by Jeremy Neff | Dec 17, 2018 | Board Policy & Representation, Special Education
School districts frequently ask how to balance the rights of a person who brings a service animal onto school grounds against the rights of others. For example, if one child in a classroom is allergic to pet dander, but another child demands to bring her service dog to school, whose rights prevail? These concerns are not limited only to the rights of students but also can easily arise with an employee’s request for accommodations under the Americans with Disabilities Act. In other scenarios, members of the public, including parents or spectators at a sporting event, could also be covered.
A court decision this month out of New York gives one example of conflicting rights of different members of the school community. The parents of a student with asthma and severe allergies filed a wide-ranging lawsuit in the U.S. District Court for the Southern District of New York, arguing that a school district violated their child’s rights by not having a policy prohibiting service animals and by allowing a service animal on the school grounds several times in violation of their child’s 504 plan.
In this case, the parent of a different student required the use of a service animal and brought the animal to multiple school events in which the student with the allergy participated. The student with the allergy had a 504 plan that required the school to, among other things, ensure no animals come within 30 feet of the student, keep the student out of contact with service animals, implement a cleaning protocol after animals are within the school building, and communicate in advance with her parents when a service animal was anticipated to be within the school building.
Additionally, the parents had requested other accommodations that are not discussed in the court decision and had also requested a blanket policy banning service animals from school. The school district rejected the latter request, explaining that it had an obligation under federal disability law to allow service animals within the building.
The court dismissed most of the claims but will allow the disability discrimination claim to proceed. This relates to alleged violations of the 504 plan. The court recognized that the school is required under federal law to allow service animals but noted that this does not excuse a school district from fulfilling its obligations under a 504 plan to protect a student against allergies. This case shows how distinct legal rights can come into direct conflict.
While the public court filings do not provide sufficient detail to determine what, if anything, the school might reasonably have done differently (or even if it did, in fact, violate the student’s rights), one lesson is that in allowing a student, staff member, or school visitor to exercise her right to use a service animal, a school district must consider whether accommodations are necessary to ensure that the rights of students with allergies are protected. This is a difficult balance that will depend very much on the individual facts of each case.
– Doe v. United States, 118 LRP 49416 (S.D.N.Y. 2018).
by Jeremy Neff | Jan 23, 2018 | Special Education
During Ennis Britton’s October 2017 Special Education Symposium, participants around the state were given the opportunity to submit questions on note cards. Because of time constraints and the large response, our Special Education Team was not able to address all of these questions during the presentations. In the coming months we will address some of these questions through blog posts and a new feature called “Special Education Spotlight” in the School Law Review newsletter.
One participant asked how to respond to a parent who asks for her child to be evaluated under the Individuals with Disabilities Education Act (IDEA) when the district does not suspect a disability but the parent has a private evaluation that concludes the student has a disability.
This scenario brings at least two parts of IDEA into play. The first is the issue of child find. A district has an obligation to “find,” or identify, all children within its territory that are potentially eligible under IDEA or Section 504. This is an affirmative obligation, meaning that each district must take active steps to identify such children – it is not enough to wait for parents to ask for an evaluation. That said, a parent certainly has a right to ask for an evaluation. In such a case, the district should respond in writing to the request using a Prior Written Notice form (PR01), either agreeing to proceed with an evaluation or refusing to do so.
A district should be cautious about refusing to evaluate a child when, as is the case in this scenario, an outside evaluator has identified the child as having a disability. Even when a school has not observed anything to suggest that a child has a disability, it is possible that he or she does. For example, a child might have ADHD but not exhibit characteristics at school due to effective medication. Such a child may still be eligible under Section 504 because the law requires districts to factor out mitigating measures such as medication in making eligibility determinations.
Second, assuming the district in this scenario proposes to evaluate the child, the parent consents, and the evaluation is completed, the IEP team may need to consider the private evaluation shared by the parent as part of the evaluation process. This is required whenever a parent acquires an independent educational evaluation (IEE) that meets a district’s reasonable criteria (credentials of the evaluator, validity of the evaluations, etc.). The good news is that in this scenario, absent an order from a court or hearing officer, the district is not required to pay for the IEE because the parent did not disagree with a district evaluation at the time the IEE was acquired.
