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 Albeit 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 Albeit 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. 
• 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.  

2. 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. 
3. 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

Mark Weiker, Esq., Albeit Weiker, LLP

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.

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, Albeit Weiker, LLP

www.Lawyers4Students.com

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 Albeit 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

K-12 Students: 3 Things To Do If You (Or Your Child) Are Suspended or Expelled from School

Written by Mark Weiker, Esq. from Albeit Weiker, LLP; education law attorney focused on student rights & father of two.

Unfortunately, it remains the norm for primary and secondary schools throughout the country to use suspension and expulsion as a remedy for bad behavior, despite almost no evidence that removing students from the educational environment works to deter bad behavior or increase academic performance.  

To the contrary, data from the U.S. Department of Education, Office for Civil Rights indicates that even a single suspension increases the likelihood of future misconduct, and can lead to lower graduation rates and increased involvement in the juvenile justice system. So, it is an understatement to say that suspension and expulsion can be disruptive to a student’s education and social progression. 

In Ohio, suspensions and expulsions are allowed under state law. Out-of-school school suspensions may be issued for up to 10 consecutive school days. Expulsions (which, if issued, always follow a suspension) may be issued for up to 80 days for common rules violations, and up to one year for more serious offenses such as bringing a weapon onto school property or making a bomb threat. (Note that Ohio students in grades K-3 may only be suspended or expelled for these more serious offenses.) Permanent exclusion is also a possibility for students who commit very serious criminal acts. Suspensions and expulsions include complete removal of the student from the school environment.

If you or your child are facing suspension or expulsion, you should consider taking these steps to protect yourself and mitigate any negative impact to your or your child’s education:

#1 – Review the Notice Carefully 

You should first receive a Notice of Intent to Suspend/Expel, informing you of the alleged infractions, followed by an actual Notice of Suspension/Expulsion, notifying you that you have been suspended/expelled. Review the alleged infractions in the student handbook and in the school’s policies and compare the definitions for the infractions to what took place. Pay close attention to the appeal deadlines. This is a good time to contact an attorney if you plan to use one. 

#2 – Always Appeal 

You should appeal the suspension/expulsion, even if you’re not sure whether you plan to pursue the appeal. An attorney can appeal for you, but the deadline to appeal can be as short as 2-3 days, so you may need to appeal before you find an attorney. Make sure you submit the appeal in writing in accordance with the instructions on the notice. You are entitled to separate suspension and expulsion appeal hearings (if you are dealing with both), although you may ask to combine them if they would be redundant. An appeal hearing will be scheduled, usually within days. You can always request an extension in order to prepare for the hearing, gather records, obtain counsel, etc. 

The hearing will provide you a chance to explain your side of the story and submit evidence. You may also call witnesses to the hearing, although the process is less formal than court. Obviously, you need to prepare very well for your hearing, highlighting the reasons that you believe suspension/expulsion is not warranted. Your appeal can be withdrawn if you change your mind or determine that the suspension/expulsion is acceptable. 

#3 – Complete All Assignments While You Are Out of School

In Ohio, schools must give students at least 50% credit during an out-of-school suspension. The same is not true for expulsion. Nonetheless, during the pending appeal(s) and through any suspension/expulsion period, complete as much work as you can. Try to stay as current with your assignments as possible. The reasons for this are twofold: (1) this keeps you from falling too far behind academically during the appeal hearings and any imposed suspension/expulsion period, and (2) this indicates to the hearing officer(s) that you are both capable and motivated to continue learning. This can help you in your appeal hearing because you can argue that you are a contributing student who can seamlessly transition right back to the classroom environment. 

We hope you can avoid suspension and expulsion altogether. But, if you find yourself in trouble, taking these three steps will help to mitigate the negative effects of suspension/expulsion.

If you have questions about school discipline, or need representation, call us at (614) 745-2001. 

A Teacher's Guide to Beating First Week Jitters

It’s about that time of year again. The time when the specialty sections of Kroger and Target are stocked with rainbow bins, cartoon backpacks, and discount Crayolas. The time when you frantically fill your calendar with shopping trips, haircuts, and last minute summer fun. That’s right--it’s back to school season!

