On the Call: Autism Eligibility

by | Nov 26, 2024 | Special Education

A medical diagnosis can be one piece of the puzzle in special education. In this episode, Jeremy and Erin dive into autism eligibility under the IDEA, examining a case from North Carolina where a school district defended its decision to deny special education services to a recently diagnosed student. They look at the critical steps of conducting thorough initial evaluations and the importance of collaborating with parents to clarify the distinction between a medical diagnosis and educational eligibility. They share strategies to ensure a complete, accurate understanding of a student’s unique educational needs.

*Listen to the “choose your f-word” IEE episode referenced in this episode here. 

Also, be sure to join Jeremy Neff on December 5 for a live LRP webinar on managing law enforcement involvement with students with disabilities. Get legal insights and proactive strategies to address extreme behaviors while protecting students’ rights. Register here!

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

 

Career Tech Corner: Updates to Special Education Procedural Safeguards Expected to Affect Joint Vocational Schools, other Educational Agencies

Career Tech Corner: Updates to Special Education Procedural Safeguards Expected to Affect Joint Vocational Schools, other Educational Agencies

by | Nov 22, 2024 | General

The Ohio Department of Education and Workforce (“ODEW”) recently adopted changes to the procedural safeguard rules in the Ohio Operating Standards for the Education of Students with Disabilities (“Operating Standards”). These changes, which are likely to take effect this school year, will significantly alter the responsibilities for educational agencies such as joint vocational school districts (“JVS”) and educational service centers. The proposed changes were initially published in July and were finalized in October after the last round of public comments closed. Although the changes are significant, the ODEW received only two public comments before the regulation was sent for final approval to the Joint Committee on Agency Rule Review (“JCARR”).

The procedural safeguard rule, codified in OAC 3301-51-05, establishes legal protections and rights that must be provided to students with disabilities and their parents under the Individuals with Disabilities Education Act (“IDEA”). These rules ensure that students receive a free appropriate public education (“FAPE”) and that parents are actively involved in their child’s education. Procedural safeguards provide a framework that encourages collaboration and accountability in the special education process.

Under the current version of the rule, a student’s district of residence is generally responsible for ensuring that procedural safeguards are provided to eligible students. When parents and students believe that they have not received the procedural safeguards to which they are entitled, they may file for due process against the district of residence, even if the student is enrolled in a joint vocational school district program. This may be about to change under the new rule, where the term “district of residence” has been replaced by the term “educational agency” throughout the rule. The term “educational agency” appears to include a JVS as well as other entities such as an educational service center.

These “educational agencies” are now listed as the parties responsible for all of the following under OAC 3301-0-51-05:

  • Obtaining parental consent on evaluations and services;
  • Sending notice about transfer of rights at a student’s age of majority;
  • Assigning surrogates to students;
  • Paying for or filing due process when a parent requests an Independent Educational Evaluation at public expense;
  • Considering results of an outside evaluation that is obtained by the parent;
  • Drafting and sending Prior Written Notices;
  • Being named in due process and state complaints; and
  • Participating in facilitation and mediation.

This is where things get more complicated and confusing. The other rules in the Operating Standards have not been changed, and now appear to conflict with the Procedural Safeguards rule. For instance, rule OAC 3301-51-02 declares that a district of residence and not any other “educational agency” is ultimately responsible for providing FAPE. While a due process complaint may now be filed against a JVS rather than a district of residence, it seems that the district of residence still has a lot at stake and may still be responsible for addressing any FAPE deficiencies that are discovered through the hearing process. It remains unclear how ODEW and hearing officers will harmonize the conflicting provisions.

 In the meantime, joint vocational school districts should contact member districts and discuss how both entities may work together to ensure that Procedural Safeguards are provided to all students who receive protections under the IDEA. It may be helpful to set aside some time in upcoming professional development sessions to help JVS staff learn more about the procedural safeguards that they may not have been directly responsible for or involved with in the past. Stay tuned for further updates.

 

 

New OCR Guidance on Artificial Intelligence

New OCR Guidance on Artificial Intelligence

by | Nov 22, 2024 | General, Student Education and Discipline

The United States Department of Education Office for Civil Rights (OCR) recently issued a resource providing examples of how the use of artificial intelligence (AI) in educational or security software could result in discrimination on the basis of disability, race, or sex.

