Special Education Update: Court Limits Federal COVID-19 Litigation

Special Education Update: Court Limits Federal COVID-19 Litigation

by | May 22, 2023 | General, Special Education

 

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

by | May 9, 2023 | General, Special Education

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.

 

On the Call Podcast: MDR Change of Placement

by | Apr 25, 2023 | General, Special Education

On The Call: MDR Change in Placement

by Jeremy Neff & Erin Wessendorf-Wortman

Educators and administrators are some of the kindest people around and, in an effort to make it easy for parents, will sometimes try to avoid the MDR process when student discipline becomes an issue. But side-stepping the MDR process and inadvertently making a placement change without parent involvement can be deemed a “switcheroo” and can get you in trouble, as was the case in Ozark, Alabama in a recent matter before the State’s Educational Agency. Erin and Jeremy provide some practical tips to assist you and the parents during the MDR and to keep the process “learning focused”, which would make even Marty and Wendy happy. 

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

 

Court of Appeals Holds that a Township’s Email Lists are Not Public Records

Court of Appeals Holds that a Township’s Email Lists are Not Public Records

by | Apr 17, 2023 | General, Legislation, School Management, Special Education

Hicks v. Union Twp., 2023-Ohio-874

The Twelfth District Court of Appeals (Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble, Warren) recently ruled in a public records case that a township’s email and mail lists, used by the township for the publication of newsletters and other communications, were not public records because the lists did not “document the activities or operations of the office.”

The requester asked for the “the full email list used for township newsletters” and “the full mail list used for township newsletters.” After several exchanges between the requester and the township, during which the requester was repeatedly told that the lists were not public records and would not be produced, the requester filed suit, pro se.

The requester argued, in essence, that the township uses the lists to and keep citizens informed of the activities of the office.  Thus, according to the requester, the lists document the functions and activities of the township.

The Court of Claims appointed a special master and the case was unsuccessfully referred to mediation.

The township administrator testified via affidavit that a third-party vendor facilitates the mailing of the newsletter and the mailing lists for the newsletter. The township also provides an opportunity for interested persons to subscribe and receive the newsletter electronically. On the township website, subscribers are asked to enter their names and email addresses to receive the newsletter.  The township maintains the list, but it is used only for the administrative purpose of issuing the electronic newsletter.

The requester submitted an affidavit of a former township administrator, but it largely focused on the content and development of the newsletter over time. The affidavit confirmed how the lists were maintained.  Based on the affidavit, the requester argued that the “requested information is essential to the ability of Requester to understand and form a critique of a specific function of the government, staffed and paid for with tax dollars.” The requester indicated he desired to obtain the lists to “evaluate the conduct of the newsletter program.” For example, the requester indicated he wished to learn to whom the newsletter was being sent  (residences and businesses, or only residences), if there were any citizens being omitted, if there was an overlap of individuals receiving the newsletter by mail and email, how “well-saturated” the email list was, and whether the emails included “valid or bot accounts.”

The Court of Appeals reasoned that while the lists did constitute “documents, devices or items” which are “kept” by the Township, the third prong of the analysis, (i.e., that the record document the “organization, functions, policies, decisions, procedures, operations, or other activities” of the public office) was not met. The Court looked to precedents which held that simply because an item is received and kept by a public office does not transform it into a record.  Home addresses have been analyzed in other contexts, such as requests for personnel files.  The Ohio Supreme Court has held that “at best, home addresses represent contact information used as a matter of administrative convenience,” and that they “reveal little or nothing about the employing agencies or their activities.” 

 Furthermore, the Court found that the recipients of the newsletters, (who could be anyone, not just citizens) were not part of the decision-making process surrounding the newsletter and they do not assist the township in the performance of its functions.  The Court applied essentially the same analysis to the hard copy mailing list.

What this Means for Your District

Not every record in the possession of the school district is a public record. The document must meet all three parts of the test in order to be a public record. Careful analysis is always required however. It would not be wise to categorically deny a request for a distribution list, for example, without first considering the nature of the list, what it is used for, how the persons on the list are placed there and for what purpose. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fourth Round of Direct Certification with Medicaid States Selected

Fourth Round of Direct Certification with Medicaid States Selected

by | Apr 17, 2023 | General, Legislation, School Management, Special Education

The United States Department of Agriculture (USDA) recently announced that 14 new states, including Ohio, have been selected to participate in the Direct Certification with Medicaid Demonstration Projects for the 2023-2024 school year. With the 2023-2024 addition, a total of 39 states are now eligible to participate. The demonstration of Direct Certification with Medicaid for Free and Reduced-Price Meals (DCM-F/PR) authorizes states and school districts to use information from Medicaid data to identify eligible students to receive free or reduced lunches. The program allows students to be certified for free or reduced meals without household applications. In the 2019-2020 school year more than 1.2 million students were certified for free meals, and 240,000 students were certified for reduced-price meals.

To learn more about the program visit the USDA website.

What this means for your District: School districts will want to be on the watch for information from the USDA in how the Medicaid system will “talk” to the USDA’s system for reporting students who are eligible for free or reduced-price meals.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Special Education Update: U.S. Supreme Court Issues Decision in Perez v. Sturgis Public Schools

Special Education Update: U.S. Supreme Court Issues Decision in Perez v. Sturgis Public Schools

by | Apr 17, 2023 | General, Special Education

On March 21, 2023, the U.S. Supreme Court unanimously determined that parents do not have to exhaust their IDEA administrative remedies if they seek only monetary damages under Section 504 or the ADA.

In this case (Perez v. Sturgis Public Schools “Sturgis”) the school district was alleged to have denied a qualified interpreter to a deaf student for 12 years and to have misled the parents and student into thinking the student would graduate on time, informing them only in the months prior to graduation that the student would not, in fact, be eligible for graduation. After filing and settling their due process claim with the school district, the student (who was over 18 at the time of filing) filed a federal lawsuit, alleging violations of Section 504 and the ADA, seeking compensatory damages for emotional distress and lost income resulting from the school district’s failures.

Before the U.S. Supreme Court, the student argued that he was not required to exhaust his IDEA administrative remedies because he was not seeking remedies that were available under the IDEA. The school district argued that the student was required to exhaust his IDEA administrative remedies because the student alleged a failure to provide a free and appropriate public education. The entire argument centered on the differences between remedy or relief sought. However, the U.S. Supreme Court did not find that there was any difference between remedy or relief, holding that “relief means remedy.” The Court expressly indicated that if Congress intended to distinguish the two terms, they should have done so.

As a result of this case, parents and students may avoid IDEA exhaustion remedies by filing directly with federal court demanding monetary damages.

An additional note, the Congressional Research Services, a research institute working directly for members and committees of the U.S. Congress, has provided a Legal Sidebar for members of Congress on this case indicating that Congress has a history of legislating in this area in response to Supreme Court decisions and this is an area where Congress could clarify its intent.

What Does This Mean For Your District?

In the daily operations of school districts serving students with disabilities, the Sturgis decision changes nothing about the exemplary services public schools provide every day to students with disabilities. The expectation from many observers is that the Sturgis decision could, however,  result in higher settlement demands for school districts. Please reach out to a member of Ennis Britton’s Special Education Team for more information on this case, or obtain a recording of Ennis Britton’s case law update discussing this case.

Perez v. Sturgis Public Schools, 143 S. Ct. 859 (2023)