Education Law

1. Education Law Scott F. Johnson, Esq.

2. About me • Franklin Pierce Law Center and Concord University School of Law. • New Hampshire Education Law (NHEdLaw, LLC) www.nhedlaw.com. Website has resources and the book New Hampshire Special Education Law Manual: A Guide for Parents, Educators, Attorneys & Advocates. • Education Law Resource Center, www.edlawrc.com. Website has resources mostly on restraints so far and the book Preventing Physical Restraints in Schools: A Guide for Parents Educators & Professionals.

3. Overview • Changes to special education requirements • Touch on restraints/PBIS • General teacher liability

4. Focus? • Mixed bag of changes • Tried to pick some applicable ones • Feel free to ask questions about other aspects of the law

5. IDEA changes Focus of law changed/modified in some ways: • Includes academic, functional and developmental needs • To prepare students for further education, employment and independent living. • Ensure that schools have high expectations for students with disabilities • Ensure students with disabilities are taught by highly qualified teachers • Prevention • Scientifically based research or peer reviewed research

6. Placed by public school • State and public school that places responsible to ensure services are provided • Must be in compliance with IEP • IEP must meet law’s requirements in development and content • No cost to parents • Meets standards that apply to education provided by public school – except HQT • Child has all the rights they do at public school

7. Placed by parent • Completely different if FAPE not at issue • Student does not have same rights • Just equitable services • Services plan • Local school district here in NH responsible • Complicated if FAPE is at issue

8. Child Find • Regulations now require the public school district where the private school is located to be responsible. • Even if student resides out of state • Locate, identify and evaluate • 34 CFR 300.131

9. Evaluations & IEP’s • Functional and developmental 34 CFR s 300.304 & 320 • Feds - Functional means: everything not academic • State - Functional means: • “Functional Performance” • Functional performance means how the child demonstrates his/her cognitive, communicative, motive, adaptive, social, emotive, and sensory skills and behaviors. • “Functional Goals” • Functional goal means a measurable outcome that is developed by the IEP Team to address a need detailed in the analysis of the student’s functional performance.

10. Eligibility • Other health impaired now expressly includes Tourette’s Syndrome • New process for identifying students with specific learning disabilities

11. IEP development • Can use alternative means of meeting – conferencing • Can make some changes or modifications outside of the IEP meeting as long as everyone agrees to do so and parent reviews and consents to change • Can combine meetings • Team members don’t have to attend when their area of service or responsibility is not going to be covered. School and parents must agree in writing.

12. IEP • No longer have benchmarks or short term objectives unless student is taking the alternate assessment • Services including related services provided must be based on “peer reviewed research” to the extent practicable

13. IEP at private school • Public school must initially conduct meetings to develop IEP before placement • Private school representative must attend meeting or participate in other ways • After placed at private school, public school can allow private school to conduct meetings to review and revise • Private school must ensure parent and public school are involved in any decisions about the IEP and agree to any changes before implementation. • Public school still responsible for compliance and FAPE 34 CFR 300.325

14. Related services • Do not include mapping cochlear implants • Also does not include maintaining the device or replacing the device • 34 CFR s 300.34(b)

15. Transition services • Results oriented focuses on improving academic and functional achievement to facilitate move to post-school activities • Further education empasizes obligation includes post-secondary school where appropriate for student • Must be in IEP that is in effect when child turns 16 • Can be sooner if team agrees necessary • If outside agencies implementing services, they must be involved in IEP process

16. Physical Education • Physical education services must be made available to all students as part of FAPE • Including specially designed services when necessary • Public school must ensure it is provided when student attends separate facility. • 34 CFR 300.108

17. Placement • Now must be as close as possible to child’s home • Does not seem to mean that schools should look at geographical boundaries when looking to out of district placements • The Department has consistently maintained that a child with a disability should be educated in a school as close to the child’s home as possible, unless the services identified in the child’s IEP require a different location.

18. Residential • Law says when necessary to provide special education and related services the program including non-medical care and room and board must be at no cost to parents. 34 CFR 300.104 • Remember in NH residential services are related services and must be in the IEP. RSA 186-C:9.

19. End of services • Student graduates with a regular high school diploma • Alternative diplomas that are not fully aligned with state academic standards don’t count • Student turns 21 • Student no longer “child with disability”

20. IDEA - PBIS • Part of FAPE includes addressing behavior • When behavior impedes learning of student or others team must consider strategies including PBIS to address the behavior. • PBIS is a comprehensive approach with positive behavioral strategies and supports to address behavior • Functional behavioral assessments are a key component to PBIS. • FBA’s are required in some circumstances with discipline and should be used when assessing behavior and ways to address it.

21. IDEA - PBIS • Discussion about appropriate assessments, interventions and supports should occur in IEP team. • Students who require interventions, strategies or supports to address behavior should have that included in their IEP or behavior plan.

22. State laws • Some states have very specific laws and/or rules on restraints and other behavior interventions. • The laws or rules specifically define when restraints or interventions can be used and when they cannot. www.edlawrc.com has some listed. • NH does not. Does have a regulation prohibiting aversives, depriving measures, humiliation, or unsupervised confinement. Ed 1133.07(c)

23. Summary of Legal Requirements for Physical Restraints • Restraints should be viewed as a last resort and performed only when other less restrictive methods (such as positive behavioral interventions, strategies, or supports) have failed or cannot be implemented because of the emergency nature of the situation. • Restraints should be performed only to protect the student or others from imminent physical harm. • Restraints should be performed only for the amount of time necessary to resolve the danger to self or others.

