January 4, 2022 - Threat Assessments for Students with Disabilities

 Threat Assessments for Students with Disabilities 

Brandon K. Wright

Christine G. Christensen

Anastasia E. Brunner

Miller, Tracy, Braun, Funk & Miller, Ltd.

 

       One of the many effects of the ongoing COVID-19 pandemic is the lack of attention paid to other important legal issues to the school community. One of the very important issues that lost traction due to the onset of the pandemic in March 2020 was the initiation of each school district’s threat assessment procedures required under the Illinois School Safety Drill Act, 105 ILCS 128/45. Each school district’s threat assessment procedures and threat assessment team were to be instituted just prior to March 2020, and understandably took a back seat to the obvious priority of the pandemic. However, these requirements still exist, are still important, and deserve our attention, particularly as issues of targeted school violence and safety issues take priority after major incidents like the December 2021 school shooting in Oxford, Michigan. There are a number of requirements and considerations that districts must consider in conducting threat assessments, all of which are necessary to ensure the safety of the school community. Beyond these requirements, there are additional considerations necessary for students with disabilities.

1. Safety Drill Act Requirements

First, school districts must complete safety drills. A school building must conduct at least three evacuation drills each academic year. 105 ILCS § 128/20. At least one of these drills must include participation by a local fire department or district. Id.  Each school must also conduct an annual law enforcement lockdown drill to address a school shooting incident, which must involve local police officials and cannot occur any later than 90 days after the start of each school year. Id. The Illinois General Assembly recently amended the Illinois School Safety Drill Act to prohibit school districts from mimicking an actual school shooting incident, and to require that the school shooting drill must be announced in advance to school personnel and students before the drill occurs. 105 ILCS § 128/20(c)(1)(C-D). Public Act 102-395.

Also embedded within the Illinois School Safety Drill Act is the requirement that each school district create a threat assessment team.  Section 45 of the Illinois School Safety Drill Act requires each school district to implement a threat assessment procedure as part of its targeted school violence prevention policies. The procedure must include the creation of a threat assessment team, which must include at least one administrator, one teacher, one school counselor, one school psychologist, one school social worker, and one law enforcement official.  For most school districts, these requirements were implemented as part of their PRESS Policy No. 4:190 and related administrative procedures and exhibits.  This policy and related procedures are very specific, and it is essential that every member of a school district’s threat assessment team is familiar with both the policy and the procedures.

2. Threat Assessment Guidance

In addition to these state law requirements, federal guidance over time has suggested that school districts must conduct threat assessments as part of any well-designed approach to school safety. Threat assessments are of vital importance to ensuring the safety and security of students and the larger community. Threat assessments and school safety plans should not be a one-size-fits-all solution and should instead consider the nuances of the situation and the individual. Enhancing School Safety Using a Threat Assessment Model: An Operational Guide for Preventing Targeted School Violence, National Threat Assessment Center, July 2018, available at https://www.cisa.gov/sites/default/files/publications/18_0711_USSS_NTAC-Enhancing-School-Safety-Guide.pdf. 

The threat assessment team is an important part of the threat assessment process because it allows persons with differing perspectives to discuss potential threats and help develop an appropriate response. Using a Threat Assessment Model: An Operational Guide for Preventing Targeted School Violence, National Threat Assessment Center, July 2018, available at https://www.cisa.gov/sites/default/files/publications/18_0711_USSS_NTAC-Enhancing-School-Safety-Guide.pdf. The threat assessment team must include the following persons, each employed by the school district or the special education cooperative, (1) an administrator, (2) a teacher, (3) a school counselor, (4) a school psychologist, (5) a school social worker, and (6) at least one law enforcement professional. 105 ILCS 128/45. The threat assessment team should designate a team leader. Using a Threat Assessment Model: An Operational Guide for Preventing Targeted School Violence, National Threat Assessment Center, July 2018, available at https://www.cisa.gov/sites/default/files/publications/18_0711_USSS_NTAC-Enhancing-School-Safety-Guide.pdf. This team leader could, but need not be, a senior administrator at the school. Id. Whoever is chosen to fill the role of team leader should be able to facilitate a timely response from all other team members to address any potential threats. Id.

