Court Blocks Vaccine Mandate for Head Start Grantees and Contractors
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January 2022 1 Court Blocks Vaccine Mandate for Head Start Grantees and Contractors SPED Contingency Plans For When Disasters Strike
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Teacher Shortage?
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Ohio Super Lawyers
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Cincinnati 1714 West Galbraith Rd Cincinnati, OH 45239 (513) 421-2540 Columbus 300 Marconi Blvd, Suite 308 Columbus, OH 43215 (614) 705-1333 Cleveland 5000 Lombardo Center, Suite 120 Cleveland, OH 44131 (246) 487-6672
On January 1, 2022, the United States District Court for the Northern District of Louisiana granted a preliminary injunction blocking a COVID-19 vaccine mandate for Head Start grantees, contractors, and volunteers. The injunction applies to Ohio which joined as a party to the suit. Head Start funding would have been at risk for agencies that failed to ensure vaccination by employees, contractors, and volunteers. On November 30, 2021, the Office of Head Start (OHS), Administration for Children and Families (ACF), and the Department of Health and Human Services (HHS) published an interim final rule with comment (Head Start Mandate) that adds new provisions to the Head Start Program Performance Standards. The stated purpose of the rule was to mitigate the spread of COVID-19 and support continued in-person operations during the pandemic. The rule became effective immediately upon publication, although a comment period remained open through December 30, 2021. The Head Start Mandate specifically required universal masking for individuals aged two and older who participate in the Head Start program. In addition, the Head Start Mandate requires all Head Start staff, contractors whose activities involve contact with or providing direct services to children and families, and volunteers working in classrooms or directly with children to complete a full vaccination series for COVID-19 by January 31, 2022, unless an exception applies. The Head Start Mandate specifically stated that an employee may not be required to vaccinate if: • The vaccine is medically contraindicated (e.g. an individual who had an allergic reaction to the first shot should not get a second shot); • There is a medical necessity that requires a delay in a vaccination (e.g. an individual who is recovering from a major surgery may not be suitable for the vaccine administration); and • An individual is entitled to a work accommodation for religious, disability, or other reasons under federal law (e.g. an employee who demonstrates that the vaccine is contrary to a sincerely held religious belief may seek an exemption as an accommodation).
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Twenty-four states, including Ohio, joined a lawsuit challenging Head Start’s vaccination and mask requirements. The lawsuit was filed on December 21, 2021 in the Western District of Louisiana. On New Year’s Day, the court granted a preliminary injunction enjoining and restraining the implementation of the Head Start Mandate. It is expected that the order will be appealed and we continue to monitor this litigation.
SPED Contingency Plans For When Disasters Strike In recent weeks, school districts across the United States have been forced to respond to unexpected disasters in addition to all of the ongoing pandemic-related challenges. From tragic school shootings to catastrophic tornados, schools have continued to adapt as best they can. These situations serve as powerful reminders about the importance of developing contingency plans for how to support some of the most vulnerable students – those with disabilities – when disasters strike. Recent pandemic guidance sheds some light on the question of what a district’s obligations might be when schools are unexpectedly disrupted due to unforeseen circumstances. In 2020, the U.S. Education Department released insightful guidance for districts amid the emerging COVID-19 pandemic. Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, U.S. Department of Education (March 12, 2020). The ED declared that when a school district is closed and not providing any educational services to the general student population, then the school district is not required under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act to provide services to students with disabilities. However, once a school resumes in some fashion, a district’s obligation to provide services for disabled students changes, even if educational programming is provided in a different format such as remote learning. At that point, districts are obligated to “make every effort” to fully implement a student’s IEP or 504 plan, including providing all special education services and accommodations for students. In the event that a school is unable to provide the services, special education teams may be expected to convene and consider whether compensatory services should be offered at some point. Additionally, teams should consider whether any type of recovery services might be provided to help compensate for any regression and learning loss. As we have seen during the pandemic, schools that are able to adapt quickly to disasters are better able to support their students with disabilities, prevent regression and learning
