Can I Leave Work to Attend an IEP Meeting?

FMLA LEAVE MAY BE AVAILABLE TO PARENTS TO ATTEND IEP MEETINGS

On August 8, 2019, the U.S. Department of Labor, Wage and Hour Division (“the DOL”) issued guidance on whether an employee may take protected leave under the Family and Medical Leave Act (“FMLA”) to attend a meeting to discuss the Individualized Education Program (“IEP”) of the employee’s son or daughter. U.S. Dept. of Labor, WHD, FMLA 2019-2-A(August 8, 2019). 

1. FMLA Leave

As a starting point, FMLA provides that an employee eligible for FMLA may take up to 12 weeks of job-protected, unpaid FMLA leave per year “to care for the spouse, son,daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. §2612(a)(1)(C); see also 29 U.S.C. §2611(11); 29 C.F.R. §825.112–.115.

2. IDEA and Related Services 

Alternatively, the Individuals with Disabilities Education Act (“IDEA”) requires public schools to develop an IEP for astudent who receives special education and related services, with input from the child, the child’s parents, teachers, school administrators, and related services personnel. Under IDEA, “related services” may include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others.

3. DOL Conclusion

Considering both statutes, the DOL instructed that attendance at IEP meetings does qualify FMLA-covered leave so long as the employee’s son or daughter suffers from a “serious health condition” as defined in the law. FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Many students receive “continuing treatment” by a healthcare provider pursuant to their IEP. 

4. FMLA Medical Certification

An employer may require the parent to provide a medical certification in order to verify the existence of the child’s serious health condition. This certification is a standard FMLA form issued by a health care provider, further supporting the request for leave. This certification would verify that the child’s condition qualifies as a “serious health condition” under FMLA. 

5. Parents Input is “Essential”  

In issuing the guidance, the DOL recognized that the parents in question attend IEP meetings in order to “help make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy, to discuss their children’s wellbeing and progress with the providers of such services, and to ensure that their children’s schoolenvironment was suitable to their medical, social, and academic needs.” The DOL also instructed that, a parents’ attendance at IEP meetings is often “essential to [the parent’s] ability toprovide appropriate physical or psychological care” to theirchildren, further justifying the application of FMLA protected leave for IEP meetings. 

6. Intermittent Leave 

Under FMLA, an employee may use the leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition. 29 U.S.C. §2612(b)(1); 29 C.F.R. § 825.202. This means that the employee may apply the FMLA leave as-needed, for portions of a workday, rather than in a scheduled days or in continuous days. Intermittent leave is the type of leave most parents would need to request and use for IEP meetings. 

Finally, the DOL instructed that the child’s doctor does not need to be present at IEP meetings in order for the leave to qualify under FMLA. The conclusion provided by the DOL alsoapplies to any special education meetings held pursuant to IDEA. 

This article was authored by education and employment attorney, Mark A. Weiker. 

Questions? Call us. 614.745.2001

HOW TO: Be A College Student With A Disability

If you were a student with a disability in elementary, middle or high school and are now in college, you’ve probably noticed a huge difference. Gone are the intervention specialists and teachers who read your IEP or 504 and kept you on track educationally, emotionally or physically. College professors expect you to manage your classes, your student life, everything, on your own. They may never have heard of an IEP or 504, and they may not understand that you may need accommodations. But you do. Still. So what should you do?

You hopefully received in high school what the law calls FAPE – a Free and Public Education. If you had an IEP, it should have been tailored to making sure you received specialized educational services under IDEA – the Individuals with Disabilities Education Act. Or you may have had a 504 plan – accommodations for your disability that you were entitled to based on Section 504 of the Rehabilitation Act of 1973.

Here’s the bad news. Colleges don’t have to provide a Free and Appropriate Education (FAPE) to you. This is because colleges are not subject to IDEA.

However, you still have protections. Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans With Disabilities Act of 2008 prohibit discrimination on the basis of disability in college.   This means that those accommodations you received under an IEP or 504 in high school may still apply in college.

The huge difference between high school and college: you are your own advocate. In high school you had teachers, parents and administrators helping you and advocating for you. You may have gone to your annual IEP or 504 meetings, where a lot of school staff and you and your parents hashed out a plan that was the best fit for you to learn what you needed to learn.

But in college, you are the one who needs to bring up your need for accommodations.

