by Erin Wessendorf-Wortman | Mar 12, 2020 | COVID-19 (Coronavirus), Special Education, Student Education and Discipline
It should come to no one’s surprise that the state and federal laws do not allow for exceptions to the required timelines for ETRs, IEPs, etc. As discussed in other posts, in December 2009, in response to the H1N1 pandemic, the U.S. Department of Education issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, and other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus)” which plainly stated that the U.S. Department of Education would not waive the requirements for school districts to evaluate and assess during school closures. While the U.S. Department of Education issued a “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak,” the Department did not issue any comments regarding IEP and 504 timelines at this time.
The Ohio Department of Education has issued its own Considerations for Students with Disabilities During Ohio’s Ordered School-Building Closure originally on March 17th, and updated on March 27th.
Proper planning on your school district’s and case manager’s part will be essential in determining how your school district needs to act as schools are currently (as of March 30, 2020) closed until May 1st during which you would may be required to have an ETR or IEP meeting.
My school district is in the middle of conducting an ETR on a student. Do we continue with this evaluation?
Based on the Guidance and Considerations, you continue with the evaluation of the student. Your district may want to consider how much of the evaluation and assessments can be held remotely. If you can hold the ETR evaluations remotely, then you can hold the ETR meeting during the time of the closure via telephonic or video conference means. If pieces of the evaluation cannot be conducted because school is closed, the evaluation would need to be delayed and a prior written notice for the same should be sent. If you have not yet conducted the evaluation and assessments, another option to consider is waiving the reevaluation and delaying it until return to the in-person education with parental consent or to conduct a records review. The guidance from the Ohio Department of Education indicates that all services should still be provided if parents consent to waive reevaluation.
Are we required to hold in-person meetings for ETRs and IEPs during a school closure?
If school closes, IEP teams are not required to meet in person. However, according to the Guidance, schools must continue working with parents and students with disabilities, to develop required documents – ETRs, IEPs, 504s, etc. If a plan or evaluation for a student expires during the time of school closure due to COVID-19, IEP/504 teams should offer to meet via telephone conference or videoconference with the parents. School personnel should attempt to determine the specific services that can be provided during the ordered school-building closure period. If the parent does not agree with meeting via telephone or video conference, then the meeting should be delayed until school reopens according to the Guidance.
What about evaluations and plans developed under Section 504?
The same principles apply as discussed above for ETRs and IEPs to those activities conducted by schools for a student with a disability under Section 504 according to the Guidance. You will want to review your school district’s 504 polices to determine 504 plan review and reevaluation timelines, as there is no requirement in federal law for how often must occur.
How do we help our staff in planning for this potential?
School district personnel should look at their evaluation and IEP timelines to determine which items may expire during the next few weeks/months of the 2019/2020 school year. It would be prudent to plan how items may be advanced or to begin discussions now with parents on what the plan will be in the event of a school closure.
by Jeremy Neff | Mar 12, 2020 | COVID-19 (Coronavirus), General, Special Education, Student Education and Discipline
UPDATE (3/12/20 at 6:20 PM): At 6 PM on March 12 the US Department of Education released new guidance on special education and COVID-19 that is available here.
In the past 48 hours it seems as if the already rapidly developing story of COVID-19, or novel coronavirus, has accelerated even more. With major spectator events being postponed, universities and colleges moving to online instruction, escalating infection rates around the globe, and the declaration of a pandemic by the WHO it seems inevitable that at least some Ohio public school districts will experience extended closures. These closures will raise important questions both in terms of employment and education. Given the unique and unprecedented challenges involved, we encourage you to work with legal counsel in real time to ensure effective and compliant responses.
What flexibility can we expect in meeting federal
requirements for education?
