U.S. Department of Education Office for Civil Rights FOIA Responses

Office for Civil Rights Addresses Asthma, Diabetes, Food Allergies, and GERD; Issues Guidance on Medical Conditions Triggering Protections Under Section 504

February 20, 2024, Office for Civil Rights (OCR) released individual guidance documents on asthma, diabetes, food allergies, and gastroesophageal reflux disease (GERD).

The documents address how these medical conditions “can be disabilities for purposes of Section 504 . . . when these medical conditions trigger protections under Section 504, what kind of modifications an educational institution may need to take to avoid unlawful discrimination, and what an institution may need to do to remedy past discrimination.”

In addition, they provide descriptions of the medical conditions and examples of how the conditions can affect a student’s experience in school.

U.S. Dept. of Education Issues Assistive Technology Guidance; Dispels Myths and Underscores Importance of Reducing Barriers to Education

U.S. Department of Education’s (USDOE) new guidance documents debunk myths about the provision of assistive technology (AT) services and devices to students and underscores the importance of reducing barriers to education.

Released January 22, 2024, “Myths and Facts Surrounding Assistive Technology Devices and Services” and the “Dear Colleague” letter accompanying it provide long-needed guidance addressing the important role technology plays in ensuring all learners are afforded “meaningful access and engagement in education”.

U.S. Department of Justice Finds Lincoln Public Schools Discriminates Against Deaf and Hard of Hearing Students

February 14, 2024, the U.S. Department of Justice (DOJ) announced that “Lincoln Public Schools (LPS) in Lincoln, Nebraska, violated the Americans with Disabilities Act (ADA) by denying some deaf and hard of hearing students an equal opportunity to attend their neighborhood schools.”

U.S. Dept. of Education Addresses IDEA Noncompliance in Florida, Idaho, Michigan, Montana, New Jersey, New York, and Texas

United States Department of Education (USDOE) Office of Special Education Programs (OSEP) issued differentiated monitoring support (DMS) reports  and/or letters for Florida, Idaho, Michigan, Montana, New Jersey, New York, and Texas, addressing findings of noncompliance with Part B and/or Part C of Individuals with Disabilities Education Act (IDEA). 

OSEP monitors all IDEA Part C and B programs through its DMS system and “differentiates its approach for each state based on the state’s unique strengths, progress, challenges, and needs.” This cyclical monitoring process focuses on states’ general supervision systems. OSEP will continue to provide support and technical assistance that is differentiated based on each state’s needs.

The Language of IEPs and 504s: The Problem with “Engage”

Imagine an IEP with a goal along the lines of the following:

Teachers will engage with student to ensure student understands and accurately records all assignments in student’s planner.

Now imagine attending an IEP meeting at which this goal is being discussed. You push for more details, but the staff member helming the meeting insists that engage means the following:

“It’s not that they’re waiting for to come to them. They’re going to engage with .”

What could go wrong?

Helpful Information from FCPS Lawyer John Cafferky, which You Won’t Find in VDOE’s “Parents’ Guide to Special Education Dispute Resolution”

Updated January 3, 2024, to include the question and answer to D-18 in the U.S. Department of Education’s Office of Special Education Programming’s ” July 23, 2013, “Memo and Q&A on Dispute Resolution” (see end of article).

In 2008, Virginia Department of Education issued “2008 Parents’ Guide to Special Education Dispute Resolution.” Although a lot’s changed in the past 15 years, the guide “designed to assist parents in understanding Virginia’s dispute resolution systems of mediation, complaints, and due process hearings” has remained the same.
The following is helpful information that I hope VDOE considers should it revise the guide. It comes from advice that long-time Fairfax County Public Schools lawyer John Cafferky provided to FCPS staff. In its 2008 guide, VDOE acknowledged John on a list of individuals who “contributed to the development of this document and/or who served as a reviewer.” Hence, it seems fitting that the following advice be considered for a future edition.

Language of IEPs and 504s-All and Before

The Language of IEPs and 504s: The Importance of “All” and “Before”

Imagine your child has the following on his IEP:

“The IEP will share reading data with parents on a monthly basis.”

After six months of meetings, your internal parent alarm starts going off because the data provided by the school doesn’t match what you’re seeing at home.

You submit a FERPA request for all reading data related to your child.

The FERPA response provides you negative reading data that the school didn’t previous share with you.
You want to complain to the school and/or submit a complaint to the state, but . . . 

The school followed the IEP. It did share reading data on a monthly basis. There wasn’t anything in the IEP that stated all data had to be provided.

It's the Law

It’s the Law: Comprehensive Evaluations

Whether your child is receiving an initial evaluation for eligibility or being reevaluated at a later date, the evaluation must be a comprehensive evaluation.

In the case of initial evaluations, §300.301(a) of the Individuals with Disabilities Act (IDEA) is your go-to regulation:

Each public agency must conduct a full and individual initial evaluation, in accordance with §§300.304 through 300.306, before the initial provision of special education and related services to a child with a disability under this part.

Culture of Cover-Up Continues in FCPS; Superintendent Admits Systemic Problem, Staff Testify Otherwise to VDOE

The more things change, the more things stay the same in Fairfax County Public Schools (FCPS).

Within two hours of Superintendent Michelle Reid taking the extraordinary step of breaking with FCPS’ tradition of covering up noncompliance, her staff continued along the old, traditional path.

Breaking with FCPS Tradition, Superintendent Michelle Reid Chooses Systemic Change Instead of Staying the Course

Superintendent Michelle Reid just did what no FCPS superintendent or school board member has ever done (at least not to my knowledge).

1. Admitted FCPS is at fault for systemic FERPA noncompliance (maintenance of, access to, and security of student educational records) and is owning the systemic noncompliance;

2. Hired an independent law firm to do an investigation, committed to sharing the findings of the investigation, saw that the investigation was completed in what to my knowledge is record time for FCPS; and today shared a summary of the findings;

3. Committed to fully addressing the noncompliance and implementing the changes recommended as a part of the investigation findings;

The Problems with Quarterly IEP Measurements

Whether it is a functional or an academic goal, waiting a quarter is waiting too long, because the goal might need to be adjusted sooner. Why not assess whether the goal needs narrowing or expanding as soon as possible?

I’ve never understood why Individualized Education Programs (IEP) include goals for quarterly measurements. As a parent, if my kids failed to do their chores for a week, I wouldn’t wait until the end of the quarter to assess the situation. Why wait an entire quarter to address a problem that’s clearly getting worse? Why not assess sooner and narrow the goal until it can be expanded in full—or expand the goal if the student achieves the goal sooner than expected?

UPDATED 12.13.23—Pro Tip: Don’t Believe Everything Fairfax County Public Schools Tells You

This article was published 12.12.23. It was updated 12.13.23 to include the message from Superintendent Michelle Reid, which FCPS posted to its site on 12.12.23.

The one thing that can be said about Fairfax County Public Schools (FCPS) is that it is consistent. When it engages in noncompliance, rather than engaging in immediate transparency and honesty, it crafts messages that lead the public to believe someone else is at fault.

Why am I mentioning this?

Turns out FCPS left out some key information, such as that I have never and will never publish private information about kids—but I will publish information showing FCPS retaliates, is in noncompliance, and intentionally pushes inappropriate programs onto kids.