1. Presented by: Thomas R. Manniello Joanne Kim
Navigating the Intersection Between Special Education and Human Resources ACSA Mid State Conference March 18, 2017
Presented by:
Thomas R. Manniello
Joanne Kim 1

2. Presenter Thomas R. Manniello Partner
Thomas R. Manniello is a partner in Lozano Smith’s Monterey office and co- chair of the firm’s Student Practice Group. His practice focuses on student and employment matters.
Mr. Manniello has assisted school districts in matters regarding student discipline, students' rights to freedom of speech and freedom of the press, disruptive parents, media access to school campuses, field trip liability, student organizations, residency and transfer issues. His work covers all areas of student discipline matters including search and seizure and other student investigation issues, expulsion hearings and appeals, and readmission of expelled students.
In employment matters, Mr. Manniello assists school districts with collective bargaining, employee discipline, layoffs, general personnel issues, grievances and arbitrations. He has assisted school districts with pension issues and the structure of employee benefit plans, CalPERS and CalSTRS issues, employee dismissals and early retirement incentives. Mr. Manniello regularly provides training for clients on these subjects.

3. Presenter Joanne Kim Associate
Joanne J. Kim is an associate Lozano Smith’s Los Angeles office. Ms. Kim represents school districts and county offices of education in a wide-variety of special education, students, and labor and employment matters. Ms. Kim is experienced in all pre-hearing procedures, where she routinely prepares responses to complaints, drafts motions, identifies witnesses and evidence, conducts witness preparation and drafts settlement agreements. She often facilitates investigations and responds to complaints made to the California Department of Education. Ms. Kim served the Los Angeles Unified School District Office of the General Counsel as a Certified Law Clerk where she provided support for all practice groups within the District’s legal department. While in law school, Ms. Kim served as a Judicial Intern for the Honorable Michael Nash, Edelman Children’s Court of the Los Angeles County Superior Court where she conducted research and prepared memoranda on juvenile delinquency and dependency issues. As a Law Fellow at the USC Center on Communication Leadership & Policy, she assisted with the Center’s Trafficking in Persons project by researching statutes and case law related to the trafficking and exploitation of minors.
Bio slide

4. DANGER!
Presentation description: During this session we will explore the legal and practical questions raised when special education issues intersect with personnel and labor issues. Issues related to case load requirements, credentialing, employee discipline, employee assignments, job descriptions, and IEP compliance can be challenging.  These matters are frequently handled by both special education and human resources staff who may be experienced in one area, but require assistance and guidance in the other.  Spot the road hazards and speed bumps commonly found on this path to avoid accidental missteps and to minimize your potential liability.

5. When Special Education and Personnel Issues Collide…
Ms. Jones is a 2nd grade special education teacher with a mild/moderate disability credential. Ms. Jones is the case carrier for 24 special education students, including Bobby, a severely autistic student with serious behavioral issues. Bobby has a one-to-one aide. Of the 24 students on Ms. Jones’ caseload, at least 11 have overdue annual and/or triennial IEPs, in large part because Ms. Jones refuses to hold and attend IEPs past the end of the school day at 2:30 p.m.
Appropriate credentials?
Caseload limits?
Unsatisfactory performance?
Defining the work day?

6. When Special Education and Personnel Issues Collide… (cont’d.)
At Bobby’s IEP team meeting, Bobby’s parents requested a different one-to-one aide. Ms. Jones supported this request, criticizing the training and experience of Bobby’s current aide. Ms. Jones identified another one-to-one aide who would be “much more effective with Bobby.” Bobby’s parents have since made numerous demands for this specific aide. Bobby’s parents Ms. Jones numerous times a day with questions and concerns regarding Bobby’s social interactions, implementation of accommodations, etc. Ms. Jones has requested leave due to stress.
Aide assignments?
Teacher’s inappropriate comments?
Work stress leaves?
Reassignment of workload?