The bittersweet ending of summer brings up all sorts of questions for parents and students alike. 

What will the new teacher be like? 

What if they can’t figure out the new school building?

Will we have the same issues we had last year? 

Will my kid have any friends? 

Trust me parents, first week jitters are totally normal. Change is hard--especially when it involves your kiddos. Luckily, because of my job, I have learned plenty of ways to help keep yourself, and your kids, calm and help ease this (sometimes painful) transition back into school. 

1. For elementary school learners, spend some time reading stories about transitioning back into school. 

Children’s literature just keeps getting better and better. You can find all sorts of stories that model some of these trickier social situations (like going back to school) and use them as springboards for conversations with your kiddos. 

Here are some of my favorites! 

The Pout Pout Fish and David are both parts of larger series of books, so if your little ones fall in love with the characters, they’ll make for great stories to keep around the house. All of these titles can be found at your local library or on Amazon.

2. Start adding small parts of the school morning routine into your mornings. 

Whether you have a teenager who loves to sleep until 11 or an elementary student who is up at the crack of dawn, transitioning kids into a school routine can seem like a menacing task. Daycare schedules and babysitters are totally different than getting them dressed, fed, and out of the house by 7:30 am. 

Take some time to sit and process. Think about what you want your school morning routine to look like. Do you want them up by a certain time? Will they pack their own lunch or pick out their own clothes this year? What time will they need to be awake? What do you need to do and what do they need to do in order to have somewhat successful mornings?

Once you have your brainstormed list, pick one thing to begin working on now with your kids.  Slowly getting them used to the new routine will help alleviate some of those negative emotions and difficult transitioning that all kiddos go through. When they know what to expect, they will be able to relax (and so will you). 

One thing I love doing for my younger students is providing a visual schedule. Simply designing a little chart with pictures for each step of the morning routine can promote their independence and help reduce a lot of anxiety. I’ve also found visual schedules help with the constant questions like “Mommy, daddy, what’s next? What are we doing? When is breakfast? When are we leaving?” You know the drill. 

Here is an example of a super simple visual schedule you could use with your kids! Remember, these can be changed and personalized to meet the needs of students at all ages. 

3. Attend school open houses/other first week events 

If you’ve had your kids in school for a long time, open houses can feel mundane and boring--even pointless. But even though you know the schools like the back of your hand, your kids may not feel the same way. Meeting the teachers, walking through their schedule, and finding their locker (just to name a few) are all crucial steps for your child to feel comfortable, settled, and ready to take on their first day. 

Open houses are a great time for us teachers to get some ‘face time’ with you as parents to starting building the relationship you’ll need throughout the year. Starting off in a positive, low stress context is a much better foundation than waiting till that first phone call home about behavior. Also, teachers are ready to interact during events like this and have the time for a five or ten minute conversation--trust me, those chances to talk are few and far between during the school day--so take advantage of them now!

4. Figure out school transportation and start on the very first day

I have known so many parents who want their child to ride the bus but, on the first day, drive them to school. Now I know there is nothing that gets those likes like a first day of school picture, but trust me, put them on the bus and drive to school without them. Doing so helps cement their routines down and also helps alleviate any bus anxiety. If mom or dad is waiting at school for them, they will feel much more confident. 

If you have a teenager who will be driving for the first time, encourage them to take a test drive and find out about parking. High school lots can be a little complicated and a lot of schools require student parking passes within the first week. Knowing these answers will help your older child feel ready for their new found independence. 

5. Make the most of your last few weeks of summer 

It might seem counterintuitive, but so much of school readiness is based on what happens at home. These last few weeks are the perfect time to make some more memories with your children. Give yourself permission to have the water balloon fight, make the special treat, or do the messy art project. So much growth happens during the school year and the time right before it all starts is definitely special.

Trust me, when students come into school with a rich history of stories and experiences, it enhances their language and literacy skills. I know how hard it is to balance all the aspects of work and kids, but it will be so worth it. 

I hope you found these helpful and that you are ready to take on the year! 

P.S: if you are wanting to buy anything beyond those silly school supply lists, teachers will literally always request Ziploc bags, tissues, hand sanitizer, and wine ;)

Special thanks to Rachel Dalton, our guest AW Teacher Blogger!

