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Copyright 2016: Walsh Gallegos 1 Featuring PAULA MADDOX ROALSON Walsh Gallegos Treviño Russo & Kyle P.C. A CONFERENCE FOR LEADERS i know of no more encouraging fact than the unquestionable ability of man to ELEVATE his life by conscious endeavor. -- henry david thoreau

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Copyright 2016: Walsh Gallegos 1

Featuring

PAULA MADDOX ROALSONWalsh Gallegos Treviño Russo & Kyle P.C.

A CONFERENCE FOR LEADERS

i know of no more encouraging fact than

the unquestionable ability of man to

ELEVATEhis life by conscious endeavor.

-- henry david thoreau

Copyright 2016: Walsh Gallegos 2

ELEVATE

PREPARATIONTIME

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sometimes, whether you like it

or not, people

ELEVATEyou. it's real easy to fall.

--eddie vedder

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only passions, great passions can

ELEVATEthe soul to great things.

--denis diderot

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AGENDA9:00 – 10:00 A.M. STUDENT MENTAL HEALTH ISSUES

10:00 A.M. BREAK

10:15 – 11:30 A.M. LEADERSHIP ROUND TABLE

11:30 – 1:00 P.M. LUNCH

1:00 – 2:15 P.M. CAMERAS IN CLASSROOMS

2:30 – 3:45 P.M. LEADERSHIP CHECKLIST

3:45 P.M. ADJOURN

STUDENT MENTAL HEALTH ISSUES

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STUDENT MENTAL HEALTH BY THE NUMBERS:

•Research has shown that many mental health conditions originate in adolescence, and half of individuals living with mental illness experience onset by the age of 14. The number jumps to 75% by the age of 24.

•Suicide is the second leading cause of death in persons age 10 –24, second only to “unintentional injuries”

•1 in 5 children ages 13-18 have, or will have, a mental illness

LEADING CAUSES OF DEATH IN TEXASAGES 15-24

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SUICIDE IS THE SECOND LEADING

CAUSE OF DEATH IN PERSONS AGE 10 – 24

HOMICIDE

IS NUMBER THREE

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DANGEROUS STUDENTSCHILDREN AS VICTIMS/CHILDREN AS AGGRESSORS

•Liability exposure for school

violence?

•FERPA considerations

• IDEA / 504 considerations

•Threat assessments

•Child Find

•Restorative Discipline

•Rebuilding safe school

communities

HOW ARE WE DOING?

•The “Bystander Study”

(Secret Service 2008)

Most attackers engaged in some behavior prior to the incident that caused others concern or indicated a need for help.

Prior to the incidents, other people knew about the attacker’s idea and/or plan to attack.

http://www.secretservice.gov/data/protection/ntac/bystander_study.pdf

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DEREK

https://www.youtube.com/watch?v=rwKO747nI2w&app=desktop

DRUGS & ALCOHOL BY THE NUMBERS IN TEXAS

•Alcohol is the primary drug of abuse in Texas. In 2012, 58 percent of Texas

secondary school students in grades 7–12 had used alcohol

•12 percent of all secondary students said that when they drank, they usually

drank five or more beers at one time, and 11 percent reported binge

drinking of liquor

•Among Texas secondary students (grades 7–12), 26 percent in 2012 had

ever tried marijuana

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•Grades 7–12 reported that lifetime use of powder and crack cocaine had dropped from a high of 9 percent in 1998 to 7 percent in 2012

•The 2012 Texas secondary school survey queried about use of other opiates “to get high,” and reported that 8 percent had ever used hydrocodone; 11 percent had ever consumed codeine cough syrup “to get high;” and 4 percent had ever used oxycodone in that manner.

NON-SUICIDAL SELF INJURY•It is estimated that one in eight middle and high school

students have participated in this risk-taking behavior

(Bakken & Gunter, 2012)

•The American Psychiatric Association placed NSSI in a new

section of the DSM-5 entitled, “Conditions for Further Study.”

The proposed criteria in this section require additional study

and are not intended for clinical diagnosis.

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REASONS FOR TEEN CUTTING AND SELF-INJURY•The American Psychiatric Association (2013) stated that the self-injurer

uses the behavior to relieve negative feelings, induce positive emotions,

and resolve difficulty. Interestingly, self-injury is used to eliminate an

overabundance of emotions as well as to manage dissociation (Walsh,

2012).

•Youth experiencing chemical imbalances within the brain may injure to

release endorphins or experience a “high.” Much like drug use, a person

may develop cravings for these brain chemicals and even experience a

form of addiction (Higgins, 2014).

