU correctly notes a

Lancaster County District Court case in line with the U.S. Supreme Court and

several other state and federal courts which have decided the issue. For

example, in Nicholson v. Board of Comm’rs, 338 F. Supp. 48, 56 (M.D. Al.

1972), a federal court in Alabama held that the phrase “So help me God”

administered in an oath “infringes upon the free exercise clause of the first

amendment.” Likewise, in Vogel v. County of Los Angeles, 68 Cal. 2d 18,

(Cal. Sup. Ct. 1967), the California Supreme Court held that an oath violated

the First Amendment where it required the promisor to swear he or she was

“not a member of any party or organization, political or otherwise, that now

advocates the overthrow of the Government of the United States…by force

or violence or other unlawful means . . . .”

These cases are just a few examples of numerous courts which have

invalidated oaths and pledges like those found in sections 11-101.01 and 79-

8,108. A Nebraska court would likely find these laws to be unconstitutional,

as well. However, we do believe that a school employee is entitled to take

the oath if they so choose. Denying an employee to right take the oath

might well violate the employee’s First Amendment rights. See Newdow v.

Roberts, 603 F.3d 1002, 1006 (D.C. 2010) (holding that President Obama

had a “First Amendment right” to conclude his Oath of Office with “So help

me God.”).

I read in the news that other attorneys are telling schools to

require the oath and pledge, so what should we do?

There is no known consequence for failing to administer the oath, and we believe

requiring it would almost certainly subject your school to litigation as noted

in the ACLU email to Nebraska schools. If you have an employee who requests to take

the oath, you should let them.

Some schools and the State Board of Education have been faced with

patrons demanding that the oaths be administered, and we certainly

understand the strong feelings expressed by those who support such an oath

and pledge. We likewise understand the rationale behind following

mandates created by statute, even if they are “dead laws” which probably

are not constitutional. However, following the law merely buys you an

argument in a lawsuit—it does not prevent an employee or the ACLU on their

behalf from suing the district. While we don’t want to seem unpatriotic and

understand that board members and administrators don’t want to be labeled

a “communist,” we believe the ACLU has the law on their side.

In the end, this is a board decision. As you may recall, Commissioner

Blomstedt sent out a Memo to schools on May 11, 2015, in part bringing

section 79-8,108 to the attention of Nebraska districts. As the

Commissioner noted, this is a decision to be made within each district.

Boards are entitled to weigh the consequences of requiring the oath and

pledge versus not requiring them.

If you have questions, we recommend that you consult with your

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

SPED Show Choir

K.S. was a 16 year-old biracial student who was diagnosed with Asperger

Syndrome, obsessive compulsive disorder, mood disorder, adjustment

disorder, and Tourette's syndrome. These diagnoses significantly affected

K.S.'s communication, socialization, and behavior. In addition, K.S. had a full

scale IQ of 123, excelled in math and science, successfully took several

advanced placement classes, and was involved in extracurricular activities

including show choir, the school musical, and volleyball.

As a result of her diagnoses, K.S. was identified as an individual with a

disability under the IDEA, and received special education and related

services under an individualized education program (“IEP”) during her

freshman and sophomore years. She participated in an autism spectrum

disorder (ASD) program, was provided with a one-on- one paraprofessional

for the entire school day, could return to the ASD classroom any time during

the school day, and also could use the ASD classroom to take tests in a quiet

environment. Despite her social difficulties, K.S. was able to stay in the

general education setting most of the day and ranked near the top ten

percent of her class.

K.S. was raped during the 2011-12 Christmas break. K.S.'s mental health

providers recommended getting her back into a routine as quickly as

possible. K.S. returned to class in January 2012 and participated in the

school’s junior high show choir. Due to the circumstances, K.S.’s mother

agreed to postpone the annual IEP review scheduled for January. An interim

IEP was put in place that included several additional accommodations to

ease K.S.'s transition back to school after the rape. The interim IEP was

reaffirmed in February. The parties planned to conduct a full IEP review in

September 2012 after everyone had a better understanding of how K.S. had

recovered from her traumatic experience.

K.S. experienced several difficulties in the spring semester. She reported

that a student held a knife to her throat and threatened to cut her. The

matter was investigated, and the student was admonished. Later that

spring, K.S. slapped a student and used foul language because the student

tapped her to get her attention. An IEP meeting was held in May, and

wording was added to the IEP to add paraprofessional support for K.S.’s

extracurricular activities. The next setback for K.S. occurred when she was

not selected for varsity or junior varsity show choir, scoring 62nd out of 100

girls.

K.S.’s bat-shit- crazy mother filed a civil rights lawsuit against the school

district, claiming K.S. was excluded from the show choir because of her

disability and race. In an attempt to end the dispute, the district offered to

place K.S. in the junior varsity show choir. The mother rejected the offer. A

hearing was held, and the district court rejected the mother’s request for a

temporary restraining order and preliminary injunction. The district court

found there was no evidence that the decision regarding show choir had

anything to do with K.S.'s disability or race. Nonetheless, in an effort to

resolve the case before it proceeded to IDEA litigation, the school again

offered to reinstate K.S. to the junior varsity show choir. The mother again

refused the offer.

K.S. last attended school May 18, the day the show choir results were

publicized, and she eventually took her final exams off-campus. K.S.

attended every volleyball summer conditioning session in June, July, and

August, during which she got along well with coaches and students.

