OCR Class Action

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The Office of Civil Rights (OCR) is the federal agency tasked with enforcing laws against discrimination based on race, color, national origin, disability, age, sex, and religion. If one believes that you or your child have been discriminated against because of your disability (or race, religion or gender for example)  by a State or local government agency, or any covered entity, a.k.a. a public school, the OCR is an appropriate place to seek corrective action.  

What is discrimination?

According to the OCR, covered entities, or schools,  must not, on the basis of disability:

  • Exclude a person with a disability from a program or activity;
  • Deny a person with a disability the benefits of a program or activity;
  • Afford a person with a disability an opportunity to participate in or benefit from a benefit or service that is not equal to what is afforded others;
  • Provide a benefit or service to a person with a disability that is not as effective as what is provided others;
  • Provide different or separate benefits or services to a person with a disability unless  necessary to provide benefits or services that are as effective as what is provided others;

According to the OCR, schools must: 

  • Provide services and programs in the most integrated setting appropriate to the needs of the qualified individual with a disability
  • Ensure that programs, services, activities, and facilities are accessible
  • Make reasonable modifications in their policies, practices, and procedures to avoid discrimination on the basis of disability, unless it would result in a fundamental alteration of the program
What can I expect from the process of filing a complaint with the OCR?

The Office of Civil Rights protects students in many ways. When a complaint is filed they look at it and discuss among themselves: If all of the allegations are true, does this fall under our purview?

If so, they will take the complaint and open an investigation. The complaint is shared with the district and federal lawyers take over the investigation. There is no cost to the one filing the complaint, no getting a lawyer or advocate (you can but there is no need), just answering questions to OCR lawyers may ask. There is no direct interaction with the district. 

Will the District be aware of a complaint filed with the OCR? Should I be worried about retaliation against me or my child?

The first time the school district hears of a complaint is if (AND ONLY IF) the OCR has moved the complaint into the investigation stage.  Once the complaint is filed, a person actually has more protection than had he/she not filed, as retaliation is extremely frowned upon by the OCR (i.e. it is illegal).  If a complaint is filed jointly and a summary is submitted, rather than individual comments or concerns,  then no one will see your specific concerns nor know your name other than the two people putting this together … and the OCR; your name will be within the complaint. If and when the investigation starts, it is then that the district may learn your name.

Here is additional information if you want. Anyone can file with the OCR using the information here but we are doing this more as a group so there will be slight differences. Don’t fill out the form there if you want to join with us (power in numbers). See their web page.

This is the full OCR manual that is 30+ pages about the procedure.

And this is a much smaller part of that manual with my highlighting.

Join us in filing a complaint as a group, sending a single complaint from many parents experiencing the same issues.

All questions are required to have an answer! And you can withdraw at any time.

    Are you (required):
    Parent or Guardian of student with IEP or 504 planTeacher or Para in the PSBService Provider for PSB

    The questions are worded for parents, but if you check the "No" box (for almost all questions) an "Additional Information" area will show and you can put the information you want to add there as appropriate. Thank you for participating!
    If you have more than one student to talk about you can put multiple names in the NAME field (and SCHOOL and GRADE). When answering the questions, the answer can refer to any one or more of your students. The specifics will be worked out later. You can also clarify in the "Additional Information" area that will show depending on your answer to each question.

    You must answer each question below. Thank you for joining the effort.

    I have more than one student with disabilities




    Do you believe your student is getting FAPE (i.e. a free and appropriate education as defined by their IEP) during the times that general education students are also being educated?
    YesNo

    Additional information - OPTIONAL (this may include parts of the IEP that are not being implemented, missed services, “double-dosing” of content because of a lack of staffing or space, a retraction of 5-day schooling because of a lack of staffing or space, etc.):
    OCR discussion behind this question

    Is an LEA required to continue to provide a free appropriate public education (FAPE) to students with disabilities during a school closure caused by a COVID-19 outbreak?
    Answer: The IDEA, Section 504, and Title II of the ADA do not specifically address a situation in which elementary and secondary schools are closed for an extended period of time (generally more than 10 consecutive days) because of exceptional circumstances, such as an outbreak of a particular disease.
    If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. Once school resumes, the LEA must make every effort to provide special education and related services to the child in accordance with the child’s individualized education program (IEP) or, for students entitled to FAPE under Section 504, consistent with a plan developed to meet the requirements of Section 504. The Department understands there may be exceptional circumstances that could affect how a particular service is provided. In addition, an IEP Team and, as appropriate to an individual student with a disability, the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, would be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.
    If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)). SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).