We can look to official guidance issued during the 2009 H1N1 pandemic to get a sense of what we might expect with COVID-19. On December 1, 2009, the US Department of Education (ED) issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, on other Grantee and Program Participants in Responding to Pandemic Influenza H1N1 Virus” (“SEA” refers to State Education Agencies like ODE, and “LEA” refers to Local Education Agencies like individual school districts). The guidance document discussed in generalities the willingness of the US Department of Education to offer flexibility regarding the requirements of the Elementary and Secondary Education Act (now referred to as ESSA). It is reasonable to assume that flexibility will likewise be offered as COVID-19 has begun to force school closures. We will continue to update clients as specific guidance is issued.
Specifically regarding students on IEPs and 504 plans,
what services must we provide during a closure?
We are receiving many calls related to the delivery of
instruction during possible closures, and specifically regarding the delivery
of instruction to students with IEPs and 504 Plans. Here is what ED said on
this topic in 2009 regarding H1N1:
Must an LEA continue to provide FAPE to students with
disabilities during a school closure caused by an H1N1
outbreak?
The IDEA, Section 504, and the ADA do not specifically
address a situation in which elementary and secondary schools would be closed
for an extended period of time because of exceptional circumstances; however,
LEAs must be sure not to discriminate on the basis of disability when providing
educational services.
If an LEA closes its schools because of an outbreak of H1N1 that disrupts the functioning or delivery of educational
services, and does not provide any educational services to the general student
population, then an LEA would not be required to provide services to students
with disabilities during that same period of time. Once school resumes,
however, a subsequent individualized determination is required to decide
whether a student with a disability requires compensatory education to make up
for any skills that may have been lost because of the school closure or because
the student did not receive an educational benefit.
If an LEA continues to provide educational opportunities
to the general student population, then it must ensure that students with
disabilities also have equal access to the same opportunities and to the
provision of FAPE, where appropriate. SEAs and LEAs must ensure that, to the
greatest extent possible, each student with a disability receives the special
education and related services identified in the student’s individualized
education program (IEP) developed under IDEA, or a plan developed under Section
504.
There is no guarantee that ED would issue the same guidance
today for COVID-19, but given the parallels between the concerns in 2009 and
those today, this 2009 guidance is a reasonable starting point for planning a
compliant response to a potential school closure for COVID-19.
What are the special education implications of providing
online instruction during a closure?
It is notable that the approach that creates the most risk
for a school district, per the 2009 ED guidance, is to offer online instruction
during a closure. The reason this can become a problem is that students with
disabilities will need to be offered accessible instruction that meets their
unique needs. It is difficult to imagine how a district might provide “regular
prompting,” a common accommodation, to a child who is sitting alone at a
computer. And what of the child who does not have a computer or internet
access? Per the 2009 ED guidance it would be more legally compliant to not
offer any instruction at all than to offer online instruction without an
adequate plan for students with special needs.
This does not mean that online instruction should be ruled out. It just means that if online instruction is used there will need to be a plan for how this will serve students with disabilities. You should also consider the possibility of not immediately implementing online instruction. Given the mild winter and the fact that most schools significantly exceed minimum hours of instruction on their regular calendars, it is likely that a few days of closure (without online instruction) will not violate state minimum hours law. Even if a closure is longer lasting, pausing before implementing online instruction could provide important breathing room for student services to plan for serving students with disabilities.
Will we be required to provide compensatory education to
students on IEPs and 504 plans following a closure?
The 2009 ED guidance points to the fact that a discussion of
whether compensatory education may be required should follow any period of
closure regardless of what services are provided. Unless a child is already
assigned to home instruction at the time of the closure, any set of services
during a closure will in some ways not be in compliance with the child’s IEP.
While proactive amendments to account for anticipated closures could minimize
the risks, it would be ambitious for most districts to secure consent for
amendments for all IEPs. A more realistic approach could involve identifying
students who are most at risk of significant regression during a closure, and
working with parents to develop a plan to minimize that regression. Not only is
this educationally sound, it would be an important part of any legal defense
related to IDEA or Section 504 complaints. Once school resumes after a closure
you can revisit whether other compensatory services are appropriate.
