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Inquiry Analysis &
A M E M B E R S H I P S E R V I C E O F T H E N S B A C O U N C I L O F S C H O O L AT TO R N E Y S

STUDENTS WITH DIABETES IN SCHOOLS
June 2005
Students with Diabetes in Schools ......................1 The Deadline Approaches: What Do We Do with “Non-Highly Qualified” Teachers ..........................6 2005 NSBA Council of School Attorneys’ Advocacy Seminar ..........................................................7 What’s New from COSA? ..........................................8 Call for Proposals for NSBA Annual Conference ..........................................................................8 Audio Conference: Complying with USERRA in the School Context..............................8

James A. Rapp, Hutmacher & Rapp, P.C., Quincy, Illinois

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f every 400 to 500 children in America’s school, at least one has type 1 diabetes. A growing number of children have another form of diabetes – type 2. Diabetes is among the most commonly encountered chronic diseases faced by children and, so too, the schools they attend. Attorneys who advise schools confront a number of recurring issues: s Does a student with diabetes have a disability? s What accommodations or related services must be provided? s To what extent may diabetes care tasks be performed by non-nursing school staff? If a single theme permeates the answers to these questions, it is that decisions concerning children with diabetes must be based on individualized determinations. The sidebar (right) contains more information about diabetes.

What is Diabetes? Diabetes is a chronic disease. The body does not make or properly use insulin, a hormone needed to convert sugar and other food into energy. Diabetes may lead to serious long term and short term complications caused by blood glucose levels that are too high (hyperglycemia) or too low (hypoglycemia). When a child is out of his or her target blood glucose range, his or her ability to concentrate and learn is affected. Serious immediate consequences, such as brain damage or death, can also occur if not immediately treated. Diabetes takes two major forms: Type 1 diabetes exists when the body’s immune system destroys pancreatic beta cells that make insulin. It most often develops in children and was once called juvenileonset diabetes. Those with type 1 diabetes require multiple administrations of insulin each day. Type 2 diabetes involves an inability to produce sufficient, or properly use, insulin. While ordinarily developed in adulthood, type 2 diabetes is becoming more common in children and adolescents. For some, this form of diabetes may be controlled through diet and exercise. Others are also required to take oral medications, insulin, or both. Type 1 diabetes care is not a “take-one-a-day” disease. It must be managed 24 hours a day, 7 days a week because of an ongoing challenge to keep blood glucose levels within a target range. This requires checking glucose levels multiple times a day. Checking involves placing a droplet of blood (obtained by pricking the skin, usually the finger, with a lancet) on a test strip that is read by a special meter. Guided by the results, a careful balance of nutrition, insulin, exercise and activity, must be followed to avoid hyperglycemia or hypoglycemia. Insulin is provided through multiple daily injections or an insulin pump that provides a continuous flow of insulin. Those with type 2 diabetes follow a similar regime, although diet and exercise and/or oral medication may be sufficient. Maintaining a balance of food, activity, and medication is a constant challenge for students with diabetes and their families, and such a balance cannot be maintained perfectly at all times. Hyperglycemia – a high – may occur because of not enough insulin, food not covered by insulin, stress, illness, menstrual cycles, or injury. Hypoglycemia – a low – may be caused by too much insulin, delaying or skipping a meal or snack, or intense physical activity. For school-aged children, hypoglycemia is the most common and of immediate concern. If severe, this can result in loss of consciousness and is life-threatening. Highs and lows or, for some, uncontrolled fluctuations (sometimes referred to as “brittle” diabetes) clearly affect cognitive functioning and, thus, school performance, as well as raise serious long and short term health concerns.

National School Boards Association’s Council of School Attorneys 1680 Duke Street Alexandria, VA 22314-3493 (703) 838-6722 Fax: (703) 548-5613 E-mail: [email protected] Web site: http://www.nsba.org/cosa

THIS IS THE FINAL ISSUE OF INQUIRY & ANALYSIS YOU WILL RECEIVE IN the MAIL.
The July 2005 issue of Inquiry & Analysis will only be available to members on COSA’s website. You will receive an e-mail when the issue is ready to be downloaded. If we do not have your e-mail address please send it to Brenton Radford, [email protected]

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Inquiry & Analysis
Continued from page 1 (Diabetes ...) Does a Student with Diabetes have a Disability? Students with diabetes may be considered covered under any or all of the following laws: s Americans with Disabilities Act (ADA); Section 504 of the Rehabilitation Act (Section 504); or, Individuals with Disabilities Education Act (IDEA). s s

