Merely More than De Minimis is NOT the Standard – Endrew F. – U.S. Supreme Court Special Education Case

This week, many families with children with special needs celebrated the United States Supreme Court ruling in Endrew F. v. Douglas County School District.  The Individuals with Disabilities Act (“IDEA”) protects children with disabilities through a mandate that each eligible student receive a Free Appropriate Public Education (“FAPE”), by means of a uniquely tailored individualized education program (“IEP”).  In this case, the Court found that student Endrew F.  failed to receive an appropriate public education.  Special Education and related services are to be provided so that the student may advance appropriately toward attaining the annual goals from the IEP, and when possible, be involved in and make progress in the general education curriculum.

The Court noted in its opinion that at age two, Endrew F. was diagnosed with autism, a neurodevelopmental disorder generally marked by impaired social and communication skills, “engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.”  With this diagnosis, Endrew F. was eligible to receive special education services. Endrew F.’s parents were dissatisfied with the public school’s inability to provide and IEP different from any of the IEPs for the past few years. With no satisfactory results from the school district, Endrew F.’s parents withdrew him from school and enrolled Endrew in a private school that specializes in educating children with autism, where Endrew excelled.

Endrew F.’s parents sued the school district for failure to provide an appropriate public education for Endrew F.  The Supreme Court noted that a IEP is unique for the circumstances of the child for whom it was created.  The standard for the student’s educational program must be appropriately ambitious in light of his circumstances, not merely more than de minimis progress from year to year.

Parents and advocates, when you are in attendance at an Admission, Review, and Dismissal meeting (“ARD Meeting”), argue with confidence so that your child to receive an education appropriately ambitious in light of your child’s circumstances.

What to Expect in the New School Year

There is a new focus on the alarming rise of special education student suspensions.

The U.S. Department of Education – Office of Special Education and Rehabilitative Services released a letter dated August 1, 2016 restating a goal of the Individuals with Disabilities Education Act (IDEA) to offer eligible children with a disability a free appropriate public education (FAPE).  The letter “serves to remind school personnel that the authority to implement disciplinary removals does not negate their obligation to consider the implications of the child’s behavior needs, and the effects of the use of suspensions (and other short-term removals) when ensuring the provision of FAPE.”

Be proactive.

If your child’s Individual Education Program (IEP) has already been prepared for 2016, the new school year can mean you will have a new IEP team member, new classroom, and new teaching method. Your child’s IEP may need to be modified to address any new behaviors your child may have due to the changes in his or her classroom routine.

School is starting soon and parents are invited to meet the teacher. This is a great opportunity to quickly discuss some key points with the newest member of your child’s IEP team. Typically, schools will offer 15 to 20 minutes with your child’s new teacher so start the school year off right.  Have a friendly introduction letter ready to hand off to your child’s new teacher so that he or she can later take their time to read and review the special details you determine are important for knowing your child.  Offer proven strategies for the new teacher that may have worked with your child over the summer break to establish a safe, supportive learning environment, such as wearing head phones when in a loud environment.  Point out what is important in the IEP.  Add your contact information and make sure you answer the calls or emails in the event your child’s new teacher reaches out to you. Respect your child’s teacher’s time.

Stay current with new special education legislation and news. Parents of children receiving special education services in self-contained classrooms can write a letter to the school district to have cameras installed in the classroom.  See an example letter. The Texas Education Agency has created a comparison chart of laws applicable to schools and students receiving special education services.

Finally – Cameras in the Special Ed classrooms Commissioner’s Rules

The Texas Education Agency has finally posted the Adopted New rules regarding Cameras in the Classroom, effective August 15, 2016.

You may go to TEA website  for more information. I have pasted below the text for your viewing pleasure.

Text of Adopted New 19 TAC

Chapter 103. Health and Safety

Subchapter DD. Commissioner’s Rules Concerning Video Surveillance of Certain Special Education Settings

§103.1301. Video Surveillance of Certain Special Education Settings.

(a)                 Requirement to implement. Beginning with the 2016-2017 school year, in order to promote student safety, on request by a parent, trustee, or staff member, a school district or open-enrollment charter school must provide video equipment to campuses in accordance with Texas Education Code (TEC), §29.022, and this section. Campuses that receive video equipment must place, operate, and maintain video cameras in self- contained classrooms or other special education settings in accordance with TEC, §29.022, and this section.

(b)                 Definitions. For purposes of TEC, §29.022, and this section, the following terms have the following meanings.

(1)                 Parent means a person described in TEC, §26.002, whose child receives special education and related services for at least 50 percent of the instructional day in the [a] self-contained classroom or other special education setting. Parent also means a student who receives special education and related services for at least 50 percent of the instructional day in the [a] self-contained classroom or other special education setting and who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Texas Family Code, Chapter 31, unless the student has been determined to be incompetent or the student’s rights have been otherwise restricted by a court order.

