82 nd Legislative Session New Laws for Public School District Support Services Personnel

1. 82nd Legislative SessionNew Laws for Public School District Support Services Personnel Wesley Eby Johnson · Escamilla, Poneck & Cruz, L.L.P.

2. 82nd Legislative Session • www.legis.state.tx.us • Search Legislation: 82(R) 2011 • HB or SB and then the bill number provided • “Enrolled Text” • www.statutes.legis.state.tx.us • Code: Ie. Education, Penal, Government, etc • Chapter (first part of the statute: 25.12 is in Chapter 25) • Article/Section (2nd part of the statute number)

3. TRUANCY PREVENTION MEASURES; REFERRAL AND FILING REQUIREMENT.  • SB 1489 • Clarifies that truancy laws apply to students 12-17 year old • Requires a school district to adopt truancy prevention measures designed to: (1)  address student conduct related to truancy in the school setting; (2)  minimize the need for referrals to juvenile court for conduct described by Section 51.03(b)(2), Family Code; and (3)  minimize the filing of complaints in county, justice, and municipal courts alleging a violation of Section 25.094.

4. Referrals or Complaints to Court Must Now: • Be accompanied by a statement from the student's school certifying that: • 1.  the school applied the truancy prevention measures adopted under Subsection (a) to the student; and • 2.  the truancy prevention measures failed to meaningfully address the student's school attendance; and • 3. specify whether the student is eligible for or receives special education services under Subchapter A (Special Education Program), Chapter 29 (Educational Programs). • Population requirement has also been lowered from 2 million to 1.75 million in counties where truancy complaints are required.

6. When in Doubt – Sit them Out! • HB 2038 • Adds Subchapter D to Ch. 38 of Texas Education Code • Beginning with 2011-2012 School year • Natasha’s Law • Concussion Oversight Team • Return-to-Play Protocol based on peer reviewed scientific evidence • Following force or impact believed to have caused a concussion

7. Concussion Oversight Team • At least one physician • And one or more of the following (to the greatest extent practicable): • Athletic Trainer • Advanced Practice Nurse • Neuropsychologist • Physician Assistant • Athletic trainer if one employed by the school

8. To the Greatest Extent Practicable Taking into Consideration: • Population of metropolitan statistical area in which the school district is located • District enrollment • Availability and accessibility to licensed health care professionals in the district area

9. Training Regarding Concussions Required • Evaluation • Treatment • Oversight • At the time of Appointment • Required Concussion form for each student participant in an interscholastic athletic activity

10. www.uiltexas.org • UIL Concussion Management Protocol Implementation Guide • Frequently Asked Questions • Free Training Courses

11. Davis v. Carter, 555 F.3d 979  (11th Cir. 2009) • Student participated in a voluntarily football workout • “intense and unreasonable” workout • No custody or control issues • No discipline issues

12. Goss v. Alloway Township School, 2011 U.S. Dist. LEXIS 11420 (Dist. Ct. N. J. 2011) • Student got a concussion on the school playground • Unassisted and unsupervised • Section 1983 claim against the District • All claims denied • Different Facts matter

13. Bullying • HB 1942 amends TEC 21.451, 25.0342, 37.001(b), 37.083 and adds TEC 37.0832 • Begins with the 2012-13 school year • Req’d staff development training may include prevention, identification, response to and reports of incidents of bullying • Transfer of victims of bullying now is “transfer of students who are victims of or have engaged in bullying” • Bullies can be transferred to either another classroom or, in consultation with parent, another campus

14. Defines “bullying”: • Engaging in written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a school-sponsored or school-related activity, or in a vehicle operated by the district and that: • (1) Has the effect or will have the effect of physically harming a student, damaging a student’s property or placing a student in reasonable fear of harm to the student ‘s person or of damage to the student’s property or • (2) Is sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.

15. Conduct described is “bullying” if: • Exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and • Interferes with a student’s education or substantially disrupts the operation of a school • Policies and any necessary procedures must be developed and included annually in student and employee handbooks and district improvement plan.