An IEP meeting was held on August 16. K.S.’s mother spent most of the

meeting presenting information to support her claim that K.S. must be

placed in the varsity show choir. The mother insisted that K.S.’s

participation in varsity show choir was a necessary prerequisite to attend

school in the fall. However, the IEP team determined that K.S.'s needs for

social skills, physical activities that reinforce skills, consistent routines,

regular schedule, and challenging academic courses could be met in ways

other than her being placed in the varsity show choir.

The mother withdrew K.S. from the public school and filed a due process

complaint seeking tuition reimbursement for placement at a private school.

The administrative law judge found in favor of the school district, and the

mother appealed to the Eighth Circuit.

The court indicated that in order to get reimbursement for a private

placement, two requirements must be established: that the school failed to

provide a FAPE; and that the private school is an “appropriate” placement

within the meaning of the IDEA. In addition, the school is not required to

provide an optimal experience for a student with a disability, but instead

must simply provide the student with a FAPE consistent with the IEP.

The mother claimed that the district did not conduct a genuine review in

August 2012 to address K.S.'s needs for the upcoming school year,

essentially claiming that the district “recycled” the old IEP. The court

rejected this claim. The court said that the IDEA does not require officials to

revise the IEP on an annual basis; they simply must review it. Additionally,

the school district had not neglected its duties. Despite the parties agreeing

to postpone the annual review until the fall of 2012, the IEP was reviewed in

February and reviewed and revised in May to address concerns that had

arisen.

The mother argued that the emotional changes that K.S. underwent from

January 2012 to August 2012 required more than minor changes to the IEP.

The school district responded that the IEP team worked closely with K.S.'s

medical team and implemented the team's recommendations and advice

that K.S. remain in as consistent a routine as possible during the aftermath

of the rape. The school district also pointed out that the real reason that

K.S. withdrew from school was due to the show choir decision.

The mother also argued that he court must find in her favor “because she

presented a consensus of medical and psychological experts at the due

process hearing, while the school only presented district employees such as

the paraprofessional, the special education director, and the principal.” The

court said: “The district employees did not attempt to give inappropriate

medical testimony about K.S.; instead, they offered professional

observations based upon actual and ongoing contact with K.S. regarding her

educational and social performance in a variety of school settings.” The

court rejected her request to rule in her favor “simply based on the sheer

number of experts she compiled compared to the district.”

The court was not fooled by the mother’s attempt during the appeal to focus

on the content of the IEP and whether the district was meeting K.S.’s needs

with the IEP. The court noted that the mother spent a “substantial portion”

of the August IEP meeting advocating that K.S. be placed in varsity choir

rather than advocating for any specific substantive changes to the IEP. “[I]t

is abundantly clear from reading the entirety of the administrative record

that [the mother]’s focus, until the time she unilaterally pulled K.S. from the

district, was getting K.S. into show choir—and not just any show choir, as

the district made an unconditional offer in July 2012 to place K.S back into

the [junior varsity] show choir. The case was litigated in federal district

court in a quest for a TRO, and at the school district level, with the nearly

singular focus that K.S.'s educational needs could only be met by placing her

in the Happiness show choir.”

The court found that because the IEP advanced by the district was providing

K.S with “some educational benefit” as of August 2012 when the mother

unilaterally removed her from the district, the mother failed to prove that

the district was not providing K.S. a FAPE at that time. “Given all of the

opportunities and resources available to K.S. via the IEP and other

extracurricular activities at Kennedy, we find that the district's refusal to

override the show choir audition process and unilaterally require the show

choir director to place K.S. in the Happiness show choir did not deny K.S. a

FAPE.”

When Can Reporting Suspected Child Abuse Create Legal Liability for the School?

All education professionals know that they are legally obligated to

report suspected child abuse or neglect to child welfare authorities.

Although we encourage schools to report abuse whenever they have

reasonable cause to believe it has or will occur, you should make sure that

you are not making a report in retaliation for parents’ advocacy on behalf of

their disabled children. Two recent cases show the difference between

permissible and retaliatory reporting.

In Wenk v. O'Reilly, 115 LRP 16032 (6th

Cir. 2015), a federal court held that a

school administrator could be sued after

she reported the father for suspected

child abuse. After a hostile IEP meeting,

the special education director sent an e-

mail to other educational members of the

student’s team saying that she hoped

“we have laid groundwork for future

meetings that will help eliminate his long

time assumption that"what he wants; he

gets," and speculating that the father

was “purposely removing his email

access as a way to force us to spoon feed

[him] information". After the meetings,

the father called the state department of

education to discuss his concerns about

his daughter’s IEP. The special education director then called state child

welfare officials and reported that the father was "unkempt" that staff

members had described the father as "creepy" and that he made their "skin

crawl" they were "fearful of meeting him", and that from her observations,

he was "verbally aggressive, bullies other staff and becomes upset when

things don't go his way". The special education director told the state

officials that "as aggressive as dad is at school and with staff, [she] can't

imagine him acting any different at home".

The father filed suit against the special education director claiming that

she called the state to retaliate against him for his advocacy on behalf of his

child. The special education director filed a motion to dismiss. The Court

held that the lawsuit could proceed. The judges explained that a report of

child abuse qualifies as retaliation under the First Amendment if the parents'

advocacy plays any role in the decision to report. The court pointed out that

the administrator's critical comments about the father in emails that she

sent to other district employees after IEP meetings suggested that she

"harbored animus" toward him. "Although [the administrator's] report did

contain some true allegations, the facts taken in the light most favorable to

[the parents] suggest that she embellished or entirely fabricated other

allegations, including those that most clearly suggested sexual abuse" the

court concluded.

