Special Education Basics: The Difference Between IEPs and 504s

Most parents of children with disabilities do not have extensive experience advocating for accommodations within their school system. In an ideal world, a school would promptly and properly identify the needs of students with disabilities and work to ensure parents understand their options. Since this ideal is not always upheld, it is important to understand the core tenets of special education law. One of the most common issues parents run into is understanding the difference between an Individualized Education Program (IEP) and a 504 Plan. Both IEPs and 504 Plans offer formal assistance and accommodations for K-12 students who are struggling in school. However, there are some key differences between the two.

An IEP is a written program that provides with specificity what, if any, free special education resources, services and supports will be put into place to meet your child’s unique needs. This includes any specialized instruction your child may engage in. The written IEP will also set specific learning goals for your child. The underlying law that applies with an IEP is the Individuals with Disabilities in Education Act (IDEA). This is a federal law focused on special education for children with disabilities.

A 504 Plan is a plan established by the school to determine what free supports and accommodations the school will put into place to ensure your child can learn alongside their peers in the classroom. Unlike an IEP, there is no standard 504 Plan and a 504 Plan need not necessarily be a written document - although most schools do produce written plans. A 504 Plan does not typically set specific learning goals like an IEP does. The underlying law that applies with a 504 Plan is Section 504 of the Rehabilitation Act of 1973. This is a federal civil rights law that focuses on stopping discrimination against people with disabilities.

Under the IDEA, a parent or guardian must give written consent before a child is evaluated for IEP eligibility and give written consent before the school can begin implementing the services described in the IEP. Under Section 504, a parent must consent to an evaluation but it does not have to be in writing. An IEP must be reviewed at least once a year, and a child on an IEP must be re-evaluated every three years in order to determine if services are still needed. For a 504 Plan, the rules vary by state although most schools loosely follow the same timeline as an IEP.

So, how do you determine which of these two options would best suit your child? In order to qualify for an IEP, a student’s school performance must be adversely affected by one of thirteen qualifying disability categories under the IDEA. The child must need specialized instruction in order to progress in school. Conversely, to qualify for a 504 a child need only have any disability that interferes with the ability to learn and progress in a general education classroom setting. The disability must substantially limit one or more basic life activities for the student. Because the requirements to qualify for an IEP are stricter than those for a 504 Plan, a child who does not qualify for an IEP may still qualify for a 504 Plan.

If you think your child might need an IEP or a 504 Plan, reach out to your school administrators and request an evaluation for your child. If you have questions about your child’s IEP or 504 Plan, contact an education advocate or attorney.

Written by education attorney, Megan Mitchell at Abdnour Weiker, LLP

www.Lawyers4Students.com

Understanding the Basics of Open Enrollment in Ohio: FAQs for Parents and Guardians

In this article, we address the frequently asked questions (FAQs) that parents and guardians commonly inquire when contemplating open enrollment for their children in Ohio. Whether you're exploring educational alternatives or seeking to understand the implications of such a decision, these FAQ responses aim to provide clarity and insight into the open enrollment process.

What is open enrollment?

Created in 1989, open enrollment, also known as inter-district enrollment or intradistrict transfer, allows students to enroll into another school district by following that district’s open enrollment policies and procedures. Students enrolled under an open enrollment policy must be allowed to attend tuition free.

Who is eligible for open enrollment in Ohio?

Eligibility criteria vary by district, but generally, students who reside within Ohio and meet specific residency and enrollment requirements can apply. For example, a student must be enrolled in their resident home district to participate in open enrollment.

What is the application process for open enrollment?

School districts are responsible for creating their own applications and procedures for open enrollment, which should be adopted by the district’s Board of Education and included in Board policy. The Ohio Department of Education annually updates their listing of open enrollment policies in Ohio school districts, which can be found here.

Parents and guardians typically need to complete an application form provided by both the home and receiving districts. The application may require supporting documents such as proof of residency. Further, students must apply for open enrollment on an annual basis. Though the receiving district may limit enrollment due to capacity or eliminate open enrollment in following years, students enrolled in the previous year when open enrollment is continued must be given priority.

Is there a deadline for applying for open enrollment?

Deadlines vary by district, so it is important to check with both the resident and receiving districts for specific dates. However, the Ohio Department of Education has suggested the following timelines:

• May 1 - Open enrollment applications are due in the superintendent’s office of the district considering open enrollment students.

• June 15 - School districts inform parents/guardians whether the student has been accepted through open enrollment. 

• June 30 - Parents/guardians notify the school district whether or not their child will attend the district under open enrollment.

Will transportation be provided for open enrollment students?

The receiving district is required to provide transportation to the student, but only from an existing bus stop within the district and only for the same grade levels that they transport their resident students. Transportation from outside the district is the responsibility of the parents or guardians.

Will my child be guaranteed enrollment in the receiving district?

Admission is typically subject to space availability and other factors determined by the receiving district's policies. There may be instances where applications are denied due to capacity constraints. A student can also be refused in order to maintain racial balance in a particular school building, and the district must specify criteria used to determine racial balance in its Board policy. However, a school district may not discriminate against any student because of a disability condition; nonetheless, special education students may still be refused admission if the district does not have the available services necessary to meet the needs of the student’s Individualized Education Plan (IEP).

Can my child participate in sports or extracurricular activities at the receiving district?

Policies regarding participation in extracurricular activities vary by district. Further, if a student wishes to change schools through open enrollment, the student should consult with the school administration and follow the guidelines for athletic eligibility as established by the Ohio High School Athletic Association (OHSAA).

What are the benefits of open enrollment for my child's education?

The decision to open enroll in another school district should be carefully considered based on your child's individual needs, interests, and educational goals. Parents and guardians should consider how the curriculum, extracurricular activities, and other aspects of the educational experience may differ between districts. It is also essential to be aware of any potential impacts on graduation requirements or transfer credits.

Parents and guardians considering open enrollment should contact both their resident and receiving districts for additional information and guidance tailored to their specific circumstances.

Renee Stromski is a Student Rights Attorney in Ohio with Abdnour Weiker, LLP

Student Privacy Rights Under FERPA: What To Do If Your Student’s Privacy Is Violated

Most parents are aware that their students have some privacy rights that schools must take appropriate action to protect. However, many parents are not aware of what establishes those privacy rights and, perhaps more important to parents, what can be done to protect them.

The Family Educational Rights and Privacy Act (FERPA) was adopted in 1974 as a Congressional response to the abuse of student records nationwide. FERPA serves two main functions: 1) guarantee access to students records for both students and parents; 2) limit third-party access to student records.

When processing a records request, a school must determine whether the materials requested qualify as education record materials. An “education record” includes records, files, documents and other materials, which: (1) contain information related to a student; and (2) are maintained by an educational institution. This includes things like a student’s academic work, test scores, psychological records, and family background. An education record does not include things like personal notes of a teacher or counselor, personnel records or law enforcement records.

So what happens when a student’s school releases part of their education record to a third party in violation of FERPA? One of the most common questions we receive is how parents can sue their child’s school for violating FERPA. Unfortunately, they cannot. FERPA creates no private right of action in the event of a school violation, meaning individuals cannot sue for a violation in court. Instead, in the event of a FERPA violation, a parent or student may file a Complaint with the Student Privacy Policy Office (SPPO) of the Department of Education alleging a violation.

A Complaint must be filed within six months of the violation, or within six months of when parents first knew or should have known of the violation. In this process, timeliness is key. Following a complaint, the SPPO will determine whether the school violated FERPA, and whether the school has a practice or policy of violating FERPA.

If the SPPO finds that a school has a practice or policy of violating FERPA, SPPO will then provide steps that the school must take to comply and provide a reasonable period to comply. If a school still does not comply, SPPO may withhold further payments made under any federal program and either issue a cease-and-desist letter or terminate federal funding.

