Tuesday, December 22, 2020

Transgender Student Rights

From Kirsch-Goodwin & Kirsch, PLLC

Transgender is an umbrella term for persons whose gender identity or expression (masculine, feminine, other) is different from their sex (male, female) at birth.  Gender identity refers to one’s internal understanding of one’s own gender, or the gender with which a person identifies. Gender expression is a term used to describe people’s outward presentation of their gender.  Gender identity and sexual orientation are different facets of identity. Everyone has a gender identity and a sexual orientation, but a person’s gender does not determine a person’s sexual orientation.  Transgender people may identify as heterosexual, homosexual, bisexual, or none of the above.  (Centers for Disease Control, Lesbian, Gay, Bisexual, and Transgender Health, https://www.cdc.gov/lgbthealth/transgender.htm.)

The acronym LGBTQ stands for “lesbian, gay, bisexual, transgender, queer, or questioning,” and is an expansion of the abbreviation “LGB” which in turn replaced the term “gay” back in the last century.

There is more in the news lately about transgender student rights, but the United Stated Department of Education’s Office of Civil Rights (“OCR”) addressed it back in 2010 in a “Dear Colleague” letter about bullying.  There, OCR informed schools that “Although Title IX does not prohibit discrimination based solely on sexual 

orientation, Title IX does protect all students, including lesbian, gay, bisexual, and trans-gender (LGBT) students, from sex discrimination.”  (Dear Colleague Letter: Harassment and Bullying, October 26, 2010.)  As OCR explained, in such cases, schools have “an obligation to take immediate and effective action to eliminate the hostile environment.”

            The CDC provides guidance on what schools can do.  This includes implementing evidence-based policies, procedures, and activities designed to promote a healthy environment for all students, encourage the creation of LGBTQ student-led and student-organized school clubs (such as gay-straight alliances or gender and sexuality alliances open to student of all sexual orientations and genders), encourage respect for all students and prohibit bullying, harassment, and violence against all students, identify “safe spaces” such as counselors’ offices or designated classrooms where LGBTQ student can receive support from administrators, teachers, or other school staff, ensure that health curricula or educational materials include HIV, other STD, and pregnancy prevention information that is relevant to LGBTQ students (such as ensuring that curricula or materials use language and terminology, provide trainings to school staff on how to create safe and supportive school environments for all students, regardless of sexual orientation or gender identity, and encourage staff to attend these trainings, facilitate access to community-based providers who have experience providing health services, including HIV/STD testing and counseling, social, and psychological services to LGBTQ students.

            Recent case (August 2020):  The 4th Circuit U.S. Court of Appeals, which encompasses Virginia, West Virginia, Delaware, Maryland, North Carolina and South Carolina, struck down a Virginia school board’s bathroom policy segregating students with gender identity issues.    The policy limited bathroom use to "corresponding biological genders" and required students with "gender identity issues" to use alternative facilities.  The 4th Circuit found that the policy violated a transgender male student's constitutional rights and rights under Title IX.  (Title IX provides that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681[a] ; see also 34 C.F.R. § 106.31[a].) The student was initially allowed to use the boy's bathroom, but the community complained and the board amended its policy to state that the use of bathrooms "shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility."  The student sued saying that the board's policy singled him out and discriminated against him for being transgender in violation of both his 14th Amendment rights and Title IX.  The District Court agreed and granted him summary judgment.  The 4th Circuit affirmed.  Grimm v. Gloucester County Sch. Bd., (4th Cir. 8/26/20).

            The Ninth Circuit and other courts around the country have similarly ruled, striking down bathroom policies that exclude transgender students.  See, Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020), Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), A.H. v. Minersville Area Sch. Dist., 290 F. Supp. 3d 321 (M.D. Pa. 2017).

            This link will take you to resources available on the internet:  https://www.cdc.gov/lgbthealth/youth-resources.htm#school

COVID-19 & Online Learning Risks

COVID-19 & Online Learning Risks

From Kirsch-Goodwin & Kirsch, Arizona's Education Lawyers

First, it is important to distinguish between distance learning an online learning.  Not all distance learning is online.  Online learning is learning on the computer; it is one aspect of distance learning.  Distance learning can be on-line – synchronous or recorded – and it can be papers and projects, audio, or anything remote that is not brick-and-mortar.

Risk of on-line instruction revolve around accessibility, mostly for students with visual impairments, hearing impairments, students with ADHD who need reminders to focus, those who are in rural areas with limited or even no computers at home or Wi-Fi.  Remember that the IDEA, 504 and ADA, and Endrew F still apply.  Laws and regulations are not superseded by the pandemic, and schools are obligated to provide a FAPE. 