In contrast, Smith v. Harrington, 65 IDELR 95 (N.D. Cal. 2015)

provides an example of a school that was found not to have retaliated

against a special education parent after he filed multiple complaints about

disability harassment.

According to the district's records, the parent angrily reacted to a

classmate's mother taking candid photos, "burst" into district offices in an

aggressive manner, and interrupted another child's IEP meeting in the

school library to yell at the principal.

The reports by the principal and the school psychologist also showed

that they had a good basis for their concern about the student. When the

father would engage in angry and paranoid behavior, it would distress the

student, causing her to begin cowering on the floor to avoid her father.

Educators walk a fine line in reporting suspected abuse or neglect by a

special education parent. Recent state and national cases have caused some

law enforcement agencies to urge reporting upon any suspicion, while

lawsuits like these demonstrate the other side of this difficult area. If you

suspect abuse and do not report it, you have violated NEB. REV. STAT. § 28-

711. However, your motivations for filing the report matter: if you are

motivated even in part by a desire to get back at a parent who is making

your life difficult, you could be found to have violated the parent’s civil

rights.

There is lawsuit pending in Nebraska regarding teachers’ obligations

under the reporting statutes. The North Platte Education Association filed

suit against North Platte Public Schools regarding the district’s practices and

procedures for contacting administrators and parents before making a report

to HHS or law enforcement. While the lawsuit is still in the beginning

stages, the underlying issues make it one worth monitoring over the next

school year. Of particular interest to us is the involvement of the NSEA and

its legal counsel. While this is a unique case with other issues at the

forefront, it highlights the importance of the reporting requirements for

everyone involved in the educational process.

With any special education issue, especially those involving reporting,

it is always better to find out the answer before you take action. Feel free to

contact Karen, Steve or Bobby or your school district's attorney to be sure

that your district is complying with IDEA and Rule 51 of the Nebraska

Department of Education.

Proposed FLSA Regulations Released

Today (June 30, 2015) the U.S. Department of Labor issued a draft of new

rules concerning the Fair Labor Standards Act (the “FLSA”). These new rules

propose to raise the minimum salary employees must make to qualify as

exempt from overtime pay requirements under the FLSA – and to

adjust that minimum salary every year.

Under current regulations, to qualify for the overtime exemption, an

employee must meet one of the specified exemptions (typically

executive, administrative, or professional) and earn a minimum salary of at

least $455 per week. Under the proposed new regulations, the minimum

salary will increase to $921 per week initially and will be adjusted annually

under two possible formulas. The Department estimates that under one of

these annual adjustment models, the minimum salary for 2016 would be

$970 per week ($50,440 per year).

The good news is that teachers have a special exemption from the

minimum salary test, so you will not have to worry about these new

regulations affecting how you pay most of your certificated staff. The bad

news is that many schools pay their head custodians, bookkeepers, and

transportation supervisors on a salary and treat them as exempt. It is

unlikely that those employees will make enough under the new regulations

to qualify, which means that those employees will have to begin tracking

their hours. It’s also means that the district will have to compensate these

employees at time-and- a-half for all hours worked over 40 per week or

implement a lawful system of using compensatory time.

What Comes Next? The Department of Labor has requested

comments on these proposed regulations. The commenting period will

remain open for 60 days. After the comment period is closed, the

regulations may be revised slightly but will likely become final at some point

after the comment period closes. Some experts predict that the Department

of Labor will try to finalize the regulations so that they become effective

beginning in 2016.

The Department has also signaled that it may tighten the “duties test”

that also must be met for employees to be exempt from the FLSA. We will

watch carefully for these additional regulations and will let schools and ESUs

know when and if they are issued.

General FLSA Compliance. The clear intent of the regulations will

be the reclassification of a significant number of employees to overtime,

non-exempt status. Due to the increased cost of overtime labor, employers

may need to reevaluate staffing levels to limit overtime, and consider

decreasing employee compensation to manage overtime costs. Employers

will also need to prepare to track employee hours and satisfy certain

recordkeeping requirements.

The Department of Labor has not updated their regulations since 2004.

The last time the regulations were updated, public employers – and schools

in particular – saw a marked increase in the number of wage and hour

claims that were filed by the DOL and by disgruntled employees. Many

schools have employment practices that do not comply with the current

FLSA regulations but they have been reluctant to “upset the apple cart” by

changing long-standing pay practices. Yet, even if employees are happy

with the current pay structure, employers face civil and even criminal

liability if they simply ignore the law. The impending new regulations

provides schools with a perfect opportunity to conduct a full review of their

pay practices for compliance with the FLSA regulations – both new and old.

Feel free to contact Karen, Steve, or Bobby or your school district's

attorney if you have questions about the FLSA or the proposed regulations.

The Supreme Court Saves PPACA, Again

After weeks of waiting, the Supreme Court released the decision in King et al. v. Burwell,

which is the case addressing the availability of subsidies to residents of states like Nebraska,

which chose not to establish its own state-based exchange.