Although there is no private cause of action guaranteed under FERPA it is still important that parents make their voices heard through the SPPO Complaint process. When facing the restriction or elimination of federal funding, schools will typically clean up their act with regard to maintaining FERPA-protected information. If you believe your child’s private, FERPA-protected information has been wrongfully distributed by their school, we encourage you to file a complaint with the SPPO and make your voice heard.

For more information about FERPA, check out the Special Education Legal Clinic’s FERPA video: SELC Understanding FERPA. Further SELC Workshops on other topics are also available.

Megan Mitchell is an education attorney in Michigan at Abdnour Weiker, LLP

www.Lawyers4Students.com

Do I Need an Attorney, an Advocate, Both or Neither?

When do you need a special education attorney versus a parent advocate?

Federal and state laws require school districts to find and identify children with disabilities. Parents can request that their child be evaluated, and schools must respond appropriately. 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.

In many cases, and with the right information, parents can advocate effectively for their child in the special education setting. The special education process was set up to be relatively non-adversarial and to allow parents to be members of the IEP team and collaborate with schools. However, some school districts push back when parents question their decisions, fail to truly inform parents of their rights under IDEA and Section 504, and fail to identify, evaluate or provide appropriate services to children with disabilities. If you are experiencing push back, you suspect something is wrong but cannot get your school to listen, or you believe your child is not getting services that allow him or her to progress appropriately, it may be time to call for help.

Your next decision is whether to call a special education attorney or parent advocate.

Abdnour Weiker, LLP has both advocates and special education attorneys to handle cases. Our advocates are many times more financially affordable to families, typically billing at 50% of the attorney hourly rate. Another benefit to hiring Abdnour Weiker, LLP is that you can start with an advocate but if the situation ever progresses to needing an attorney, our attorneys are already up to speed and familiar with your case. That means less time transitioning from an advocate to an attorney, and less money spent by the family.

Both advocates and attorneys should have a solid understanding of the IDEA and 504 frameworks at the state level, disabilities, educational theories and practices, and school environments. They should be aware of appropriate interventions for children with disabilities, be able to connect you with resources and services outside the school, and be adept at effectively communicating with school districts.

Here are some tasks that BOTH special education attorneys and advocates should be able to do well:

• Evaluate initial and triennial Evaluation Team Reports

• Advocate for and help draft appropriate and effective IEPs

• Advocate for Section 504 eligibility and help draft appropriate and effective 504 plans

• Advocate for Independent Educational Evaluations

• Evaluate and advocate for Functional Behavior Assessments & Behavior Intervention Plans

• Advocate for students with behavioral disabilities and protect those students when schools want to discipline them

• Understand and advocate for effective progress monitoring

So, when should you consider a special education attorney?

Advocates and attorneys should be able to evaluate your case to determine if you need legal or advocate assistance. However, the following may be red flags to alert you that an attorney may be needed:

• Your child’s needs concern specific areas of law such as placement outside of the school, your legal rights of confidentiality, etc.;

• Your child faces expulsion and/or criminal charges for conduct within the school;

• The school has brought in an attorney to help them, or you need to answer a letter written by an attorney; or

• You need to move beyond advocacy to file a formal complaint or due process with the Ohio Department of Education, or a complaint with the Office of Civil Rights.

The best way to determine if you need an advocate or attorney is to call one and ask. A responsible advocate will tell you when you need an attorney, just as a responsible attorney will tell you when you can use an advocate. Make sure they listen more than they talk – the hallmark of effective advocacy is in their listening skills!

Questions? Call us at 614.745.2001 or visit www.Lawyers4Students.com

Five Big Changes Coming to Ohio Education Laws in the 2023-24 School Year that Parents Should Know

On July 1, 2023, the Ohio House and Senate approved a new 2-year state budget, which was signed into law by Ohio Governor Mike DeWine on July 5, 2023. Here are the most important provisions impacting education for Ohio parents and students:

PRIVATE SCHOOL VOUCHERS (aka EdChoice Scholarship): All Ohio school children will be eligible for a school “voucher” to help cover the cost of tuition participating private schools. Children whose families earn up to 450% of the federal poverty level (~$135,000/year for a family of four) will be eligible to receive a full EdChoice Scholarship in the amount of $6,165 (k-8) and $8,407 (high school). Higher earning families are still eligibile, but may receive reduced scholarship amounts. This does not affect families receiving the Autism Scholarship or Jon Peterson Special Needs Scholarship.

SIGNIFICANT FUNDING FOR PHONICS-BASED READING: The reconciled bill includes a significant investment in childhood literacy, particularly for phonics-based reading programs (a.k.a. the “Science of Reading”). The bill moves to eliminate “cueing” reading programs that have been used by school districts and educators for decades, but considered ineffective by many literacy experts. The funding in the new law includes allocations for training of teachers and district implementation over the next two years.

TOP 5% SCHOLARSHIPS FOR GRADUATES: Ohio high school students who graduate in the top 5% of their classes will be eligible for $5,000 scholarships to attend Ohio colleges and universities.

PARENTAL CONSENT FOR SOCIAL MEDIA: Children younger than 16 must get parental consent when they create new social media accounts starting Jan. 15, 2024. While not directly related to education funding, this budget item was initially requested by the Governor in an effort to protect the mental health of Ohio teenagers. It was included in the final bill.

NEW TEACHER PAY: The minimum annual salary for new public school teachers was increased modestly from $30,000 to $35,000. Many districts already have adopted salary schedules above this amount for first-year teachers. A proposal to increase the minimum salary to $40,000 was ultimately rejected.

Read more here: https://apnews.com/article/ohio-state-budget-taxes-education-vouchers-6f3c3abf4db444124d6c7b19090f5cc8

Abdnour Weiker, LLP

www.Lawyers4Students.com

2023 Ohio Summer Camp List

Summer camp is a longstanding tradition that provides a unique opportunity for children to embark on exciting adventures, make lasting memories, and develop crucial life skills. Summer camp serves as a chance for children to step outside their comfort zones and discover their independence. These unique experiences provided by summer camps build resilience and prepare children to face challenges with confidence.

We are pleased to provide a compiled list of various summer camps and programs available to children across Ohio.

* - inclusive of children of all abilities/programs may be modified)
** - requires diagnosis to attend
*** - requires diagnosis but is inclusive to typically-developing siblings and peers

Northeast Ohio (including Cleveland, Akron, Canton, and Youngstown)

1. Akron ArtWorks
   Akron, Ohio
   Type: Art
   Ages: 4-17 years

2. Akron Rotary Camp**
   Akron, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 6-21 years

3. Beck Center for the Arts*
   Lakewood, Ohio
   Type: Art, Dance, Theatre
   Ages: 4-18 years

4. Bellwether Farm Summer Camps
   Wakeman, Ohio
   Grades: 2-12
   Type: Traditional, Religious

5. Bright Futures Preschool Summer Program*
   Cleveland, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 3-5 years

6. Camp Cheerful by Achievement Centers for Children*
   Strongsville, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 5 years through Graduation

7. Camp Cornerstone
   Independence, Ohio
   Type: Specialty (Bereavement)
   Ages: 6-12 years

8. Camp Curiosity at Great Lakes Science Center
   Cleveland, Ohio
   Type: STEM
   Grades: K-2

9. Camp Frederick
   Rogers, Ohio
   Type: Traditional
   Grades: K-12

10. Camp Gilmour at Gilmour Academy
    Gates Mills, Ohio
    Type: Traditional, Academic
    Ages: 3-12 years

11. Camp Happiness by Catholic Charities Diocese of Cleveland**
    Wickliffe, Ohio
    Type: Traditional
    Ages: 5-21 years

12. Camp Ho Mita Koda**
    Newbury Township, Ohio
    Type: Traditional, Specialty (Disability Support)
    Grades: K-11

