On the Call Podcast: MDR Complete. Now What?

On The Call: MDR Complete. Now What?

by Jeremy Neff & Erin Wessendorf-Wortman

Keep Calm and Just Keep Serving. Understanding the obligation to provide services after an MDR team decision is not always clear to all school employees. Erin and Jeremy discuss the “Black Letter Law” related to MDRs and what happens when MDR teams venture into the realm of behavior not being a manifestation of a student’s disability. teams.  They share a recent case from South Dakota which highlights the importance of the IEP team’s involvement in determining what services will be provided in order to meet the IEP goals and the general education curriculum.  

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

Lack of Fire Extinguisher in Science Classroom Could Be a Physical Defect Affecting Immunity

Lack of Fire Extinguisher in Science Classroom Could Be a Physical Defect Affecting Immunity

In a 4-3 decision rendered on December 28, 2022, the Supreme Court of Ohio ruled that the absence of a fire extinguisher in a science classroom “could be a physical defect such that an exception to immunity exists under R.C. 2744.02(B)(4).” 

 The case of Doe v. Greenville City Schools arose from an accident within a science class.  The plaintiffs alleged that the school district “negligently caused their injuries when they suffered severe burns in December 2019 after a bottle of isopropyl alcohol caught fire and exploded in a science class.” The complaint further alleged that the school district “failed to provide proper safety equipment, ‘especially, but not limited to, a fire extinguisher inside the classroom,’ failed to ensure that there were proper safety features and protocols in place, [and] failed to properly supervise and protect them…”

 The Supreme Court held that the allegations should survive a motion to dismiss.  Discussing the standard, the Supreme Court explained, “R.C. 2744.02(B)(4) requires that two separate elements be met—the injuries at issue must be caused both (1) by a political subdivision employee’s negligence and (2) by a physical defect within or on the grounds of buildings that are used in connection with the performance of a governmental function.

Noting that the term “physical defect” is not statutorily defined, the Supreme Court acknowledged a split among Ohio courts of appeals as to whether the lack of a safety feature could constitute a “physical defect.”  The Supreme Court agreed with the courts that have held that the lack of safety equipment or other safety features could amount to a physical defect. Thus, “the absence of a fire extinguisher or other safety equipment within a science classroom could be a physical defect such that an exception to immunity could exist under R.C. 2744.02(B)(4).”

 As a result of this decision, another exception to the immunity statute has been recognized by the Supreme Court.   Please contact one of our attorneys is you would like to further discuss this case and its implications.

A link to the decision can be found here.






















































































































































































































































































































































































Circuit Courts of Appeals Split on Transgender Bathroom Issue

On December 30, 2022, a federal circuit court of appeals broke from the decisions from other circuits and held that separating the use of male and female bathrooms on the basis of biological sex does not violate the United States Constitution or Title IX.  In Adams v. School Board of St. Johns County, Florida, the United States Court of Appeals for the Eleventh Circuit (covering Alabama, Florida, and Georgia) upheld what the court described as “the unremarkable — and nearly universal — practice of separating school bathrooms based on biological sex.”  The ruling upheld a school district’s decision to deny a request from a transgender male to access the boys’ restroom.

 The Adams decision directly conflicts with guidance from the Office of Civil Rights of the United States Department of Education, as well as decisions from the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) and the Seventh Circuit (covering Illinois, Indiana, and Wisconsin).  The decision also conflicts with a decision from the United States District Court for the Southern District of Ohio, which has jurisdiction over portions of Ohio.  The guidance and those decisions have concluded that transgender students may access the bathrooms of their choice.

Based on the split among the circuits, the Supreme Court of the United States may decide to consider the case and settle the issue definitively.  In the interim, clients are encouraged to contact the attorneys at Ennis Britton for consultation.

