Education Law Bulletin (August 2011)

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NEW LEGISLATION EXPANDS THE OPTIONS AVAILABLE TO A SCHOOL CONCERNING THE ADMINISTRATION OF ALLERGY MEDICINE FOR THOSE STUDENTS EXPERIENCING POTENTIALLY LIFE-THREATENING ALLERGIC REACTIONS

The School Code section concerning students’ self-administration of medication was amended, effective August 15, 2011, to expand the circumstances under which medication can be administered to a student who is experiencing an anaphylactic reaction in the school setting.

The changes to the law reflect the suggestion that food allergies in children are becoming more common. The Centers for Disease Control reports that there is some indication that the prevalence of food allergies may be increasing: data shows that the number of children under 18 who are reported to have had a food allergy in the prior 12 months has increased 18 percent between 1997 and 2007. The governor’s office reports that “a quarter of anaphylactic reactions amongst children involved individuals who had not been previously diagnosed with a severe allergy.” Anaphylactic reactions are acute hypersensitivity allergic reactions that can be life threatening.

The changes to the School Code now explicitly allow the following: 1) physicians may prescribe — in the name of a school district rather than a particular student — epinephrine auto-injectors (commonly referred to as “EpiPens”); 2) schools may maintain a supply of such EpiPens prescribed for the school’s use for students; 3) for those students who have a plan in place that calls for the use of an EpiPen, the student or personnel authorized pursuant to the student’s plan may use an EpiPen from the school’s supply of EpiPens, provided that the conditions for the use of the EpiPen have been met and the EpiPen from the school’s supply meets the prescription on file for the student; and 4) school nurses may administer an EpiPen to any student that the nurse believes, in the nurse’s professional good faith, is having an anaphylactic reaction, regardless of whether such student was previously diagnosed with a food allergy or was previously prescribed an EpiPen.

EpiPens must be maintained in a locked, secure location. If a school nurse uses an EpiPen for a student who does not have an EpiPen available or does not have a prescription for an EpiPen, the administration of the EpiPen should be consistent witha standing protocol provided by a physician. This section of the School Code previously made clear that the school district and its employees and agents would not be liable for any injury resulting from the use of an EpiPen in the school setting, unless the actions are considered “willful and wanton.” The amendments expand this immunity to the circumstance of a school nurse who, in good faith, professionally believes that the student is having an anaphylactic reaction and administers an EpiPen to that student. Further, this immunity is explicitly provided to physicians who provide the school with a standing protocol as to the appropriate administration of EpiPens or who give the school a prescription for EpiPens to be available for student use.

As the amendments reference the ability for school districts “to authorize” these actions to be undertaken, school districts should look to their policies concerning the administration of medication to determine whether they should be revised to reflect these changes. Further, school districts that authorize school nurses to act under these circumstances may wish to expand their notice provisions so that all parents, not just parents of students previously served under an Individual Health Care Action Plan, Illinois Food Allergy Emergency ction Plan and Treatment Authorization Form, or Section 504 plan, are on notice of the impact of this law.

THE SEVENTH CIRCUIT AFFIRMS A RULING THAT A SCHOOL DISTRICT’S FAILURE TO REMOVE A SPECIAL EDUCATION STUDENT WHO WAS FREQUENTLY AGGRESSIVE TOWARD STAFF DID NOT “SHOCK THE CONSCIENCE”

On August 11, 2011, the Seventh Circuit affirmed a district court decision dismissing a special education teacher’s Section 1983 complaint against her employer, Indian Prairie School District No. 204. The underlying facts of the case involve the special education placement of a student with an Individualized Education Program (IEP).

In the years leading up to the incident, the student had a history of sometimes violent and often unpredictable acts of verbal and physical aggression. There were documented incidents of him hurting himself, staff members and other students prior to the incident in which the special education teacher, the plaintiff Jackson, was injured. Also during this period of time, the school district met several times per school year with the student’s parents and the entire IEP team to determine the appropriate special education, related services and placement for the student.

In spring 2007, at the IEP meeting where the IEP team was writing the student’s IEP for the 2007- 2008 school year, all school members of the IEP team recommended a therapeutic day school as an appropriate setting for the student. However, the parents disagreed. The school district did not push for a change of placement to a therapeutic day school, pointing to data that the staff had tracked which showed an overall decrease in the number of incidents of verbal and physical aggression. The data also showed that the student’s outbursts were trending toward verbal rather than physical outbursts.

For the 2007-2008 school year, the student’s IEP proposed he be placed in what the school district termed “Supported Placement in General Education Classroom.” This included the services of a teacher assistant; special education teacher; related services, including social work services; and a behavior intervention plan. The intervention plan included the use of a separate classroom in which the student would be taught if his emotional and behavioral status suggested that setting to be more appropriate than the general education setting on any given day. The student had previously been on Jackson’s case load and that continued to be the case.

