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 Charges1

            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 61^st 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 61^st 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/

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

Questions? Call us. 614-745-2001

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

Grade Appeals: 5 Tips for Appealing a Bad Grade

            December can be an exciting time for a college student. Exams are over and you can breathe knowing that you are out of school for a few weeks. But for some students, this time can be particularly stressful for one reason…grades. If you are unhappy with an assignment grade, exam grade, or overall course grade, you have options to address it. Below are 5 tips to keep in mind when appealing a grade, for both undergraduate and graduate students.

• Locate and review your school’s grade appeal policy. Regardless of the college or university you attend, they will have a written document outlining all of their academic policies and procedures. You can typically find these policies in your school’s Student Handbook. If you are a typical college student, you are probably not going to have a hard copy of the school’s policies sitting on your desk in your dorm room. However, a quick search on your college’s website should bring you right to it. It is important to note that while some schools refer to this specific policy as a Grade Appeal, others include this process as part of their general Academic Grievance policy. Lastly, your university may have slightly different Grade Appeal policies depending on your specific program. Be sure to locate the Grade Appeal policy that applies to your department.

• Pay attention to deadlines. This may seem like an obvious tip, but it is an important one. If you do not submit your Grade Appeal on time, you have likely lost your opportunity. Every college and university has a different timeframe for when a student must submit their Grade Appeal, and these deadlines can differ considerably. For example, Professional Skills Institute requires students to submit their appeal within five (5) days of receiving the grade. Capital University’s policy states that students must initiate the appeal procedure within eight (8) weeks of the grade being posted. In stark contrast, The Ohio State University requires a student to initiate the process before the end of the second succeeding semester. Because these deadlines range from a few days to several weeks after receiving the grade, it is important that as soon as you receive the grade that you want to appeal, identify those deadlines and submit your appeal within that timeframe.

• Be specific and include as much information as possible. When you are drafting your grade appeal, you will want to give a detailed explanation as to how your grade is incorrect. Maybe you and a partner worked on an assignment together, had the same answers, yet your partner received a higher grade. Maybe an assignment was recorded as not being turned in, yet you received feedback on it. Maybe certain exam questions were marked incorrect when they were, in fact, the right answer. Describe the assignment at issue and include why you should have received a different grade. The more detail and information you can provide, the better. Of course, be sure to submit your appeal to the person identified in the Grade Appeal policy.

• Be patient but do not be afraid to follow up. Once you submit your grade appeal, the hardest part begins…waiting. You may be asking, “how long do I have to wait before I hear back?” As you can guess, that depends on the school. Some colleges and universities require faculty to respond within a certain timeframe. For example, Professional Skills Institute requires the Campus Director to respond within five (5) days of receiving the appeal. However, many schools, including The Ohio State University, Capital University, and University of Toledo do not require faculty to respond to appeals within a specific time period. In that case, you may not receive a response for several weeks. This can be very stressful for students, especially if your status as a student depends on the outcome of the appeal. It is always beneficial to try to remain patient throughout this process. However, following up with the University every once in awhile can help ensure that your appeal has not fallen through the cracks.

• Appeal again. When you do finally receive a response from the college, you may not be happy with the result. In that instance, be sure to review your school’s Grade Appeal policy again. Many schools have policies that contain multiple steps in the appeal process. Capital University has four stages where students can attempt to address their grade first with the faculty member individually, second with the faculty member in a mediation, third with a committee, and lastly to the Provost. The University of Toledo has a five-stage appeal process, and The Ohio State University has a three-stage appeal process.

Please note that these various stages do not occur automatically if a student’s appeal is initially denied. Rather, the student must initiate the process at each and every stage. Students should also be sure to pay close attention to the deadlines at each stage of the appeal. While some universities do not require faculty to respond to a student’s appeal within a certain timeframe, they often require a student to then initiate the next stage in the process within a certain amount of days. Similar to the initial step, if you are past the deadline, you have likely lost your chance to take your Grade Appeal to the next stage.

Take advantage of your school’s multi-step appeal process if it exists. Students often feel defeated after their appeal is denied at the first stage. However, if the school has a multi-stage appeal process, you have the right to utilize that process. It does not hurt you to appeal your grade at every level. Rather, when your appeal is reviewed by different faculty members, it can result in a different outcome. Always be sure to appeal!

Written by Jessica Moore, Esq. at Albeit Weiker, LLP

Questions or need advice? 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 Albeit Weiker, LLP

Questions? Call us! 614.745.2001

What happens if my child is suspended (or expelled)?!

Appealing a school suspension or expulsion in Ohio: What parents should know about the laws on K-12 school discipline 

There are a few certainties in life. Death and taxes, of course. But equally as certain is the fact that our children will make mistakes. Sometimes those mistakes are made in school, where the consequences might include removal from school in the form of a suspension or expulsion. (For now, we will ignore the sad irony of a school removing a student from the educational environment precisely at the moment when a learning opportunity presents itself.) It is important for students and parents to understand what rights exist for students facing suspension and expulsion in Ohio.  

