Special Education Update: Latest Budget Bill Draft Includes Troubling Special Education Provisions

Special Education Update: Latest Budget Bill Draft Includes Troubling Special Education Provisions

On June 8, 2023, the Senate Finance Committee released its draft of the HB 33, the state biennium budget bill. The draft contained some unfortunate proposals that will impact special education if passed in the final version of the bill, which is expected by the end of June. This article is current as of June 15, but the budget is moving quickly to its conclusion as the final conference committee completes its work and sends the bill to the Governor. Stay tuned for additional updates and possible changes.

Scholarship Changes
In addition once again expanding the EdChoice program by more than $373 million over two years, the Senate Finance Committee’s proposed bill also expands the Autism Scholarship Program (ASP) to any child who has been “identified” with autism by the child’s resident school district, or who receives services through an Individualized Education Plan (“IEP”) that are related to autism. Perhaps most concerning, the proposed bill would require school districts to develop “education plans” for a child who is eligible for a scholarship based on a diagnosis of autism, but who does not have an IEP. As districts are well aware, many students have received a medical diagnosis of autism at some point in their childhood yet are determined not eligible for an IEP or even a Section 504 plan because they do not demonstrate a need for special education and related services or any type of accommodations and modifications. This proposal requires development of an “education plan” regardless of need. Further, it provides students with access to the ASP even though they have not demonstrated eligibility for special education.

Both the House and current Senate budget proposals include an increase to the Jon Peterson Scholarship as well. The current version of the bill includes the following:
• Increases the base amount from $6,414 to $7,190
• Increases the Category 1 amount from $1,562 to $1,751
• Increases the Category 2 amount from $3,963 to $4,442
• Increases the Category 3 amount from $9,522 to $10,673
• Increases the Category 4 amount from $12,707 to $14,243
• Increases the Category 5 amount from $17,209 to $19,290
• Increases the Category 6 amount from $25,370 to $28,438
• Increases the maximum scholarship award (capped amount) from $27,000 to $30,000

Special Education Transportation
One of the most unfortunate provisions of the Senate’s version is a requirement that school districts provide transportation as a related service to students with disabilities who live within the district but attend a nonpublic school if the school district is provided with supporting documentation in the student’s IEP, individual service plan, or academic support plan. This change may further exacerbate transportation challenges for districts already struggling to provide transportation to their enrolled students. The current version does expand a district’s ability to use vans to transport students in certain circumstances, which is helpful (if it remains in the bill; reports suggest that it may be removed).

The governor’s version of the bill contains language that would extend the formula for determining special education transportation payments into FY 2024 and FY 2025 and increases the minimum state share percentage for traditional school district payments from 33.33% to 37.5% in FY 2024, and to 41.67% in FY 2025. The bill would extend these increases to educational service centers as well. However, the Senate Finance Committee made changes to the traditional district foundation aid formula which ultimately decreases the percentage share earmarked for special education transportation by $3 million in FY 2024 and $2 million in FY 2025. Likewise, the governor proposed an increase for funding preschool special education which was offset in part by the Senate Committee’s proposed change to the foundation aid formula.

Seizure Action Plans
The House introduced language in HB 33 that would require school districts to develop seizure action plans for each student with an active seizure disorder diagnosis. The Senate Committee maintained this language in its version. The proposed law also contains a training requirement: every two years, districts would need to ensure that at least one other employee besides the school nurse is trained to implement a seizure action plan. The proposal includes language that expressly extends qualified immunity to employees who carry out the plans in good faith. If this law passes, there are possible child find implications. Seizure disorders are considered disabilities, and students may be eligible for Section 504 plans or IEPs. It is recommended that districts keep special education teams in the loop when plans are developed so that districts may consider whether to offer evaluations that fulfill child find obligations.

Auxiliary Services Funds
The governor’s budget authorizes a newly chartered nonpublic school, within ten days of receiving its charter, to elect to receive auxiliary services funds directly. The Senate Finance Committee also inserted language into the bill that prohibits a district from denying a nonpublic school’s request for personnel to provide auxiliary services who are properly licensed.

Additional changes are expected in future iterations of the budget bill before a final version is passed. In the meantime, school districts should reach out to area legislators and share any concerns they have about the proposed language. Pam Leist and Hollie Reedy will review the final budget bill in detail at the Administrator’s Academy on July 13, 2023. Click here to register for the webinar.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On the Call Podcast: Field Trips

On The Call: Field Trips

by Jeremy Neff & Erin Wessendorf-Wortman

Make sure your permission slip is signed and your seat belt is fastened as Jeremy and Erin take us on the field trip roller coaster ride in this season’s final episode. They share insights about the laws covering field trips under 504 and IDEA and complications you should consider when planning your end-of-year outings. Included in the discussion is a recent case from Long Beach, California which highlights safety considerations and when denying participation might be appropriate. They also provide practical tips and encourage you and your team to think critically about how a disability might impact the trip.

You can also listen here or wherever you get your podcasts.

Thank you for joining us for the first season! Be sure to subscribe on your favorite podcast platform so you will be notified when the second season is back. Please email podcast@ennisbritton.com with your questions and any topic ideas you would like to share. We look forward to continuing the conversation in the fall!

