Peggy Burns Education Compliance Group, Inc. 888-604-6141 Copyright © 2012, Education Compliance Group, Inc. All rights.

FINDING DIRECT ROUTES TO BY-PASS REAL RISKS

Peggy BurnsEducation Compliance Group, Inc.

888-604-6141www.educationcompliancegroup.com

Copyright © 2012, Education Compliance Group, Inc. All rights reserved.

Where’s the Risk?Hazards Even Veterans May

Not Recognize

The New Guy

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

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?

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

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)

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

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. 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

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

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?

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

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

Preventing Problems from Escalating

When By whom Who needs to know? Resolving inconsistencies Drawing conclusions

Fact finding

. . .in a nutshell

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

Five Keys to Avoiding Risks

Cross-training for employees Documenting concerns Ensuring necessary coordination is in

place Listening with an open mind Hearing the real issue Accountability and consequences

And there’s more: Keeping concerns from falling through the

cracks

PO Box 221Lafayette, CO 80026

888.604.6141www.educationcompliancegroup.com

Education Compliance Group, Inc.