June 2005

Inquiry AnalysiS &
A Membership Service of the NSBA Council of School Attorneys

the endocrine system (which is affected by diabetes) that “substantially limits one or more major life activities” which, again, includes “learning.”11 In applying the second requirement – the impairment “substantially limit[s]” a major life activity – the effect of a physical impairment, not merely a medical diagnosis, is critical.12 In Sutton v. United Air Lines, Inc.,13 an employment case, the Supreme Court found that where mitigating measures correct an impairment (in that case, corrective lenses worn to correct myopia), the impairment would not be a disability. When corrected, the impairment is not substantially limiting. The Supreme Court, in Sutton, mentions diabetes. Without considering corrective measures, it observed, “courts would almost certainly find all diabetics to be disabled, because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities.” Therefore, it continued, a “diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes.”14 This statement has lead some to mistakenly assume that those with diabetes – even in schools – are not covered by federal anti-discrimination laws. What the Supreme Court instead requires is an individualized assessment including consideration of any negative affects from mitigating measures. Based on such an assessment, diabetes can be and has been found to be a disability in the employment setting.15 Schools too must make an individualized assessment. However, in its Guidance on Sutton’s application to schools, the Department of Education’s Office for Civil Rights (OCR) distinguishes those mitigating measures which a student may use without any action or assistance by the school from those reasonable modifications, academic adjustments, auxiliary aids and services, or related aids and services that schools are required to provide under Section 504 or the ADA.16 In evaluating whether a student’s impairment substantially limits a major life activity, OCR will not consider the impact of (or mitigation from) those measures requiring school action or assistance. It considers only those independently available to a student. Applying its construction to children with diabetes, OCR concludes, for example, that “permission to monitor diabetes or inject

Lisa E. Soronen, Editor and Staff Attorney NSBA Council of School Attorneys 2005-2006 Officers David A. Farmelo, Chairman Deryl W. Wynn, Chairman-elect Jay Worona, Vice Chairman Sam S. Harben, Jr., Secretary NSBA Officers and Staff Joan E. Schmidt, NSBA President Anne L. Bryant, NSBA Executive Director Joseph S. Villani, NSBA Deputy Executive Director Julie Underwood, NSBA Associate Executive Director and General Counsel Susan R. Butler, Director, Legal Services & Council of School Attorneys Naomi E. Gittins, Senior Staff Attorney Thomas Hutton, Staff Attorney Lyndsay Andrews, Manager, Council of School Attorneys Thomas Burns, Legal Assistant
About the NSBA Council Of School Attorneys Formed in 1967, the NSBA Council of School Attorneys provides information and practical assistance to attorneys who represent public school districts. It offers legal education, specialized publications, and a forum for exchange of information, and it supports the legal advocacy efforts of the National School Boards Association. Inquiry & Analysis is a membership service of the Council, or can be purchased by subscription for $120 per year. Published electronically ten times a year, Inquiry & Analysis does not appear in March or September. Copyright © 2005 by the National School Boards Association. All Rights Reserved. ISSN: 1069-0190

The ADA applies to public and private schools except those operated by or as religious institutions. Section 504 applies to any school, public or private, that receives federal funds. IDEA is a federal funding program that applies to public schools. What qualifies as a disability under the ADA and Section 504 differs from IDEA. Under IDEA, a student must not only have an impairment, but also, “by reason thereof, needs special education and related services.”1 Diabetes is clearly an impairment under IDEA.2 IDEA may apply where a child with diabetes has difficulty paying attention or concentrating in the learning environment because of recurring high or low blood glucose levels or because the student misses a great deal of class time because of diabetes care or complications from diabetes.3 More often, children with diabetes are protected only under the ADA and Section 504. The ADA and Section 504, which are anti-discrimination laws, define disability more broadly. They establish “nearly identical” rights.4 The ADA provides that a “disability” includes “a physical or mental impairment that substantially limits one or more of the major life activities.”5 This creates two requirements, first, that there be a physical or mental impairment, and second, that this impairment substantially limit a major life activity. With respect to the first requirement – an impairment – ADA regulations specifically include diabetes as a “physical impairment.”6 Major life activities recognized by regulations and the courts include learning.7 Other learning-related activities, such as reading8 and thinking,9 are also considered major life activities. The major life activity need not be education-related, and diabetes can also impact life activities such as eating and caring for oneself.10 Section 504 has a similar definition of “disability” and expressly extends protection to those with a physical impairment to