The Patient Protection and Affordable Care Act (PPACA) states that tax credits,

aka insurance premium subsidies, are available to any “applicable taxpayer”

who has enrolled in an insurance plan through “an Exchange established by the State” under

PPACA.

The Plaintiffs in the Burwell case had a simple argument: “established by the State”

means that citizens in states which chose not to establish their own

exchanges, instead opting to have citizens use the Federal Exchange

(healthcare.gov), are prohibited from receiving tax credits and premium

subsidies on the Federal Exchange. They argued that the plain meaning of

the statute meant that only state-based exchange participants were eligible

for governmental subsides.

Chief Justice Roberts wrote the opinion for the Court. He reasoned

that the context of PPACA was important to consider when deciding whether

the phrase “established by the State” was in need of interpretation from the

overall purpose of PPACA. The Chief Justice said things such as, “Congress

passed the Affordable Care Act to improve health insurance markets, not to

destroy them.” He also stated that “The Affordable Care Act contains more

than a few examples of inartful drafting.” The 6-Justice majority ultimately 

found that the phrase “established by the State” was ambiguous, and

reading it to limit subsidies to only state-based exchanges would unravel the

entire purpose of PPACA. Consequently, the Court’s majority upheld the

IRS’s interpretation that the tax credits and subsidies—which are so vital to

PPACA’s existence—are available to all qualifying taxpayers including those

on the Federal Exchange.

This case had the potential to affected Nebraska employers, including

public schools, in a very meaningful way. If the Supreme Court had denied

access to tax credits and subsidies to residents of Nebraska on the Federal

Exchange, it would have removed the main hammer of the “pay or play”

mandates. As we have discussed numerous times at presentations and

workshops, an employer can only be “taxed” for offering unaffordable

insurance or offering insurance to fewer than 95% of full-time employees if

the employees obtain insurance and a tax subsidy or premium credit on the

Exchange. If the Supreme Court had taken away the subsidies and credits,

there would have been no penalties, leaving it to a Republican Congress to

save PPACA. The Chief Justice is correct that it may well have “destroy[ed]”

the marketplace built by PPACA.

This move is not surprising, considering it was the Chief Justice who

saved PPACA in 2013 during the last round of major litigation. We thought

the Court would have used other legal grounds to save PPACA (which are too

boring to talk about here), but the effect of the ruling is the same: thanks to

its third life from the Supreme Court, PPACA is here to stay, at least for now.

As Justice Scalia pointed out, perhaps it’s time to start calling it

“SCOTUScare.”

If your district has not calculated its “large employer number,”

determined its transition relief, and begun preparing for PPACA’s

implementation, you should begin immediately. Feel free to contact Karen,

Steve, or Bobby or your school district's attorney if you have questions

about PPACA.

Schools May E-mail IEPs if They Follow These Simple Steps

According to a 2013 study conducted by the Radicati Group, there are over 100 billion business-related e-mails sent and received per day. E-mail remains the predominant form of communication in business and professional settings. This trend is expected to continue. Radicati predicts that business e-mail will account for over 132 billion emails sent and received per day by the end of 2017. Parents, who may be accustomed to e-mail as the default mode of communication in their professional lives, understandably expect that schools will also communicate using e-mail. However, many special educators are still uncertain about whether they can e-mail special education records and, if so, how to go about it. Recent guidance from the Office of Special Education Programs makes it clear that schools may distribute special education records such as IEPs and progress reports via e-mail if they follow these simple steps.

Check with your educational agency. 

OSEP makes clear that state educational agencies are the entities that may either permit or prohibit districts to distribute special education documents via e-mail. The IDEA specifically provides that parents may elect to receive prior written notices, procedural safeguards notices, and due process complaint notices by email, if the public agency makes that option available. 34 CFR 300.505. In Letter to Breton, 114 LRP 14938 (OSEP 2014), OSEP explained that schools may use e-mail to deliver IEPs and progress reports as well. “The IDEA statute and regulations do not explicitly address the use of electronic mail for other documents required under the IDEA.” The letter went on to explain that it is up to state agencies to determine whether its schools may use e-mail to distribute special education documents. For schools in Nebraska, the Nebraska Department of Education allows the use of e-mail in a special education context.

Obtain Parental Consent

The OSEP letter emphasized that OSEP has no objection to the use of e-mail for special education communication “so long as the parent of the child with a disability and the public agency agree.” The letter goes on to note that the parental consent can be electronic or digital so long as schools “take the necessary steps to ensure that there are appropriate safeguards to protect the integrity of the process.”

Under the Electronic Signatures Act, enacted in 2000, electronic agreements (with a few exceptions) are as enforceable as those executed on paper. The law does not specify an approved method of signing electronic agreements and various methods have been improvised, including clicking an "I Accept" button, typing "Yes", typing in a name, or using a "key" to encrypt (scramble) information that uniquely identifies the signer. So long as you have some method for the parent to indicate his/her intent to agree to the e-mail communication, you should be able to rely on that assent. This means, for example, that a school could send a parent an e-mail asking the parent if he/she consents to the school providing copies of IEPs electronically. If the parent replies in the affirmative, the district should maintain a copy of that communication and can then begin using e-mail to communicate. Of course, if a parent ever expresses any objection to e-mail communication, the school should cease using e-mail and return to the use of hard copies of documents.

