August 2017

Click image above to download full 48-page issue (5 MB PDF file).

These articles were written for members of the Clark County County Bar Association and published in the “Education Law” issue of the printed publication, Communiqué (August 2017):

Additionally, CCBA President Tami D. Cowden considers continuing legal education in her message, Education Addiction.

Included in the printed magazine are practical features and highlights for Nevada attorneys including:

  • “Determining Which Appellate Cases Are to Be Retained” by  Supreme Court of Nevada by Chief Justice Michael A. Cherry
  • “Nevada Appellate Court Summaries” by Joe Tommasino, Esq.
  • “Volunteering to Help a Local Food Pantry”” by Paul Lal, Esq.
  • Sidebar: What do you think of the new Clark County District Court e-filing system?”” By Heather Anderson-Fintak, Esq.
  • Highlights from recent Clark County Bar events

© 2017 The following articles were originally published in Communiqué, the official publication of the Clark County Bar Association. (August 2017). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


The Importance of Related Services Under Special Education Law

By Eunice Beattie, Esq.

Over 6.5 million children in the United States benefit from special education. Under the Individuals with Disabilities Education Act (IDEA), if a student receives special education at school, that student is also entitled to receive related services.

Available related services

The IDEA includes an array of support services enabling students to benefit from their special education programs, including but not limited to: transportation; developmental, corrective and other supportive services to assist a student to benefit from special education; speech-language pathology; audiology services; interpreting services; psychological services; physical and occupational therapy; recreation; early identification and assessment of disabilities; counseling; orientation and mobility services; and medical services for diagnostic or evaluation purposes. 34 CFR 300.34. Related services that a student receives are governed by what is included in that student’s Individualized Education Program (IEP). The IEP is a written document that sets forth the components of the student’s education program and is created through a collaborative process between the parents and the school. However, the IEP will not include all the related services requested by the parents, but will only include the services necessary for that student to receive a Free Appropriate Public Education (FAPE).

Transportation as a related service

Transportation is a related service that must be included in a student’s IEP if it is needed for that student to receive special education services. 34 CFR 300.34 (c)(16). For example, a special education student may require curb-to-curb transportation. Reasons for curb-to-curb transportation include (but are not limited to): a student with physical limitations; or students who are runners, non-verbal, unaware of common danger, and/or unable to follow directions.
A special education student may require special accommodations on the bus. Examples include, but are not limited to: a special bus time home to rest; an aide on the bus to assist with medical conditions; emergency administration of medication on the bus; and/or modifications to the environment during transportation, such as temperature adjustment or noise-reducing headphones. Support for these types of issues are available and should be raised at IEP meetings; otherwise, the student could lose out on potentially valuable and life-saving services.

Other examples of related services

Under the IDEA, the school district must provide medical services that can be performed by non-physicians. Services provided by a licensed physician to determine a student’s medically related disability resulting in a need for special education and related services are also covered under the IDEA. 34 CFR 300.34(c)(5). A student’s health issues should be discussed at every IEP meeting to ensure the student is receiving appropriate related services. If a student’s health issues change (i.e. change in medication), parents can (and should) request an IEP meeting to discuss these issues and to make changes to the IEP, if deemed appropriate.

Under CFR 300.34, counseling, psychological, and social work services are also considered related services. For example, a student with an IEP for emotional disturbance, who is acting out and in danger of continued discipline, may be an appropriate candidate for regular counseling, and counseling services may be incorporated into the IEP. Family counseling may be offered to parents in order for the student to benefit from his or her special education.

Assistive technology devices may also be a related service, falling under the category of special education, related services, or supplementary aids and services. Devices such as iPads, calculators, or computers could be considered by the IEP team; the decision of whether to provide a device and what device to provide is made on a case-by-case basis.

What If the team cannot agree?

Generally, if there is a concern with the school district about any matter that is unresolved, a public concern may be filed and a formal investigation will be opened. Public concern forms are available at all CCSD schools, and are also available online.

If a parent has a concern with the special education and/or related services his or her child is receiving, he or she may contact Clark County School District’s Office of Compliance and Monitoring for possible investigation and resolution. If this avenue is unsuccessful, the parent is not precluded from taking additional steps as set forth below:

  • Any individual or organization may file a state complaint if state or federal education laws have been violated, or file a discrimination complaint with the Office for Civil Rights.
  • Mediation is available to allow resolution of disputes resulting from the school district’s identification, evaluation, and/or placement of students and/or whether the school district is providing FAPE. Parents may request mediation, in writing, to the Office of Compliance and Monitoring, or to the Nevada Department of Education.

