Special Education Update: Five Key Takeaways from LRP’s School Attorneys Workshop and National Institute

Special Education Update: Five Key Takeaways from LRP’s School Attorneys Workshop and National Institute

Ennis Britton attorneys Pam Leist, Giselle Spencer, and Jeremy Neff were at the LRP School Attorneys Workshop and National Institute in Savannah, Georgia earlier this month. Pam presented on the topic “Can you Keep a Secret? Navigating Confidentiality Under IDEA, 504, and FERPA” during the National Institute. Jeremy also presented during the National Institute on the topic “Successfully Mapping the Exit from IDEA Services.” In addition, Jeremy spoke at the School Attorneys Workshop on the topic “An Ounce of Prevention: COVID Lessons Learned for Future Disruptions”.

Giselle captured five key takeaways from the conferences:

1. Fittingly, at the end of the school attorneys workshop on May fifth, she learned that Cinco de Mayo is not Mexican Independence Day. However, it does mark a historically, significant battle with some interesting connections to the outcome of the American Civil War as well as the Mexican fight for independence from brief period of French colonial rule (thanks for yet another history lesson, Jeremy). What does that mean to special educators? It has something to do with stepping back and taking a broader view and accepting that we don’t always understand the significance of something we’re going through while we are in the midst of it.

2. More specific to special education, an excellent session on parents and the different individuals who can fill those rolls offered the reminder that surrogate parents are only appointed in specific circumstances outlined in the regulations. It is not appropriate to appoint surrogates just because of difficulties in working with a parent or inconsistent attendance at meetings by a parent. Ohio’s special education regulations align with the federal regulations which only allow the appointment of a surrogate when an individual otherwise meeting the definition of parent cannot be identified or located, when the child is a ward of the state, or when the child is an unaccompanied homeless youth.

3. Pam Leist shared in her presentation that under FERPA and parallel privacy protections in IDEA, union representation does not get a seat at the IEP meeting table. IEP teams discuss important sensitive information that is not germane to labor management issues, or the terms and conditions of employment. While sometimes those issues may arise tangential to special education decisions, it is important to keep them separate from the IEP meeting process.

4. A speaker from a different state shared that there are varying residential placement tests applied by courts, depending on where a school district that the student is a resident of is found. The Ohio test for school district financial responsibility for residential services asks whether the need for residential services is intrinsically intertwined with the educational services or needs of the child. Residential placements at public expense should only be used in rare circumstances with low incidence needs, regardless of which test a court applies.

5. And finally, Giselle observed for her fifth take away and in recognition of the island location of the Savannah convention center as well as the stormy weather on a couple of the nights, that one should never get on a metal ferry during a thunderstorm.

Ennis Britton’s team enjoyed presenting at LRP this year and also learning from colleagues across the country. Thanks to the clients who made the trip for saying hello! We look forward to participating again next year when the National Institute is held in Phoenix, where we do not anticipate needing to ride any ferries. Until then, the Ennis Britton Special Education Team is able to provide quality, tailored professional development here in Ohio throughout the year.


















































































































































































































































































































































































































































































































































































































































































































Special Education Update: Recent Case Highlights the Importance of Paying Attention to Academics

Special Education Update: Recent Case Highlights the Importance of Paying Attention to Academics

Ohio’s Office for Exceptional Children (“OEC”) found that a district did not meet its child find obligations under the Individuals with Disabilities Education Act (“IDEA”) when it neglected to evaluate a student receiving poor grades and displaying difficulties paying attention. In Shelby City Schools, 124 LRP 2694 (2024), the parent of a student emailed a district indicating that their student was struggling with test scores and that they wanted an Individualized Education Program (“IEP”) evaluation. The district failed to respond to the email and never conducted the IEP.

As the year progressed, the student’s grade reports indicated that they were struggling significantly in the 2023-2024 school year when compared to the 2022-2023 school year. In its finding, the OEC noted that the student’s grades showed a significant decline in performance to which the district “had knowledge of the Student’s academic struggles.” Additionally, the OEC found that even though some interventions were in place, it was clear that the interventions were not working, and the student continued to make no progress. Therefore, because of the failure to implement interventions to help the student make progress and to conduct an evaluation when the parent requested, the OEC found that the district violated the IDEA’s child find requirement.

What does this mean for your district? As the school year comes to a close and summer is right around the corner, be sure to watch for students’ grades and look for students whose grades or test scores may be declining. As the OEC noted in this case, the fact that the student’s grades were gradually worsening and they were having an increasingly difficult time paying attention should have caused the Ohio district to take notice and evaluate the student. These possible red flags, which may be highlighted in end-of-the-year grade reports, could be a flag to districts that a child might be IDEA-eligible.

On the Call: Predetermination

Sidestepping parental input before the IEP meeting can have you stepping into a big rain puddle of trouble. Jeremy and Erin discuss the legalities and implications of predetermination, including a recent case from Maryland where the district’s case was bolstered by the documented and constant discussion that items on the IEP were only a draft and could be changed at the meeting. They share several practical tips to help foster collaboration and ensure meaningful parental participation, which in turn, will have your team blooming like May flowers.

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

Meet us in Savannah? Ennis Britton’s Jeremy Neff and Pam Leist will be speaking at the LRP National Institute in Savannah, Georgia from May 5th through 8th. This is their third year running at the conference! Pam’s session will navigate confidentiality and Jeremy plans to share insights on successfully transitioning from IDEA services. Learn more at LRPInstitute.com. Hope to see you there!

On the Call: Child Find – Escalating Behaviors

Erin and Jeremy step up to the plate to provide a breakdown of a district’s obligations for Child Find under IDEA and Section 504 when escalating behavior occurs. They analyze a recent case from Tennessee where a district prevailed, but the court cautioned against the dangers of ignoring clear signs of a disability under IDEA. The discussion highlights the importance of documentation and training, as well as setting up systems to monitor potential triggers to improve your Child Find RBI.

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

On the Call: When the 504 Plan Falls Short

Navigating the complexities between a 504 that is not working and Child Find under IDEA can feel like walking a very thin tightrope.  Erin and Jeremy discuss the legal framework surrounding The Rehabilitation Act, how to differentiate the disabilities covered by 504 versus IDEA, and a District’s obligations when the 504 plan falls short. The discussion includes a recent case in Ohio that serves as a cautionary tale and highlights the importance of regularly reviewing the data to ensure the 504 plan is being implemented correctly. As always, they provide some thoughtful tips to help you stay balanced during the process so you can get to solid ground. 

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

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

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

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.