COVID-19 Update: What About Required 504 or IEP Meetings?

It should come to no one’s surprise that the state and federal laws do not allow for exceptions to the required timelines for ETRs, IEPs, etc. As discussed in other posts, in December 2009, in response to the H1N1 pandemic, the U.S. Department of Education issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, and other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus)” which plainly stated that the U.S. Department of Education would not waive the requirements for school districts to evaluate and assess during school closures. While the U.S. Department of Education issued a “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak,” the Department did not issue any comments regarding IEP and 504 timelines at this time.

The Ohio Department of Education has issued its own Considerations for Students with Disabilities During Ohio’s Ordered School-Building Closure originally on March 17th, and updated on March 27th.

Proper planning on your school district’s and case manager’s part will be essential in determining how your school district needs to act as schools are currently (as of March 30, 2020) closed until May 1st during which you would may be required to have an ETR or IEP meeting.

My school district is in the middle of conducting an ETR on a student. Do we continue with this evaluation?

Based on the Guidance and Considerations, you continue with the evaluation of the student. Your district may want to consider how much of the evaluation and assessments can be held remotely. If you can hold the ETR evaluations remotely, then you can hold the ETR meeting during the time of the closure via telephonic or video conference means. If pieces of the evaluation cannot be conducted because school is closed, the evaluation would need to be delayed and a prior written notice for the same should be sent. If you have not yet conducted the evaluation and assessments, another option to consider is waiving the reevaluation and delaying it until return to the in-person education with parental consent or to conduct a records review. The guidance from the Ohio Department of Education indicates that all services should still be provided if parents consent to waive reevaluation. 

Are we required to hold in-person meetings for ETRs and IEPs during a school closure?

If school closes, IEP teams are not required to meet in person. However, according to the Guidance, schools must continue working with parents and students with disabilities, to develop required documents – ETRs, IEPs, 504s, etc. If a plan or evaluation for a student expires during the time of school closure due to COVID-19, IEP/504 teams should offer to meet via telephone conference or videoconference with the parents. School personnel should attempt to determine the specific services that can be provided during the ordered school-building closure period. If the parent does not agree with meeting via telephone or video conference, then the meeting should be delayed until school reopens according to the Guidance.

What about evaluations and plans developed under Section 504?

The same principles apply as discussed above for ETRs and IEPs to those activities conducted by schools for a student with a disability under Section 504 according to the Guidance. You will want to review your school district’s 504 polices to determine 504 plan review and reevaluation timelines, as there is no requirement in federal law for how often must occur.

How do we help our staff in planning for this potential?

School district personnel should look at their evaluation and IEP timelines to determine which items may expire during the next few weeks/months of the 2019/2020 school year. It would be prudent to plan how items may be advanced or to begin discussions now with parents on what the plan will be in the event of a school closure.

COVID-19 Update: Services for Special Education Students

UPDATE (3/12/20 at 6:20 PM): At 6 PM on March 12 the US Department of Education released new guidance on special education and COVID-19 that is available here.

In the past 48 hours it seems as if the already rapidly developing story of COVID-19, or novel coronavirus, has accelerated even more. With major spectator events being postponed, universities and colleges moving to online instruction, escalating infection rates around the globe, and the declaration of a pandemic by the WHO it seems inevitable that at least some Ohio public school districts will experience extended closures. These closures will raise important questions both in terms of employment and education. Given the unique and unprecedented challenges involved, we encourage you to work with legal counsel in real time to ensure effective and compliant responses.

What flexibility can we expect in meeting federal requirements for education?

We can look to official guidance issued during the 2009 H1N1 pandemic to get a sense of what we might expect with COVID-19. On December 1, 2009, the US Department of Education (ED) issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, on other Grantee and Program Participants in Responding to Pandemic Influenza H1N1 Virus” (“SEA” refers to State Education Agencies like ODE, and “LEA” refers to Local Education Agencies like individual school districts). The guidance document discussed in generalities the willingness of the US Department of Education to offer flexibility regarding the requirements of the Elementary and Secondary Education Act (now referred to as ESSA). It is reasonable to assume that flexibility will likewise be offered as COVID-19 has begun to force school closures. We will continue to update clients as specific guidance is issued.

Specifically regarding students on IEPs and 504 plans, what services must we provide during a closure?

We are receiving many calls related to the delivery of instruction during possible closures, and specifically regarding the delivery of instruction to students with IEPs and 504 Plans. Here is what ED said on this topic in 2009 regarding H1N1:

Must an LEA continue to provide FAPE to students with disabilities during a school closure caused by an H1N1 outbreak?

The IDEA, Section 504, and the ADA do not specifically address a situation in which elementary and secondary schools would be closed for an extended period of time because of exceptional circumstances; however, LEAs must be sure not to discriminate on the basis of disability when providing educational services.

If an LEA closes its schools because of an outbreak of H1N1 that disrupts the functioning or delivery of educational services, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. Once school resumes, however, a subsequent individualized determination is required to decide whether a student with a disability requires compensatory education to make up for any skills that may have been lost because of the school closure or because the student did not receive an educational benefit.