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    Do you feel the District used an individualized determination of your child’s educational and disability-related needs when determining your child’s assignment during the 2020-2021 remote or re-opening school year period?
    YesNoNot applicable

    Additional information - OPTIONAL:
    OCR discussion behind this question

    What should school districts consider if they are phasing in the use of physical facilities and in-person instruction for students with disabilities before others?
    Answer: The Department understands that there may be circumstances where schools decide to prioritize in person instruction for students with disabilities, in order to provide the services necessary to ensure that those students receive a free appropriate public education (FAPE) under Section 504 of the Rehabilitation Act of 1973 (Section 504)
    Whether a school district that is phasing in in-person instruction may be required to give priority to a student with a disability, however, will depend on an individualized determination of the student’s educational and disability-related needs, and whether providing in-person instruction or services would be a reasonable modification to a reopening policy that is necessary to provide a student a FAPE or otherwise to avoid discrimination on the basis of disability. Moreover, as the Department explained in its March 16 Fact Sheet, provision must be made to provide special education and related services for students who have Individualized Education Programs (IEPs) developed through the IDEA or are receiving services under Section 504 and who are required or advised to stay home by public health authorities or school officials for an extended period of time because of COVID-19. This also applies if a student is absent from school as advised by the student’s treating physician, consistent with school policy and documentation requirements.
    source


    Were you involved or was your input included in the decision as to whether your student would be “First-to-Return” or, during hybrid, a 5-day student?
    YesNoNot applicable

    Additional information - OPTIONAL:

    Has the district reduced or limited the services your student needs to have from what is stated in the IEP?
    YesNoNot applicable

    Additional information - OPTIONAL:

    Is your child able to engage in the services as they are currently being delivered?
    YesNoNot applicable

    Additional information - OPTIONAL:

    Did all service start within the first week of 'school'?
    YesNoNot applicable

    OCR discussion behind these questions

    Do State- or district-wide decisions that specifically reduce or limit services for students with disabilities, without regard to their individualized needs, violate Section 504?
    Answer: Yes. Section 504 requires individual decision-making regarding the type, frequency, and manner in which special education and related services will be provided to students with disabilities. As such, State-wide or district-wide policies that reduce or limit services specifically for students with disabilities in a particular jurisdiction, without regard to any reasonable modifications or services that may be necessary to meet the individualized needs of those students, run afoul of Section 504.7

    source


    If you consented to any evaluations or reevaluations, did they occur during Remote Learning?
    YesNoNot applicable

    Additional information - OPTIONAL:
    OCR discussion behind this question

    If a school district is offering only distance learning, is it required to conduct evaluations and reevaluations under Section 504?
    Answer: Yes. Schools must continue to meet the requirements of Section 504, consistent with the need to protect the health, safety, and well-being of students, school staff, and other individuals responsible for providing special education and related aids and services to students with disabilities. Section 504 requires school districts to conduct an evaluation in a timely manner of any student who needs or is believed to need special education or related services because of a disability before taking any action with respect to the student’s initial placement in regular or special education, and requires “periodic” reevaluation of students who have been provided special education or related services. Section 504 also requires school districts to conduct evaluations prior to any subsequent significant changes in placement. Evaluations and reevaluations should take place within a reasonable time frame under the current circumstances, and the Department typically looks to the timelines set by the IDEA and State law when determining whether the time taken to complete an evaluation was reasonable. However, nothing in Section 504 prohibits parents and school personnel from mutually agreeing to waive or postpone governing timelines on evaluations or reevaluations.
    source


