In recent weeks, school districts across the United States have been forced to respond to unexpected disasters in addition to all of the ongoing pandemic-related challenges. From tragic school shootings to catastrophic tornados, schools have continued to adapt as best they can. These situations serve as powerful reminders about the importance of developing contingency plans for how to support some of the most vulnerable students – those with disabilities – when disasters strike.
Recent pandemic guidance sheds some light on the question of what a district’s obligations might be when schools are unexpectedly disrupted due to unforeseen circumstances. In 2020, the U.S. Education Department released insightful guidance for districts amid the emerging COVID-19 pandemic. Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, U.S. Department of Education (March 12, 2020).
The ED declared that when a school district is closed and not providing any educational services to the general student population, then the school district is not required under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act to provide services to students with disabilities. However, once a school resumes in some fashion, a district’s obligation to provide services for disabled students changes, even if educational programming is provided in a different format such as remote learning. At that point, districts are obligated to “make every effort” to fully implement a student’s IEP or 504 plan, including providing all special education services and accommodations for students.
In the event that a school is unable to provide the services, special education teams may be expected to convene and consider whether compensatory services should be offered at some point. Additionally, teams should consider whether any type of recovery services might be provided to help compensate for any regression and learning loss.
As we have seen during the pandemic, schools that are able to adapt quickly to disasters are better able to support their students with disabilities, prevent regression and learning loss, and reduce or altogether avoid costs associated with compensatory education and recovery services. The ED stressed the value of creating contingency plans to address unexpected changes in learning platforms and resources. When contemplating the question of whether special education teams should consider distance learning plans as a contingency during the pandemic, the ED responded “Creating a contingency plan before a COVID-19 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach an agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal.” This same concept is easily extrapolated to other types of disasters.
The lessons learned during the pandemic provide a solid foundation for schools in developing contingency plans. These plans may address the following needs:
- Available Resources. School districts should have a solid understanding of what resources are available in their districts and communities to pull from in an emergency situation so that they can quickly access them. It is also helpful to maintain backup technology devices such as computers and hotspots to help facilitate the district’s quick response.
- Supports for displaced students. Students who experience natural disasters such as floods and tornados may temporarily lose housing. In addition to IDEA and Section 504, students may have rights under the McKinney-Vento Homeless Assistance Act. Having access to technology such as laptops and hotspots, as well as maintaining connections with neighboring districts, educational service centers, and county agencies help schools adapt quickly.
- Team meetings. It is important for special education teams to convene meetings in a timely fashion so that your knowledgeable professionals are able to problem solve and address unique challenges that a student with disabilities might face because of the disaster. Utilizing technology and staff to facilitate meetings quickly is important.
- Additional Service and Staff Needs. Not only are students impacted by disasters, but staff as well. Districts may need to quickly access additional staff to fill service gaps or expand services that are provided to students. Alternatives might include utilizing telehealth services and working with neighboring districts and ESCs for backup support.
- Documentation. It is critical that districts have an effective way to document what they are doing for students with a disability at all times, but especially during a pandemic. This data becomes critical for special education teams as they explore future student needs, and also helps defend against parent and advocate challenges that may come your way.
The value of developing solid contingency plans before a district faces a disaster is significant. School districts should work with their colleagues and legal counsel to develop a strategy for future needs. A member of the Ennis Britton special education team is here to help support your efforts.
A Pennsylvania district court found that parents of a student who had suffered three concussions were not entitled to an independent education evaluation (IEE) at public expense because they disagreed with the evaluation team’s IDEA classification.
The parents of a gifted high school student originally requested an evaluation in 2016. The district did not find the student eligible under IDEA but instead created a 504 plan for occupational therapy (OT) services.
The next year, the parents again requested an evaluation, but placed conditions of the types of testing the district could conduct. When the evaluation was completed, the district found the student eligible with an autism classification. The parents disagreed with the classification and the district offered on three separate occasions to conduct a reevaluation to consider their concerns, which they refused each time.
Nearly two years later the parents requested an IEE since the district did not use a traumatic brain injury (TBI) as the student’s disability category. It is noteworthy that the TBI was not medically diagnosed but was assumed by parents as a result of the three concussions suffered by the student a year earlier.
In declining the parent’s request for an IEE, the district filed due process to defend its evaluation. The state hearing officer ruled in favor of the district and the parents appealed.
Upon review, the federal court found that since the district conducted the evaluation based upon an area of suspected disability, and since there was no information presented to the district team to cause them to suspect TBI, the evaluation conducted by the district was justified. The court noted that an evaluation should be tailored to the specific areas in which a student is struggling but need not be designed to identify and diagnose every possible disability.