7. Roadmap Part I: Bargaining Issues Part II: Discipline Overview/Process
Subjects of Bargaining
Current Trends
Part II: Discipline
Overview/Process
Special Education Considerations

8. Bargaining Issues

9. Overview Duty to Bargain Mandatory Subjects of Bargaining
Credential Issues

10. Duty to Bargain
A public school employer is required to meet and negotiate with the exclusive representatives of employee organizations upon request with regard to matters that are within the scope of representation.
Gov. Code, §

11. Contract Language – Employer Oriented
Flexibility
Transfers
Work day/year
Job descriptions
Definite Terms
Wages
Flexibility to facilitate district’s special education compliance

12. Mandatory Subjects of Bargaining
Wages
Hours of employment
Other terms and conditions of employment
Scope of representation = matters relating to wages, hours of employment, other terms and conditions of employment
Other terms and conditions of employment = health and welfare benefits, leave, transfer and reassignment policies, safety conditions, class size, evaluation procedures, causes and procedures for discipline, etc.
(Gov. Code, § )

13. Wages Separate Salary Schedule
Extra Duty Stipends for items outside of accepted “professional day”
Incentive pay to attract and retain special education staff (e.g., relocation, tuition)
Reimbursements for job expenses (mileage, supplies, etc.)

14. Hours General Personnel Considerations Special Education
Starting and ending times of the work day
Starting and ending dates of the work year
Number of days per year
Holidays and breaks
Mandatory team member requirements at IEP meetings
Timelines to hold IEP meetings
Parent participation (e.g., limiting length of meetings)
♦ Distribution of Workdays in a Week
♦ Holidays & Vacations
♦ Breaks & Duty-free time
♦ Shift schedules
♦ Assignment of special duties
♦ Teacher Instructional Hours
♦ Extra Hours Assignments
♦ School calendar as it applies to employee work schedules
♦ Release Time
♦ Preparation Time
Governed by CBA– defining “work day” and “extra duty pay”
Ex: Issues with teachers attending IEP meetings after regular work hours.
Hours that SPED employees work are bargainable and subject to the CBA.
GE teachers at IEPs:
Generally, IEP meetings are covered under the “work day” as no extra pay is warranted. (Most CBAs say it’s ok to work outside the contract hours of the day for things like IEPs, parent-teacher conferences etc.)
Where there is ambiguity ---- PERB will look to past practice of whether districts pay for attendance of IEP meetings outside the normal work day.

15. Compensation + Time
Possible relief for extra time needed for the development of IEPs, participation in due process hearings, etc.:
Release time without loss of compensation
Compensatory release time (“comp” or “trade” time)
Extra duty work paid at hourly rate

16. Special Education Caseload Issues
TIPS: Exclude from the collective bargaining agreement, except to clarify in favor of the District (statutory maximum). Beware of overly restrictive limits on mainstreaming special education students into general education classes. Consider flexible “equitable distribution” provisions.
Special Education
Maximum # of Students
Resource Specialist Program (RSP)
Maximum 28 students
Speech, Language, and Hearing
Average 55 students; except for ages 3-5, then maximum 40 students
SDC and other blended classes
Governed by the collective bargaining agreement
RSP and SLP #s are statutory. Be careful to check CBA to see if the CBA defines limits --- if those limits are changed, i.e., in the form of waiver or if CBA calls for smaller class size, it may be bargainable.
The average caseload for language, speech, and hearing specialists shall not exceed 55 cases, unless the SELPA plan specifies a higher average caseload and states the reasons for the higher average caseload. The maximum caseload for speech and language specialists exclusively serving children with disabilities age 3-5 years shall not exceed 40. (Education Code , ).
SDC and other blended classes are governed by the CBA.
(Ed. Code, §§ 56362, ; )

17. Job Descriptions, Healthcare Procedures, Employee Safety
Job descriptions: Keep flexibility with “other duties as assigned.”
Health Care Procedures:
Not all related health care services must be performed by a school nurse. School personnel may be permitted to carry out medical orders prescribed by a licensed physician.
Unlicensed school personnel may be trained to administer insulin injections to students with diabetes, w/approval of physicians and parents.
Education Code allows a school nurse or other designated personnel to assist a student who needs to take a prescribed medication during the school day.