- The "How To" -

1. Identify yourself to the college as a student with a disability. Colleges should have an office responsible for disability services. Check out their website and see what kinds of documentation they require, and what services they routinely offer. For example, Columbus State Community College offers Read and Write Gold for everyone on campus regardless of disability.

2. Get tested, if necessary. The college may need documentation. Colleges can set their own requirements for documentation, and often a copy of your 504 Plan or IEP is not enough to prove that you currently have a disability.

   • Who pays for any testing you may have to get? In high school or below, the school district paid for any evaluations. Colleges are not responsible for paying. If you qualify for your state vocational services, the state may pay. Opportunities for Ohioans with Disabilities (OOD) at http://www.ood.ohio.gov/Core-Services/BVR can help. Otherwise, you are responsible for paying for an evaluation that the college needs to determine if you have a disability.

3. Documentation to show the following:

   • That you have a disability;

   • The disability substantially limits a major life activity; and

   • The disability shows the need for academic adjustments (or accommodations).

     • When don’t you need documentation? A medical diagnosis may be enough for a college, proved that it includes how the disability impairs you as a student. Colleges have leeway in making this determination – you may be required to provide additional documentation.

4. Work with the college in determining which accommodations are necessary for you. It isn’t as simple as showing the college what you got in high school and asking for the same accommodations. Remember, you don’t have the right to specialized educational services. Colleges do not have to give you any accommodation that fundamentally alters the program or result in undue financial burden on college. For example, you may get extra time on a test, but the college won’t have to change the content of the test.

Remember, the person at the disability office is not like your intervention specialist or teacher in high school. The disability officer evaluates your documentation, works with you to figure out which services you need, helps you with arranging services and testing modifications, and deals with any problems that may come up. The officer does not tutor you, give you counseling, or help you manage your time. Depending on the college, other offices may provide tutoring, counseling and other services.

Who pays for aids or services you may be entitled to receive? Colleges cannot require that you pay for them, and they can’t charge you more than non-disabled students. In most cases the college is responsible for aids or services, although colleges don’t have to pay for aids or services that are an undue financial burden on the college.

Finally, you should plan on initiating this process as soon as possible. Don’t wait until after you have struggled all semester in a class! These are proactive accommodations – the point is to help you as problems arise, not give you a pass afterwards. Ask for accommodations before you take the test, write the essay, or do the lab. Be your own advocate. We have encountered issues where colleges were not aware of the disability, no request for accommodations were made by the student, and now the student is facing academic probation or expulsion.

- Think about the following -

• Understand your disability. Be able to explain it clearly to others.

• Acknowledge your areas of strength as well as weakness. We all have them. Own them.

• Make sure you are prepared for the classes. If you are weak in math, take preparatory classes so that when you get to college you can succeed. Take the summer school program in your college. Community colleges are excellent places to take classes, get used to college, and still have a bit of a safety net. Columbus State Community College has excellent disability services. Call them.

• Learn time management and organizational skills. All college students need them, but disabled students often have to work harder and longer than the average student. Make sure that you work smarter, not just longer.

• Finally, do your research when considering colleges. Some colleges are better suited than others for your type of disability. Visit, ask questions, and look at the requirements for the program(s) you are interested in. Don’t waste your time and money in a program that is not a good fit.

If you feel that the college has discriminated against you because of your disability, work with the disability officer. If that doesn’t work, move higher up the chain of command. And if you need someone to advocate for you, contact Albeit Weiker, LLP. We understand higher education and disability law.   You may not be entitled to a free and appropriate college education, but you have legal rights as a student with a disability.

Questions? Call us! 614.745.2001

The Intersection of Special Education & Social Security Eligibility

Meet Emmy (pictured). She is our Special Education Advocate. 

You can read more about her here: Emily Haynes 

Social Security EligibilityAs a parent with a child receiving Social Security benefits, you are most likely aware that to be eligible for Supplemental Security Income (SSI), your child has “a physical or mental condition or a combination of conditions that results in “marked and severe functional limitations. This means that the condition(s) must very seriously limit your child’s activities.” Examples include: HIV infection; Total blindness; Total deafness; Cerebral palsy; Down syndrome; Muscular dystrophy; Severe intellectual disability (child age 7 or older); Low Birth weight

Social Security BenefitsIn addition to Supplemental Security Income (SSI), a child with disabilities as defined by the Social Security Administration may also be eligible for: Rehabilitation and training if older that age 15, Medicare/Medicaid, Children’s Health Insurance Program.

