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Direct From OCR:What To Do When OCR Comes Knocking

ACSA Every Child Counts SymposiumJanuary 18th, 2013

Jessica K. Plitt, Civil Rights AttorneyOffice for Civil Rights

Anne M. Sherlock, PartnerFagen Friedman & Fulfrost, LLP

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Introduction

• Morning Quiz

• What is OCR?

• OCR Case Processing and Investigations

• Scenarios

• Recommendations

• Questions and Answers

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Morning Quiz

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What is OCR??

What does OCR do? Bother school Districts?

OCR represents students?? True or false?

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Common Myth…

A student in general education earning A and B grades cannot be substantially limited.

TRUE or FALSE!

WHY?

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Who gets a 504 Plan?

• Students with Section 504 plans are not qualified to receive special education services.

• True

• False

• They might be qualified, if evaluated on a Friday.

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ADHD – ACK…

• What “major life functions” might be substantially limited if a student has ADHD?

• The only kids in the school with 504 plans have ADHD? True or False

• 504 is only for discipline? True or False

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What is OCR?

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OCR Case Processing and Investigations

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Case Processing Manual (CPM)

• Provides procedures for OCR to

– investigate complaints and compliance reviews,

– issue findings, and

– to secure resolution agreements that remedy discrimination policies or practices identified by OCR.

• Available on OCR’s website and included in your materials.

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Was an Appropriate Complaint Filed?

• OCR reviews the complaint to determine if it is sufficient, assigns a case number, and acknowledges the complaint.

• LEA will not be provided with a copy of the complaint until after the investigation is completed.

• LEA can speak with the investigator or OCR civil rights attorney for more information regarding the complaint.

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Does OCR Have Subject Matter Jurisdiction over the Allegations?

For our general purposes, a Complaint must allege:

• Discrimination based on race, color, national origin, sex, disability or age, or

• Retaliation

for the purpose of interfering with any right or privilege secured by the civil rights enforced by OCR, or

as a result of making a complaint, testifying, or participating in any manner in an OCR proceeding.

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When is a Complaint Accepted?

• OCR must have “personal jurisdiction” over the institution alleged to have discriminated; includes school districts, county offices of education, SELPAs, and charter schools.

• Complaint must be timely, generally filed within 180 days.

• If not accepted, then complaint is dismissed.

• Complaints may also be administratively closed.

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What Happens if a Complaint is Accepted?

• Letters of notification are sent to the complainant and LEA.

• Early Complaint Resolution (ECR) is an option for voluntarily resolving complaints by the parties with OCR acting as a facilitator.

• Investigation of the Complaint.

• Voluntary resolution agreement may be reached during an investigation.

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InvestigationsMay include:

• Data collection:– Pupil records

– Board policies and administrative regulations

– Student handbooks

– Notice of rights

• Written response from LEA regarding allegations. Consider including declarations.

• Interviews of complainant and LEA staff by phone or in-person.

• Site visits.

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Investigative Determinations: Letters of Finding

• OCR will determine if there is or is not sufficient evidence to support a conclusion or noncompliance.

• If noncompliance is found, then OCR will:– Initiate negotiations for a resolution agreement.

– LEA has 30 days to consider entering into a resolution agreement.

– If not, then OCR will issue a letter of finding and the Enforcement Office will continue working with LEA to reach a resolution agreement or LEA risks losing federal funding.

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Scenarios

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Scenario 1 – speedy resolution?

• Student is an elementary student who has an IEP. The Student is placed in general education but receives pull out services for Speech and Language, physical therapy and has exhibited delays in writing and pencil grip. In September, the PT suggested that the student be assessed for OT services, so the parents made a written request for an OT assessment immediately following the suggestion in September 2012. The District failed to follow through with the request. The Complainant filed with OCR in January.

• What should the District do to immediately resolve the complaint?

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Scenario 2 - compliance issue?

• Complainant has a student with tourettes and anxiety disorder. He is a Freshman in High school and is delayed in math. His tourettes causes him to have loud tics which are exacerbated by his anxiety. His parents often disagree with recommendations by the District. The Complainant contacts OCR with three specific complaints:– the student needs a private place to release his tics,

– the District is not provided extra time on tests and homework asstated in the IEP and

– the aide is not trained to understand algebra as required by theIEP.

• What is OCR’s jurisdiction and what can OCR do in this case?

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Scenario 3 - check your policies!

Parent claimed that the District failed to timely complete an assessment. Parent filed a complaint with OCR. As part of the investigation, OCR requested the student’s records and District’s policies regarding Section 504.

– Parent never consented to the assessment plan.

– District believed its 504 policies may be insufficient.

What should the District do?

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Scenario 4 – class or club?

• Student has an auditory processing disorder and has an IEP. One of the IEP components is extra time on tests and homework. Student tries out for choir and makes the first cut, the second cut requires the students to learn a specific song and work in teams. Each team has 8 hours to learn. Student does not make the second cut because she wasn’t able to learn the song in such a short amount of time.

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Scenario 4 cont..

• Complainant files a complaint with OCR alleging that her IEP was not implemented because she didn’t get extra time to learn the song.

• Does OCR have jurisdiction?

• If so, what should the District do when OCR contacts the District.

• What information would help OCR make a determination?

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Final Scenario - ADHD

• Parent files a complaint with OCR because Student has combined type ADHD and the District is refusing to provide a 504 plan because the Student gets good grades. Student has pretty extreme executive functioning limitations but scores through the roof on testing. When Student turns in homework, it is typically done correctly, but Student fails to turn in homework on a regular basis. Student is receiving a C in a class even though he achieved a 97 on the final.

• Parent has made several attempts to get Student help from the teachers to remind the school that he needs encouragement to turn in his work. Parent checks the student’s backpack in the morning for the work, follows up on school loop and supports as much as possible at home, but gets no help from the teachers or administration.

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Final Scenario cont..

• Should Student be on a 504 plan, why or why not?

• Was the 504 plan determined correctly?

• How should a District make a determination of when a student needs a 504 plan?

• What should the District do if OCR receives the complaint and sends a letter opening the complaint?

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Recommendations for Responding to an OCR Complaint

• Call the LEA’s attorney.

• Contact the OCR investigator or staff attorney to discuss the allegations.

• Ask for more time to respond if needed.

• When responding to a data request from OCR, consider drafting a detailed, written explanation in response to the allegations.

• Consider including written declarations to support your written response.

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Recommendations for Responding to an OCR Complaint

• Consider the Early Complaint Resolution process.

• Pursue a voluntary resolution is appropriate.• Remember that an investigation may not be

limited to the actual allegations. Additional compliance issues may be discovered and investigated even though they are unrelated to actual complaint allegations.

• LEA’s attorney may participate in interviews and should meet with staff to be interviewed to explain the process.

• LEA’s attorney may be present for site visits.

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Questions?

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Jessica K. Plitt, Civil Rights AttorneyOffice for Civil Rightsjessica.plitt@ed.gov

415-486-5525

Anne M. Sherlock, PartnerFagen Friedman & Fulfrost, LLPasherlock@fagenfriedman.com

916-443-0000