13. Camp Nuhop**
    Perrysville, Ohio
    Type: Traditional, Specialty (Disability Support)
    Ages: 6-29 years

14. Cedarbrook Camp of Ohio at Stony Glen
    Madison, Ohio
    Type: Traditional, Religious
    Grades: 1-12

15. Common Ground Center Summer Camps
    Oberlin, Ohio
    Type: Traditional, Adventure
    Ages: 6-15 years

16. FACEtime Summer Camp at Cleveland Hearing & Speech Center**

Cleveland, Ohio
Type: Specialty (Disability Support)
Ages: 9-16 years

1. Falcon Camp
   Carrollton, Ohio
   Type: Traditional
   Ages: 6-16 years

2. Kids Summer Camp at LifeCenter Plus Health and Fitness Center
   Hudson, Ohio
   Type: Traditional
   Ages: 5-12 years

3. Red Oak Camp
   Kirtland, Ohio
   Type: Traditional, Horse
   Grades: 1-10

4. SMILE Summer Camp at Peak Potential Therapy
   Northfield, Ohio
   Type: Traditional, Therapeutic, Specialty (Disability Support)**
   Ages: 6-16 years

5. Thrive Summer Camp at Therapy & Wellness Connection*
   Brecksville, Ohio
   Type: Traditional, Therapeutic, Specialty (Disability Support)
   Ages: Children of all ages

Central/Southeast Ohio (including Columbus and Athens)

1. Camp Architecture and Design at Columbus Center for Architecture and Design
   Columbus, Ohio
   Type: STEM
   Grades: 3-8

2. Camp Echoing Hills***
   Warsaw, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 13-Adulthood

3. Camp Hamwi by the Central Ohio Diabetes Association**
   Danville, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 3-17

4. Camp Nuhop**
   Perrysville, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 6-29 years

5. Camp Oty'Okwa
   South Bloomingville, Ohio
   Type: Traditional, Adventure
   Grades: 2-12

6. Camp Wyandot
   Westerville and Hocking Hills, Ohio
   Type: Traditional, Adventure
   Grades: K-12

7. Day Camp and Kindergarten Enrichment at Enchanted Care Learning
   Greater Columbus Area, Ohio (7 locations)
   Type: Traditional
   Ages: K-6

8. Future Pastry Chef Camps at Our Cupcakery
   Dublin, Ohio
   Type: Specialty (Cooking)
   Ages: 8-14 years

9. IDEAS Summer Camps for Boys & Girls

   Columbus, Ohio
   Type: Traditional
   Grades: Preschool-8

10. RAW Camp at Rising Appalachia
    Millfield, Ohio
    Type: Adventure
    Ages: 6-17 years

11. Recreation Unlimited Camps***
    Ashley, Ohio
    Type: Traditional, Specialty (Disability Support)
    Ages: 5-Adulthood

12. Summer Camps and Programs at BalletMet
    Columbus, Ohio
    Type: Dance
    Ages: 4-8 years

13. Summer Challenge Day Camp at Central Community House**
    Columbus, Ohio
    Type: Traditional
    Ages: 5-13 years

14. Summer Experience at Columbus Academy
    Gahanna, Ohio
    Type: Traditional, Academic
    Grades: Preschool-12

15. Tennis Ohio at ACEing Autism**
    Columbus, Ohio
    Type: Sports
    Ages: 5-18 years

Southwest Ohio (including Cincinnati and Dayton)

1. Abrakadoodle Art Camps for Kids
   Greater Cincinnati, Ohio
   Type: Art
   Ages: 3-12 years

2. Aullwood Summer Earth Adventure
   Dayton, Ohio
   Type: Traditional, Adventure
   Grades: K-6

3. Camp Ashreinu
   Cincinnati, Ohio
   Type: Traditional
   Ages: 1.5 years-Grade 7

4. Camp Chabad
   Cincinnati, Ohio
   Type: Traditional, Religious
   Ages: 2 years-Grade 9

5. Camp-A-Palooza at Kids First Sports Center
   Cincinnati, Ohio
   Type: Traditional
   Grades: K-7

6. Cincinnati Reds Baseball & Softball Camps
   Various Locations in Central and Southeast, Ohio
   Type: Sports
   Ages: 6-14 years

7. Cincinnati Shakespeare’s Theatre Summer Camp
   Cincinnati, Ohio
   Type: Theatre
   Grades: 1-12

8. Dayton Live Creative Academy Summer Camp
   Dayton, Ohio
   Type: Performing Arts
   Grades: Preschool-12

9. Gorman Heritage Farm’s Summer Day Camp
   Evendale, Ohio
   Type: Specialty (Farm and Animals)
   Ages: 5-13 years

10. Great Parks Day Camps
    Cincinnati, Ohio
    Type: Traditional
    Ages: 3-15 years

11. Images of Afrika Summer Camp at Bi-Okoto
    Cincinnati, Ohio
    Type: Traditional, Culture
    Ages: Children of all ages

12. Museum Camps at the Cincinnati Museum Center
    Cincinnati, Ohio
    Type: Traditional
    Ages: 5-14 years

13. Ohio Sports Academy Summer Camps
    Springboro, Ohio
    Type: Sports
    Ages: 4-12 years

14. Saint Ursula Academy (SAU) Summer Academy
    Cincinnati, Ohio
    Type: Traditional
    Grades: 3-8

15. Summer Art Camp at the Taft Museum of Art
    Cincinnati, Ohio
    Type: Art
    Grades: 1-12

16. Summer Camps at Best Point Education and Behavioral Health*
    Cincinnati, Ohio
    Type: Traditional, Specialty (Disability Support)
    Ages: 4-25 years

17. Summer Camps at Green County Parks and Trails
    Xenia, Ohio
    Type: Traditional
    Ages: 3-13 years

18. Ursuline Academy Summer Camps
    Cincinnati, Ohio
    Type: Traditional
    Grades: 1-9

Northwest Ohio (including Toledo and Sandusky)

1. Bellweather Farm Summer Camps
   Wakeman, Ohio
   Type: Traditional
   Grades: 2-12

2. Brightside Academy Ohio’s Summer Camp Adventures for Kids

3. Capable Kids Summer Program

   Toledo, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 2 years-Grade 5

4. Courageous Community Services’ Courageous Acres*

   Whitehouse, Ohio
   Type: Traditional
   Ages: 5 years-Adulthood

5. Happy Camper Camps at St. Ursula Academy

   Ohio
   Type: Traditional
   Grades: K-8

6. Imagination Station Summer Camp

   Toledo, Ohio
   Type: STEM
   Ages: 6-13 years

7. Path Finders Camp

   Toledo, Ohio
   Type: Therapeutic, Specialty (Bereavement)
   Ages: 6-15 years

8. Scap4Art Summer Camp

   Maumee, Ohio
   Type: Art
   Ages: 6-12

9. Summer Art Camps at the Toledo Museum of Art

   Toledo, Ohio
   Type: Art
   Ages: 6-18 years

10. Summer Camps at the Notre Dame Academy

    Toledo, Ohio
    Type: Traditional
    Grades: K-9

11. SummerTime Camp at Maumee Valley Country Day School

    Toledo, Ohio
    Type: Traditional
    Grades: Preschool-12

12. Wolcott House History Summer Camp

    Maumee, Ohio
    Type: Historical
    Grades: 3-6

Online Summer Camps

1. Brain Chase: Summer Learning Challenge
   Type: Traditional
   Grades: 2-8

2. National Computer Camps Virtual Online Camp
   Type: STEM
   Ages: 8-18 years

3. STEAM Camps at MehtA+ Tutoring
   Type: STEM, Art
   Grades: 5-12

Please note that this list does not capture the endless opportunities for summer programming available to children. For more programs, be sure to check out your local YMCA, Jewish Community Center (JCC), Boys and Girls Club, Brightside Academy Ohio, Salvation Army, Easterseals, Girl Scouts, Boy Scouts, Camp Invention, Code Ninjas, Classroom Antics, Challenge Island, Snapology, college, university, zoo, or recreation center. Have an AWesome summer and stay safe!

