by Giselle Spencer | 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.
by Jeremy Neff | 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.
by Jeremy Neff | 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.
by Jeremy Neff | 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.
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.
