Concussion Symptoms Can Trigger Schools’ Obligations Under Section 504 or the IDEA

In an upcoming article in the NEBRASKA SCHOOL LAW REPORTER, we reiterate the

obligations that school districts and their staff have under Nebraska’s

Concussion Awareness Act. Most Nebraska educators are generally familiar

with the statute’s requirement that students not be allowed to return to play

until they are free from concussion symptoms and that schools must adopt a

“return to learn” protocol to assist students with concussions in coming back

to the classroom. However, Nebraska educators must not allow their return

to learn processes to blind them to a student’s possible need for

accommodations under section 504 of the Rehabilitation Act or even a full-

blown IEP under the IDEA. An OCR decision from 2013 illustrates the issue.

In Acalanes (CA) Union High School District, 64 IDELR 86 (OCR, Dec. 2013)

a high school freshman student had sustained two concussions playing

middle school sports. When she began high school, she submitted a medical

form in which her physician diagnosed "concussion, head trauma,

migraines," and noted that the teen could not participate in contact sports.

The school nurse retained this document, but she did not take any action to

initiate any further evaluation of the Student’s condition. The student was

not referred to a student study team (what in Nebraska would be called a

“student assistance team”), Section 504 team, or Individualized Education

Program (IEP) team.

During her Freshman year, the Student had numerous absences from school

due to ongoing complications from her previous head injuries. In the spring

semester of the Student's freshman year, the principal sent the family an

"Excessive Excused Notice" related to the Student's absences. The letter

explained that the Student "has now reached 15 or more excused absences

in one or more periods since the beginning of the year." It then noted that,

"After 15 excused absences, you will be required to provide verification from

your child's physician to clear additional absences." The girl’s parents

provided the school with medical documentation showing that the girl’s

absences were related to her prior sports concussions. The principal did not

refer the student to a student assistance team, 504 team, or IEP team even

after the mother provided this documentation.

When she began her sophomore year, the student filled out another district

health information form and checked the boxes on the form for"Headache-

severe/Migraine," "Medication prescribed," "Physical activity limitations," and

"History of serious injury." On the second page, the student explained that

she took medication for migraines, had two concussions and had fractured

her back, and had physical limitations and wrote "See MD Note Attached."

The attached note from the Student's doctors indicated that because of her

back injuries and history of concussions, she could not participate in contact

sports as well as some other sports. Once again, the school nurse filed the

form but did not refer the student for further evaluation.

In the spring of the girl’s sophomore year, her doctor wrote to the school

counselor and explained that she was treating the Student for depression

and recommended that the Student receive a Section 504 plan. The

counselor then referred the girl and the District convened an initial Section

504 meeting for the student. The Section 504 team concluded that the

Student had a disability and crafted a Section 504 plan that included

numerous accommodations, including the ability of the student to receive

extensions on assignments.

This 504 plan remained in place for the rest of the student’s sophomore year

and all of her junior and senior year. In the fall of her senior year, conflict

arose because the student was struggling in AP Biology. Eventually the

family filed a complaint with the Office for Civil Rights.

OCR’s investigation initially centered on the accommodations provided to the

student for AP Biology, but eventually it extended back to the girl’s entry

into high school three years before. OCR concluded that the district should

have evaluated her in her freshman year to determine whether she had a

disability and would need accommodations. OCR noted that the initial

doctor’s note should have prompted the school to at least inquire about the

girl’s condition. OCR further held that when the district notified the family

that she was excessively absent during her freshman year, that was an

additional trigger to push the school to evaluate the student for eligibility

under section 504.

As a consequence OCR required the school district to pay for the student to

take an intensive summer Biology course that covered material substantially

equivalent to the year-long AP Biology course offered at the high school and

to pay for her to receive supplemental Biology tutoring during the first year

that she takes college Biology. The district also had to provide additional

OCR-approved training to its staff.

The increased emphasis on head trauma, in youth sports and elsewhere, will

only increase the expectations by parents and others for what schools should

provide for students who have suffered a concussion. In addition to return

to learn protocols, schools will be wise to also consider whether to refer a

student who is struggling to recover from a concussion to a student

assistance team, a 504 committee or even to a multi-disciplinary team for

possible eligibility under the IDEA.

If you have questions about when to refer a student for evaluation under

section 504 or the IDEA, we recommend that you consult with your school

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

When Sledding Becomes...A Slippery Slope

We are often asked when school districts in Nebraska can be held liable for

injuries on district property for non-school events and activities. A recent

case from Papillion La Vista Community Schools raised this very issue. We

wanted to bring the case to your attention, because the district’s insurance

carrier settled a sledding accident for $500,000. According to the lawsuit, a

girl was sledding at the La Vista Junior High School and hit a chain link fence

located at the bottom of the sledding hill. Both of the girl’s legs were

fractured and an artery in her knee was torn. The girl’s parents sued the

school district claiming the district was negligent for having a fence at the

bottom of a hill that was an attractive sledding location, as well as failing to

provide signs warning of the danger. Although the school district settled the

case, the spokesperson for the district stated it is unlikely that the fence will

be removed or that signs will be added. (You can see full Omaha World

Herald article here.)

Some of you may be thinking, “But I thought we had protection under the

Political Subdivisions Tort Claims Act for recreational activities?!?” The

Political Subdivision Tort Claims Act does protect schools from liability when

their facilities are used for “recreational” purposes, but only when certain

conditions are met. The provision applies only when (1) there is no fee

charged by the person or group using the facility (the district can charge

them to use the facility); (2) the district did not “maintain control” of the

facilities while they were being used; and (3) the claim from the injured

person arises either from inherent risks of the activity (like sledding) or a

defect of the premises (like a hole in the floor), unless the school did not fix

the defect within a reasonable time after learning of the defect. NEB. REV. STAT.

§ 13-910(13). We have presented on this issue several times, and we have

amended our standard policies on facility use to align to these protections as

much as possible. If you haven’t done so, we would encourage you to use

this case as a reason to discuss these issues with your board.

The recreational liability protections came about as a result of court cases

where political subdivisions were sued because someone attending an event

held in public facilities was injured. In one case, for example, a patron

suffered an ankle injury after stepping in an animal burrow on a courthouse

lawn during a town celebration. The Unicameral passed the provisions to

encourage political subdivisions to permit others to use their facilities by

protecting them from liability. When schools permit the recreational use of

their facilities, the district generally is only liable for its “gross negligence”

rather than “ordinary” negligence. In other words, so long as the

recreational liability provision applies, schools can’t be held liable for

“ordinary” negligence and must have acted with “gross negligence,” which

means “the absence of even slight care in the performance of a duty

involving an unreasonable risk of harm.” The big issue in these cases is

whether the recreational liability exemption applies. If so, proving “gross

negligence” is much harder for plaintiffs in court.