The guidance titled  “Avoiding the Discriminatory Use of Artificial Intelligence” is available here.

The guidance uses twenty-one (21)  examples of the use of AI in schools and how it may have discriminatory outcomes which could cause OCR to investigate upon receiving a complaint.  It specifically addresses the use of AI to write 504 plans or IEPs and also how the use of security software may have discriminatory impacts.  All of the examples indicate that OCR might open an investigation, but also notes that the decision to do so would be based on the individual facts and circumstances of each case.  It is also important to note this guidance does not have the force of law and does not create new legal standards.

The resource includes examples shedding light on how OCR views some of the new uses for AI in the educational setting and potentially what educational leaders should be aware of in evaluating vendors offering AI-based educational or security products.

For instance, the resource includes an example involving the use of AI products designed to flag plagiarism or prevent cheating.  According to OCR, the AI products have a low error rate for evaluating essays written by native English speakers, but a high error rate when evaluating essays written by non-native English speakers.  might evaluate non-native English speakers.  According to the resource, “OCR would likely have reason to open an investigation if a person filed a complaint based on these facts.”

Another example involves potential harassment on the basis of race.  In this scenario.  an AI security vendor used facial recognition technology, that has issues with identifying Black individuals. The facial recognition technology could result in disparate treatment based on race in violation of Title VI, if students are misidentified and questioned or pulled from class as a result of the faulty software.

Yet another example surrounded the use of risk assessment software utilizing historic discipline data (which may present disparities in discipline based on race) to score student’s risk of future discipline issues and recommend discipline.  The use of a “risk score” based on data, even if the data does not include student race, may still recommend more severe discipline outcomes for students of color, and may result in different treatment based on race.

One more example involved using AI software to create academic schedules for students.  The software relies upon historical data and student demographics to determine course enrollments.  The use of such software could result in treating students differently on the basis of sex.   OCR would have reason to open an investigation under these facts.

The above examples frequently mention that when complaints are made, the school district does not investigate or act, instead completely relying upon the software.  This reinforces the need for school districts to act upon complaints, conduct an adequate investigation, and take remedial action if necessary.

These examples should be reviewed and discussed as AI software is being considered for implementation.  OCR is clearly signaling that it expects schools to evaluate the potential discriminatory impact of the use of this evolving technology in the school setting.

 

 

Federal Judge Blocks FLSA Final Rule

Federal Judge Blocks FLSA Final Rule

by | Nov 22, 2024 | General, Legislation, School Management

A new Fair Labor Standards Act (FLSA) Rule took effect July 1, 2024, which significantly increased the salary minimum that non-teaching, salaried supervisors and administrators must make to be considered exempt from overtime pay.   

On November 15, 2024, a judge in the U.S. District Court for the Eastern District of Texas issued a nationwide injunction preventing the Department of Labor from implementing the new rule in its entirety.  The court reasoned that the Department of Labor exceeded its authority and effectively displaced the “duties test” in the law.  As a result of the ruling, the entire new rule, including the July 1 salary increase is no longer in effect, and the upcoming January 1 increase to the salary minimum will not take effect. 

The court stated, “… the Department’s 2024 Rule contemplates sweeping changes to the … regulatory framework, designed on their face to effectively displace the FLSA’s duties test with a predominate – if not exclusive – salary-level test,”  Continuing, the court concluded, The Department simply does not have the authority to effectively displace the duties test with such a predominant salary-level test.” (State of Texas v. Dept. of Labor, E.D. Tex. No.4:24-CV-499)

The Department of Justice could appeal the ruling, and the Fifth Circuit Court of Appeals or the United States Supreme Court could lift the injunction and reinstate the rule.  Due to the changing administration, it is likely that even if an appeal were filed, it could be withdrawn. 

It is interesting to note that very similar circumstances occurred in 2016 when the same federal district court in Texas blocked another DOL rule raising the minimum salary for the executive, administrative professional (EAP) exemption.

 What this means for your district:

The ruling means the minimum salary threshold for meeting the executive, administrative, or professional (EAP) exemption will remain as it was prior to the new rule taking effect: $684 a week (or $35,568 annually) for the EAP exemption and $107,732 for the highly compensated employee exemption.