Observe Basic Digital Security Protocols

Any time schools use e-mail to communicate about students, they should make sure that they are observing basic digital security. The OSEP letter notes that schools must take reasonable steps to ensure the information is secure during delivery as well as after it arrives in the parents' inbox. To accomplish this schools should always use at least two-factor authentication.  They should also confirm with the parents that their email address is confidential and password-protect the documents which are sent. It is a very simple process to password-protect a .pdf document (click here for step by step instructions). For larger documents, services like Dropbox encrypt material which is uploaded and you can just send parents a link that allows them to sign in with their own username and password.  With any special education issue, it is always better to find out the answer before you take action. Feel free to contact Karen, Steve, Bobby, or Tim or your school district's attorney if you have questions about the use of digital communication or more generally about the IDEA and Rule 51 of the Nebraska Department of Education.

Supreme Court Stays Silent on Stay Put: High Court Refuses to Hear Special Education Due Process Case

The U.S. Supreme Court has announced that it will not take up a case

involving an important interpretation of federal special education law.

In Ridley School District v. D.R. (No. 13-1547), a special education student’s

parents claimed that her IEP was not appropriate and enrolled the

student in a private school. The school won on the question of whether

the IEP provided the student with a free, appropriate public education

and the parents appealed. The parents claimed that the school was obligated

to pay for the student’s private school placement as part of

“stay put” while the parents appealed the case. Thus, the question in Ridley was

whether the stay-put requirement ends when a state or federal

trial court issues a final judgment in a dispute, or whether the provision continues

until all court appeals are exhausted. The federal courts of appeals are

divided over that issue, with school districts in some places facing higher bills for

private schooling of students where the stay-put provision has been ruled to

stay in force during what are often lengthy appeals.

The Supreme Court had asked the Obama administration for its input

on whether to grant the school’s request that the court answer this question.

The administration’s response urged the Court not to hear the case and, in a

brief, one-sentence order, the Court took that advice.

The result of this decision is that the courts remain divided on how

long a “stay put” obligation continues after a school district has prevailed in

a due process case. In some jurisdictions this will mean that parents will

have the incentive to prolong the appeals process to continue the school’s

obligation to pay for the parents’ preferred educational services.

With any special education issue, it is always better to find out the

answer before you take action. Feel free to contact Karen, Steve or Bobby

or your school district's attorney if you have questions about stay put or

more generally about the IDEA and Rule 51 of the Nebraska Department of

Education.

WAY MORE THAN JUST SOFTBALL: The Office For Civil Rights Issues New Pronouncement on Schools’ Title IX Obligations

Although Title IX is most typically associated with sports, it also governs

sexual harassment and sexual violence in public

schools. With recent increases in sexting and

cyberbullying, and with emerging legal theories

regarding the rights gay and transgendered

students, many districts have faced OCR

investigations and lawsuits regarding sex

harassment and discrimination. OCR issued this

letter to remind schools of a reminder of several of

the key components of Title IX. Perhaps more

importantly, the letter also contains OCR’s most

current interpretation of the law.

Title IX Basics

In order to comply with Title IX, every K-12 school district must:

(1) Have a policy prohibiting sex discrimination (in both academic

and nonacademic settings such as athletic programs);

(2) Have a process for receiving, investigating, and resolving Title IX

complaints, including an appeal process; and

(3) Designate a Title IX Coordinator to assist in the enforcement of

the policy and complaint process.

New Interpretation Regarding Title IX Coordinators

The Dear Colleague letter adds several important details to how OCR

interprets the requirement that schools name a Title IX Coordinator. OCR

states that schools must

 provide ongoing training to their Title IX Coordinator

 distribute the Coordinator’s contact information, and

 include the Coordinator’s name and contact information in the district’s

nondiscrimination policy

Over the summer, school boards and administrators should review their

policy books to make sure their anti-discrimination policy is up-to- date. Be

sure to check any freestanding Title IX policy or handbook provisions and

remember to check your sex discrimination provisions, general

nondiscrimination notices, and bullying/harassment provisions, as well.

You should also be sure that the district has designated a Title IX

Coordinator and ensure that the Coordinator has had recent training on Title

IX’s legal requirements.

Note: If you are a KSB Policy Service subscriber or a district who subscribes

to our annual updates, your sex discrimination policies require the

superintendent to appoint your Title IX Coordinator. Because OCR often

follows DCL’s with enhanced enforcement efforts, we will be providing a

series of revisions within our annual policy update to clarify all of these

requirements and hopefully help avoid compliance investigations.

Required Training for Title IX Coordinators

We believe that a key component of showing compliance will be

documenting the training provided to the Coordinator. In our experiences in

dealing with OCR, they almost always ask to see verification of training.

Consider a freestanding Title IX training or consult with your athletic

conference or service unit to see if there is interest in pooling resources to

provide professional development focusing on Title IX to key staff. At a

minimum, schools should consider adding a Title IX component to their

existing staff training.

What Schools are Not Required to Do

While the DCL does serve as a good reminder of school districts’ legal

obligations, OCR also includes several suggested action steps for schools

which are not required by Title IX. For example, many districts use the

superintendent, principal(s), or the activities director as the Title IX

Coordinator. Some districts designate one person to cover the Title IX and

the Section 504 Coordinator responsibilities. Despite the DCL’s suggestion

that schools should hire a “full time” Title IX Coordinator, it is absolutely not

legally required. Likewise, OCR suggests that the Title Coordinator be

someone outside of the administrative chain of command, which is also not

legally required. You should think through and address in your policies and

handbooks how the Coordinator’s role in investigating Title IX complaints fits

into your district’s standard complaint and appeals procedures, especially if

you do not have a freestanding Title IX policy.