Compiled by Renee Stromski, Esq.

Need help with your Special Education matter? Call us: 614-745-2001

EdChoice Scholarship Applications Now Open for the 2023-24 School Year to Cover Private School Tuition

The Ohio EdChoice Scholarship Program (“EdChoice”) has expanded its eligibility for 2023-24 allowing more students to attend private schools in the state. EdChoice provides state-funded scholarships to k12 students who:

• Are assigned to attend a “low performing” public school building;

• Whose family meets the income eligibility requirements (at or below 250% of the federal poverty guidelines);

• Have a sibling who previously received an EdChoice Scholarship;

• Previously received an Autism Scholarship or Jon Peterson Scholarship, but no longer need special education services; or

• Who are foster children.

(A more comprehensive list is available at the link below.)

Applications for the 2023-24 school year opened on February 1, 2023 and will remain open through the 2023-24 school year. Families must contact the private school they are interested in attending and complete the enrollment process for that school. The selected private school must be an EdChoice-participating school. Once accepted for enrollment at the private school, parents may apply for the scholarship directly through the school.

The scholarship amount is currently $5,500 for grades k-8 and $7,500 for grades 9-12. EdChoice will pay either the full scholarship amount or the private school’s actual tuition amount, whichever is less. If the tuition amount is more than the scholarship, families are responsible for the difference, but only for families with a total gross income at 201% or higher of the federal poverty guidelines.

Click HERE for a list of low performing public schools, participating private schools or to learn more about EdChoice.

Written by Mark Weiker, Esq. of Abdnour Weiker, LLP

Questions? Call us! 614-745-2001

What Can You do to Get the Most Out of Your Child’s IEP Meeting?

There is no denying that IEP meetings can be overwhelming and oftentimes, you go into them unprepared and leave feeling exhausted. However, this does not have to be the case. Below, I will list some tips that will help you get the most out of your child’s IEP meeting and ensure that you are able to meaningfully participate from start to finish.

What to do before the IEP meeting

Once the IEP meeting is scheduled, you need to get to work. To best prepare for the meeting, you need to gather your child’s most recent multifactored evaluation and progress reports from the last year. Also include your child’s grades. If you have received correspondence from your child’s teachers that document difficulties or successes, print those off and include them in your review.

Next, ask your child’s intervention specialist for a copy of the IEP draft at least one week beforehand. Make sure that your request is in writing. While not every school district is required to provide a draft copy of the IEP before the meeting, almost all districts do when asked.

Now that you have your documents to review and a draft copy of the IEP, it is time to get to work. When looking through the ETR, look closely at the educational needs section in all individual evaluators’ pages and the team summary. These areas of need should be reflected in the IEP somewhere. Most often, these needs will be transferred into goals and accommodations, but sometimes, the need may be listed in the profile if it is determined that a goal or accommodation is not necessary. If you do not see a need reflected in the IEP somewhere be sure to write it down so it can be addressed in the meeting. The progress report can guide you in determining if the goals written in the draft are appropriate based on your child’s progress on previous goals. Lastly, your child’s grades, work completion, and teacher notes can be helpful in developing services. Be sure to write everything down that you have questions or concerns about and send that list to the intervention specialist before the meeting, even if it is the morning of the meeting. This will ensure that everyone is on the same page, allow them to prepare, and highlight your concerns in the meeting.

What to do during the meeting

Meeting day has finally arrived. While having some anxiety about the meeting is normal, your preparation will help you feel more comfortable and confident in your approach. Take some deep breaths if you feel yourself getting elevated or upset and ask for a break if one is needed. If you have brought someone with you to the meeting, use a break to talk through questions you have with that individual.

Do not be afraid to ask questions or ask someone to clarify what has been discussed. It is easy for school staff to talk over you or to you but forget to include you in the conversation. Take notes while going through the meeting and jot down questions you have so you do not forget them. At the end of the meeting, ask the team those questions. If you were not able to talk through everything in the time allocated for the meeting, ask for a follow-up meeting. Make sure that you leave that IEP meeting feeling like a valued member of the team who was able to fully participate.

What to do after the meeting

After you have been able to process what was discussed during the meeting, follow up with team members if you have any additional questions or concerns. Sometimes, it takes a little bit of processing to fully grasp everything that went on. You should receive a Prior Written Notice and a copy of the IEP a day or two after the meeting, sometimes a little longer, but if you have not received these documents by a week after the meeting, be sure to ask for them. Read the IEP and make sure it is accurate and captures all changes discussed during the meeting. Additionally, read the Prior Written Notice to verify the accuracy of the events.

If the Prior Written Notice is not accurate, is misleading, or leaves out important information, you can email your account of what occurred and ask the school team to include your feedback with theirs. You can also ask that the team make changes to the Prior Written Notice to correct any errors. Store these documents in an electronic file or a physical file for your records. Continue to collect pieces of data that you receive throughout the year, including progress reports, to be prepared for next year’s IEP review. You've got this!!

Authored by Danielle Randolph, M.Ed, Ed.S, Advocate for Abdnour Weiker, LLP

Questions? Call us: 614-745-2001

TRUANCY EXPLAINED

As parents of school-age children, we know that children need to attend school on a consistent basis to facilitate learning and thriving.  There is also a legal component to a child’s school attendance of which parents should understand the process, procedure, and rules.  The following will lay out and explain truancy and the rules surrounding it in effort to provide parents, guardians, and caregivers a better understanding of the requirements and procedure. 

Pursuant to Ohio Revised Code §2151.011 (B)(18), a “habitual truant" is any child of compulsory school age who is absent without legitimate excuse for (1) 30 or more consecutive hours, (2) 42 or more hours in one school month, or (3) 72 or more hours in a school year.  Once a student reaches one of these thresholds, the school is legally required to work with the student and their family in effort to rectify the reasons for the absences. 

At the outset, it should be noted that a school cannot suspend or expel a student solely on the basis of habitual truancy.  Moreover, a school cannot file truancy charges prior to implementing an Absence Intervention Plan.  These two facts are meant to hopefully put a parent or guardian’s mind at ease that simply because a student has enough absences to meet the truancy threshold, it does not mean that the student will immediately face charges in juvenile court.

Absence Intervention: Initial Requirements and Timeline[1]

As a matter of procedure, Ohio law requires that before truancy charges are filed, a school must work with the student and their family to address the reason(s) for the absences.  Additionally, the Absence Intervention Team, which includes the student, family, and school staff, must create an Absence Intervention Plan (“AIP”).  The team develops a student-centered AIP that will help identify specific barriers and solutions to attendance.  In terms of initial steps following the triggering absence, Ohio law requires that the school meet several deadlines.  Within seven days of the triggering absence, the school must create an Absence Intervention Team and make three meaningful attempts to obtain the participation of the student’s parent or guardian.  Within ten calendar days of the triggering absence, the student must be assigned to their Absence Intervention Team.  Within 14 days of the team’s creation, the team must develop the student’s AIP.  Following the creation of the AIP, the school district has seven calendar days to make reasonable efforts to provide written notification of the AIP to the parent or guardian.  The student then has 60 calendar days to participate and make satisfactory progress on the plan.

Filing Truancy Charges

If the student does not participate or make satisfactory progress on the plan, the attendance officer must file a complaint in juvenile court against the student on the 61st calendar day after the implementation of the AIP.  Whether there has been satisfactory participation or progress on the part of the student is determined by the Absence Intervention Team.  Generally, filing charges is a last resort for the school district.  However, once the 61st day is reached and there has been insufficient improvement, the attendance officer has no choice and is legally required to file a truancy complaint.

Although the general time frame is 61 calendar days, if a student is absent without a legitimate excuse for 30 or more consecutive hours or 42 or more hours in one month, the district attendance officer is required to file a truancy complaint.  This rule does not apply, however, if the team has found that the student has made sufficient and substantial progress on the AIP.  Thus, this rule has more flexibility than the 61st day rule.