OSEP provided guidance, informing schools that upon providing distance learning, they must offer equitable access and services to students with disabilities (those with IEPs and those with Section 504 Plans).  As noted in the March 21, 2020 Guidance: “To be clear: ensuring compliance with the Individuals with Disabilities Education Act

(IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.”

            On June 25, 2020, the American Academy of Pediatrics (“AAP”) issued interim guidance on school re-entry stating that children learn best when they are in school and that “all policy considerations for the coming school year should start with a goal of having students physically present in school,” unless local public health mandates otherwise, or because of an individual student’s unique medical needs.   AAP states that learning at home is not as effective as learning in a school, will lead to learning gaps, socialization aspect, mental & emotional health, risk of effects of isolation.

            On July 23, 2020, the Centers for Disease Control and Prevention (the “CDC”) issued a summary of current studies regarding the impact of COVID-19 on children.  In “The Importance of Reopening America’s Schools this Fall The Importance of Reopening America’s Schools this Fall,” the CDC explained the importance of considering the full spectrum of benefits and risks of both in-person and virtual learning options.  Acknowledging parents’ understandable concerns about the safety of their children at school in the wake of COVID-19, the CDC stated that the best available evidence indicates if children become infected, they are far less likely to suffer severe symptoms as death rates among school-aged children are much lower than among adults.  At the same time, the CDC warned, the harms that have been attributed to closed schools on the social, emotional, and behavioral health, economic well-being, and academic achievement of children, in both the short- and long-term, are well-known and

significant.  Finally, the lack of in-person educational options disproportionately harms low-income and minority children and those living with disabilities as they are far less likely to have access to private instruction and care and far more likely to rely on key school-supported resources like food programs, special education services, counseling, and after-school programs to meet basic developmental needs.  Aside from a child’s home, no other setting has more influence on a child’s health and well-being than their school.  The CDC explains that the in-person school environment is critical to providing:

·         educational instruction;

·         social and emotional skills;

·         a safe environment for learning;

·         nutritional needs; and

·         physical activity.

Monday, December 21, 2020

Disability categories for special education in Arizona

 In Arizona, a “child with disability” is defined as “a child who is at least three years but less than twenty-two years of age, who has been evaluated [pursuant to Arizona law] and found to have at least one of the following disabilities and who, because of the disability, needs special education and related services[1]:

                                      i.            Autism.

                                    ii.            Developmental delay.

                                  iii.            Emotional disability.

                                  iv.            Hearing impairment.

                                    v.            Other health impairments.

                                  vi.            Specific learning disability.

                                vii.            Mild, moderate or severe intellectual disability.

                              viii.            Multiple disabilities.

                                  ix.            Multiple disabilities with severe sensory impairment.

                                    x.            Orthopedic impairment.

                                  xi.            Preschool severe delay.

                                xii.            Speech/language impairment.

                              xiii.            Traumatic brain injury.

                              xiv.            Visual impairment.

What is Child Find?


Child Find 

Lori Kirsch-Goodwin, Esq. and Hope N. Kirsch, M.A.Ed., Esq.

Kirsch-Goodwin & Kirsch, PLLC

8900 East Pinnacle Peak Rd., Suite 250

Scottsdale, Arizona 85255

(480) 585-0600


All children with disabilities, including children with disabilities who are homeless children or are wards of the State - and children with disabilities attending private schools - regardless of the severity of their disabilities, and who are in need of special education and related services, must be identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services. 20 U.S.C.A. § 1412(3)(A).

Each State is required to have policies and procedures to ensure that “all children with disabilities . . . including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located and evaluated.”  20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. 300.111(a)(1)(i).   This obligation is known as the “child find” requirement.  34 C.F.R. 300.111, titled “Child Find.”  IDEA requires Child Find to include “children who are suspected of being a child with a disability … even though they are advancing from grade to grade.” 34 C.F.R. 300.111(c)(1).  The IDEA “child find” mandate is an affirmative ongoing obligation for schools.

Arizona in turn requires each public education agency (school districts and charter schools) to identify and evaluate all students suspected of having a disability, and to have policies and procedures in place for such identification and evaluation. Arizona Administrative Code, R7-2-401(D) and (E) (emphasis added).  Thus, at least in Arizona, the threshold is very low, requiring nothing more than a suspicion.

A school’s Child Find obligation is triggered where there is knowledge of, or reason to suspect a student has a disability, and reason to suspect that a student may need special education services to address that disability.  Dept. of Educ. v. Cari Rae S., 158 F. Supp.2d 1190, 1194 (D. Hawaii 2001).  The threshold for suspecting that a child has a disability is relatively low.  A school's appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services.  Id., at 1195.