Special EducationIn addition to SSI, you may also be eligible for special education for your child. All children have the right to a free and appropriate public education (FAPE). Children with disabilities may need to be taught in a different way than typical children, and may not be able access that free and appropriate public education without support. There are two main Acts that protect children with disabilities: the Individuals with Disabilities Education Act (IDEA), and Section 504.

The Individuals with Disabilities Education Act (IDEA): GenerallyThe Individuals with Disabilities Education Act (IDEA) may protect your child. IDEA provides federal assistance to State and local education agencies to guarantee special education and related services to eligible children with disabilities, ages 3-21. The goal of IDEA is to serve children with disabilities by meeting their “unique needs and prepare them for further education, employment, and independent living.”

The Individuals with Disabilities Education Act (IDEA): EligibilityAn important part of the IDEA called Child Find requires schools to identify, locate and evaluate all children with disabilities, regardless of their situations, who have significant, individual needs and require intensive interventions through special education and related services.

In other words, your child must be found to meet all three factors:1. Have a disabling condition2. Have an adverse effect on education performance3. Need for special education

IDEA has 13 categories, and children must be identified in one of them to be eligible. These are: Autism, Blindness, Deafness, Emotional Disturbance, Hearing Impairment, Intellectual Disability, Multiple Disabilities, Orthopedic Impairment, Other Health Impaired, Specific Learning Disability, Speech or Language Impairment, Traumatic Brain Injury, Visual Impairment

The Individuals with Disabilities Education Act (IDEA): BenefitsParents can request that their child be evaluated, and schools must respond appropriately. Reevaluation of the child occurs every three years, and a knowledgeable team must conduct both the initial evaluation and all subsequent evaluations. Parents have the right to request an Independent Education Evaluation at public expense one time for every evaluation.

Once children have been identified, the schools are required to determine if they are eligible for special education services, and if they are, to provide those services in an appropriate manner. This plan is called an Individualized Education Program (IEP), and parents are valuable and contributing members of the IEP team. IEPs outline the strengths and weaknesses of the child, and set out goals for the child to work toward with specific instruction and accommodations. Parents must be updated at regular intervals with actual data showing progress towards those goals. Finally, IDEA provides important protections children with disabilities in the area of discipline, if the reason for the disruptive behavior is related to their disability.

Individuals with Disabilities Education Act (IDEA): ProtectionsIf you believe your child needs special education, or is receiving services but is not progressing, your IEP and/or Evaluation may not be adequate.

In 2015, the Federal government determined that Ohio “Needs Assistance” because of low scores in special education. Specifically, our percentage of children with disabilities who drop out of high school is dangerously low: 22%. Only 47% of children with disabilities graduate with a regular diploma. Both these measures suggest that special education in Ohio is not meeting the requirement to provide those children with a free and appropriate public education.

You have options under IDEA to raise questions, disagree with schools, and to ensure that your child’s individual needs are being met. These include notice, consent, available complaint procedures, mediation, and due process.

Section 504: GenerallyIDEA provides specialized special education to children with disabilities, but not all children are adversely affected by their disability. Section 504 is a civil rights law that prohibits discrimination on the basis of disability.

Section 504: EligibilityA similar Child Find is found in Section 504. It requires schools to evaluate any student “who, because of a handicap, needs or is believed to need special education and related services.” That handicap or impairment must substantially limit a major life activity, have a record of such impairment or be regarded as having such impairment. Major life activities include: Caring for one's self, Performing manual tasks, Walking, Seeing, Hearing, Speaking, Breathing, Learning, Working. Eating, Sleeping, Standing, Lifting, Bending, Reading, Concentrating, Thinking, Communicating, and finally, “major bodily functions” that are major life activities.

Section 504: BenefitsSection 504 generally provides accommodations to children with disabilities. For example, a child with a severe peanut allergy would be protected under a 504 plan, as would a child with ADHD who needs movement breaks during testing. Because 504 targets nondiscrimination, a 504 plan delineates reasonable accommodations and services so that education, nonacademic and extracurricular services are provided with non-disabled students to the maximum extent appropriate for the child with the disability. These activities may include counseling, athletics, transportation, health services, and special interests groups or clubs.

Section 504: ProtectionsThe Office of Civil Rights regulates a 504 plan. Procedures available to parents are notice, grievance procedures and due process hearings. Discipline of children under a 504 is also protected, although not to the same extent of children under IEPs .

Questions? Call us! 614.745.2001