Of course, just because you may have protection under a statute does not

mean that people cannot still sue you for their injuries. While we don’t know

exactly what legal analysis occurred in the sledding case, we are assuming

the discussion of the recreational liability provisions occurred. The fact that

this case settled may mean only that the school’s carrier wanted to end the

lawsuit. That’s exactly why we encourage you to have these discussions

with your board. You’re probably going to get sued either way, so you

should make sure your facility uses align with your board’s tolerance to

these types of risk.

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

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

DONALD TRUMP IS THE NEW PRESIDENT: 3 School Lawyers’ Initial Thoughts on the Big News and What It Means for Schools and ESU’s

We typically do not share our personal political perspectives – you get plenty

of unsolicited political commentary from your Facebook friends. However,

we have already fielded numerous questions about what the election of

Donald Trump means for Nebraska’s schools and ESUs. We thought it would

be useful for our education friends and clients to see what we believe are the

issues that the presidential election may impact in the upcoming year.

The Trump campaign did not make a lot of detailed policy proposals related

to education. However both the candidates and their surrogates have

repeatedly emphasized some of Donald Trump’s basic positions that affect

education: he dislikes Common Core and prefers local control; he intends to

greatly reduce the size and scope of the federal Department of Education; he

strongly favors and intends to significantly increase funding for “school

choice”; and he will repeal Obamacare. To any school administrator who’s

been around the last few years, those are significant proclamations which

will impact public schools.

No one can predict exactly what the next few months and years will hold,

but we thought it would be a good idea to review the high (and low) points:

1. The FLSA changes go into effect December 1, 2016. Most

districts have been making changes to their compensation structures

to plan for the upcoming changes to the FLSA exemption regulations.

Short of one of the currently pending lawsuits being decided soon or

an act of Congress, the law will still change on December 1. The

election of a new president and a new Republican congress will not

change this implementation date.

2. Important parts of the ESSA go into effect December 10, 2016.

Though we are still in the NCLB-ESSA “transition year,” some key

components of ESSA such as increased educational stability for foster

students will go into effect in a few short weeks. As for the remaining

components of ESSA, we just don’t know. The regulations have not

been released yet and the direction of the regulatory process is now

hard to predict. ESSA gave to the Education Secretary quite a bit of

regulatory authority. In at least a few areas, most school

administrators have argued the Secretary has gone well beyond that

authority. So, if the promises of “less regulation” and a smaller

federal DOE come to fruition, the assumptions many have been

making about the final regulations will certainly change. We believe

key components will be prioritized and the process will speed up in

those areas, which we will be tracking closely.

3. PPACA (aka “Obamacare”) reporting for the 2016 year will

begin soon. The promises from Mr. Trump to “gut” or outright

“repeal” Obamacare became a daily occurrence, especially as

announced premium hikes hit the press in recent weeks. Whatever

the ultimate outcome, some components of PPACA will remain law for

at least a few more months. For example, unless we see a regulatory

halt or a sweeping act of Congress, PPACA reporting will happen again

this year. This will include the reporting obligations on forms 1094-C

and 1095-C for “large employers.” The IRS has already released

instructions on filling out the 2016 versions of the forms, which contain

different codes and considerations compared to the reporting from

2015. KSB is in the process of scheduling a training event sometime

in the month of December to cover the new forms and reporting

considerations for 2016, plus provide updates on what’s happening

with PPACA and its future after January. We’ll be sending out

information on that event after we have the details firmed up.

4. The Supreme Court will hear arguments and possibly take a

position on the rights of transgender students. The makeup of

the Supreme Court was obviously a huge issue in the presidential

election. The high Court currently has a vacancy, which we assume

President Trump will move to fill quickly after his inauguration. In the

mean time, the high Court will hear oral arguments in the case of G.G.

v. Gloucester, and the court must issue a decision in that case by June

2017. We do not know whether that case will be decided by the court

with its current to the current makeup of the Court or if the Court will

wait for a new Justice to be sworn in before issuing a final decision.

The law as it relates to the rights of transgender students remains

unclear and continues to change almost daily. The Court could provide

clarity on this issue much like it did same-sex marriage, or it could

simply “defer” to the agency interpretation of laws like Title IX. If the

latter occurs, then OCR’s interpretation from its May guidance letter

will be in place—at least until that is changes or repealed by President

Trump’s administration. For now, we continue to recommend that

educators stay informed on this issue and avoid major policy changes

until the legal requirements are clarified.

5. The Supreme Court will hear Endrew F., which could change the

legal standard for providing FAPE under the IDEA. As we noted

a few weeks ago in this update, the Court will decide the level of

educational benefit owed by schools to students who qualify for

services under the IDEA. The composition of the Court may impact

this decision, too. If the Court remains at 8 members, it could result

in a tie which would not change the standard on a national level.

However, if a ninth Justice is appointed by the time this case is

decided, we will likely have a ruling which may significantly alter the

legal standards under the IDEA.

6. The dozens of “Dear Colleague Letters” and “Guidance

Documents” issued by the Obama Administration in the last

few months are on uncertain footing. As you have heard us

discuss recently, the Obama Administration has been releasing dozens

of these administrative interpretations. The administration was

reported to have many additional agency guidance set for release after

the election but before the end of the Obama administration. These

interpretive documents do not change the substantive law but

announced major changes in the enforcement position of

administrative agencies like OCR. We have stacks of these guidance

documents which we have been sifting through, including documents

which require policy changes on issues like wellness, behavior

interventions, and others. For this very reason, we have been waiting

to roll out new and updated policies to our policy service subscribers

on many of these issues. Promises of deregulation from Mr. Trump

and yet further changes by Hillary Clinton caused us to go slowly on

telling our clients to make sweeping changes to policy and practice.

Now that an entirely new regime will take over in a few months, we

believe now is the best time to proceed deliberately and with an eye

toward knowing our clients have finite time and resources to do and

undo reactionary changes. In other words: sit tight and see what

direction the Trump administration takes on the validity and direction

of this sort of guidance.

Of course, the national election was not the only important event last night.

Both state and local election results will impact local boards and the

Unicameral. The next several months are likely to be tumultuous. Our

sincere hope is that education funding and policy takes its place near the top

of the list, where it belongs. We’ll continue to monitor all of these changes,

and will try to keep all of our education friends and clients informed. If you

have questions about any of these issues or the legal ramifications of future

changes, you should consult with your school district’s attorney or call

Karen, Steve, or Bobby.

