Special Education Update: Latest Budget Bill Draft Includes Troubling Special Education Provisions

Special Education Update: Latest Budget Bill Draft Includes Troubling Special Education Provisions

On June 8, 2023, the Senate Finance Committee released its draft of the HB 33, the state biennium budget bill. The draft contained some unfortunate proposals that will impact special education if passed in the final version of the bill, which is expected by the end of June. This article is current as of June 15, but the budget is moving quickly to its conclusion as the final conference committee completes its work and sends the bill to the Governor. Stay tuned for additional updates and possible changes.

Scholarship Changes
In addition once again expanding the EdChoice program by more than $373 million over two years, the Senate Finance Committee’s proposed bill also expands the Autism Scholarship Program (ASP) to any child who has been “identified” with autism by the child’s resident school district, or who receives services through an Individualized Education Plan (“IEP”) that are related to autism. Perhaps most concerning, the proposed bill would require school districts to develop “education plans” for a child who is eligible for a scholarship based on a diagnosis of autism, but who does not have an IEP. As districts are well aware, many students have received a medical diagnosis of autism at some point in their childhood yet are determined not eligible for an IEP or even a Section 504 plan because they do not demonstrate a need for special education and related services or any type of accommodations and modifications. This proposal requires development of an “education plan” regardless of need. Further, it provides students with access to the ASP even though they have not demonstrated eligibility for special education.

Both the House and current Senate budget proposals include an increase to the Jon Peterson Scholarship as well. The current version of the bill includes the following:
• Increases the base amount from $6,414 to $7,190
• Increases the Category 1 amount from $1,562 to $1,751
• Increases the Category 2 amount from $3,963 to $4,442
• Increases the Category 3 amount from $9,522 to $10,673
• Increases the Category 4 amount from $12,707 to $14,243
• Increases the Category 5 amount from $17,209 to $19,290
• Increases the Category 6 amount from $25,370 to $28,438
• Increases the maximum scholarship award (capped amount) from $27,000 to $30,000

Special Education Transportation
One of the most unfortunate provisions of the Senate’s version is a requirement that school districts provide transportation as a related service to students with disabilities who live within the district but attend a nonpublic school if the school district is provided with supporting documentation in the student’s IEP, individual service plan, or academic support plan. This change may further exacerbate transportation challenges for districts already struggling to provide transportation to their enrolled students. The current version does expand a district’s ability to use vans to transport students in certain circumstances, which is helpful (if it remains in the bill; reports suggest that it may be removed).

The governor’s version of the bill contains language that would extend the formula for determining special education transportation payments into FY 2024 and FY 2025 and increases the minimum state share percentage for traditional school district payments from 33.33% to 37.5% in FY 2024, and to 41.67% in FY 2025. The bill would extend these increases to educational service centers as well. However, the Senate Finance Committee made changes to the traditional district foundation aid formula which ultimately decreases the percentage share earmarked for special education transportation by $3 million in FY 2024 and $2 million in FY 2025. Likewise, the governor proposed an increase for funding preschool special education which was offset in part by the Senate Committee’s proposed change to the foundation aid formula.

Seizure Action Plans
The House introduced language in HB 33 that would require school districts to develop seizure action plans for each student with an active seizure disorder diagnosis. The Senate Committee maintained this language in its version. The proposed law also contains a training requirement: every two years, districts would need to ensure that at least one other employee besides the school nurse is trained to implement a seizure action plan. The proposal includes language that expressly extends qualified immunity to employees who carry out the plans in good faith. If this law passes, there are possible child find implications. Seizure disorders are considered disabilities, and students may be eligible for Section 504 plans or IEPs. It is recommended that districts keep special education teams in the loop when plans are developed so that districts may consider whether to offer evaluations that fulfill child find obligations.