Threat assessment teams should consider mental health factors or factors related to a student’s disability when determining the proper response. Id. at 3. The National Threat Assessment Center (hereinafter sometimes “NTAC”) advises that threat assessment teams should meet regularly – not only when there is a perceived threat – because of the importance of acting as a cohesive unit during an actual threat assessment. Id. It is also important for the threat assessment team to ensure there are clear policies related to prohibited behaviors warranting immediate intervention and options for reporting potentially concerning behavior. Id. at 4 and 6. 

The primary goal of a threat assessment team is “not to administer discipline or have a student arrested,” but to get the student in question the assistance they need to ensure a positive outcome for both the student and the larger community.  Averting Targeted School Violence, a U.S. Secret Service Analysis of Plots Against Schools, Lina Alathari et al., National Threat Assessment Center, March 2021, available at https://www.secretservice.gov/sites/default/files/reports/202103/USSS%20Averting%20Targeted%20School%20Violence.2021.03.pdf. According to the 2021 NTAC report, approximately 70% of plotters “exhibited behaviors indicating the presence of some type of mental health symptom in the time leading up to, or around, the discovery of their plots.” Id. at page 36.  There “are almost always intervention points available before a student’s behavior escalates to the point where an arrest may be warranted.” Id. at page 49. Further, simply removing a student from school may not eliminate the risk the student poses to themselves or to others. Id. at page 51.  

School violence is preventable when there is community involvement in identifying warning signs and intervening. Id. at 50-52. Students, parents, community members, and staff are all persons who could assist in recognizing and reporting concerning behaviors before they escalate into a threat. As such, their training and involvement in the process is paramount to a threat assessment team’s success. 

Courts, hearing officers, and threat assessment teams have struggled with the careful balance required for a threat assessment.  The court in Wyner v. Douglas County Sch. Dist.,113 LRP 35121 (9th Cir. 08/29/13) aptly observed: “it [threat assessment] is a feat like a tightrope balancing, where an error in judgment can lead to a tragic result.” The central question of the threat assessment should therefore be whether an individual poses a threat, not simply whether or not the individual has made a threat. This distinction is imperative when discussing students with disabilities. 

Ultimately, the goal of the threat assessment process must be intervention, not merely discipline.  In order to foster the culture of intervention, school district threat assessment teams need to know and understand their role, be prepared to act quickly, be prepared to remain involved with a student over a long period of time to ensure interventions are monitored, and do much more than merely “checking a box” as having met.

3. Considerations for students with disabilities 

School districts may remove a student with a disability if the student poses a direct threat to the health and safety of others. 28 C.F.R. §35.104. See also 23 Ill. Admin. Code § 375.60(a). A direct threat is a “significant risk to the health and safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids and services.” Id. This regulation applies to those who might become violent and circumstances that pose a health or safety risk. Id. Section 504 has also been interpreted to allow a district to deny participation to a student with a disability who poses a direct threat to the health and safety of others. See Berkeley (IL) Sch. Dist., 67 IDELR 100 (OCR 2015); see also St. Charles (MO) R-VI Sch. Dist., 55 IDELR 175 (OCR 2010). 

Generally, a school district is required to conduct a manifestation determination review (“MDR”) prior to removing a student for a disciplinary purpose beyond ten (10) days.  34 C.F.R. 300.530, et seq.  As threat assessment teams consider the interventions, and possible recommendations for removals from school as part of the intervention process, the requirement to consider the rights of students with disabilities, particularly both the procedural and substantive aspects of the MDR process. 

Under the IDEA, a school may remove a student to an interim alternative educational setting for no more than forty-five (45) school days if certain conditions are met. Namely, the school district may remove a student with a disability to an alternative setting if the student: (1) Carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a state or local educational agency; (2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or LEA; or (3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or LEA.20 U.S.C. §1415 (k) (1) (G). The school district may remove the student for forty-five (45) days – regardless of the outcome of the MDR – if one of the three scenarios described above occurs. Questions and Answers on Discipline Procedures, 52 IDELR 231 (OSERS 2009);34 C.F.R. §300.530(g)(1).

School districts should also consider whether or not the behaviors discussed during the threat assessment warrant additional supports. In this determination, schools should consider the impact a Functional Behavioral Assessment or a Behavioral Intervention Plan may have.  Remember, the main purpose of the threat assessment is not to discipline, nor is it to introduce students to the criminal justice system. The main objective is getting the student in question the help they need.  For students with disabilities, this certainly may be a FAPE issue with an important role for the IEP team - not merely the threat assessment team.