Beyond the initial 45-day screening, under Child Find, schools are obligated not only to seek out disabled students, but to also evaluate or provide services when it has “knowledge” of a disabled child.  Knowledge includes poor grades, behavioral concerns, and/or “off-task” classroom behavior.  J.S. v Shoreline school, 220 F.Supp.2d.1175, 1184, 170 Ed. Law Rep. 264 (W.D. Wash. 2002).  Parents expressing concern their child might have autism triggers an evaluation.  Orange Unified school v. C.K., 59 IDELR 74 (C.D. Cal. 2012).  Reported anxieties also trigger the obligation to evaluate.  Forest Grove School District, Oregon State Educational Agency, 9/12/2012 (finding Child Find violation when no evaluations were completed to determine why the student was exhibiting anxious behaviors and how they were interfering with her education).

Thus, there are no magic words that trigger the duty to evaluate; there need be nothing more than suspicion, possibility, or concern.  The suspicion threshold is relatively low because the key is not whether the child actually qualifies for special education services, but whether the child should be referred for an evaluation. 

The school district responsible for child find:

·         Non-profit private schools district in which non-profit school is located. Arizona Administrative Code (“A.A.C.”) Rule 7-2-401(D)(4)(b).

·         For-profit private schools, the district where the parent resides. Letter to Chapman , (OSEP 2007).

This is what Letter to Chapman says:

“Under section 612(a)(3)(A) of IDEA and 34 CFR §300.111, a State must ensure that all children with disabilities residing in the State, including children with disabilities attending private schools, and who are in need of special education and related services, are identified, located, and evaluated; this includes children with disabilities attending for-profit private schools. A State determines which public agency is responsible for conducting child find under 34 CFR §300.111 for children suspected of having a disability attending for-profit private schools. Generally, this agency is the LEA in which the child resides.”

Under Arizona statutes, homeschooled students are considered private school students.  A.R.S. § 15-763(C).  Charter schools are responsible for child identification activities for students enrolled in the charter school.  A.A.C. R7-2-401(D)(4)(a).  However, charter schools are not responsible for outreach under the child find regulations because charter schools have no specific geographical boundaries.


Friday, August 7, 2020

AZ Department of Health Services ("ADHS") guidance on SAFELY RETURNING TO IN-PERSON INSTRUCTION

Just released Augsut 6, 2020: AZ Department of Health Services ("ADHS") guidance on SAFELY RETURNING TO IN-PERSON INSTRUCTION  https://www.azdhs.gov/documents/preparedness/epidemiology-disease-control/infectious-disease-epidemiology/novel-coronavirus/covid-19-safely-return-to-in-person-instruction.pdf?fbclid=IwAR3PUUaCdY8cfV3vt9Mi-dr5s3IrlWHA9KMC7D16TDUMOvp6ZFkXVdz1l44

Suffice to say that the recommendation from ADHS is that school districts and charter schools do not open their schools for in-person instruction until certain benchmarks are met, including a county-wide decline for two weeks, or two weeks with new case rates below 100 per 100,000 people. If you look at the ADHS website dashboard, that may take some time. 

Follow our firm's Facebook page for up-to-date information:  https://www.facebook.com/KGKLAW/

Thursday, July 23, 2020

Re-opening Arizona schools for 2020-2021 school year

Governor Ducey issued Executive Order 2020-51 today, July 23, 2020, ARIZONA: OPEN FOR LEARNING, allowing each school district and charter school to make its own decisions for delivering educational services, whether in-person / brick & mortar and/or distance learning, and that schools must provide distance learning on the first day of their regular school year calendar even if they delay in-person school.  If schools do not return to physical buildings for teacher-led insruction, they MUST provide on-site learning that includes in-person support and supervision.
Kirsch-Goodwin & Kirsch, PLLC Education Lawyers 

Sunday, March 22, 2020

New guidance from the US Department of Education, March 21, 2020

New guidance from the US Department of Education.  In this Supplemental Fact Sheet, the US Department of Ed reaffirms the rights of students to receive educational instruction and related services under federal special education law during the COVID-19 pandemic, although it may need to be provided remotely.  This Fact Sheet has examples of how schools and educators can deliver educational services.


