Tag: Legislation

Thinking of Protesting in Texas – Beware of the Proposed New House Bill

As many peaceful public protests are being held around the United States, we have recently witnessed tragedy can strike.  The 1st Amendment protects citizens’ rights to peacefully protest, with the limitations that the government can regulate the time, place, and manner in which the protest is conducted. See United States Supreme Court case Ward v. Rock Against Racism. 

How else might the government weaken the constitutional rights of peaceful protesters? On July 20th, prior to the horrific events at Charlottesville, Texas Representative Pat Fallon filed proposed legislation to protect motorists who hit demonstrators “blocking traffic in a public right-of-way” if the driver exercises “due care.”

As currently drafted, House Bill 250 would would not lessen criminal penalties for deadly hit-and-runs; however, an injured protester, who was found by a court to have been blocking traffic, would be unable to recover damages in a civil suit against a driver who was found by a court of law to have “exercised due care.”

CHAPTER 72A. LIABILITY ARISING FROM OPERATION OF MOTOR VEHICLE
Sec. 72A.001. INJURY TO PROTESTOR [sic]. (a) A person operating a motor vehicle who injures another person with the motor vehicle is not liable for the injury if, at the time of the injury:
(1) the person operating the motor vehicle was exercising due care; and
(2) the person injured was blocking traffic in a public right-of-way while participating in a protest or demonstration.
(b) This section does not affect a person’s liability for an injury caused by grossly negligent conduct.

This proposed bill will indirectly dilute the 1st Amendment protections of citizens by curtailing their ability to recover damages in the event of a civil lawsuit for medical treatment for fractures, amputations, traumatic brain injuries injury, spinal cord injury, and compensation  for rehabilitation, lost income, scarring and disfigurement, pain and suffering.  Currently in Texas, we have a type of comparative negligence law for cases involving pedestrians injured by drivers. Texas law allows pedestrian victims to recover for the proportion of fault not assigned to the plaintiff. Texas Rep. Fallon’s proposed bill would take the current law regarding injuries to pedestrians and apply a zero-liability result for drivers when their victims are participants of a demonstration.

 

Where Are Our Special Education Teachers?

I recently visited a popular job posting site and conducted a search for Special Education Teacher jobs in Houston, Texas. The results were amazing – 221 jobs in Houston waiting to be filled.  Why so many? Has the general population not realized the growing need for qualified people to care for our children?  Are our SpEd teachers burnt out from the extreme demands placed on them and have moved on? As I prepare to send my son back to school next week, I am relieved to know that his SpEd teacher is still at our school, but what about other schools in Texas?

In December 2015, the No Child Left Behind Act (2002) was replaced with the Every Student Succeeds Act (“ESSA”) with goals set to ensure students not only graduate from high school, but also attend college.  In order for this federal Act to succeed, states are encouraged to be innovative accountable for results.  According to their website, the Texas Education Agency (“TEA”) will attempt to fully implement ESSA by focusing on four goals: (i) improving our low-performing schools; (ii) tying high school success to a future with college and a career; (iii) getting back to basic reading and math; and most importantly (iv) “recruiting, supporting and retaining teachers and principals.”

As a parent of a child with special needs, your voice should be heard during this planning process.  Provide feedback on the key policy decisions concerning your child’s education. We need keep our SpEd teachers from leaving their professions by paying these teachers proper compensation for all that they do every day with our kids. We need to attract additional skilled professionals and paraprofessionals.

ACT NOW – The Texas Education Agency is now accepting comments on the ESSA State Plan until August 29th.

Senate Vote Texas Vouchers for School

Parents,

All your work from years of ARD meetings, IEPs, and lawsuits will disappear once your student receiving special education services from public school uses vouchers for private school education. Private schools are not forced to follow the laws protecting your child’s education rights.

Click here to listen to the call from Filis Law Firm’s managing attorney Leona Filis to Pacifica Radio encouraging Texans to call their senators and tell them to vote NO to public school vouchers.

This segment was taken from the 7/24/2017 broadcast found at http://kpft.org/programming/newstalk/open-journal/

The Texas School Voucher proposal passed 19-12 in the state senate. The next step is the Texas House.  Please contact your representatives.

COPAA alert about Medicaid and Students with Disabilities

As a parent with a child with autism and ADHD, I find myself joining many groups for parents of children with special needs. One such group is COPAA – Council of Parent Attorneys and Advocates. From time to time, I receive notifications and articles from COPAA discussing pending legislation that could potentially impact my family. Below I am sharing such a notification/alert.

