Feds Stress Compliance with Special Education Requirements for Preschool-aged Children

Feds Stress Compliance with Special Education Requirements for Preschool-aged Children

by | Dec 12, 2022 | General, Special Education

Perhaps revealing enforcement priorities, the U.S. Department of Education’s Office of Special Education Programs (OSEP) and the U.S. Department of Health and Human Services’ Office of Head Start (OHS) recently issued a joint letter reminding state educational agencies (SEAs), local educational agencies (LEAs), and Head Start programs of their requirements to serve preschool-aged children under the Individuals with Disabilities Act (IDEA).

The letter asserts that “young children and their families have been disproportionately affected by service disruptions.” While acknowledging that the pandemic continues to present challenges to implementing appropriate programs and services to young children, “children with disabilities retain their rights under IDEA to receive appropriate special education and related services in accordance with their individualized education programs (IEP).” The letter stressed, “No IDEA requirements have been waived.”

The letter concludes that data shows:
• initial evaluations have been delayed and not provided in a timely fashion;
• special education and related services included in IEPs are not being provided timely or IEPs are not being fully implemented; and
• placement decisions are not being made in accordance with IDEA’s least restrictive environment requirements.

The letter goes on to urge collaboration between SEAs, LEAs, and Head Start programs and provides links to resources to help meet the requirements of IDEA.

As a result of the correspondence, one can conclude that challenges resulting from pandemic disruptions will not serve as a “get out of jail free” card. Both the US Department of Education and the Department of Health and Human Services have put LRAs and Head Start programs on notice of their expectations.

Feel free to reach out to any of your partners at Ennis Britton to discuss special education compliance issues for preschool-aged children.

A copy of the letter can be found here. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revised IDEA Regulations Finally Coming?

Revised IDEA Regulations Finally Coming?

by | Nov 11, 2022 | General, Special Education

On Friday, October 14, the Ohio Department of Education filed proposed revisions to the IDEA operating standards (Ohio Administrative Code 3301-51). On Tuesday, November 15, the State Board of Education will hold a hearing on these proposed revisions. This is all part of the lengthy regulatory process that has now been underway for several years. It is possible that the new regulations will be in place sometime in the coming months, though the current process has experienced unexpected delays several times before.

The area of revision that has been of most interest to school districts has been the possibility of aligning Ohio’s IDEA regulations with the federal regulations as relates to changes in placement (OAC 3301-51-05(C)(5)). At the federal level IDEA does not require parental consent before a child’s placement is changed. This allows for a dynamic and responsive approach to designing a child’s special education.

Unfortunately, the current Ohio regulations impose a parental consent requirement for changes of placement. This means that parents can unilaterally overrule the IEP team consensus that a change of placement is necessary to provide FAPE. In such situations, schools are forced to file due process to change placement or to continue to serve the child in the inappropriate placement. Either approach can delay the appropriate provision of services.

Anecdotally, school district leaders uniformly supported a change to the parental consent requirement for changes of placement when this revision was included in the version of the proposed regulations presented to the State Board of Education in July 2020. Unfortunately, despite this support, ODE revised the proposed regulations to reinsert the parental consent requirement in the version now being considered.

Despite the major departure from federal regulations with the parental consent language, other changes in the proposed regulations are mostly to align state regulations to the federal regulations. Some of the more substantial changes include:

OAC 3301-51-01(B)(13) Transition Services: Clarifies expectations for transition service planning and coordination.

OAC 3301-51-01(B)(63) Supervisor/Coordinator Services: Clarifies professional qualifications for the IEP team member who supervises special education service providers.

OAC 3301-51-03(C) Disproportionality: Significant new language regarding disproportionality as it relates to the identification, placement, and discipline of students with disabilities.

OAC 3301-51-05(E) Surrogate Parents: Significant additional language about surrogate parent duties. Additional clarification that no surrogate may be appointed when biological/adoptive parents retain educational rights and can be contacted.

OAC 3301-51-07(E)(2) Transition Services: Codifies the current practice of requiring transition progress reports for Section 5 of the IEP.
OAC 3301-51-07(H)(7) Transmittal of Records: Sets a 30 day time period for transmittal of records when a child enrolls in a new school district.

Significant changes to preschool regulations are made throughout OAC 3301 Chapter 51 and are beyond the scope of this newsletter article and relate to separate changes already finalized for OAC 3301-51-11.

