OSEP Advises State Directors Regarding Serving Highly Mobile Students

OSEP Advises State Directors Regarding Serving Highly Mobile Students

Last month the Office of Special Education Programs and the Office of Special Education and Rehabilitative Services issued a letter to state directors of special education regarding the critical nature of ensuring prompt services for highly mobile students with disabilities.  The letter emphasizes the importance of providing prompt evaluations and services to highly mobile children with disabilities as required under the IDEA. It concludes by listing over 40 resources available to districts to ensure quality educational services for highly mobile children with disabilities.

This advisory communication reminds districts that military connected children, migratory children, children who are homeless, and children in the foster care system often experience difficulty becoming oriented into new and varying school expectations and may have difficulty communicating their needs and concerns within these contexts. As such, schools are reminded that the IDEA requires that evaluations be conducted in a timely manner and without undue delay. In those situations where a child transfers to a new school district after their previous district has begun but not completed an evaluation, the expectation is that both districts will cooperate to ensure completion of the evaluation as expeditiously as possible. This includes the timely exchange of relevant records between the school districts as an initial important step in ascertaining student needs.

The guidance further points out that while the use of a multi-tiered system of support (MTSS) is a useful tool in identifying student needs, it should not be used habitually as a delay in an initial evaluation for highly mobile children. Because this population is more susceptible to experience recurring educational disruptions, implementing special education and related services can be even more critical to student achievement and success.  OSEP and OSERS jointly advise that postponing an evaluation to implement the MTSS process can be a denial of FAPE, resulting in significant compensatory service obligations. If a child transfers to a new school district during the same school year before the previous school district has completed the child’s evaluation, the new school district may not delay the evaluation or extend the evaluation time frame in order to implement their MTSS process. And although the new school district may choose to provide interventions as part of their MTSS framework, in those situations where an evaluation had been commenced elsewhere, extended use of the interventions could be determined to be a violation under the IDEA.

Finally, the letter recognizes the importance of providing ESY services to highly mobile children if the IEP team determined that such services were necessary for the provision of FAPE. This can be especially challenging when students transfer at the end of the academic year, however it does not appear that short notice to the receiving school of the right to these services will excuse the obligation to provide ESY.

What this means for schools: This is a great reminder of the importance of promptly obtaining educational records of transfer students. This is not only essential to ensure that an evaluation, once commenced, is promptly completed, but to provide continuity of services when the transitioning between districts occurs.



























































Feds Stress Compliance with Special Education Requirements for Preschool-aged Children

Feds Stress Compliance with Special Education Requirements for Preschool-aged Children

Perhaps revealing enforcement priorities, the U.S. Department of Education’s Office of Special Education Programs (OSEP) and the U.S. Department of Health and Human Services’ Office of Head Start (OHS) recently issued a joint letter reminding state educational agencies (SEAs), local educational agencies (LEAs), and Head Start programs of their requirements to serve preschool-aged children under the Individuals with Disabilities Act (IDEA).

The letter asserts that “young children and their families have been disproportionately affected by service disruptions.” While acknowledging that the pandemic continues to present challenges to implementing appropriate programs and services to young children, “children with disabilities retain their rights under IDEA to receive appropriate special education and related services in accordance with their individualized education programs (IEP).” The letter stressed, “No IDEA requirements have been waived.”

The letter concludes that data shows:
• initial evaluations have been delayed and not provided in a timely fashion;
• special education and related services included in IEPs are not being provided timely or IEPs are not being fully implemented; and
• placement decisions are not being made in accordance with IDEA’s least restrictive environment requirements.

The letter goes on to urge collaboration between SEAs, LEAs, and Head Start programs and provides links to resources to help meet the requirements of IDEA.

As a result of the correspondence, one can conclude that challenges resulting from pandemic disruptions will not serve as a “get out of jail free” card. Both the US Department of Education and the Department of Health and Human Services have put LRAs and Head Start programs on notice of their expectations.

Feel free to reach out to any of your partners at Ennis Britton to discuss special education compliance issues for preschool-aged children.

A copy of the letter can be found here


















































Revised IDEA Regulations Finally Coming?

Revised IDEA Regulations Finally Coming?

On Friday, October 14, the Ohio Department of Education filed proposed revisions to the IDEA operating standards (Ohio Administrative Code 3301-51). On Tuesday, November 15, the State Board of Education will hold a hearing on these proposed revisions. This is all part of the lengthy regulatory process that has now been underway for several years. It is possible that the new regulations will be in place sometime in the coming months, though the current process has experienced unexpected delays several times before.

The area of revision that has been of most interest to school districts has been the possibility of aligning Ohio’s IDEA regulations with the federal regulations as relates to changes in placement (OAC 3301-51-05(C)(5)). At the federal level IDEA does not require parental consent before a child’s placement is changed. This allows for a dynamic and responsive approach to designing a child’s special education.