Please continue to follow the Ennis Britton blog for updates
on COVID-19, and do not hesitate to call any of our attorneys with questions or
concerns.
by Hollie Reedy | Dec 20, 2019 | Special Education
If it seems like there are more food allergies today, there are. Today, about 8% of all children have food allergies, an increase of 50% in ten years. This translates into 1 in 13 children, or about 2 per classroom. Individualized plans for the safety of each student with an allergy should be made to avoid exposure and reactions.
Students with food allergies may be eligible for special education supports and protections. For instance, a student could be IDEA- eligible as “other health impaired” if the allergies adversely affect learning or the student needs special education/related services due to the allergies. More commonly, students with food allergies may be eligible for a 504 plan if they have a physical impairment that substantially limits one or more major life activities. In the case of allergies, this could include breathing, immune system function, respiratory function, or learning. Districts may not discriminate against a student with a disability or deny them participation in school programs or activities. Schools IEP and 504 teams should discuss how allergies will be handled for students according to their particular allergy and its severity.
Individualized plans for the safety of each student should be developed to avoid exposure and reactions. The chosen accommodations must be implemented during all aspects of the school district’s activities and operations.
To determine if a student is eligible under 504 for a food allergy, district must screen out the use of medications or other measures to control the allergy. It is important to note that schools do not have to provide a risk-free environment, only a reasonably safe environment.
It is probably not surprising to you that the issue of accommodation of children with food allergies in schools has been the subject of special education hearings and litigation. Districts sometimes have to contend with diverse perspectives and demands, which they must reconcile on a daily basis. Here is a short summary of some 504 cases that may sound familiar to you.
In one case, a high school denied a student participation in a culinary arts program due to concerns about the student’s severe allergies to peanuts, dairy, egg, kiwi and crab. The student did not have a 504 plan at the time, but did have an emergency health plan to address exposure and response to a reaction. The student’s allergist had filed a letter stating the student could participate as long as he did not eat any of the foods prepared with ingredients to which he was allergic, and that he wore gloves when handling peanuts. The District attempted to contact the allergist one time, and did not contact him after that prior to making the decision to exclude the student. The student filed a complaint with the Office for Civil Rights, alleging disability discrimination. OCR found that the district had treated the student as a student with a disability even though it had not qualified him as one by excluding him from the program. They went on to find that the district had violated Section 504 procedurally, as it did not make a decision about the student’s exclusion with persons knowledgeable about the issues. (Bethlehem (NY) Central Sch. Dist. Office for Civil Rights, Eastern Division, NY, 52 IDELR 169, 109 LRP 30964)
Another case dealt with a student on an IEP whose allergy to peanuts and tree nuts was a life-threatening, airborne allergy. Initially, the District agreed that the student should be educated at a smaller private school that put into place significant protocols and regulations to ensure the student’s safety. The District proposed in a new IEP to change his placement to a public school on the basis that the student could be safely accommodated. This student also had autism with communication deficits, such that he would be unable to communicate his physical distress if he were having an allergic reaction. The parents rejected the proposed IEP and filed for due process. In a detailed decision concerning the peanut-free accommodations provided by the private school and the proposed peanut-restricted accommodations of the public school, the hearing officer found that the proposed IEP met the requirements of the law, which require only a reasonably safe environment, and plans in the IEP to ensure the student’s safety were adequate to prevent exposure and deal with a reaction if it did occur. (In Re: Student with a Disability Kentucky State Educational Agency 1213-16, 114 LRP 19510)
Finally, there was the Michigan case of a mother who refused to comply with the peanut free school building to accommodate another child who had a life-threatening, airborne peanut allergy. She wrote to the school, stating “I will not be cooperating not participating in the School’s 504 plan to another student. My child and I are not subject to, nor bound by, the provisions of the Rehabilitation Act….to meet my child’s needs, I will provide my child with the proper nutrition in her school lunch that I, in my sole discretion, deem appropriate.”