    Is the district failing to implement aids, services, or accommodations/modifications identified in the IEP or Section 504 plan?
    YesNoNot applicable

    Additional information - OPTIONAL:

    Do you feel the District is making individualized determinations for your child with regard to how IEP or 504 education, aids and/or services are be provided through a variety of instructional methods and settings?
    YesNoNot applicable

    Additional information - OPTIONAL:

    Is the school staff working with you to find ways to meet the needs of your student with disabilities, notwithstanding challenges due to COVID-19?
    YesNoNot applicable

    Additional information - OPTIONAL:
    OCR discussion behind these questions

    If a school is experiencing operational challenges relating to COVID-19, including suspending in-person instruction and offering distance learning, must the school revise plans developed to meet the requirements of Section 504 to reflect the change to distance learning?
    Answer: Placement decisions and educational settings in effect at the time that a school suspends in-person instruction in response to concerns over COVID-19 do not need to be changed or updated solely to reflect a temporary shift to distance learning. However, State and local decisions that require schools to limit or suspend in-person instruction do not relieve school districts of the obligation to provide a FAPE to students with a disability. And as explained in Question 5, failing to implement aids, services, or accommodations/modifications identified in an IEP or Section 504 plan could in some cases deny a student a FAPE, violating Section 504. School districts should therefore continue to make individualized determinations as to whether students’ IEPs or Section 504 plans need to be revised to ensure students with disabilities are provided a FAPE, including by identifying how the special education or related aids and services called for by a student’s IEP or Section 504 plan may be provided through a variety of instructional methods and settings. School staff and parents are encouraged to work together to find ways to meet the needs of students with disabilities, notwithstanding challenges due to COVID-19.
    source


    Have you been asked or required to waive any rights before the district would deliver online services? Before an IEP meeting or concerning the way the IEP meeting is run? (allowing to record, limitation on time and day, etc.)
    YesNoNot applicable

    Additional information - OPTIONAL:
    OCR discussion behind this question

    May a school district require parents to sign waivers before the district delivers online services to students with disabilities under Section 504? Answer: No. Public school districts may not require parents of students with disabilities to waive any rights afforded to students under Section 504 as a condition of receiving a FAPE.
    source


    Do you feel that these three points are being met for your student with a disability?
    • Students with disabilities must have equal opportunities as students without disabilities to participate in services, programs and activities.
    • Online learning should be developed and maintained to be accessible to individuals with a variety of disabilities.
    • Online learning should be compatible with a wide variety of forms of assistive technology (e.g., screen readers, mouth joysticks, eye tracking inputs, etc.).

    YesNoNot applicable

    Additional information - OPTIONAL:

    Have you been provided with a “Remote Learning Plan” by your special education liaison that incorporates any feedback you may have provided?
    YesNoNot applicable

    Additional information - OPTIONAL:

    If your student is an English Language Learner (ELL):
    Has the student's language instruction been offered during the time of remote learning (even if the delivery was different due to the pandemic)?
    YesNoNot applicable

    Additional information - OPTIONAL:
    OCR discussion behind this question

    Must an LEA providing remote learning provide language instruction services to ELs? Yes, if an LEA is providing remote learning for its students, the LEA must provide language instruction services to ELs. However, during the COVID-19 national emergency, the Department recognizes that physical school closures may affect how services are provided to ELs. EL services may be provided virtually, online, or via telephone. The Department understands that, during this national emergency, schools may not be able to provide all services in the same manner they are typically provided. The Department recommends that during remote learning, EL teachers continue to provide instruction to students who were previously in self-contained EL classrooms or in pull-out models. For classes in which ELs participated in mainstream classrooms with both a content teacher and an EL teacher, the EL teacher should continue to collaborate with the content teacher to ensure that the appropriate supports and accommodations are provided to the ELs in that class through remote learning. Additionally, during remote learning, teachers should continue to provide appropriate supports and accommodations to EL students who were previously in mainstream classrooms with only a content teacher to the greatest extent possible. The Department encourages parents, educators, and administrators to collaborate creatively to continue to meet the needs of ELs. Consider practices such as remote instruction, telephone calls, meetings held on digital platforms, online options for data tracking, and documentation of services, supports, and accommodations provided. In addition, an LEA might consider nontechnology-based strategies, such as providing instructional packets or assigning projects and written assignments to EL students. In each instance, the Department recommends continuity in providing language services to ELs to the greatest extent possible under the current circumstances.
    source