Need Help with IEPs, student discipline defense, or school related issues? Call us. 614.745.2001.

Talking to Children About Terrorism

Written by Danielle Randolph, School Psychologist & AW's newest Student Advocate

In today's world, parents are faced with the challenge of explaining violence, terrorism and war to children. Although difficult, these conversations are extremely important. They give parents an opportunity to help their children feel more secure and understand the world in which they live. The following information can be helpful to parents when discussing these issues:

Listen to Children:

• Create a time and place for children to ask their questions. Don't force children to talk about things until they're ready.

• Remember that children tend to personalize situations. For example, they may worry about friends or relatives who live in a city or state associated with incidents or events.

• Help children find ways to express themselves. Some children may not be able to talk about their thoughts, feelings, or fears. They may be more comfortable drawing pictures, playing with toys, or writing stories or poems directly or indirectly related to current events.

Answer Children's Questions:

• Use words and concepts your child can understand. Make your explanation appropriate to your child's age and level of understanding. Don't overload a child with too much information.

• Give children honest answers and information. Children will usually know if you're not being honest.

• Be prepared to repeat explanations or have several conversations. Some information may be hard to accept or understand. Asking the same question over and over may be your child's way of asking for reassurance.

• Acknowledge and support your child's thoughts, feelings, and reactions. Let your child know that you think their questions and concerns are important.

• Be consistent and reassuring, but don't make unrealistic promises.

• Avoid stereotyping groups of people by race, nationality, or religion. Use the opportunity to teach tolerance and explain prejudice.

• Remember that children learn from watching their parents and teachers. They are very interested in how you respond to events. They learn from listening to your conversations with other adults.

• Don't confront your child's way of handling events. If a child feels reassured by saying that things are happening very far away, it's usually best not to disagree. The child may need to think about events this way to feel safe.

Provide Support:

• Don't let children watch lots of violent or upsetting images on TV. Repetitive frightening images or scenes can be very disturbing, especially to young children.

• Help children establish a predictable routine and schedule. Children are reassured by structure and familiarity. School, sports, birthdays, holidays, and group activities take on added importance during stressful times.

• Coordinate information between home and school. Parents should know about activities and discussions at school. Teachers should know about the child's specific fears or concerns.

• Children who have experienced trauma or losses may show more intense reactions to tragedies or news of war or terrorist incidents. These children may need extra support and attention.

• Watch for physical symptoms related to stress. Many children show anxiety and stress through complaints of physical aches and pains.

• Children who seem preoccupied or very stressed about war, fighting, mass shootings, or terrorism should be evaluated by a qualified mental health professional. Other signs that a child may need professional help include: ongoing trouble sleeping, persistent upsetting thoughts, fearful images, intense fears about death, and trouble leaving their parents or going to school. The child's physician can assist with appropriate referrals.

• Let children be children. They may not want to think or talk a lot about these events. It is OK if they'd rather play ball, climb trees, or ride their bike, etc.

Violence in the world is not easy for anyone to comprehend or accept. Understandably, many young children feel confused, upset, and anxious. Parents, teachers, and caring adults can help by listening and responding in an honest, consistent, and supportive manner. Most children, even those exposed to trauma, are quite resilient. Like most adults, they can and do get through difficult times and go on with their lives. By creating an open environment where they feel free to ask questions, parents can help them cope and reduce the possibility of emotional difficulties.

Credit: Talking To children about terrorism and war. (2011). American Academy of Child and Adolescent Psychiatry, 87.

Questions? Call us. 614-745-2001.

E+R=O: A Special Education Mindset

E + R = O: A Special Education Mindset

Fighting for an individualized and appropriate education

Let’s imagine you are not receiving progress reports on your child’s Individualized Education Plan (IEP). You have that parental instinct that something isn’t right. How do you stand up to district administrators, who are specifically trained in the field of education? Do you “let it go” and just hope everything works out? No! 