4. When is an assessment an evaluation?

It is important for school districts and threat assessment teams to understand the extent to which a threat assessment might constitute an evaluation under the IDEA or Section 504. An evaluation may be required for students with disabilities before a school district can significantly change their placement, including non-disciplinary removals for medical and psychiatric problems. The need to consider the protections afforded to students with disabilities in the midst of threat assessments is highlighted in Boston (MA) Public Schs., 53 IDELR 199 (OCR 2009).  In Boston Public Schools, a student with neurological delays expressed suicidal ideations to school staff members. School staff determined the student’s safety was at risk and the student’s parents were asked to pick the student up from school. Id. The student missed seventeen (17) school days because of the school district’s suicide-prevention policy, which prohibited a student from returning to school without a letter of authorization from a medical or mental health provider. Id. The school district failed to provide special education services for those seventeen (17) days. Id. The student was also not reevaluated until approximately two (2) months after the student was initially removed. Id. In reviewing the district’s actions, OCR found the school district did not meet its Section 504 obligations for the student. Id. Without question, there are time where requiring an assessment outside of the threat assessment team or IEP team review process would constitute an “evaluation” - which means that the procedural and consent requirements related to the evaluation must be followed.

Even if it is determined an assessment is not an evaluation, school districts should consider whether the threat assessment meeting demonstrates that an IEP meeting is necessary and that there should be any changes to the student’s IEP in connection with the threat assessment team’s recommendations. 

Additionally, parents must be provided the opportunity to participate if a threat assessment is related to the provision of a free and appropriate public education. In re: Student with a Disability, 120 LRP 14940 (SEA NM 04/01/20). In Student with a Disability, a hearing officer concluded that a school district’s failure to include parents in a threat assessment meeting significantly impeded the parents’ ability to participate in the decision-making process. Id. This determination was reached in part because the student’s behavioral needs were a major component for the student’s need for special education services. Id. Additionally, the threat assessment itself focused solely on those behavioral needs and challenges. Id. 

5. Confidentiality Concerns

As threat assessment teams are completing their work, they must also bear in mind the confidentiality concerns inherent in the process.  The Illinois School Safety Drill Act specifically notes that “any sharing of student information under this Section must comply with the federal Family Educational Rights and Privacy Act of 1974 and the Illinois School Student Records Act.” 105 ILCS 128/45(c).  While FERPA and ISSRA certainly permit school officials to have access to student records when in the student’s current interest and when in the course of their duties, the inclusion of a law enforcement officer on the threat assessment team may require additional consideration.

Schools are permitted to disclose education records if a state statute specifically authorizes such a disclosure and the disclosure is made for the purpose of effectively serving the student. 34 FR 99.31(a)(5) and 34 C.F.R. 99.38(a). In Illinois, information may be released without parental consent “in connection with an articulable and significant threat to the health and safety of a student or other individuals, to appropriate persons if the knowledge of the requested information is necessary to protect the health or safety or the student or other individuals …” 23 Ill. Adm. Code § 375.60(a). However, when such information is released, parents must be notified no later than the following school day after the information is released. Id. 

The Family Policy Compliance Office has stated it will not substitute its own judgment for the judgment of the school district. Letter to Anonymous, 115 LRP 33141 (FPCO 2015). Therefore, there was no FERPA violation when the school district decided to disclose a student’s threat assessment to the police and to area schools. In making this ruling, the Office cited the exception to FERPA wherein a school district could without parental consent disclose information from students’ education records in order to protect the health or safety of the student or of other individuals. The district, in this case, determined the student presented a “high level of risk” and therefore nonconsensual disclosure was rationally related to the goal of protecting the health and safety of students and other individuals. The US Department of Education reiterated this position in guidance proliferated in 2019.  See School Resource Officers, School Law Enforcement Units and the Family Educational Rights and Privacy Act (FERPA), 119 LRP 4185 (EDU 02/12/19). As a result of this deference, school officials need only have reasonable grounds for reaching the conclusion that a health or safety emergency exists. Letter to Anonymous, 53 IELR 235 (EDU 2008). Once a student has been reported to and is in the hands of the authorities, the emergency no longer exists in most situations. Id. 

