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 This may be about to change under the new rule, where the term “district of residence” has been replaced by the term “educational agency” throughout the rule.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.

 

 

Supreme Court Reminds Districts to Triple-Check Their Evaluation Procedures

Supreme Court Reminds Districts to Triple-Check Their Evaluation Procedures

by | Aug 18, 2024 | General, Labor and Employment

Jones v. Kent City School Dist. Bd. of Edn., Slip Opinion No. 2024-Ohio-2844.

On July 31st, 2024 the Ohio Supreme Court ordered the Kent City School District to reinstate a teacher after determining that the Board of Education failed to complete three formal observations as is required by the Ohio Teacher Evaluation System (“OTES”), and therefore was not able to non-renew his employment.

Jones had been employed by the district for roughly twenty years and began having disciplinary issues during the 2019-2020 school year. He repeatedly left early from work and failed to complete assigned tasks during teacher workdays. Following an absence where Jones failed to notify the administrators of his absence and failed to schedule a substitute pursuant to district procedures, the Board notified Jones that he would be placed on a “full cycle” evaluation and that he was being considered by the Board for nonrenewal.

Under state law, specifically R.C. 3319.111(E), school boards are required to complete at least three formal observations of any teacher employed under a limited contract if the school board is considering nonrenewal of that contract. While school boards and teachers’ unions are free to establish local standards for following the evaluation procedures, boards are still required to follow the mandatory procedures established by the General Assembly, and those statutory requirements prevail over any conflicting terms of a collective-bargaining agreement.

The evaluator in this case finished the first evaluation without any difficulties, but the COVID-19 pandemic shut down schools and shifted classes online before the second evaluation could be carried out. In response to the pandemic, the General Assembly allowed districts to drop evaluation requirements provided they agree to renew the teacher’s contract. Not wanting to reemploy Jones, the district decided to proceed with the evaluation process after they reached an agreement with the teachers’ union to allow observations to be completed virtually through distance learning. Following the agreement, a second observation took place virtually and a third was scheduled. Jones was unavailable for the third observation due to a medical emergency. He was later excused for the rest of the year by his doctor. Rather than reschedule, the evaluator moved forward with the observation in Jones’s absence by sitting in on a virtual learning session with Jones’s class.

The board unanimously approved Jones’s nonrenewal following the evaluation process, and Jones appealed the decision. Because he was not present for the final observation, Jones argued that the process violated R.C. 3319.111(E). The Ohio Supreme Court agreed. According to the Court, the plain language of the statute requires three observations of the teacher who is under consideration for nonrenewal, regardless of any agreement between the Board and the teachers’ union. It was undisputed that Jones was not present for that final evaluation. Therefore, the Court concluded that the board could not rely on Jones’s excused medical absence to justify their noncompliance with the statute.

What this means for your district? It is critical that school districts plan ahead if a teacher is up for non-renewal. As this case demonstrates, and as previous cases have held, even pandemics and doctors’ notes do not excuse a district’s evaluation requirements for non-renewals. This includes the completion of at least three observations of the teacher while they are actually engaged in teaching.

Special Education Update: DEW Faces Challenges on Multiple Fronts for Systemic Complaint

Special Education Update: DEW Faces Challenges on Multiple Fronts for Systemic Complaint

by | Mar 20, 2024 | Special Education

On February 14th, 2024, the nonprofit advocacy group Disability Rights Ohio (“DRO”) filed a due process complaint against the Department of Education and Workforce (“DEW” or “Department”) for its alleged mishandling of a systemic complaint that involves forty-four school districts and an educational service center (“ESC”) in southwest Ohio. The systemic complaint was initially filed by DRO back in 2022, and included broad allegations that the ESC and districts of residence failed to provide a free appropriate public education (“FAPE”) in accordance with the Individuals with Disabilities Education Act (“IDEA”).

After conducting an internal investigation, the Department, which was still the Ohio Department of Education at that point, issued corrective action against the districts involved. Corrective action was also issued against the ESC. The corrective action included compensatory education of up to 100 plus hours in some circumstances, as well as mandated training, implementation of an internal audit process for outside placed special education students, and adoption of policies or procedures that govern placement of students in outside programs.

Districts raised a number of serious concerns about how the Department’s investigation was conducted. As a result, the Department paused its enforcement efforts and agreed to reconsider its decisions. Revised decisions were issued this past year. DRO apparently disagreed with these modifications and subsequently filed its due process complaint against the DEW.

Meanwhile, the ESC filed a legal challenge of its own on February 20th, 2024 in the county common pleas court. The legal action sought a restraining order against the DEW to prevent it from enforcing the corrective action finding against the ESC. The ESC acknowledged that the DEW is the state educational agency for Ohio as required by IDEA, but contested the DEW’s authority to issue corrective action against the ESC. The court found the ESC’s arguments compelling and granted a restraining order on February 22nd. The order specifically enjoined the DEW and its agents from enforcing its corrective action against the ESC temporarily pending further legal review.

The actions filed by DRO and the ESC raise interesting legal questions about the DEW’s authority and process for investigating systemic complaints and issuing corrective action as well as the legal standards upon which actions are based. It is apparent that both the ESC and DRO believe the DEW mishandled the complaint process and exceeded its authority in this case. We will continue to monitor this situation as it evolves. In the meantime, districts are encouraged to promptly contact legal counsel if they receive notice that an IDEA state complaint has been filed against them.

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

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

by | Jun 20, 2023 | General, Legislation, Special Education

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

by | Feb 14, 2023 | General

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.