COPAA Logo

Protecting the Legal and Civil Rights of Students with Disabilities and their Families

(Please feel free to share this alert)

 

Dear Leona:

The U.S. Senate is currently negotiating a health care bill to replace the Affordable Care Act. There is support in the Senate to follow the House and reduce federal Medicaid spending by 25 percent by distributing Medicaid funds through a block-grant or a per-capita cap, which would shift costs to states and cut Medicaid by $4 billion each year! COPAA has advocated against these cuts and we need you to act with us.
Medicaid and Students with Disabilities

Medicaid permits payment to schools for certain medically necessary services provided to children under the Individuals with Disabilities Education Act (IDEA) through an individualized education plan (IEP) or individualized family service plan (IFSP). Schools are eligible to be reimbursed for direct medical services to Medicaid eligible students with an IEP or IFSP. In addition, districts can be reimbursed by Medicaid for providing Early Periodic Screening Diagnosis and Treatment Benefits (EPSDT), which provides Medicaid eligible children under age 21 with health screening, diagnosis and treatment services such as vision, hearing and more. Many schools and districts rely on Medicaid to provide services and to pay for certain personnel (e.g. school nurse, aides); to purchase and update specialized equipment; and to purchase and/or provide assistive technology and items needed for each child to access the school curriculum alongside their peers

 

Visit our Medicaid in Schools page to learn more.

 

Please reach out to your Senators today! 

U.S. House Bill for Students with Visual and Hearing Challenges

Last month the 115th Congress was introduced to H. R 1120 called Alice Cogswell and Anne Sullivan Macy Act by  Pennsylvania Representative Matthew Cartwright.

Representative Cartwright previously introduced a similar bill in 2015; however, the 2015 bill was not enacted.

H.R.. 1120 focuses on the need to identify children who are deaf-blind, improve early intervention for affected infants and toddlers, and improve services for such children and their families. The proposed legislation would seek to serve children with a disability who is deaf or hard of hearing, with speech.  This eligibility language could be more inclusive than states’ definitions of disability.

Click here for the text of H.R. 1120.

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.

Has Your Child Paid the Price for Texas’ Lack of Special Education?

Policies of the Texas Education Agency (“TEA”) are under investigation by reporters and parents.  It is alleged that there has been an organized effort to keep eligible students in Texas from receiving special education services in public schools.  It has been argued that the goal was to save the TEA billions of dollars; however, this is at the expense of disabled students.

Earlier this year, the Center for Disease Control (“CDC”) stated it estimated 1 in 68 school-aged children in the United States have Autism Spectrum Disorder (“ASD”).  With diagnoses of ASD on the rise, the fact that Texas schools on average failed to reflect an increase in special education services is perplexing.  Many parents over the past few years have been informed that their children were not eligible to receive special education services despite parental concerns and outside diagnoses.

Parents have to know their rights.  The Individuals with Disabilities Act (“IDEA”) was originally enacted by Congress in 1975; improved in 2004.  Under IDEA, each state is charged with the obligation of identifying, locating and evaluating all children with disabilities in the state who need special education and related services.  Additionally, parents by referral, should identify their child as possibly needing special education and request an evaluation in writing.  After parents give consent to have their child evaluated, the evaluation must be completed within sixty days.

If parents disagree with the evaluation, the next step is to request an Independent Education Evaluation (“IEE”) at the public’s expense.  A new and independent evaluation of the student will evaluate the student.  The school can reject the parent’s objection to the school’s evaluation and file a due process complaint.

Frustrated parents can choose to remove their children from public schools and home-school or place their children in private schools or Applied Behavior Analysis clinics.  Without the supports and services in place for Texas students with disabilities, these students can lose the opportunity to reach their individual full potential as protected in IDEA.

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.

 

Cameras in the Classroom – Special Education News

Parents – the time has come to send your letters to your child’s school district and request surveillance cameras be placed in your child’s classroom.

The Department of Aging and Disabilities (“DADS”) released a report discussing Senate Bill 507 that allows parents, and others, to request that any self-contained SPED room have a video camera to protect the safety of students. Click here for more info on Page 41 of the Report DADS Report.

However, the Texas Education Agency (“TEA”) has a proposed new rule being Section 103.1301, currently still in the rule adoption process. The proposed rule is offered for clarification of the Texas Education Code Section 29.022 regarding Video Surveillance of Certain Special Education Settings. Once the rule is adopted, it will be published in the Texas Register at the Texas Secretary of State website.  For more information of the proposed 19 Texas Administrative Code Section 103.1301, go to TEA Proposed New 19 TAC Section 103.1301.

You as parents of students receiving special education services should act now. Gather the contact information for your school’s principal and Special Ed director for the district. If your child is a student in Spring Branch, I have the district contact information.

Contact me and I will share an example of the Camera Request Letter.