She filed a lawsuit seeking to enjoin the district from implementing the school-wide ban on nut products and requested money damages. She also alleged that her rights to equal protection and due process under the state and federal constitution were violated, and her child experienced unlawful search and seizure because her lunches were checked and when peanut items were found, replaced with appropriate alternatives.
The court of appeals rejected all her claims, finding that she lacked standing to challenge the 504 plan, that the school district’s peanut-free school policy was rationally related to a legitimate government interest, defeating the equal protection and due process claims. As to the unlawful search and seizure, the court stated that the school only looked for and removed banned items based on the parent’s notice to the school that they would not comply with the reasonable restrictions. (61 IDELR 231)
Practical takeaways
The most common food allergies are peanut and tree nuts, shellfish, milk, eggs, fish, wheat and soy. Some allergies are very severe, such as students who could have a life-threatening reaction to airborne particles of peanuts.
There are good resources for school professionals on ensuring a reasonably safe environment for students who have these allergies, and developing plans and emergency plans to accommodate the allergy to prevent a reaction, and to deal with a reaction if it occurs. The Centers for Disease Control has some great resources all gathered on one page, at https://www.cdc.gov/healthyschools/foodallergies/index.htm, including Food Allergy Guidelines FAQ and Voluntary Guidelines for Managing Allergies. Both of these resources and many others, including information for school nurses and more, may be found on the CDC page.
Food allergy management is increasingly a common issue. Staff training on preventing exposure, recognizing signs of a reaction, responding with medication or the use of an Epi-pen, including environmental management in terms of cleaning surfaces and other items used in instruction, transportation staff and substitute teacher/aide training are all aspects of food allergy management that require ongoing attention. School staff, including IEP and 504 teams, should discuss food allergies and take appropriate steps to ensure students with allergies are properly accommodated.
Parent, staff and community education is likewise an ongoing effort in the management of food allergies in schools, involving education on watching ingredients in school snacks, lunches and the cafeteria, providing ingredient lists, and more. If you have an IDEA or 504 plan issue involving a food allergy, the EB special education team can assist in ensuring your team’s compliance with procedural and substantive requirements.
“Food Allergen Icons” by Milos Radojevic is licensed under CC BY-NC-ND 4.0
by Jeremy Neff | Dec 17, 2018 | Board Policy & Representation, Special Education
School districts frequently ask how to balance the rights of a person who brings a service animal onto school grounds against the rights of others. For example, if one child in a classroom is allergic to pet dander, but another child demands to bring her service dog to school, whose rights prevail? These concerns are not limited only to the rights of students but also can easily arise with an employee’s request for accommodations under the Americans with Disabilities Act. In other scenarios, members of the public, including parents or spectators at a sporting event, could also be covered.
A court decision this month out of New York gives one example of conflicting rights of different members of the school community. The parents of a student with asthma and severe allergies filed a wide-ranging lawsuit in the U.S. District Court for the Southern District of New York, arguing that a school district violated their child’s rights by not having a policy prohibiting service animals and by allowing a service animal on the school grounds several times in violation of their child’s 504 plan.
In this case, the parent of a different student required the use of a service animal and brought the animal to multiple school events in which the student with the allergy participated. The student with the allergy had a 504 plan that required the school to, among other things, ensure no animals come within 30 feet of the student, keep the student out of contact with service animals, implement a cleaning protocol after animals are within the school building, and communicate in advance with her parents when a service animal was anticipated to be within the school building.
Additionally, the parents had requested other accommodations that are not discussed in the court decision and had also requested a blanket policy banning service animals from school. The school district rejected the latter request, explaining that it had an obligation under federal disability law to allow service animals within the building.