Finally, a parent may choose to file a due process complaint, which considers the proposal or refusal to initiate or change the placement of a special education student and/or whether the school district if providing FAPE. Due process complaints must be filed within two years of the violation of the special education law. The parent’s request for due process must be in writing to the Superintendent of the school district. After a due process is filed, the school district shall convene a resolution session to try to solve the issues without a hearing. If the parties are unable to resolve, the hearing will go forward. An appeal process is also available.
The list of related services under the IDEA is illustrative, not exhaustive. As such, the IEP team is free to explore and include any other developmental, corrective, or other supportive services that would assist a student with his or her special education. See 34 CFR 300.34. The determination of what related services are necessary is made on an individualized basis, taking input from the IEP team and focusing on each individual student’s unique needs and circumstances. If team members are uncertain of what services are available, they are encouraged to inquire or make suggestions. As putting together the IEP is a team effort, it is essential to explore all areas of concern, being mindful of the protections the IDEA offers, not only for special education, but for related services.

Eunice Beattie, Esq., is the team chief of the Education Advocacy Program at Legal Aid Center of Southern Nevada.


Rule the School: Practice Tips in Representing Nevada Charter Schools

By Mark Gardberg, Esq.

The charter school world could use some good P.R. Across the country, regulators have disclosed one investigation after the next, for everything from financial irregularities to grade manipulation to sexual harassment to failing academic results. Comedian John Oliver recently spent 20 minutes mocking Ohio charter schools, only to end with the unfortunate remark: “[B]e glad [Ohio,] you have Nevada, so you are not the worst . . . .”

The reality is not so dire. Nevada charter schools are strong and growing stronger. The Silver State has many five-star ranked charters like the Oasis Academy, Nevada State High School, and two Coral Academies of Science. Nevada charters have earned one accolade after another, including “Quality School” and “Reward School” designations. Meanwhile, new, topnotch operators strengthen the sector each year, such as the Legacy Traditional School opening later this month.

Nevada charter schools can, in fact, compete with any institution, private or public. If, for example, your daughter wanted to attend one of The Washington Post’s 401 “Most Challenging High Schools” in the country, her first two options would be private schools charging over $20,000 a year. Nevada’s third and sixth options—Coral Academy of Science in Reno and Las Vegas, respectively—are charter schools that will not cost her a penny.

Swiss army knife

Representing a charter school—even a top-performing one—has its challenges. A charter school lawyer is less like a steak knife, and more like a Swiss army knife. You must be able to quickly and competently navigate multiple areas of law, switching from regulatory issues to labor laws to transactional to litigation matters, often all in one conversation. Below are some of the more common issues you might encounter as charter counsel, with practice tips sprinkled in to help you drive your client’s interests forward.

Regulatory and legal compliance

A charter school’s foundational document is its charter contract with a sponsoring authority, which is usually the State Public Charter School Authority (“SPCSA”), for normal and high-achieving schools, and Achievement School District (“ASD”), for underperforming schools. (See AB 448 (2015).) To obtain a charter, your client must submit a lengthy application to its sponsor, kicking off a process spanning six months to a year.

Practice Tip: Be careful when using a prior school’s application as a guidepost in preparing your own. The application process changed substantially after the 2015 Legislative Session. For current information, see the SPCSA’s and ASD’s very helpful websites at http://charterschools.nv.gov/ and http://www.doe.nv.gov/ASD/, respectively.

Once your client’s school opens, the degree of difficulty only increases. As counsel, you must oversee compliance not just with the school’s charter, but also, for example:

  • The two Charter School Acts (NRS Chap. 388A and 388B);
  • Laws governing teachers, staff, and pupils (NRS Chap. 391 and 392);
  • Local government public-procurement laws (NRS Chap. 332.039 et seq.);
  • Open Meeting laws (governing the school’s board meetings in particular) (NRS Chap. 241);
  • The Public Records Act (as to school records) (NRS Chap. 239); and
  • Federal disability laws, including the ADA and Rehabilitation Act.

Practice Tip: One hot-button compliance issue concerns for-profit, educational management organizations (“EMOs”). Those are usually regional or national companies managing charters across state lines. By law, the SPCSA must review the EMO/charter school relationship, with special focus given to how funds will flow among them. (NRS 388A.246; 388A.393.) Unfortunately, given the broad EMO definition in NRS 388A.030, some have argued that virtually every school vendor—from true EMO to back-office provider to mere cleaning/janitorial contractor—may qualify. I suggest contacting your client’s sponsor to discuss which relationships will require EMO qualification.

Employment / labor law

Another common source of charter school legal questions concerns employment and labor laws. Be prepared, as counsel, to: (i) advise on teacher licensing; (ii) draft employment offers and contracts; (iii) conduct new-hire trainings (e.g., on sexual harassment and child abuse reporting); (iv) draft personnel handbooks; (v) address public retirement (“PERS”) questions; and (v) respond to the inevitable question, “How do I fire John Q. Teacher?”