16. More regarding policy and procedure regarding bullying: • Procedures for reporting bullying must be posted on website • Policy must be devped that prohibits bullying and retaliation against good faith reporters of bullying • Sets out counseling options for victims, witnesses, and bullies • Prohibits students who reasonably defend selves from bullies from being disciplined (after investigation determines self-defense involved) • Requires compliance with special education laws when disciplining students with disabilities for bullying

17. Procedures must be developed for: • Obtaining assistance and intervention in response to bullying • Providing notice of bullying incident to both parent and/or guardian of victim and bully w/in reasonable time after incident • Reporting and investigating an alleged incident of bullying and determining whether incident occurred.

18. Suicide Prevention • HB 1336 adds Subchapter O-1 to Ch. 161 of the Health and Safety Code • Early Mental Health Intervention & Prevention of Youth Suicide • Req’d training for counselors, teachers, nurses, administrators and other staff as well as law enforcement officers and social workers who regularly interact with students • New policy language regarding early mental health intervention

19. Policy: • Establishes procedures for providing notice within a reasonable time of identification of at-risk student • Designates liaison officer for purposes of identifying students in need of early intervention or prevention • Sets out counseling alternatives and must prohibit use of medical screening without prior consent • Must be included in student handbook and district improvement plan • Donations accepted but no anonymous donations • Effective 2012-13

20. Sanford v. Stiles, 2004 U.S. Dist. LEXIS 22948  (E.D. Pa. 2004) • Another student told counselor of the son's mention of suicide • Counselor spoke with him and informed the mother. • Son later asked who had contacted her about his state of mind, the counselor refused to provide the information and took no further action. • The son took his life later that day. • The mother alleged that by holding herself out as a resource and then improperly evaluating the son's psychological state, the counselor increased the danger of his loss of life in violation of the 14th Amendment

21. More re: Stiles…. • The court found that there was a relationship between the state and the son • State Created Danger: Plaintiff must establish that: • (1) the harm ultimately caused was foreseeable and direct, (fact ??) • (2) the conduct of the state official was "so ill-conceived or malicious that it shocks the conscience" or at least rose to the level of deliberate indifference • (3) there existed some relationship between the state and the plaintiff, (Yes) and • (4) the state actor used her authority to create an opportunity that would not have otherwise existed for harm to come to plaintiff.

22. Hasenfus v. LaJeunesse, 175 F.3d 68 (1st Cir. 1999) • Attempted suicide at school after being disciplined in gym class • Left with permanent impairments • Allegations: failure to take preventive measures in light of known concerns (or should have known) • “inaction rarely gives rise to liability unless some special duty of care exists” • Schools ≠ Mental facilities or Prisons • In loco parentis

23. Duty to Protect? • “Perhaps in narrow circumstances there might be a "specific" duty” • If a student suffered a heart attack in the classroom, and the teacher knew of her peril, could the teacher merely leave her there to die without summoning help? • If a six-year old child fell down an elevator shaft, could the school principal ignore the matter? • Court requires “pungent” facts

24. More from the Court…. • Attempted suicide by school-age children is no slight matter; but it has no single cause and no infallible solution. • Different schools will react differently, depending upon resources, available information, and the judgment of school and public health authorities, who may fear making a bad situation worse. • Absent a showing that the school affirmatively caused a suicide, the primary responsibility for safeguarding children from this danger, as from most others, is that of their parents; and even they, with direct control and intimate knowledge, are often helpless. • Possibly there was school  negligence here--one would need more information to make a judgment--but negligence is not a due process violation.