Office for Civil Rights Office for Special Education and Rehabilitative Services
March 21, 2020
Supplemental Fact Sheet
Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities
We recognize that educational institutions are straining to address the challenges of this national emergency. We also know that educators and parents are striving to provide a sense of normality while seeking ways to ensure that all students have access to meaningful educational opportunities even under these difficult circumstances. No one wants to have learning coming to a halt across America due to the COVID-19 outbreak, and the U.S. Department of Education (Department) does not want to stand in the way of good faith efforts to educate students on-line.
The Department stands ready to offer guidance, technical assistance, and information on any available flexibility, within the confines of the law, to ensure that all students, including students with disabilities, continue receiving excellent education during this difficult time. The Department’s Office for Civil Rights (OCR) and the Office for Special Education and Rehabilitative Services (OSERS) have previously issued non-regulatory guidance addressing these issues.*
At the outset, OCR and OSERS must address a serious misunderstanding that has recently circulated within the educational community. As school districts nationwide take necessary steps to protect the health and safety of their students, many are moving to virtual or online education (distance instruction). Some educators, however, have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education. This is simply not true. We remind schools they should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities. Rather, school systems must make local decisions that take into consideration the health, safety, and well-being of all their students and staff.
To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA),† Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.
School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible. However, school districts must remember that the provision of
* See Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students (March 16, 2020); OCR Short Webinar on Online Education and Website Accessibility Webinar (Length: 00:07:08) (March 16, 2020); Questions and Answers on Providing Services to Children with Disabilities During the COVID-19 Outbreak (March 12, 2020); Fact Sheet: Impact of COVID-19 on Assessments and Accountability under the Elementary and Secondary Education Act (March 12, 2020); and Letter to Education Leaders on Preventing and Addressing potential discrimination associated with COVID-19
† References to IDEA in this document include both Part B and Part C.
Office for Civil Rights Office of Special Education and Rehabilitative Services
FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.
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. While some schools might choose to safely, and in accordance with state law, provide certain IEP services to some students in-person, it may be unfeasible or unsafe for some institutions, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services. Many disability-related modifications and services may be effectively provided online. These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing.
It is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency. As mentioned above, FAPE may be provided consistent with the need to protect the health and safety of students with disabilities and those individuals providing special education and related services to students. Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services - IEP teams (as noted in the March 12, 2020 guidance) must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.
Finally, although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies. Where technology itself imposes 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 children with disabilities equally effective alternate access to the curriculum or services provided to other students. For example, if a teacher who has a blind student in her class is working from home and cannot distribute a document accessible to that student, she can distribute to the rest of the class an inaccessible document and, if appropriate for the student, read the document over the phone to the blind student or provide the blind student with an audio recording of a reading of the document aloud.
The Department encourages parents, educators, and administrators to collaborate creatively to continue to meet the needs of students with disabilities. Consider practices such as distance instruction, teletherapy and tele-intervention, meetings held on digital platforms, online options for data tracking, and documentation. In addition, there are low- tech strategies that can provide for an exchange of curriculum-based resources, instructional packets, projects, and written assignments.
The Department understands that, during this declared national emergency, there may be additional questions about meeting the requirements of federal civil rights law; where we can offer flexibility, we will. OSERS has provided the attached list with information on those IDEA timeframes that may be extended.
OSERS’ technical assistance centers are ready to address your questions regarding the IDEA and best practices and alternate models for providing special education and related services, including through distance instruction. For questions pertaining to Part C of IDEA, states should contact the Early Childhood Technical Assistance Center

Office for Civil Rights Office of Special Education and Rehabilitative Services
(ECTA) at ectacenter.org. For Part B of IDEA, states should contact the National Center for Systemic Improvement (NCSI) at ncsi.wested.org.
If you have questions for OCR, want additional information or technical assistance, or believe that a school is violating federal civil rights law, you may reach out through email at OCRWebAccessTA@ed.gov, call your regional office (https://ocrcas.ed.gov/contact-ocr), or visit the website of the Department of Education’s OCR at www.ed.gov/ocr. You may contact OCR at (800) 421-3481 (TDD: 800-877-8339), at ocr@ed.gov, or contact OCR’s Outreach, Prevention, Education and Non-discrimination (OPEN) Center at OPEN@ed.gov. You may also fill out a complaint form online at www.ed.gov/ocr/complaintintro.html.
Additional information specific to the COVID-19 pandemic may be found online at https://www.ed.gov/coronavirus.

