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:
https://www.registerofohio.state.oh.us/rules/search

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)      

 

 

 

 

 

 

 

 

 

 

 

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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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

OCR Provides Guidance for Pregnant and Parenting Students

 U.S. Department of Education’s Office for Civil Rights (OCR) recently released guidance linking the protections of Title IX of the Education Amendments Act to students and employees based on pregnancy and related conditions. The October 4, 2022 guidance reiterated that the protections of Title IX that prohibit discrimination on the basis of pregnancy have been in place since 1975. The guidance goes on to provide that schools may not discriminate against any student, or exclude any student from their education program or activity, including any class or extracurricular activity, based on the student’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom. Furthermore, a school may not discriminate against or exclude from employment any employee or applicant on these bases.

Schools are advised to treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom the same as any other temporary disability of a student. For employees, schools must treat pregnancy and its related conditions the same as any other temporary disability for all job-related purposes.

The guidance goes on to state that if a school does not have a leave policy for students, or if a student does not otherwise qualify for leave under existing district policies, the school must nonetheless provide leave to a student for pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, for as long as the student’s physician deems such leave to be medically necessary. After the leave expires, the student must be reinstated to the status the student held when the leave began.

Finally, the resource states that a school must ensure that its teachers’ policies and practices do not discriminate against students because of pregnancy and related conditions. This means that a teacher may not refuse to allow a student to submit work after missing a deadline because of absences due to pregnancy or childbirth, and if part of the teacher’s grading is based on class attendance or participation, the student must be allowed to earn the miss credits and be reinstated to the student’s pre leave status.

As with other Title IX matters, students may file a complaint through their school’s grievance process or directly with OCR. For OCR’s purposes, a complainant can include students, parents and guardians, employees, community members, and others, including anyone who observes discrimination in educational programs based on sex, including pregnancy and related conditions.

What This Means for Schools: school districts are encouraged to review their policies and practices regarding student absences, return to school, and policies on work completion to ensure their compatibility with OCR expectations.

Special Education Contingency Plans For When Disasters Strike

Special Education Contingency Plans For When Disasters Strike

In recent weeks, school districts across the United States have been forced to respond to unexpected disasters in addition to all of the ongoing pandemic-related challenges. From tragic school shootings to catastrophic tornados, schools have continued to adapt as best they can. These situations serve as powerful reminders about the importance of developing contingency plans for how to support some of the most vulnerable students – those with disabilities – when disasters strike.

Recent pandemic guidance sheds some light on the question of what a district’s obligations might be when schools are unexpectedly disrupted due to unforeseen circumstances. In 2020, the U.S. Education Department released insightful guidance for districts amid the emerging COVID-19 pandemic. Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, U.S. Department of Education (March 12, 2020).

The ED declared that when a school district is closed and not providing any educational services to the general student population, then the school district is not required under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act to provide services to students with disabilities. However, once a school resumes in some fashion, a district’s obligation to provide services for disabled students changes, even if educational programming is provided in a different format such as remote learning. At that point, districts are obligated to “make every effort” to fully implement a student’s IEP or 504 plan, including providing all special education services and accommodations for students.

In the event that a school is unable to provide the services, special education teams may be expected to convene and consider whether compensatory services should be offered at some point. Additionally, teams should consider whether any type of recovery services might be provided to help compensate for any regression and learning loss.

As we have seen during the pandemic, schools that are able to adapt quickly to disasters are better able to support their students with disabilities, prevent regression and learning loss, and reduce or altogether avoid costs associated with compensatory education and recovery services. The ED stressed the value of creating contingency plans to address unexpected changes in learning platforms and resources. When contemplating the question of whether special education teams should consider distance learning plans as a contingency during the pandemic, the ED responded “Creating a contingency plan before a COVID-19 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach an agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal.” This same concept is easily extrapolated to other types of disasters.

The lessons learned during the pandemic provide a solid foundation for schools in developing contingency plans. These plans may address the following needs:

  • Available Resources. School districts should have a solid understanding of what resources are available in their districts and communities to pull from in an emergency situation so that they can quickly access them. It is also helpful to maintain backup technology devices such as computers and hotspots to help facilitate the district’s quick response.
  • Supports for displaced students. Students who experience natural disasters such as floods and tornados may temporarily lose housing. In addition to IDEA and Section 504, students may have rights under the McKinney-Vento Homeless Assistance Act. Having access to technology such as laptops and hotspots, as well as maintaining connections with neighboring districts, educational service centers, and county agencies help schools adapt quickly.
  • Team meetings. It is important for special education teams to convene meetings in a timely fashion so that your knowledgeable professionals are able to problem solve and address unique challenges that a student with disabilities might face because of the disaster. Utilizing technology and staff to facilitate meetings quickly is important.
  • Additional Service and Staff Needs. Not only are students impacted by disasters, but staff as well. Districts may need to quickly access additional staff to fill service gaps or expand services that are provided to students. Alternatives might include utilizing telehealth services and working with neighboring districts and ESCs for backup support.
  • Documentation. It is critical that districts have an effective way to document what they are doing for students with a disability at all times, but especially during a pandemic. This data becomes critical for special education teams as they explore future student needs, and also helps defend against parent and advocate challenges that may come your way.  

The value of developing solid contingency plans before a district faces a disaster is significant. School districts should work with their colleagues and legal counsel to develop a strategy for future needs. A member of the Ennis Britton special education team is here to help support your efforts.