Special Education Legal Update

Special Education Legal Update Susan Geary Bricker & Eckler LLP July/August 2015

I. Federal

A. Federal Funding and Congressional Priorities – an ongoing issue

B. House and Senate passed bills to reauthorize and revise No Child Left Behind (ESEA)

C. Nothing proposed regarding IDEA reauthorization

D. US Department of Justice issued a Q & A regarding service animals. The information is available on ADA.gov. (Frequently Asked Questions about Service Animals and the ADA).

E. There are several bills in Congress to amend FERPA (student records), including to address digital information and increase consequences/fines to districts that violate FERPA

F. The US Department of Education published final amendments to the IDEA regulations regarding Maintenance of Effort.

II. State

A. Budget Bill – House Bill 64

1. A new state Budget July 1, 2015.

2. School Funding – Governor’s initial proposal would have changed the school funding system but the Budget Bill basically retained the previous funding structure

B. Teacher Evaluations

HB 64, the Budget Bill, for fiscal years 2016 and 2017 made several changes to OTES. The changes affected the alternative framework option as well as the value-added safe-harbor. A new evaluation system for school counselors was created. These provisions generally go into effect September 29, 2015; the school counselor evaluation system goes into effect for 2016-17 .

C. Accountability System, Performance Reporting, and Report Cards

1. There were still 9 measures on the Report Cards in fall 2014: (1) performance indicators of minimum competency; (2) an index of absolute performance; (3) gap-closing in sub-group performance; (4) four year graduation rate; (5) five year graduation rate; (6) academic progress of gifted students; (7) academic progress of students with disabilities; (8) academic progress of students in the lowest 20% of achievement; and (9) academic progress of all students as a whole.

2. Value-added

Progress is measured by a year’s academic growth in the course of one school year. There are four levels (will be five at some point in the future when high school end of course exams are added) of value-added on an index in which grades (A-F) are defined. For example, a year’s growth in one school year equals a C while a B is more than a year’s growth.

D. The Common Core curriculum (math and English language arts)

There is a movement at the State level as well as some movement at the Federal level to make changes to the application of the common core. Some bills have been proposed in the Ohio legislature to seek to eliminate the Common Core. Have also been some bills proposed in Congress to limit the application of the Common Core, including limiting the US Dept. of Education from tying its use to grant money or waivers (e.g., waivers from No Child Left Behind).

E. Student Assessment and Graduation Requirements

1. State Testing System

New State tests were implemented in 2014-15. These tests replaced the Ohio Achievement Assessment and Ohio Graduation Test. Students who entered 9th grade in 2014-2015 will take the new graduation exams.

Some end of course exams for high school started 2014-15, but they are phased in.

Changes made by the Budget Bill

Changes made by HB 7 – was effective March 16, 2015

2 Additional changes were made by HB 367 effective March 23, 2015

2. PARRC and AIR Exams

ODE, as a member of a consortium of 22 states, developed with PARCC (Partnership for Assessment of Readiness for College and Careers)the new assessments tied to the Common Core in math and English language arts for grades 4-8 and some high school end of course exams.

In 2014-15, the first part of the PARCC exam for grades 4-8 in language arts and math (performance based assessment, PBA, such as writing, solving problems or producing a product) is administered when about 75% of the school year is complete and the second part (end-of year assessment, EOY, using computer-scored questions) when about 90% is complete. The Budget Bill requires a single test administration window in the second semester.

The PARCC tests are intended to be administered entirely on-line. The AIR tests for grades 4-8 in science and social studies are also to be administered online. Pursuant to HB 487, schools could not be required to administer student achievement and graduation assessments in an online format in the 2014-2015 school year, and ODE had to furnish paper and pencil assessments free of charge. The Budget Bill extended the paper/pencil option to the 2015-16 school year. It is unclear what will occur in subsequent years. Provision of the technology is a concern in some districts and buildings. There are some technology/computer/internet access challenges including the need for high-speed broadband connections for stronger and speedier connections to the internet and the number of computers available. ODE has on-line guidance materials, including as to hardware for the assessments, for districts to determine online readiness.

The Budget Bill prohibited ODE from using general revenue funds to purchase PARCC assessments.

AIR (American Institutes for Research exams

The State tests in science and social studies

3. Opting –out of tests at parents’ request.

4. More changes in the state testing system ? a. HB 74 is currently pending in the State legislature that would make additional changes to the testing system. The Budget Bill and HB 7 made changes in the testing system and it is unknown as to what will occur with HB 74.

Copyright 2015 Bricker & Eckler LLP 3 b. Senate Advisory Committee on Testing created in March 2015 to review all state testing related to the Common Core (PARRC and other state tests) - includes superintendents, teachers, two state Board of Education members – The Committee has made some recommendations and some were incorporated into the Budget Bill such as having only one test administration per year. to review all options – no changes, some changes, significant revisions, start over from scratch surveyed teachers and administrators throughout the state as to what they see as problems (technology, technical glitches, timing, content etc.)

5. PARRC Exams, other State tests and accommodations for students with disabilities

PARCC assessment allowable accommodations have been developed for students with disabilities. To access the first and current edition of the accommodation document, go to the PARCC website.

In addition to accommodations for students with identified disabilities, there are some “embedded supports” available to all students such as repeating instructions aloud, spell-checkers or magnifying text. The embedded supports are available by the student’s choice or at the discretion of the school.

IEP test accommodations need to match allowable accommodations, including for “read-aloud” on language arts tests

F. Scholarship/Voucher Programs –four programs – can only use one at a time. Can apply for more than one, but cannot accept more than one

1. Educational Choice (EdChoice) Scholarship Program

The Budget Bill increased the amount of the EdChoice Scholarship from $4250 to $4650 for K-8 students. For high school students, the amount increases from $5000 to $5900 in FY 2016 and $6000 in FY 17.

2. Cleveland Scholarship Programs

3. Autism Scholarship Program

The Budget Bill, HB 64 increased the maximum amount of the scholarships.

4 4. Jon Peterson Special Needs Scholarship Program

The Budget Bill, HB 64 increased the maximum amount of the scholarships.

G. Reading/Literacy Initiatives

The Budget Bill provided $500,000 in each fiscal year (FY 16 and FY 17) for ODE to work with Educational Service Centers to establish regional literacy professional development teams.

H. College and Career Ready – Post-Secondary Preparation

1. In April 2011, Governor Kasich signed an Executive Order creating the Employment First Task Force, which is charged with promoting meaningful employment in the community for people with developmental disabilities. A component to this initiative was the amendment to ORC 3323.011(H) related to IEPs. The amendment required that an IEP, beginning with the first IEP to be in effect when the student is age 14 fully address transition including appropriate measurable post-secondary goals based on age-appropriate transition assessments related to employment in a competitive environment in which workers are integrated regardless of disability

The age 14 provision is in effect, but the transition portion of the required IEP form has not yet been amended.

2. There is a focus of the Kasich administration to connect students to career paths, including introducing the idea of occupations as early as elementary school and better matching education and available jobs and skills as well as partnering with the business community.

3. HB 487 – Education MBR Career-technical education (3313.09) – effective September 17, 2014

Exposing middle school students to career options, allowing them to explore opportunities, and career advising to help them begin thinking about their education and that their career paths begin in middle school and not after high school graduation.

4. HB 487 – At-Risk Students and Career Advising –ORC 3313.6020

ODE has guidance and resource materials on its website

A “Career Advising and Student Success Clearinghouse” and “Professional Learning Toolkit” are to be available summer 2015

Copyright 2015 Bricker & Eckler LLP 5 The Budget Bill allows students entering ninth grade for the first time on or after July 1, 2015, who are pursuing a career-technical path the option of completing a “career-based pathway mathematics course” as an alternative to algebra II a. Career Advising Policy

Grades 6-12 b. Student Success Plans

5. HB 107 which was passed by the legislature and was effective June 26, 2014, created a three year pilot grant program of one million dollars in tax credits for businesses identified as Career Exploration sites by the Ohio Development Services Agency (DSA) that employ high school students for at least 20 weeks and 200 hours of paid work instruction in career exploration internships. The grant is for 50% of the student’s wages over 12 months or $5000 whichever is less and is to encourage high school students to seek employment matching their career interests and encourage businesses to employ them. The focus is to be career exploration and not just to earn money and is focused on a student- business interaction. School district involvement is minimal but would involve assuring that the job involves career exploration as well as a requirement that students who have completed internships discuss the experience with someone at their school district. For students who have graduated the post-internship discussion can be by telephone. The post-internship contact is to help assess the outcomes.

6. HB 393 – Was effective 9/17/14

The goal is for OhioMeansJobs to be integrated into k-12 education and provide resources.