Litigation and dispute-resolution

As the joyful litigators among us will confirm, we live in a litigious society. Like any business or institution, a Nevada charter school, no matter how well operated, will encounter disputes. Ripe areas for litigation include: (i) tort claims (e.g. slip and falls); (ii) wrongful discharge claims; (iii) breach-of-contract claims (e.g., disputes by or against vendors); and (iv) family-law matters (e.g., the school’s handling of child-custody orders and protections).

Practice Tip: One unexpectedly complicated area involves student expulsions and long-term suspensions. As counsel, you will have to marshal a variety of statutes governing when the school board hears the matter, what type of notices and service are required, the fact that the Open Meeting Law does not apply (i.e., the hearing is closed), whether the student can be represented by counsel and present evidence, and so forth. (See, e.g., NRS 241.033-034, 388A.495, and 392.466-467). There is also extensive case law regarding related issues like reasonable suspicion, search and seizure, and substantive and procedural due process.

Practice Tip: An initial, but often overlooked, question in any charter school litigation is whether the school enjoys sovereign immunity. Charter schools and their employees are generally immune under NRS 41.0305 and 41.0307. For negligence and other tort claims, however, the state has waived immunity. The same is true for ministerial actions (e.g., driving a school bus), but the state has retained the immunity for discretionary actions (e.g., determining which students to bus). See Martinez v. Maruszczak, 123 Nev. 433, 437, 168 P.3d 720, 723 (Nev. 2007); City of Boulder City v. Boulder Excavating, Inc., 124 Nev. 749, 756, 191 P.3d 1175, 1179 (Nev. 2008).

Transactional work

Last but not least, a charter school lawyer must wear a transactional attorney’s hat. Your client will contract with vendors on everything from computers, books, and other fixed assets, to special education, counseling, P.R., and other services, to accounting, enrollment, and academic software. Moreover, your client will lease or buy real property, and may also construct a new school building on that land. The charter school may need to sell tax-exempt bonds pursuant to NRS 388A.550 et seq. to finance those capital projects.

Practice Tip: Whether a charter school leases or owns its campus, it is immune from paying real property taxes. (NRS 361.065.) What some schools do not realize, however, is that the statutes have deadlines for when applications must be submitted. (NRS 361.155.) If the school misses a deadline, it is likely to receive the exemption on appeal, but it may take weeks or months to sort out and greatly increase its legal fees and costs.

Mark Gardberg is a partner in the Las Vegas office of Howard & Howard, a 148 year-old law firm. In addition to practicing charter school law (his clients include Coral Academy of Science Las Vegas), he has 20 years of experience in M&A, real estate, corporate, and financing transactions.


Education in the Digital Age

By Lin Soriano

Global Citizen. Knowledge Constructor. Empowered Learner. According to the International Society for Technology in Education (ISTE), the list of standards for K-12 students goes on and on. See The ISTE Standards for Students, http://www.iste.org/standards/standards/for-students, last visited July 5, 2017. We all know this is a global society and our children, my students, will be required to have technology skills that you and I never dreamed of.

The difficult part is how do we accomplish this within the legal constraints of digital learning? Many public school districts, private schools, and charter schools now offer fully online learning. Students attend class virtually through online teaching sessions, discussion boards, video chats, and a variety of other means. Although this offers great flexibility for scheduling purposes and can often lead to early graduation for motivated students, there are newly arising legal issues that must be considered.

For example, cyber bullying must be closely monitored and addressed as it comes up. With students at a computer or other device for several hours a day, it becomes easy to hide behind technology and say hurtful things to other students, especially if it can be done anonymously. Nevada Revised Statute 388.135 was created to address bullying, harassment, and cyberbullying in schools and has strict guidelines for how bullying must be handled by school officials. Although the statutes are a helpful roadmap, cyberbullying in the online education setting is still prevalent and of concern for parents and educators.

Other legal issues in online education in the K-12 and higher education settings continue to arise and just like any other area of our lives touched by technology, the law is like your 1997 modem—slow to keep up.

Lin Soriano is an Assistant Principal in the Clark County School District and a Boyd Law student. She hopes to blend the law and her expertise in field of education and become involved in writing educational policy once she graduates.


About COMMUNIQUÉ

COMMUNIQUÉ is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

© 2017 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

COMMUNIQUÉ accepts advertisements from numerous sources and makes no independent investigation or verification of any claim or statement made in the advertisement. All articles, letters, and advertisements contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Clark County Bar Association.

COMMUNIQUÉ is mailed to all paid members of CCBA, with subscriptions available to non-members for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) 387-6011 or stephabbott@clarkcountybar.org.