What happens when charges are filed?[2]

Once truancy charges are filed, the parent or guardian will receive a summons in the mail identifying the charge as well as an initial court date.  Depending upon the county, the case may get sent directly to a diversion program if the student is a first-time offender.  If the student is sent to diversion, the student and the parent or guardian will meet and work with a diversion officer to identify the barriers to attendance as well as create a goal sheet to focus on improving attendance.  The benefit of diversion is that if a student successfully completes their goals, the charge will be removed from their record.  If the child goes to court on these charges, the possible consequences can include probation, community service, court-ordered counseling, loss of a driver’s license, and fines. 

Franklin County: Truancy Intervention Prevention Plan (TIPP)[3]

Franklin County Juvenile Court currently has a grant-funded Truancy Intervention and Prevention Program (TIPP) which has the goal of preventing truancy even before the need for an AIP.  TIPP Truancy Officers partner with participating local school districts to enforce attendance laws and also work with students in a school setting to monitor attendance.  This program is one more way to hopefully prevent students getting to the point of habitual truancy that several local school districts, including, Canal Winchester Local Schools, Gahanna-Jefferson Public Schools, Groveport Madison Schools, Hilliard City Schools, New Albany-Plain Local Schools, Reynoldsburg City Schools, South-Western City School District, are utilizing.

Conclusion

The prospect of truancy charges being filed against your child is a scary and unnerving place to find oneself as a parent or guardian.  It is important to understand what a school district is required to do prior to filing such charges, but also when they are required to file such charges.  It is best to maintain open communication with the school district during the AIP process in order to help support the attendance of the student and hopefully avoid ending up in juvenile court.

[1] https://education.ohio.gov/Topics/Student-Supports/Attendance-Support/Ohio-Attendance-Laws-FAQs#FAQ4883

[2] https://www.ohiobar.org/public-resources/commonly-asked-law-questions-results/education/parents-must-take-responsibility-for-truant-students/

[3] https://drj.fccourts.org/DRJ.aspx?PN=School_Truancy.htm

Authored by Amy Solaro, Esq. of Abdnour Weiker, LLP

Questions? Call us: 614-745-2001

Making the Most of Progress Reports for Special Education Students & Families

It’s that time of year again…the end of the grading period. As many of us know, having lived through it, students receive report cards with their grades at the end of each marking period (typically at the end of each quarter of the school year). At the same time, special education students will be receiving their individualized education plan (“IEP”) progress reports, as these reports must be distributed any time a grade card or interim is issued.  IEP progress reports measure student progress towards meeting their IEP goals. For many parents of students with special needs, receiving their child’s first progress report of the school year can be daunting. Not only is there a lot of information to digest, but the traditional anxiety of wondering whether your child is making progress in their education adds in to create a stressful experience.

Progress reports can be difficult to digest because there is a great deal of information provided within just a few pages. However, each piece of information is important in understanding your child’s success in their educational placement. Progress reports must contain the child’s annual goals, each goal’s objectives, and a summary of the measurable data used to access the student’s progress. Progress, in the form of measurable data, must be reported on each separate objective. For the most accurate representation of the student’s abilities, there should be at least three points of data for each objective. These data points may be called “inventories” on your progress report and tell the parent how the child has performed this marking period. The data point marked as “baseline” indicates where the student started. It is imperative that the child’s baseline data be provided in the progress reports in order to appropriately gauge the student’s progression and/or regression. From there, a parent or guardian can compare the student’s baseline data to their current data to evaluate their progress. It is important to remember to ensure that the measurement being used to monitor the student’s progress is the same measurement that is written in the IEP.

Progress reports must also include comments from the intervention specialist and/or related service provider collecting the data, and a description of the child’s progress toward meeting each goal in measurable terms and in clear, concise language. The comments from the intervention specialist should include the number of times your child was assessed and the manner in which your child was assessed, such as the time of day they were assessed and whether they were assessed in a one-on-one or small group setting. Any specific issues that may have impeded the student’s progress, such as excessive absences or refusal to participate, should be noted in the progress report as well. It is typical to see more information under each objective rather than under the annual goal itself; this is because the student is working toward meeting each objective in order to reach the overall goal. All of this information is provided to the parent in order for the parent to determine whether their child is making adequate progress in their education.

What is adequate progress, anyway? Well, it is unique to each student, given that each student’s IEP goals should be specifically tailored to the child. However, we can utilize the baseline, inventory, and target data to evaluate the student’s performance. For example, a student’s goal may be to decrease time spent demonstrating unexpected negative behaviors for less than fifteen minutes a day. That student may have had a baseline of demonstrating unexpected negative behaviors for 45 minutes a day. We can look at the inventories of measurable data to determine whether the student’s time spent demonstrating unexpected negative behaviors have decreased. At the end of the school year, the student is demonstrating unexpected negative behaviors for 20 minutes each day. The student did not meet their goal but was able to decrease their time by a significant amount, which is considered adequate progress. On the other hand, if that student was demonstrating behaviors for 70 minutes a day at the end of the school year, a movement from the baseline further away from the target, the data is showing regression. Parents should look at their child’s progress on each objective, as well as the overall goal, to determine whether their child is making appropriate progress.

What are the next steps that a parent can take after receiving an unfavorable progress report? Parents always have the right to call an IEP meeting at any time during the school year. If the student is not making adequate progress toward their goals, parents can use the data provided by the school to write new, more appropriate goals for the student. The Individuals with Disability Education Act (IDEA) states that the school must revise an IEP to “address any lack of expected progress toward annual goals.” Alternatively, if the student has regressed, parents can use this data to advocate for extended school year (ESY) services to combat regression of skills.

Although progress reporting periods can be a stressful time for families with students with special needs, parents can be assured that the flexible nature of an IEP will allow them to make necessary adjustments at any time. As a parent, advocating with our emotions can lead to further disputes with the school. However, advocating for your child with solid data can open the door to endless possibilities for appropriate special education services.

Written by Renee Stromski, Esq. of Abdnour Weiker, LLP

Questions? Call us! 614-745-2001

Parents: Three Steps to Take to Minimize the Impact of the Columbus City Schools Labor Strike on Your Children

Parents: Three Steps to Take to Minimize the Impact of the Columbus City Schools Labor Strike on Your Children

On Sunday, August 21, 2022, the members of the Columbus Education Association (“CEA”) voted overwhelmingly to go on strike, the first in the district since 1975. Classes are scheduled to begin on Wednesday, August 24. The Columbus City Schools Board of Education (“BOE”) has adopted an Alternative Opening Plan should the strike continue through the first day of school. 

Here are three important steps to take to minimize the impact to your child: 

• Send Them to School, Even if it’s Online. The Columbus City Schools BOE has adopted an online learning plan using substitute teachers should the strike continue. Regardless of how you feel about the strike, you should review the Asynchronous Learning Plan in advance. Be sure to look up the schedule and assignments and prepare your child(ren) to attend and complete those assignments when school starts on August 24. Importantly, sending your children to school does not indicate support for either the BOE or the union. Sending your children to school is also not considered “crossing the picket line,” a term that historically applies to employees reporting to work while their fellow union members are on strike. 

• Make it a Teachable Moment. Everyone retains information better when we experience it. While the strike is an unfortunate reality, you can also use it as an opportunity to explain the nature of the debate, as well as the history of labor strikes in the U.S. This is made much easier with YouTube videos like “The Labor Movement in the United States” and “A Brief History of Labor Unions,” among dozens of other online resources just for students. 

• Document Missing Services, Especially for Students with Disabilities. If your child receives specialized supports or services through an IEP or 504 Plan, you should record, in detail, exactly what accommodations, supports and services were not provided. The BOE’s obligation to provide an appropriate education to students with disabilities does not go away during a strike or because the curriculum is being delivered online. The BOE should provide access to live substitute therapists, private therapists and/or alternative placements for students who cannot learn or receive services online. Recording this information will help you recover any missed services later, which can be accomplished through an IEP meeting, mediation or by filing a written or due process complaint with the Ohio Department of Education. 

