When I was a kid, I loved the movie Short Circuit. (I know: I’m both dating myself and making you question my taste in movies). I always wondered if the day would come when I would have my own walking, talking robot friend like good old Jimmy Five. We aren’t quite there yet, but today you can buy a Roomba™ to roll around cleaning your living room (and even control it with your phone), and yes that was the drone your neighbor got for Christmas flying around your back yard, so I’d say we are a lot closer today than we were in 1986. In the special education realm, we are even closer, with a host of robot products available to help special education students in their educational pursuits. Of course, their use raises the question: Are school leaders taking the necessary precautions to keep from turning our robot dream into a legal nightmare? Since I am speaking at LRP’s Special Education School Attorneys Conference this week in Austin, Texas, I thought this was a perfect time to think about the intersection between technology and special education, so here are my thoughts on robots in school.
First, some examples of how robots are being used for special education purposes. For those of you who subscribe to LRP’s Special Ed Connection service, you can read a recent article there on the topic of robots used to help students who cannot attend class face-to-face. And there are also stories of dancing robots redefining special education inclusion and the ASK NAO robot that can help students with autism develop social skills.
What are the legal concerns that should be considered with robots in the special education realm? Here are a few considerations:
- If a robot records the classroom, be cognizant of student records concerns under FERPA or state laws, like Illinois’s School Student Records Act. Remember, however, that with respect to other recording devices for special education students, OCR has taken the position that under Section 504, student use of a recording device cannot be conditioned on a release from other students in the classroom or the parents of those students. One would assume OCR would take the same position with a recording robot, as well. Fairfield-Suisun (CA) Unified School District (OCR San Francisco Mar. 30, 2012).
- Even if there is no recording, if the robot transmits a “live feed” of the classroom to a student in a remote location, who will be watching the recording and where? Although student records concerns may not be implicated because there is no “record” created, privacy considerations may still come into play, especially if there is not some level of control by the school over who is watching the feed. Deal with these issues in your written agreement with the student and his/her guardian.
- Carefully understand the robot maker’s security controls to prevent an outsider hacking into the recording or feed on a robot. You put together security concerns about baby monitors with live internet feeds and concerns about the safety of education technology products more generally, and you can see why security would be a top concern for me (and should be for school leaders, too) when it comes to robots in the special education realm. Make sure to review carefully, preferably with assistance of legal counsel, any agreement or terms of service with the company to make sure security is top notch.
- What data, if any, does the company operating a robot see or retain? By now, we’ve all heard reports of the pitfalls that come with the spread of education applications and services that store or use student data. Again, a careful review of the contract or agreement with the company should be sufficient to address these concerns.
- If a student is allowed to take a robot home, remember the importance of an agreement with the student and his/her guardian about caring for school property, acceptable use of the technology, and other expectations.
- Finally, what notice should be given to parents of other students? To teachers and staff (and their unions)? In my experience, any recording or transmission of the classroom can lead to raised antennas by parents and teachers alike. And parents may also want to know generally what technology students are using the classroom, even if there is no transmission or recording. But notification must balance the rights of privacy of other students, so as always take care.
As usual, this emerging technology offers real value in the schoolhouse. It’s exciting to see how clients and friends are innovating and using robots in powerful ways. If we all keep in mind the legal considerations that may arise with these robots, we will be in the best position to avoid conflict or concerns down the road and avoid our own legal “short circuit.”
Those who follow the intersection between special education and technology know there is a dearth of administrative decisions and case law addressing what, if any, responsibility school districts have to provide or otherwise pay for technology for special education students. A recent administrative decision from Massachusetts sheds some light on this murky area. The case was unique because rather than addressing whether a device was “assistive technology” necessary to provide the student a free, appropriate public education (FAPE), it was looking at whether the district had complied with a hearing officer decision requiring it to reimburse for tuition and related expenditures for a unilateral private residential placement. Nonetheless, because the case addressed when technology might be an essential part of a special education student’s program, it’s worth a read for school leaders who deal with these issues.
The case involved a highly intelligent special education student with Asperger’s Syndrome, ADHD, and related issues. In an earlier administrative decision, a hearing officer found that the student’s school district, Barnstable Public School, was required to reimburse the student’s parents for their unilateral placement of the student at a private residential school, Franklin Academy, which the student began attending after the parents disagreed with the school district’s proposed high school placement for the student. Following that decision, Barnstable reimbursed the parents in full for tuition payments they made to Franklin Academy and expressed willingness to reimburse the parents for certain transportation expenses. The school district disputed, however, whether it was required to pay the parents for numerous “related expenses,” including certain technology expenses. Specifically, the parents asked for $11,224 for reimbursement for an Apple laptop computer, an iPad, and iPhone, audiobooks, various accessories, data plans, software, apps, phone fees, and other similar expenses. The parents argued that the items at issue were components of “special education” and/or “related services,” and, therefore, must be provided at no cost to the parent. (more…)
Readers of our FR Alerts may remember my colleague Kendra B. Yoch authored an Alert in 2013 about a set of outlier cases in the Ninth Circuit Court of Appeals, K.M. v. Tustin Unified School District and D.H. v. Poway Unified School District. The cases dealt with a request by a student with a hearing impairment for a certain technology service as an accommodation. A three-judge panel of the Court of Appeals held that a school district violated disabilities laws even though it had complied with the Individuals with Disabilities Education Act (IDEA), because compliance with the IDEA does not satisfy all claims under Section 504 of the Rehabilitation Act (Section 504) or under the Americans with Disabilities Act (ADA).
