KDE Legal Update

Kevin C. BrownLisa K. Lang

Todd G. AllenChase Bannister

Amy PeabodyKentucky Department of Education

Available at: http://education.ky.gov/districts/legal/Pages/default.aspx

The Role of Educatorand

The Importance of Establishing Appropriate Boundaries with

EducatorsLisa Lang

Assistant General CounselKentucky Department of Education

Lisa.Lang@education.ky.gov

As you know, educators often serve many roles in the lives of students.– Instructor– Disciplinarian– Mentor– Role Model

When serving students in these roles, it is imperative that educators ensure that they maintain a professional relationship with the students. Professional relationships require clearly defined professional boundaries.

The Professional Code of Ethics for Kentucky School Certified Personnel provides some guidance regarding boundary issues, but it is somewhat limited:

Shall not engage in any sexually related behavior with a student with or without consent, but shall maintain a professional approach with students. Sexually related behavior shall include such behaviors as sexual jokes; sexual remarks; sexual kidding or teasing; sexual innuendo; pressure for dates or sexual favors; inappropriate physical touching, kissing, or grabbing; rape; threats of physical harm; and sexual assault.

16 KAR 1:020, Section 1, (3)(a)

There are efforts underway by the National Association of State Directors of Teacher Education and Certification (NASDTEC) to create a model code of ethics for educators, but it is not yet a reality.

Absent state law or regulation that defines the appropriate boundaries between teachers and students, the responsibility falls on school administrators.

Possible Action Steps

– Anti-fraternization policies– Careful screening of all employees– Revise school handbooks– Centralize record keeping– Training for teachers– Training for students

Why?

– Protect students falling victim from abuse– Protect teachers from false accusations of abuse

Useful Resources•Connecting With Students While Maintaining Ethical Boundaries http://www.cedu.niu.edu/~shumow/itt/doc/MaintainingEthicalBoundaries.pdf

•Hansen, Paul. “Caring and Elementary Teaching: The Concerns of male Beginning teachers.” Journal of Teacher Education. Vol. 56 No. 119 (2005).

•Aultman, Lori Price (et al.). Boundary dilemmas in teacher-student relationships: Struggling with “the line.” Teaching and Teacher Education. Vol. 25 (2009) pp. 636-646.

•Carr, David. “Personal and Interpersonal Relationships in Education and Teaching: A Virtue Ethical Perspective.” British Journal of Educational Studies. Vol. 53, No. 3, (Sep. 2005), pp 255-271.

• Hansen, Paul. “Caring and Elementary Teaching: The Concerns of Male Beginning Teachers.” Journal of Teacher Education. Vol. 56 No. 119 (2005).

Questions?

Lisa K. LangAssistant General Counsel

Kentucky Department of Education500 Mero Street, CPT 134

Frankfort, KY 40601502-564-4474 ext. 4816

502-564-9321 (fax)lisa.lang@education.ky.gov

PGES UpdateUpcoming Changes &

Implementation TimelineTodd G. AllenStaff Attorney

Kentucky Department of Educationtodd.allen@education.ky.gov

704 KAR 3:370Professional Growth & Effectiveness System

(PGES)

• US Department of Education requires evaluation system for ESEA waiver.

• KRS 156.557 requires evaluation of ALL certified personnel and an administrative regulation establishing a statewide professional growth and effectiveness system.

• Proposed Changes: Will be reviewed by KBE 4/1/15.

2015-2016• Pilots Ending – Full Implementation Required– Preschool Teachers = Teachers– Other Professionals (library/media specialists, counselors, etc)

join system with teachers– Only CTE Teachers exempt from implementation

• Personnel Decisions – Must use PGES to inform personnel decisions for:– Teachers (including preschool teachers)– Principals– Assistant Principals

2015-2016 (cont.)• Certified Administrators – Implementation Required– District Evaluation Form Shall:• Utilize performance criteria in KRS 156.557• Be specific to evaluatee’s job category

– Evidence must include professional growth plans, self-reflection, site visit, student growth and professional judgment.