(2)                 Staff member means a teacher, related service provider, paraprofessional, or educational aide assigned to work in the [a] self-contained classroom or other special education setting. Staff member also includes the principal or an assistant principal of the campus at which the [a] self- contained classroom or other special education setting is located.

(3)                 Trustee means a member of a school district’s board of trustees or a member of an open- enrollment charter school’s governing body.

(4)                 Open-enrollment charter school means a charter granted to a charter holder under TEC, §12.101 or

§12.152, identified with its own county district number.

(5)                 Self-contained classroom means a classroom on a regular school campus (i.e., a campus that serves students in general education and students in special education) of a school district or an open-enrollment charter school in which a majority of the students in regular attendance are provided special education and related services and have one of the following instructional arrangements/settings described in the student attendance accounting handbook adopted under

§129.1025 of this title (relating to Adoption by Reference: Student Attendance Accounting Handbook):

(A)               self-contained (mild/moderate/severe) regular campus;

(B)                full-time early childhood (preschool program for children with disabilities) special education setting;

(C)                residential care and treatment facility–self-contained (mild/moderate/severe) regular campus;

(D)               residential care and treatment facility–full-time early childhood special education setting;

(E)                off home campus–self-contained (mild/moderate/severe) regular campus; or

(F)                off home campus–full-time early childhood special education setting.

(6)                 Other special education setting means a classroom on a separate campus (i.e., a campus that serves only students who receive special education and related services) of a school district or open- enrollment charter school in which a majority of the students in regular attendance are provided special education and related services and have one of the following instructional arrangements/settings described in the student attendance accounting handbook adopted under

§129.1025 of this title:

(A)               residential care and treatment facility–separate campus; or (B)                off home campus–separate campus.

(7)                 Video camera means a video surveillance camera with audio recording capabilities.

(8)                 Video equipment means one or more video cameras and any technology and equipment needed to place, operate, and maintain video cameras as required by TEC, §29.022, and this section. Video equipment also means any technology and equipment needed to store and access video recordings as required by TEC, §29.022, and this section.

(9)                 Incident means an event or circumstance that:

(A)               involves alleged “abuse” or “neglect,” as those terms are described in Texas Family Code,

§261.001, of a student by an employee of the school district or charter school or alleged “physical abuse” or “sexual abuse,” as those terms are described in Texas Family Code,

§261.410, of a student by another student; and [or]

(B)                allegedly occurred in a self-contained classroom or other special education setting in which video surveillance under TEC, §29.022, and this section is conducted.

(c)                 Exclusions. A school district or open-enrollment charter school is not required to provide video equipment to a campus of another district or charter school or to a nonpublic school. In addition, the Texas School for the Deaf, the Texas School for the Blind and Visually Impaired, the Texas Juvenile Justice Department, and any other state agency that provides special education and related services to students are not subject to the requirements in TEC, §29.022, and this section.

(d)                 Use of funds. A school district or open-enrollment charter school may solicit and accept gifts, grants, and donations from any person to implement the requirements in TEC, §29.022, and this section. A district or charter school is not permitted to use Individuals with Disabilities Education Act, Part B, funds or state special education funds to implement the requirements of TEC, §29.022, and this section.

(e)                 Dispute resolution. The special education dispute resolution procedures in 34 Code of Federal Regulations,

§§300.151-300.153 and 300.504-300.515, do not apply to complaints alleging that a school district or open- enrollment charter school has failed to comply with TEC, §29.022, and/or this section. Complaints alleging violations of TEC, §29.022, and/or this section must be addressed through the district’s or charter school’s local grievance procedures or other dispute resolution channels.

(f)                  Regular school year and extended school year services. TEC, §29.022, and this section apply to video surveillance during the regular school year and during extended school year services . [Decisions regarding whether video surveillance will be conducted in self-contained classrooms and other special education settings in which extended school year services are provided are left to local discretion.]