25. Severe Food Allergies • HB 742 adds TEC 25.0022 • Defines “severe food allergy” – a dangerous or life-threatening reaction of the human body to a food-borne allergen introduced by inhalation, ingestion, or skin contact that requires immediate medical attention • Districts required to request (via form or otherwise) that parent disclose whether child has food allergy or severe food allergy and specify what it is and tell whether district needs to know so that district can take nec’y precautions

26. What else? • FERPA applies to information • Information to be maintained in child’s student records but not in health record maintain by district unless physician provides documentation • Registered nurse may make “appropriate notes” in health record regarding possible food allergy including a note that parent has notified district regarding possible food allergy • Applies beginning 2011-12 school year

27. Anaphylaxis • SB 27 adds TEC 38.0151 • Policies for care of certain students at risk for anaphylaxis (no later than 8/1/12) • Students with diagnosed food allergies • Based on guidelines devped by Commissioner of State Health Services in consultation w/ ad hoc committee no later than 5/1/12 • If district already has a policy, must review and revise as necessary to comply with guidelines

28. Anaphylaxis Guidelines • Cannot require district to purchase prescription medicine or any other expenditure than would result in a negative fiscal impact • Cannot require the administration of anaphylaxis medicine by district personnel unless it is prescribed to that student • No waiver of liability or immunity and no creation of liability or creation of cause of action against gvmntal entity or officers or employees • Guidelines must be posted on website

29. Students At Risk for Anaphylaxis • Ad Hoc committee = minimum of 12 members • 1 principal and 1 teacher / employed on campus in which student with a diagnosed food allergy at risk for anaphylaxis are enrolled • 2 parents of students at risk… • 1 member of a public school board • 1 superintendent

30. From the Dept of State Health Services: • Commissioner is selected committee members now • Committee finalized by 12/1/11 • Meeting 2/3/12 • Framework of guidelines developed • Final guidelines published on 5/1/12 • Friday Beat - Updates

31. Already LawAsthma or Anaphylaxis Medication:Texas Education Code 38.015 Students entitled to Possess and Self-Administer School Property or At School-Related Event Conditioned upon: Prescribed for student as indicated on prescription label A demonstration of skill level by student Self- administration in compliance with written instructions from physician or other health care provider Parental permission Doctor permission

32. Taylor v. Altoona Area Sch. Dist., 513 F. Supp. 2d 540 (W.D. Pa. 2007) Service Plan outlining Asthmatic Reaction Procedure (ARP): Given medication through inhaler prior to exercise & when symptoms present Be allowed to use nebulizer during school with assistance of school nurse Nurse (& appropriate medical provider) must be notified promptly of any related incidents, and actions taken in response Resuscitative efforts be administered if needed

33. Numerous claims against District after student’s death: • Nurse named individually • Deliberate indifference in medical emergency situations • Affirmative actions v. omissions • Section 1983 Claim - Official acting under color of state law caused deprivation of federal right • Interesting argument by individual defendants – no viable action against entity school district = no viable action against the individuals

34. Claims against Nurse: Acts were almost all omissions Unaware of deteriorating condition Deliberate indifference requires knowledge with which to draw inference of substantial risk of serious harm Failure to Train Theory explored Only specific allegations regarding refusal to allow student to contact parent or seek medical treatment PA – no self-administration law

35. Closer to Home…Garcia v. Northside ISD, 2007 US Dist. LEXIS 103 (W.D. San Antonio 2007) Daily Treatment Plan Student must carry inhaler at all times Student disabled? Case-by-case basis Negligence claim against nurse survived summary judgment

36. What Went Wrong? • PE Uniform didn’t have pockets but plan stated that student was to carry inhaler at all times • PE Instructor didn’t know about plan • Inhaler was in locker inside a locked area

37. Forms Already Required • Self Administration of Asthma Medication Form • Self-Administration Parental Assessment and Consent • School Asthma Action Plan • Emergency Plan

38. Parent Contributions to Individual Health Plans: • Medication, supplies, equipment, doctor’s instructions • Encourage parents to participate in training • Provide information and insight into the health plan

39. School Nurse Contribution: • Survey emergency cards and health card s and develop a list of students who may need health plan • Obtaining health data can be used with form and a letter • Develop and implement plan • Ask questions throughout year to ensure procedures are followed

40. What About Peanut Butter Bans? • “Life threatening” allergies • Mystic Valley Regional Charter, 40 IDELR 275 (OCR 2004) • Look at totality of facts • Age of student & peers • What does day look like – spend entire day in one room? • Don’t look at inconvenience to othersto determine reasonableness • How would modification affect others’ education?

