OCR Says Websites Lack 504/ADA Accommodations

Over the past year, the U.S. Department of Education’s Office for Civil Rights (OCR) has shown an increased focus on public school district websites. Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA) require that public school district websites be accessible to individuals with disabilities. After investigating a number of complaints, OCR ultimately concluded that school website content is often inaccessible to individuals with disabilities, particularly blind and visually impaired users, deaf or hard-of-hearing users, and users with disabilities that affect motor control and their ability to use a mouse.

In February and March of 2016, OCR reviewed complaints filed against 11 different educational organizations in the United States and in one U.S. territory, raising website accessibility issues under Section 504 and the ADA. Section 504 and the ADA require public school districts to provide individuals who have qualified disabilities with equal access to programs, services, and activities unless doing so would fundamentally alter the nature of the programs. OCR has indicated on numerous occasions that accommodations must be made to district websites and other online resources in accordance with Section 504 and the ADA.

The most common problems OCR identified with websites are as follows:

  • Images with no accompanying text descriptions, or “alt tags”
  • Navigation that requires the use of a mouse
  • Videos that lack accompanying audio, transcript, or closed captioning
  • Color combinations that make text difficult to read

On June 29, 2016, OCR announced that it had reached voluntary agreements with all 11 organizations, which now have 18 months to resolve the issues under the terms of the agreements. The agreements contained mandates such as development of corrective action plans, completion of a thorough audit to ensure access and functionality, adoption of policies and procedures to ensure accessibility to all content added in the future, and posting notices to disabled individuals that contain information on how an individual can request access to online information or inaccessible content, among other things.

Interestingly, the University of Montana conducted a student survey after receiving an OCR complaint in 2012 about web accessibility from students enrolled in online coursework. The survey results indicated that many of the complaints were caused by a misunderstanding or lack of awareness about available accessibility options. So, along with other ameliorative measures, the university invested resources to educate its student body about web accessibility. The university reached a formal resolution with OCR in 2014.

Catherine E. Lhamon, OCR’s Assistant Secretary for Civil Rights, weighed in on the matter when she stated, “As schools, school districts, states, and territories turn to the Internet as a way to provide relevant and up-to-date information to their audiences in a cost-effective manner, they must make sure they are not inadvertently excluding people with disabilities from their online programs, services, and activities.”

OCR’s recent action on this important accommodations issue highlights the need for public school districts to conduct a formal review of website and social media programs to determine whether content is indeed accessible to individuals who suffer from disabilities. Along the same line, districts should regularly assess all types of technology use during school and extracurricular activities to further consider whether the chosen technologies interfere in any way with a disabled individual’s ability to access programs or participate in school activities. Board policies should be reviewed as part of this process. School districts are encouraged to consult with legal counsel to discuss the implications of this important topic and obtain resources that may further assist with compliance under Section 504 and the ADA.

Court Weighs School’s Regulation of Off-Campus Speech

A school district’s authority to discipline a student for off-campus speech is an increasingly relevant concern today for public schools. Inappropriate or offensive speech can cause lasting injury to victims and can trigger significant community backlash and unrest. The Ninth Circuit Court of Appeals recently addressed this issue in a case that arose out of Oregon.

The case was filed after a school district suspended a seventh-grade student named C.R. for harassing two other students from school. C.R. and some of his friends had been involved in an escalating series of encounters with two sixth-grade students, a girl and a boy, both disabled, first calling them vulgar names and later increasing to sexual taunting. On the day of the incident at issue, the students were traveling home from school through a public park adjacent to school property, just a few hundred feet from the campus. About five minutes after school let out, C.R. and his friends circled around the two younger students, commenting and questioning them about sexual acts and pornography. A school employee rode by the students on her bicycle, noticed the group, and stopped to help the younger girl and boy. The girl reported that the encounter made her feel unsafe, and the employee walked the two students home.

After investigating the incident, school administrators concluded that C.R. was the “ringleader” of the group and that the conduct fell within the district’s definition of sexual harassment. All of the boys were disciplined. C.R. was suspended for two days, not only because of the harassment but also because he had lied to administrators during the investigation and had disregarded their request to not discuss the interview with his friends.

C.R.’s parents filed a lawsuit a year after the incident, alleging that his First Amendment and due process rights had been violated and that the school lacked authority to discipline him. The school district moved for summary judgment, which was granted by the district court. The parents appealed the decision to the Ninth Circuit, which considered the following.

Was C.R.’s conduct sexual harassment? The school had a policy that defined sexual harassment, and the investigation had yielded evidence that C.R.’s behavior fit within that definition. The Ninth Circuit Court noted, “Federal courts owe significant deference to a school’s interpretation of its own rules and policies. … We uphold a school’s disciplinary determinations so long as the school’s interpretation of its rules and policies is reasonable, and there is evidence to support the charge.” Therefore, the court upheld the district’s conclusion that C.R.’s behavior was considered sexual harassment.