What this Means for Your District
The Pennsylvania court reiterated that a parent can request an IEE up to the time for the reevaluation. However, in looking at the remedies for the parents, the court found that since a new evaluation was due, the IEE request was moot. More importantly, schools should not feel compelled to change the disability classification of a student due to parent demand. Any such change must be based first upon suspicion of a disability and then on the assessment conducted by the district.
The Director of the Office of Head Start (OHS), U.S. Department of Health and Human Services (HHS), recently shared a letter with the Head Start community an update that will revise the Head Start Program Performance Standards (HSPPS) to include additional health and safety requirements.
On November 10, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its COVID-19 Guidance for Operating Early Childhood Education (ECE) and Child Care Programs. The CDC stressed that vaccination is currently the leading public health prevention strategy to end the COVID-19 pandemic, and promoting vaccination among all eligible individuals can help ECE programs protect staff and children in their care, as well as their families. It acknowledges that most ECE programs serve children in an age group that is not yet eligible for vaccination and emphasizes using multiple prevention strategies together to protect both children and adults in ECE care.
Consistent with this messaging, HSPPS now recommends universal indoor masking in ECE programs for everyone ages two and older. The standards will also require vaccination against COVID-19 for all staff, contractors, and volunteers working with children be fully vaccinated (two doses for Pfizer or Moderna and one dose of Janssen) by January 31, 2022. Anyone granted a vaccine exemption will be required to undergo weekly testing.
As part of President Biden’s Path Out of the Pandemic, an interim final rule with comment (IFC) was published on November 30, 2021. With the release of the new HSPPS, the Office of Head Start hosted a webinar outlining these new requirements and published Universal Masking and COVID-19 Vaccine Requirements FAQs. Both the webinar and the FAQ were released on November 29, and the webinar is available on demand through the OHS website.
Since these new requirements will be a federal mandate, districts with head start programs may wish to begin informing staff and/or parents of the projected procedures.
We previously wrote about HB 126, which sought to impose additional hurdles on school districts when challenging property valuations. As passed by the House, this bill would require a school board to authorize each valuation complaint or counter-complaint at a board meeting before they can file a complaint or counter-complaint with the county board of revision. It also requires the school board to notify the property owner of the challenge 14-days in advance of the board meeting. These onerous steps make it difficult to meet the deadlines for filing complaints and counter-complaints and appear to attempt to politicize the process by providing advance notification of coming complaints to property owners.
In November, this bill received two hearings in the Senate. An amendment was even floated that would have completely eliminated the right of school districts to participate in the board of revision process. Under that amendment, not only would school districts be prohibited from filing complaints to increase valuations, but they would also have no right to file a counter-complaint to contest valuation reductions being sought by property owners. Although that amendment was never formally introduced, the Senate continued with proponent and opponent testimony concerning HB 126 as passed by the House. OASBO, BASA and OSBA have been working with school districts to oppose this legislation.
With little notice, the Senate Ways and Means Committee adopted a revised bill on December 7, 2021. The revised bill prohibits school districts from filing original complaints to challenge the values assigned by county auditors. Although it permits districts to continue filing counter-complaints to challenge reduction requests sought by property owners, the revised bill requires that boards of education adopt separate resolutions for each counter-complaint. In addition, it prohibits districts from appealing decisions of county boards of revision.
The revised bill out of the Ways and Means Committee will now proceed to consideration by the full Senate. If passed by the Senate, the bill will head back to the House for re-consideration. We will continue to update our clients as this bill progresses through the Senate. In the meantime, administrators are encouraged to contact their legislators to voice their positions on this bill.
Many districts have seen an increase in parental complaints about the curriculum and programs in Ohio’s public schools. This is a result of the national debate about critical race theory and a belief that it is being taught in public schools. Some parents have submitted opt-out forms to schools that state they do not consent to their child’s participation in any instruction or discussion of racially divisive topics or social-emotional learning programs. Must Ohio schools honor these opt-outs?
Although the State of Ohio has a large say over the academic standards in grades kindergarten through twelve, R.C. 3313.60 requires each board of education to adopt a curriculum for all schools under its control. Provided that boards of education satisfy state academic standards and requirements, courts have granted boards of education broad authority to determine the curriculum taught in school and the instructional methods and materials that are utilized.
Generally, parents do not get to pick and choose the required courses or curriculum their children must take or satisfy in Ohio public schools. Such an option would likely be unworkable for districts. Thus, parents generally cannot opt their children out of required courses or curriculum.