One of the new points of emphasis in this DCL is the OCR’s insistence that

your nondiscrimination policy, including the contact information for your Title

IX Coordinator, be “widely distributed.” OCR suggests that this information

must be present on materials distributed by the district and on your website.

We do not agree that this information must be included on all district

communications or on your website, but including the information in your

handbooks and on your website would provide good evidence that your Title

IX Coordinator’s contact information and your nondiscrimination policy have

been widely distributed.

Conclusion

This is the latest in which we expect to be to be a long line of “Dear

Colleague Letters” (“DCL”) prior to the conclusion of President Obama’s

Administration. You can access the Title IX DCL in its entirety here.

If you have questions, we recommend that you consult with your school

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

Heading for the Exit: What to do When IEP Team Members Leave the Meeting Early

You can always tell when it is springtime in a school district: the girls shop

for prom dresses, the seniors start counting down the days to graduation,

and the special education staff scrambles to get all of the annual IEP team

meetings held on time.

All IEP teams must include: (1) the parent(s) of the child; (2) at least one

regular education teacher if the child is, or may be, participating in the

regular education environment; (3) at least one special education teacher

of the child, or where appropriate, at least one special education

teacher of the child, or where appropriate, at least one special

education provider of the child; (4) a representative of the district who is

qualified to provide, or supervise the provision of, specially designed

instruction to meet the unique needs of the child, is knowledgeable about

the general curriculum, and is knowledgeable about the availability of school

district resources; (5) an individual who can interpret the instructional

implications of evaluation results (who may be one of the other members of

the Team). But what happens when a member of the team leaves early?

Teacher Leaving Early. Before allowing any member of an IEP team

to leave an IEP meeting early, schools must be sure to follow specific

procedural steps. The recent case of Charlotte County Sch. Dist. shows

what can happen when a school fails to take these steps.

In Charlotte County, general education teachers left a Florida student's

IEP after their class assessments were complete. At the time, the parents

had no further questions and no objections to the teachers leaving early.

After the teachers left, the remaining team members discussed the

annual goals portion of the IEP. The parents filed a complaint alleging that

the district violated the IDEA because no general education teachers were

present during the annual goals portion of the IEP meeting. The Florida

Department of Education concluded that a required IEP team member may

be excused from an IEP meeting, in whole or part, as long as the parent and

district consent to the excusal in writing and the team member submits

written input prior to the IEP meeting.

In Charlotte County, the district's meeting notice did not disclose the

fact that the teachers would be absent for the last half of the IEP meeting.

Further, the district did not notify the parents before the meeting that the

teachers would be leaving early, and the parents were not given any

opportunity to consent in writing before the meeting started.

If a team member needs to leave an IEP meeting early, the district

should notify the parents or guardians before the meeting and obtain written

consent. If an emergency arises requiring a team member to leave during

the meeting, the district should seek a written consent from the parents or

consider reconvening the meeting at a later time. In any event, the teacher

or other team member should also submit all information that may be

missed due to the absence.

Parent Leaving Early. What if the person with the pressing

engagement is not the track coach/English teacher, but instead is the

parent? May an IEP team continue meeting if a parent says that she has to

leave the meeting early? The surprising answer is yes – so long as the

parent has the opportunity to meaningfully participate in the IEP process.

In Department of Education, State of Hawaii, 110 LRP 72005 (Hawaii

SEA 2010), a hearing officer found that an IEP team did not violate the IDEA

when it continued to work on a student's IEP after the parent left a

scheduled IEP meeting. The IHO based his decision on that fact that the

parent gave permission for the meeting to proceed after the school offered

to continue the meeting on another date. As such, the parent had the

opportunity to participate in the IEP process. The Hearing Officer cautioned

that the outcome might have been different if the parent expressed surprise

at the team's completion of the IEP or requested a follow-up meeting.

Neither the IDEA nor the Part B regulations prevent a parent from

leaving an IEP meeting before its conclusion. Because work schedules, child

care issues, and other time constraints can affect a parent's participation in

an IEP meeting -- especially if the meeting runs unusually long -- districts

should consider developing policies and procedures for a parent's early

departure.

If you have questions about IEP meetings or any other special

education issue, it is always better to find out the answer before the

meeting. Feel free to contact Karen, Steve or Bobby or your school district's

attorney to be sure that your district is complying with IDEA and Rule 51 of

the Nebraska Department of Education.

Your April 15th Deadline is Coming!

Pop quiz!

Question: Why are school lawyers reminding you about your income tax deadline?

Answer: We're not, but it's still important!

April 15 th is significant as the date by which school administrators must decide whether they want to proceed with the non-renewal or termination of a certificated employee’s contract. Under the Teacher

Tenure Act, teachers’ contracts are automatically renewed unless the teacher receives notice on or before April 15 th that the board will consider non-renewing, terminating, or amending the teacher’s contract.

This deadline applies to any action on a teacher’s contract, including reductions in force. In Bentley v. School District No. 25 of Custer County, 255 Neb. 404, 586 N.W. 2d 306 (1998), the Nebraska Supreme Court held that delivery of a non-renewal notice on April 16 th was not sufficient statutory notice to a teacher, and constituted no notice at all.

