When you get a request for a service animal in school, your mind may race with concerns. What if students or staff are allergic? Is the dog going to be a distraction for other students? Where will the dog relieve itself? Though these concerns are valid considerations, you might be surprised that in most cases, courts do not find they justify excluding service animals from schools.

The school context is especially complicated because school administrators cannot only think of the rights of the student requesting to bring a service animal to school. Administrators must also consider the needs of faculty and other students and the need to maintain a safe and effective learning environment. Let’s look at the general legal requirements and some common myths to help you determine when and under what circumstances service animals must be permitted. Continue Reading Who Let the Dogs . . . In? Five Myths Busted About Service Animals in Schools

With the number of students who identify as gender non-conforming on the rise, many educators have questions regarding the supports and services that may be available to such students. This year at IAASE, Jennifer Smith and John Swinney addressed this intersection of gender identity and special education, including factors to consider under Section 504, the IDEA, and the ADA. The main take away? Educators should be cognizant that gender non-conformity is not, as a rule, a disability. However, the emotional and educational impact in identifying as non-conforming may require school districts to provide gender non-conforming students with supports. Other important topics that were addressed included how to proceed when a parent does not want a district to honor a student’s gender identity and the current state of Federal and Illinois laws protecting gender identity and sexual orientation. You can download a copy of the PowerPoint presentation for the session here.

We had great participation in our IAASE session last week on this topic, with the audience voting electronically to weigh in on their anticipated outcomes of cases. If you missed it, here are our main takeaways.

When it comes to bullying and special education, districts face potential liability on a number of fronts, including lawsuits, OCR complaints, and due process complaints. To mitigate these risks, districts need a two-pronged approach and clear communication. First, districts should follow their bullying policies to fully investigate reports of bullying and take steps that are reasonably calculated to stop the bullying, prevent its reoccurrence, and remedy its effects. Second, districts should convene the IEP or 504 team if it appears that the student’s needs may have changed and consider whether different or additional services are needed to provide FAPE. Finally, staff in charge of the investigation and response should be in communication with special education staff to ensure that both of these processes are moving forward.

Reviewing recent cases, we identified a common source of liability: the IEP team refuses to discuss bullying, instead directing parents to the bullying policy. These processes are complimentary, not mutually exclusive. The second common source of liability was child find. Students may be vulnerable to being bullied or prone to bullying behavior if they have communication deficits, social skills deficits, or difficulty with emotional regulation, which in turn may be signs the student should be evaluated. On the other hand, districts that take (and document!) reasonable steps to stop the bullying, respond to student needs, and communicate with parents are more likely to prevail in these disputes.

Speaking of documentation and parent communication, we fielded a great question about what information can and should be shared with parents. The parents of a student who reports bullying should be informed that the complaint was investigated, whether it was founded, and of any follow-up actions that directly impact their child. Closing the loop with parents goes a long way to ensure that they feel the school heard them and took appropriate action. And that can help you avoid lawsuits, OCR complaints, and due process complaints.

On October 17, 2019, Franczek P.C. Special Education team members Dana Fattore Crumley and Emily Tulloch presented at the IAASE 2019 Fall Conference on Fighting Friendly Fire in your IEP: Avoiding Internal Challenges to IDEA Compliance. This session provided an overview of common internal challenges that can sabotage IEP compliance. For a summary of this session and access to the presentation materials, keep reading!

We often think of challenges to the IEP as coming from the outside, but sometimes actions by school employees can create “friendly fire” that puts your IEP at risk. Examples include:

  • lack of preparation
  • failure to compromise
  • refusal to provide required services, and
  • over-sharing information outside of the IEP process.

Dana and Emily discussed a number of strategies to address these challenges, such as setting expectations for IEP meetings by identifying responsibilities for team members; setting standards for collaboration, participation, and tone; encouraging collaboration prior to IEP meetings (with a healthy respect for avoiding predetermination, of course); and correcting missteps by using progressive discipline or providing additional training.

We discussed the importance of collaboration with the IEP team throughout the presentation, and a great question was raised about it is appropriate to involve a representative from a high school district on the team for an eighth-grade student who will be transitioning to high school during the upcoming school year.  We explained that this is not a requirement, but that a representative from the high school would be a valuable asset during pre-meeting collaborations to gain insight into the programs and expectations at the high school level. We stressed the importance of not making predeterminations when discussing and collaborating prior to IEP team meetings, however, whether that collaboration occurs within your own district or with other representatives.

You can find a link to our PowerPoint deck for this presentation here. For more information on this and other friendly fire topics, contact any member of the Franczek special education team.

 

Our Partner Jennifer Smith asked an important question during the Legislative Update session yesterday at IAASE’s 2019 Fall Conference: What can Illinois special education teachers and administrators do to help ensure that the legislature makes necessary fixes to Public Act 101-0515—or as IAASE aptly calls it, “That Pesky RTI and Special Education Bill”—during the upcoming veto session. We gave you the lowdown on the demanding new law in a blog post earlier this year. As might be expected, the pending proposal to amend the law and remove requirements that were intended to apply only to Chicago Public Schools was a hot topic during yesterday’s Legislative Update. What can you do now to help fix this pesky problem?