TEEN SELF INJURY, CONTINUED•Students come from diverse backgrounds: may be

gifted or have learning disabilities, may be outgoing or

introverted, may be popular or non-popular among

peers

•Common factor: Early detection positively influences

treatment

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HILARY

HTTPS://WWW.YOUTUBE.COM/WATCH?V=LJEQWWW-XZI&FEATURE=YOUTU.BE&APP=DESKTOP

SCHOOL RESPONSIBILITY/CHILD FIND•N.M. v. Wyoming Valley West School District, 67 IDELR 235 (M.D. Pa.

2016)

This is an ADA/504 case, but the underlying issue is child find. The court refused to dismiss the case at this stage, noting that the parents had sufficiently plead a case of deliberate indifference based on the fact that the student was in a hospital that is located within district boundaries and the received no services during the 70-day stay. The court cited testimony from the director of special education that she was aware of the student’s presence at the hospital prior to discharge.

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P.P. v. Compton USD, 66 IDELR 121 (C.D. Cal. 2015)

The court refused to dismiss this class action, seeking relief under 504

and the ADA for students as well as teachers adversely affected by

trauma. The students allege that exposure to traumatic events

“profoundly affect their psychological, emotional, and physical well-

being.” The school argued that physical or mental impairments do not

include poverty and environmental factors, and thus these students are

not “disabled.”

•Key quote: “the court does not endorse the legal position that exposure to two or more traumatic events is, without more, a cognizable disability under either of the act. The court simply acknowledges the allegations that exposure to traumatic events might cause physical or mental impairments that could be cognizable as disabilities under the two acts.

•Here’s a new term to add to your vocabulary: “trauma-sensitive schools.”

•The court denied the plaintiffs’ request for a mandatory preliminary injunction that would have required district-wide trauma awareness training. The court noted that such remedies should not be granted without evidence that they are needed to prevent extreme and very serious damage. This lengthy opinion is at 66 IDELR 161. That same day, the court denied class certification for the case in another lengthy opinion: 66 IDELR 162.

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COMMUNITY CONVERSATIONS

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WHAT ABOUT OTHER AGENCIES?A CANDID CONVERSATION

•https://www.dshs.texas.gov/mhsa/mh-child-

adolescent-services/

•Law Enforcement / Juvenile Probation

•Child Protective Services

A DEEPER LOOK AT SCHOOL RESPONSIBILITIES•When a medical assessment is required, the district, not the parents, is

responsible for arranging and paying for the assessment under the IDEA and Section 504. 71 Fed. Reg. 46,550 through 73 Fed. Reg. 46,551 (2006); and Letter to Veir, 20 IDELR 864 (OCR 1993).

•A school district, in a state that requires a medical evaluation as part of a determination of OHI, can be held liable for the failure to conduct that medical evaluation. In a case involving a student with a high rate of absenteeism, asthma and anxiety, the district was held liable under the IDEA for failing to conduct a medical evaluation. Independent Sch. Dist. No. 413, Marshall v. H.M.J., 66 IDELR 41 (D. Minn. 2015).

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DISCUSSION POINTS:COLLABORATION WITH YOUR COLLEAGUES

the role of a clown and a physician are the same - it's to

ELEVATEthe possible and to relieve suffering

--patch adams

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LEADERSHIP ROUND TABLE

NOTES:

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NOTES:

CAMERAS IN SPECIAL

EDUCATION CLASSROOMS

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THE LAW•Texas Education Code 29.022

•http://www.statutes.legis.state.tx.us/docs/ed/htm/ed.29.htm

•Texas Commissioner’s Rules 19 T.A.C. 103.1301

•http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=2&ch=103&rl=1301

THE HISTORY“…as written, the bill does not clearly address the number ofclassrooms affected by a single request. as the authors of SB507, we wish to provide legislative intent. a request by ateacher or parent/guardian to install cameras requiresinstallation only in the classroom where the teacher offersinstruction or the child/dependent attends class. this ensuresprotections in special education environments whileresponsibly containing costs for large districts.”

AUTHORS OF THE BILL SENATOR EDDIE LUCIO AND STATE REP SENFRONIA THOMPSON (LTR TO TEA)

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•On March 11, 2016, TEA requested clarification from the AG

•On September 13, 2016, TEA received the AG Opinion Letter. Per the AG, the legislative intent letter to TEA is not relevant, “legislators are bound by the words they vote into law, not post-enactment letters” and that a strict interpretation of the law should be made. The AG also opined that --•One request for a camera = cameras for all self-contained classrooms on

all campuses in district •Any staff member in the district can make the request for a camera•Video equipment should stay in place as long as the classroom continues

to meet the criteria of a self-contained classroom

THE FALLOUTAG OPINION LETTERS ARE NOT BINDING. As noted by the AG himself, “courts have

stated that attorney general opinions are highly persuasive and are entitled to great

weight; however, the ultimate determination of a law's applicability, meaning or

constitutionality is left to the courts.”

POTENTIAL LEGISLATIVE ACTION ON THE HORIZON: On September 15, 2016, Sen.

Lucio said he plans to draft a clarification bill when the regular session starts in

January.

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TASB’S POSITION:

If TEA revises the Commissioner’s Rules in response to the AG

opinion, TASB policy service will evaluate whether changes are

needed to the materials at EHBAF and communicate any

changes. For the time being, TASB is stating that the EHBAF(LOCAL)

recommended at Update 106 addresses all of the local policy

components required by current commissioner rule and other best

practice recommendations. Therefore, TASB policy service does not

plan to revise the EHBAF materials at this time.

•TEA COMMISSIONER’S RULES:

TEA has indicated the Commissioner will amend the

Rules. Timing is not certain. (See next slide)

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•“Based on the Texas Attorney General’s opinion that the definition

of “staff member” in TEA’s rules is more restrictive than the plain

language in the statute, TEA will propose revisions to the

definition as well as propose several minor edits for purposes of

clarity…To the extent that a school district or open-enrollment

charter school has adopted policies that are inconsistent with the

Texas Attorney General’s opinion, it would be well advised to

revise the policies consistent with the opinion.”

SHOULD WE CHANGE OUR OGs?

•PROS •CONS

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•DEADLINE TO COMPLY -

•The Bill "applies beginning with the 2016-2017 school year,"

which is being interpreted to mean at least the last day of

school for the 2016-2017 school year, and possibly into July

or August if ESY programming is taken into account.

DISCUSSION

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it should be your care, therefore, and mine, to

ELEVATE

the minds of our children and

exalt their courage

--john adams

LEADERSHIP CHECKLIST

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THE TEN TRAITS OF HIGHLY EFFECTIVE LEADERS

•What is leadership?

•What is the difference between “leadership” and

“management”? Or “administration”?

•How do you define your role?

DISCUSSION

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you're

ELEVATEDbecause you're with a bunch of guys that want

to do the same thing as you.

and when it works, baby, you've got wings.

--keith richards

THE TRIP TO ABILENE“Organizations frequently take actions in contradiction to what they really want to do and therefore defeat the very purposes they are trying to achieve.”

--Jerry B. Harvey, The Abilene Paradox: The Management of Agreement

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WE’RE ALL IN THIS TOGETHER—SO WHO LEADS US FORWARD?

Think back to your job interview• What experience do you have that will lend itself to this position?• What challenges are you looking for in this position?• Have you ever had a conflict with a boss or a colleague? How was it resolved?

THE EVOLUTION OF CAMPUS LEADERSHIP (GENERALLY):

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THE EVOLUTION OF SPECIAL EDUCATION:

NATURAL TENSIONS DEVELOP•Teachers (class and curriculum)

• Increased teaching demands and an

ever growing and diverse student

population

•Education shifts from art to science

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CHALLENGES

WORK SMARTER

Identify Concerns

Identify Support Group

Identify Resources

Communication is Key

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COMMON ISSUES RELATED TO CAMPUS ADMINISTRATION

We need a “representative of the public agency” at the meeting. Is your

campus administrator qualified?

This person must be “qualified to provide, or supervise the provision of”

special education.

Must be “knowledgeable about the general education curriculum.”

Must know about the “availability of resources” of the school. 34 CFR

300.321.

ARD MEETINGS

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“It is important, however, that the agency representative have

the authority to commit agency resources and be able to ensure

that whatever services are described in the IEP will actually be

provided.” DOE says it does not need to put this in regulation, as

“the public agency will be bound by the IEP that is developed at

an IEP team meeting.” 71 Federal Register 46670 (2006).

IMPORTANT COMMENTARY

The district is “bound by” the decisions made at the ARD.

Note also: the representative must “be able to ensure that

whatever services are described in the IEP will actually be

provided.” This has to do with follow-through.

IMPLICATIONS

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Are the decisions of the ARD committee being implemented as

written? Are we holding teachers accountable? Are we ensuring

resources are accessed and used?

Are we aware of what is happening in special education

classrooms…

FOLLOW UP

H.H. v. Moffett, 52 IDELR 242 (4th Cir. 2009).

The court held that neither the teacher nor the aide was entitled

to qualified immunity from personal liability. The suit alleged that

the teacher and aide kept the child confined to a wheelchair

through the entire school day, even though this was not necessary.

The suit alleged that this was done maliciously, rather than for any

educational purpose, and that it was accompanied by mocking and

disparaging comments to the student. The constitutional right at

stake was the right to be free from unreasonable restraint.

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Key quote:

We stress that appellees’ facts make this an unusual case, and our opinion is one that no reasonable teacher who errs in judgment ought to fear. Qualified immunity is intended to protect officials who make reasonable mistakes about the law. [Cite omitted]. But the immunity simply does not extend protection to an official motivated by the kind of bad faith alleged here.

Some of the allegations in this case were based on information obtained from a recording device the parent attached to the child’s wheelchair. The fact that the child, a kindergarten student, had limited ability to communicate, due to her disabilities, was also a factor.

We should look to the campus administrator for leadership at the

ARDC meeting.

Special education staff should support and facilitate this.

A leader leads first by example in how she or he attends the ARDC

meeting. So let us consider the word “attend.”

THE LEADER

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•Some of the ways the word “attend” is defined:

•To take care of, minister to, devote one’s services to; tend, guard,

take charge of, look after, watch over.

•Nowhere does it say “sit in the room while your mind is

elsewhere.”

•Nowhere does it say “work on your phone during the meeting.”

ATTENDING THE ARD

If we are headed into non-consensus, the campus administrator

needs to ask the three key questions:

Is this worth fighting over?

Are we legally defensible?

Are we united?

If all three are answered with a yes……

THE HARD ARD

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Bringing the meeting to closure without consensus involves

knowing the Texas recess rule:

“If a recess is implemented…and the ARD committee still

cannot reach mutual agreement, the school district must

implement the IEP that it has determined to be

appropriate for the student.” 19 Tex. Admin. Code

89.1050(g)(3)

CLOSURE WITHOUT CONSENSUS

TO AGREE OR DISAGREE…

The ARD document must include:

•the date of the meeting

•the name, position, and signature of each member

participating in the meeting; and

•an indication of whether the child's parents, the adult

student, if applicable, and the administrator agreed or

disagreed with the decisions of the committee.

TEC 29.005(b-1)

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Despite the law’s emphasis on “rights,” the entire system of special

education decision-making is based on a collaborative model.

Consensus is the goal. Reasonableness is the standard. We must be

aware of the legal background, but should focus on

reasonableness. In a special education legal dispute, the unspoken

issue is always: which side is being unreasonable here?

RIGHTS TO RIGHTEOUS…

In dealing with stressful, difficult special education situations,

educators must maintain their focus on serving the student

appropriately.

Courtesy, kindness, patience, compassion are all called for. And

we lawyers will always remind you to document your kindness and

compassion.

IMPLICATIONS

Copyright 2016: Walsh Gallegos 37

•Talk about respective roles. First.

•It’s hard to be the newcomer.

•Make a list for the principal: “Times when I’d like you to

call me.” Ask the principal to do the same.

•Continue going back to first things first: how can we work

together to be successful?

FUNDAMENTALS

don't kill the game with your funk,

ELEVATE

it with your humility

--t.f. hodge

Copyright 2016: Walsh Gallegos 38

THANK YOU!

PAULA MADDOX ROALSON

WALSH GALLEGOS TREVIÑO RUSSO & KYLE [email protected]

The information in this presentation was created by WALSH GALLEGOS TREVIÑO RUSSO & KYLE P.C. It is intended to be used for general information only and is not to be considered specific legal advice.

If specific legal advice is sought, consult an attorney.

|

Paula Maddox Roalson is a shareholder with

the law firm of Walsh Gallegos, where she

has represented the legal interests of Texas

public school districts for more than 20

years. Five years ago, Paula opened the law

firm’s Houston office, where her practice

focuses on special education litigation and

related matters. She is a frequently sought

after attorney and speaker. Paula is a proud

product of Texas public schools and a family

of educators and public servants.

Her father served as a school board

member for 17 years. Her mother is a

former superintendent of schools

and her sister is an elementary

school principal. Paula and her

husband have two daughters, both

enrolled in Texas public schools.

YOUR PRESENTER

Copyright 2016: Walsh Gallegos 39

REFERENCES/CITED WORKS

https://www.nami.org/getattachment/learn-more/mental-health-by-the-numbers/childrenmhfacts.pdf

http://www.nccp.org/publications/pub_878.html

http://webappa.cdc.gov/cgi-bin/broker.exe

https://www.cdc.gov/drugoverdose/index.html

http://www.cdc.gov/healthyschools/shi/index.htm

http://www.cdc.gov/healthyschools/shi/pdf/middle-high-total-2014.pdf

http://www.personnelcenter.org/pdf/copsse_principals.pdf

https://assets.aspeninstitute.org/content/uploads/files/content/upload/16-Harvey-Abilene-Paradox-redacted.pdf

https://www2.ed.gov/about/offices/list/osers/idea35/history/idea-35-history.pdf

http://tea.texas.gov/Texas_Schools/Safe_and_Healthy_Schools/Coordinated_School_Health/Counseling_and_Mental_Health_Services_of_the_Coordinated_School_Health_Model/

https://www2.ed.gov/admins/lead/safety/threatassessmentguide.pdf