Endrew F. Goes to Washington: The US Supreme Court Will Once Again Consider the Level of Educational Benefit Schools Owe to Students With Disabilities

A case involving the education which a Colorado school provided to a student

with autism could change the services which all schools must provide to

students with disabilities. The case, Endrew F. v. Douglas County School

District RE-1, 798 F.3d 1329 (10th Cir. 2015), cert. granted, 109 L.Ed 901

(09/29/16) involves a claim by the parents of a student with autism

spectrum disorder that their school district failed to provide their son with

sufficient educational benefits.

Most educators are familiar with the concept that schools must provide

special education students “with a Ford not a Cadillac.” This phrase is

shorthand for a concept which the United States Supreme Court first

developed in 1982. In that case, Board of Education of the Hendrick Hudson

Central School District v. Rowley, 458 U.S. 176 (U.S. 1982), the Court held

that schools do not have to provide special education students with all the

services necessary to maximize their full academic potential. The Court

went on to note that an appropriate education is one that provides "some"

educational benefit to the disabled student.

In recent years, lower courts have struggled to define coherently the correct

standard for judging the education plans of disabled students. Some courts

have continued to hold that schools must only provide “some” education

benefit to disabled students. This is the current standard in the Eighth

Circuit, which covers schools in Nebraska. See K.E. v. Independent Sch.

Dist. No. 15, 647 F.3d 795, 810 (8th Cir. 2011) (requiring "some educational

benefit" and holding that standard was satisfied because child "enjoyed more

than what we would consider slight or de minimis academic progress").

Other courts have adopted a heightened standard, concluding that schools

must offer “meaningful” education benefit. See D.S. ex rel D.S. v. Bayonne

Bd. of Educ., 602 F.3d 553, 556 (3d Cir. 2010).

In the Endrew F. case, a 5 th grade student with autism began to exhibit

severe behavioral issues. He started banging his head, dropping to the

floor, taking off his clothes and fleeing away from the school. The parents

became convinced that the school wasn’t doing enough to help Endrew and

pulled him out of the public elementary school. Instead the family enrolled

Endrew in a private school that specializes in working with autistic children

and sued the school district for the cost of the private school placement.

The U.S. Court of Appeals for the Tenth Circuit held that since the school’s

IEP provided the student with "some educational benefit," the school district

had provided Endrew with a "free, appropriate public education" under the

Individuals with Disabilities Education Act. Therefore, the court rejected the

parents’ tuition claim.

Last month, the US Supreme Court agreed to hear the Endrew F. case. If

the Supreme Court abandons or even slightly increases the Rowley standard,

we will doubtlessly see a wave of litigation across the country from parents

demanding that their disabled children receive significantly more educational

services. This includes additional due process claims with state education

departments like NDE, at a minimum, to start redefining and determining

the scope of a new legal standard.

However, given the tight state and federal budgets, it is doubtful that

schools would see an increase in the resources they are allowed to use to

meet the increased obligation. In fact, the federal government only funds

special education at less than 50% of the promise in the law. A change in

the legal standard will have no bearing on funding from Congress.

The date for oral argument in this case has not yet been set, and there is

little doubt the presidential race and eventual Supreme Court composition

may significantly impact its ultimate resolution. For the time being, schools

can do little more than carefully track what happens in this case. However,

schools should brace themselves for the possibility that this case could be a

significant change in the services that we provided to special education

students.

If you have questions about the level of education benefit which must be

provided to special education students or about special education issues

generally, you should consult with your school district’s attorney or call

Karen, Steve, or Bobby.

Nebraska Department of Education Requires Schools to Be Better Safe Than Sorry

Most members of the Nebraska education community know that the

Nebraska Department of Education has adopted new School Safety and

Security Standards and related guidance. You can access the new Standards

and the related NDE guidance documents here. Schools will need to begin

working to assess their compliance with these Standards throughout the

2016-17 school year.

The safety and security standards are broken down into four distinct

subject areas:

Prevention: Aimed at preventing incidents;

Preparedness: Targeted at limiting incident casualties, destruction,

and chaos;

Response: Intended planning to respond to an incident; and

Recovery: Designed actions to return the climate and environment to

pre-incident conditions.

Each of these four standard areas is then broken down into discrete

indicators. There are a total of 50 distinct implementation indicators, each

of which schools must self-assess and report to the State School Security

Director.

Potential Confusion with Safety Committees

One potential source of confusion in the School Safety and Security

Standards is the requirement that each district appoint a safety committee

to conduct the self-assessment and to craft an All-Hazards Plan. In 1993,

the Nebraska Legislature enacted a statute which requires each employer to

have a “safety committee.” See NEB. REV. STAT. § 48-443; 230 NEB. ADMIN. CODE,

Chapter 6, Sections 2(A) and 2(B). The purpose of these safety committees

is to “reduce worker' compensation costs for all employers through

enhanced safety and health in the workplace.” 230 NEB. ADMIN. CODE, Chapter

6, Section 3(A). These safety committees are required to meet at least once

every three months to develop ideas regarding to reduce hazards affecting

work place safety. Most schools and school attorneys have referred to these

committees as “safety committees” over the last 20 years. However, these

committees do not typically meet with local law enforcement, discuss how to

respond to possible school shooters, address school climate or perform any

of the tasks that are required by the School Safety and Security Standards.

Each board of education should consider how it will distinguish

between the “safety committee” required by NEB. REV. STAT. § 48-443 and the

“safety committee” required by the School Safety and Security Standards.

The board should also consider if it would be useful to require the two

committees to confer so that the two groups don’t duplicate each other’s

work.

Other Possible Policy Revisions

Obviously, each school will have to review its existing All-Hazards Plan

and those plans will likely require substantial revisions. Additionally, most

boards of education will need to review and consider revisions to several of

their policies. Some of the policies which you should review in light of the

protocols:

Denial of Access to School Premises or Activities

Threat Assessment

Suicide Prevention Training

Immunizations

Dating Violence

Student Bullying

Student Assistance Team Procedures

We have worked with Jolene Palmer, the State School Security Officer, to

assist schools in preparing to comply with these standards and updating our

policies. If you have additional questions about compliance with the Safety

and Security Standards, you should consult with Ms. Palmer, your school

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

Pandora, Grooveshark and the Copyright Police

Karen recently got the chance to visit with the ESU 10 New Teachers’

Academy and one of the topics she addressed was the need for educators to

be aware of copyright law. In brief, she emphasized that copyright laws

protect any original, tangible work and that the educational “fair use”

doctrine is not a license for educators to use copyrighted material at will. In

response to that presentation, many of the educators (both new teachers

and their mentors) asked: Is it a fair use to stream music and playlists

from services like Pandora, Spotify or Grooveshark as background

music in the public K-12 classroom? The short answer is: probably

not. (Sorry!)