18. Job Descriptions, Healthcare Services, Employee Safety
Healthcare related services
Dispensing medication
Diapering
Injections
Tracheotomy
Consider indemnification and hold harmless language to support staff who perform functions.
Employee Safety: Consider District-paid vaccines for employees in direct contact and at risk.

19. Transfer Rights to General Education Assignment
Unions push to protect special education teachers’ rights to transfer into regular assignments.
Maintain right of assignment, limit transfers and protect District’s power to assign employees to any appropriate position for which they are qualified.
Considerations:
Employees with health conditions that warrant a change of assignment?
Percentage cap on transfers to available openings?
Limit transfers to particular positions only?

20. Other Potential Bargaining Topics
Professional development: District-provided training/staff development
Formula for inclusion: Class size maximums with mainstreamed students
Evaluation: Not dependent on success of student’s IEP
IEP: Provision of IEP before assignment of student

21. Consequences for Failure to Follow CBA
Grievances
Unfair Labor Practices
Civil Liability

22. Credentialing
Generally, credential-holders can only teach within their credentialed specialties
Added authorizations
Credential holders who are authorized to serve children with disabilities must possess a credential that authorizes teaching the primary disability of the pupils… (Cal. Code Regs. Tit. 5, § )
Credential authorizations: mild/mod disabilities; mod/severe disabilities; deaf/hard of hearing; physical & heath impairments; visual impairment; early childhood
Added authorization: autism spectrum disorder, Deaf-Blind, emotional disturbance, occupational therapy, other health impairment, Traumatic Brain Injury

23. What if teacher does not have the required credential?
FACTS Ms. Smith has a Mild to Moderate Education Specialist credential and co-teaches a class with Ms. Baker, who holds a credential with an autism authorization. Ms. Baker left the District, so all students with a primary disability of autism have been moved to a similar setting, except for one student whose parent refused to move her child. Ms. Smith does not have the appropriate autism authorization to continue teaching the student. QUESTION Can District force teacher to get new authorization?
If not part of job description, likely no. NO

24. Weissburg v. Lancaster SD (9th Cir.) (591 F.3d 1255)
FACTS
Student was eligible for special education under the category of intellectual disability (ID). District refused to identify Student under the autism (AUT) category. Student’s teacher held a dual certification in ID and AUT.
ADMINISTRATIVE HEARING
ALJ found that Student should have been eligible under both ID and AUT, however, was not denied a FAPE because he received the educational benefits to which he was entitled.
NINTH CIRCUIT
Failure to classify Student as a student with AUT entitled Parent to prevailing party fees. Children with AUT eligibility have a legal right to instruction by a teacher with AUT certification. The change in student’s classification altered the legal relationship between the parties.
The IDEA does not give a student the legal right to a proper disability classification, but legal ramifications do arise from a student's disability classification. Special education teachers must possess credentials specific to a child's primary disability. 
Without AUT eligibility, Student did not have a legal right to instruction by a teacher qualified to teach a student with mental retardation and autism, and Student could have been placed under the care and instruction of a teacher who was not qualified to teach a student with autism. 9th Circuit held that a change in eligibility category materially alters the legal relationship between the parties because it entitles Student to placement in a classroom with a teacher qualified to teach students with the primary disabilities of mental retardation and autism.  parents eligible for attorney’s fees

25. Assignments Outside Specialty Area
Limited Assignment Teaching Permits (5 CCR § 80026)
Declaration of Need for Fully Qualified Educators
Must hold special education teaching credential
Expires after 1 year
Emergency Substitute Credentials (30-Day Permit)
Intern Credentials
QUESTION: Can a speech pathologist help with a district’s response to intervention (RTI) program?
Can the SLP help out with RTI program? How can a teacher’s aide, who helps with RTI groups, be qualified but not an SLP?
Many unions have argued Districts cannot do it; some unions have bargained to allow SLPs to do this.
Even if it’s bargained, unclear whether it’s allowed--- since SLPs cannot provide direct instruction.
MAYBE

26. Paraprofessionals Generally covered under the classified CBA
Qualifications:
High school diploma or equivalent; and
(1) Two years of college (2) Associate’s degree; or (3) Pass local assessment of knowledge and skills in assisting in instruction.
Title I NCLB Requirements
(Ed. Code, § 45330)

27. Paraprofessionals
TRUE OR FALSE If a parent requests a specific aide to work with his/her child, the district obligated to grant this request. TRUE FALSE
There is no requirement in the IDEA that requires a school district to employ or contract with a specific provider, so long as qualified personnel are providing services to a student with special needs.