Unfortunately, the current Ohio regulations impose a parental consent requirement for changes of placement. This means that parents can unilaterally overrule the IEP team consensus that a change of placement is necessary to provide FAPE. In such situations, schools are forced to file due process to change placement or to continue to serve the child in the inappropriate placement. Either approach can delay the appropriate provision of services.

Anecdotally, school district leaders uniformly supported a change to the parental consent requirement for changes of placement when this revision was included in the version of the proposed regulations presented to the State Board of Education in July 2020. Unfortunately, despite this support, ODE revised the proposed regulations to reinsert the parental consent requirement in the version now being considered.

Despite the major departure from federal regulations with the parental consent language, other changes in the proposed regulations are mostly to align state regulations to the federal regulations. Some of the more substantial changes include:

OAC 3301-51-01(B)(13) Transition Services: Clarifies expectations for transition service planning and coordination.

OAC 3301-51-01(B)(63) Supervisor/Coordinator Services: Clarifies professional qualifications for the IEP team member who supervises special education service providers.

OAC 3301-51-03(C) Disproportionality: Significant new language regarding disproportionality as it relates to the identification, placement, and discipline of students with disabilities.

OAC 3301-51-05(E) Surrogate Parents: Significant additional language about surrogate parent duties. Additional clarification that no surrogate may be appointed when biological/adoptive parents retain educational rights and can be contacted.

OAC 3301-51-07(E)(2) Transition Services: Codifies the current practice of requiring transition progress reports for Section 5 of the IEP.
OAC 3301-51-07(H)(7) Transmittal of Records: Sets a 30 day time period for transmittal of records when a child enrolls in a new school district.

Significant changes to preschool regulations are made throughout OAC 3301 Chapter 51 and are beyond the scope of this newsletter article and relate to separate changes already finalized for OAC 3301-51-11.

Over the past several years there have been many opportunities for school leaders to give input in the regulatory process. We are approaching the end of this opportunity and can anticipate that new regulations will be adopted within the next few months and will be in place for several years. School leaders are encouraged to give feedback to the State Board of Education in advance of or at its November 15 hearing on the proposed regulations. As was noted above, of particular interest is the proposal to not align with the federal IDEA regulations as it relates to parental consent for changes of placement (OAC 3301-51-05(C)(5)). This departure from federal regulations is a major barrier for some IEP teams as they seek to meet the unique needs of students with disabilities.

The currently proposed regulations can be found by using the search tools at the Register of Ohio Website:

The agency number for the Ohio Department of Education is 3301, and the chapter is 51.














































Court Determines Dress Code May be Covered Under Title IX

Court Determines Dress Code May be Covered Under Title IX

The board of trustees of a North Carolina charter school discovered that designing a dress code based on the view that girls are “fragile vessels” could violate both the Equal Protection Clause and Title IX of the Education Amendments of 1972.

Parents of several students at Charter Day School (CDS) filed suit, challenging the dress code requiring K-8 girls to wear a skirt, jumper or skort unless they were in PE class or for certain field trips and other special events. Boys, on the other hand, were allowed to wear shorts or pants at school. Parents complained that the requirement of skirts for girls prevented their daughters from engaging in numerous physical activities including using the swings playing soccer, and even comfortably participating in emergency drills that required students to crawl or kneel on the floor.

The District Court concluded that CDS was a state actor for purposes of the Equal Protection Clause, but determined that dress codes are exempt from Title IX’s prohibitions against gender discrimination. On rehearing en banc, the 4th District Court of Appeals affirmed that in certain circumstances, a private actor could be engaged in state action. In this case, the court determined that “…implementing the skirts requirement based on blatant gender stereotypes about the proper place for girls and women in society” is a clear violation of the Equal Protection Clause.

The court went on to consider the Title IX claim, overturning the District Court’s ruling. Title IX provides that“…no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

In reaching its conclusion, the 4th Circuit noted that Congress did not list any specific discriminatory practices in Title IX, but the law was instead intended to generally prohibit explicitly sex-based policies. Since the effect of the dress code was to prohibit female students from participating in certain school activities, it denied them the full benefit of their education and subjected them to discrimination because of their sex.

Accordingly, the court concluded that Title IX applies unambiguously to sex-based dress codes. The case was remanded to the District Court for further proceedings consistent with its opinion.

What this means for your district: While few schools still embrace such gender stereotypes, boards are cautioned to review dress codes and any other gender-specific policies for conformity with Title IX and the Equal Protection Clause.

Peltier v. Charter Day School, Inc., No. 20-1001 (4thCir. 2021)      



























































































SCOTUS to Consider Exhaustion of Remedies Case

SCOTUS to Consider Exhaustion of Remedies Case

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.