Pandora and Grooveshark do not distinguish between non-profit and

business uses. Therefore, playing these services as background music in a

non-instructional classroom use would most likely be deemed a public

performance requiring licensing. It may seem unlikely the copyright police

are going to come storming in and arrest teachers for playing their Spotify

playlists. However, one of Karen’s first cases (many, many years ago) was a

copyright infringement action against a small, rural Nebraska hospital for

playing the local radio station over their sound system.

The copyright law is found in Title 17 of the United States Code. Section

110(2)(B) provides that teachers can use copyrighted movies, music and the

like for free if "the performance or display is directly related and of material

assistance to the teaching content of the transmission" -- that is, you are

teaching something about the media being presented. Good examples of

this exception would be using snippets of copyrighted songs to discuss

composition styles in a high school music class, or Bobby’s class

presentation in high school where he (very successfully) argued that Vanilla

Ice totally ripped off Queen and David Bowie’s “Under Pressure” for the intro

to “Ice, Ice, Baby.”

We are aware that there are a number of studies which show that

background music has beneficial effects on general education and cognition.

However, we do not think this generalized benefit meets the “directly

related” test in section 110. Unless you are evaluating the eccentricities of

Lady Gaga, we doubt you can succeed in arguing that playing Pandora in the

classroom qualifies as “fair use.” The same problems exist if you’re blasting

“warm up” music before basketball games or putting music in a graduation

slideshow—two very common questions we receive on this topic.

We certainly don’t enjoy our role as the “fun killers” for public education.

However, we also need to be clear with educators about their potential legal

liability for copyright violations. Over the past several years numerous

schools have been challenged for their unauthorized use of copyrighted

materials. In the vast majority of those cases, the school ended up paying

some amount to the copyright holder to resolve the dispute.

If you have questions about copyright law in general or the specific of the

“fair use” doctrine, you should consult with your school district’s attorney or

call Karen, Steve, or Bobby.

“Health Insurance Marketplace” Notifications: Here we go!

School districts have begun to receive notifications from the “Health

Insurance Marketplace” alerting the district’s “Benefits Manager” that some

employees have obtained their insurance on the health insurance exchange

(healthcare.gov) and are eligible for “advance payment of premium tax

credit” (APTC) or “cost-sharing reductions” (CRS). While these terms are

worded slightly differently, we have been discussing them as “credits and

premium assistance” in our presentations regarding PPACA for years. We

have referred to these notifications as “section 1411 certifications,” because

they come from §1411 of the Affordable Care Act. For short, we will call

them “notifications” in this email update.

A few clients have been uncertain about whether this is an official

government communication. We believe it is. The Marketplace has

indicated that it will be sending these notifications out in batches, so if you

have not yet received one, you should be on the lookout for yours in the

next few months. On the next page, we have included a screen shot of the

first page of the letter so that you can be sure to identify the official notice if

or when you receive it.

Marketplace Verification and Applicability to PPACA Tax

Penalties. Essentially, the notification means some of your employees have

indeed purchased insurance on the Marketplace (which we’ve often called

“the exchange”) and are eligible for government assistance toward their

premiums. These notifications are part of a multi-step verification process

which will be used by the federal DHHS and IRS to do the following: (1)

confirm the eligibility of your employees for government assistance on the

Marketplace, and (2) assess whether your district will owe a penalty for

failing to offer insurance or offering unaffordable insurance to that

employee.

If you are a “large employer” who has stayed informed regarding your

PPACA obligations, this should start to sound familiar. As you have heard

many times by now, school districts subject to PPACA’s insurance offer

requirements because of their “large employer” status can be penalized on a

per-employee basis for any employee who meets the following criteria:

1. Is a “full time” employee under the PPACA regulations;

2. Receives no offer or an “unaffordable” offer from the district;

3. Declines the district’s offer and enrolls in coverage from the

Marketplace; and

4. Obtains credits or premium assistance (the form calls these APTC or

CRS) from the Marketplace.

Not until each of those things are met will the district be potentially

subjected to a tax penalty for that particular individual. That’s where this

notification comes in. Section 1411 of PPACA requires the government to

notify you if your current or former employee could subject you to one of

those penalties. If you have received one of these notifications, they likely

state at least one and possibly all 3 of the following things near the top:

This person [your employee] reported that he or she:

 didn’t have an offer of health care coverage from [the district];

 did have an offer of health care coverage, but it wasn’t

affordable or didn’t provide minimum value; or

 was in a waiting period and unable to enroll in health care

coverage.

As you can see, those assertions made by your employee or former

employee start to hint at the government’s analysis of your potential tax

penalty liability under PPACA. In fact, the notification goes on to say that

“This is only a notification that [the district] may have to pay an employer

shared responsibility payment,” aka, a tax penalty. The notification amounts

to the government indicating that the particular employee has done at least

part of what’s required to subject your district to penalty, assuming your

district is a “large employer” and assuming the employee might meet the

other requirements (such as being a “full time” employee).

Appeals Process. Alongside this multi-step verification process is a

multi-step “appeals” process. This is discussed in the notification, as well,

under the “What can I do next?” and “What are my appeal rights?” sections.

As we think of it, this is your first bite at the apple toward avoiding potential

tax penalties if you do not believe you should be penalized for that particular

employee. According to PPACA, you will have another chance to appeal their

penalty determinations later, but we recommend taking this appeals process

seriously and putting all of your applicable arguments into the appeal. For

example, if you offered “affordable” insurance to that employee, then you

should appeal the notification to start making your case with the

government.

Click here for appeal form and here the explanation of the appeal

process that can also be found on healthcare.gov. As you will see, the

appeal form has 4 basic sections, and most districts will ignore section 2.

Section 1 is the employer information, and section 4 is for your signature.

Section 3 is where you will need to apply the rules of PPACA and the

information you know about the employee for whom you received the

notification. The introduction to section 3 states as follows:

Tell us why you’re appealing the Marketplace determination of

this employee’s eligibility for help with the costs of Marketplace

coverage....

