Revised IDEA Regulations Finally Coming?

Revised IDEA Regulations Finally Coming?

On Friday, October 14, the Ohio Department of Education filed proposed revisions to the IDEA operating standards (Ohio Administrative Code 3301-51). On Tuesday, November 15, the State Board of Education will hold a hearing on these proposed revisions. This is all part of the lengthy regulatory process that has now been underway for several years. It is possible that the new regulations will be in place sometime in the coming months, though the current process has experienced unexpected delays several times before.

The area of revision that has been of most interest to school districts has been the possibility of aligning Ohio’s IDEA regulations with the federal regulations as relates to changes in placement (OAC 3301-51-05(C)(5)). At the federal level IDEA does not require parental consent before a child’s placement is changed. This allows for a dynamic and responsive approach to designing a child’s special education.

Unfortunately, the current Ohio regulations impose a parental consent requirement for changes of placement. This means that parents can unilaterally overrule the IEP team consensus that a change of placement is necessary to provide FAPE. In such situations, schools are forced to file due process to change placement or to continue to serve the child in the inappropriate placement. Either approach can delay the appropriate provision of services.

Anecdotally, school district leaders uniformly supported a change to the parental consent requirement for changes of placement when this revision was included in the version of the proposed regulations presented to the State Board of Education in July 2020. Unfortunately, despite this support, ODE revised the proposed regulations to reinsert the parental consent requirement in the version now being considered.

Despite the major departure from federal regulations with the parental consent language, other changes in the proposed regulations are mostly to align state regulations to the federal regulations. Some of the more substantial changes include:

OAC 3301-51-01(B)(13) Transition Services: Clarifies expectations for transition service planning and coordination.

OAC 3301-51-01(B)(63) Supervisor/Coordinator Services: Clarifies professional qualifications for the IEP team member who supervises special education service providers.

OAC 3301-51-03(C) Disproportionality: Significant new language regarding disproportionality as it relates to the identification, placement, and discipline of students with disabilities.

OAC 3301-51-05(E) Surrogate Parents: Significant additional language about surrogate parent duties. Additional clarification that no surrogate may be appointed when biological/adoptive parents retain educational rights and can be contacted.

OAC 3301-51-07(E)(2) Transition Services: Codifies the current practice of requiring transition progress reports for Section 5 of the IEP.
OAC 3301-51-07(H)(7) Transmittal of Records: Sets a 30 day time period for transmittal of records when a child enrolls in a new school district.

Significant changes to preschool regulations are made throughout OAC 3301 Chapter 51 and are beyond the scope of this newsletter article and relate to separate changes already finalized for OAC 3301-51-11.

Over the past several years there have been many opportunities for school leaders to give input in the regulatory process. We are approaching the end of this opportunity and can anticipate that new regulations will be adopted within the next few months and will be in place for several years. School leaders are encouraged to give feedback to the State Board of Education in advance of or at its November 15 hearing on the proposed regulations. As was noted above, of particular interest is the proposal to not align with the federal IDEA regulations as it relates to parental consent for changes of placement (OAC 3301-51-05(C)(5)). This departure from federal regulations is a major barrier for some IEP teams as they seek to meet the unique needs of students with disabilities.

The currently proposed regulations can be found by using the search tools at the Register of Ohio Website:
https://www.registerofohio.state.oh.us/rules/search

The agency number for the Ohio Department of Education is 3301, and the chapter is 51.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Guidance of IDEA Amidst COVID-19 Pandemic

Guidance of IDEA Amidst COVID-19 Pandemic

The U.S. Department of Education’s (DoE) Office of Special Education and Rehabilitative Services (OSERS) issued a dear colleague letter on August 24 reiterating its commitment that children with disabilities and their families have successful early intervention and educational experiences for the 2021-22 school year.

As it did last year in a Q&A document released on September 28, 2020, OSERS asserts that “with few exceptions” there is no authority vested in DoE to waive IDEA requirements. The only “notable” exception identified by OSERS relates to waiving maintenance of effort funding requirements. The lack of requirement waivers applies regardless of the primary instructional delivery approach – both virtual and in-person learning are held to the same standard.

The letter reports that “the Department expects that all [school districts] will provide every student with the opportunity for full-time, in-person learning for the 2021-2022 school year.” Both the letter and accompanying Q&A document indicate a focus on the transition from remote to in-person learning. While the vast majority of Ohio students made this transition at some point during the 2020-2021 school year as vaccines became available, in some other states it is happening for the first time this fall. A successful transition includes ensuring that IEPs are in effect for children with disabilities at the start of the school year, and all other rights of children with disabilities under IDEA are protected.

The guidance reaffirms the importance of appropriate implementation of IDEAS’s child find obligations, which requires the identification, location, and evaluation, of all children with disabilities in the states, including those enrolled in homeschool. An effective child find system is an ongoing part of each state’s responsibility to ensure that FAPE is made available to all eligible children with disabilities. The Q&A document provides some specific ideas related to child-find during the pandemic, including a warning to “not rely solely on referrals by parents” as the primary child find tool, and the precaution that traditional child find strategies may not be adequate during remote learning. Increased community outreach and education is strongly encouraged by OSERS.