 

Short Series Podcast: Transgender K-12, Taking a Look Back

Ennis Britton's Short Series Podcast: Ep. 1 Taking a Look Back: Legislation, Court Cases and the States

by Giselle Spencer & Erin Wessendorf-Wortman

In this 6-episode series of The Ennis Britton Short Series Podcast: Transgender K-12, attorneys Erin Wessendorf-Wortman and Giselle Spencer take a deep dive into the ever-changing landscape of K-12 schools and transgender students. They will cover the history and impact of laws and regulations affecting transgender students and educators at both the state and federal levels, as well as provide information you can use every day during the school year.

Episode 1: Taking a Look Back: Legislation, Court Cases and the States

In this first episode, Erin and Giselle discuss the importance of understanding the history of laws and executive actions that have shaped the current landscape in K-12 Schools with regard to transgender students. They highlight specific executive actions dating back to 2014 to today and try to help you make sense of how it applies to everyday school life.

You can also listen here or wherever you get your podcasts. Look for new episodes on the first and third Thursdays of the month.

 

On the Call Podcast: Extracurricular Activities

On The Call: Extracurricular Activities

by Jeremy Neff & Erin Wessendorf-Wortman

Go Team! Whether it’s cheerleading, football, e-sports or D&D, ensuring your coaches and club advisors have the proper game plan for extracurricular activity participation can keep you out of the penalty box. Erin and Jeremy cover some of the significant guidance provided under 504 related to extracurriculars and share a recent OCR matter from Georgia which highlights all the right things to do so you won’t have to yell D-E-F-E-N-S-E!

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: Court Limits Federal COVID-19 Litigation

Special Education Update: Court Limits Federal COVID-19 Litigation

 

Simpson-Vlach v. Michigan Dep’t of Educ. (6th Cir. 5/11/23)

On May 11, 2023, the 6th Circuit Court of Appeals denied the request of a group of parents to issue an order governing special education services during future school closures like those that occurred due to COVID-19 in the spring of 2020.  The court acknowledged that the parents, all of whom had children might have claims related to past denials of FAPE for their individual children, though such claims would almost certainly be subject to IDEA’s requirement to exhaust administrative remedies.

All of the parents were from Michigan where, like throughout the country, schools were closed for several months starting in March 2020.  The parents all had children with IEPs, and argued that switching to remote learning during the initial response to COVID-19 amounted to a change of placement that violated IDEA and the Americans with Disabilities Act.  They pointed to the lack of prior written notices about the switch as well as the lack of meaningful parental participation in the switch and in the designing of services for remote learning.

Additional claims were based on state law, as well as the federal Racketeer influenced and Corrupt Organizations Act (“RICO”).  Notably, RICO is associated with prosecutions of organized crime (i.e. the mob).  The argument of the parents was that school district officials and the state department of education conspired to falsely claim they were complying with IDEA during COVID-19 in order to secure “millions of dollars” in federal funding.  Strangely, the only specific disbursement of IDEA funds cited by the parents was one made in August 2019 – well before COVID-19 caused school closures in March 2020.

This was not the first time that an IDEA lawsuit during COVID-19 made claims under RICO.  The other suit, previously covered in Ennis Britton’s School Law Review, was J.T. v. de Blasio (S.D.N.Y. 2020).  That case was effectively filed as a nationwide class action, and included districts in Ohio.  The case was swiftly dismissed and widely criticized.  The judge observed of the RICO claims “The utter implausibility of such a contention speaks for itself. No one knew that there was going to be a pandemic. It took the entire world by surprise.”

Returning to the recent 6th Circuit decision, the court observed that none of the IEPs for the students in effect at the time of the school closures specified that they were for in-person services.  The court also found it significant that the students with disabilities were on equal footing with their typical peers – all switched to remote learning and back to in-person learning on the same schedule.  While the complaint asserted RICO violations, the court focused on the basic legal standards to secure a court order regarding future closures. The court found that among other deficiencies, the parents failed to establish any meaningful likelihood of school closures in the future or of any particularized harm to the parents’ children. Without these elements, the parents’ suit could not proceed.

Regarding the RICO claims, one reason these types of claims have arisen in the unlikely area of special education law is that RICO grants treble (i.e. triple) damages. Along with attorney-fee shifting provisions in the involved federal laws this could allow for significant payments if such a lawsuit could manage to survive dismissal. As with the New York case, the Michigan case failed to advance to a point where an award of damages was considered.

What does this mean for your district?

The window for special education litigation related to the initial COVID-19 closures is largely closed.  It would take a very unique set of facts to overcome the different statutes of limitations that would apply to IDEA, Section 504, and ADA claims.  While more novel arguments, like those involving RICO, have been made, the courts have been quick to dismiss cases that seem to stretch the bounds of both the facts and the public policy purposes of the law.  Because Ohio is part of the 6th Circuit this most recent decision is further assurance that while a minority of parents may see the swift action of schools to abate the risks of COVID-19 in the spring of 2020 as a criminal enterprise, the courts do not.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On the Call Podcast: Staffing Shortages

On The Call: Staffing Shortages

by Jeremy Neff & Erin Wessendorf-Wortman

What’s your favorite carnival game? “Whack-A-Mole” or the “Ring Toss”, perhaps? Every day can feel like a never ending carnival game when trying to balance the needs of special education students during unprecedented staffing shortages exacerbated by the pandemic. Erin and Jeremy kindly remind us that an IEP is a contract and contract terms must be met regardless of extenuating circumstances. They cover a 2021 case from Kansas which highlights the importance of being transparent when navigating staffing shortages – and what can happen if you don’t! They provide practical tips such as prioritizing IEPs and engaging in open communication, which might just help you win a prize!

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