Auxiliary Services Funds
The governor’s budget authorizes a newly chartered nonpublic school, within ten days of receiving its charter, to elect to receive auxiliary services funds directly. The Senate Finance Committee also inserted language into the bill that prohibits a district from denying a nonpublic school’s request for personnel to provide auxiliary services who are properly licensed.

Additional changes are expected in future iterations of the budget bill before a final version is passed. In the meantime, school districts should reach out to area legislators and share any concerns they have about the proposed language. Pam Leist and Hollie Reedy will review the final budget bill in detail at the Administrator’s Academy on July 13, 2023. Click here to register for the webinar.




































































































































































































































































































































































































































































Career Tech Corner: Ensuring Access through Admissions

Career Tech Corner: Ensuring Access through Admissions

It’s admissions time! For CTCs, admissions staff are busy processing applications and making plans for the incoming class for 2023-2024. This is also a great time of year to remind staff about a CTC’s obligation to ensure that programs are accessible to all students, including students with disabilities and students from special populations who may be underrepresented in career tech programs. Federal Grant Programs such as Perkins V, as well as civil rights laws, require careful review of data to determine whether all populations are fairly served. 

The admissions process is a critical step in providing equal access, so much so that the federal government has created “special” rules for vocational school program providers. This makes some sense, because a traditional K-12 school district does not have an admissions process since they are generally required to enroll all eligible students who reside in their districts.

These special vocational rules, codified in 34 C.F.R. Appendix B to Part 100, establish specific guidelines for vocational school admissions. The rules expressly prohibit a vocational school or program from using any type of criteria that disproportionately excludes individuals of a particular race, color, national origin, sex or disability (collectively, these are referred to as “protected classes”). Vocational program operators have the burden of demonstrating that any criteria which is used as a gate in admissions have a valid purpose.

Theoretically, it is not the end of the road even if the school’s criteria for admission to programs has a disproportionate impact on a protected class. According to the regulation, a school still may be able to use the criteria if it can prove that it is essential, and there is no alternative, equally-valid criteria that may be used. In practice, however, it is very difficult to meet this burden and justify criteria that has such a disproportionate impact on a protected class.

Because of this, most CTCs in Ohio have transitioned to using a lottery system, with the only “criteria” being a limit on the number of credits in which a student may be deficient for graduation, since the lab takes up so much of the student’s schedule and it becomes difficult to make up credits after enrollment to remain on track to graduate.

The justification for lottery systems is apparent when you consider how common criteria might pose inequitable enrollment barriers. For example, many CTCs used student interviews as part of their admissions process, especially for competitive programs where there were frequently more applicants than seats in the program. As state and federal officials analyzed the legality of this criteria, they began to conclude that in-person interviews pose a risk for human bias to enter the picture.

For example, if a student in a wheelchair applies for a program such as auto mechanics, which involves a lot of physical activities and that student attends an interview, admissions staff who meet the student may assume that the student has physical limitations which prevent them from fully participating. As a result, they may be less inclined to approve the student’s application, even though the student may very well be successful in the program with appropriate accommodations and modifications.

Similarly, other criteria such as GPA, discipline, and attendance may have disproportionate and negative impacts on protected classes. Applying such criteria is often difficult to defend, because they do not always present a clear link between the curriculum and class requirements of the lab with a student’s ability to participate effectively in the vocational program.

When we talk about “success,” it is important to understand that a career technical program in Ohio must provide equal access to all students who reside in the CTC’s territory. This is a mandate under both state and federal law, including Appendix B as well Ohio Revised Code §3311.19. These laws do not strictly focus on outcomes, but rather are more about access.

In some circumstances, “success” for a particular student may be that they participate in a lab, but do not earn any industry certifications or credentials like their peers. This may be a difficult concept for staff to understand, especially since programs are rated and judged by such factors as the number of students who receive credentials and who successfully enter their chosen fields after graduation.  