The court dismissed most of the claims but will allow the disability discrimination claim to proceed. This relates to alleged violations of the 504 plan. The court recognized that the school is required under federal law to allow service animals but noted that this does not excuse a school district from fulfilling its obligations under a 504 plan to protect a student against allergies. This case shows how distinct legal rights can come into direct conflict.
While the public court filings do not provide sufficient detail to determine what, if anything, the school might reasonably have done differently (or even if it did, in fact, violate the student’s rights), one lesson is that in allowing a student, staff member, or school visitor to exercise her right to use a service animal, a school district must consider whether accommodations are necessary to ensure that the rights of students with allergies are protected. This is a difficult balance that will depend very much on the individual facts of each case.
– Doe v. United States, 118 LRP 49416 (S.D.N.Y. 2018).
by Pamela Leist | Nov 6, 2018 | Special Education
In October, a flight from Charlotte to Cleveland was delayed when a woman carrying what she characterized as an emotional support animal refused to deplane from the aircraft. Although the airline permits air travel for emotional support animals, the passenger failed to tell employees that her support animal was a squirrel. The airline does not allow rodents of any kind – including squirrels – aboard their aircraft, so the passenger was asked to deplane prior to takeoff. When the woman refused to deplane, all other passengers were forced to do so until the woman and the squirrel could be removed.
Would an Ohio public school district be required to permit the squirrel to accompany an individual onto school property? The answer to this question is no, because the animal does not meet the definition of a service animal under state or federal law.
Although public school districts are not regulated by the same rules as airlines, they are generally required to permit service animals to accompany individuals with disabilities on school premises and at school-related functions. Emotional support animals may be treated differently, as discussed below. It is important for school district staff to know how state and federal law define the term service animal and also to understand when an animal may and may not accompany an individual.
What is a service animal under the law?
Under federal law, a service animal is defined as a dog that is trained to do work or perform tasks for the benefit of an individual with a disability. Although the definition restricts the meaning of “service animal” to only a dog, federal law also permits a miniature horse to accompany an individual with disabilities under limited circumstances.
To determine whether a miniature horse must be permitted to accompany an individual with a disability, a public entity may consider four factors:
- The type, size, and weight of the horse and whether the facility can accommodate based on these factors
- Whether the handler has sufficient control of the horse
- Whether the horse is housebroken
- Whether the presence of the horse compromises legitimate safety requirements that are necessary for safe operations
It is important to note that an emotional support animal is not defined as a service animal under federal law. Emotional support animals provide comfort by being with a person rather than being trained to perform a specific task for an individual with a disability. A public entity may therefore not be required to treat an emotional support animal in the same fashion.
Also understand that other species of animals, whether wild or domestic, trained or untrained, are not defined as service animals either.
State laws may also apply to service animals. Ohio further classifies dogs into four groups (R.C. 955.011):
- Assistance dog – a guide dog, hearing dog, or service dog that has been trained by a nonprofit special agency
- Guide dog – a dog that has been trained or is in training to assist a blind person
- Hearing dog – a dog that has been trained or is in training to assist a deaf or hearing-impaired person
- Service dog – a dog that has been trained or is in training to assist a mobility-impaired person
When may a school district exclude a service animal?
A school district may exclude a service animal in a few circumstances. For instance, if the presence of the animal would require the district to modify policies, practices, or procedures in a way that would “fundamentally alter” the district’s services, programs, or activities, it may be excluded. This is a very high threshold to meet. A district may also be able to exclude animals that present legitimate safety concerns, are not housebroken, or do not remain under effective control of the handler.
What about individuals who might be allergic to the service animal?
A school district is expected to carefully consider the risks to all parties involved, including those with a service animal and those who are allergic to one. A district should thoroughly explore ways to reasonably accommodate the needs of all individuals involved before it considers excluding a service animal because of an allergy.
Can a district restrict the animal’s access to certain areas?
Generally, a service animal must be permitted to accompany an individual in all areas where the public is permitted to go. This includes access to facilities and to all school-sponsored activities and events, even if they occur after hours, unless a legitimate reason for a restriction or exclusion applies (see above).