28. Paraprofessionals
What if the student’s needs change in the IEP and the instructional aide is no longer needed for the same number of hours (e.g., 6 hour employee going to a 4 hour position)?
Consider whether the aide can be assigned to another student and/or classroom
Have union agree to reduction in hours
Initiate layoff procedures
All of the above

29. Paraprofessionals Layoffs
Decision itself is non-negotiable, effects are negotiable
The order of layoff is governed by seniority
60-Day Notice
Ed. Code, § 45101(g); 45298
Effects: managing the workload of other staff who now must cover the work of the employees who were laid off.

30. Paraprofessionals Reduction in hours
To effect a reduction in hours, the district can initiate a layoff, which allows the employee to accept a reduction in hours in order to avoid a layoff.
Decisions to reduce the hours of a position, rather than eliminate it, are negotiable.
Bumping rights.
Bumping rights: before laying off the individual, if there is another position in the same classification with a less senior person, that employee can “bump into” that position, in which case the district would then lay off that less senior employee.
(Ed. Code, § 45101(g); )

31. Paraprofessionals Increase in hours
Ex: Increase aide’s position from 4 to 6 hours
Changes in job description and duties are negotiable.
Adding an additional aide position is not negotiable, but salary and placement are negotiable.
Bumping rights.

32. Substitutes General Requirements Education Code § 56061
Substitutes beyond 40 school days – requires “extraordinary circumstances”
Example: efforts to recruit qualified substitutes

33. Best Practices
Build flexibility into the CBA to facilitate special education compliance.
Check the CBA for additional requirements above Education Code; negotiate less restrictive terms to promote operational efficiencies and adjustments.
Evaluate and remain mindful of potential caseload, credentialing, and staffing issues.

34. Discipline Process 34

35. Discipline: Classified Staff
Statute of limitations
= 2 years (Ed. Code, § )
Subject to discipline for causes listed in Board Policy or CBA (Ed. Code, § )
Common reasons:
Discourteous treatment
Inefficiency/incompetence
Failure to follow directives
Conduct bringing disrepute to school or public employment
Classified employees cannot be disciplined for misconduct occurring more than 2 years prior to the filing of the charges, unless the misconduct was concealed; compare 4 year rule for certificated staff. (Ed. Code, § 45113).

36. Discipline: Certificated Staff
Statute of limitations = 4 years (Ed. Code, § 44944(b)(2).)
Common reasons:
Immoral conduct including, but not limited to, egregious misconduct
Unprofessional conduct
Dishonesty
Unsatisfactory performance
Persistent violation of, or refusal to obey, rules and regulations
(Ed. Code, § )

37. Unsatisfactory Performance in Special Education
Procedural Pitfalls
Failure to convene timely IEP meeting
Failure to properly document the IEP:
Present levels of performance
Goals or progress
Transition plan
Etc.
Failure to include all required team members at an IEP meeting

38. Progressive Discipline
Verbal Warning
Letter of Concern
Letter of Reprimand
45/90-Day Notice
Suspension
Dismissal
If minor violation occurs, conduct a mini-investigation and document findings.
Discipline progresses from less severe to more severe to allow the employee a chance to improve.
Evaluations and improvement plans can fit anywhere in this process.
If minor violation conduct a mini-investigation and document findings to keep a written record.

39. Investigation Uniform Complaint or Complaint Against Employee?
In-house v. Independent Investigator
Investigation Report  District
Investigation Findings  Employee
This is not a one size fits all approach and depending on the facts you may need only a verbal warning
Either UCP or complaint against employee (depending if there are allegations of protected class discrimination). (BP/AR)
Depending on the allegations the District will need to choose either in house investigator or independent investigator regardless of who is chosen they will need to produce an investigation report.
Employee not entitled to the investigation report, ok to provide employee with a findings letter detailing the allegations against him/her and the investigation findings.