The Ohio Department of Education is tasked with assisting the U.S. Department of Education’s Office for Civil Rights in ensuring that Ohio CTCs remain compliant with Appendix B and other civil rights laws and regulations. In the past few years, ODE has taken an active role in reviewing the admissions process of CTCs through things such as desk audits and complaint reviews. This has triggered statewide conversations about CTC admissions, and many changes have come about because of these conversations.

If you have questions about your admissions process or if you might be facing a program review in the near future, it is important to contact legal counsel who is conversant with the particular needs of career-technical education for further discussions and consultation.
















































































































































































































































































New! EB’s Career Tech Corner: CTCs Begin Welcoming New Members Statewide

New! EB’s Career Tech Corner: CTCs Begin Welcoming New Members Statewide

As we head into a new year, many joint vocational school districts are welcoming new members to their governing boards. This can be an exciting time, with opportunities to meet and work with fresh faces and new ideas. This might also present some unanticipated challenges regarding appointment of new members, thanks to somewhat “recent” changes in the law over the past few years that have modified the qualifications for an individual to serve on a joint vocational school district board.

Back in 2017, the legislature amended the language in the statute which governs the appointment and qualifications of JVS board members. Under the amended version of R.C. 3311.19, an individual who is a current elected member of the appointing school district board of education is no longer required to have specific business and industry experience or knowledge. They simply must be current members of their appointing board.

You may recall that a previous version of the law amended in 2013 declared a current school board member was required to “have experience as chief financial officers, chief executive officers, human resources managers, or other business, industry, or career counseling professionals who are qualified to discuss the labor needs of the region with respect to the regional economy” in order to serve. Those individuals were further expected to represent employers in the region with knowledge of the state’s workforce needs. Again, now they simply must serve on the appointing board and if they do not, meet alternative qualifications.

There is a second group of candidates who are not currently serving on the appointing school district’s board but who qualify for service if they have “experience or knowledge regarding the labor needs of the state and region with an understanding of the skills, training, and education needed for current and future employment opportunities in the state.” Well appointing new members, preference may be given to an individual who serves on the JVS business advisory council but this is not a requirement.

The statutory language provides broader discretion to an appointing board of education in selecting the JVS board representative for their district than were found in the 2013 amendments. It also means that boards may be drawing from a more diverse pool of candidates, some of whom may have little or no experience serving on a school board or even in a public office. As a result, it is important to prioritize training for new JVS board members to onboard them more quickly in areas such as Sunshine Law compliance, board meeting rules of order, the structure and function of the JVS as an entity, its mission, vision, services and programs, policies and more.

Joint Vocational Schools should also communicate with appointing districts so they are aware of the qualification requirements for the appointment of new JVS members. By appointing an individual, the appointing school boards are expected to be aware of the JVS board member qualifications and by their action to appoint, are certifying that the appointees meet them.

The final change in the law from 2017 worth mentioning is the elimination of term limits. Under prior law, JVS board members could serve no more than two consecutive three-year terms. This limit no longer exists, and members may presumably serve an unlimited number of three-year terms.













































































































































































Court Determines Dress Code May be Covered Under Title IX

Court Determines Dress Code May be Covered Under Title IX

The board of trustees of a North Carolina charter school discovered that designing a dress code based on the view that girls are “fragile vessels” could violate both the Equal Protection Clause and Title IX of the Education Amendments of 1972.

Parents of several students at Charter Day School (CDS) filed suit, challenging the dress code requiring K-8 girls to wear a skirt, jumper or skort unless they were in PE class or for certain field trips and other special events. Boys, on the other hand, were allowed to wear shorts or pants at school. Parents complained that the requirement of skirts for girls prevented their daughters from engaging in numerous physical activities including using the swings playing soccer, and even comfortably participating in emergency drills that required students to crawl or kneel on the floor.