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insulin” falls into the category that requires school action or assistance. Therefore, diabetes care in schools usually is not a mitigating measure that can be taken into consideration in determining if a student is covered by Section 504 or the ADA. OCR explains that “[w]hen some action or permission on the part of the school would be required before a student could use a measure ... the measure is effectively unavailable to the student....” OCR provides these directions: s If there is a mitigating measure involved, determine if the student can use the mitigating measure independently in the school setting. s Does the student need the school to take some action (such as provide a related aid or service, or modify a policy, including giving permission to use the mitigating measure during school hours, on school grounds) in order to use the mitigating measure? s If the student needs the school to take some action, do not consider the effect of the measure (positive or negative) in determining if the student has an impairment that substantially limits him or her in any major life activity. Another factor, OCR explains, is whether a mitigating measure is effective all the time. Where there is a risk of failure or inconsistency then the student may still be substantially limited in a major life activity despite the use of even an independently available measure. As one example, OCR observes that “a student with diabetes who injects insulin at home may still need an insulin injection, on an emergency basis, at school.” Emergency coverage would be a required accommodation. Although an individualized assessment is necessary, it is difficult to imagine any circumstances where a student with type 1 diabetes would not be considered to have a disability under Section 504 and the ADA. Numerous OCR decisions have found students with this form of diabetes to be covered.17 This is understandable because access to mitigating measures requires accommodation by the school. Also, “all individuals who take insulin are subject to insulin reactions” including “insulin shock which, when it happens, substantially limits a major life activity by impairing a person’s ability to walk, see, hear, speak, breathe, learn, and/or work.”18 Children with type 2 diabetes also may be found to have a disability, but it has been held that an adult student was not covered where the student had a mild form of the disease that placed few restrictions other than maintaining a well-balanced diet and restrictions on consumption of certain foods.19 As such, an individualized assessment of whether diabetes results in a substantial limitation of a major life activity can be important. What Accommodations or Related Services Must be Provided? Under both Section 504 and the ADA, students with disabilities are to be provided equal educational opportunity. Unlike IDEA, this obligation is based on the fact that a child has a disability and not necessarily that the child has difficulties in learning. A top student with diabetes is entitled to accommodations.20 Assuring equal educational opportunity may require that aids, benefits, or services be provided. These are required both in school and with respect to other activities, such as field trips or extracurricular activities. The overriding theme, once again, is that these accommodations be determined considering each student’s individual needs. The accommodations plan for a child – a Section 504 Plan – is developed by a group of school officials knowledgeable about the child. While an evaluation may be required, once a child is known to have diabetes the process often immediately involves a review of the health care plan developed by the student’s physician and family. The health care plan, sometimes referred to as a “Diabetes Medical Management Plan,” is then implemented in the school setting through the Section 504 Plan. A child’s health care plan might provide for glucose checking each day at ten o’clock; the Section 504 Plan will then provide whether the student self-checks or the check is performed by school personnel. Blanket rules cannot dictate a plan. A rule prohibiting all in-class blood glucose testing, for example, is invalid,21 but consideration of a student’s age, capabilities, willingness to selftest, maturity level, and experience with selftesting might well justify requiring that testing occur in the presence or with the assistance of school personnel.22 Health and safety concerns, if relevant, must be considered as part of the individualized determination.23 Continues on page 4...

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Inquiry & Analysis

June 2005

Continued from page 3 (Diabetes...) Although recognizing that delegation should be approached cautiously and professionally, the National Council of State Boards of Nursing accepts that delegation may be appropriate in some circumstances with an appropriate protocol. It recommends these “Five Rights of Delegation”:29 s s Right Task – One that is delegable for a specific patient. Right Circumstances – Appropriate patient setting, available resources, and other relevant factors considered. Right Person – Right person is delegating the right task to the right person to be performed on the right person. Right Direction/Communication – Clear, concise description of the task, including its objective, limits, and expectations. Right Supervision – Appropriate monitoring, evaluation, intervention, as needed, and feedback.