During the student’s fourth grade school year (2007- 2008), data continued to show that the overall number of incidents were down and continued to trend toward verbal rather than physical outbursts. However, there also continued to be episodic behavioral incidents that were extreme in nature. In January, after being told by a teaching assistant that he needed to wait for P.E. class, he punched the assistant in the arm, threw a chair at her, and kicked her in the shin; in February, he kicked Jackson. Also in February, he threw papers, blocks and a laptop, and kicked his teaching assistant.

In March, an additional IEP meeting was held where the team noted overall improvements, but also said they were still concerned with his behavior and educational needs. At this meeting, the student’s placement was not changed, despite Jackson recommending he “be immediately transferred to a therapeutic day school.”

A week after this meeting, Jackson was injured in an incident involving the student. Specifically, the student was working in his individual, separate class with his teaching assistant when he became frustrated and began throwing objects around the room and at the teaching assistant. The building principal was called to the room to assist. The principal came to the room, spoke to the student, and left the room after it appeared the student had regained self-control. Upon seeing Jackson in the hallway, the principal directed Jackson to go to the student’s room to talk things over with him.

When Jackson got to the room, the student was again agitated. The student picked up a chair and swung it toward Jackson. A struggle ensued. During this struggle, Jackson fell back and hit her head on a white board and her neck on the chalk board ledge. She was taken to the hospital by the principal to have her injuries addressed, which included a serious concussion.

Alleging that her substantive due process rights were violated, in July 2008 Jackson filed a Section 1983 action against the school district, seeking compensatory damages, punitive damages, and attorneys’ fees and costs. In April 2010, the federal district court granted the school district’s motion seeking dismissal of the lawsuit. The plaintiff appealed, and on August 11, 2011, the Seventh Circuit affirmed the district court decision, basing its opinion upon a determination that the school district’s actions do not “shock the conscience.”

It is well established that through Section 1983 an individual may sue a state actor, and many local governmental actors by extension, for actions that deprive the individual of any right secured by the United States Constitution or federal statutes. If the plaintiff is alleging that the federal right infringed upon is the Due Process Clause of the Fourteenth Amendment, the plaintiff faces a difficult burden. The Due Process Clause provides limitations as to when it is permissable for a state actor to infringe on a person’s rights. However, it does not create any affirmative duties upon a state actor towards a person. There are two exceptions to this general rule: if the state has taken custody over a person and if the state created a danger.

The state-created danger exception, which is the avenue that Jackson used to sue Indian Prairie, requires that the plaintiff prove three factors: 1) by affirmative actions taken, the defendant created or increased a danger faced by the plaintiff; 2) the defendant failed to protect the plaintiff and this failure was the proximate cause of the plaintiff’s injury; and 3) the defendant’s failure in this regard “shocks the conscience.” In this case, the Seventh Circuit found that Indian Prairie’s actions toward Jackson did not shock the conscience (the Court did not address the other factors, as that was not necessary to dispose of the case).

The Court indicated that it did not “lightly reach the conclusion that the defendants’ conduct does not shock the conscience.” This is a very fact-driven analysis, and the Court carefully analyzed the facts. Evidence that led the Court to the conclusion that the school officials at Indian Prairie did not engage in conduct that shocked the conscience included: 1) many of the student’s acts of violence were against himself, not against others; 2) the documentation in the student’s IEPs focused on the staff members’ concerns as to the student’s neediness and disrespectful attitude, whether staff were able to meet the student’s needs in that setting, and whether the student was advancing, not fear of his harming them; 3) the total number of incidents were decreasing; 4) the data gathered showed that the incidents were trending toward verbal rather than physical aggression; 5) on the day in question, the principal had gone personally to the student’s room and did not leave until he felt that that student had calmed down; and 5) every IEP up to the point of the incident continued to recommend special education-supported placement in the general education setting.

Although the Court determined that the facts on balance weighed in favor of determining that the school district did not act in a conscience-shocking and egregious manner, school districts should keep in mind that this was not a “slam dunk” decision for the Court. Indeed, the Court said that “although the defendants’ actions may well have been short-sighted, flawed, negligent and tortious, they do not satisfy the standard for finding a constitutional violation.”

School districts are well advised to consider those factors that the Court spoke of weighing in on the conscience-shocking side: 1) the student’s outbursts were frequent; 2) the outbursts included hitting, kicking, scratching and throwing objects; 3) Indian Prairie was well aware that the student was prone to acts of violence and had injured staff in the past; 4) the student’s incidents of aggression were often unexpected and did not always have a clear trigger; 5) despite being an elementary student, the building principal and Jackson characterized him as “strong;” and 6) when the principal directed Jackson to go to the student’s room, he knew that the student was either in the midst of a violent outburst or had only recently de-escalated from one.