If districts were planning to raise the salaries for nonteaching, salaried supervisors and administrators to ensure the salary basis test was met for purposes of the EAP exemption, there is currently no need to implement those changes.  If salary increases had already been given, if reductions were contemplated, they would need to be part of a uniform plan affecting the entire district.  If you have specific questions about how the EAP exemptions might apply or how the ruling affects a specific situation, please contact counsel. 

 

 

Lawmakers Gear Up for Busy Lame Duck Period

Lawmakers Gear Up for Busy Lame Duck Period

by | Nov 18, 2024 | General, Legislation, School Management

A little over a week has passed since the election, and the Ohio Senate has passed its first piece of legislation affecting Ohio schools. On Wednesday, November 13th the chamber voted to approve SB 104, also known as the “Protect All Students Act” along party lines.

Originally intended to amend the College Credit Plus program, SB 104 will allow students to apply by sending notice in November (rather than just April), allowing them to participate for the spring semester only. Students who apply in April can continue to participate for the full upcoming year without having to provide additional notice in November. Additionally, schools must host an orientation for each participant that complies with the Ohio Department of Education and Workforce (ODEW) and higher education requirements. Language was later inserted into the act to prevent transgender individuals from using bathrooms aligned with their gender identities at Ohio schools and universities. Under the act, primary and secondary schools will be required to designate separate bathrooms and changing areas for “students of the male biological sex” or “students of the female biological sex.” However, family restrooms and single-occupancy facilities will still be permitted, and there are exceptions for people with disabilities and children under 10 who need assistance from a family member or guardian. SB 104 now awaits Governor DeWine’s signature, who has previously indicated that he would sign the bill after conducting a legal review.

As the lame duck session continues, we have highlighted several pieces of proposed legislation that could impact Ohio schools if they are passed in the near future. Proposals range from enrollment policies and course requirements to increases in teacher salary and permitted uses of sick leave.

  • SB 208: Requires schools to open enrollment policies to accommodate military children.
  • SB 293: Requires schools to excuse students for religious release time (schools currently permitted but not required to do so).
  • SB 313: Requires schools to equip buildings and staff with a wearable panic device.
  • HB 411: Proposes to increase minimum teacher salary to $50,000.
  • HB 436: Authorizes aides and intervention specialists to provide remote instruction.
  • HB 468: Requires a district to allow civic organizations to provide written information to students about their club and to give them one day a year to present to students provided the representatives pass a background check.
  • HB 506: Requires each school that chooses to stock Naloxone/Narcan to develop a policy about obtaining and maintaining their supply of the drug.
  • HB: 507: Provides protection and safe harbors for political subdivisions that implement cybersecurity measures.
  • HB 520: Permits students to use club sports or other athletic activities to fulfill the high school PE requirement.
  • HB 560: Requires school districts to reimburse teachers for the full cost of completing the number of graduate level credit hours or CEUS for implicit bias training, and ODEW will reimburse the districts for the cost.
  • HB 571: Require schools to include national suicide and crisis hotline numbers on student IDs, planners, and electronic portals.
  • HB 574: Allows a BOE employee to use sick leave for parental leave of absence.
  • HB 585: Provides money to promote food options for students with religious dietary restrictions.
  • HB 623: Requires districts to offer at least one high school computer science class that includes computer programming, and makes it a requirement for graduation (beginning in the 2026-2027 school year).
  • HB 633: requires districts that run elementary schools to hand out an informational brochure to parents developed by the Department of Health regarding Type 1 diabetes.
  • HB 657: Requires schools to make their pledge of allegiance policy public by posting on the school’s website.

As the lame duck session continues, lawmakers will be rushing to pass as many of the remaining bills that they can before the end of the year. There are hundreds of proposals that need to be considered, many of which have nothing to do with education, and it is possible that the bulk of the session will focus on other issues. Governor DeWine, for example, has listed the regulation or prohibition of delta-8 hemp as a top priority as bills addressing the issue have made little progress throughout the year. Ultimately, the lawmakers  decide which bills will be prioritized, and any bill not passed by the end of the session will have to go through the entire hearing process again after the next General Assembly is sworn in.

What does this mean for your district? At the time this article was written, the only piece of legislation listed above that has been passed by both the Ohio House and Senate has been SB 104. The Act imposes facility requirements on all Ohio schools and amends the CCP program to include a second application window. There is no guarantee that the other proposals listed above will become law, but it is worth tracking their movement as the year ends considering the potential changes that may be required for the next school year.