Finding Direct Routes to By-Pass Real Risks Peggy Burns Education Compliance Group, Inc. 888-604-6141 www.educationcompliancegroup.com Copyright © 2012, Education Compliance Group, Inc. All rights reserved.

Where’s the Risk? Hazards Even Veterans May Not Recognize Pas de panique, c’est un air qu’il se donne.

The New Guy Vas-y Louis, tu tiens le bon bout.

The keys to navigating the direct route around risks Avoiding some risks requires concerted effort by everyone involved: Coordination, role delineation, investigation, and follow-up District and school personnel must provide the information you need Drivers and attendants must act when necessary Transportation administrators must establish and communicate clear rules; drivers and attendants must follow them Transportation administrators must train and enforce; remain knowledgeable and monitor; build bridges based on firm foundations Everyone – the issue is systemic or likely to be – takes everyone's involvement District/school people must recognize transportation – education connection Drivers must not passive and recognize their role and carry out effectively – reasonable action within the scope of their authority is what’s required Transportation administrators: Get info to key people Know the law when it comes to employment practices Monitor to make sure things are going as they should Seek involvement from those they need by providing information and documentation to get done what they need to get done.

Foreseeability/ Reasonable Action Equation Is there reason to know harm is likely? Did the school district or the company do anything to increase the harm? Were available options explored? Information sources Complying with IEP Complying with contract Choices within your authority

Action checklist “Why didn’t the bus driver know any of this?” Were there clues and signals? Is there knowledge of immediate or imminent threat? Was there an interval in which preventive measures could have been taken before the harmful action occurred Did the driver have available options for action? Inattentional blindness: So focused on a task that he doesn’t see other things (leaves student on the bus because he’s focused on getting the sign to the back of the bus) 2/19/09 – Asked by mother of a 16 year old boy charged with sexually assaulting and intimidating girls on his bus. He is one of 3 boys accused of using threats and fear to take over the school bus – s pent much of year touching girls, using aerosol cans to make blowtorches etc. Girl finally came forward. Where driver knows students moving around on floor of bus, it’s not OK to assume they’re playing tag (sexual assault, in fact) Clues and signals: In a 2009 TN case, veteran driver said not uncommon for students to moved around on moving bus – sometimes said nothing. They didn’t respond when he did say something. He saw physical bullying but didn’t think it was that big a problem. He did nothing. Court awards damages and costs (district and parents agreed to dismissal of direct claims against driver as redundant)

What’s Hot Nationally in Special Needs Transportation? Issues in dispute Who makes what decisions, and why? Seclusion and restraint Where and how? To “Aide” or not to “Aide” The LRE/ Safety Balance Contribute good data to the decision: Unilateral decision-making – always a show-stopper if a district is caught Failing to apply policies consistently – doing it right requires cooperation, but when you do, the district wins “Checking the box” is just the beginning – understand what a related service is, and the questions that need to be asked Know about available services and equipment

Failure to inform I.R. is a 12-year old who has a rare condition, rendering him legally blind, and poorly developed, with fragile bones. The district has shared no information with the bus contractor – including the boy’s vulnerability to serious injury. The bus company typically conducts evacuation drills. I.R. is made to participate in a drill, and is severely hurt. Were there opportunities to prevent the harm to the student?

Understanding the “real” concern How did it get to this point? What don’t we/ didn’t we know? Why didn’t we know it? How could we avoid getting to this point?

A complicated situation Contractor transports student with impaired motor function. In the past, she has been allowed to walk up the bus stairs with guidance from aide or driver In the course of looking into a complaint about the aide, district’s PT determines the student is not physically able to use the bus steps Mom wants student to ride motorized scooter up the lift, and then be transferred to bus seat Mom has refused district request for OT/PT eval of student, or provision of input from student’s personal PT

A complicated situation, contd. Mom has started videotaping loading and unloading of student Student videotapes on the bus What mom really wants is for student to walk up and down bus stairs, and claims failure to permit this is discrimination and retaliation There’s active blog commentary about the situation, and it has been brought to the attention of a local news agency. Mom has threatened to sue everyone.

Avoid “Failure to Implement” Claims: Communicate plan components Services to be provided Who is to provide the services When the services are to be provided The procedures for providing such services, including communication and training for service providers to ensure and obtain clarification of their responsibilities Documentation showing the service providers have received this information (follow-up) Failure to implement IEP is a big 504 issue To combat: Where a service is listed in IEP, indicate how it is to be provided, and ensure individuals who will actually implement know that they’re supposed to do so, and understand how to do so. In one case, a student’s IEP called for him to get copies of notes. The teachers didn’t know that they were to do this, and the problem stemmed from the IEP team putting the provision in the IEP with no understanding themselves of how it was to be implemented. Status of implementation? Information to parent? Changes in student’s condition or meds? Changes in context? Sugar-coating is catching up with you?

Some Rules Cannot be Broken Driver or monitor’s failure to make search a part of every post-trip Staff member’s violation of clear directives endanger a child “Zero tolerance” must have real meaning See Addison case, LR, Jan 2010, p. 3 13

Violations That Drive You Too Far A child complains about another child hitting her. The driver forces the child off the bus. A 4-year old is placed on the wrong bus during the first 3 weeks of school. Contrary to policy, a district employee drives her home. A driver offers “customer service,” and drops child off at an undesignated bus stop

A boy realizes he’s on the wrong bus, and notifies the driver A boy realizes he’s on the wrong bus, and notifies the driver. The driver drops him off in front of a bar, and 3 miles from home. A substitute driver drops a student on the wrong side of street. She is killed as a direct result of this action. Careless securement of a child with a disability results in injury to the child.