(g)                 Policies and procedures. Each school district board of trustees and open-enrollment charter school governing body must adopt written policies relating to video surveillance under TEC, §29.022, and this section. At a minimum, the policies must include:

(1)                 a statement that video surveillance is for the purpose of promoting student safety in certain self- contained classrooms and other special education settings;

(2)                 the procedures for requesting video surveillance and the procedures for responding to a request for video surveillance ;

(3)                 the procedures for providing advanced written notice to the campus staff and the parents of the students assigned to a self-contained classroom or other special education setting that video and audio surveillance will be conducted in the classroom or setting;

(4)                 a requirement that video cameras be operated at all times during the instructional day when students are in the self-contained classroom or other special education setting;

(5)                 a statement regarding the personnel [individuals] who will have access to video equipment or [cameras and] video recordings for purposes of operating and maintaining the equipment or recordings [and the roles and responsibilities of those individuals] ;

(6)                 a requirement that a campus continue to operate and maintain any video camera placed in a self- contained classroom or other special education setting for as long as the classroom or setting continues to satisfy the requirements in TEC, §29.022(a);

(7)                 a requirement that video cameras placed in a self-contained classroom or other special education setting be capable of recording video and audio of all areas of the classroom or setting, except that no video surveillance may be conducted of the inside of a bathroom or other area used for toileting or diapering a student or removing or changing a student’s clothes;

(8)                 a statement that video recordings must be retained for at least six months after the date the video was recorded;

(9)                 a statement that the regular or continual monitoring of video is prohibited and that video recordings must not be used for [routine] teacher evaluation or monitoring or for any purpose other than the promotion of student safety;

(10)             at the school district’s or open-enrollment charter school’s discretion, a requirement that campuses post a notice at the entrance of any self-contained classroom or other special education setting in which video cameras are placed stating that video and audio surveillance are conducted in the classroom or setting;

(11)             the procedures for reporting a complaint alleging that an incident occurred in a self-contained classroom or other special education setting in which video surveillance under TEC, §29.022, and this section is conducted;

(12)             the local grievance procedures for filing a complaint alleging violations of TEC, §29.022, and/or this section; and

(13)             a statement that video recordings made under TEC, §29.022, and this section are confidential and a description of the limited circumstances under which the recordings may be viewed.

(h)                 Confidentiality of video recordings. A video recording made under TEC, §29.022, and this section is confidential and may only be viewed by the following individuals, to the extent not limited by the Family Educational Rights and Privacy Act of 1974 (FERPA) or other law:

(1)                 a staff member or other school district or charter school employee or a parent of a student involved in an incident described in subsection (b)(9) of this section that is documented by a video recording for which a complaint has been reported to the district or charter school;

(2)                 appropriate Texas Department of Family and Protective Services personnel as part of an investigation under Texas Family Code, §261.406;

(3)                 a peace officer, school nurse, [or] administrator trained in de-escalation and restraint techniques as provided by commissioner rule , or a human resources staff member designated by the school district’s board of trustees or open-enrollment charter school’s governing body in response to a complaint or an investigation of an incident described in subsection (b)(9) of this section; or

(4)                 appropriate Texas Education Agency or State Board for Educator Certification personnel or agents as part of an investigation.

(i)                  Child abuse and neglect reporting. If a person described in subsection (h)(3) or (4) of this section views a video recording and has cause to believe that the recording documents possible abuse or neglect of a child under Texas Family Code, Chapter 261, the person must submit a report to [notify] the Texas Department of Family and Protective Services or other authority in accordance with the local policy adopted under

§61.1051 of this title (relating to Reporting Child Abuse and Neglect ) and Texas Family Code, Chapter 261.

(j)                  Disciplinary actions and legal proceedings. If a person described in subsection (h)(2), (3), or (4) of this section views a video recording and believes that it documents a possible violation of school district, open- enrollment charter school, or campus policy, the person may allow access to the recording to appropriate legal and human resources personnel of the district or charter school to the extent not limited by FERPA or other law. A recording believed to document a possible violation of school district, open-enrollment charter school, or campus policy may be used in a disciplinary action against district or charter school personnel and must be released in a legal proceeding at the request of a parent of the student involved in the incident documented by the recording. A recording believed to document a possible violation of school district, open-enrollment charter school, or campus policy must be released for viewing by the district or charter school employee who is the subject of the disciplinary action at the request of the employee.

(k)                 Access rights. Subsections (i) and (j) of this section do not limit the access of a student’s parent to an educational record of the student under FERPA or other law. To the extent any provisions in TEC, §29.022, and this section conflict with FERPA or other federal law, federal law prevails.

 

Requesting Education Records – FERPA

If you are working on your child’s IEP and records binder this summer, make a list of the records you are missing from school. Parents can the right to INSPECT AND REVIEW their child’s education records. Special Education students, including services provided to students under Individuals with Disabilities Education Act (IDEA).

Public schools and school districts receive funds under programs administered by the U.S. Dept. of Education. FERPA is Family Educational Rights and Privacy Act (20 U.S.C. Sec 1232g, 34 CFR Part 99) that applies to the above-described educational agencies and institutions.

There are areas of confusion regarding the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule.
Is your child’s school is a covered entity?
Are the health records “education records” or “treatment records” and what is considered “protected health information” under HIPAA?

If you are running into problems accessing your child’s records, call my office.