Response to comments

I have received some comments and the time has come to address some of them. Remember: this is not legal advice.

C.H. wrote with the following questions. “Do Medicaid rules require that group counseling services provided to special education students in schools be given in groups of 6 students or less? Do these rules vary from state to state? If Medicaid rules require small group counseling, does this conflict with Least Restrictive Environment rules that children be served in regular classrooms when appropriate?” Typically, Medicaid and education are fiefs alone. Although we know well that the two do meet and should be better coordinated, education rules would likely apply to a school-provided counseling service. Each state will have different rules. As to counseling and LRE, my thought is that counseling is not something inherently amenable to the concept of least restrictive environment. Counseling would seem to be unlike academic instruction or social activities that are open to all or required of all. The question might be whether the counseling is delivered in the right environment, but without the added layer of LRE.

Regarding the entry for Section 403(b) employee benefits plans, Kristine asks “Are you interpreting this regulation to mean that if a teacher complies with the election provisions, no additional tax is due?” Sorry, Kristine, I am not going to touch that one. You will need to consult tax experts and review the IRS guidance. 

Back to Medicaid and special education funding, an anonymous commenter asks “Is there a site where we can check how much our school district will lose each year because of these changes?” Not to my knowledge.  The actual loss will depend on a number of factors, such as how many students participate in medical assistance and whose parents permit the district to bill and how aggressive the district is in claiming medical assistance money.  In my experience, some parents will not permit the district to access such funds and some district really do not put much effort into securing the funds. Because of these factors, even taking the “savings” estimated by CMS as a per pupil amount would likely be wildly inaccurate because of the many factors. I suggest you contact the person in charge of the district’s medical assistance related matters and or the district’s business manager. 

Finally, suburbanmom asks, “Who do I contact if I think Title IX is not being enforced?” There are a number of places to turn. You may want to contact your school’s Title IX coordinator. You may also contact your state or the federal departments of education. This is a link to the federal DOE’s Office for Civil Rights, which enforces Title IX, among other laws. 

No second helpings: limits on ADA claimants collecting disability

Guest blogger, Mark Fitzgerald, writes about the tension between employment disability discrimination claims under the Americans With Disabilities Act (“ADA”) and claims for disability benefits. The legal concept of “estoppel” in such circumstances generally holds that an employee cannot certify to being disabled in order to obtain disability benefits, while claiming in court that she is not disabled and qualified to work. Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information.

 In a case that underscores the federal courts’ heightened scrutiny of employment disability discrimination claims following a plaintiff’s successful application for Social Security Disability, the United States District Court for the Middle District of Pennsylvania granted summary judgment for the employer because plaintiff-employee was estopped from raising claims under the ADA  after successfully applying for Social Security Disability benefits.

In an ADA employment discrimination case, a plaintiff must initially be able to show

a “prima face” case:  (1) that she has a disability within the meaning of the ADA, (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations, and (3) was subject to some adverse action as a result of the disability. In Jones v Southcentral Employment Corp., 488 F. Supp. 2d 475 (M.D. Pa. 2007), the employer sought summary judgment because plaintiff’s actions and the facts leading up to her discrimination claim prevented her from meeting this initial burden.

The employer argued that settled principles of judicial estoppel, a doctrine that prevents a litigant from asserting a position inconsistent with a position asserted in a previous proceeding, precludes the plaintiff from establishing an essential element of her prima facie case, namely, that she was “qualified” for the position in question.

The court agreed. In granting the motion, the Middle District relied on Cleveland v. Policy Management Corp., 526 U.S. 795 (1999), in which the Supreme Court held that to survive summary judgment, an ADA plaintiff who previously was awarded disability benefits must provide a sufficient explanation to reconcile a sworn statement claiming “total disability” and later asserting an ability to “perform the essential functions of the job.”

Simply put, Cleveland added additional criteria to the prima facie case where judicial estoppel is implicated. Taking Cleveland a step further, Jones underscores that merely explaining away the inconsistencies of past statements is not enough to satisfy the Cleveland criteria.

In an attempt to explain away her conflicting claims, the plaintiff in Jones ineffectively argued that in contrast to an ADA claim, the Social Security Administration does not take into account reasonable accommodations in evaluating qualifications for benefits and, therefore, the two claims should be considered mutually exclusive.

The Middle District did not buy her explanation for several reasons. Most notably, merely identifying the differences in the two statutory schemes was not enough to cure her conflicting statements. The court stressed such clear inconsistencies in prior statements had to be supported by fact. The plaintiff could not demonstrate a sufficient explanation for her prior statements, especially in light of the fact she never requested reasonable accommodations from her employer after she was injured in the first place.

IRS contacting districts about 403(b) plans

According to an IRS news release, a pilot project involving three states has found most school districts are not in compliance with the universal availability requirements of § 403(b) plans. According to the news release, “[t]he law requires that all public school employees normally expected to work 20 hours per week must be offered the opportunity to participate in a § 403(b) plan if the school or district sponsors one.” Substitute teachers, janitors, cafeteria workers and nurses are, according to the IRS, often not included. The noncompliance, according to the news release, appears to be based on a lack of understanding and not any bad intent. 

As a result of the pilot project’s findings, the IRS’s Employee Plans Compliance Unit is sending questionnaires to all public school districts, initially to those in Alaska, Florida, Hawaii, Illinois, Nevada, Pennsylvania, Tennessee and Virginia, and reaching all 50 states by 2008.