Even when an IEE meets a district’s reasonable criteria, the law does not require absolute deference by the IEP team to the opinions of an outside expert. In fact, the law gives the IEP team the ultimate discretion as to how much weight to give to the IEE. The specific regulatory language requires the IEP team to “consider” the IEE. This means that the team reviews the information, holds it up against other information the team has about the child, and engages in meaningful discussion of the information. It does not mean that the team adopts all findings or directions of an outside evaluator because he or she is an “expert” or holds some sort of advanced degree. Remember, while outside opinions can be helpful, in most circumstances the outside evaluator will have spent at most a few hours with the child in a clinical setting. The IEP team will typically have weeks, if not months or years, of experiences with the child in an authentic setting. School personnel should neither be intimidated nor diminish their own expertise when presented with an IEE.
In the end, if a parent has sought an outside evaluation before asking the school to conduct an evaluation, and the school does not suspect a disability, this may be a sign of further disputes to follow. An early conversation with a member of Ennis Britton’s Special Education Team may be beneficial as you respond to scenarios such as this.
by Jeremy Neff | Mar 8, 2017 | Legislation, School Finance
Every two years a new General Assembly convenes in Ohio. The General Assembly will consider hundreds of bill and even pass many of them, but none are more important to state government than the appropriations bills that make up the budget bill.
The state budget cycle aligns with the state fiscal year of July 1 through June 30, so the legislative process for passing a budget typically runs from sometime in January through June 30 every odd-numbered year. In addition to allocating funding for Ohio’s K–12 schools, the budget bill also typically contains numerous substantive changes in the law (e.g., teacher evaluation changes, licensure requirements). Following is a high-level overview of the budget process, with a goal of informing school officials how, when, and to whom to provide input during this process. This input is critical to ensuring that legislators have the practical information they need to determine how their proposals would affect school districts. This practical information is valuable to the decision-making processes taking place at the state level during the budget process.
Governor
The governor begins by submitting the planned executive budget for the main operating appropriations bill to the General Assembly within four weeks after the new General Assembly is organized (or by March 15 if a new governor is in office). Each expense must come from a specific funding source, and each funding source may fund only certain expenses. Perhaps the most important requirement is that the budget be balanced: expenses may not exceed revenues. The governor may order spending reductions or even declare a fiscal emergency if revenues fail to meet projections. The governor typically uses the executive budget as a way to signal policy priorities and to propose new ideas. The governor’s budget is presented to the House without changes, so this is not an effective time to lobby the governor for changes.
House
The newly drafted budget bill (the current bill is HB 49) lands in Ohio’s House of Representatives, where it is referred to the Finance Committee and subcommittees. These committees hold hearings on the bill, when input may be provided to state representatives through written and live testimony. It is quite common for extensive changes to be made based on recommendations of the committees and subcommittees. Because of this, the House committee and subcommittee hearing phase is an especially important time for school officials and professional organizations to provide input. When extensive changes are made in committees, a substitute bill is drafted. After the bill has been considered and amended in the committee, it goes back to the House for a House floor vote.
Senate
Normally, after the House passes the bill, it is introduced in the Senate. However, because of time constraints on the budget bill, the Senate Finance Committee will usually begin its hearings on the bill while it is still in the House. The Senate Finance Committee and subcommittees hold hearings and receive input just as the House committees do. In some budget cycles, the subcommittees do not hold their own hearings. Rather, all hearings are held by the full Finance Committee. After the substitute bill is amended in the committee, it goes to the Senate for a floor vote. As with the House committee and subcommittee phase, this is an important time for school officials and professional organizations to provide input.
Conference Committee
The House must then concur in, or agree to, the Senate amendments. But this sometimes doesn’t happen. In this event, a conference committee is formed of members of both the House and the Senate. The conference committee must reach agreement on a committee report (also referred to as a compromise bill) to be voted on by the full House and Senate by the June 30 deadline. Each chamber must approve an identical budget bill. No amendments may be made by the separate chambers when they vote on the committee report, and time is very limited between the conclusion of the conference committee and the votes on the final bill. Thus, any last-minute lobbying must occur before the conclusion of the conference committee. This is sometimes when fast-moving changes are inserted or deleted from the bill.
Back to the Governor
When the legislature finally agrees to the terms of the bill, it quickly moves back to the governor to be signed. The governor may sign the bill or veto certain provisions, called a line-item veto. The reasons for the veto would be provided, and the General Assembly may, by three-fifths vote, override the veto. The veto power does not allow the governor to add to the budget bill – only to subtract. This allows for some final limited input from school officials and professional organizations.
How, and to Whom, to Provide Input
During committee hearings, the Finance Committees of both the House and the Senate receive input from state agencies, lobbyists, special interest groups, and other legislators and stakeholders. Testimony may be provided for these hearings in either written or live verbal form. Although written input will be heard, live and in person is often much more effective. Additionally, any legislator may provide input in the form of amendments. The state education associations are active during this process, so stay tuned. Ennis Britton attorneys also carefully monitor developments, using Twitter to give up-to-the-minute updates. During this important time, we can assist your district or group in preparing and delivering testimony at the Statehouse.