A theme underlying much of the guidance, and one emphasized by recent Department of Education actions, is that COVID precautions are “of utmost importance.” Not only does COVID pose a direct threat to individual students – especially disabled students with medical fragility – but the fear of COVID may result in parents turning to private schooling and homeschooling for perceived safety. This can make IDEA compliance more challenging. As a result, OSERS looks to COVID precautions as key element of IDEA compliance. The letter points to the CDC recommendation that everyone in K-12 schools wear a mask indoors, including teachers, staff, students, and visitors, regardless of vaccination status. The guidance encourages schools to put in place layered prevention strategies including promoting vaccination and proper universal mask-wearing.

What does this mean for your district?

Adjustments to “normal” IDEA compliance, such as child find procedures, will be essential during this school year as OSERS increases its expectations while continuing to assert that no waivers will be issued. While the initial Q&A focuses on child find, OSERS has indicated that additional guidance will be forthcoming. As was the case last school year, the new guidance is expected weeks or months after school resumes. Unfortunately, schools cannot point to this delay by OSERS as a defense against any alleged IDEA violations. As a result, careful planning and informed, proactive legal guidance are key.

School Funding Reform at the Center of Competing State Budget Plans

In early February, the Ohio House introduced HB 1. This bill, often referred to as the Cupp-Patterson Plan, proposes a significant overhaul of the State’s school funding system. Chief among its objectives is developing a per-pupil funding amount that reflects actual costs, moving away from caps and guarantees, committing to a longer-term plan, and accounting for localized needs. The plan was developed during the prior session of the General Assembly and seemed poised for serious action before COVID-19 disrupted the legislative agenda.

HB 1 has enjoyed broad support among education groups, including disparate groups such as the Ohio School Boards Association and the Ohio Education Association. After it fizzled in the last session, it was widely expected to be a major part of budget debates during the first year of the current session. Not surprisingly, under Speaker Bob Cupp (the “Cupp” of “Cupp-Patterson”) the House passed its budget proposal, HB 110, with HB 1 largely incorporated. The 70-27 vote on April 21 was somewhat bipartisan with 12 Democrats joining the Yeas and 6 Republicans joining the Nays.

Like the House, the Senate is dominated by the Republican Party, but this has not resulted in easy passage of HB 110 and Speaker Cupp’s school funding reform plan. The school funding plan under consideration in the Senate moves away from the six year phase-in of the House plan, and instead provides initially larger increases in per-pupil expenditures with no commitment to longer-term increases. Notably, the Senate plan abandons the highly localized per pupil funding calculations of HB 1, and instead determines a single base cost to apply throughout the state.

Statements from leading Senators indicate a concern that the House plan would lead to unsustainable funding increases. Of particular concern to these Senators is the use of teacher salary increases as part of the calculation in base costs. They argue that increases in pay even since development of the formula mean that costs have already increases by hundreds of millions of dollars. Supporters of the House plan point to a dramatically improved state economy and tax revenues well above estimates as reasons to support an increased commitment to K-12 education. Instead, the Senate budget plan currently proposes a 5% reduction in income taxes.

Both the House and Senate budget plans move to a direct funding system for various school choice programs. This would eliminate the current process that often requires funding to be directed to school districts only to be deducted when a family uses a voucher or enrolls in a charter school. The Senate plan proposes a significant increase in voucher funding and the elimination of some restrictions on the opening of charter schools.

What this means for your District:

Joint testimony from the Ohio School Boards Association, Ohio Association of School Business Officials, and the Buckeye Association of School Administrators has urged adoption of the House plan as part of HB 110. Among other reasons, they point to the longer-term commitments and growth in K-12 funding offered by the House plan. They also point to the extensive efforts to gather stakeholder input to develop the original Cupp-Patterson Plan. Finally, they identify the process of developing an actual input/cost-based approach to identifying appropriate per-pupil funding as critical.

The current state budget expires at the end of June. In most budget years this means the General Assembly passes the new budget during a late night session on or about June 30. However, it must be noted that the current state budget was not passed until nearly two weeks into July 2019 (after a temporary measure was passed to keep the government open). The time is now to share your views on the school funding reform plan, school choice funding, and other matters relevant to K-12 education. Current legislative activity is in the Senate. It is anticipated that in late June there will be a flurry of activity in both chambers as differences between House and Senate budget bills are resolved.

New Federal Guidance from OSEP: a COVID-19 Q&A

The U.S. Department of Education’s Office of Special Education Programs (OSEP) published a new COVID-19 Q&A on September 28, 2020 (OSEP QA 20-01). While OSEP explicitly cautions that the Q&A “is intended only to provide clarity to the public regarding existing requirements,” it nonetheless provides insights on how long-standing rules and laws will be applied to the novel COVID-19 virus.

