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Spotlight On Practice

OCR Investigations and Outcomes

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Spotlight on Practice Overview Steps in OCR Investigation Process Top Section 504 Trouble Spots Recent Guidance: Athletics Practical Response Tactics

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Upsurge in Complaint Filings

12,000 complaints (2009-11) Far more than ever before Reasons?

Easy to fileMedia attention

on discriminationissues

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Steps in Investigation Process

ComplaintWhat happened, who caused it, who was

injuredWon’t consider: Verbal or anonymous charges

JurisdictionSubject Matter: Section 504, Title II of ADAPersonal: Institution receiving ED funding

(504); all public schools (ADA)

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Steps in Investigation Process

Decision to Close Complaint If not timely filed (within 180 days)Other numerous reasons

Early Complaint ResolutionVoluntary processOCR serves as facilitator

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Steps in Investigation Process

Components of Investigation Interviews and/or site visitDocument examinationEvaluation of legal issues

Letter of FindingsOCR’s conclusion of legal complianceCan ask for reconsideration within 60 days

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Steps in Investigation Process

Resolution AgreementsDetails steps district will take to remedy

violationSets timelines for implementationEstablishes procedures to verify

implementation

Monitoring Notification of deficiencies and corrective actionClose complaint when terms satisfied

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Trouble Spots: Procedural Safeguards Investigation and Findings

Parent complained of receiving contradictory information

Numerous inaccuracies and inconsistencies Missing contact info for 504 coordinator No info on how to request 504 hearing No process in place for 504 hearing

decision-making

Berlin (NH) Pub. Schools (OCR 2009) No. 01-09-1140, 54 IDELR 205

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Trouble Spots: Procedural Safeguards Bottom Line

OCR routinely examines grievance procedures

Review all handbooks, polices, forms, and notices to ensure compliance

Although rare, 504 hearings can happen; have a process in place

Berlin (NH) Pub. Schools (OCR 2009) No. 01-09-1140, 54 IDELR 205

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Trouble Spots: Evaluations/Eligibility Investigation and Findings

Denied eligibility for Student with gastrointestinal disorder

Applied inappropriate eligibility standard by only considering impact on learning

Should have considered how Student would perform without accommodations

Oxnard (CA) Union High School Dist. (OCR 2009) No. 09-09-1195, 55 IDELR 21

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Trouble Spots: Evaluations/Eligibility Bottom Line

Understand Section 504 eligibility requirements

Review policies to ensure eligibility not restricted to impairments that affect only learning

Know changes in eligibility standards as a result of ADAAA

Oxnard (CA) Union High School Dist. (OCR 2009) No. 09-09-1195, 55 IDELR 21

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Trouble Spots: Bullying/Harassment Investigation and Findings

Parent provided District with “List of Bullies” that included acts of alleged harassment against her son

Investigation flawed: Did not interview witnesses, document charges, or inform Parent of outcome

Disability complaint policies also flawed

Westfield (MA) Pub. Schools (OCR 2009) No. 01-08-1216, 53 IDELR 132

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Trouble Spots: Bullying/Harassment Bottom Line

OCR takes peer-on-peer harassment charges extremely seriously

Review existing policiesDon’t conduct broad-brush investigation;

be thorough

Westfield (MA) Pub. Schools (OCR 2009) No. 01-08-1216, 53 IDELR 132

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Trouble Spots: Discipline Investigation and Findings

Student dismissed early (noon or 1 p.m.) for 17 consecutive days for yelling, howling, etc.