Could the school regulate his speech and discipline him? The court first considered whether the school could permissibly regulate the student’s off-campus speech at all, and then considered whether the school’s regulation of the student’s speech complied with the requirements of the First Amendment.

Regulation of students’ on-campus speech is well established as constitutional; however, regulation of off-campus speech is another matter. Following a previous Supreme Court decision (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)), regulation of student speech is permissible if the speech “might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities” or if the speech might collide “with the rights of other students to be secure and to be let alone.” Speech that is merely offensive is not sufficient; however, sexually harassing speech is more than that. Sexually harassing speech, the court held, implicates other students’ rights to be secure, threatening their sense of physical, emotional, and psychological security.

The age of the student who is being harassed is also relevant. The Supreme Court has noted that children younger than age 14 are less mature, and therefore overtly sexual speech could be more seriously damaging to them. For this reason, elementary schools may exercise greater control over student speech than secondary schools.

The court held that the school district did indeed have the authority to discipline C.R. for his harassing speech, even if it was off campus, for a number of reasons:

  • All of the individuals involved were students
  • The incident took place –
    • On the students’ walk home
    • A few hundred feet from school
    • Immediately after school let out
    • On a path that begins at the school
  • The students were together on the path because of school

Succinctly stated, the court held that “a school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community.”

Were C.R.’s due process rights violated? Again citing previous court decisions, the opinion noted that the Constitution allows informal procedures when a student suspension is 10 days or fewer. The school must provide the student notice of the charges but need not outline specific charges and their potential consequences or notify parents of the charges prior to the suspension. If the student denies the charges, the student then must have an opportunity to explain his side of the story. A school is not constitutionally required to inform the student of the specific rules or policies in question. For these reasons, the court held that the school did not violate C.R.’s procedural due process rights.

C.R. also claimed that his substantive due process rights were violated when the school recorded the reason for suspension as “harassment – sexual,” which allegedly deprived him of a good reputation. The court opined that C.R. did not have a genuine interest in maintaining a good reputation, as he had since stolen supplies from the school, and held that the school may record the reason for suspension, “however unsavory,” so long as it applied appropriate procedural safeguards. Therefore, the school also did not violate his substantive due process rights.

Ultimately, the Ninth Circuit upheld the summary judgment that the district court had previously granted.

C.R. v. Eugene School District 4J, No. 13-35856 (9th Cir. 2016)

Changes to Medicaid in Schools Plan Coming August 1, 2016

On January 27, 2016, the Director of the Department of Medicaid and ODE’s Director of the Office for Exceptional Children hosted a webinar that detailed the Medicaid billing changes coming to school districts as a result of changes to the Affordable Care Act (ACA) made in 2012, but only recently being applied to Ohio’s Medicaid Schools Plan (MSP).

Previously, in an October 2015 letter, the Centers for Medicare and Medicaid Services (CMS) found that Ohio’s MSP is out of compliance with its own state plan and the federal regulations because claims lack an appropriate prescription or referral from a medical practitioner. CMS is the federal entity that provides states with federal funds for Medicaid services, including the MSP. CMS concluded that claims filed under the MSP that do not contain this requirement after August 1, 2016 (the deadline set in the letter for full compliance) will not be reimbursable by Medicaid.

The Ohio Department of Medicaid was working with CMS to obtain an exemption or waiver of the requirements of the ACA as it relates to the MSP, but was unable to do so. The result of this unsuccessful negotiation has significant implications for all schools that provide services to students with disabilities pursuant to an IEP and eligible for Medicaid claim reimbursement.

If the State of Ohio is not in compliance with the ACA requirements, CMS will begin deferring IEP claims and Ohio could lose federal financial participation for Medicare through CMS. In fact, the federal regulations that require a prescription for services are not new requirements. Federal regulations state that Ohio’s State Medicaid Plan must require, among other things, all providers to be enrolled as participating providers, and that all claims for payment for services contain the national provider identifier (NPI) of the physician or professional referring or ordering the services. The change in the federal regulations occurred in 2012; however, Ohio’s noncompliant practice and procedure did not come to the attention of CMS until October.

The specific services for which a prescription, referral or order will be required from a medical provider are audiology, speech/language pathology, physical therapy, and occupational therapy. The provider may order multiple services if those services are in the IEP: for example, speech pathology and audiology or a combination of any of the services that requires a prescription. ODE reiterated during the webcast that services in the IEP must be delivered and cannot be denied, changed or modified based on the ability/inability to submit claims for reimbursement to Medicaid for services through the MSP.