6. Consider the individual student 

Perhaps the most important piece for threat assessment teams and school districts to remember is to consider the individual student. When school officials do not understand a student’s disability, they are also unlikely to understand and appropriately respond to a threat made by that student. It is imperative, therefore, for school districts to consider all requisite factors when making a determination as to whether or not a student with a disability poses a threat to the health and safety of others. In Prince William County Public Schools, OCR determined the school district’s threat assessment for a student on the autism spectrum was flawed because it failed to account for the student’s social skills deficits resulting from the student’s disability. In re Prince William County Public Schools, 116 LRP 21763 (OCR 2015). The threat assessment team must understand and consider the student’s disability along with other individual characteristics of the student. 

Threat assessment teams need to make considerations related to the individual student, including: a student’s capacity, a student’s planning for the potential attack, and other factors. See Averting Targeted School Violence, a U.S. Secret Service Analysis of Plots Against Schools, Lina Alathari et al., National Threat Assessment Center, March 2021. When considering a student’s capacity, teams should determine if a student is organized enough to plan and execute an attack. They should also consider whether or not there is evidence of planning related to an attack. For example, teams should consider whether there is evidence of research into tactics, selecting targets, practice or access to a weapon. Teams should also consider whether the student has a history of showing an interest in violence or hate-filled topics. Threat assessment teams need to also consider the impact of the student’s mental health and/or disability. 

Even when drafting school safety policies, schools must be careful their policies do not ignore the protections given to students with disabilities via Section 504 and the ADA. This means threat assessment procedures need to be sufficiently individualized for students with disabilities. See Chino Valley (CA) Unified Sch. Dist., 121 LRP 21877 (OCR, 04/16/21) (finding concerns with the procedures of a California district’s homicide risk threat assessment procedures in that the procedures failed to account for the possibility of behaviors related to a student’s disability and failed to show coordination between the IEP or Section 504 team members and the threat assessment team.)

School safety is undoubtedly a fundamental priority of school districts.  With the ever-present stories of school violence around the country, the resources available to prevent targeted school violence are becoming more and more clear.  As you and your school district work to continually review and improve your threat assessment processes (as required by the statute at least annually), keep in mind the important practical and legal considerations that apply to students with disabilities.  Recognizing and implementing the connection between FAPE and threat assessments will not only keep you legal, it will keep you and your school community safer.

December 7, 2021: RtI/MTSS and CHILD FIND COMPLIANCE ISSUES

 RtI/MTSS AND CHILD FIND COMPLIANCE ISSUES: 
USE STUDENTS’ RETURN TO SCHOOL IN 2021-2022 AS AN OPPORTUNITY TO REFRESH AND IMPROVE YOUR PRACTICES

Teri E. Engler, Esq.
Engler Callaway Baasten & Sraga, LLC

For more than a decade, the Illinois special education rules have required that school districts must “implement the use a process that determines how [a] child responds to scientific, research-based interventions or multi-tiered systems of support” as part of an evaluation or reevaluation for a known or suspected specific learning disability. 23 Ill. Admin. Code §226.130.  This rule, and multiple guidance documents from the U.S. Department of Education over the years, also make clear that districts cannot use a child’s participation in a RtI/MTSS process to delay or deny an evaluation requested by a parent or as may be otherwise warranted. 

Most recently, the Department of Education has reiterated this fundamental requirement in its Return to School Roadmap: Child Find Under Part B of the Individuals with Disabilities Education Act (OSERS 2021).  Specifically, OSERS noted that districts cannot require that all students participate in general education MTSS or other general education interventions prior to referring a child for special education.  Although MTSS is a comprehensive continuum of evidence-based, systemic practices to support a rapid response to students’ needs with regular observation to facilitate data-based instructional decision-making, a parent may request an evaluation at any time to determine if their child has a disability—regardless of whether the child has participated in an MTSS framework—and the implementation of MTSS strategies cannot be used to delay or deny the provision of a full and individual evaluation of a child suspected of having a disability.  OSERS also advised districts to reexamine the efficacy of their existing child find practices and initiate new activities in light of the educational disruptions caused by the COVID-19 pandemic.  This Return to School Roadmap is a good reminder that even in the midst of a post-pandemic (or nearly post-pandemic) educational landscape, districts’ child find obligations have not been relaxed and 2021-2022 offers an opportunity to refresh and improve your procedures and practices in this area.

Two new due process decisions demonstrate the importance of heeding these requirements and offer some insights into how your school district procedures and practices might be reviewed as recommended by OSERS.  