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Accommodations vary. One OCR complaint resolution, for example, provided that students with diabetes be permitted to: “see school ADCPs [Authorized Diabetes Care Providers] or medical personnel upon request; self-test, self-treat and self-monitor in the classroom and during all school sponsored activities, field trips and programs; eat snacks and drink beverages to prevent hypoglycemia; miss school without consequences for diabetes-related care, provided the absence is medically documented; and be excused to use a restroom, as necessary.”24 Another allowed blood glucose monitoring, relaxation of snack policies, providing food serving size and carbohydrate information, and administration of medication.25 Still others require training of non-nursing staff to provide diabetes care, including emergency care, and for the availability of staff not only at school but also at school sponsored field trips and extracurricular activities.26 These accommodations are quite common but, again, an individualized review is required. To What Extent May Diabetes Care Tasks be Performed by Non-Nursing School Staff? Whether and to what extent diabetes care tasks may be performed by non-nursing staff has become a frequently raised question.

A number of interested organization take a different view on these issues. The American Diabetes Association, which is dedicated to the prevention, cure, and treatment of diabetes, maintains that diabetes care tasks may be safely and appropriately delegated to non-nursing school personnel. Acknowledging the desirability of having care provided by a school nurse, the Association recognizes that many schools do not have a nurse assigned full time and, even if they do, a nurse will not always be available (e.g., at field trips and extracurricular activities). To ensure that children with diabetes enjoy equal educational opportunity, and are medically safe, it concludes delegation is critically necessary. The National Diabetes Education Program (a federally sponsored partnership of the National Institutes of Health, the Centers for Disease Control and Prevention, and more than 200 partner organizations) takes a view similar to the American Diabetes Association.27 Nursing professionals are not in lockstep on the issue. The American Federation of Teachers, which represents some nursing professionals, has argued as part of a campaign to have a nurse in every school that nonmedical school employees should not be trained or allowed to provide diabetes care.28

Few would argue with these cautionary points. Most importantly, nonmedical school staff must be trained and monitored by the school nurse or a qualified health professional. Assignment of diabetes care task must take into account state laws relevant in determining what tasks may be performed by nonmedical personnel. Permeating the issue are health and safety concerns, the realities of many school settings (particularly in rural areas), the desire of all children to participate in more wide-ranging activities, and efforts to expand the presence of school nurses. A few points to keep in mind: s Delegation usually does not arise with respect to diabetes care alone, but instead with respect to delegation of health care or nursing tasks in general. s Most states recognize that some delegation is permitted of nursing care tasks, but the nurse or other professional maintains supervisory responsibility and must be confident that the personnel to whom a task is delegated is properly trained and capable of providing the service. s Not all diabetes care tasks are considered a nursing task and, so, delegation is not always an issue. Blood glucose testing, for example, is seldom considered a nursing task.30

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s Check state law and its application by state nursing boards. See the box below for more information on state laws. Restrictions on delegation are not an excuse to ignore Section 504 or the ADA. If, for example, state law or school policy prohibits appropriately trained, non-licensed, school personnel from administering insulin, the school must then have a nurse or other licensed medical professional available to do so or provide some other suitable alternative that allows an otherwise appropriate placement.31 A policy permitting only school nurses to administer injections cannot be the exclusive or controlling factor in determining a child’s placement.32