Authored by Mark Weiker, Esq. at Abdnour Weiker, LLP

Questions? Call us. 614-745-2001

HELP! I need to call a lawyer.

5 Things You Need to Know Before Contacting an Attorney 

1. Understand Your Deadlines & Call as Soon as You Have Them 

   If you only need to respond with your intent to appeal, do so as soon as possible to start the process. For K12 items, this can generally be done via email to your child's school principal's office. You can have an attorney do this for you should you consult and retain them within the deadline to submit your intent to appeal. 

   If you have a hearing scheduled or need to submit an appeal, contact a lawyer several days in advance of this deadline, if not at least a whole week prior. 

   If you have an interview or investigation meeting, follow the same advice as if this was a hearing or appeal submission and contact a lawyer ASAP. 
   

2. Documentation – Keep it Handy, But Share What is Requested 

   It is always helpful to keep all communications with your employer, school, university, an adverse party, etc., safe and secure. Attorneys will often request specific documents, i.e., IEPs, suspension notices, and ODE letters, so do have those ready to send. 

   As far as other communication goes, you can send these items to the firm you are contacting after scheduling a consult, though keep in mind that attorneys often will not have time to read each article in its entirety. 

3. Have a General Understanding of Your Goals for Contacting an Attorney 

   In many cases, your objective to remedy your situation is clear, getting your child re-enrolled in school, appealing a court decision, getting assistance through a hearing, etc. However, you may feel a more general sense that an injustice has occurred, and you would like to see action taken. In either situation, it is best to gather a sense of your goals as a client to effectively communicate to an attorney’s office what type of assistance you need. Even a brief list of goals will be enough to have a successful initial consultation. 

4. The First Person You Talk to at Their Office is Likely Not an Attorney (and They Did Not Do the Bad Thing to You) 

   This person, often an office administrator or intake coordinator, is here to answer questions about the firm you are contacting and create your file as a client. They will typically need to walk through a list of questions for their intake process and will likely have information to share with you about what that process entails.  

   Please keep in mind that they are the liaison between you and the attorney. They cannot control your case's outcome, answer any legal questions, or provide a remedy for the situation outside of getting you in touch with an attorney. 

5. Retainers, Flat Fees, Contingency Defined 

   While many attorneys operate on a retainer fee structure, the most well-known payment structure is often referred to on billboards and commercials as "you don't pay unless we win." To distinguish the former from the latter, here are some general definitions of typical payment structures that lawyers utilize: 

   Retainers - A fee that the client pays upfront to an attorney to commence representation, which is held in trust until the attorney works on/earns the fee. With each piece of work that the attorney does, that balance will deplete. 

   Flat Fees – A fee paid upfront to cover all work that the attorney will perform. This is a fixed amount and is generally non-refundable. 

   Contingency – The lawyer or firm only receives compensation if they successfully represent the client. Commonly known as "pay if we win." 

* Please Note: The Concept of "Wins" *

Many people seeking an attorney will want to know, "what is your firm's 'win-rate' or 'record?'" Frankly, that metric is not typically logged or measured as it is difficult to assess what a "win" is, given how different each client's goals usually are. Thus, keep in mind that many offices will not have a straightforward response for this as there is not a straightforward answer in many cases. 

Relief Has Been Denied in Most Anti-Masking Lawsuits Against Schools

Over the last two years, Ohio school boards have become a lightning rod for citizens to unload their personal and political thoughts on almost everything pandemic related. From virtual learning to masking to quarantining, school boards have absorbed the diverse and sometimes raucous opinions of their constituents. Outcomes in recent lawsuits suggest that courts are largely unwilling to interfere with the discretion of school boards to make unpopular decisions.

Montgomery County Schools Cases

In September 2021, the U.S. District Court for the Southern District of Ohio in Dayton dismissed three separate lawsuits brought by pro se parents against three different Montgomery County Schools (Huber Heights City Schools, Mad River Local Schools and Northmont City Schools). The parents each alleged that the schools’ policies requiring masks were a violation of their children’s constitutional rights. The dismissals by the Court were not based on the merits of the claims, but rather on a rule prohibiting parents from filing pro se claims in federal court on behalf of their minor children.[i] The Court held that, “the rule against non-lawyer representation protects the rights of those before the court by preventing an ill-equipped layperson from squandering the rights of the party he purports to represent.”[ii]

Chillicothe City School District Case

On Nov. 1, 2021, four parents filed a lawsuit against the Chillicothe City School District and school administrators alleging that the school’s policy requiring masks was “arbitrary, capricious and based on ignorance due to failure to inquire into facts.”[iii] The parents’ pro se claims brought on behalf of their minor children were dismissed sua sponte by the Court for the same reason as those in the Montgomery County cases, while claims brought by the parents on their own behalf survived. Nonetheless, the parents’ request for a Temporary Restraining Order (TRO) was denied because the parents “[had] not shown that they [were] likely to succeed on the merits of the remaining claims or that irreparable injury would accrue from denying the motion.”[iv]

In addition to the Chillicothe case, at least two other cases included requests for a TRO by parent-plaintiffs, and the courts denied the requests in both cases.

Mayfield City School District Case

In September 2021, a parent in the Mayfield City School District sought a TRO against the school district because the school board was attempting to institute a mask requirement.[v] The parent argued that the mask mandate caused “immediate and irreparable harm” to students, staff, and the general community.[vi] The parent also alleged that the mandate was a violation of her daughter’s constitutional rights and impeded on her daughter’s fundamental right to a public education.[vii]

The Court denied the motion for TRO because the parent failed to meet the necessary elements, finding that masking did not impede on the student’s ability to attend school. The Court also found that there was likely no chance of irreparable harm to the plaintiff’s daughter or other minors should the mask mandate be allowed to stand.[viii] Notably, the Court identified that, “the mask mandate was implemented to prevent serious injury, illness, and death in the District and broader community…[and] the risks associated with not wearing a mask in public schools are well-documented and supported by scientific evidence.”[ix]

Forest Hills Local School District Case

In another case filed in September, a plaintiff in the Forest Hills Local School District took issue with the meeting in which the school board adopted the mask policy. The plaintiff alleged a violation of the Open Meetings Act[x] and sought a TRO preventing the school board from enforcing the mask requirement.[xi] The Court denied the relator’s request for a TRO after holding a conference with the parties.[xii] After the TRO was denied, the plaintiff filed an affidavit to have the judge disqualified due to the judge’s comments at the conference, but the Ohio Supreme Court determined that the judge was not prejudicial.[xiii]

Hudson City School District Case

A more recent case was filed by three parents in the Summit County Common Pleas Court on Jan. 10 against the Hudson City School District. The parents sought injunctive relief prohibiting the school district from enforcing masking and quarantine rules absent a health department order, among other requests for relief. As of February 7, 2022, no hearing on injunctive relief has been scheduled or held, and no such relief has been ordered by the court, although the case is still pending.

While some case dismissals have been procedural, and others are only denials of immediate injunctive relief, the outcomes to date indicate a reluctance on the part of Ohio courts to disrupt the difficult decisions made by local boards of education—at least when it comes to masks.

[i] See P.G. v. Huber Hts. City Schl Dist., 3:21-cv-257 (S.D. Ohio, Sept. 23, 2021), citing Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002).

[ii] Id., citing Bass v. Leatherwood, 788 F.3d 228, 230 (6th Cir. 2015).

[iii] Wettersten v. Chillicothe City Schl. Dist., 2:21-cv-5187 (S.D. Ohio, Nov. 1, 2021).

[iv] Id.

[v] P.M. v. Mayfield City Sch. Dist. Bd. of Educ., No. 1:21 CV 1711 (N.D. Ohio, Sept. 13, 2021).