If you are outside the jurisdiction of the Ninth Circuit (Arizona, Washington, Oregon, California, Montana, Idaho, Nevada, Alaska, and Hawaii), you may rightly think “Well that’s interesting, but luckily it doesn’t apply to me.” Although normally that response is correct, the U.S. Department of Education’s Office for Civil Rights (OCR) last fall adopted the Tustin standard in a “Dear Colleague Letter” (DCL), thus applying the standard to school districts across the country. Last month, the National School Boards Association called OCR out in a letter. As NSBA reported, it argued in its letter that OCR was off base in so widely applying an inappropriate standard and one that has only been adopted by one court in one jurisdiction.
The Tustin Decision
In the Tustin case, two hearing impaired students had individualized education programs (IEPs) providing services and accommodations to address their communications. There was no question that the students were receiving a free and appropriate public education (FAPE) under the IDEA, because they were making progress and receiving meaningful educational benefits. The students’ parents wanted the schools to provide the students Communication Access Realtime Translation (CART), which is a service where a stenographer transcribes communications in real time, which are then streamed to the student’s computer in closed captioning. The Ninth Circuit held that the mere fact that the students were being properly served under the IDEA did not preclude liability under Section 504 and the ADA. (more…)
In a recent ISBE Superintendent’s Message, school districts were reminded that it’s the time of year when districts should be planning to complete annual, timely and meaningful consultation (TMC) with private schools and families of home-schooled students with disabilities. ISBE encouraged school districts to complete the TMC by no later than October 15, 2012, and to submit documentation of the TMC by November 1, 2012. ISBE also reminded school districts that the specific steps for conducting TMC can be found in ISBE’s guidance memos—Supplemental Guidance Information To Memorandum #05-7 (August 11, 2005) Regarding The Non-Public Proportionate Share (April 21, 2006) and Special Education Services For Parentally Placed Private School Children With Disabilities (June 25, 2006), and that ISBE has an affirmation form available for school district use.
A review of the ISBE guidance materials raises a related and interesting issue relating to special education evaluations for private school students. When a student resides in school district A, but attends a private (non special-education) school located in school district B, which school district has the responsibility to evaluate the student? (more…)
With guest blogger Darcy Kriha
We have received an unusually large number of calls from school districts over the past few weeks concerning the administration of EpiPens® in schools. The relevant Illinois statute was amended over one year ago, on August 15, 2011. So why the sudden uptick in calls? It turns out that the local media extensively covered a press conference held on August 13 by Illinois Attorney General Lisa Madigan at Chicago’s Lurie Children’s Hospital, urging Illinois school districts to acquire Epinephrine Auto-Injectors (EpiPens®) to administer to students who experience anaphylactic shock at school.
The big question: are schools required to stock EpiPens®? The answer is no – the statute is permissive, not mandatory. We are aware that a handful of school districts decided to obtain extra EpiPens® to administer to students in case of an emergency, even in situations where the student does not have a known allergy. Policy revisions, notice to parents, staff certifications, filling of prescriptions, etc., are all issues that need to be addressed and discussed with counsel if a district chooses to stock EpiPens®.
If you are looking for more information, the Attorney General’s Office website contains a comprehensive and well written summary of the Emergency Epinephrine Act (P.A. 97-0361; 105 ILCS 5/22-30) along with three ‘fact sheets’ directed to parents, physicians, and schools.
Back to school is a busy time for school administrators, but don’t forget your Section 504 obligations. The following are tips to remember during student registration and the first weeks of school regarding Section 504 identification and eligibility:
- Provide information about Section 504 to parents during the registration process and through the school district website, in addition to other systematic efforts to communicate the school district’s Section 504 policies and procedures to stakeholders. Include a summary of Section 504, the processes used to determine eligibility, and contact information for relevant school administrators.
- Train administrators and staff about current standards for 504 eligibility so that warning signs are not missed. Importantly, under the definition of disability from the 2009 ADA Amendments Act, a student can be eligible under Section 504 even if the student’s disability does not impair learning. Simply because a student has good grades does not mean she is ineligible for Section 504. Look for other impacts of a disability, such as problems with behavior. Our firm issued a summary of the 2009 amendments and their impact on Section 504 that is a good starting point for a review.
- Ask for documentation supporting the student’s claim that he or she has a covered impairment, but don’t demand a medical diagnosis. For those with Special Ed Connection access, the Houston Independent School District special education updates blog has a link (subscription required) to an article warning against requiring a medical diagnosis as a condition for assessing student 504 eligibility.
- Watch for signs that a student is not responding to general education interventions and move toward Section 504 evaluation if necessary. Although it is appropriate to respond to student concerns with such interventions, persisting with them once they prove to be inadequate can spell trouble for the school district (subscription required).
Most if not all districts already have standard Section 504 forms which accurately comply with the 2009 changes to the ADA, the most recent legal update needed. If your district has had usability issues with its forms, Franczek Radelet recently updated the standard forms to make them more user-friendly. If you are interested in these newly formatted forms, e-mail me at jfw@franczek.com.
What About Private Schools?
As Nirvi Shah explained at On Special Education, the Department of Education takes the position that unless a private school receives federal financial assistance it is not subject to Section 504. Public schools should seek the advice of legal counsel if evaluation and/or services are sought by a student attending a private school, however, because the issue of whether such a student should receive services under Section 504 is still unsettled.