In Pulaski County Special School District (SEA AR 8/24/21), during the first grade, a student who had been struggling in reading and math began receiving interventions under the district’s RtI process in February. Progress monitoring measures the remainder of that year and throughout the second grade, while inconsistent in some respects, indicated that the student made little progress and was still functioning below grade level. During the summer before the student’s third-grade year (2020-2021) the parents hired a private reading tutor, who recommended that the student be evaluated for dyslexia. A private evaluation was scheduled and the parents contacted the student’s third-grade teacher to share this new information and the fact that they did not believe that the District’s reading interventions had helped the student.  District progress monitoring measures in the third grade confirmed that the student was still well below grade level in reading and math.  The district proposed to conduct a “level 2 dyslexia screening” in October but it was never administered.  The private evaluation was completed in December and the student was diagnosed with ADHD and SLD in reading. In February 2021, the district proposed and parents consented to an evaluation, and in March 2020 the student was determined to be IDEA-eligible due to SLD and OHI.  At the IEP meeting, the parent asserted that the district had failed to conduct a timely evaluation and requested an IEE seeking a comprehensive language screener.   The hearing officer agreed that the district had failed to fulfill its child find obligation and timely evaluate the student, which should have occurred by the end of the second grade. As such, the student lost six to nine months of special education services and was denied a FAPE.

In ISBE Case No. 2021-DP-0087 (9/24/21), an Illinois school district’s use of RtI supports for reading for several years before an evaluation was conducted and special education eligibility was considered was similarly found to be a violation of the district’s child find obligation.  Here, the student was provided RtI interventions for reading fluency, comprehension, and written expression from kindergarten through sixth grade.  Although RtI was discontinued for one reading deficit (comprehension) in the third grade, the district reinstated RtI for that skill in the 4th grade.  In grades three-five, the RtI services were provided by four RtI interventionists, three of whom were paraprofessionals and one of whom was a certified teacher.  According to the hearing officer, it was unclear if the interventions were research-based, the student’s teachers were not familiar with the interventions being provided, and there was limited communication between the RtI interventionists and the general education teachers about the student’s performance.  The hearing officer also noted that there were no specific guidelines in the district for when a student should be referred for an evaluation if she was not making progress in RtI.  During the period that schools were closed due to the pandemic during the student’s fourth-grade year, the parent assisted the student with her classwork and saw that she was having great difficulty reading independently.  This prompted the parent to obtain a private neuropsychological evaluation, which resulted in the student being diagnosed with dyslexia, impairment in written expression, and ADHD.  The District conducted its own evaluation and determined that the student was not IDEA-eligible but offered to have its Wilson Reading-certified teacher further assess the student, who scored at less than the first percentile for her grade level.  The parents filed a due process request in which they asserted multiple child find and FAPE violations by the district.

The hearing officer found in the parents’ favor on all of their child find claims and noted that:

• The long-term use by a district of RtI services does not allow it to delay or deny an evaluation of a child suspected of having a disability;

• When a child does not make sufficient progress to meet age- or grade-level standards after being provided with research-based interventions, the district must promptly seek consent to evaluate.  In this case, however, the district “effectively created, in its RtI system, a system parallel to that of the special education system.”

The consequences of these child find delays were significant.  The hearing officer ordered the district to:

• Find the student eligible under SLD (in the areas of basic reading skills, reading fluency, reading comprehension, and written expression), OHI, and Speech/Language Impairment;

• Develop an IEP to address the deficits caused by these disabilities;

• Place the student in a private special education day school for two years;

• Provide numerous reading, written expression, executive functioning, and speech services until the student was enrolled in the private day school;

• Pay for an independent speech/language evaluation;

• Pay for the parents’ private evaluation; and

• Pay for compensatory education services in an amount up to $18,000 per year for three years.

In reviewing current procedures and practices, school districts should consider things like establishing RtI/MTSS procedures that are clear but flexible and then following them; using appropriate research-based interventions and progress monitoring tools that align with the specific skill deficits being targeted; providing sufficiently intensive staff training on the use of interventions and progress monitoring tools; monitoring the implementation of interventions and progress monitoring tools to ensure they are being used with fidelity; frequently collecting and analyzing data to inform team decision-making about the possible need for evaluation; and changing interventions that are not effective for a student.

Dec. 1, 2021 Ask an Attorney- IDEA & 504

ASK AN ATTORNEY
Franczek P.C.: Dana Fattore Crumley & Kendra Yoch

At what point do you determine that a student with a 504 plan should be evaluated for potential IDEA eligibility under OHI?  