[vi] Id. at 2.

[vii] Id.

[viii] Id.

[ix] Id. at 4.

[x] Doe v. Forest Hills Loc. Schl. Dist., A-2102899 (Hamilton Cty., Aug. 18, 2021) (documents sealed).

[xi] In Re Disqualification of Jenkins, No. 21-AP-114, ¶¶17-18 (Sep. 22, 2021).

[xii] Id.

[xiii] Id. at 2.

Mark Weiker, Esq., Abdnour Weiker, LLP

Lawyers4Students.com

Homework Helper: Reading and Math Tips

The new school year is upon us and kids are going back to in-person learning. That means that your children will have homework to tackle when they get home. Here are some easy ideas to make homework time less stressful for you and your kids.

• General Tips

  • Make sure your child has a quiet, well-lit place to do their work.

  • Make sure the materials your child needs (i.e. paper, pencils, dictionary, etc.) are readily available.

  • Establish a set time each day for doing homework and don’t let your child leave homework until just before bedtime.

  • Have a positive attitude toward school and avoid talking negatively about homework.

  • When your child asks for help, provide guidance, not answers.

  • Have your child do the hard work first when they are most alert.

  • Allow your child to take a short break if he or she becomes frustrated but give him or her a set time that schoolwork should resume.

  • If your child has been successful in work completion and is working hard, reward their effort.

• Reading Tips

  • Have your child read aloud to you every day.

  • Choose a quiet place, free of distractions, for your child to do his or her reading assignments.

  • Ask your child to tell you in his/her own words what happened in the story.

  • Before getting to the end of a story, ask your child what he/she thinks will happen next and why.

  • When your child reads aloud to you and makes a mistake, point out the words that were missed and help him or her read the words correctly.

• Math Tips

  • If you don’t understand your child’s math assignments, engage in frequent communication with his or her teacher.

  • Follow the progress your child is making in math and check with her/him daily about their math work.

  • Try to be aware of how your child is being taught math, and don’t teach strategies and shortcuts that conflict with the approach the teacher is using. Ask the teacher about online resources that you can use with your child at home.

Remember, it is okay to make changes to your daily schedule if one day is simply an “off day.” If at any point in time you need assistance or need clarification on an assignment, do not hesitate to reach out to your child’s team.

Public schools with "mask optional" policies risk losing immunity.

A. The Choice

Boards of education in Ohio have been placed in a tough position to start the school year. Boards have been forced to choose whether to require masks for their students and employees. Schools were placed in this position because the state legislature effectively removed the power of the Governor and the Ohio Department of Health to issue mask mandates (and most other related health orders). 2021 Sub.S.B.  No. 22.

With this authority removed, the Ohio Department of Health can now only “recommend” that schools require masks for the upcoming school year. See, COVID-19 Health and Prevention Guidance for Ohio K-12 Schools, Ohio Department of Health (Rev. July 26, 2021). Some local health departments have more recently heightened this to “strongly recommend” full masking of all students since infections associated with the Delta variant have increased, just in time for the start of the school year. Mask Advisory Issued for All Residents Indoors Regardless of Vaccination Status, Franklin County Public Health Advisory (August 5, 2021).

The response by boards of education at public schools has been mixed. Some boards of education have appreciated the risk to students and employees articulated by local health authorities and have adopted a full masking requirement for the start of the 2021-2022 school year. Other boards have recognized the potential for an increased risk for the unvaccinated, including those age 11 and under who do not have access to a vaccine, and opted to require masks for everyone at the elementary level.

A surprising number of boards have opted for a completely voluntary mask policy, perhaps because they believe masking is a purely personal decision, or that the risks articulated by health departments and federal agencies are overstated. There’s been some healthy (and unhealthy) debate surrounding the issue, which has included a variety of reasons for schools opting to go “mask-optional.”

B. Sovereign Immunity; Exceptions Allowing Claims

One reason that boards may feel confident in adopting a mask-optional policy is because boards of education enjoy state sovereign immunity for decisions made in the exercise of their governmental functions. R.C. 2744.02(A)(1). School employees enjoy similar immunity for decisions made within the scope of their duties. R.C. 2744.03(A)(6).

Importantly, however, sovereign immunity is not absolute and the decision to go mask-optional could expose a school board--or a school employee recommending such a policy--to an increased risk of liability.

To begin, sovereign immunity does not apply to contract claims, claims that arise from an employment relationship with the school, or claims brought by an employee related to his or her “conditions…of employment.” R.C. 2744.09(A)-(C). Sovereign immunity also does not apply to “civil claims based upon alleged violations of the constitution or statutes of the United States.” R.C. 2744.09(E).

Therefore, one could easily imagine a teacher or other school employee asserting a claim that the employment agreement has been violated due to a voluntary masking policy in a pandemic, or that the conditions of employment have been improperly altered, making the employee more vulnerable to infection. Such a claim could be bolstered by high infection rates in any given school or by the fact that most school districts in the state required masks for all students and staff just last school year.

Sovereign immunity could also be side-stepped by any aggrieved party by asserting a claim under a federal statute or the U.S. Constitution. The federal statute possibilities are numerous, but the Americans With Disabilities Act would be one leading example, as this law requires reasonable accommodations to be made for students and employees with disabilities. 29 C.F.R. Part 1630, et seq. Other claims could come through the “state-created danger” theory under the Fourteenth Amendment of the U.S. Constitution, especially given that school-age children in Ohio are required by law to attend school. See, DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989)("[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being”); see also, R.C. 3321.01(A)(1)(compelling students in Ohio to attend school).

Further, while school employees (such as superintendents and principals) enjoy immunity protections similar to those provided to boards of education, this immunity does not apply where “the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” R.C. 2744.03(A)(6)(b). So, depending on the specific circumstances surrounding a risk of infection, or an actual transmission of the virus, there could be individual liability for school employees for school-level decisions that ignore a known risk, assuming the decision could reasonably be considered reckless, in bad faith or malicious.

In sum, there are very plausible exceptions to sovereign immunity for mask-optional policies.

C. Additional Immunity for Covid-Related Claims; Similar Exceptions

Notably, the Ohio legislature provided schools with another layer of immunity for Covid-related claims in 2020 with House Bill 606. This was signed by Governor DeWine on September 14, 2020, and provides in pertinent part:

No civil action for damages for injury, death, or loss to person or property shall be brought against any person [including schools and state institutions of higher education] if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof. 2020 Am.Sub.H.B. No. 606, §2(A).

However, an exception to this law exists for reckless and intentional conduct, very similar to the exception for sovereign immunity above. Immunity under H.B. 606 does not apply if, “it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person [or school] against whom the action is brought.” Id. "Reckless conduct” is defined in the law as:

Conduct by  which, with heedless indifference  to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, any of those viruses or mutations. Id., §2(D)(3).

To be sure, the same law prevents health orders and recommendations from being introduced as evidence in tort actions. Id., §2(B). Even so, the infection rates and/or exclusion of students from the classroom because of necessary quarantining could be enough to prove that any given school district violated a duty of care to its students or employees, and that the act of implementing a mask-optional policy was reckless. This is especially true where a school continues with a mask-optional policy despite an ongoing or increasing risk.

Finally, the immunity under house Bill 606 is temporary and is due to expire on September 30, 2021, unless it is extended by the legislature. Id., §2(E).

In sum, the immunity laws that boards of education, superintendents and principals may be relying upon may not be as strong as they think when they adopt a district-wide mask-optional policy. While the decision is within a board of education’s discretion, it should be made with caution and an understanding of this exposure.