Some helpful information regarding diabetes and legal issues, all available on the Internet, include: s The American Diabetes Association’s website, providing general and legal (including state specific) references.37 s Helping the Student with Diabetes Succeed: A Guide for School Personnel, published by the National Institutes of Health and the Centers for Disease Control and Prevention.38 s Diabetes Care Tasks at School: What Key Personnel Need to Know, available online from the American Diabetes Association.39 s Model Section 504 Plan, prepared by the American Diabetes Association and the Disability Rights Education & Defense Fund.40 s Grade Specific Sample Section 504 Plans, available from the Children with Diabetes website.41 The guiding star remains an individual assessment. Only in that manner will schools determine and, importantly, meet their obligations to children with diabetes. I&A
End Notes
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See, e.g., New York City (NY) Bd. of Educ., Complaint No. 02-89-1128, 16 EHLR 455 (OCR 1989); Bement (IL) Comty. Unit Sch. Dist. #5, Complaint No. 05-89-1087, EHLR 353:383 (OCR 1989); Maine Sch. Admin. Dist. #25, Complaint No. 01-93-1170, 20 IDELR 1354 (OCR 1993). Gasconade County (MO) R-I Sch. Dist., Complaint No. 07-91-1061, 18 IDELR 313 (OCR 1991). Northeastern Junior Coll., Complaint No. 08-97-2073 (OCR 1997) (student with mild form of type 2 diabetes does not have a disability for purposes of Section 504 or the ADA). Lisbon Sch. Dept., 33 IDELR 172, 102 LRP 7071 (Maine SEA 2000). Irvine (CA) Unified Sch. Dist., Complaint No. 09-94-1251, 23 IDELR 1144 (OCR 1995) (rejecting rule prohibiting in-class blood glucose testing). Buchanan County (VA) Public Schs., Case No. 11-03-1051, 103 LRP 56159 (OCR 2003) (resolution agreement). Santa Maria-Bonita (CA) Sch. Dist., Complaint No. 09-97-1449, 30 IDELR 547 (OCR 1998) (school adopted agreement for individual assessment); Irvine (CA) Unified Sch. Dist., Complaint No. 09-941251, 23 IDELR 1144 (OCR 1995) (issues arising from guidelines under the federal Occupational Safety and Health Act, the disruptiveness to the overall class caused by testing, and the safety of other students, must be considered as part of individualized evaluation). Onslow County (NC) Public Schs., Complaint 11-02-1035, 37 IDELR 161, 102 LRP 17975 (OCR 2002). Springboro (OH) Cmty. City Sch. Dist., Complaint 15-02-1194, 39 IDELR 41, 103 LRP 19483 (OCR 2003). Loudoun County Pub. Schs., Complaint No. 11-99-1003 et al. (OCR 1999). NATIONAL INSTITUTE OF HEALTH & CENTERS FOR DISEASE CONTROL AND PREVENTION, Helping the Student with Diabetes Succeed: A Guide for School Personnel (June 2003), at 10, available at http://www.ndep.nih.gov/ diabetes/pubs/Youth_SchoolGuide.pdf. "The diabetes medical community has found that nonmedical personnel...can be trained and supervised to safely provide and assist with diabetes care tasks in the school setting, including blood glucose monitoring, insulin and glucagon administration, and urine ketone testing. These nonmedical school staff members should be trained and monitored by the school nurse, or a qualified health professional. Assignment of diabetes care tasks must take into account state laws that may be relevant in determining what tasks may be performed by nonmedical personnel. " AMERICAN FEDERATION OF TEACHERS, The Diabetes Dilemma: Demanding the Best for Our Children (2004), available at http://www.aft.org/ pubs-reports/healthcare/diabetes_booklet_a.pdf. NATIONAL COUNCIL OF STATE BOARDS OF NURSING, Delegation: Concepts and Decision-Making Process National Council Position Paper (1995), available at http://www.ncsbn.org/regulation/ uap_delegation_documents_delegation.asp. See, e.g., CAL. BUS. & PROF. CODE § 2058(b) (blood glucose testing not prohibited under "Medicine" Chapter of the Business & Professions Code). Conejo Valley (CA) Unified Sch. Dist., Complaint No. 09-93-1002, 20 IDELR 1276 (OCR 1993); Gettysburg Area Sch. Dist., Case 1984/02-03, 103 LRP 9599 (Pa. SEA 2003). Conejo Valley (CA) Unified Sch. Dist., Complaint No. 09-93-1002, 20 IDELR 1276 (OCR 1993). See, e.g., N.C. GEN STAT. § 115C-12(31). See, e.g., MONT. CODE § 20-5-412. See, e.g., Ind. Code § 34-30-14-2. See, e.g., CAL BUS. & PROF. CODE ß 2058(b). http://www.diabetes.org. http://www.ndep.nih.gov/diabetes/pubs/Youth_SchoolGuide.pdf. http://www.diabetes.org/advocacy-and-legalresources/ discrimination/school/schooltraining.jsp. www.diabetes.org/uedocuments/504-plan-2004.pdf. http://www.childrenwithdiabetes.com/504/.