Let’s start with the legal definitions. Under Section 504, eligibility is based on a mental or physical impairment that substantially limits one or more major life activities. The potential mental and physical impairments are not listed or limited, and the impacted life activity does not have to be learning; students may be eligible if their breathing, eating, walking, or other major life activity is substantially limited. Under the IDEA, eligibility is based on one of 13 specified disabilities and a determination that, because of that disability, the student needs special education and related services. 

Special education means specially designed instruction, at no cost to the parents, intended to meet the unique needs of a child with a disability. And specially designed instruction means adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction to address the child’s unique needs resulting from the disability and ensuring the child’s access to the general curriculum. 

Practically, the question of what qualifies as specially designed instruction can be tricky. General education now often includes differentiated instruction, tiered academic and behavioral interventions, social-emotional learning, and even individualized learning choices and supports. The line between special education and general education can thus become blurry. On this point though, OSEP has advised that while social skills training and modified teaching methodologies may be best practices and part of a district’s regular education program, that does not preclude those services from meeting the definition of special education or related services (even if they are also provided to students without disabilities).

Under Section 504, an appropriate education includes the provision of regular or special education and related aids and services designed to meet the individual educational needs of students with disabilities. So nothing in Section 504 prohibits the inclusion of specialized instruction and related services in a 504 plan. However, if a student needs specialized instruction and related services, they may also meet the eligibility criteria under IDEA. So if the 504 team is considering adding content modifications, special education services, or removal from the regular classroom to the 504 plan, that is an indication to pause and consider an evaluation for IDEA eligibility. 

When considering whether a student with a disability under Section 504 should be evaluated for IDEA eligibility, key questions include:

• Does the student’s mental or physical impairment also fall under one of the 13 IDEA disabilities, like other health impairment, specific learning disability, emotional disturbance, or traumatic brain injury? 

• Does the student need the content, methodology, or delivery of instruction adapted to address their needs resulting from their disability?

Given current information, if the answers are yes or unclear, collecting more information through the evaluation process can give the team the data they need to make a solid eligibility determination. 

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November 15, 2021 Thank you to our sponsors!

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November 9, 2021 Ask an attorney - SOPPA

 ASK AN ATTORNEY

Franczek P.C.: Dana Fattore Crumley & Kendra Yoch

What Do Special Education Leaders Need to Know about SOPPA?

Amendments to the Student Online Personal Protection Act (SOPPA) went into effect on July 1, 2021. SOPPA regulates the sharing of student data with K-12 education technology vendors. Your district likely has a technology or business official who is responsible for ensuring compliance, so why should special educators worry about the new requirements? Because special educators are creative and always looking for new tools to help their students. If we’re not careful, teachers and IEP teams can get out ahead of the district’s compliance efforts.

What do I need to know about SOPPA?

 SOPPA includes various prohibitions and responsibilities on vendors who provide websites, online services, and online or mobile applications that are used primarily for K to 12 purposes, referred to in the law as “operators.” The law prohibits operators from engaging in targeted advertising to students, amassing a profile on students, selling or renting student information, or using student information except in limited ways. Additionally, operators must maintain certain security protocols when storing student data, delete student data when requested by the district, and maintain a public privacy policy. 

The amendments that went into effect this summer include several new requirements. One significant change in the law is that a school district must have a written agreement with any operator that receives student data from the district. The agreement must contain several specific elements, including the student data shared, what happens in the case of a security breach, and the vendor’s obligations around the security of student data. Additionally, the district must post and maintain on its website a list of all operators with which it has a written agreement as well as the agreement itself; procedures for parents to review, request corrections to, and delete their child’s information; and a list of any breaches. Finally, the district must designate, by policy, who can sign contracts with operators. 

What should I look out for?  

Make sure that teachers and other team members know that before they use any technology that will collect student information (generally if the student has to sign in), that technology needs to be approved first. So when a teacher finds a new program that will allow students to practice their skills, add-on that will support student proof-reading, or an application that will track behaviors, before launching in and sharing student information, the teacher should check that the district already has a SOPPA-compliant written agreement with the operator. And if not, see if the district can negotiate such an agreement. The same guidance applies when a team is considering assistive technology for a student. 

Remember, if a service or application is “free,” your data may be being monetized, and clicking “accept” on the terms may expose student data. That click-through may also run afoul of SOPPA because only the district’s designated official is authorized to enter agreements with operators, the agreement has not been vetted to ensure it includes the required protections, and the agreement will not be appropriately posted on the district’s website. 