A school district’s obligation to permit service animals applies not only to students but also to parents and visitors. Generally, public entities must allow individuals with disabilities to be accompanied by service animals in all areas that are open to the public. You should contact your district’s legal counsel if you have questions about service animals in your school facilities and programs.
by Erin Wessendorf-Wortman | Feb 21, 2018 | Special Education
As many in education are aware, on March 22, 2017, the U.S. Supreme Court published an opinion in a significant special education case: Endrew F. v. Douglas County School District RE–1, 580 U.S. ___ (2017). This decision clarified the standard for a free appropriate public education (FAPE) for students with disabilities:
To meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
This decision confirmed that the standard of “merely more than the minimum” was too low. Essentially, the Court established two standards:
| Supreme Court Decision |
Student Circumstances |
FAPE Standard |
| Rowley |
Student who is fully integrated in the regular classroom and able to achieve on grade level |
IEP must be reasonably calculated to enable the student to receive passing marks and advance from grade to grade |
| Endrew F. |
Student who is not fully integrated and not able to achieve on grade level |
IEP must be appropriately ambitious / reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances |
However, when the U.S. Supreme Court issued its decision on March 22, the case was not finished. The case was remanded back down to the lower courts to apply the new standard and determine whether Endrew’s parents were entitled to tuition reimbursement for the unilateral placement of their son in a private school.
On February 12, 2018, in relying on the new standard from the Supreme Court, Judge Babcock of the United States District Court for the District of Colorado held that Endrew’s parents were entitled to tuition reimbursement for the unilateral placement of their son in a private school. The judge decided that the IEP did not satisfy the Court’s revised FAPE standard. Minor changes in Endrew’s IEP were noted throughout the years – including updating and making minor or slight increases in the objectives, carrying over the same goals from year to year, or abandoning goals if they could not be met – but these minor changes were unacceptable as they provided the basic floor of opportunity, not progress appropriate in light of Endrew’s circumstances. (Note: Prior to the Supreme Court’s Endrew F. decision, these same IEP changes were found to meet the FAPE standard in Colorado by the same judge.)
Additionally, the judge determined that the school district could not hide behind the fact that the student’s severe behavioral problems prevented him from making appropriate progress because the school district failed to conduct a functional behavior assessment; to implement appropriate positive behavioral interventions, supports, or strategies; or to develop an appropriate behavior intervention plan. This failure on the school district’s part to appropriately address Endrew’s behaviors “cuts against the reasonableness of [his] IEP.” The court held that Endrew could have made greater progress had the school district implemented appropriate behavioral supports.
Although following Endrew F. back through the court system allows us to see how courts around the country will apply this new legal standard, the legal standard applied by the Sixth Circuit Court of Appeals (controlling in Ohio) of “meaningful benefit” has not changed and is similar to “progress appropriate in light of the child’s circumstances.” Ohio school districts should likely not see a significant change in their IEPs and services.
Ohio school districts should, however, take away additional learning opportunities from this recent Endrew F. decision:
- Review IEPs to ensure that each is reasonably calculated to enable the student to make appropriate progress in light of the student’s circumstances.
- IEPs should change from year to year as the student changes, learns and grows.
- IEPs should be specifically tailored to the student’s needs and geared for progress.
- Goals should be measurable annually, reflecting appropriate achievements for the student given his/her unique situation.
- IEP teams should be reminded that that behavior management can play an incredibly important role in providing FAPE to students.
- When a student’s behaviors are so severe that they impede progress toward IEP goals, the behaviors should be addressed through timely functional behavior assessments, behavior intervention plans, and, when appropriate, behavior goals.
Endrew F. v. Douglas Cty. Sch. Dist. RE-1, No. 12-cv-2620, 2018 WL 828019 (D. Colo. Feb. 12, 2018).