– District must explain performance criteria and process within 30 calendar days of beginning of school year.

2015-2016 (cont.)

• Decision Rule Change – Teachers & Other Professionals– Exemplary Professional Practice + Low Student

Growth = “Developing”• Previously “Accomplished”

– Change required by the U.S. Department of Education for ESEA Principle 3 Waiver

2015-2016 (cont.)

• EDS/CIITS Requirement Change– EDS/CIITS = Department approved technology

required for recording PGES data– Common concern regarding time and technical

problems with EDS/CIITS– OPTIONAL for Data Collection– MANDATORY for Summative Reporting

2016-2017

• Implementation: ALL certified personnel to be evaluated using PGES– CTE Teachers added to implementation timeline

• Personnel Decisions: PGES used to inform personnel decisions for ALL certified personnel– Other Professionals, Certified Administrators and

CTE Teachers are added

For further information, contact:

Todd G. AllenStaff Attorney

Kentucky Department of EducationTodd.Allen@education.ky.gov

Work-Based Learning Programs

Chase Bannister

Staff Attorney

Key Issues

1.What type of program is the student participating in?2.What type of relationship exists between the student and the employer?3.What type of work is being done?4.Are wage and hour law requirements being met?

Types of Work-Based Learning

• Job Shadowing• Mentoring• Internships• School-based enterprises• Entrepreneurship• Clinicals• Cooperative education• Service learning• Apprenticeship• Work experience

Employer-Employee Relationship(d) "Employer" is any person, either individual, corporation, partnership, agency, or firm who employs an employee and includes any person, either individual, corporation, partnership, agency, or firm acting directly or indirectly in the interest of an employer in relation to an employee; and

(e) "Employee" is any person employed by or suffered or permitted to work for an employer.

Employer-Employee Relationship• 1. The training, even though it includes actual operation of the facilities of

the employer, is similar to that which would be given in a vocational school;

• 2. The training is for the benefit of the trainees or students;• 3. The trainees or students do not displace regular employees, but work

under their close observation;• 4. The employer who provides the training derives no immediate

advantage from the activities of the students or trainees, and on occasion, his operation may actually be impeded;

• 5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and

• 6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

“Hazardous” Activites

• Found in 29 CFR 570.71• Examples include:– Loading or unloading timber– Operating or assisting to operate a grain combine– Handling toxic chemicals– Working inside a manure pit

Exception for Student-Learners• 1) The student-learner is enrolled in a course of study and training in a vocational education

training program in agriculture under a recognized State or local educational authority or in a substantially similar program conducted by a private school,

• 2) Such student-learner is employed under a written agreement which provides:a.That the work of the student learner is incidental to the training;b. That such work shall be intermittent, for short periods of time, and under the direct and close supervision of a qualified and experienced person;c. That safety instruction shall be given by the school and correlated by the employer with on-the-job training; andd. That a schedule of organized and progressive work processes to be performed on the job shall have been prepared.

• 3) Each such written agreement shall contain the name of the student-learner, and shall be signed by the employer and by a person authorized to represent the educational authority of school.

• 4) Copies of each agreement shall be kept on file by both the employer and either the educational authority or the school. 29 CFR 570.72(a).

• NOTE: This does NOT apply to all hazardous activities.

Wage and Hour Laws

339.220 Minor under fourteen not to be employed -- Exception.No minor under fourteen (14) years of age shall be employed, permitted, or suffered to work in, about, or in connection with any gainful occupation at any time, except for employment in connection with an employment program supervised and sponsored by the school or school district such child attends, which program has been approved by the Department of Education and subject to the regulations of the commissioner of the Department of Workplace Standards

Resources

• KRS Chapter 339 – Child Labor Laws• 803 KAR 1:100 – Child Labor• 803 KAR 1:005 – Employer-Employee Relationship• 29 CFR 570.2 – Minimum Age Standards• 29 CFR 570 – Child Labor Regulations• Work- Based Learning Manual• 705 KAR 4:041 – Cooperative Program Standards

Questions

Chase BannisterStaff Attorney

Kentucky Department of Education500 Mero Street

Frankfort, KY 40601502-564-4474

Chase.Bannister@education.ky.gov

School data law

Amy PeabodyAssistant General Counsel

Kentucky Department of EducationAmy.Peabody@education.ky.gov

What law governs what data?