A copy of the decision can be found here






















































































































































































































































































































Court Confirms Narrative Portion of Attorney Invoices May Be Redacted

Court Confirms Narrative Portion of Attorney Invoices May Be Redacted

State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, 2023-Ohio-263

This particular case and its parties have an extensive legal and procedural history that we will not bore you with here. The pertinent fact for purposes of this article is the Ohio Supreme Court’s holding that “an invoice for a legal service provided to a public-office client is a public record, with the caveat that the narrative portion of the invoice describing the service is protected from disclosure by the attorney-client privilege.” Other information on the billing statements—e.g., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services—is considered nonexempt and must be disclosed.

The Eleventh District Court of Appeals of Ohio (Ashtabula, Geauga, Lake, Portage, and Trumbull) issued this opinion on remand from the Ohio Supreme Court to consider that very holding when analyzing whether invoices for legal services submitted to Rootstown Township, Ohio which were disclosed pursuant to a public records request were properly redacted. The Township redacted the narrative portions of the invoices.

The rationale behind the rule is that billing records describing the services performed for the attorney’s clients, and any other attorney-client correspondence may reveal the client’s motivation for seeking legal representation, the nature of the services provided or contemplated, strategies to be employed in the event of litigation, and other confidential information exchanged during the course of the representation. “A demand for such documents constitutes an unjustified intrusion into the attorney-client relationship.”

The appeals court conducted a confidential review of the invoices and determined the narrative portions of the invoices were properly redacted before being disclosed. The Court then went on to resolve the legal issues concerning the motion to dismiss in the case.

What does this mean for your District?

As the court noted in a footnote to the decision, the relator in this case, Brian Ames, was attempting to establish a new rule of law—the “[a]ttorney-client privilege does not apply to invoices for legal services provided to a public body.”  The relator was not successful here and the contrary holding of the Ohio Supreme Court in this regard remains good law today.



















































































































































































































































































Ohio Federal Court Affirms Exhaustion Requirement Under IDEA

Ohio Federal Court Affirms Exhaustion Requirement Under IDEA

As school districts continue to feel the bite from parent demands stemming from COVID closures and learning alternatives, the U. S. District Court for the Southern District of Ohio recently affirmed that the pandemic does not justify circumventing established due process procedures. In adopting the Report and Recommendation of Magistrate Stephanie Bowman, the federal court affirmed that an Ohio parent is obligated to exhaust those administrative remedies under the IDEA even when they attempt to the raise claims under other laws. 

In this case, the parent of R.Z., a high school student in Ohio, claimed that the school district’s decision to institute remote learning during the pandemic amounted to a failure to provide the student with a FAPE and a violation of Section 504 of the Rehabilitation Act of 1973, the Ohio Individuals with Disabilities Education Improvement Act, and the Ohio Education of Children with Disabilities Law. The parent claimed that his child could not benefit from remote learning and by imposing such a practice, the District’s policy amounted to a denial of the student’s rights.

The District moved to dismiss the lawsuit before the hearing.  The court granted the motion and dismissed the case.  In doing, so the federal court found that under Fry v. Napolean Community Schools, the Supreme Court of the United States made it clear that exhaustion of the administrate remedies under the IDEA is required when a complaint seeks redress for a school’s alleged failure to provide a FAPE. The court also looked to Perez v. Sturgis Public Schools, a Sixth Circuit decision handed down days before the oral argument on this case and noted that, while the Perez decision did not answer the question of whether a court is divested of subject matter jurisdiction when a party fails to exhaust administrative remedies, the exhaustion requirement still stands. Specifically, the appellate court found that even when a party is not directly contesting the substance or propriety of an IEP whenever the challenge relates to the provision of a FAPE, the determination of whether or not the school complied with the IEP is best resolved through administrative procedures “that elevate judicial economy and agency expertise.” The court went on to affirm that, since the Perez decision did not definitively recognize any exceptions to the IDEA exhaustion requirement, a claim that administrative exhaustion would be futile could not  save this Ohio case from dismissal.

What this means for schools: Now, the US Supreme Court, 6th Circuit Court of Appeals, and an Ohio District Court have made it clear that parents must avail themselves of the administrative hearing process as specified in the IDEA and Ohio law before claiming violations of related disability laws. As the Fry case makes clear, when the gravamen of a complaint rests on an alleged failure to provide a FAPE, the exhaustion requirements under the IDEA must apply.