For best results, consult your special education administrator

The 2024 Title IX rules were finally released. As you may recall, the Department of Education had proposed a new provision in the rules to require the Title IX Coordinator to consult with the IEP or Section 504 team throughout the implementation of the grievance procedures and specifically with respect to the implementation of supportive measures when a party in the grievance process is a student with a disability. While the intersection of Title IX, the IDEA, and Section 504 is complicated and sometimes an IEP or 504 meeting is warranted, the proposed requirements would have been burdensome and unworkable. A coalition of districts across the country worked with Thompson & Horton to submit comments to the Department flagging this concern.

“You only get one shot.” Or sometimes more… The Fifth Circuit finds an ADA FAPE claim may be viable despite an IDEA FAPE finding

The intersection and interplay of the IDEA, ADA, and Section 504 can be complicated and confusing. All three laws provide protections to students with disabilities in public schools. But how are their requirements different? And when can families go to court versus when must they exhaust administrative remedies? What remedies are available under each? A year ago, the Supreme Court decided Perez v. Sturgis Public Schools, weighing in on when administrative exhaustion is required. That decision altered the paradigm of IDEA exhaustion and the interaction of these laws protecting students with disabilities.   

The Fifth Circuit recently joined the fray on this developing intersection of laws in Lartigue v. Northside Independent School District. The Fifth Circuit held that even though a hearing officer found that the district provided the student FAPE under the IDEA (and the student did not appeal that finding), the student might still be able to prove a violation of the ADA related to her accommodations. The decision scraps the previous understanding that the provision of IDEA FAPE was a defense to FAPE claims under Section 504 and the ADA. The school district has requested that the Fifth Circuit rehear the case en banc.

FAPE Focus: Equitable Services for Students in Virtual Schools

You know that LEAs have child find responsibilities for students enrolled in private schools that are located within the district’s boundaries, regardless of where the student resides. And that districts provide equitable services to students with disabilities enrolled in private schools that are located within the district’s boundaries, even if the student lives in another district. But what if the private school is a virtual school? What LEA is responsible for child find and equitable services when the students and educators may be scattered across the state – or even the country?

Introducing Thompson & Horton’s FAPE Focus

Introducing Thompson & Horton’s FAPE Focus, a series of short posts on our SpEd Law Spotlight blog to provide timely updates, practical tips, and useful reminders. First up: TEA has released the form required by HB 3928 that districts must provide to parents when there is reason to suspect a student may have dyslexia and need specialized instruction. The TEA FAQ clarifies that TEA expects districts to provide the form to parents when the district proposes to conduct an IDEA evaluation for dyslexia, refuses to conduct such an evaluation, and when the district proposes or refuses to conduct an IDEA evaluation for any other suspected disability. Districts should incorporate provision of the form into their practices starting immediately.

Despite Teacher Shortage, OSEP Says IDEA Compliance Requires Certified Teachers, No Waivers

The recent teacher shortage has caused districts to get creative regarding schedules, student grouping, and staff assignments. But just how creative can you be when it comes to the employees in your special education classrooms? The Office of Special Education Programs (OSEP) issued guidance on this topic on October 4, 2022, indicating that proper credentials will be an area of focus as we continue to navigate the post-COVID era.

Proposed Amendments to the TEA Complaint Process Are a Mixed Bag for Districts 

On September 23, 2022, the Texas Education Agency (“TEA”) issued a notice regarding proposed amendments to the sections of the Texas Administrative Code related to special education complaints filed with the TEA. The proposed rules are currently open for public comment and are the subject of a public hearing on October 6, 2022. The only major change impacting special education due process hearings would clarify that summary proceedings in hearing may only be used when both parties in the hearing agree to use the summary process. This is significant because parties are currently able to file motions for summary judgment – which allows a hearing officer to rule on the legal viability of a claim without the need for a complete hearing. This approach can be productive and cost-effective for school districts, as it permits hearing officers to sift through meritless claims without the need for a full hearing. This is currently permitted in a due process hearing without the consent of the other party, and this change would require consent.