The circumstances underlying this case had the school district facing various competing and conflicting forces. School districts are required to educate students with disabilities in a way that provides an appropriate education, but which is also in the least restrictive environment for that particular student to make educational gains. School districts also, however, must take into account the impact that a particular student’s behavior has upon other students and staff members.

When a crystal ball is not available, the school district must rest on the next best thing: a decision that is not arbitrary and that is supported by data, anecdotal evidence, and best practices leading to a rational basis for the decision.

After the March 2008 incident with Jackson, the student was removed to a therapeutic day school setting based on a 45-day removal for causing serious bodily injury. He remained in that placement for the rest of that school year. The parents did not contest that placement for the 2008-2009 school year.

While in hindsight it may appear that Indian Prairie should have made that move more quickly than it did, those are difficult decisions for the IEP team to make, and in this case, the decision was not egregious enough to support a teacher’s 1983 action against the school district.

Jackson v. Indian Prairie School District 204, 2011 U.S. App. LEXIS 16520 (7th Cir. 2011).

GOVERNOR QUINN SIGNS AN AMENDMENT TO THE ILLINOIS SCHOOL CODE CONCERNING THE PROVISION OF HOME/HOSPITAL SERVICES TO STUDENTS

On July 14, 2011, Governor Pat Quinn signed Public Act 97-123 which, effective immediately upon his signing, amended the section of the School Code that outlines the reimbursement available to a school district from the state for personnel and transportation costs related to providing services to students in a home or hospital setting. The amendment provides a definition of an “ongoing intermittent” absence and sets forth a new, very quick, timeframe under which services are to be initiated.

Pursuant to the Individuals with Disabilities Education Act (IDEA) and its implementing regulations, schools have long been required to consider providing and, when appropriate, provide special education and related services to students with disabilities in the home, hospital and institutional settings. 34 C.F.R. 300.39; 300.115 Illinois has likewise referenced this requirement to provide such services, often referred to as “homebound services” or “home/hospital services,” in the Illinois Administrative Code subsection describing the continuum of placement options for students with disabilities found eligible to receive special education and related services. 23 Ill. Admin. Code 226.300

Although the federal regulations do not include direction as to what would trigger the requirement to provide home/hospital services to a student, the Illinois regulations have included the following direction to school districts: Home/ hospital services must be provided to a child if because of a medical condition the child is unable to attend school elsewhere. If this medical condition would cause 1) an absence of two or more consecutive weeks or 2) ongoing intermittent absences, the IEP team must consider the need for home / hospital services. Such consideration must be based upon a written statement from a physician that specifies: 1) the child’s condition; 2) the impact on the child’s ability to participate in education (i.e., the child’s physical and mental level of tolerance for receiving educational services); and 3) the anticipated duration or nature of the child’s absence from school.

If the team determines that home/hospital services are necessary, the student’s IEP should be revised to reflect such and the amount and type of educational and related services should be determined based upon the student’s educational needs and physical and mental needs. The amount of time should not be less than five hours per week if delivered in person and two hours per week if delivered through telephone “or other technological device.” Such services need only be provided on days when school is regularly in session. 23 Ill. Admin. Code 226.300

Within Article 14 of the School Code (the article addressing special education), there are several provisions that set out the conditions under which school districts may receive reimbursement for portions of the costs associated with serving students with disabilities. Among these is section 13.01(a), which provides for partial reimbursement for the personnel and transportation costs associated with providing home/hospital services. In particular, this section has allowed for the reimbursement of a portion of the costs to serve students already identified through the provisions of Article 14 to be a student with a disability who is eligible to receive special education and related services and who is in need of home/hospital services, as well as those students who have not been identified eligible for special education, but who are in need of home/hospital services.

The recent amendment to this section includes a definition of an “ongoing intermittent” absence: when the “child’s medical condition is of such a nature or severity that it is anticipated he or she will be absent
from school due to the medical condition for periods of at least two days at a time multiple times during the school year totaling at least 10 days or more of absences.” 105 ILCS 5/14-13.01(a) This definition
assists schools and parents in having a common understanding of when a student’s episodic medically-related absences would trigger the need to provide home/hospital services. Note that the prerequisite of the parent providing a physician statement continues to apply to both categories, i.e., two or more consecutive weeks and ongoing intermittent absences.

Whereas this first change provides some guidance, the second may cause more confusion. The amendment also includes the following language:

105 ILCS 5/14-13.01(a). (Note that the section immediately following this new language continues to include reference to the minimum requirement of one hour of instruction per school day or five hours of
instruction per school week.)