Over the past several years there have been many opportunities for school leaders to give input in the regulatory process. We are approaching the end of this opportunity and can anticipate that new regulations will be adopted within the next few months and will be in place for several years. School leaders are encouraged to give feedback to the State Board of Education in advance of or at its November 15 hearing on the proposed regulations. As was noted above, of particular interest is the proposal to not align with the federal IDEA regulations as it relates to parental consent for changes of placement (OAC 3301-51-05(C)(5)). This departure from federal regulations is a major barrier for some IEP teams as they seek to meet the unique needs of students with disabilities.

The currently proposed regulations can be found by using the search tools at the Register of Ohio Website:
https://www.registerofohio.state.oh.us/rules/search

The agency number for the Ohio Department of Education is 3301, and the chapter is 51.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCOTUS to Consider Exhaustion of Remedies Case

SCOTUS to Consider Exhaustion of Remedies Case

by | Nov 10, 2022 | General, Special Education

The Supreme Court of the United States has agreed to hear a special education case concerning a family’s obligation to exhaust administrative remedies before filing a claim under the Americans with Disabilities Act. The case of Perez v. Sturgis Public Schools involves a former student of the Sturgis, Michigan school district who was denied a sign language interpreter for many years. The family filed a due process complaint, claiming violations of the IDEA, the ADA, and other statutes. The parties settled the IDEA complaint when the district agreed to pay for post-secondary compensatory education and sign-language services. The former student then sued the district and federal court for monetary damages for ADA violations. The school district argued that, due to the settlement, Perez failed to exhaust the administrative proceedings under the IDEA. Both the District Court and the US Court of Appeals for the 6th Circuit sided with the school district – the latter finding that there was no applicable exception to the exhaustion provision under the IDEA, despite the fact that the administrative law judge could not award monetary damages. For that reason, the settlement of the IDEA due process complaint shields school districts from related claims under Section 504 or the ADA. The Appellate Court’s decision is consistent with similar findings in the 8th and 10th Circuit Courts of Appeals. However, suggesting that there may be conflicts among other federal appeals courts, the SCOTUS has agreed to hear the appeal. This is especially important since the high court’s earlier decision in Fry v. Napoleon Community Schools left “for another day” the question of whether exhaustion of IDEA proceedings is necessary when seeking monetary damages that in IDE a hearing officer cannot award. Although the Supreme Court recently ruled that monetary damages for emotional distress were not available under the rehabilitation act of 1973 the court has not directly considered similar damage requests under the ADA. Its consideration of the Perez case will afford the High Court that opportunity.

 

What This Means for Schools: The court’s ruling will have a significant impact on the remedies available to litigants when the IDEA, Section 504, and the ADA converge.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

New Federal Guidance from OSEP: a COVID-19 Q&A

by | Oct 2, 2020 | COVID-19 (Coronavirus), General, Special Education

The U.S. Department of Education’s Office of Special Education Programs (OSEP) published a new COVID-19 Q&A on September 28, 2020 (OSEP QA 20-01). While OSEP explicitly cautions that the Q&A “is intended only to provide clarity to the public regarding existing requirements,” it nonetheless provides insights on how long-standing rules and laws will be applied to the novel COVID-19 virus.

In support of school districts that are guiding their decision-making based on the health and safety of students and staff, OSEP repeatedly describes health and safety as “most important” and “paramount.” If a hearing officer or court is making a decision based on the equities (i.e. fairness) the emphasis of OSEP on safety will weigh in favor of schools making reasonable adjustments to how IDEA is implemented. However, OSEP also repeatedly states that school districts “remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities.” This requires an individualized response to COVID-19 that focuses on “each child’s unique needs” and ensures “challenging objectives.”

To strike the balance of protecting health and safety while also providing FAPE, OSEP points school districts to the normal IDEA processes. The Q&A notes that no changes to the law or regulations have been made at the federal level. Interestingly, when discussing the timeline for initial evaluations OSEP advises that states “have the flexibility to establish additional exceptions” to the 60 day initial evaluation timeline. As of this writing, the Ohio Department of Education has not taken actions to allow for COVID-19 specific exceptions from the timeline.