24. Summary of Legal Requirements • Restraints should be performed with the least amount of force possible to protect the student and others. • Restraints should never be done to punish or force compliance with a rule just for compliance sake (as opposed to complying with a rule that involves protecting a student from imminent harm). • Restraints should only be performed by trained individuals.

25. Summary of Legal Requirements • Individuals making the decisions about whether to restrain or not to restrain must be qualified professionals who are competent by education, training or experience to make the decision. • Parents should be included in decisions about performing restraints when possible and notified as soon as possible after the restraint.

26. Summary of Legal Requirements • After a restraint, the school and the parent should meet to discuss what occurred and whether a plan should be developed or modified to address the behavior and prevent the need for future restraints. • If restraints are considered for students with disabilities, the student’s IEP team should meet and determine if they will be used and include the decision in a behavior plan, 504 Plan or IEP. • Restraints should then be performed, or not performed, pursuant to the provisions of the behavior plan, 504 Plan or IEP. • With exceptions for an emergency

27. IDEA • While preference for PBIS seems inconsistent with physical restraints, the USDOE has not prohibited them under the IDEA. • Courts also have allowed restraints under IDEA.

28. IDEA • Courts and administrative agencies have followed the IDEA’s preference for PBIS and positive interventions prior to using restraints • Find IDEA violations when restraints are unnecessary or inconsistent with student’s IEP

29. Teacher/Professional Liability What is a Tort? A civil wrong or injury Two main types: Negligence & Intentional

30. Negligence Four requirements: • Owe a duty • Conduct breaches duty • Breach is the actual and proximate cause of the injury • Damages

31. Duty • Teachers/educators do generally have a common law duty to protect students by providing reasonable supervision • scope of the duty is limited by what risks are reasonably foreseeable • As a general rule, a defendant is not liable for negligence if he or she could not reasonably foresee that their conduct would result in an injury or if their conduct was reasonable in light of what he or she could anticipate

32. Duty duty generally falls upon those school employees who have supervisory responsibility over students and who thus have stepped into the role of parental proxy

33. Duty • Aside from affirmative duty to protect also have duty to use due care to conduct self in a way that will not harm others • Reasonableness

34. Breach • Reasonable person standard • Objective • B < P x L • B = Burden or cost of taking precautions • P = probability • L = Injury • Person acts unreasonably when the burden of avoiding harm is less than the probability or that harm multiplied by the seriousness of the harm of it does occur

35. Negligence per se • If violate a statute or regulation can argue it is a breach of duty • Injury must be type statute intended to protect against • Plaintiff a member of class intended to be protected • Violation not excused • Compliance would cause more harm or be impossible

36. Causation • Actual cause is “but for” or “substantial factor” • Proximate cause • was it foreseeable? • were there intervening forces?

37. Damages • Plaintiff must be harmed by the unreasonable actions • Can be physical or emotional injuries • Pain and suffering • Emotional distress • Also a separate claim called negligent infliction of emotional distress

38. Defenses • Comparative negligence • P’s own negligence contributed to injuries • Assumption of the risk • Must know and appreciate the risks and assume them voluntarily

39. Intentional Torts • Assault • Acts intentionally cause • Reasonable apprehension of • Immediate harmful or offensive contact • Battery • Acts intentionally cause • Harmful or offensive contact • Harmful or offensive – inflict pain or impairment or reasonable person find offensive

40. Other intentional torts • False imprisonment • Keep person in a bounded area against their will • Intentional infliction of emotional distress • Extreme and outrageous conduct that causes severe emotional distress

41. Defenses • Consent – express or implied • Self-defense - immediate threat and response reasonable • Defense of others • Authority/ justification

42. RSA 627:6 JustificationCriminal Liability I. A parent, guardian or other person responsible for the general care and welfare of a minor is justified in using force against such minor when and to the extent that he reasonably believes it necessary to prevent or punish such minor's misconduct. II. (a) A teacher or person otherwise entrusted with the care or supervision of a minor for special purposes is justified on the premises in using necessary force against any such minor, when the minor creates a disturbance, or refuses to leave the premises or when it is necessary for the maintenance of discipline.

43. Justification Exception • Force must be reasonable given the situation • Objective standard • does not apply to the malicious or reckless use of force that creates a risk of death, serious bodily injury, or substantial pain.

44. Teacher Protection Act (a) LIABILITY PROTECTION FOR TEACHERS- Except as provided in subsection (b), no teacher in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if — (1) the teacher was acting within the scope of the teacher's employment or responsibilities to a school or governmental entity; (2) the actions of the teacher were carried out in conformity with Federal, State, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school;

45. Teacher Protection Act (3) if appropriate or required, the teacher was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice involved in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the teacher's responsibilities; (4) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher; and

46. teachers The term teacher' means-- (A) a teacher, instructor, principal, or administrator; (B) another educational professional who works in a school; (C) a professional or nonprofessional employee who — (i) works in a school; and (ii)(I) in the employee's job, maintains discipline or ensures safety; or (II) in an emergency, is called on to maintain discipline or ensure safety; or (D) an individual member of a school board (as distinct from the board).

47. Exceptions The limitations do not apply to any misconduct that: (A) constitutes a crime of violence or act of international terrorism for which the defendant has been convicted in any court; (B) involves a sexual offense, as defined by applicable State law, for which the defendant has been convicted in any court; (C) involves misconduct for which the defendant has been found to have violated a Federal or State civil rights law; or (D) where the defendant was under the influence (as determined pursuant to applicable State law) of intoxicating alcohol or any drug at the time of the misconduct

48. Questions • Questions? • Game time?