Urban Meyer led The Ohio State University Football Team to a National Title using this simple equation, E + R = O. The equation comes from the book Above the Line, coauthored by Meyer and Wayne Coffey. (Highly Recommended by #teamAW!) The book is not a focus on football, but on mindset and taking action. Which is what we need to do when advocating for our kids. Special Education is full of unexpected, emotional, and confusing events. From initial diagnosis to having a gut feeling that your child is not receiving the correct services to meet their individual needs. Now what?

It begins with a simple, powerful equation that affects everything we do.

EVENT: There are often unexpected, emotional, & confusing events

RESPONSE: Advocating for your child, by choosing your response

OUTCOME: Control of your child’s education is the outcome

The R factor is the most important. R is your response to the event that occurred at school, or your response to the feeling that your child is not thriving. Here are a few appropriate responses in the realm of Special Education:

1. Do your homework and research everything you can before walking into any meeting;

2. Understand the acronyms, and that an ETR and IEP can come down to semantics but have major consequences;

3. Be ready to justify what you are fighting for;

4. Be your child’s best advocate; sometimes you need help understanding, interpreting, and navigating the special education process. Whether it is you or you combined with an advocate for your child, make your response! 

In special education, the response can change the outcome of your child’s educational future. Advocate for your child. If you are told no, think of another response to control the outcome. 

Questions? Call us. 614.745.2001. We have the Special Education team to support you.

Changing Student Records

Parents and Students Have a Right to Request Amendment or Removal of an Education Record

Students ages 18+ and parents of students under age 18 have a right under federal law to request removal or amendment of inaccurate files contained in the student’s education record. The right exists under the Family Educational Rights and Privacy Act (“FERPA”) and it applies to students of all ages (pre-school to Ph.D.) who attend or attended schools that receive federal funding. This includes all public schools and many private schools.

Initial Request to Amend of Remove an Education Record 

If a parent or student believes an education record (including any disciplinary record or special education record) contains information that is inaccurate, misleading, or in violation of the student’s privacy, they must start by requesting that the school remove or amend the record. 34 C.F.R. § 99.20. Although not required, it is best to make the initial request in writing.

Under FERPA, the school must then decide, within a reasonable time, whether or not to amend the record as requested. If it complies with the request, the process ends.

If the school decides not to amend or remove the record as requested, it must notify the parent or student of its decision and also inform the parent or student that they have a right to a hearing on the matter. Id.

Required Hearing and Applicable Rules 

A school must provide a parent or student, on request, a hearing to challenge the content of the student’s education records on the grounds listed above. 34 C.F.R. § 99.21. The hearing must be held within a reasonable time following the request. The school must give the parent or student notice of the date, time, and place, reasonably in advance of the hearing. 34 C.F.R. § 99.22.

The hearing may be conducted by any person, including any school official, who does not have a direct interest in the outcome of the hearing. The school must give the parent or student a full and fair opportunity to present evidence relevant to the request for amendment or removal. The parent or student may be represented by an attorney at their own expense.

Following the hearing, the school must deliver its decision in writing within a reasonable period of time. The decision must be based solely on the evidence presented at the hearing and must include a summary of the evidence and the reasons for the decision.

Good Outcome: Written Notice That the File Will be Amended 

If, as a result of the hearing, the school decides that the information is inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it must: (1) amend the record accordingly; and (2) inform the parent or student of the amendment in writing. 34 C.F.R. § 99.21.

Bad Outcome: Right of Parent or Student to Place a Statement in the Record 

If, as a result of the hearing, the school decides that the information in the record is not inaccurate, misleading, or otherwise in violation of the student’s privacy, it must inform the parent or student that they may place a statement in the record commenting on the contested information or indicating why they disagree with the decision of the school, or both. Id.

If the parent or student provides a statement and the school places it in the student’s record, the school must: (1) maintain the statement with the contested part of the record for as long as the record itself is maintained; and (2) disclose the statement whenever it discloses the portion of the record to which the statement relates. Id.

What to Do When a School Refuses to Follow the Process

A parent of a student may file a written complaint with the Family Policy Compliance Office of the U.S. Department of Education regarding any alleged violation of FERPA. The Complaint form is available at http://familypolicy.ed.gov/complaint-form.

Questions? Call us! 614.745.2001