Office for Civil Rights Office of Special Education and Rehabilitative Services
IDEA Timelines
As a general principle, during this unprecedented national emergency, public agencies are encouraged to work with parents to reach mutually agreeable extensions of time, as appropriate.
Part B of IDEA
State Complaints
Absent agreement by the parties, a state may be able to extend the 60-day timeline for complaint resolution if exceptional circumstances exist with respect to a particular complaint. 34 C.F.R. § 300.152(b)(1). Although the Department has previously advised that unavailability of staff is not an exceptional circumstance that would warrant an extension of the 60-day complaint resolution timeline, the COVID-19 pandemic could be deemed an exceptional circumstance if a large number of SEA staff are unavailable or absent for an extended period of time.
Due Process Hearings
When a parent files a due process complaint, the LEA must convene a resolution meeting within 15 days of receiving notice of the parent’s complaint, unless the parties agree in writing to waive the meeting or to use mediation. 34 C.F.R. § 300.510(a). While the IDEA specifically mentions circumstances in which the 30-day resolution period can be adjusted in 34 C.F.R. § 300.510(c), it does not prevent the parties from mutually agreeing to extend the timeline because of unavoidable delays caused by the COVID-19 pandemic.
Additionally, although a hearing decision must be issued and mailed to the parties 45 days after the expiration of the 30-day resolution period or an adjusted resolution period, a hearing officer may grant a specific extension of time at the request of either party to the hearing. 34 C.F.R. § 300.515(a) and (c).
Individualized Education Programs (IEPs)
If a child has been found eligible to receive services under the IDEA, the IEP Team must meet and develop an initial IEP within 30 days of a determination that the child needs special education and related services. 34 C.F.R. § 300.323(c)(1).
IEPs also must be reviewed annually. 34 C.F.R. §300.324(b)(1). However, parents and an IEP Team may agree to conduct IEP meetings through alternate means, including videoconferencing or conference telephone calls. 34 C.F.R. §300.328. Again, we encourage school teams and parents to work collaboratively and creatively to meet IEP timeline requirements.
Most importantly, in making changes to a child’s IEP after the annual IEP Team meeting, because of the COVID-19 pandemic, the parent of a child with a disability and the public agency may agree to not convene an IEP Team meeting for the purposes of making those changes, and instead develop a written document to amend or modify the child’s current IEP. 34 C.F.R. §300.324(a)(4)(i).
Initial Eligibility Determination
An initial evaluation must be conducted within 60 days of receiving parental consent under IDEA, or within the state- established timeline within which the evaluation must be conducted. 34 C.F.R. § 300.301(c). Once the evaluation is

Office for Civil Rights Office of Special Education and Rehabilitative Services
completed, IDEA does not contain an explicit timeline for making the eligibility determination but does require that the IEP be developed in accordance with 34 C.F.R. §§ 300.320-300.324 (34 C.F.R. § 300.306(c)(2)).
A reevaluation of each child with a disability must be conducted at least every three years, unless the parents and the public agency agree that a reevaluation is unnecessary 34 C.F.R. § 300.303(b)(2). However, when appropriate, any reevaluation may be conducted through a review of existing evaluation data, and this review may occur without a meeting and without obtaining parental consent, unless it is determined that additional assessments are needed. 34 C.F.R. §300.305(a).
Part C of IDEA
State Complaints
Under 303.433(b)(1)(i), the lead agency’s state Complaint procedures permit an extension of the 60 day timeline for a written decision if “exceptional circumstances exist with respect to a particular complaint” or the parent or organization and the agency or early intervention services (EIS) provider agree to extend the time for engaging in mediation.
Due Process Hearings
A state may choose to adopt Part B procedures for Due Process resolution under 34 C.F.R. §§303.440 – 303.449 or Part C procedures under 34 C.F.R. §§303.435 – 303.438. Conditions for extending the applicable timelines are similar under both sets of procedures.
Under 34 C.F.R. §303.447(c), the hearing or review officer may grant specific extensions of the Due Process timeline at the request of either party. Under 34 C.F.R. §303.447(d), each hearing and each review involving oral argument must be conducted at a time and place that is reasonably convenient to the parents and child involved.
Section 303.437 (a) and (c) provides similar language regarding scheduling a hearing at a time and place convenient to the parents and hearing officers granting extensions at the request of either party.
Initial eligibility/Individual Family Service Plan (IFSP)
Under 34 C.F.R. §303.310, the initial evaluation and assessments of child and family, as well as the initial IFSP meeting, must be completed within 45 days of the lead agency receiving the referral. However, under 34 C.F.R. §303.310(a), the 45-day timeline does not apply if the family is unavailable due to “exceptional family circumstances that are documented” in the child’s early intervention (EI) records.
The Department has previously provided guidance to states indicating that weather or natural disasters may constitute “exceptional family circumstances.” The COVID-19 pandemic could be considered an “exceptional family circumstance.”