No manifestation determination Suspensions constituted “pattern” (close

proximity in time for similar behavior)

South Bronx (NY) Classical Charter School (OCR 2012) No. 02-12-1064, 59 IDELR 231

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Trouble Spots: Discipline

Bottom LineKeep close tabs on suspension days; early

dismissal countsKnow legal standards for determining

“pattern” of suspensionsWhen in doubt, conduct manifestation

determination

South Bronx (NY) Classical Charter School (OCR 2012) No. 02-12-1064, 59 IDELR 231

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Trouble Spots: Extracurriculars Investigation and Findings

Student’s IEP called for band participation, integration with peers

During trip to Disneyland, band director excluded him from parade, recording session and picture

Reasons for exclusion (easily tired, unable to read music) not legitimate

Marana (AZ) Unified School Dist. (OCR 2009) No. 08-09-1054-B, 53 IDELR 201

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Trouble Spots: Extracurriculars Bottom Line

Inform staff responsible for field trips of Section 504’s requirements

Make sure they are aware of IEP or 504 plan provisions relevant to participation

Marana (AZ) Unified School Dist. (OCR 2009) No. 08-09-1054-B, 53 IDELR 201

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Trouble Spots: Accommodations Investigation and Findings

504 team approved accommodations for Student that included one-to-one and small group testing

No written confirmation/documentation of team’s decision

Led to different understanding among staff, inconsistent services

Mansfield (AR) Pub. Schools (OCR 2012) No. 06-12-1108, 59 IDELR 265

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Trouble Spots: Accommodations Bottom Line

Document all relevant 504 team decisionsEnsure teachers and staff responsible for

services Receive copy of plan Know what it requires of them Have opportunity to ask questions

Mansfield (AR) Pub. Schools (OCR 2012) No. 06-12-1108, 59 IDELR 265

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Trouble Spots: Transportation Investigation and Findings

District scheduled buses for studentswith disabilities to depart earlier thanother buses

Reason: “It takes longer to load disabled students”

Practice resulted in 15 students having shortened school day averaging 55 minutes lost

Blount County (TN) School Dist. (OCR 2004) No. 04-04-1030, 42 IDELR 65

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Trouble Spots: Transportation

Bottom LineParticularly with transportation, OCR looks

into general allegations of noncomplianceAdministrative convenience no excuse for

shortened school dayDeterminations on length of school day

must be individualized through IEP process

Blount County (TN) School Dist. (OCR 2004) No. 04-04-1030, 42 IDELR 65

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Trouble Spots: Retaliation

Investigation and Findings Parent filed unsuccessful OCR complaint

concerning refusal to allow Student to travel to Germany or enroll in advanced German class

Following year, District did not permit Student to enroll in advanced German class (stated reason: grades)

Retaliation? Staff discussed not placing Student in class because of prior OCR complaint

Pinellas County (FL) School Dist. (OCR 2008) No. 04-08-1333, 52 IDELR 23

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Trouble Spots: Retaliation

Bottom LineAvoid difficult parent-staff relations

following parent’s filing of complaintDon’t allow prior complaint to influence

future conduct

Pinellas County (FL) School Dist. (OCR 2008) No. 04-08-1333, 52 IDELR 23

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New OCR Guidance: Athletics

Dear Colleague LetterReasonable modifications to ensure equal

opportunityUnless “fundamental

alteration”New: Create “additional

opportunities” for studentswho can’t participate

Dear Colleague Letter (OCR 2013) 113 LRP 3326

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New OCR Guidance: Athletics

Dear Colleague LetterMany unanswered questionsNo timeline“Should create” vs.

“must create”

Dear Colleague Letter (OCR 2013) 113 LRP 3326

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Some Practical Response Tactics

Think ProactivelyReview, update notices, manuals, policies,

forms

Inform All Relevant Parties ASAPSuperintendent, attorney,

staff, insurance provider

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Some Practical Response Tactics

Understand the ComplaintContact OCR to discuss allegationsNot entitled to copy of complaint

Assure OCR of CooperationProvide requested documentsEstablish scheduleEnsure staff availability

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Some Practical Response Tactics

Gather and Organize DocumentsAnticipate requestsSelect appropriate documents

Supporting MaterialsCarefully draft response

or explanation if requested

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Some Practical Response Tactics

Ask for More Time If NeededOCR generally will agree to short

extensionDocument and reconfirm

Prepare for Interviews and Site VisitsConsider involving attorney

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Some Practical Response Tactics

Discuss/Develop Resolution StrategiesConvene meeting ASAP to discuss options

Understand Resolution AgreementMake sure everyone

knows responsibilities

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .