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

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

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.

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

If you have questions about school discipline, or need representation, call us at 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.