To begin, prohibited conduct is typically outlined in the student handbook. Sometimes these handbooks outline a range of sanctions for prohibited conduct, but not always. Schools should punish within the range of sanctions, but often apply mitigating or aggravating factors to modify the punishment. School administrators have some discretion (or leeway) when they issue sanctions, but there are limits and procedural requirements that must be followed for every suspension or expulsion.  

First, as suggested above, the sanction should fall within the range outlined in the student handbook and be applied equally among all students. Especially when other students are involved in the same incident and/or accused of similar violations, one student should not be punished more harshly than another, all things being equal. Second, and more importantly, suspension and expulsion laws provide an accused student a right to timely notice and an opportunity for a hearing.  

For school suspensions (which in Ohio can be issued for anywhere between 1-10 days), a student/parent is entitled to written notice from the school of the intended suspension. This notice must contain the purported code of conduct violation resulting in the suspension. The suspension notice may be issued directly to the student without parental involvement. However, students/parents have a right to appeal any suspension issued. Students/parents must appeal within the time period provided on the written notice. The suspension appeal period can be very short, sometimes within 2-3 days of the notice.  

Appealing the suspension gives the student/parent a right to a hearing before the board of education (or before the board’s designated hearing officer). The student/parent may be represented by an attorney in this hearing, can present evidence and witnesses, and can provide a written or oral statement refuting any evidence provided by the school in support of suspension. If the outcome of this appeal is not favorable, the suspension may be appealed to the local court of common pleas.  

For school expulsions (which in Ohio can be issued for anywhere between 1-80 days, or longer for drug and weapons-related violations), a student and parent are entitled to written notice from the school of the intended expulsion and a right to a hearing before the expulsion is issued. The notice must contain the purported code of conduct violation resulting in the potential expulsion. Before any expulsion is issued, a hearing must be held with the school superintendent (or a designee), and the hearing must be held 3-5 days from the date the notice of intended expulsion is issued.  

A student/parent may be represented in the expulsion hearing and present evidence and witnesses, similar to the suspension appeal explained above. If the school decides to expel the student following the hearing, the superintendent or principal must notify the student and parent of the expulsion within one school day of making the decision. This notice of expulsion must include the reasons for the expulsion and notify the student/parent of the right to appeal the expulsion.  

Appealing the expulsion similarly gives the student/parent a right to a hearing before the board of education (or before the board’s designated hearing officer). The student/parent may also be represented by an attorney in this expulsion appeal hearing and present evidence and witnesses. If the outcome of this expulsion appeal is not favorable, the expulsion may be appealed to the local court of common pleas.  

It is very helpful to consult with an education attorney as soon as a notice of suspension or expulsion is issued, so that all options may be considered to avoid the suspension and/or expulsion.  

Written by Mark Weiker, Esq. with 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.

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.

Educators should carefully consider school policies regarding masking.

                As you prepare your classrooms with supplies, fun stimuli, and all the accoutrements of a cozy room for fostering learning and creativity, let’s hope you also have time to prepare for the 2021-2022 school year mentally; not just for the continued repetitive phrases of “unprecedented times” and “socially distanced,” but also for the difficult decisions and choices you may face in and out of the classroom.

                Although, many schools had reached maximum capacity and limited or altogether abandoned masking by end-of-year this spring, many districts are now reconsidering these policies for a new school year amidst the new Delta variant of COVID-19 and its likely successors. For educators, this could mean continued or renewed policies requiring masking, vaccination, social distancing, and even remote teaching. While most public school educators are contract employees with due process rights, districts are nevertheless able to require their employees to wear masks and provide proof of vaccination with very limited exception. This means that unless you have deeply held religious beliefs which prevent you from masking or vaccination, or you have a disability recognized by the Americans with Disabilities Act (“ADA”), you will face discipline up to and including termination if you fail to comply with your district’s masking and vaccination policies.

                If you have a disability under the ADA, such a respiratory disability, that prevents you from wearing a mask, you should request a reasonable accommodation from your district as soon as possible. Although, your district is not required to accommodate you if it causes the district an undue hardship, they are required to engage with you in good faith to determine if a reasonable accommodation can be made. This process requires sufficient documentation from your doctor, and sometimes creative ideas for accommodations that suit you and simultaneously do not create a hardship for your district.

                An educator’s refusal to comply with district policies can not only lead to discipline from the district, but it could also lead to an investigation and discipline by the Ohio Department of Education (“ODE”). For instance, if a district threatens to terminate an educator for violating a masking policy, and the educator resigns under that threat of termination, the district must report that resignation to ODE. ODE will then initiate an investigation of the educator for a violation of the Licensure Code of Professional Conduct. During the pendency of that investigation, educators are unable to renew their credentials, and could face limitation, suspension, or even revocation of licensure. As such, we highly recommend that educators facing discipline in their districts reach out to counsel as soon as possible, not only to protect their due process rights in the district, but also to help them build the best defense possible against an ODE investigation.