The engaging panel discussion included insights on a number of new Illinois laws impacting special education from IAASE President Kevin Rubenstein, IAASE Legislative Committee Co-Chairs Judy Hackett and Melissa Taylor, IAASE Policy Analyst/ Governmental Specialist Shannon Bellini, and Illinois legislators Christina Castro (D), Jim Durkin (R), Linda Holmes (D), and Kathleen Willis (D).

Many participants in the audience described their serious concerns with the seemingly never-ending flow of unfunded legislative mandates impacting public schools.

One of the biggest concerns raised was with Public Act 101-0515, and during that discussion the legislators were uncertain as to whether any changes would pass during the veto session. In response, Jennifer described the many issues the law has created for schools across the State and the imperative that it be amended as soon as possible. In response to Jennifer’s question about what school administrators and educators could do to help move the amendment along, the panel was clear:

Call your Illinois Senator and Representative and tell them that it is urgent that the amendments to the law be passed as soon as possible.

On this issue and others impacting schools, school leaders and educators can call the representatives for the district where they live and vote as well as those for the school, district, or cooperative where they work, if different.

A big thanks to IAASE for another great conference and for engaging and timely panels like the Legislative Update! We in the Illinois special education law community are lucky to have such a well-attended, high-quality event for learning, inspiring, and networking.

As the kick-off to the school year winds down and daily routines take shape, we start to see serious student discipline issues pop up. And one situation that always leads to confusion is what to do when a student who does not have an IEP is up for expulsion and then the parent requests an evaluation or argues that the student should have already been found eligible. You know special rules apply, but trying to piece it all together can make your head spin.

We’re flowchart people over here at Franczek P.C. Let’s start with a visual representation of the process, then we’ll dig into some of the complexities and reference guidance the Office of Special Education Programs (OSEP) released earlier this year. Continue Reading Disciplinary Protections for Students Not Determined Eligible for Special Education – Wait. How Does That Work?

At Franczek, we know that when it comes to the world of special education law, which grows more and more complex every day, no one lawyer can be an island. The synergies we enjoy in our office bouncing ideas off of and learning from each other benefit attorneys and clients alike and are part of what makes our firm so unique. Needless to say, we are thrilled to share some of the lessons learned from our collaborative environment by sending a cadre of special education attorneys to the upcoming Illinois Alliance of Administrators of Special Education (IAASE) 21st Annual Fall Conference. Come see us when we present on October 17 on a number of exciting topics showcasing the strength of our team! Continue Reading Franczek’s Special Education Team to Present at IAASE’s Fall Conference

A speech pathologist goes out on unexpected medical leave. Three paraprofessionals quit in one week. A special education teacher is abducted by aliens and no substitutes are available. Sometimes staff absences are unavoidable, and they are almost always unpredictable. Shortages in special education in particular are making it difficult to find qualified teachers, related services providers, and substitutes and replacements when one of those professionals is unavailable unexpectedly. As we previously explained, a recent Illinois law (HB 3586) added notification requirements when a student’s IEP services are not provided. Although we hope that this increased communication and proactive planning for compensatory services can decrease due process and Illinois State Board of Education (ISBE) complaints related to missed services, there is no doubt that special educators have many questions about how to comply with the new notice requirements. Let’s break down exactly when parental notification is required and what it should look like. Continue Reading Don’t Miss the Boat After Missed Services! What to Do Under HB 3586

With all the hub-bub about HB 3586 (more on that here!), you would be excused if you missed that another special education law, passed last year, went into effect this school year. This one is easy to implement. The law requires that the district post on its website and in its student handbook or “newsletter notice” that students with disabilities who do not qualify for an IEP may qualify for services under Section 504 if the student has a physical or mental impairment that substantially limits one or more major life activity, has a record of a physical or mental impairment, or is regarded as having a physical or mental impairment. That’s it. Or is it? Continue Reading Opening the Floodgates? IL Law Requires Notice That Non-IEP-Eligible Students May Qualify for 504

You know from our previous post regarding recent legislation in Illinois, we have had our eye on House Bill 3586, which has been awaiting the Governor’s signature since June. Well, the time has come; Governor Pritzker signed the law on Friday (PA 101-0515). And there were no amendments to the law to address some of the areas of confusion that were identified after the bill was passed by the legislature. The amendments to the Children with Disabilities article of the School Code brought by the law are immediately in effect, although revisions may be on the horizon during the veto session. For now, special education professionals should promptly implement the significant procedural requirements under the law. We will keep you posted regarding any changes or guidance from ISBE that may impact the implementation of the law, but for now, make plans to meet the following requirements. Continue Reading New Law Adds Procedural Requirements for Special Education in Illinois