Mark Weiker, Esq., Student and Educator Rights Attorney, Abdnour Weiker, LLP

www.Lawyers4Students.com

Compensatory Education & Recovery Services

Compensatory Education & Recovery Services: COVID-19 CONSIDERATIONS FOR STUDENTS ON IEPs & 504 Plans

On March 12, 2020, Governor DeWine ordered all of Ohio’s public, community and private K-12 school buildings to be closed due to the ongoing coronavirus health crisis. If a school district closed to prevent the spread of COVID-19 and did not provide educational services to the general student population (whether via in person or virtual instruction), then the district was not required to provide services to students with disabilities during that time period.

However, once schools resumed, the district, to the greatest extent possible, was required to make every effort to provide special education and related services to the child in accordance with their Individualized Education Program (IEP) or 504 Plan.[1] Schools had a lot of flexibility in how to provide these services to students throughout the pandemic, but ultimately, the requirement for schools to provide Free Appropriate Public Education (FAPE) to students receiving special education services was not waived due to the COVID-19 pandemic.

COMPENSATORY SERVICES

Although compensatory services (also called compensatory education or comp ed) are not addressed in the Individuals with Disabilities Education Act (IDEA) or other federal or state regulations, most state education agencies have released guidance surrounding compensatory education as well as the potential for recovery services that may be needed as a result of COVID-19 school closures. Compensatory services are educational services above and beyond what is normally due to a student, resulting from a failure of the school to provide those services under a child’s IEP or 504 Plan. The purpose is to place the student in the position they would have been in if the school had provided the appropriate services, or to “compensate” the student for learning and skills that were lost when special education and related services were not provided. Under compensatory services, there is no obligation to provide a minute-by-minute or day-for-day compensation for the time missed, although sometimes it is determined that missed services will be calculated by minutes or days and made up as an equitable remedy. However, in some cases, comp ed could be more than what was lost depending on the child’s circumstances as each situation should be determined on a case-by-case basis.

Recent case law has established that “whereas ordinary IEPs need only provide ‘some benefit’, compensatory awards must do more – they must compensate.” [2]However, since school building closures were due to a public health emergency, the typical framework used to determine whether or not compensatory services should be provided may not be appropriate under the circumstances, as most school districts did not outright fail to provide FAPE. Rather, they were unable to provide a Free Appropriate Public Education because of state-mandated school closures.

Notably, if the child with a disability was refused services by a school district or did not receive services or instruction during building closures while students in general education were receiving services, then actual compensatory services may be warranted.

RECOVERY SERVICES

As school districts begin to return to normal, most are planning on how best to meet and transition the needs of students who receive special education and related services during such an unprecedented time. Many states have announced recovery services or COVID-19 specific compensatory services, which refer to services determined by the IEP or 504 team needed to remedy a student’s skill regression, behavior loss, and/or lack of progress that resulted from a school district’s inability (not intentional failure) to provide FAPE during an unavoidable closure. Recovery services should be considered only after a period of recoupment is assessed. This occurs when a student receives the services set out in their IEP or 504 Plan for a set period of time once schools reopen, thus allowing them time to “recoup” the lost skills or behavior or to make progress to the level(s) determined appropriate by the IEP or 504 team prior to the extended school closure. If the student continues to show gaps in their learning and skills after this period, they may need additional supports and services to “recover” from the interruptions in the delivery of their services during COVID-19. Recovery services are also not defined in the IDEA but have been increasingly used to describe a school district’s response to the gaps in student learning caused by COVID-19 and the school closures beginning in the 2019-2020 school year. As with compensatory services, recovery services should be based on a child’s individual needs, assessments and progress documentation.

ESY SERVICES

Compensatory and recovery services are not the same as Extended School Year services (ESY). ESY services provide individual instruction and services to a child in order to prevent the severe or considerable loss of skills or learning during time outside of the regular school year. ESY services are not dependent on the appropriateness of services provided in an IEP or 504 Plan, and a child may be entitled to ESY services as well as compensatory or recovery services. These services may look similar in practice and delivery but should be made on an individualized determination based on what is necessary for the child to make meaningful progress in the least restrictive environment.

A child is not automatically entitled to compensatory, recovery or ESY services by virtue of state-wide school closures alone. Parents and guardians of children with disabilities should know the difference between these services to which their child may be entitled. School districts should never pressure families to waive special education services, including compensatory, recovery or ESY services. Families and schools should work together to determine what educational services will be provided based on the individual student’s needs. Ultimately, due to the nature of the shutdown resulting from a global pandemic, education agencies and courts will likely show deference to the emergency determinations made by school officials during this unprecedented time. Parents should regularly communicate with their child’s school and document these conversations about the potential for additional services related to COVID-19.

KEY POINTS/RECAP

• If a school district intentionally fails to provide FAPE to a child with a disability, they may be entitled to compensatory services.

• If a child with a disability tends to regress after long break periods, they may be entitled to extended school year services.

• If a school district was unable to provide special education and related services to a child with a disability during a school closure, and the child has not made progress in their learning after a period of recoupment, they may be entitled to recovery services.

• A child with a disability is not automatically entitled to these services due to COVID-19 school closures; rather, the determination of services should be made on an individualized basis by the IEP or 504 team.

• Compensatory, recovery and ESY services can be provided over an extended period of time but should be provided in the least restrictive environment for students receiving special education.

[1] 34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)

[2] Reid ex Rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005)

by Lauren A. Sabo, Esq., Abdnour Weiker, LLP

Questions? Contact us at (614) 745-2001

Updates on State Testing for Spring 2021: Ohio School Law

Does my child have to participate in spring testing?

We can all agree that 2020 was a year like we have never experienced before. The educational institutions tried their best to accommodate the changing situation and help support students the best that they could. One of those ways was to forgo the traditional state testing in the spring of 2020. As the new school year began and schools had a better plan in place for how they would educate our children, the state agreed to bring back the mandatory state testing but gave districts a lot of flexibility on when those tests would occur. This spring is no different.

Here are some facts from the Ohio Department of Education regarding the spring testing:

• Due to technology and test security requirements, there is no option to remotely administer state tests.

• Districts should prioritize safety while putting forth a good-faith effort to communicate with parents and students about the importance of assessments and the requirement to conduct testing on-site.

• Testing windows have been extended with many more options for districts to choose from. 

• No student should be retained for not meeting the promotion score or reading subscore on Ohio’s State Test for grade 3 English language arts unless the child’s principal and reading teacher decide otherwise. Meaning, the Third Grade Reading Guarantee has been changed for the 2020-2021 school year. 

• Federal and state laws require all districts and schools to test all students in specific grades and courses. There is no law that allows a parent or student to opt out of state testing, and there is no state test opt-out procedure or form. That being said, a parent can withdraw a child from participation in certain state tests, but there may be consequences for the student, the student’s teacher, and the school and district.

  • Districts and schools receive no credit when a student doesn’t participate in state testing. This can negatively impact a district’s state A-F report card grades.

  • Districts and schools cannot count students who do not take all required state tests in their average daily membership (ADM) for state funding.

  • Teachers will not have access to advanced diagnostic information from state tests, such as student growth projections, to help inform instruction.

  • A lack of state test scores can affect a student’s ability to graduate high school.

While I understand why a parent would not want to subject their child to a standardized assessment when the child’s learning has been significantly impacted this year, and mental health is a very serious concern for our kids, the school psychologist in me is telling you to let them take the test. Here is the thing, anxiety over these tests stems from the pressure that children feel to pass the test. That pressure comes from home and school. Take away the pressure and reassure your child that you could care less about their score. And when those scores do come home, put very little stock into what is on that paper. All our children have suffered one way or another this year and their educational progression has likely been impacted.  Be sympathetic to their situation. Listen and reaffirm their feelings. But I urge you not to remove this speedbump because when we are uncomfortable, but push on, we build character and resiliency. Our kids need to be resilient because there will be many moments in their lives when they will want to turn away from what makes them uncomfortable but doing so will stifle their personal growth.

Authored by Danielle Randolph, M.Ed., Ed.S., Special Education Advocate at Abdnour Weiker, LLP

Questions? Call us. 614-745-2001

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