Understanding Amended Ohio House Bill 244 - The Vaccine Discrimination Bill

With schools, masks, and vaccinations being at the top of many parent’s minds, the recently passed, soon to take effect Amended House Bill (H.B.) 244 has been the subject of much discussion.  Set to take effect on October 13, 2021, the relevant amendment of H.B. 244 prohibits public schools from the following:

• Requiring any individual to receive a vaccine that has not been fully approved by the United States Food and Drug Administration (FDA); and,
• Discriminating against any individual who has not received a vaccination, which includes requiring an unvaccinated individual to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of a vaccinated individual.[1]

In application, H.B. 244 has far-reaching effects in terms of restricting how public school districts and public colleges and universities in Ohio are able to structure their COVID-19 policies.

Under H.B. 244, a public school, college, or university may not require that any student or employee receive a COVID-19 vaccine if the vaccine has not received full FDA approval.  Currently all three vaccines being administered in the United States – Pfizer-BioNTech, Moderna, and Janssen – have only been authorized for emergency use.[2]  Pfizer-BioNTech and Moderna have both applied for full approval, but there is no clear timeline on when approval will be granted.  This means that unless and until any of these vaccines are fully approved by the FDA, H.B. 244 will prevent vaccine mandates in Ohio public schools.

Additionally, H.B. 244 specifies that Ohio public schools cannot discriminate between vaccinated and unvaccinated persons.  Specifically, a public school cannot compel unvaccinated persons to adhere to different restrictions and requirements than vaccinated people.  The most visible and prevalent way this will appear is H.B. 244’s application to school mask policies.  Under H.B. 244, a public school cannot require unvaccinated persons to wear masks, while permitting vaccinated persons to be mask-free.  Practically speaking, H.B. will require public schools to create a one-size-fits-all COVID-19 policy as it relates to vaccine status for the upcoming school year and beyond.  Public schools will be unable to incentivize receiving a vaccine with the prospect of an optional mask.

What should also be noted is that H.B. 244 only applies to public schools, colleges, and universities.  As such, private educational institutions are not impacted by H.B. 244 and may implement vaccine mandates as well as mask and testing mandates that apply unequally depending upon COVID-19 vaccination status.  Despite the inapplicability to private schools, such schools would be wise to be aware of the implications of H.B. 244.

With no federal mandate and a patchwork of policies across the country and the state, the amended provisions of H.B. 244 forces public educational institutions into adopting all or nothing policies related to COVID-19 which they must carefully craft to avoid running afoul of this amended bill.

---

[1] Am. H. B. No. 244 (134^th G.A.)

[2] https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-vaccines

What is NIL and what does it mean for student athletes?

“NIL” has become THE hot acronym in college sports. It stands for “name, image, and likeness”, and describes rights that have now been recognized in Ohio through Executive Order 2021-10d, signed by Governor DeWine on June 28th of this year. The Order went into effect on July 1st. Simply put, Governor DeWine’s action now allows college student-athletes in Ohio to be compensated for their names, images, and likenesses.

For much of collegiate sports history, schools could only compensate students for their athletic with academic scholarships and nothing more. It wasn’t until 2014 that the National Collegiate Athletic Association (NCAA) granted permission to member athletic conferences to give scholarships that cover the cost of attendance in full.

In June of this year, the U.S. Supreme Court altered college sports forever with a “game changing” ruling. In its unanimous NCAA v. Alston decision, it ruled that the NCAA’s cap on academic benefits violated federal anti-trust laws. Regarding NIL rights, Justice Kavanaugh stated in his concurring opinion that if other NCAA limitations on student-athlete benefits were challenged in a court of law, those too would likely be ruled to be in violation of anti-trust laws.

It was after the Alston ruling that the states got into the act, passing legislation or issuing executive orders to clarify how each would handle these newly-recognized rights. Governor DeWine’s executive order did just that. It does contain limitations. Student-athletes may not enter into contracts with companies engaged in certain businesses: marijuana, nicotine products, alcohol, gambling, adult entertainment, and controlled substances. Further, student-athletes may not have their sponsors’ logos presented during team activities or activities that may conflict with school functions.

When entering into an NIL contract, the student-athlete must disclose the contract to the school and before it becomes effective, the school may determine that it conflicts with the school’s policies or relevant team rules or policies. If the school makes such a determination, the student-athlete has the opportunity to renegotiate the contract to eliminate the conflict. It is important to note that schools cannot claim that any NIL money that the student-athlete receives is part of his or her academic-athletic scholarship.

There are just over 490,000 student-athletes in the United States. Many are now taking advantage of their new status and negotiating sponsorship deals. Social media platforms, especially Tik Tok, are providing access to advertisers that want these new faces to create self-aware ads and skits. Student-athletes have created clothing lines, hosted sponsored podcasts, and done meet-and-greets. It truly is the “Wild West” for this new phase of endorsements.

Albeit Weiker is able to assist college student-athletes with NIL opportunities. For more information, please contact us at 614-745-2001.

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

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.

by LAUREN A. SABO, Esq. / Albeit Weiker, LLP

Questions? Contact us at (614) 745-2001

[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)

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.