An individual may qualify for help with the costs of Marketplace

coverage if the coverage that’s offered by the employer doesn’t

meet minimum value requirements or isn’t affordable with

respect to the employee.

Use the space below to explain why this employee shouldn’t

have been eligible for advance payments of the premium tax

credit and cost-sharing reductions (if applicable). Use extra

paper, if necessary. If you’re including documents to support

your request, send us copies. Keep all original documents.

The appeal is asking you to tell the government why this person is not

eligible for their assistance on the Marketplace. However, what they’re

actually asking you to do is assist them in fact-checking your employee’s

insurance application on the Marketplace and more importantly, instructing

you to provide the reasons you should not be penalized, including supporting

documentation.

Individualized Appeals. Because of the nature of the PPACA tax

penalties, you will need to appeal or not appeal each notification on a very

individualized basis. While some appeals may look alike, they each require a

careful analysis of the employment data for the individual employee, such as

which offer they received and how many hours they worked. This is why we

have recommended for many years that you should be tracking and

centralizing all of the hours for all your employees, especially each non-

certificated employee (including subs, community coaches, and bus drivers).

Even though some of those employees will never subject you to penalty, you

may receive notifications for them.

Take, for example, a substitute teacher who only subbed for the

district a few times each month. It is very unlikely that the employee could

ever attain “full time” status under the PPACA regulations during the

applicable time period (must work 30 hours per week on average).

Assuming the sub never attained “full time” status, he or she cannot subject

the district to a penalty. However, that person may still be eligible for an

APTC or CSR on the Marketplace, so you will still receive a notification if they

apply on the Marketplace and list you as an employer. The fact of the

matter is, in most cases you may have no idea whether that person is

otherwise eligible for government assistance, which is what the appeal form

asks you to verify. But you do know the employee cannot subject you to

penalty. Are you better to err on the side of providing more information and

tell the IRS that you’re unsure of their exchange eligibility but the employee

is not a “full time” employee? This question remains unclear, but for now,

we think you should discuss it with your legal counsel and err on the side of

caution.

Contents of the Appeal. Assuming you do decide to appeal, you will

need to determine how to word your position on the form, which does not

provide appeal response options. You will also need to determine whether

you want to include documentation, and you must include a copy of the

notification you received with your appeal. Appeals must be filed within 90

days. Remember, what you send to the IRS now will help you in the future,

but it could also limit your options later if you are not careful in how you

structure your response.

Over the long run, we believe each district will get to a point where

you shouldn’t need to involve legal counsel for each appeal. For now, we

recommend discussing your appeal options with your legal counsel. If you

have received one of these notifications or if you have questions about the

appeal process, you should consult with your school district’s attorney or call

Karen, Steve, or Bobby.

Public Record Request for Public Employee Salary Data

The American Civil Liberties Union of Nebraska is conducting what they

describe as a “statewide survey about sex education courses as well as

district policies relating to pregnant and parenting students.” The

organization has send a lengthy public records request asking for a laundry

list of documents related to sex education; school policies and practices

related to pregnant and parenting students; and agencies to whom schools

refer pregnant and parenting students. The ACLU letter concludes by stating

that “[a]s you might know, Nebraska open records requests must be

provided within four (4) days of receipt of this letter, but we are willing to

give you fourteen (14) days to provide these materials.”

Response Within Four Business Days.   We have reviewed ACLU

Nebraska’s letter and have consulted with the Nebraska Attorney General’s

Office about it. We are advising KSB clients that this is a valid public records

request which requires a response. However, we do NOT believe that the

ACLU has the power to unilaterally change the statutory timeline in the

Nebraska Public Records Act. Therefore, every school that received this

request today will have to respond no later than Monday, July 11.

The Public Records Act states that if the entire request cannot with

reasonable good faith efforts be fulfilled within four business days “due to

the significant difficulty or the extensiveness of the request,” you can

instead communicate back to the requester. That communication should

include a written explanation of why, including the earliest practicable date

for fulfilling the request, an estimate of the expected cost of any copies, and

an opportunity for the requester to modify or prioritize the items within the

request.

Cornhusker Plaza P: (402) 804-8000

301 S. 13 th St., Suite 210 F: (402) 804-8002

Lincoln, NE 68508 KSBSchoolLaw.com

Fees for Gathering and Copying These Documents.  As we read

the ACLU’s requests, we believe it is highly likely that you will have to reach

out to every teacher in the district to ascertain whether they teach any unit

it will take your staff more than four hours to search, identify, redact or copy

these documents, you can charge for that staff time. NEB. REV. STAT. § 84-

712(3)(c). Alternatively, if you decide to pay a third party (an independent

contractor or even your educational service unit) to search your computer or

paper files and gather these documents, you can charge for all of that

additional expense. You may also charge a fee for your actual costs (e.g.

copying, printing, computer analysis) in responding. You are, however,

prohibited from charging the requester for the cost of your attorney

reviewing the public records response.  

Deposit.  You may request a deposit prior to producing the records if

you reasonably calculate that the total fee (including copying, staff, and

contractor costs) for providing the records would exceed $50.00. Mr. Fox

will then have 10 days either to narrow the scope of his request or to

provide you with the requested deposit.

If you would like assistance in preparing a response to Mr. Fox or if

you have questions about the public records statutes in general, you should

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

Minorities & Success

Once again Nebraska school districts are reporting that they have received

telephone calls, letters, and e-mail solicitations from a company called Minorities &

Success. The communications are designed to look as if they are from some

agency of the federal government. The e-mails refer to “School District Affirmative

Action Plan Update & EOE Requirements Reference #101.354.” Other school

districts have received phone calls “confirming” a conference call with the

superintendent regarding the Federal Contract Compliance Manual or "Executive

Order 11246". In other communications the company claims to be enforcing "a new

mandate for schools" This company’s aggressive sales techniques include making

claims that they have previously conducted business with your school and are just

calling to renew a contract. However, the truth is your district never contracted

with this company. They imply if not outright say that you are violating affirmative

action laws by not contracting with them. This simply is not true. Minorities &

Success only supplies a high-pressure sales pitch that misstates and misrepresents

the law. This company makes direct and indirect misrepresentations of fact and law

in an attempt to make easy money from unsuspecting schools.

Do not be fooled if your school is contacted by Minorities and Success. A few

years ago we went so far as to file a complaint against this company with the

Nebraska Attorney General’s office. If this company continues to contact your

school district or if you have any questions or concerns about how to respond,

contact your school attorney or Karen, Steve, or Bobby.