A “provider” was defined in the January 27th webcast conducted by the Department of Medicaid Services and ODE as; a physician (MD or DO) an advanced practice nurse (APN), or a physician assistant (PA). School nurses who are RNs or LPNs are ineligible to order, refer or prescribe for these services. School therapists with a national provider number may not prescribe, order or refer the services either. School therapists will, however, continue to evaluate and provide services to students with disabilities, and document services for Medicaid school reimbursement.

ODE Issues Guidance for Serving Students in Corrections Facilities and Juvenile Detention Centers

On February 3, 2016, the Office for Exceptional Children issued guidance to school districts whose students with disabilities are, or may be, confined to community corrections facilities or juvenile detention centers.

Generally, the law provides that the school district of residence (the district in which the student’s parent(s) reside) maintains the ultimate responsibility to provide a free appropriate public education (“FAPE”) to the student and remains responsible for the student’s access to appropriate special education and related services while the student is confined. Absent a specific exception, the school district of service (defined as the school district in which the facility is located) provides the special education and related services and charges the cost of those services to the district of residence. Keep in mind, however, that it remains the ultimate responsibility of the district of residence to ensure that students with disabilities are receiving the services to which they are entitled pursuant to their individualized education programs (“IEPs”).

The guidance further emphasizes that school districts must identify, locate and evaluate students in community corrections facilities and juvenile detention centers who may have a disability and may need special education and related services under the Individuals with Disabilities Education Act (“IDEA”). In short, if there is a suspicion that a student has a disability and is in need of special education and related services, the district of residence must evaluate that student in a timely manner.

School districts should review their special education policies and procedures to ensure that they provide FAPE in a timely and appropriate manner to all students with disabilities, including students in these facilities, and in accordance with the Ohio Operating Standards for the Education of Children with Disabilities.

For additional information and access to ODE’s guidance, please visit:

HB 64 Budget Bill Items Now in Effect

As with most other provisions of the budget bill (Am. Sub. HB 64) some significant provisions impacting Ohio school districts go into effect on September 29, 2015, including the following:

  • The maximum amount of a scholarship awarded under the Autism or Jon Peterson scholarship programs increases to $27,000 (up from $20,000).
  • School districts must offer real property it intends to sell first to a “high performing community school,” then to other community and college preparatory boarding schools located in the district.
  • ODE, in conjunction with an Ohio educational service center association and an Ohio gifted children’s association, must complete and submit a feasibility study for establishment of sixteen regional community schools for gifted children.
  • The State Board must develop rules waiving any additional coursework requirements for renewal of an educator license for teachers who are consistently high performing.
  • The duration of a pupil activity permit for individuals holding a valid educator license is changed from three (3) years to the same number of years as the educator license.
  • The State Board of Education will develop a standards based framework for the evaluation of school counselors. Furthermore, all school districts must adopt a counselor evaluation policy by September 30, 2016, that conforms to the framework and will be implemented beginning in the 2016-2017 school year (will include annual evaluations with ratings of accomplished, skilled, developing, and ineffective just like OTES).
  • The alternative teacher evaluation framework is revised to decrease SGM to 35%, maintain the performance rating at 50%, and authorize school districts to determine the appropriate measure or combination of measures for the remaining 15%.
  • Exemplary community schools may now operate a preschool program for general education students.
  • School districts may enroll under interdistrict open enrollment policies an adjacent or other district student who is a preschool child with a disability. ODE will deduct $4,000 from the resident district and pay that same amount to the enrolling district.
  • School districts cannot appropriate monies to purchase an assessment developed by PARCC for use as the state elementary or secondary achievement assessments. Additionally testing for the 2015-2016 school year is reduced.
  • Safe harbor provisions in effect during the 2014-2015 school year for state report cards are extended by two years.
  • School districts may now enter into a contract with a health care provider for the provision of health care services for students.
  • The new requirements for issuance of diplomas to home school students and students from non-chartered nonpublic schools are now in effect.
    STEM schools can now enroll out-of-state students.
  • Schools may install security doors or barricades as part of an emergency management plan.
  • The filing date for financial disclosure statements with the Ohio Ethics Commission is May 15 (instead of April 15).

USDHHS Withdraws Guidance on Free Care Policy

USDHHS Center for Medicare & Medicaid Services recently withdrew its prior guidance on the “free care” policy as expressed in the School-Based Administrative Claiming Guide.  Under CMS’s new guidance, Medicaid reimbursement is available for covered services under the approved state plan regardless of whether there is any charge for the services to the beneficiary or the community at large.  Also under CMS’s new guidance, schools are not considered to be legally liable third parties to the extent schools act to ensure that students receive needed medical services to access a free appropriate public education consistent with federal law.  The guidance also states that even if a state determines that schools are legally liable third parties, the Medicare statute contains an exception which requires that Medicaid serve as the primary payer to schools and providers of services in an IEP under IDEA; noting that nothing in IDEA permits states to reduce medical or other assistance available.