Ohio law does provide parents with the ability to opt their children out of some items in the curriculum, including surveys, personal safety and assault prevention in grades kindergarten through six, suicide awareness and prevention and safety training and violence prevention in grades six through twelve, instruction in social inclusion, venereal disease education, and cardiopulmonary resuscitation.
Additionally, R.C. 3313.60(G) grants parents the right to promptly examine, with respect to their own child, any survey administered to their child; any textbook, workbook, software, video, or other instructional material used by the district in connection with the instruction of their child; any completed and graded test taken or survey filled out by their child; and copies of statewide academic standards and each model curriculum that is developed by the state board of education.
As for textbooks and library books, Ohio law and the courts generally leave it to the discretion of each board of education to select them. However, as for their removal, First Amendment considerations are necessary before books are removed because courts generally hold that they cannot be removed on the grounds that they are found to be offensive to a board of education or the board of education dislikes their ideas. It is permissible to remove books for a variety of other reasons, including because of their poor condition and a lack of shelf space.
What this Means for Your District
In general, opt-out forms need not be honored unless a parent is opting out of one of the items in the curriculum that the law gives them the authority to opt-out of. As complaints about the curriculum, textbooks, and library books are made, districts are advised to consult and follow board policies that give parents the right to complain about the curriculum or instructional materials. In addition, districts should consult with legal counsel over First Amendment concerns before removing books as a result of complaints or a general dislike for their ideas.
As COVID-19 continues to affect education, school district decisions about mask policies and exemptions have resulted in lawsuits about the rights of students with disabilities.
The claims arise under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The students have conditions that make it particularly dangerous for them to be exposed to and contract COVID-19, alleging that their rights were violated by state laws, executive orders by Governors banning mandatory masking, and/or individual school board decisions.
The ADA affords that persons with disabilities have the right to reasonable accommodations that provide them with meaningful access to public programs, services, and activities. When a board of education fails to make reasonable modifications to enable access to its facilities, programs, and services, a person with disabilities may bring a “failure to accommodate” claim. A failure-to-accommodate claim asserts that the defendant “…could have reasonably accommodated a person with a disability, but refused to do so.” (S.B. v. Lee, Dist. Ct., E.D. TN) 2021 WL4755619)
Four cases with similar ADA and 504 claims have been decided in three federal circuits, including the 6th Circuit, with varying results. On October 12, in a case originating out of Tennessee, the Court of Appeals outlined the ADA’s “failure to accommodate” claim, stating “This case requires the Court to consider the ADA’s mandate of social integration in an unprecedented context by addressing how a board of education must reasonably accommodate medically-compromised students when COVID-19 is now part of daily life inside their schools’ walls.”
The court granted a temporary injunction to the students with disabilities against the Tennessee Governor’s order that all parents may opt-out of a mask requirement and the school board’s decision to allow optional masking. The school district was ordered to adopt the universal masking policy it had in 2020-21 as a reasonable accommodation for the students. It also required the school district to report any mask exemptions granted, including the specific reasons for those exemptions.
The 6th Circuit also determined that the plaintiffs did not need to exhaust their remedies under IDEA. Recently, the court issued an additional ruling on the school district’s motion to amend that judgment, because it alleged students and staff were refusing to wear masks. The court denied that motion, noting the district had not offered sufficient evidence or supporting legal arguments.
The 8th and 11th Circuits also considered similar claims by students with disabilities. In the 11th Circuit, which includes Florida, two different federal courts declined to issue injunctions on claims under the ADA and Section 504. In one decision issued on September 13, the court held that the student’s individual health claims and accommodations required exhaustion of their administrative remedies under IDEA. (Hayes v. DeSantis [Dist. Ct., S.D. FL] Case 1:21-cv-22863-KMM, Spt. 15, 2021)
In a separate 11th Circuit case, an ADA and Section 504 challenge to a school board’s decision to end most COVID-19 mitigation measures, the court refused to issue an injunction, finding that virtual school was a reasonable accommodation available to all students and that the preferred accommodation need not be provided.
In the 8th Circuit, a challenge to the Iowa Governor’s order banning school districts from universal masking decisions alleged that the ADA and Section 504 preempted the Governor’s order. The federal district court did issue an injunction preventing the order from taking effect, ruling that universal masking is a reasonable accommodation. The court also held that the state ban does violate ADA and 504 by excluding disabled students and denying them the benefits of public schools’ programs, services, and activities to which they are entitled.
What this means for your District:
Case law on masking guidelines is still developing. The 6th Circuit decision, while arising in Tennessee, should inform decision-making in our federal circuit. These cases are all temporary restraining orders, meaning there will be further proceedings with evidentiary hearings which may alter the outcomes, settle or otherwise affect the rulings. Stay tuned and contact one of our attorneys if you have questions.