40. Letter of Concern Versus Letter of Reprimand
Requires that behavior be corrected
Not a formal reprimand
Formal reprimand
Not always included in personnel file
Included in personnel file (with response, if any)
May require further corrective action (e.g. additional training)
You have failed to ensure that the IEPs of students assigned to your caseload are compliant with state and federal law, which may constitute a denial of FAPE.
Very important to not have any admissions on the personnel side ----if student later claims denial of FAPE in a due process or CDE complaint.
Letter of Concern
Not a formal reprimand, rather it expresses concern about the employee’s behavior and directs the employee to change the behavior
Does not go to the personnel file, but district should retain discretion to place it in the file at any time.
Letter of Reprimand
Serves to formally reprimand an employee for misconduct.
The letter is placed in the employee’s personnel file and the employee is provided time to respond. The employee’s response is also placed in the personnel file.
A letter of reprimand may include requirement that the employee attend training.
Wording is key here you need to let the employee know what he or she did wrong without having the letter admit the District denied FAPE.
Examples: “On March 1, 2016, you convened an annual IEP meeting for one of your students. During the IEP meeting it was discovered the baseline information on the student’s goals had not been updated.”
Frame the conduct as violating directives of what the teacher is required to do as part of his/her job rather than FAPE violation and denial of services to the student.
For CSEA positions must have grounds for discipline/termination which we will not cover in this presentation.
** Notice of disciplinary action, including suspension without pay, must contain a written statement of specific acts and omissions upon which the disciplinary action is based, a statement of the cause for the action taken and any rule or regulation of the employer that the employee is alleged to have violated. Simply citing the code, policy or regulation without clear and concise language of the intended action and the violation is insufficient. The employee may restrain any further proceedings if the notice of disciplinary action violates these requirements under Ed. Code, §

41. Drafting Letters of Concern and Reprimand
TIP: Carefully word letter so as to avoid making admissions
INSTEAD OF:
TRY:
Your failure to convene a timely IEP constitutes a denial of FAPE.
Your failure to convene a timely IEP may constitute a denial of FAPE.
Frame the conduct as violating the directives of what the employee is required to do as part of his/her job, rather than a FAPE violation and denial of services to the student.
You have failed to ensure that the IEPs of students assigned to your caseload are compliant with state and federal law, which may constitute a denial of FAPE.
Very important to not have any admissions on the personnel side ----if student later claims denial of FAPE in a due process or CDE complaint.
For CSEA positions must have grounds for discipline/termination which we will not cover in this presentation.
** Notice of disciplinary action, including suspension without pay, must contain a written statement of specific acts and omissions upon which the disciplinary action is based, a statement of the cause for the action taken and any rule or regulation of the employer that the employee is alleged to have violated. Simply citing the code, policy or regulation without clear and concise language of the intended action and the violation is insufficient. The employee may restrain any further proceedings if the notice of disciplinary action violates these requirements under Ed. Code, §

42. Managing Cert. Staff Following 45/90-Day Notices
Suggested Directives:
Correct behavior
Additional training
Cure and correct all deficient IEPs
Attendance of District representative at each IEP meeting on teacher’s caseload
Supervisor’s review any IEP paperwork before finalization

43. Disciplinary Impact on Special Education
Non-SPED Offense
SPED Offense
Example: SDC teacher found with inappropriate content on computer
Example: SDC teacher/case manager improperly handles caseload (e.g., IEPs held outside timeline)
Disciplinary action: Remove teacher from classroom
Impact: Find substitute for the SDC class (i.e., credentialing issues)
Disciplinary action: Issue Letter of Reprimand
Impact: Potential denial of FAPE; reconvene IEPs on teacher’s caseload
Look at the situation from both perspectives--- even if not about SPED, may still have an impact on SPED.

44. Best Practices
Keep open communication between Special Education and Human Resources departments
Carefully word personnel documents with both special education and human resources interests in mind
When problem with a special education teacher arises, review other IEPs on teacher’s caseload for compliance; cure and correct errors, if necessary
Provide additional special education trainings
Be an active and proactive manager!