In support of school districts that are guiding their decision-making based on the health and safety of students and staff, OSEP repeatedly describes health and safety as “most important” and “paramount.” If a hearing officer or court is making a decision based on the equities (i.e. fairness) the emphasis of OSEP on safety will weigh in favor of schools making reasonable adjustments to how IDEA is implemented. However, OSEP also repeatedly states that school districts “remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities.” This requires an individualized response to COVID-19 that focuses on “each child’s unique needs” and ensures “challenging objectives.”

To strike the balance of protecting health and safety while also providing FAPE, OSEP points school districts to the normal IDEA processes. The Q&A notes that no changes to the law or regulations have been made at the federal level. Interestingly, when discussing the timeline for initial evaluations OSEP advises that states “have the flexibility to establish additional exceptions” to the 60 day initial evaluation timeline. As of this writing, the Ohio Department of Education has not taken actions to allow for COVID-19 specific exceptions from the timeline.

Otherwise, OSEP’s Q&A largely points to approaches that have been addressed in prior “Special Education Spotlight” articles, Ennis Britton blog posts, and in our Coffee Chat webinar series. These approaches include conducting records review evaluations when in-person evaluations are not possible, using virtual team meeting platforms, and delivering services flexibly (e.g. teletherapy, consultation with parents.). OSEP warns against conducting remote evaluations if doing so would violate the instructions of the test publishers.

The discussion of extended school year (ESY) services is perhaps the topic most likely to generate interest in the short-term. After clearly distinguishing ESY from compensatory education or recovery services, OSEP acknowledges the authority of the states to establish standards for ESY. Note that in Ohio the standard is based on excessive regression and recoupment. OSEP proceeds to observe that, understandably, ESY services may not have been provided over the past summer due to COVID-19 restrictions. In such cases, OSEP encourages school districts to “consider” providing ESY during times such as the regular school year or scheduled breaks (e.g. winter break).

The Ennis Britton Special Education Team will continue to monitor and share with clients the latest developments as we navigate this unusual school year. Please contact a member of our team with questions or concerns.

Ensuring Graduation Ceremonies Are Accessible to All Viewers

In light of ongoing bans on mass gatherings, many school districts are moving to a graduation ceremony plan that involves a video or other online elements (e.g. video, PowerPoint, etc.). While virtual commencements may be almost unheard of prior to this spring, there are long-standing legal requirements that apply to this format just as they would to traditional, in-person ceremonies.

Traditional graduation ceremonies include many features aimed at making them accessible to students, family and friends, and school employees who have disabilities. Because school facilities are already subject to Americans with Disabilities Act design requirements everything from the parking lots, building entrances, restrooms, and seating areas are already accessible. Specific to the graduation ceremony itself, a school might have wheelchair ramps to access the stage, a sign language interpreter, and other accommodations.

The same anti-discrimination laws that inform the accommodations described above also apply to online services offered by school districts. In recent years, disability rights activists have filed hundreds of complaints regarding school district website accessibility. In many cases, the activists had no connection at all to the district against which the complaint was filed. They were simply scouring the internet for websites with obvious accessibility concerns. It is entirely possible that a similar approach may be used in relation to this year’s virtual graduation ceremonies. In any event, it makes good sense for districts to address website accessibility, irrespective of the pandemic. 

As such, and in our experience assisting school districts that were subject to website accessibility complaints, it seems that there are certain “red flags” that may have caused some websites to be targeted for complaints while others were not. Applying this lesson to virtual graduation ceremonies, there are some basic steps that can still be taken to reduce the risk of receiving an investigation letter from the Office for Civil Rights:

  • Investigate practical captioning options: Many online platforms have captioning already built-in, so it may just be a matter of enabling this feature and editing the automatic captioning. Captioning can stand in the place of a sign language interpreter if that is normally offered at your district’s ceremonies. Of course, many graduation ceremonies in the past did not have an interpreter and this has not caused widespread complaints. The idea now is to investigate what options are available in the online platform that you use for the ceremony and to use available tools to reduce your risks.
  • Pay attention to color contrast: School colors are a source of pride and frequently used in important rituals like graduation. However, if the school colors are low contrast (e.g. red and orange, green and blue) it may cause problems for people with vision-related disabilities. Consider pairing neutral alternative colors like black or white with a school color to avoid low contrast pairings.
  • Ensure announcements of the ceremony details are formatted for screen reader use: People with vision-related disabilities sometimes use screen readers to access electronic written information. Some file formats are less screen reader-friendly. PDF files and other picture type files can be problematic. Simpler can be better when it comes to conveying information in writing. A basic email or attached Word document is less likely to cause challenges.
  • Make access to the virtual ceremony accessible: A common challenge with school websites is that they are not easily navigated by individuals with physical challenges that prevent them from using a mouse. Consider emailing students and their families a link that goes directly to the virtual ceremony. The more steps that must be taken to get to the virtual ceremony, the more risk there is of an accessibility issue (e.g. a drop-down menu that cannot be easily accessed using keyboard tabbing, a link button that is not tagged, etc.).

The efforts taken by school districts to offer something special for seniors graduating under the current conditions are admirable. Paying close attention to accessibility for people with disabilities will help ensure that these celebrations do not lead to legal headaches down the road.