    During remote learning, are language accommodations being given in content classes?
    YesNoNot applicable

    Additional information - OPTIONAL:
    OCR discussion behind this question

    Must an LEA that is operating remotely provide language accommodations for ELs in content classes? Yes. The LEA is required to provide language accommodations for ELs for content classes that are held remotely. Many accommodations may be effectively provided online. These may include, for example, extensions of time for assignments, videos with captioning or embedded interpreting, accessible or translated reading materials, other language services provided through video conferencing, an online translation dictionary, or other technological solutions. Funds under Title III of ESEA can be used for that purpose, provided they do not supplant State, local, or other Federal funds (see “Use of Title III Funds” section below). Funds received under the ESSERF or the GEERF of the CARES Act can generally be used for these purposes and are not subject to supplement- not- supplant requirements. Although Federal law requires meaningful access to remote instruction, it does not mandate specific methodologies for providing that access. Where technology itself poses a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing ELs equally effective alternate access to the curriculum or services provided to other students. In some cases, this may be accomplished, for example, through hard copy packets, teacher check-ins, or tutorials. How can an LEA continuing to provide instruction remotely ensure that ELs have access to grade-level content in a platform without typical scaffolds and supports? SEAs, LEAs, schools, and teachers should use all available resources to meet EL students’ needs while operating remotely. If the LEA’s platform does not provide the EL supports it typically provides to its students, groups of educators could work together to craft relevant tools and resources for EL students. If remote education is continuing, ELs must receive appropriate language services and supports to the greatest extent possible. Is an LEA required to continue to provide a free appropriate public education (FAPE) to ELs with disabilities during a school closure due to the COVID-19 national emergency? If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that ELs with disabilities also have equal access to the same opportunities, including the provision of FAPE.6 SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability, including each EL with a disability, can be provided the special education and related services identified in the student’s individualized education program (IEP) developed under the Individuals with Disabilities Education Act (IDEA), or a plan developed under Section 504.7 The following resources outline a state’s responsibility to infants, toddlers, and children with disabilities and their families, and to the staff serving these children. As additional resources become available they will be posted at www.ed.gov/coronavirus.

    source


    Do you fully understand all the communications from the district and do you think you are being given all the information about what is happening that other parents are getting?
    YesNoNot applicable

    Additional information - OPTIONAL:
    OCR discussion behind this question

    How should SEAs and LEAs ensure meaningful communication with parents of ELs in a language and format they can understand and access? SEAs and LEAs have an obligation to ensure meaningful communication with parents of ELs in a language they can understand and to adequately notify limited English proficient (LEP) parents of information about any program, service, or activity of an SEA or LEA that is called to the attention of non-LEP parents. Many LEAs are sending crucial information to parents during this time regarding, for example, the expectations for parents to pick up or set up new technology, new enrollment protocols, and how to support their students at home. SEAs and LEAs should consider all possible methods in order to ensure meaningful communication with LEP parents of all students, including EL students. For example, an LEA should translate all mailings and emails to parents to ensure parents have access to the information in a language they understand. For parents who are not literate, some LEAs are using recorded telephone calls that go to families, which include several different recorded language options that parents can choose, but these recorded telephone calls should be developed carefully to help ensure that they are understandable. SEAs and LEAs can generally use CARES Act funds under the ESSERF and GEERF for communications with parents, including translation and interpretation services.
    source

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