If an LEA continues to provide educational opportunities to the general student population, then it must ensure that students with disabilities also have equal access to the same opportunities and to the provision of FAPE, where appropriate. SEAs and LEAs must ensure that, to the greatest extent possible, each student with a disability receives the special education and related services identified in the student’s individualized education program (IEP) developed under IDEA, or a plan developed under Section 504.

There is no guarantee that ED would issue the same guidance today for COVID-19, but given the parallels between the concerns in 2009 and those today, this 2009 guidance is a reasonable starting point for planning a compliant response to a potential school closure for COVID-19.

What are the special education implications of providing online instruction during a closure?

It is notable that the approach that creates the most risk for a school district, per the 2009 ED guidance, is to offer online instruction during a closure. The reason this can become a problem is that students with disabilities will need to be offered accessible instruction that meets their unique needs. It is difficult to imagine how a district might provide “regular prompting,” a common accommodation, to a child who is sitting alone at a computer. And what of the child who does not have a computer or internet access? Per the 2009 ED guidance it would be more legally compliant to not offer any instruction at all than to offer online instruction without an adequate plan for students with special needs.

This does not mean that online instruction should be ruled out. It just means that if online instruction is used there will need to be a plan for how this will serve students with disabilities. You should also consider the possibility of not immediately implementing online instruction. Given the mild winter and the fact that most schools significantly exceed minimum hours of instruction on their regular calendars, it is likely that a few days of closure (without online instruction) will not violate state minimum hours law. Even if a closure is longer lasting, pausing before implementing online instruction could provide important breathing room for student services to plan for serving students with disabilities.

Will we be required to provide compensatory education to students on IEPs and 504 plans following a closure?

The 2009 ED guidance points to the fact that a discussion of whether compensatory education may be required should follow any period of closure regardless of what services are provided. Unless a child is already assigned to home instruction at the time of the closure, any set of services during a closure will in some ways not be in compliance with the child’s IEP. While proactive amendments to account for anticipated closures could minimize the risks, it would be ambitious for most districts to secure consent for amendments for all IEPs. A more realistic approach could involve identifying students who are most at risk of significant regression during a closure, and working with parents to develop a plan to minimize that regression. Not only is this educationally sound, it would be an important part of any legal defense related to IDEA or Section 504 complaints. Once school resumes after a closure you can revisit whether other compensatory services are appropriate.

Please continue to follow the Ennis Britton blog for updates on COVID-19, and do not hesitate to call any of our attorneys with questions or concerns.

Court of Appeals Disagrees That a Student’s Right to Privacy Ends Upon Death

A dispute over the disclosure of student records has led to the Court of Appeals for Ohio’s Second Circuit to analyze whether a student’s right to privacy in education records extinguishes upon death.

Both federal and state laws protect the confidentiality of student education records and personally identifiable information. The Family Educational Rights and Privacy Act (“FERPA”) protects against the disclosure of education records without the prior written consent of the parent or guardian of the student. Education records are defined by the Act as “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” The right to consent to the disclosure of student records transfers to a student upon reaching the age of 18, unless the student remains a dependent of their parents.  

R.C. 3319.321 also provides protection for student information. This statute is broader in its scope, forbidding the disclosure of any personally identifiable student information other than directory information.

The request at issue surrounded a former student who committed a mass shooting in August of 2019, killing 9 people and injuring 27. The shooter was killed by law enforcement officials at the scene. The Associated Press, among other media outlets, made requests to the school for records of the shooter, particularly discipline records. The school released only directory information, citing to the privacy protections of FERPA and R.C. 3319.321.

The media filed a lawsuit asking the Court to force the school to release the requested records. The media alleged that while a student’s right to privacy protections under the applicable laws transfers to the student into adulthood, there should be an exception that the right to privacy in this regard ceases upon death. 

The Court found the analysis inapplicable due to the school’s obligations under the laws in addition to the individual’s privacy rights conferred by the laws. The two are simply not comparable. The Court, noting that neither FERPA nor R.C. 3319.321 contains an exception for the death of a student, declined to create one from the bench.

State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools, 2019-Ohio-4187

School District Transgender Policy Violates Title IX

On August 9, 2019, a federal judge in Virginia ruled in favor of a transgender student in holding that a school district’s policy violated his rights under Title IX and the Equal Protection Clause. The Grimm v. Gloucester County School Board case stemmed from a school district’s policy requiring students to use restrooms and locker rooms that corresponded to their “biological genders.” The district provided alternative facilities for transgender students.

The court initially ruled that claims of discrimination on the basis of transgender status for gender-stereotyping are actionable under Title IX. The court further found that denying Grimm the ability to access the facilities corresponding with his gender identity were not only actionable but did in fact result in a violation of Title IX and the Equal Protection Clause.