Public Record Request for Public Employee Salary Data

Many school districts have received an e-mail from Daniel Fox

(daniel.fox3377@gmail.com) asking them to send “copies of public records

of individual salary data for all public school employees (with a focus on

teachers and administrators) for as many years as are available between

1995-2016.” Mr. Fox says that he is seeking this information on behalf of

Dr. Joseph Price at Brigham Young University, who he says is doing a study

on the gender gap in teacher pay.

We have reviewed Mr. Fox’s e-mail and have consulted with the

Nebraska Attorney General’s Office about it. We are advising KSB clients

that this is a valid public records request which requires a response. Every

school that received this request will have to do four things promptly:

1) Ascertain which records (in any format) are subject to disclosure in

response to this request;

2) Calculate how much it will cost to fulfill the request – this includes

all the costs that we’ve detailed below;

3) Determine how long it will take you to fulfill the request; and

4) Respond back to Mr. Fox by this Thursday, June 9 (if you got this

request on Friday and your school will be open for business every

day this week). You will either need to provide the documents or

communicate the costs and timeline for your eventual response.

The rest of this update explains these steps.

Requested Documents and Analysis. Schools almost certainly

have records containing the items listed in Mr. Fox’s request, which was the

“year, name, job title, salary information, education, experience, and

gender” of each of its staff members for the last 21 years. At a minimum,

Mr. Fox would like any documents containing the “year, name, salary, and

job title” of teachers and administrators. As we read this request in light of

the Public Records Act, we recommend that you analyze your individual

teacher and administrator contracts, along with spreadsheets, payroll

records, or other documents which contain this information in order to

determine what you must disclose. Gaining an understanding of the

documents which may be responsive to this request, even if you do not

locate all of them immediately, will allow you to estimate the costs discussed

below.

Form of the Documents.  Schools are not required to produce or

prepare any records “in a new or different form or format modified from that

of the original public record.” If your district maintains this information

electronically (say, in your payroll software or on a spreadsheet) it should be

fairly straightforward to generate a report that includes this information and

nothing else. However, if the district only has paper records for some of

these years, the district will need to review the records to ascertain which

must be disclosed, redacted, or withheld.

Response Within Four Business Days.   Schools must respond to

this request within four business days. That does not mean you have to

gather these documents by then. The Public Records Act states that if the

entire request cannot with reasonable good faith efforts be fulfilled within

four business days “due to the significant difficulty or the extensiveness of

the request,” you can instead communicate back to the requester. That

communication should include a written explanation of why, including the

earliest practicable date for fulfilling the request, an estimate of the

expected cost of any copies, and an opportunity for the requester to modify

or prioritize the items within the request.

Fees for Gathering and Copying These Documents.  If it will take

your staff more than four hours to search, identify, redact or copy these

documents, you can charge for that staff time. NEB. REV. STAT. § 84-712(3)(c).

Alternatively, if you decide to pay a third party (an independent contractor

or even your educational service unit) to search your computer or paper files

and gather these documents, you can charge for all of that additional

expense. You may also charge a fee for your actual costs (e.g. copying,

printing, computer analysis) in responding. You are, however, prohibited

from charging the requester for the cost of your attorney reviewing the

public records response.  

Deposit.  You may request a deposit prior to producing the records if

you reasonably calculate that the total fee (including copying, staff, and

contractor costs) for providing the records would exceed $50.00. Mr. Fox

will then have 10 days either to narrow the scope of his request or to

provide you with the requested deposit.

If you would like assistance in preparing a response to Mr. Fox or if

you have questions about the public records statutes in general, you should

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

Transgender Students and Gender Identity Update: You know what they say about opinions, everybody has one...

It’s been 10 days since the federal Department of Education and

Department of Justice (DOE/DOJ) issued their joint “significant guidance” on

issues relating to transgender students and other gender identity

considerations. Candidly, we have been debating almost daily whether to

send an update on the “guidance.” Our hesitation comes from one simple

fact: this is not new. School boards and administrators who have been

following these issues closely know that the DOE/DOJ position has been

clear for years. While the “new” guidance intensifies speculation over

whether these agencies would strip a “noncomplying” district of its federal

funding, the agencies’ core interpretation of the law remains the same.

They believe, under laws like Title IX, that students’ gender identity dictates

the facilities the students use and the activities in which the students

participate.

The uncompromising nature of the “guidance” has added political fuel

to the debate nationally and here in Nebraska, sparking a wide variety of

responses on all sides of these issues. While the federal agency position has

not changed, you’ve seen the headlines popping up in response to the

“guidance.” Several states and government officials, including Governor

Pete Ricketts and Nebraska AG Doug Peterson, have opined on the

“guidance,” saying that it is “ill-conceived” and is a “misrepresentation of the

current law.” North Carolina and the DOJ recently sued each other over

North Carolina’s new “bathroom law,” which limits bathroom usage to each

individual’s biological sex as listed on the individual’s birth certificate. Last

week, an Indiana Congressman introduced a bill which would protect any

“State, or local government of a State” which elected to “enforce a policy

regarding the use of sex-segregated bathrooms...or locker rooms.” In sum,

officials who disagree with the DOE/DOJ likewise believe the law is clear:

school boards can (and according to some officials, should) limit things like

facility use and activity participation to students’ biological sex.

As we look at this from the perspective of advising our clients, the only

thing which is clear is that there are no clear answers or solutions, despite

professed certainty from both sides. The two positions are clear, but the

ramifications that would stem for following either sides’ advice are not. For

that and other reasons, we have long believed that a very good option for a

school board is to gather information, analyze issues in the context of each

school district’s unique circumstances, and proceed slowly by handling

requests on a case-by- case basis under existing policy and law. With each

conflicting “guidance” letter, Office of Civil Rights investigation, and federal

lawsuit, we believe this position is reaffirmed and strengthened.

With that said, we similarly believe that school boards possess the

authority to address these issues formally if they feel compelled to do so. A

board could enact a policy in line with the DOE/DOJ preference that

students’ gender identity resolves all questions and that the word “gender”

should be added to the district’s nondiscrimination policies. On the other

extreme, a board could enact a policy stating that questions regarding

accommodations, student records, facility use, and activity participation are

governed by the biological sex on the student’s birth certificate. While a

board can elect to implement a policy from either extreme, we challenge

board members and administrators to discuss whether they should.