If you have any reservations about whether to continue a teacher’s employment contract, you should contact your school district’s attorney promptly. Your school attorney will want to review the employee's file and assist in preparing the proper notice documents if you decide to proceed with a possible termination or nonrenewal.

Question: Is the April 15th deadline a mutual obligation on both

teachers and boards of education?

Answer: Yes! The Professional Practices Committee and the

Nebraska Commissioner of Education have determined that teachers are

contractually obligated for the following school year after April 15 th

unless: (1) the teacher has submitted a resignation prior to that date or

(2) the board, through policy or provision in its negotiated agreement,

has agreed to release teachers through a later date.

If you have questions, we recommend that you consult with your

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

Nebraska Federal Court Strikes Down Same-Sex Marriage Ban

This morning, March 2, 2015, federal Judge Joseph Batallion ruled to

stop enforcement of Nebraska’s same-sex marriage ban in the case of

Waters v. Ricketts, No. 8:14CV356, MEMORANDUM AND ORDER (D. Neb. March 2,

2015). The ruling is an “injunction.” Beginning March 9, Nebraska officials

cannot enforce Nebraska Constitution, article I, § 29, which says:

Only marriage between a man and a woman shall be valid or

recognized in Nebraska. The uniting of two persons of the same

sex in a civil union, domestic partnership, or other similar same-

sex relationship shall not be valid or recognized in Nebraska.

This means that same-sex couples would be allowed to marry and

receive the same rights as other married couples in Nebraska. The Supreme

Court’s Windsor decision in 2013 granted federal rights to same-sex married

couples. This decision would extend state rights, as well.

Judge Batallion granted the injunction because he “is persuaded that

the Supreme Court will ultimately endorse…the results obtained

in…challenges to same sex marriage bans.” The decision states that the ban

serves as discrimination based on “gender,” calling the ban “an unabashedly

gender-specific infringement on the equal rights of [Nebraska] citizens.”

However, the State of Nebraska has appealed, meaning the decision is

suspended pending appeal. We likely will not have final answers for many

more months, if not years. However, this is substantial ruling which may

impact many issues facing schools. If you have questions, we recommend

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

Bobby.

You better pray you didn’t require that mandatory oath!

We are now in the heart of this year’s legislative session. In the spirit

of following some laws that make us crazy, we wanted to take this

opportunity to talk about some unique school laws that have been around

for a long time. Since 1967, Nebraska statute section 11-101.01 has

required anyone “paid from public funds for their services, including teachers

and all other employees paid from public school funds” to take an oath of

employment. The law also requires the oaths to be filed with the

Department of Administrative Services or the county clerk. The oath states

in full:

I, .........., do solemnly swear that I will support and defend the

Constitution of the United States and the Constitution of the

State of Nebraska, against all enemies, foreign and domestic;

that I will bear true faith and allegiance to the same; that I take

this obligation freely, without any mental reservation or for

purpose of evasion; and that I will faithfully and impartially

perform the duties of the office of .......... according to law, and

to the best of my ability. And I do further swear that I do not

advocate, nor am I a member of any political party or

organization that advocates the overthrow of the government of

the United States or of this state by force or violence; and that

during such time as I am in this position I will not advocate nor

become a member of any political party or organization that

advocates the overthrow of the government of the United States

or of this state by force or violence. So help me God.

NEB. REV. STAT. § 11-101.01.

If you have never administered, sworn, or even heard of this oath, you

are not alone. In fact, it has long been our position that requiring all school

employees to take this oath probably violates the United States and

Nebraska Constitutions. At a minimum, you will probably face litigation if

you tried to implement the oath for all of the employees at your district.

The Oath is Probably Unconstitutional, if Required. Although

Nebraska does not have a case interpreting the constitutionality of the oath,

several other states have decided the issue. For example, in Nicholson v.

Board of Comm’rs, 338 F. Supp. 48, 56 (M.D. Al. 1972), a federal court in

Alabama held that the phrase “So help me God” administered in an oath

“infringes upon the free exercise clause of the first amendment.” Likewise,

in Vogel v. County of Los Angeles, 68 Cal. 2d 18, (Cal. Sup. Ct. 1967), the

California Supreme Court held that an oath violated the First Amendment

where it required the promisor to swear he or she was “not a member of any

party or organization, political or otherwise, that now advocates the

overthrow of the Government of the United States…by force or violence or

other unlawful means . . . .”

These cases are just a few examples of numerous courts who have

invalidated oaths like those found in section 11-101.01. A Nebraska court

would almost certainly find the school employee oath to be unconstitutional,

as well. However, we believe that a school employee is entitled to take the

oath if they so choose. Denying an employee to right take the oath might

well violate the First Amendment. See Newdow v. Roberts, 603 F.3d 1002,

1006 (D.C. 2010) (holding that President Obama had a “First Amendment

right” to conclude his Oath of Office with “So help me God.”).

Interestingly, at recent meetings of the Nebraska State Board of

Education, members of the public have asked the State Board why schools

are not requiring this oath. The short answer is that schools don’t require

the oath because we are afraid that they’ll get sued if they do so!