Top 5 Legal Detours for Drivers Inaction where action is needed Doing nothing is never the right thing You’re not expected to be a hero, or even to “fix” the problem Re-inventing the rules Stops Schedules Seating Securement Failing to work with what you’ve got Mis-reading clues and signals The Rules – Schedules, Stops, Seating, Securement Schedule – Turner Stops – IB student – dark that night Seating – not following directions when told student must sit by himself behind the driver; Enright case Securement

Risky employment practices: Recent examples Driver of Iranian origin asserts termination based on national origin discrimination, despite evidence that his performance had become problematic. Driver asserts his former district refused to accommodate kidney condition in violation of ADA – wants shorter route. Part-time driver says district terminated her for too-frequent absences in violation of FMLA’s “return to work” provision. Contractor made reasonable attempts to resolve conflict due to driver’s religious obligations (Iranian origin case) Employee had kept journal of co-workers’ slurs; district kept log of employee’s concerns. District won because evidence demonstrated lack of severe and pervasive behavior by co-workers and included substantial documentation by the driver of legitimate basis for terminations ADA case – Case allowed to proceed because of lack of solid evidence as to whether accommodation requests were made. While it’s hard to support a negative (“He never asked”), policy and practice of documenting requests strengthens inference that, where there is no clear evidence that employee complained, lack of a record indicates that such complaints simply were not made. Evidence that district properly investigated and made a reasonably informed and considered decision before firing her. No violation of return to work provision because leave not used for intended purposes. Ability to articulate basis for legit non-discrim decision was key Driver doesn’t notify company prior to hire that he can’t drive evening shifts. When assigned evening shift, notifies company that he can’s due it – company suggests various option, none of which the driver follows up on, and driver fails to report to work on Five conescutive Friday afternoons; terminates him for excessive absenteeism and disobedience. Court refuses to require more than reasonable attempts actually made.

Title VII Crashes Will stray remarks come back to haunt you? Was the employee: A member of a minority? Did a “bad thing” happen? Did it happen to others who did the same thing under the same circumstances? Has management failed to take action in the face of considerable intimidation, ridicule and insult directed against the employee? How many incidents, over what period of time, and what has the district or company done or not done about it? Has it impacted employee’s performance? Ohio case – Mechanic for 30 yrs – bad relat’p w/ supervisor. Went over supervisor’s head about concerns about safety of busses. Considerable stress leads to FMLA leave – becomes to extensive, operations manager puts him on paid admn leave. During this time, district's buses all fail inspection – mechanic investigated by police – Returns to work; often absent – reasons become suspicious – Fired. Court finds he’s offered “some evidence” of retaliation based on supervisors’ responses to absences – just enough indication of malice

Retaliation is Illegal Protected activity + Timing of adverse employment action – Prior documented issues = Potential for a retaliation claim

Retaliation Considerations Is there a legitimate nondiscriminatory reason for the adverse action? If poor performer, is s/he being treated like other poor performers, without regard to the protected activity? Is there a documented, demonstrated lack of satisfactory performance, or failure to improve after a reasonable remediation plan? How long has it been since the protected activity took place?

The Rules for Best Practice If you haven’t disciplined or negatively evaluated an employee before s/he exercises legally protected rights, his or her complaint, grievance, claim or other assertion of rights is not the time to start. If adverse action is necessary, be sure your documentation is in order, and Illustrates the conduct at issue Offers clear evidence as to when the conduct occurred Presents a sound basis for your response Supports consistency of response

Preventing Problems from Escalating Why should you take each step? What does it look like? Exchanging information Establishing and communicating clear rules Instituting interim measures Monitoring progress and results

Fact finding . . .in a nutshell When By whom Who needs to know? Resolving inconsistencies Drawing conclusions

Five Keys to Avoiding Risks Communicate – Ensure your staff knows when to inform you before the matter blows up Be responsive – A timely response can help prevent situations from escalating Listen and avoid being defensive – even though it may not be what you want to hear, approach the incident with an open mind. You know we’re not always right! Be honest – If this were happening to your child, how would you feel? If you’re wrong, say so; if you don’t have an answer, say so; if you say you’ll do something, do it. Follow-through – Monitor the situation to ensure the incident does not re-occur

And there’s more: Keeping concerns from falling through the cracks Cross-training for employees Documenting concerns Ensuring necessary coordination is in place Listening with an open mind Hearing the real issue Accountability and consequences What these have in common is they seem to be the areas most often represented in insurance claims and litigation. Note – failure to implement an IEP can be a Section 504 violation - was deliberate indifference a moving force? In Feb 2012 NY case, lack of documentation of school district’s compliance w/ its own policy to investigate a claim that an employee behaved in a manner that may affect his or her job fitness resulted in case going forward involving negligent retention of a driver for sexual abused students on a field trip.

Education Compliance Group, Inc. PO Box 221 Lafayette, CO 80026 888.604.6141 www.educationcompliancegroup.com