45. Questions
Questions Slide

46. Back Slide
Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact or call (559)
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47. Sample CBA Language #1: Hours & IEP Meetings
The District agrees to make every effort within the limitations of state and federal law to ensure that IEP meetings not occur beyond the 8-hour workday referenced in Article XX, and that no more than three (3) meetings per month extend beyond the 6 hours and 35 minute on-site workday referenced in Article XX.X.X.

48. Sample CBA Language #2: Hours & IEP Meetings
IEP meetings shall typically end not later than 5:00 p.m. IEP participants may agree to continue the meeting after 5:00 p.m. and to an agreed upon time to avoid convening a continuation meeting. A unit member will be paid at the hourly rate when attending an IEP meeting after 5:00 p.m. [OR – A unit member’s attendance at an IEP meeting after 5:00 p.m. is considered a part of the professional work day.]

49. Sample CBA Language #3: Time in Due Process Hearings
When a unit member is required to participate in a due process hearing or other due process procedure, the District will provide the unit member with release time for the purposes of preparation and attendance at the hearing, without loss of compensation. If the due process hearing is held during instructional preparation time or after regular hours of employment, a unit member will receive the hourly rate of pay or will be provided compensatory release time which may be accumulated and utilized at the unit member's discretion. [OR - A unit member’s attendance at a due process hearing or related due process meetings is considered a part of the professional work day, and may occasionally extend beyond the normal work day.]

50. Sample CBA Language #4: Caseloads
The District will attempt to maintain caseloads or class sizes as set forth below:
Education Specialist: Mild/Moderate: 20
Education Specialist: Moderate/Severe: 12
Resource Specialist: 28 students with IEPs
Deaf and Hard of Hearing (DHH/Deaf Education): 10
Speech and Language Pathologists (SLP), Elementary level: 55 (inclusive of a maximum of 5 speech improvement students and 5 RTI cases)
Speech and Language Pathologists (SLP), Secondary level: 55 IEPs
Speech and Language Pathologists (SLP), Early Childhood: 40 (inclusive of a maximum of 5 speech improvement students and 5 RTI cases).
Special educator caseloads that include both Mild/Moderate and Moderate/Severe students shall be reduced proportionally to reflect the above.
The caseload of SLPs serving both school-age and preschool children shall be reduced proportionally to reflect the amount of the SLP’s assignment devoted to preschool.

51. Sample CBA Language #5: Caseloads
Classes designated as special education classes (i.e., severely handicapped, communicatively handicapped, physically handicapped, deaf/hard-of-hearing, blind/low vision, severely emotionally disturbed, or combinations of the above) shall not exceed a class load of 11. If at any time during the school year a class load exceeds 11, the process will be resolved according to Article XX.X.
When a class size/case load limit has been exceeded, the unit member will initiate a grievance at Level One as per current contract.

52. Sample CBA Language #6: Caseloads
SDC (Mild/Moderate or non-severe) classrooms for grades 7-12 will be limited to a district class size goal of fifteen (15) students. If the limit is exceeded, the teacher shall receive a $5 stipend per day per student over the individual class size goal.

53. Sample CBA Language #7: Healthcare & Transfers
The District shall not deny to any unit member assigned to specialized health care duties the right to transfer to a vacant position for which the unit member has an appropriate credential using the following criteria…

54. Sample CBA Language #8: Evaluation
The District recognizes that some Individuals With Exceptional Needs may not meet or exceed the growth projected in the annual goals and objectives of the pupil's Individualized Education Program. In such instances, a unit member's accountability shall be limited to having implemented the services provided by the District.

55. Sample CBA Language #9: Section 504
District will provide the Union, on an annual basis, with the name of the employee responsible for assuring District compliance. District will provide the Union with a copy of the grievance procedure for Section 504 issues for parents, students and employees. Unit members who participate in the formulation of a Student Accommodation Plan shall be granted release time from their regular duties to perform tasks related to formulating the plan. Unit members who work beyond the workday in developing Student Accommodation Plans shall be paid additional compensation equal to their pro rata hourly rate of pay for each hour or part thereof Qualified and trained nurses shall be the only bargaining unit members to dispense medication.