Otherwise, OSEP’s Q&A largely points to approaches that have been addressed in prior “Special Education Spotlight” articles, Ennis Britton blog posts, and in our Coffee Chat webinar series. These approaches include conducting records review evaluations when in-person evaluations are not possible, using virtual team meeting platforms, and delivering services flexibly (e.g. teletherapy, consultation with parents.). OSEP warns against conducting remote evaluations if doing so would violate the instructions of the test publishers.

The discussion of extended school year (ESY) services is perhaps the topic most likely to generate interest in the short-term. After clearly distinguishing ESY from compensatory education or recovery services, OSEP acknowledges the authority of the states to establish standards for ESY. Note that in Ohio the standard is based on excessive regression and recoupment. OSEP proceeds to observe that, understandably, ESY services may not have been provided over the past summer due to COVID-19 restrictions. In such cases, OSEP encourages school districts to “consider” providing ESY during times such as the regular school year or scheduled breaks (e.g. winter break).

The Ennis Britton Special Education Team will continue to monitor and share with clients the latest developments as we navigate this unusual school year. Please contact a member of our team with questions or concerns.

IDEA Flexibility Amidst COVID-19

by | Apr 17, 2020 | COVID-19 (Coronavirus), Legislation, Special Education

The Coronavirus Aid, Relief, and Economic Security (CARES) Act was passed by Congress on March 27, 2020. Part of the act directs U.S. Education Secretary Betsy DeVos to submit a report to Congress. The report, that must be submitted by the end of April, is to make recommendations for any additional waivers that might be needed under IDEA, in direct response to the COVID-19 pandemic. There is reason to believe that a concerted effort on the part of school districts could result in much-needed flexibility during this unprecedented time.

The National Association of State Directors of Special Education (NASDSE) and the Council of Administrators of Special Education (CASE) jointly wrote a letter in anticipation of the report the DeVos will submit. The letter asks for flexibilities for specific IDEA provisions that have been affected by COVID-19. Those provisions include timelines, procedural activities, and fiscal management. Other groups, including parent groups pushing back hard against reasonable adjustments in light of the global pandemic, are also lobbying for what flexibility should entail.

Concerns that we are hearing from clients often center on flexibility related to evaluation timelines (especially initial evaluations), recognition that what constitutes a free, appropriate, public education during the health emergency need not match what would be provided under regular operations, and realistic expectations for compensatory education upon resumption of regular school operations. If you would like to contribute to the conversation on what the flexibilities might look like, now is the time. Get in contact with professional organizations to lobby for what you feel strongly about. Your opinion matters. 

Doe v. Ohio Department of Education

by | Mar 25, 2020 | General, Special Education, Student Education and Discipline

The long-running Doe v. Ohio Department of Education litigation was back in the news earlier this month. The settlement became final and effective nearly three decades after the lawsuit was initially filed. Ennis Britton previously notified clients of the proposed settlement in December when the Ohio Department of Education’s Chief Legal Counsel sent a notice to districts that a proposed settlement has been reached. To be clear, no individual school district was a defendant in this case. Defendants included the State of Ohio, the Governor, the State Superintendent of Public Instruction, and the Ohio Department of Education. The plaintiffs – parents of students with disabilities and the students themselves – alleged that the defendants failed to ensure that students with disabilities were adequately educated in compliance with the law. 

A hearing was held on February 11, 2020, to determine whether final approval would be given to the proposed settlement that circulated in December 2019. The settlement has been approved and took effect earlier this month. The settlement covers a five year period and will focus on eleven priority districts (Canton City, Cleveland Metropolitan, Columbus City, Cincinnati Public, Toledo Public, Dayton Public, Akron Public, Youngstown City, Lima City, Zanesville City, and East Cleveland City School Districts). During the settlement period, ODE will develop a plan to improve inclusion and outcomes and will implement and monitor the implementation of the plan in the priority districts.

Ennis Britton’s Special Education Team anticipates it is very likely that ideas and expectations from the plan for the eleven priority districts will have broader application in the long run. Thus, even districts that are not initially prioritized by the settlement are likely to feel the effects of the settlement. It will be important for all school districts to monitor the implementation of the settlement and to advocate for both reasonable expectations and appropriate additional funding to support whatever aspects of the settlement plan are given broader application to all of Ohio’s school districts.

Ennis Britton’s Special Education Team will continue to update our clients on the implementation of the Doe settlement.