• Federal and state laws govern data.

• Different types of data held by schools.

• Different definitions for what is protected by each law.

• Quick cheat sheet presentation organized by the laws included here.

FERPA• Family Educational Rights and Privacy Act• 20 U.S.C. § 1232g; 34 CFR Part 99 -- Regulations available at http://www.ecfr.gov/cgi-bin/text-idx?

c=ecfr&sid=11975031b82001bed902b3e73f33e604&rgn=div5&view=text&node=34:1.1.1.1.33&idno=34 • Education records. (a) The term means those records that are:(1) Directly related to a student; and(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.(b) The term does not include:(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not

accessible or revealed to any other person except a temporary substitute for the maker of the record. (2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of §99.8. (3)(i) Records relating to an individual who is employed by an educational agency or institution, that:(A) Are made and maintained in the normal course of business;(B) Relate exclusively to the individual in that individual's capacity as an employee; and(C) Are not available for use for any other purpose.(ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her

status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.(4) Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are:(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional

acting in his or her professional capacity or assisting in a paraprofessional capacity;(ii) Made, maintained, or used only in connection with treatment of the student; and(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, “treatment” does not include

remedial educational activities or activities that are part of the program of instruction at the agency or institution; and(5) Records created or received by an educational agency or institution after an individual is no longer a student in

attendance and that are not directly related to the individual's attendance as a student.(6) Grades on peer-graded papers before they are collected and recorded by a teacher.

FERPA• FERPA resources for students, families, and

school districts available at http://www2.ed.gov/policy/gen/guid/fpco/index.html.

• Additional training and information on FERPA available at http://ptac.ed.gov/.

• Medical records of student contained in student’s education records are governed by FERPA, not HIPAA: http://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa-hipaa-guidance.pdf.

Cloud computing service provider’s use of student data

• HB 232 (2014) created KRS 365.720-365.730.• KRS 365.734 prohibits cloud computing service

providers of school districts from using student data for any purpose except improvement of their products (unless they get parental consent for the other use). Includes specific prohibition on advertising to students.

• “Student data” definition is broader than FERPA’s “education records” definition (includes what could be directory information under FERPA) so it’s stricter than FERPA.

Protecting Student Privacy While Using Online Educational Services: Model Terms of Service

• PTAC guidance at http://ptac.ed.gov/document/protecting-student-privacy-while-using-online-educational-services-model-terms-service

• Quick tips• Model terms of service• Always review terms of service and check with

leadership before having students go to online educational services.

“Personal information” under KRS 61.931-61.934• HB 5 (2014) created KRS 61.931-61.934.• Focused on “consumer protection” types of data and has data breach notification

requirements. Only relates to data falling within KRS 61.931 definition of “personal information”:

"Personal information" means an individual's first name or first initial and last name; personal mark; or unique biometric or genetic print or image, in combination with one (1) or more of the following data elements:

(a) An account number, credit card number, or debit card number that, in combination with any required security code, access code, or password, would permit access to an account;

(b) A Social Security number;(c) A taxpayer identification number that incorporates a Social Security number;(d) A driver's license number, state identification card number, or other individual identification

number issued by any agency; (e) A passport number or other identification number issued by the United States government;

or(f) Individually identifiable health information as defined in 45 C.F.R. sec. 160.103, except for

education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. sec. 1232g;

“Personal information” in KRS 61.931

• Includes student data falling within the definition of “personal information.” Still have to follow FERPA too.

• Includes staff data too.• KDE plans to present a regulation to the KBE in

June 2015 with proposed reasonable security and breach investigation procedures and practices established and implemented by public school districts.

For further information, contact:

Amy PeabodyAssistant General Counsel

Kentucky Department of EducationAmy.Peabody@education.ky.gov