The District Court concluded that CDS was a state actor for purposes of the Equal Protection Clause, but determined that dress codes are exempt from Title IX’s prohibitions against gender discrimination. On rehearing en banc, the 4th District Court of Appeals affirmed that in certain circumstances, a private actor could be engaged in state action. In this case, the court determined that “…implementing the skirts requirement based on blatant gender stereotypes about the proper place for girls and women in society” is a clear violation of the Equal Protection Clause.

The court went on to consider the Title IX claim, overturning the District Court’s ruling. Title IX provides that“…no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

In reaching its conclusion, the 4th Circuit noted that Congress did not list any specific discriminatory practices in Title IX, but the law was instead intended to generally prohibit explicitly sex-based policies. Since the effect of the dress code was to prohibit female students from participating in certain school activities, it denied them the full benefit of their education and subjected them to discrimination because of their sex.

Accordingly, the court concluded that Title IX applies unambiguously to sex-based dress codes. The case was remanded to the District Court for further proceedings consistent with its opinion.

What this means for your district: While few schools still embrace such gender stereotypes, boards are cautioned to review dress codes and any other gender-specific policies for conformity with Title IX and the Equal Protection Clause.

Peltier v. Charter Day School, Inc., No. 20-1001 (4thCir. 2021)      



























































































The New Payment in Lieu of Transportation Process

The New Payment in Lieu of Transportation Process

The Cost of PIL Set to Increase Significantly

School districts can expect the cost of PIL to at least double starting this school year. Under prior law, districts paid a flat cost of $250 per student. Now, districts must pay at least 50% of the average cost of pupil transportation as established by ODE, and may pay up to 100%. The per pupil cost of transportation over the past few years has been around $1,000, which means parents will receive at least $500 this year alone.

Although grants are being made available to help offset the costs, districts will foot the bill since ODE is no longer reimbursing districts for PIL. Under the revised law, ODE is now authorized to determine if a district is out of compliance, and force a district to pay at least 50% of the cost of transportation.

Let’s Talk Timing and Substance

Districts are now required to make a determination about PIL no later than 30 days before the start of the school year, or 14 calendar days if the student is enrolled later. To help schools make decisions more quickly, the bill now authorizes a board of education to delegate PIL decision-making to superintendents, although the board is still required to approve the decision(s) at the next scheduled meeting. Once a decision is made, districts must now issue a letter not only to parents, but also to the community/non-public schools and the state board. The letter must include a detailed explanation of why a PIL determination was made.

Keep in mind that to be eligible for PIL, a student must be eligible to receive transportation from the district to begin with. The school where the student attends must be a chartered school, and also must be less than thirty minutes away from the building where the student normally would attend. Districts will consider the same six factors that existed under the prior version of the law when making a determination.

Finally, districts should be aware that the revised law now allows parents to authorize a community/non-public school to act on their behalf once they have submitted a request for transportation. The authorized schools may represent the parents in all proceedings moving forward, including mediation. School districts should verify that a parent has granted this authorization.  

What can you do to prepare?

As you prepare to implement the changes, here are some helpful hints to keep in mind:

  1. Timely planning and execution are really critical under this new process.
  2. Ensure careful documentation of evidence and reasoning behind PIL decisions.
  3. Work with counsel to prepare letters to be sent to parents, community/non-public schools, and ODE.
  4. Create an effective presentation for the Board that includes rationale, details and discussion for each student.
  5. Consider and plan for increased costs for PIL that are in line with new minimum amounts.
  6. Update your forms throughout and train your staff.

Tools to Help You on Your Way

Ennis Britton recently hosted a webinar to help districts implement the new PIL process and adjust to other transportation changes enacted through the budget bill. Attorneys Pam Leist and Hollie Reedy were joined by special guest and transportation expert Pete Japikse to discuss the new laws and provide practical pointers. Participants received template forms and sample resolutions to help facilitate the transition to the new process. If you missed the webinar, an archive is available for purchase by emailing hreichle@ennisbritton.com. Templates are included at no additional cost to all registered participants.