Follow these links to stay up-to-date on the House Finance Committee schedule and the Senate Finance Committee schedule. Follow Ennis Britton and our attorneys on Twitter to get the most current information. When the budget is completed, our firm immediately reads and holds an Administrator’s Academy in July to let you know what’s in the budget.
by Jeremy Neff | Jun 27, 2016 | Legislation, Student Education and Discipline
Efforts to reform truancy policy in Ohio have resulted in House Bill 410, which would eliminate suspension or expulsion of students as a punishment for excessive absence. The bill, which was passed in the House and now awaits action in the Senate Education Committee, would take effect in the 2017–2018 school year. HB 410 represents a shift away from zero-tolerance approaches to unexcused absences by removing “excessive truancy” from district policy regarding violent, disruptive, or inappropriate behavior.
Boards would need to adopt or amend existing policy to address student absences. Schools would be required to set up absence intervention teams – a district or school administrator, a teacher, and the parent or guardian of the child – aimed at finding solutions to get students to class via “absence intervention plans.” The bill suggests that the team collaborate with school psychologists, counselors and social workers, as well as public agencies and nonprofit organizations, which can provide additional assistance.
Schools would be required to report to the Department of Education any cases of habitual truancy, which has been redefined by the bill in terms of hours missed instead of days missed. The student would be assigned an intervention team, which must also be reported to the Department of Education. Though the bill is aimed at avoiding court interactions, juvenile court may issue an order to require that a child attend a certain number of consecutive hours unless the student has a legitimate excused absence.
For schools, a comparison for the absence intervention plan and the new protocol for truants is perhaps the implementation of a section 504 plan. Likely, the intervention team will conduct an equivalent to a functional behavioral analysis and come up with modifications in accordance. In contrast to IEPs, which are detailed, goal oriented, and have numerous methods for enforcement by the ODE, the solutions of the intervention team are not nearly as rigidly enforced by the language of the bill.
Should a child fail to complete the absence intervention plan laid out by the intervention team, the school can file a complaint to adjudicate the student as unruly. At that point, this complaint would be held in abeyance until the child either completes or fails to comply with a court diversion program. A child who fails to complete the program could be adjudicated as a delinquent child because of chronic truancy. The consequences for the parent or guardian of a chronic truant include a minor misdemeanor charge if the court finds that their actions in any way contributed to the behavior. In addition, they must pay a surety bond of $500.
The practical implications of these changes would likely place a burden on schools. Further constraints would be imposed on their staffing, who must participate in the intervention teams at additional expense. School budgets would be forced to accommodate in-school suspensions in place of expulsions or out-of-school suspension, which would require an extra classroom and teacher. However, the bill provides for no funding to implement these changes. The new approach to truancy will undoubtedly present a challenge to districts but aims to be a more effective means of addressing student absences.
by Jeremy Neff | Jun 2, 2016 | Legislation, School Finance
The Ohio Senate has approved a bill that would suspend property tax increases for commercial and industrial developments until a certificate of occupancy is granted. Any increase in the taxable value of properties that are being newly developed or redeveloped would not be subject to property taxes until the development is completed. Senate Bill (SB) 235 passed 22-11 on May 4.
Advocates of SB 235 say that it will encourage improvement of undeveloped property as developers would not face tax increases until a project is near completion. This measure would increase land development and job growth, and eventually increase property taxes when the development is completed.
However, the bill has faced debate and opposition, with many local governments expressing their concern while the bill was in the Senate Ways and Means Committee. The concern is that the bill would cause an unknown fiscal loss to local governments, although it would have no impact at the state level.
The Ways and Means Committee notes that it responded to the concerns by adding several amendments to the bill. One of those amendments is a ten-year reset, so that the taxable value of the property resets to the actual value at the eleventh year (and every ten years after that) for the tax suspension while the property is still in development.
As school districts are funded in large part by property taxes, SB 235 has implications to school districts. Many developments are years in the making, as noted by the ten-year reset amendment. This means that school districts would potentially lose out on many years of funding during the development of these commercial and industrial properties.
SB 235 has now been introduced in the Ohio House of Representatives for consideration. You are urged to contact your Ohio representative to provide input for the House committee that will be assigned to SB 235. Ennis Britton attorneys are available for counsel regarding how this bill may affect your school district.