Even as we return to in-person learning, teams will continue to rely on the online curriculum and tools to support student learning. Taking careful steps to ensure that educators have the ability and flexibility to use these critical tools, while also maintaining student confidentiality and security, is paramount. 

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November 3, 2021 Staffing Shortages

How Can Districts Address Those Hard-to-Fill Positions? 

Kriha Boucek

Authored By:  Cassie Black

We work with clients all across the state and one thing we consistently hear from you, no matter where you are located, is that you are experiencing staffing shortages like never before. While we wish we had a magic answer, we know it’s not that easy. However, we’d like to share some of the creative solutions we’ve seen districts use, as well as some considerations to think about in the event you are looking to fill one of those hard-to-fill positions.


Creative Solutions:

Districts are experiencing staffing shortages at an unprecedented level. This includes special education teachers, school psychologists, occupational therapists, and other related service providers. Here are just a few of the ways in which we’ve seen districts address these shortages:

1. Exploring shared services with cooperatives and neighboring districts.
2. Utilizing agencies to contract with services providers, either in person or through remote service delivery. If you are exploring remote service delivery options, you’ll want to make sure the service provider meets licensing requirements. You will also want to consider on a case-by-case basis whether it is an appropriate service delivery method for the student to receive FAPE, and coordination of service delivery details such as when and where services will be provided, and whether an additional adult needs to be there to supervise the student and address any technology difficulties.
3. Offering to reimburse parents for private services as long as the services are aligned with the student’s IEP.
4. Shifting responsibilities within existing staff or in hiring of new staff. For instance, a district may have a shortage of school psychologists and in looking at the role of the school psychologist, the district determines that much of the school psychologist’s time is spent as an LEA in IEP meetings, as well as evaluating students. Since the evaluation responsibilities may require specialized skills that require the evaluation be completed by a school psychologist, the district may decide to hire someone to be an LEA across multiple buildings to take this off the school psychologist’s plate and free up the time of the existing school psychologists so that they may share evaluation responsibilities that are part of an unfilled position. When making any of these changes, districts must be aware of any bargaining implications.
5. Hiring staff with a short-term emergency approval. ISBE allows districts to apply for short-term emergency approvals for special education teachers who do not hold the LBS endorsement. In these situations, the district may hire an individual who has a PEL license in teaching or ELS-TBE and agree to take additional coursework. Additionally, districts must demonstrate they have exhausted efforts to hire an appropriately licensed individual and confirm a plan for supervision and submit an application to be approved by ISBE.
6. Utilizing retired staff members to provide services. Public Act 102-0537 extended rules permitting retired teachers to work for 120 days or 600 hours through June 30, 2023, without running into complications with retirement status under TRS.

Additional Considerations:

1. When districts are short-staffed, there are several considerations to keep in mind.
2. Keep track of your efforts to hire for the unfilled positions. This includes keeping your posting up on your website, tracking advertising efforts, and tracking efforts to interview and hire for the position. This documentation will be essential in demonstrating the district's efforts in the event there are any concerns with compliance.
3. Proactively communicate with families. In the event shortages are impacting the services being provided to students, be upfront with parents/guardians and communicate the situation and what the district is doing to address the situation. Depending on the situation, this should include a plan for making up missed minutes. As a reminder, a relatively recent law requires that in the event it is determined at an IEP meeting that a student requires a certain service and that service is not implemented within 10 school days after the service was to be initiated, districts are required to provide notice to the parent/guardian that the service has not yet been implemented. The notice must be provided within 3 days of non-compliance and include the district’s process for requesting compensatory services. See 105 ILCS 5/14-8.02(f)(d-5).
4. Review your decision-making process for determining what services are needed and the amount of services needed. Sometimes districts get into habits of determining services based on factors such as scheduling (i.e., we have 40-minute periods so students will receive 40 minutes/week of a service) or programmatic structures (i.e., we have an instructional assistant in the program so all students in the program will receive instructional assistant minutes on their IEP), rather than individual student needs. This may be a good opportunity to review with your IEPs teams factors and considerations when determining the services and supports necessary to provide a student with FAPE.

We know how challenging it can be to address staffing shortages and know that the pandemic has made it that much harder. We also continue to be impressed by the creative solutions and collaborative efforts we see when working with school districts each day.

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