As administrators and practitioners familiar with this area are aware, this new language poses some concerns and some questions. First, there is a practical concern of being able to identify a certified teacher capable and available to provide appropriate instruction for the student in the home setting, and then arranging for this instruction to take place as quickly as five days after the parent provides a
physician’s statement suggesting the need for home/hospital services. To address this concern, school districts would be well-advised to identify in advance teacher(s) who are willing and able to provide
homebound services to students and hold proper certification to teach the necessary curriculum.

An additional concern arises with the overlay between providing services as quickly as five days and the requirement to hold an IEP meeting to revise the student’s IEP. As schools in Illinois are required to
provide 10 days’ notice to parents of an IEP meeting, and indeed, often need at least 10 days to identify an available date when all necessary IEP team members can be available, it is not likely that the revision of the student’s IEP will take place quickly enough to secure services within five days.

Note that the public act recently signed amends the School Code, the statutory law. A change to the regulatory law, the Illinois Administrative Code, often follows. We will be watching for any such changes or proposed changes that might help provide guidance on this. In the meantime, schools should be ready to respond more quickly to a parent’s request for homebound services.

SCHOOL DISTRICTS MUST DEVELOP BOARD POLICY TO PROVIDE PROTOCOLS IN RESPONSE TO CONCUSSIONS AND HEAD INJURIES IN STUDENT ATHLETES

The School Code has been amended to include a new section, 105 ILCS 10/20.53, in response to Public Law 97-0204, signed into law in July 2011. Specifically, this new provision requires every school board to adopt a policy regarding concussions and head injuries in student athletes. The school board policy must be “in compliance with the protocols, policies, and by-laws” of the Illinois High School Association (IHSA).

Generally speaking, the policies require that any student athlete who exhibits “signs, symptoms, or behaviors consistent with a concussion (such as loss of consciousness, headache, dizziness, confusion, or
balance problems) shall be immediately removed from the game and shall not return to play until cleared by an appropriate health care professional.” Further, when a physician or certified athletic trainer has not cleared the student to return to play the same day as the incident, the student may not return to either play or practice until the school is provided written clearance from an appropriate health care provider.

In addition, information concerning the school’s concussion and head injury policy must be included as part of any agreement, contract, or other written instrument that a school district requires a student
athlete and his or her parents to sign before participation in practice or games.

Tressler attorneys are available to review an existing policy and/or draft a new policy for the board to consider and adopt consistent with these amendments. For further reference, the IHSA materials and
resources concerning concussion management can be found at: http://www.ihsa.org/Resources/SportsMedicine/ConcussionManagement.aspx

MOVABLE SOCCER GOAL SAFETY ACT (“ZACH’S LAW”)

Effective August 2, 2011, Public Law 97-0234 was signed into law requiring any organization (defined to include school districts) that owns and controls a movable soccer goal to develop a soccer goal safety and education policy which spells out specifically how the organization will address the safety concerns associated with movable soccer goals. The safety concerns associated with movable soccer goals are,
sadly, very real. The namesake of this statute, Zachary Tran, a six-year-old child, died in 2003 following injuries he sustained when a 184-pound metal soccer goal fell, striking him on the head. The Governor’s office reports that Zach’s death was the 27th death in the United States since 1979 as the result from a falling goal post.

If your district owns or controls a movable soccer goal, the district’s soccer goal safety and education policy should address what care will be taken to install, set up, maintain, move, and properly secure the goal, among other safety concerns. If assistance is required in reviewing or developing such a policy, please contact Tressler.

SCHOOL DISTRICTS ALLOWED TO INCREASE THE CHARGE FOR DRIVER’S EDUCATION

An additional recent amendment to the School Code allows Illinois school districts to charge more money for students participating in a driver’s education course. Under prior law, school districts were able to charge a fee up to $50.00 to a student who participated in driver’s education. Effective July 14, 2011, the School Code is amended to allow school districts to charge a student up to $250.00 for participation in a driver’s education course. Note that, as before, for those students unable to afford the course, school districts must waive the fee for the course. 105 ILCS 27/24-2

The rules indicate that salaries and benefits of personnel are not to be used to justify the increased cost. However, school districts may seek a waiver of the rules in order to use salaries and benefits in this
way. Information can be found on the Illinois State Board of Education’s website or by contacting them by phone: http://www.isbe.net/isbewaivers/default.htm and Rules and Waivers: 217-782-5270.

INSTRUCTION IN VIOLENCE PREVENTION AND CONFLICT RESOLUTION MUST NOW BE OFFERED TO ALL STUDENTS

The School Code has required school districts to provide instruction to students in grades four through 12 in violence prevention and conflict resolution. This instruction may be incorporated into a
course regularly taught, and schools may award credit for successful completion of such courses. A recent amendment extends this requirement and requires that students in kindergarten through grade three also receive such instruction. 105 ILCS 27-23.4 (Public Law 97-0087).

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