41. Timing is Also Important • Saluda Sch. Dist. One, 47 IDELR 22 (OCR 2006) (another life threatening peanut butter allergy case) • Informed in spring of impending arrival – no plan and no training even after plan devised • Don’t wait until beginning of school year when health issues are serious • Beginning of year is BUSY • Plan can be developed in advance to give proper time for training

42. Children in the Conservatorship of the State • HB 826 adds TEC 33.904 • No later than 12/1/11, each district must appoint a district employee to serve as liaison officer to facilitate the enrollment into district or transfer to a public school of a child in the district who is a conservator of the state • Effective 9/1/11

43. Bill Analysis: • “When a child is placed in the conservatorship of the state, the child may be displaced from his or her school, depending on the location of available foster care.  This change can have a detrimental effect on the child's development, particularly given the circumstances that lead to state conservatorship.  Currently, there is no designated employee in a school district who monitors the transfer or enrollment of such children within public schools.  H.B. 826 seeks to ease the negative effects of school transfers on a child in the conservatorship of the state by appointing at least one school district employee as a liaison officer to facilitate the enrollment in or transfer to a public school of such a child.” 

44. Sexual Abuse Policy • SB 471 amends TEC 11.252 and 38.0041 and Tex. Human Resources Code 42.002. Adds 42.04261 and 42.0428 to Tex. Human Resources Code • District Improvement Plan must include policy addressing sexual abuse and other maltreatment of children • “And other maltreatment” – “abuse” and “neglect” as defined by Texas Family Code

45. More Policy Requirements • Policy must address methods for increasing staff, student and parent awareness regarding sexual abuse and other maltreatment of children. • Training must now include prevention and recognition techniques • Must be a part of new employee orientation and may be provided to district staff members annually (can be offered as part of required annual training under TEC 21.451) • Daycare center employees also covered

46. Required Training Components • At risk factors • Likely warning signs • Internal procedures for seeking assistance • Techniques for reducing risk • Community resources • District must maintain records that include name of each participating staff member

47. Interesting Element of Law • District employee cannot be subject to any disciplinary proceeding (TEC 22.0512(b)) resulting from an action taken in compliance with this section. • Requirements of section are considered to involve ministerial acts for purposes of immunity from liability under TEC 22.0511 • No limitation of immunity from liability under TEC 22.0511 • Effective 2011-12

48. HB 359 Also Relates to Special Education Restraint Laws • Previously, restraint law not applicable to peace officers….now they do apply if the peace officer is employed or commissioned by the school district or provides, as a schl resource officer, a regular police presence on a schl campus under a MOU between the district and local law enforcement • Reporting requirements to TEA if restraint occurs during law enforcement duties • Law Enforcement Duties = activities of a peace officer relating to the investigation and enforcement of state criminal laws and other duties authorized by Code of Criminal Procedure • Commissioner to adopt rules

49. HB 968 • Former “Serious or Persistent Misbehavior while in a DAEP” now obsolete • Permissive expulsion for conduct while in a DAEP starting 2012-13 school year and MOU with JJAEP for that year must include this information • Student engages in “documented serious misbehavior while on the program campus despite documented behavioral interventions” • “Serious misbehavior” will be defined

50. Serious Misbehavior • Deliberate violent behavior that poses a direct threat to the health and safety of others; • Extortion, meaning the gaining of money or other property by force or threat; • Conduct that constitutes coercion, as defined by Penal Code; or • Conduct that constitutes: public lewdness, indecent exposure, criminal mischief, personal hazing, or harassment of a student or district employee (all terms defined by Penal Code)