The other choices fall on a spectrum between those two positions,

including our preferred approach discussed above. If the basis for the

DOE/DOJ position is that Title IX’s “sex discrimination” prohibitions already

include a student’s “gender,” then we see no legal requirement for a new

policy either way. Instead, a board can elect to handle requests from

students on a case-by- case basis and wait to see how the law in this area

develops before enacting sweeping policy declarations. Our support for this

position is pretty simple: we think it is the best way to stay out of court and

out of the newspaper. In our experience, schools do way more to protect

and educate students of all kinds than politicians understand.

As school attorneys, our job is to provide legal advice and assist

boards with the legal ramifications of their choices. We feel strongly that

this is a decision to be made at the board level after careful consideration.

We should not dictate your approach any more than the government officials

weighing in on either side. No matter what your board chooses to do, it

should come after careful consideration of all issues, legal, practical, and

political.

If you have questions or concerns about your board’s options, we

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

Karen, Steve, or Bobby.

NOTE for KSB policy service subscribers: We outlined our

perspective on the main legal issues and possible board approaches in our

Policy Updates Memorandum. We addressed issues like requests to change

records, NSAA activity participation, and facility use. Take a look at that

section of the Memo, and please feel free to give any of us a call to discuss

it.

New FLSA Overtime Regulations

The long-anticipated changes to the Fair Labor Standards Act (FLSA)

regulations were released today. If you need help falling asleep tonight, you

can access all 508 pages of the final rule here.

The FLSA has always required that employees treated as exempt from

the overtime rules: (1) be paid on a minimum weekly amount, (2) on a

salary basis, and (3) perform exempt duties. The regulations (thankfully!)

did not make changes to the duties tests for executive, administrative and

professional employees. These are the primary classifications of exempt

employees used by schools. However, as promised, the weekly salary

minimum did increase. Here are the highlights:

 Weekly salary minimum raised from $455/week ($23,660/year) to

$913/week ($47,476/year). Note that the regulations specifically

exclude teachers, administrators, and some other certificate holders

from the minimum salary requirement. Many schools have asked if

this will require an increase to the district’s base salary for teaching

staff. The short answer for the vast majority of schools is “no.” For

the most part, the new rules will apply to non-teaching employees that

schools have treated as exempt in the past (e.g. head custodian,

transportation director, head secretary, etc.) In order to avoid the

recordkeeping and overtime requirements for exempt employees for

any particular workweek, the employee must receive at least $913 per

week in gross wages.

 The new regulations are effective December 1, 2016. This will

provide schools with some time prior to the new salary minimum going

into effect.

 The weekly salary minimum for exempt employees will be raised

every three years. This is different than the proposed regulations,

which considered raising the weekly salary minimum every year. This

outcome is better for schools which most often contract on a yearly

basis with classified staff members who may be exempt. The

increases will become effective on the first day of the applicable year,

with the first automatic update taking effect on January 1, 2020. The

Department must publish the updated rates at least 150 days before

they go into effect. This means you’ll be considering your options

again prior to finalizing 2019-2020 contracts.

The Department of Labor (DOL) also issued a guidance document for

“State and Local Governments” which describes the regulatory changes and

the methods available to those entities for complying with the new rule. You

can access that document here, but in sum, it lays out generally the options

we’ve been discussing with KSB clients for several months now. Here is the

DOL’s list of options for schools and other local governments to comply with

the new rules:

 Raise salaries: to the new minimum threshold;

 Pay overtime above a salary: this is the fluctuating

workweek/variable wage rate method we’ve discussed at presentations

and with many clients;

 Evaluate and realign employee workload; and

 Utilize compensatory time off (aka, “comp time”).

Generally, boards and administrators fall into two camps. Some have

elected to set up employment agreements for the entire 2016-17 school

year in light of these new rules, either increasing salaries or converting

employees to hourly earners entitled to overtime beginning right away.

Others will wait to make changes until the December 1, 2016 deadline is

closer and may make contract revisions effective for that date. In either

case, we recommend that administrators and boards begin or continue

discussions regarding these new rules. Some of the strategies for

compliance may require changes to employment agreements, policies, and

handbooks, so keep those things in mind as you work on implementing

these new rules for your district.

If you have questions or concerns about your board’s options, we

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

Karen, Steve, or Bobby.

April Showers Bring May…….. POLICIES!?!

Although Nebraska school administrators are busy counting down the days

until the end of the 2015-16 school year, you should also start thinking

about what you need to do over the summer. This year, changes in laws

and regulations on both the state and federal level will require schools to

make some significant policy changes. Here are examples of some of the

changes for the 2016-17 school year:

1) How the district will respond to requests for accommodation from

transgender students (necessitated by NSAA policy);

2) District review and control of staff social media accounts (necessitated

by LB 821);

3) Student Self-management of Asthma, Diabetes and Anaphylaxis

(necessitated by LB 1086);

4) Option Enrollment (necessitated by changes made by LB 1066);

5) Hazing and Initiations (necessitated by LB 710); and

6) Service Animals (recommended based on new regulatory guidance by

the Department of Justice and related case developments).

KSB Policy Service and Policy Update Subscribers KSB is currently

working on policy updates related to these and other policy issues. If you

are a subscriber to either the full policy service or the policy updates, you

will receive the updates via e-mail on May 20, 2016. You should plan to

meet as an administrative team to review at least the policy changes we

have outlined above before building principals go on summer break. KSB

will then be holding our policy service webinar on June 1, 2016. We will

share our thoughts and answer your questions during the webinar so that

you can have all of the information you might need to facilitate board

discussion of these policies at the regular June board meeting.

If you have questions or concerns about policies or your board’s policy

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

or call Karen, Steve, or Bobby.

(Another?!) Transgender Update

There have been a few significant developments since our last update on this

topic. Let’s cover them briefly, and then talk about practical next steps:

NSAA Policy Update. By now, you’ve all heard that the NSAA Board’s

gender participation policy will remain in effect after the district-initiated

proposals failed this month. Here’s the policy. This will now be policy for

NSAA activity eligibility indefinitely, and by design it will require some

decisions by your board.

Federal Court Litigation Update. In our most recent update on this topic,

we covered the then-current federal court decisions in which a court held

that a school could limit the use of its restrooms based on biological sex.

The student in that case, G.G. v. Gloucester Cnty. Sch. Bd., No. 15-54

(E.D.Va. Sept. 17, 2015), appealed the district court decision to the United

States Court of Appeals for the Fourth Circuit. Yesterday the Court of

Appeals issued an opinion, found here, which reversed the initial court

ruling.

