FRISCO, Texas — Workshops that discussed legal issues affecting transportation of students with disabilities proved to be a continuing strength of the annual TSD Conference.
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Record attendance was reported on Sunday, and the legal affairs discussions consistently drew the largest crowds, which necessitated additional chairs having to be brought in. Next year, a larger room will be required, especially after attendees return home and discuss what they heard and learned.
Attorney Betsey A. Helfrich, Esq. from Mickes O’Toole, LLC. in St. Louis, made three separate presentations, with the third being a panel discussion that focused on creating, enforcing and revising video policies on school buses. The conversation centered on the storage of daily footage, whether to allow police or parental access and, if so, under what circumstances, and protecting the privacy of others who are captured in the videos.
Videos triggered a number of audience questions for panelists about crucial issues beyond just special needs routes throughout the session. The other panel members included Nicole Portee, executive director of transportation for Denver Public Schools, and David Armbrecht, director of regional operations for contractor Cook-Illinois Corp. in Chicago.
Audience members shared major concerns that they urgently wanted to discuss during the fast-paced session. Not only did they share their own chronic legal problems, but they also sought answers and solutions that made sense.
Attendees clearly have a stake in formulating, conducting and monitoring videos. So, the industry definitely hasn’t heard the last of what can go wrong, or how many more ways there can be problems. This is certainly not fading away anytime soon, and Helfrich’s review of applicable case law in all three presentations, especially those portions focusing on video, pretty much beg the publication of a separate new book on it.
Some of the discussions also blended with those from earlier in the day, such as Helfrich’s earlier afternoon presentation on “Balancing FERPA Compliance with a Bus Driver’s Need to Know,” and her lead-off morning keynote on recent special education case law affecting transportation.
Who should be allowed to view the videos, on what basis and on what circumstance, was a major focus during several presentations? Helfrich explained that “in general, parents should be allowed to view a bus video,” but she and audience members especially, acknowledged that they are beginning to be deluged with requests and demands from parents, as well as principals, and that many schools just can’t handle any further escalation in the number of requests.
“If you have the technology to blur (out) faces, you should do so,” when repeated discussions focused on student privacy and possible HIPAA violations, Helfrich advised. HIPAA does not apply in this situation, she remarked. And that requests from police to view videos, is a growing controversy. In her mid-afternoon comments, Helfrich noted that “sharing bus videos with police is not a good idea,” especially without a warrant or court ruling.
Portee reported that at her school district, “we reassure the parent,” that proper procedures are being followed.
Armbrecht stressed that the number of days the videos are kept varies from school to school, district to district and among vendors, so the schools and districts especially need to and would have fewer difficulties, if they stated their policies, and capabilities, for the parents and public to know. Some video systems are set up to re-record based on the amount of content, which may be measured in available data storage, not the number of days footage is being recorded.
Helfrich urged that each school and school district should develop a policy, and educate their staff and drivers about what are the exact policies and procedures, how to follow them correctly, and make sure that if there are policies, that they are consistently followed each time there is an incident or request to review the content.
As in her earlier keynote presentation, Helfrich stressed the need to establish a policy that not only makes sense, but is defensible legally, and that can be consistently followed by the entire staff. “Read your policy and then follow” all of them, she said. She added that she expects the Individuals with Disabilities Education Act (IDEA) will at some point be amended, since 15 years have now passed since the last reauthorization. However, there has been no public announcement by the U.S. Department of Education for when that might happen.
Meanwhile, Helfrich advised updating employee handbooks to address non-discrimination of students with disabilities and to develop a relationship with the district’s Section 504 representative. She also said both IDEA and Section 504 provide protections for students with disabilities so they have equal-opportunity access to the field, extracurricular and sports trips.
Regarding bullying, she said school districts should create a response plan in addition to the overall school bus safety plan.
Helfrich’s mid-afternoon talk on the Family Educational Rights and Privacy Act (FERPA), concluded that “when in doubt, always go back to the parent” for requests for records, and that there may often be more than one or two persons who have a legal right to receive student records, such as guardians or someone who is temporarily in charge of the student’s care and welfare.
Helfrich stressed that FERPA requires access to records, but does not require the school to provide copies, or necessarily provide them for free, as a modest fee may be assessed per page, but that is at the discretion of each school. Neither is a copy of a videotape required to be supplied to each requestor—including police, especially without a subpoena or warrant. But first, it should be determined if the video can be construed as a student’s record.
However, “in an emergency, it is better to share the info than not,” such as when there is a communicable disease breakout, active shooter, fire, natural disaster or some other recognized urgent emergency situation. And “consent cures all in FERPA-land,” she joked.
Interestingly, a parent does have the right to identify additional people who can view the video. FERPA also protects personally identifiable information about students from being released publicly.
Helfrich also advised that, “failure to train staff” is rapidly becoming a more frequent focus of lawsuits, but that “FERPA protects bus drivers who have a need to have” access to the private information, such as food allergies that could trigger a medical emergency.