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Where Are State Laws Affecting Diabetes Care Found?
State law may consider specific accommodations and also address the delegation of diabetes care tasks. A growing number of states have these provisions, among them California, Connecticut, Indiana, Massachusetts, Montana, North Carolina, Tennessee, Virginia, Washington, Wisconsin, and Oregon. Some states, such as Georgia, Illinois, Kentucky, Michigan, Minnesota, Missouri, Montana, New Jersey, New York, Vermont, and Wisconsin, have published guides regarding diabetes or medications in schools. Laws relating to diabetes care are sometimes part of a comprehensive diabetes care program.33 Others address discrete issues, such as glucagon administration,34 while still others are tucked away in provisions regarding immunity,35 licensing statutes,36 or other isolated provisions. Clearly, these need to be considered. What Are Helpful Resources About Diabetes in Schools? Questions about diabetes care in schools are not likely to diminish. The American Diabetes Association call center reportedly receives almost 90 calls, on average, every month from families presenting concerns about the treatment of their children in schools. Therefore, it is important for school attorneys to become familiar with this area.

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20 U.S.C. § 1401(3); 34 C.F.R. § 300.7(a)(1). 34 C.F.R. § 300.7(c)(9) (IDEA regulations define an impairment to include "having limited strength, vitality or alertness" that "[i]s due to chronic or acute health problems such as ... diabetes." ). Lisbon Sch. Dept., 33 IDELR 172, 102 LRP 7071 (Maine SEA 2000). Rothman v. Emory Univ., 123 F.3d 446, 451 (7th Cir. 1997). 42 U.S.C. § 12102. 28 C.F.R. §§ 35.104 (Title II), 36.104 (Title III). 28 C.F.R. § 35.104; Lawson v. CSX Transportation, 245 F. 3d 916, 923 (7th Cir. 2001). Bartlett v. New York State Bd. of Law Examiners, 2000 U.S. App. LEXIS 22212 (2d Cir. 2000). Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999). Nawrot v. CPC International, 277 F.3d 896 (7th Cir. 2002) (thinking and caring for one's self); see note 15 (eating). 34 C.F.R. § 104.3(j). In the absence of an actual disability, a person also may be considered to have a disability if he or she has a record of an impairment that substantially limits one or more major life activities, or is regarded as having such an impairment. 29 U.S.C. § 705(20) (Section 504); 42 U.S.C. § 12102(2) (ADA). 527 U.S. 471 (1999). 527 U.S. at 483. See also Nawrot v. CPC International, 277 F.3d 896 (7th Cir. 2002) ("diabetic status, per se, is not sufficient to qualify as a disability"). See, e.g., Branham v. Snow, 392 F.3d 896 (7th Cir. 2004); Lawson v. CSX Transportation, Inc., 245 F.3d 916 (7th Cir. 2001); Fraser v. Goodale, 342 F. 3d 1032 (9th Cir. 2003). U.S. DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS, Sutton Investigative Guidance: Consideration of "Mitigating Measures" in OCR Disability Cases, (Sept. 29, 2000), available at http://www.diabetes.org/ uedocuments/Sutton_Investigative_Guidance.pdf.
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Inquiry & Analysis

June 2005

The Deadline Approaches: What Do We Do With “Non-Highly Qualified” Teachers?
Melanie Petersen, Lozano Smith, Vista, California
[Editor’s Note: This article first appeared in the 2005 School Law Seminar handbook and was the basis of a presentation given by the author in San Diego on April 15, 2005. It will be included in SCHOOL LAW AND REVIEW 2005 that will be published for the first time on CD-ROM and distributed as a benefit of membership to all NSBA Council members. In addition to the papers presented at the 2005 School Law Seminar, the new CD will include archived issues of Inquiry & Analysis from January 2001 - May 2005 and will be “word searchable.”]

ers, new guidelines were issued by the U. S. Department of Education in 2004, allowing states to streamline their HOUSSE process to allow current multi-subject teachers to demonstrate their competency in each of their areas through one HOUSSE process. In response to the difficulty many states expressed in qualifying teachers within the timelines, the Department gave additional flexibility to rural teachers who teach more than one subject area. Teachers who are highly qualified in one subject area have three years to become qualified in the additional areas they teach.3 Despite this type of change, in December 2004 and January 2005, the U.S. Department of Education had declared that most of North Dakota’s elementary school and middle school teachers did not meet the highly qualified standard and that unless they met the standard they could not teach. Meetings between the North Dakota congressional delegation and U. S. Department of Education officials resulted in all teachers teaching in classrooms in February 2005 being declared qualified to teach. It was feared that many of the 3,800 elementary school teachers would retire rather than be subject to the training or testing requirements.4 In addition, the reauthorized Individuals with Disabilities Education Improvement Act of 2004 (IDEA) grants an exception to the 2006 deadline, for new special education teachers who teach two or more core academic subjects. These new teachers have two years after their date of hire to become “highly qualified” in their other core subject areas.5 Districts’ Options As the situation in North Dakota demonstrates, despite the increased flexibility, many school districts are or will be faced with teachers who either have not or are not willing to meet the highly qualified standards. Although it is unlikely another entire state’s teaching population will be summarily declared unqualified, what actions can a district take concerning teachers who are not making the grade?