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loss, and reduce or altogether avoid costs associated with compensatory education and recovery services. The ED stressed the value of creating contingency plans to address unexpected changes in learning platforms and resources. When contemplating the question of whether special education teams should consider distance learning plans as a contingency during the pandemic, the ED responded “Creating a contingency plan before a COVID-19 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach an agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal.” This same concept is easily extrapolated to other types of disasters. The lessons learned during the pandemic provide a solid foundation for schools in developing contingency plans. These plans may address the following needs: • Available Resources. School districts should have a solid understanding of what resources are available in their districts and communities to pull from in an emergency situation so that they can quickly access them. It is also helpful to maintain backup technology devices such as computers and hotspots to help facilitate the district’s quick response. • Supports for displaced students. Students who experience natural disasters such as floods and tornados may temporarily lose housing. In addition to IDEA and Section 504, students may have rights under the McKinney-Vento Homeless Assistance Act. Having access to technology such as laptops and hotspots, as well as maintaining connections with neighboring districts, educational service centers, and county agencies help schools adapt quickly. • Team meetings. It is important for special education teams to convene meetings in a timely fashion so that your knowledgeable professionals are able to problem solve and address unique challenges that a student with disabilities might face because of the disaster. Utilizing technology and staff to facilitate meetings quickly is important. • Additional Service and Staff Needs. Not only are students impacted by disasters, but staff as well. Districts may need to quickly access additional staff to fill service gaps or expand services that are provided to students. Alternatives might include utilizing telehealth services and working with neighboring districts and ESCs for backup support. • Documentation. It is critical that districts have an effective way to document what they are doing for students with a disability at all times, but especially during a pandemic. This data becomes critical for special education teams as they explore future student needs, and also helps defend against parent and advocate challenges that may come your way. The value of developing solid contingency plans before a district faces a disaster is significant. School districts should work with their colleagues and legal counsel to develop a strategy for future needs. A member of the Ennis Britton special education team is here to help support your efforts.
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Teacher Shortage? ODE Offering One-Year Reinstatement License As the COVID-19 pandemic continues to evolve, districts across the state of Ohio are facing teacher shortages that are forcing schools to shut down or move to remote learning. In an effort to keep students in the classroom, the Ohio Department of Education (ODE) has rolled out a one-year, non-renewable reinstatement license for teachers whose license has lapsed for at least one year. ODE will issue the reinstatement license only at the request of an Ohio employing school district. Educators may only request the license for the same subjects and grade levels as their expired associate or professional license. Educators working under a reinstatement license are properly certified in the reinstatement licensure area while completing requirements to renew their expired one. Additional details about this new licensure option can be found on the ODE’s website or by contacting an Ennis Britton attorney.
Congratulations to Our 2022 Super Lawyers! Ennis Britton is delighted to share that two of our attorneys have been selected as Ohio's Super Lawyers (Gary Stedronsky) and Rising Stars (Erin Wessendorf-Wortman) in 2022 for their demonstration to excellence in the practice of law. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations.
Gary Stedronsky
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Erin Wessendorf-Wortman
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Upcoming Presentations and Events On The Docket
January 13 – Superintendent Update – Butler County ESC – Erin Wessendorf-Wortman January 14 – Superintendent Update – Hamilton County ESC – Gary Stedronsky
February 8 – Legal Update – Brown County ESC/Hopewell – Pamela Leist and Bronston McCord III February 10 – Superintendent Update – Butler County ESC – William Deters II February 11 – Superintendent Update – Brown County ESC – Jeremy Neff
February 17 – Superintendent Update – Clermont County ESC – Gary Stedronsky
Administrator’s Academy Series December 9, 2021 – Treasurer’s Clinic
February 4, 2022 – Human Resources April 7, 2022 – Special Education July 21, 2022 – Legal Update
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Our Practice Ennis Britton has assembled a team of attorneys whose collective experience provides solutions for a variety of issues that school districts may encounter. From sensitive labor negotiations to complex real estate transactions, our legal experts offer the resources to ensure you remain compliant. We provide full legal representation for Ohio schools including: • Labor & Employment Law
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John Britton jbritton@ennisbritton.com
Robert J. McBride rmcbride@ennisbritton.com
Gary T. Stedronsky gstedronsky@ennisbritton.com
William M. Deters II wmdeters@ennisbritton.com
C. Bronston McCord III cbmccord@ennisbritton.com
Erin Wessendorf-Wortman ewwortman@ennisbritton.com
J. Michael Fischer jmfischer@ennisbritton.com
Jeremy J. Neff jneff@ennisbritton.com
Kyle Wheeler kwheeler@ennisbritton.com
Ryan M. LaFlamme rlafalmme@ennisbritton.com
Hollie Reedy hreedy@ennisbritton.com
Pamela A. Leist pleist@ennisbritton.com
Giselle Spencer gspencer@ennisbritton.com
• Board Policy & Representation
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