The Board argued that it had not engaged in discrimination and that Grimm had not suffered any harm as a result of its policy. The court found this argument to be unconvincing. The court determined that the district’s policy subjected transgender students to discriminatory treatment by excluding them from places similarly situated students had access to. Further, Grimm did suffer emotional harm due to the fact he was unable to comfortably access restrooms at school. Grimm was further subjected to harm when the school district refused to update his school records in order to reflect his male identity. Failure to do so has negated his male identity and marked him different than other males any time he provided a copy of his transcript to another entity.

This ultimately led the court to grant a permanent injunction against the school district’s restroom and locker room policy. The injunction further awarded Gavin nominal damages and ordered the school district to change his school records to conform with his gender identity.

While the decision from the Fourth Circuit Court of Appeals is not controlling on Ohio school districts, the Sixth Circuit did rule on a very similar case back in 2016. In Dodds v. United States Department of Education, the Sixth Circuit Court of Appeals agreed with a lower district court decision and determined that an eleven-year-old transgender girl had a strong likelihood of success in her claims against the school district and should therefore be allowed to use the school restrooms conforming with her gender identity.

It is important to note the decision in Dodds relied on guidance from the United States Department of Education that has since been rescinded. The current position of the USDOE is that they will not accept any complaints alleging a transgender student was denied access to restrooms and locker rooms and will only accept complaints of harassment or bullying for failing to conform to sex-based stereotypes. Thus, in light of this new guidance, it remains unclear how an Ohio court would rule on this issue today.

What this means for your district:
The issue of providing accommodations to transgender students remains unclear and is a matter that will doubtless be subject to further litigation before any clarity is provided. Districts should proceed with caution when faced with these issues. For additional advice on handling requests for accommodations for transgender students, please contact an Ennis Britton attorney for assistance.

Restraint and Seclusion

The use of restraint and seclusion in schools continues to be a high priority for state and federal policy makers. Ohio’s first regulations specifically addressing restraint, seclusion, and positive behavior intervention and supports took effect in 2013 as Ohio Administrative Code (OAC) 3301-35-15. In June 2018, the General Assembly passed House Bill (HB) 318, also known as “the SAFE Act”. This law addresses a variety of student discipline issues, including a requirement to rewrite Ohio’s restraint and seclusion regulations.

Ohio Administrative Code 3301-35-15 was due for review by August 2018, but the process has not been completed. HB 318 set a deadline for revision of OAC 3301-35-15 by early February 2019. Again, no revisions were made. However, work is ongoing at the Ohio Department of Education (ODE) and various stakeholder groups are being presented with draft rule revisions this summer. It is anticipated that in the coming months, there will be a proposed rule presented for public comment and consideration by the State Board of Education.

In the meantime, existing requirements for the use of restraint and seclusion remain in place. This includes absolute restrictions on certain practices, and significant data tracking and reporting requirements. The summer “break” is a good time for administrators to review existing training programs, plan for which staff members may require additional training due to student assignments and program changes, and review reporting data for the recently completed school year to determine if there are any patterns or gaps that need to be addressed.

While the use of restraint and seclusion generally should be rare, consistent reports of zero incidents may raise a red flag. A recent report from the federal Government Accountability Office (GAO) found that nine of the nation’s 30 largest school districts reported no incidents of restraint or seclusion in the last reported year (2015-2016). The GAO and U.S. Department of Education presume that such reports are inaccurate, with the GAO reporting that, “We are encouraged that Education recognizes the seriousness of this issue and the data quality issues it has allowed to persist when districts inappropriately and inaccurately report zero incidents of restraint and seclusion.”

In addition to whatever new requirements might be rolled out by the U.S. Department of Education to address its concerns, long-proposed federal legislation is expected to be reintroduced later this year. The bill, called the “Keeping All Students Safe Act,” is likely to overlap significantly with Ohio’s restraint and seclusion regulations.

Student Dress Code

A Federal District Judge recently ruled that a charter school dress code policy which required girls to wear skirts and prohibited girls from wearing pants or shorts, violates the equal protection clause of the U.S. Constitution. Many challenges in the past have rested on First Amendment grounds regarding freedom of expression. However, this case was brought on a theory of gender discrimination.

The Plaintiffs argued that the girls suffered tangible disadvantages due to the policy. The court found that the Plaintiffs established that “the girls are subject to a specific clothing requirement that renders them unable to play as freely during recess, requires them to sit in an uncomfortable manner in the classroom, causes them to be overly focused on how they are sitting, distracts them from learning, and subjects them to cold temperatures on their legs.”

The Defendant, the Charter Day School, argued the dress code was designed to garner mutual respect between the boys and the girls, particularly in that the skirts represented visual cues to promote respect between the two sexes. Striking down the policy, the school argued, would remove those visual cues and hinder a sense of respect for the opposite sex. The Court noted that even if these were legitimate interests of the state, the school failed to show how the policy advanced such interests.

The Court further noted that school dress code policies have been upheld by numerous courts and that the state does have legitimate interests in the grooming and dress of students attending schools supported by the state. However, these interests must be addressed in a uniform, gender-neutral way that does not penalize a student simply for being one sex or the other.