Transfer Those districts that have been mindful of what was coming have tried to place in their collective bargaining agreements, transfer or discipline language that is broad enough to address what corrective actions may need to be taken under NCLB. Short of that foresight, what action can be taken? Given the broad scope of core academic areas and the specificity of licensing requirements, transfer of teachers not meeting the standards will generally not be practical or fix the problem. It is unlikely there are many options to move a core academic teacher to a non-core area (i.e. civics to physical education). Termination Termination or reduction in force (layoff) of teachers who are not complying with the “highly qualified” standard is an option for districts. Success will likely depend on the groundwork a district has laid in notifying and assisting their teachers in reaching compliance with the “highly qualified” standards. Ample opportunity should be given for teachers to be aware of what the standards are and to avail themselves of the opportunity to take classes, test out, or participate in HOUSSE. If the district has consistently provided written notice of its requirements and the timelines associated with those requirements, termination based on “failure to comply with laws, reasonable rules, and regulations” or similar discipline causes should be upheld. Additional causes may be available for those teachers who have positively indicated they are unwilling to comply with the requirements. Hearing officers or panels deciding these cases will need to be convinced the district had no other options for placement of these teachers. In addition, it may be possible to reduce or layoff teachers who have not met the requirements. State standards vary greatly on these processes, but given the shrinking options available to school districts, triers of fact may acknowledge the standards districts must adhere to and validate this type of action. Continues on next page ...

s we near the No Child Left Behind Act’s (NCLB) deadline of having all public school teachers “highly qualified” by the end of the 2005-06 school year, school districts should give great consideration to what action they will need to take regarding those teachers who do not meet the standards.

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NCLB’s “Highly Qualified” Standard NCLB requires that by the end of the 2005-06 school year, all teachers in core academic subject areas must be “highly qualified.” “Highly qualified” means being: (1) fully state licensed (no waivers of requirements, emergency, temporary, or provisional licenses); (2) holding a minimum of a B.A.; and (3) demonstrating subject matter competency. Core academic subjects include English, reading or language arts, mathematics, science, foreign language, civics and government, economics, arts, history, and geography.1 Subject matter competency can be demonstrated for current teachers through: (1) passing a state subject matter exam; (2) for middle and secondary teachers, completing coursework; or (3) using the high, objective, uniform, State standard of evaluation (HOUSSE).2 Meeting the Standard States have had the option of developing various methods to allow teachers to demonstrate competency through HOUSSE. The components of a HOUSSE program can combine an evaluation of a teacher’s teaching experience, professional development, and knowledge in their subject area. Faced with the impracticality of qualifying many teach-

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Conclusion Barring drastic action from the U. S. Department of Education, all core academic teachers must become “highly qualified” within the next twelve months. Faced with a closing deadline, school districts need to examine their options for dealing with teachers unable or unwilling to meet the “highly qualified”

standard. If they have not begun the campaign, districts must notify, educate, and assist their teachers in meeting these standards. Short of full compliance, districts must then begin a process for transferring or terminating the non-compliant. Given most state timelines, the process for releasing teachers should begin so that a final decision is reached in Spring 2006. I&A

End Notes
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20 U.S.C. § 9101(11). 20 U.S.C. § 9101(23). U.S. DEPARTMENT OF EDUCATION, Fact Sheet, New No Child Left Behind Flexibility: Highly Qualified Teachers (Mar. 22, 2004). Paulette Tobin, No Child Left Behind: Conrad Says its Time to Fix NCLB or ‘Start Over,’ GRAND FORKS HERALD, Feb. 5, 2005. 20 U.S.C. § 1119 (a)(2).