7. State Initiatives a. Career Connections”

1. Career Awareness K-5 –

2. Career Exploration 6-8 –

3. Career Planning 9-12 and beyond –

4. Lifelong Learning related to careers

6 b. Career Connections Learning Strategies c. Career Pathways

1. Collective view on education and training, wage outlook, and related occupations within a career field or industry d. Ohio MeansJobs K-12

OhioMeansJobs K-12 resources – Provide career decision-making materials and OhioMeansJobs K-12 information through school newsletters to parents website tools

8. Employment First initiatives – DD- community based

Involvement of Department of justice in other states

9. The Budget Bill maintained the 22+ Diploma Program

10. The Budget Bill requires school districts to offer credentials to students who enroll in in- demand credential careers and provides $1 million in each fiscal year to reimburse the school district to cover the cost of obtaining those credentials for economically disadvantaged students.

11. NSTTAC resources.

I. HB 264 – Diabetes Care in Schools – was effective September 11, 2014

Addresses the responsibilities of school districts with regard to students with diabetes in schools .

1. Requires boards of education to ensure that students who have diabetes receive appropriate and needed diabetes care in accordance with an order signed by the student’s treating physician

2. 504 plan notification: Within 14 days after receipt of a signed order from the treating physician of a student with diabetes, the board must inform the parent, guardian, or other person having care or charge of the student that the student may be entitled to a 504 plan regarding the student’s diabetes. ODE must develop a 504 plan information sheet for boards to use

Copyright 2015 Bricker & Eckler LLP 7 3. Medication administration: Diabetes medication may be administered by a school nurse, or, in the absence of a nurse, a school employee who is trained in diabetes care. Schools may only administer medication when the requirements of current R.C. 3313.713(C) are met (board receives a written request from parent and a statement with administration instructions signed by the prescriber, parent agrees to submit any revised prescriber statement, person authorized to administer the drug receives the prescriber statement, and the drug is in the original container). Contrary to the requirements of R.C. 3313.713, the diabetes medication may be kept in an easily accessible location

4. Employee training for diabetes care: Within 180 days of the bill’s effective date, ODE must adopt nationally recognized guidelines for the training of school employees in diabetes care for students. To meet the needs of a student with diabetes, a board may provide training that complies with these guidelines to a school employee at each school attended by a student with diabetes.

The training must be coordinated by a school nurse, or by a licensed health care professional with expertise in diabetes. Training must take place prior to the beginning of the school year of within 14 days of receipt of a signed order from a treating physician. After training is completed, the board must determine whether each trained employee is competent to provide diabetes care

5. Rights of a student with diabetes: A student with diabetes must be permitted to attend the school the student would otherwise attend, and diabetes care must be provided at the school. The school is prohibited from requiring or pressuring a parent or guardian to provide diabetes care for the student at school or school-related activities

A student with diabetes must also be permitted to perform diabetes care tasks upon written request of the parent or guardian and authorization by the student’s treating physician. Such a student must be permitted to perform diabetes care tasks in a classroom, in any area of the school or school grounds, and at any school-related activity. The student shall also have access to a private area upon request, and must be permitted to possess all necessary supplies and equipment at all times

The board may revoke the student’s self-care permission if the student performs any diabetes care tasks or uses medical equipment for purposes other than the student’s own care

6. Reporting requirements: Boards must report to ODE the number of students with diabetes enrolled in the district and the number of errors associated with the administration of diabetes medication during the previous school year.

-Guidelines for diabetes management – a link to US Department of Health and Human Services document, “Helping the Student with Diabetes Succeed: A Guide for School Personnel”

-Letter discussing diabetes management and 504 plans

-Diabetes management survey – used to collect required information to submit to ODE

-Recommended diabetes training materials

J. SB 121 Meningococcal Disease Immunization

III. Ohio Department of Education – Office of Exceptional Children

A. “Whose IDEA Is This?” will be revised. Until a new version is released continue to use the current version (April 2, 2013) with the required Addendum related to PR-01s.

B. ODE/OEC has indicated that the guidance document is being updated and will be posted as it becomes available.

C. Revised special education forms?

D. Changes in the ODE monitoring system

E. OEC is reviewing all of its alternative dispute procedures

F. OEC is revising its System of Progressive Sanctions Policy. There was a public hearing on October 17, 2014 – only minor changes.

G. Doe case

H. Braille

I. The next OEC Special Education Leadership Conference is Wednesday, September 30, 2015 and Thursday, October 1, 2015 at the Columbus Convention Center