Are there other weird school laws in Nebraska? Oh, yeah,

especially dealing with religion. For example, did you know that it is a

misdemeanor if a teacher “wears . . . any dress or garb indicating the fact

that such teacher is a member or an adherent of any religious order, sect, or

denomination”?! NEB. REV. STAT. § 79-898. Did you know it’s misdemeanor if

a board member fails to suspend the teacher for one year for wearing

religious garb?! NEB. REV. STAT. § 79-899. We think both of these laws are

probably unconstitutional, too.

It is also “cause to remove” a superintendent, board member, or any

other school employee if they ask an applicant for a teaching position to

discuss their religious affiliation or beliefs. NEB. REV. STAT. § 79-896. We want

your school to comply with this law—don’t ever ask about religion on an

application or in an interview!

So, what should you do? Nothing. We recommend that you

continue on like normal. There is no known consequence for failing to

administer the oath, and we believe requiring it would almost certainly

subject your school to litigation. If you have an employee who requests to

take the oath, you should let them. Some schools have been faced with

patrons demanding that the oaths be administered, but we think you are

much better off avoiding the lawsuit than the allegation that you’re a

Communist!

If you have questions, we recommend that you consult with your

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

Update: Transgender Students and Staff

Nebraska educators have been discussing the legal

considerations involving transgender students and staff members for

several years, and things continue to escalate on the national stage.

We have seen a host of legal and media updates, but we are no closer

to a final resolution on the protections afforded to transgender

individuals. The primary issue remains the same. Agencies such as

the Federal Department of Justice, Department of Education, and now

the U.S. Attorney General take the position that “gender” is a

protected class, much like race, national origin, and sex. Despite

some states passing gender protection laws, no federal or Nebraska

law has made this same determination. The risk of agency

enforcement is always there, but no law applicable to most Nebraska

public schools protects “gender.”

You have no doubt followed the news in Nebraska regarding

transgender students, but here are the highlights from around the

country and the Nebraska Unicameral:

U.S. Attorney General Issues Memorandum on Gender

Identity Protections. On December 15, the U.S. Attorney General

issued a Memorandum discussing the AG’s position on enforcement of

Title VII of the Civil Rights Act of 1964. Schools and ESUs are familiar

with Title VII from their nondiscrimination policies’ listing of protected

classes, such as race, national origin, sex, and age. In short, the AG

believes that “discrimination ‘because of . . . sex’ encompasses

discrimination . . . based on an employee’s transitioning to, or

identifying as, a different sex altogether.” In the opinion of the AG,

gender-identity discrimination may be protected by Title VII’s

prohibition of discrimination based on biological sex.

Board Votes Limiting Use of Facilities. Last month, a Virginia

school board officially voted to limit male and female restroom and

locker room usage to “the corresponding biological genders.” The 6-1

vote also included a provision which required transgender students to

use “alternative private facilities” such as unisex bathrooms and

isolated changing areas. Not surprisingly, the ACLU has filed a

complaint with the Federal Departments of Justice and Education

challenging the board’s actions. This case will certainly highlight the

tension between the federal law, which does not protect from

discrimination on the basis of gender, and the position of the federal

agencies which have chosen to interpret gender protections from

existing discrimination laws.

Damages Paid to Transgender Student. The Maine Supreme

Court became the first state high court to award money damages in a

lawsuit against a school district for discrimination based on gender. In

December, Orono School District was ordered to pay $75,000 in

damages to a transgender student who sued the district over its

decision to limit the student’s use of school facilities. Overall, this is a

unique case because the state of Maine protects “gender” in its

antidiscrimination laws. However, it is significant because it is the first

case where a state’s highest court has determined that a student’s

gender-specific restroom and locker room use is protected.

OCR Issues Additional Gender Identity Protections. On

December 1, 2014, the U.S. Department of Education’s Office of Civil

Rights (“OCR”) issued guidance on a renewed trend in some districts

to separate classrooms based on students’ sex. The idea is that boys

and girls learn differently in some cases, so the split classrooms are

intended to promote achievement by all students by targeting sex-

specific learning differences. It should come as no surprise that the

OCR’s position on transgender students is clear: they should be

permitted to learn in the classroom of the gender with which they

identify. While transgender student issues have always involved

restrooms and locker rooms, the issues are now fundamental to many

classrooms.

Kentucky Senator’s Bill Would Award Damages to

Students Who Share Facilities with Transgender Students. With

gender-identity protections largely favoring transgender individuals,

one Kentucky state senator introduced a bill which would force

Kentucky schools to limit facility accessibility based on “biological sex.”

In short, the bill states that each “school restroom, locker room, and

shower designated for student use accessible by multiple students” is

limited to biological sex. While the bill also requires schools to

accommodate transgender individuals, it provides a “private cause of

action” against the school if any school personnel permit someone to

use a facility of the opposite biological sex. Essentially, students can

sue the school for damages, capped at $2,500, if they are even made

to use a school facility at the same time as someone of the opposite

biological sex, i.e., a transgender student.

Nebraska Legislative Bills Seek Protection for Gender

Identity and Sexual Orientation. Three bills introduced this

legislative session would protect job applicants, state contractors,

employees, and others against discrimination on the basis of “sexual

orientation” and “gender identity,” two areas not before protected by

Nebraska state law. While some cities in Nebraska have chosen to

protect sexual orientation and gender identity, this would amend state

law requiring those classes to be protected by employers and state

entities like public school and educational service units.

As you can see, the efforts to obtain protections for transgender

students and staff members are increasing by the day.

If you have questions, we recommend that you consult with your

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