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2005 NSBA Council of School Attorneys’ Advocacy Seminar
Wyndham Chicago Hotel • Chicago, Illinois September 29-October 1, 2005 Registration: 1.800.950.6722 • Information: 703.838.6738 Email for information: [email protected] Hotel reservations: 1.800.WYNDHAM Web reservations: http://www.wyndham.com/groupevents/513NSBACOSA/main.wnt Join your colleagues from across the country for this comprehensive continuing legal education event. The advanced program will feature a halfday early bird update on the reauthorization of the IDEA, as well as general and concurrent sessions for the experienced practitioner. Here are just some of the features: • Easy access to Chicago’s O’Hare Airport via subway • Small session size maximizes interaction • Attend just the 3 hour briefing on the reauthorization of the IDEA, or the full seminar for a total of 12.5 hours of CLE including 1 hour of ethics • PRELIMINARY PROGRAM — Hazing, bullying & others forms of harassment (protecting students and reducing district liability) — An update on school finance litigation — Developments in FLSA claims — Role of board, administration, audit committee & legal counsel - post ENRON — Immigration law — School law practice (challenges & best practices) — Defending against retaliation claims — NCLB (sanctions, consequences of non-compliance, etc.) — Ethics, and more!! Program Will Be Posted on the Council Website Shortly (http://www.nsba.org/cosa) Schedule Thursday, Sept. 29 - 1-4:30 pm Thursday, Sept. 29 - 5-6:30 pm Friday, Sept. 30 - 8:30 am - 12 noon Friday, Sept. 30 -12 noon - 1:30 pm Friday, Sept. 30 - 1:30 pm - 4:30 pm Friday, Sept. 30 - 5:00 pm - 6:30 pm Saturday, Oct. 1 - 8:30 am - 12 noon Early Bird IDEA Session Opening General Session General Sessions State Association Counsel Luncheon & Meeting Concurrent Sessions Reception General Sessions

Extras: s Full seminar tuition as low as $200 when you bring 3 or more registrants from your firm—see registration form. s The Wyndham Chicago is an oasis of comfort & style in the heart of Chicago’s “Magnificent Mile.” s Great room rates: $170+ deluxe standard; $200+ corner king; and $270+ executive suite. s A spectacular Friday reception held at the Plaza Club atop the Prudential Building sponsored by: Canna & Canna; Hodges, Loizzi, Eisenhammer, Rodick & Kohn; Scariano, Himes & Petrarca; Seyfarth Shaw; and Franzcek Sullivan.

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Inquiry & Analysis

June 2005

WHAT’S NEW FROM COSA?
Couldn't attend the 2005 School Law Seminar? Four sessions, including ethics, will be offered in "video streamed" format via the web shortly. Watch the COSA website for further information. SCHOOL LAW IN REVIEW 2005 will be published on CD ROM along with back issues of Inquiry & Analysis from January 2001 to May 2005. This new "searchable" format will make finding the topic you want easier than ever. Through a special "COSA members only" service provided by SOURCELINK, SCHOOL LAW IN REVIEW articles from 2000 - 2005 will be posted on the COSA "members only" web page and will have direct footnote links to source documents in the Westlaw database at no charge to COSA members. If you haven't logged on to the COSA "members only" web page, you're missing your most valuable membership benefits. Call COSA today for log on assistance at 703-838-6722. I&A

Call for Proposals: NSBA Annual Conference & 2006 School Law Seminar
It's time to begin planning for NSBA's next Annual Conference, scheduled for April 8-11, 2006 in New Orleans, Louisiana. NSBA is calling for proposals from school districts and other organizations for high-quality, 75-minute breakout sessions that focus on topics of critical interest to school board members from all across the country. If you are interested in having a program or presentation considered for the 66th Annual Conference, visit http://www.nsba2.org/ acrfp2006/ to submit your proposal by 5:00 pm Eastern Time on June 6, 2005. See the Council’s website for information on submitting a proposal for the 2006 School Law Seminar. The deadline is July 1, 2005.

Complying with USERRA in the School Context
Audio Conference June 14, 2005, 1 p.m. (EST) The unique school environment can make complying with the Uniformed Services Employment and Reemployment Rights Act (USERRA) difficult. Moreover, Congress has enacted some recent changes to the Act and the Department of Labor has issued proposed rules which should be finalized shortly. This audio conference will discuss these changes, some of the particularly difficult sections of the law as they apply to school districts, and practical solutions to dealing with the law’s ambiguities. I&A

National School Boards Association 1680 Duke Street Alexandria, VA 22314-3493 Address Service Requested

I&A is on-line only in July!
Non-Profit Org. U.S. Postage PAID National School Boards Association

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