The Fourth Circuit concluded that the district court “did not accord

appropriate deference to the relevant Department of Education

[interpretation of its own] regulations.” G.G. v. Gloucester Cnty. Sch. Bd.,

No. 15-2056 (4th Cir Apr. 19, 2016). Translation: courts should listen to the

DOE/OCR interpretation of their own regulations. In rendering its decision,

the Fourth Circuit did not outright decide that G.G. should be permitted to

use the restroom facility consistent with his gender identity. Rather, they

sent the case back to the district court to determine whether G.G.’s claims

are valid under this more deferential approach.

OCR Enforcement Action Update. There have also been several OCR

investigations and enforcement actions to date regarding gender identity,

facility use, and activity participation. One Illinois district debated

withdrawing a settlement agreement with OCR, which would have left the

OCR with the choice of filing a compliance lawsuit against the district. We

had been tracking that case closely, but in December that district decided

instead to continue its settlement with OCR rather than engage in litigation

over the gender identity issues. To date, OCR has successfully “settled”

these cases by asking districts to do things like provide facility use and

activity participation for students based on gender identity.

What do these updates mean? These updates make one thing obvious:

the law in this area remains unsettled, even as the enforcement position of

the federal agencies remains perfectly clear. The newest opinion in the G.G.

case from the Fourth Circuit is a big win for groups like OCR and the ACLU

which have been arguing that Title IX and other laws protect individuals on

the basis of their gender identity. It represents the first major court decision

endorsing the OCR’s position regarding protections for transgender students.

What are the next steps for Nebraska boards of education? The NSAA

Board’s gender participation policy requires local school boards to decide

how they will handle activity participation requests from transgender

students. Now that we know the NSAA policy will remain in effect

indefinitely, we will be providing our KSB policy service and policy update

subscribers with a series of policy options for addressing activity

participation. However, the new G.G. case further complicates the questions

not addressed in the NSAA policy, such as facility use, student records, and

others.

To date, we have advised our clients to tread lightly on those other issues

and handle situations on a case-by- case basis. We still firmly believe that a

very prudent decision for boards is to move forward slowly and avoid making

sweeping decisions which could subject the district to litigation no matter

what policy they put in place. We think districts with updated sex

discrimination policies are entitled to wait for further developments in the

law. As we’ve said from the beginning, the law is changing quickly in this

area as evidenced by G.G. However, at a minimum school boards will need

to address activity participation via policy or directives to administration.

Should your board elect to address issues like facility use at the same time,

we want to make options available, and we plan to do so for KSB policy

subscribers in the coming weeks.

One other note about the G.G. case to consider when discussing this at the

board level: Many patrons in the G.G. case addressed the board when it was

considering how to form policy around the issues of gender identity.

Generally, that district’s patrons opposed allowing transgender students to

use the bathroom facility consistent with their gender identity. The board

ultimately decided to adopt a policy which said students must use the

facilities consistent with their sex at birth. To our surprise, the Fourth Circuit

judges quoted the most unkind comments made by patrons to imply that the

board had improper motivations in setting its policy.

The question of transgender rights is going to be the subject of discussions

in a lot of settings in the months to come, including your board meetings. As

board members and administrators, you do have the right to form your own

personal opinions and you have First Amendment rights to free expression.

However, as school attorneys we believe that our job in defending your

board’s policy decisions could be more difficult if administrators and board

members make a lot of sweeping public pronouncements about this issue.

We would prefer that board members and administrators keep their own

counsel and refrain from making provocative statements about the issue of

transgender student rights, even as parents, patrons, and others may have

very strong viewpoints on either side of this issue. We certainly believe

personal convictions can and should drive policy in your community;

however, on this particular issue we believe your district will be in the best

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

focused on the legal questions.

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

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

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

You Might Get Away With Forgetting Your Spouse's Birthday, but you MUST Remember the Significance of April 15 th !

We all have important dates like birthdays and anniversaries that we

know we must remember. If you are a school administrator in the state

of Nebraska, April 15th is one of those dates. This is the deadline 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 Nebraska laws governing teacher employment, teachers’

contracts are automatically renewed unless the teacher receives notice

on or before April 15th 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 16th 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 15th

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.

Meeting the February 8th Negotiations Deadline

The Industrial Relations Act requires the board and teachers

association to submit to mandatory mediation or factfinding as ordered by

the Commission of Industrial Relations if the board and association have not

reached agreement by February 8 th , unless the parties mutually agree in

writing to forgo them.

Failure to Conclude Negotiations by February 8 th . If the parties

have not reached agreement by February 8 th , they must engage in fact

finding and mediation with a “resolution officer” if one of them files a petition

with the Commission of Industrial Relations requesting it. However, they are

not required to engage in the resolution officer process if both agree in

writing to forego it. We recommend that you consult with your school

district’s attorney before February 8 th if it appears that you will not be able to

settle negotiations. Depending upon the unresolved issues you may have

with your local association, there may be reasons to file or forego filing a

petition to begin the resolution process.

Fact Finding Process. The fact finding process can be a complex

endeavor compressed into a very short period of time. The “resolution

officer” will be in charge of the process. Among other things, he or she will:

1. determine whether the issues are ready for adjudication;

2. identify the terms and conditions of employment that were in

dispute and negotiated in good faith but not resolved;

3. choose the offer that he/she believes was the most reasonable

final offer on each issue in dispute; and

4. issue a decision and recommendations by March 25 th .

Time Flies. Time flies, especially from February 8 th through March

25 th . The board and association have slightly more than 6 weeks to

assemble their records and data, perform a comparability study (this is not

required, but it is advisable), present the information and arguments, and

give the resolution officer enough time to review it and issue a decision and

recommendations.

Conclude Fact Finding by March 25 th . The resolution officer must

conclude the fact finding process and issue a decision and recommendations

by March 25 th or within 25 days after the certification of state aid for the

contract year in question, whichever occurs later. In recent years, given the

contentious discussions surrounding school funding, certification of state aid

has occurred well after March 25. If the parties have not reached agreement

on or before that deadline, either one may file a petition with the

Commission within 14 days asking it to resolve the industrial dispute.

Commission of Industrial Relations Decision. The Commission

will limit its consideration to those issues which the resolution officer

determined that the parties negotiated in good faith but could not agree

upon. If the parties forego the resolution officer factfinding process, the

Commission will resolve the “industrial disputes” if either party petitions the

Commission for a hearing. The Commission will decide the case in either

circumstance based on its traditional criteria of comparability and

prevalence, not on the resolution officer’s standard of the “most reasonable

final offer.” It must issue its decision for the contract year by September

15 th .

If you are a KSB client and you believe that you will not reach an

agreement, please let us know immediately. If you have questions, we

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

Karen, Steve or Bobby.